Trends 2013-2016

A list of monthly Trends articles for August 2013 through October 2016 has been compiled.  See full article archive.


How the Unaccompanied Minor Crisis Is Affecting the State Courts

David Slayton, Administrative Director of the Courts, Texas Office of Court Administration

The dramatic increase in unaccompanied alien children entering the United States is likely to cause a rise in state court filings, especially in requests for findings for special immigrant juvenile status. State courts should prepare for the challenges posed by these cases.

While unaccompanied alien children entering the United States illegally has long been an issue, the number of these children has increased dramatically in recent months. This increase could impact state courts all across the country. The interplay of federal immigration law and state court proceedings is difficult, and this article attempts to provide state courts with the background necessary to determine appropriate responses.

Unaccompanied Minors

An “unaccompanied alien child” is defined by federal law as a child who:

1) has no lawful immigration status in the United States;

2) has not attained 18 years of age; and

3) with respect to whom—

  • there is no parent or legal guardian in the United States; or
  • no parent or legal guardian in the United States is available to provide care and physical custody (6 U.S.C. § 279(g)(2)).

For years, the number of unaccompanied children from Mexico has been significant—ranging between 12,000 and 17,000 children per year. Before fiscal year 2012, less than 2,000 unaccompanied children entered the United States from El Salvador, Guatemala, and Honduras. However, the number of unaccompanied alien children from Central American countries has skyrocketed, especially since October 2013. Several factors account for this increase, including violence, poverty, crime, gang activity, and abuse. The number of unaccompanied children from El Salvador, Guatemala, and Honduras individually now exceeds the number from Mexico (see graph).

Number of Unaccompanied Central American Children Entering U.S., Fiscal Years 2009-14


Source: U.S. Customs and Border Protection, “Stats and Summaries: Southwest Border Unaccompanied Alien Children.”

The children entering the United States have been crossing in all regions along the Mexican border, and especially in the Rio Grande Sector of south Texas. While the number of unaccompanied alien children has increased 100 percent overall from fiscal year 2013-14, the number of children entering the Rio Grande Sector has increased by 175 percent during that same period.

Not Just a Border State Issue

Even though unaccompanied children are entering the United States along the border, this issue affects more than the border states. Once an unaccompanied alien child is apprehended by the United States Customs and Border Protection, the child is transferred to the Health and Human Services’ Office of Refugee Resettlement (ORR), who must place the child in the least restrictive setting possible—see 8 U.S.C. § 1232(c)(2)(A). Generally, ORR places the child with an individual (parent, relative, or friend) who has applied to be the child’s sponsor. (Transfer of the physical custody of the child from ORR to the sponsor does not confer on the sponsor the right to make decisions such as enrolling the child in school or obtaining medical care for the child.) ORR may place a child in a federally operated facility or in a state-licensed facility. Since the sponsors and the facilities can be in any state, unaccompanied alien children have been placed in all of the states and in several territories (see map).

Source: Office of Refugee Resettlement, An Office of the Administration for Children & Families

What Is Special Immigrant Juvenile Status?

Special immigrant juvenile status (SIJS) is a temporary immigration benefit that provides a pathway to lawful status for abused, neglected, or abandoned juveniles who meet certain statutory requirements. Individuals may seek SIJS until their 21st birthday or they are deported. SIJS is not a grant of permanent residency. Eligibility for this status can only be determined by the United States Customs and Immigration Service. USCIS considers several factors in their determination, such as findings made by a state court judge with juvenile jurisdiction. Other factors include whether:

  • the juvenile has been declared dependent while present in the United States and under the jurisdiction of the court;
  • the juvenile filed for SIJS before reaching the age of 21;
  • the juvenile is unmarried at filing and remaining so;
  • the juvenile is remaining under juvenile court jurisdiction, subject to exceptions for age-related cases and certain other circumstances; and
  • the case was filed primarily to obtain relief from abuse, neglect, or abandonment and not primarily to obtain an immigration benefit.

The key is that state court judges who make findings regarding SIJS are not determining immigration status.

SIJS makes a juvenile eligible to apply for adjustment to lawful permanent resident status, either concurrently or later. However, granting lawful permanent resident status is discretionary with USCIS and is not guaranteed, even if the juvenile has been granted special immigrant juvenile status. If the juvenile is in removal proceedings, only the immigration judge, not USCIS, can grant the adjustment of status.

How a Case with an Unaccompanied Child Enters the State Courts

Cases involving findings for SIJS may enter the state courts in several ways, such as conservatorship cases, abuse and neglect cases, guardianship cases, or juvenile delinquency cases. Some attorneys have filed declaratory judgment actions to seek the findings for SIJS. Federal law permits only judges with juvenile jurisdiction to make the SIJS findings while the juvenile is under the court’s jurisdiction. The age at which the juvenile court loses jurisdiction of the child may be a consideration in these cases.

The role of the court is to make specific, factual findings based on state law on whether:

1)     the juvenile is declared dependent on the court or placed in the custody of an agency or department of a state or an individual or entity appointed by the state or a juvenile court located in the United States;

2)     reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis found under state law; and

3)     it would not be in the best interest of the juvenile to be returned to the juvenile’s or parents’ previous country of nationality or country of last habitual residence—see 8 U.S.C. § 1101(a)(27(J); 8 C.F.R. § 204.11.

The court may use documents admitted into evidence, court records, affidavits summarizing the evidence presented to the court, or other relevant materials in its determination.

Implications for State Courts

State courts should prepare for an influx of cases regarding SIJS. The extent of the influx is unknown, but past filings may be instructive. The chart below details the number of unaccompanied alien children in the past four fiscal years and the number of applications for SIJS filed during that same time frame.

The federal government estimates that between 127,000 and 145,000 unaccompanied children will cross into the United States in fiscal year 2015 (see House Committee on Appropriations and U.S. Senate Committee on Appropriations). Because individuals may seek SIJS until their 21st birthday, and due to current delays in deportation proceedings in the federal immigration courts, cases involving unaccompanied children may not enter the state courts immediately. In addition, the stream of cases seeking SIJS findings may last for years. State courts may also see cases involving unaccompanied alien children in other forms, such as juvenile delinquency and child abuse and neglect matters.

The state courts should ensure that judicial officers, court personnel, and attorneys are appropriately educated on the topic. In addition, state courts should consider collecting statistics to determine the impact of the cases. Finally, courts should consider what resources might be necessary to process the cases, including a potential need for court interpreters, additional judicial officers, and court-appointed attorneys.

Conclusion

State courts have successfully dealt with complex issues for many years. Few of those issues have involved such complex interplay between state law and federal immigration law. Few have also been as politically sensitive as the issues involved with unaccompanied alien children. That being said, with proper preparation, education, and resources, state courts will weather this crisis and fulfill the responsibility that has been placed on them. As recently noted by Chief Justice Nathan Hecht of the Supreme Court of Texas, “May your efforts go far in upholding the integrity of the rule of law in ensuring, in the closing words of the Pledge of Allegiance, justice for all.”


Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.