Starting in 2013, the United States has seen increased numbers of children fleeing Central and South American countries. Some enter the U.S. with family members; many enter alone. Children fleeing their home countries cite gang violence and recruitment and general instability as major reasons for their departure.
The U.S. Border Patrol often intercepts children who unlawfully cross the border. Children who enter with family members may be separated from a parent or detained in an immigration facility with their parent. Children who have been separated face a number of difficulties in reuniting with their family, though the Trump administration recently ended a policy of separating families at the border, unless family unity poses a risk to a child’s welfare.
Children who enter the U.S. alone are subject to special protections under federal law. Because of these protections, the U.S. cannot simply return them to their home country. Rather, the Border Patrol releases the children to the custody of the Office of Refugee Resettlement (ORR). ORR works to place each immigrant child with a sponsor, typically a family member who already lives in the United States. Since October 2015, 1,603 immigrant children have been sent to Ohio to live with a sponsor.
The ORR must locate a sponsor, but has no authority to grant that sponsor any legal relationship to the child. For example, an immigrant child may be sent to live with an aunt in Columbus, but the aunt cannot enroll the child in school or consent to medical treatment for the child unless an Ohio juvenile court grants her this authority.
Ohio law gives Ohio juvenile courts exclusive jurisdiction to “determine the custody of any child not a ward of another court of this state.” That means that the juvenile court in the county where the immigrant child lives is the only court that can make orders about the child, including granting custody to the child’s sponsor so the child can enroll in school.
In many cases, once the child is sent to live with a sponsor, the federal government continues attempts to deport the child through an Immigration Court proceeding. However, a child who has been abused, neglected or abandoned by a parent may be eligible for an immigration status called Special Immigrant Juvenile Status (SIJS). This status is granted only by the U.S. Citizenship and Immigration Service (USCIS) after its investigation and approval. Neither the ORR nor any other government agency gives immigrant children any special help to get SIJS.
In the case of the child sent to live with her aunt in Columbus, an Ohio court would have to inquire into the child’s family life before she could apply for SIJS. For this child to be eligible for SIJS, an Ohio state court must find the following:
1. The child is dependent on a state juvenile court. “Dependent” here simply means that a state juvenile court has taken jurisdiction over the child. The juvenile court must also appoint a custodian for the child. This can be an entity of the state or an individual.
2. The child cannot be reunited with either or both of her parents because of abuse, neglect or abandonment. The court must consider the child’s relationship with her parents and determine whether her parents’ treatment of her constitutes abuse, neglect or abandonment according to Ohio law.
3. It is not in the child’s best interest to be returned to her country of origin. The court must consider why the child left the home country and determine whether it is in the child’s best interest to be returned. However, state courts cannot order anyone to be removed from the United States.
What Happens Next
If the state court makes all three of the above findings, an immigrant child of any age can petition the USCIS for SIJS. The child must complete a number of forms, submit to a background check and have an interview with an immigration officer. If USCIS grants SIJS, then the child can request legal permanent resident status. To get this status (and consequently, a Green Card), he or she may also have to ask a federal immigration court to close a removal proceeding. Only then is the child safe from deportation.
A legal permanent resident has many of the same rights as a citizen; he or she can work legally, get a driver’s license, and live here as long as they do not commit a major crime. Legal permanent residents sometimes apply to become citizens.
Many immigrant children are not represented by attorneys. In Ohio, several non-profit agencies are available to assist immigrant children with obtaining affordable legal help: the Justice for Children Clinic, Advocates for Basic Legal Equality, the Legal Aid Society of Southwest Ohio and Community Refugee and Immigration Services.
Professor Kimberly P. Jordan is the Director of the Justice for Children Project and a Clinical Professor of Law at The Ohio State University Moritz College of Law and is a guest columnist.