When a minor under the age of eighteen is placed into Immigration and Customs Enforcement (ICE) removal proceedings, he or she may be eligible to apply for certain removal/deportation relief options. There are common defenses to removal that many undocumented aliens pursue. While any defense that an adult may use for deportation relief can be a valid defense for eligible minors, this article will talk about additional options that noncitizen minors may be eligible for.
Special Immigrant Juvenile Status (SIJS)
Special Immigrant Juvenile Status (SIJS) is a federal law that can assist undocumented minors currently residing in the state juvenile system with obtaining specific documentation required to remain in the United States lawfully. SIJS status is not as well-known as other relief options. but is potentially a viable option for a large number of juveniles currently residing in the U.S.
SIJS Requirements and Eligibility
For a minor to qualify for SIJS, a state court must provide an official order that declares, whether it is due to neglect, abandonment or abuse by a parent, it is not in the best interest of the child to go back to his or her country of birth. Additional reasons may also qualify the child for SIJS depending on the state.
The child must file Form I-360 when the state enters its order. This a Petition for American, Widow(er), or Special Immigrant with U.S. Citizenship and Immigration Services (USCIS). In order to qualify, an applicant must not be 21 or older, and he or she must not be married. If the application is approved, then the child can apply for a “green card,” officially known as “permanent resident status.”
Qualifying for A Green Card Through SIJS
The child must show that he or she is capable of entering the United States in order to become a permanent resident. Certain disqualifications are not applicable when a minor has SIJS. For example, an immigrant who arrived in the United States without a passport, without inspection, by overstaying a visa or when the minor is likely to require public benefits like welfare could be rejected without SIJS. In addition to this, the applicant may waive most disqualifications with form I-601, the Application for Waiver of Grounds of Inadmissibility.
It is important to remember that this is just an overview of the process. Actually executing this process and correctly managing the required documentation is challenging to say the least. It is not recommended that you try to pursue this option without the assistance of a licensed and well-practiced immigration lawyer.
Court Proceedings for an SIJS Case
In most cases, the immigration judge will either continue or postpone the proceedings until USCIS decides whether or not to approve the child’s SIJS application. When the approval goes through for I-360, then the applicant may request that his or removal proceedings be terminated, enabling him/her to apply for permanent residence with USCIS or, adjust his immigration status in court. It can take quite a long time before receiving a final hearing because there are many cases currently backlogged in much of the U.S. Immigration Court system.
Central American Minors (CAM) Program
Undocumented aliens who arrived from certain Central American countries and legally live in the United States may be able to bring some of their relatives to the U.S. under the new Central American Minors (CAM) program. The CAM program is not widely understood by the general public as it it is relatively new. Please read my article, What is the Central American Minors (CAM) Refugee/Parole Program? for more information on how CAM can benefit certain undocumented aliens.
Deferred Action for Childhood Arrivals
Deferred Action for Childhood Arrivals (DACA) is an additional form of relief for undocumented alients without American citizenship. The purpose of this relief is to allow certain youth who have arrived in the United States as minors to request temporary residency and permission to work in the country. DACA was originally given a two-year period as of 2013. DACA would potentially be affected if comprehensive immigration reform is signed into law.
Qualifying for DACA in Removal Proceedings
If the noncitizen minor has not yet entered removal proceedings, then the minimum age to qualify for DACA is 15 years old. However, if removal proceedings have begun, or if the child has a voluntary departure order or a final order of removal, then the minimum age can be waived. Any minor active in removal proceedings may submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, as well as Form I-765, the Application for Employment Authorization. Filing these forms will apply for DACA.
Applicants should remember that these forms must be managed correctly and have room for error. If you are interested in pursuing DACA, it is recommended that you consult with an immigration lawyer prior to pursuing your case.
Approval of a DACA Case
Upon approval of the minor’s DACA application, he or she can request that the removal proceedings be closed by the judge. When this happens, it means the child won’t have to face removal hearings and is removed from the active docket until the DACA status expires. When their DACA status expires, the case would return to the docket.
Minors May Request “Prosecutorial Discretion”
If a minor is not eligible for DACA, then it may also be possible to seek “prosecutorial discretion” (PD). In a PD case, ICE has the ability to close the case if it considers it to be low enough priority in terms of a threat to the U.S. For more comprehensive information on prosecutorial discretion, review my article, The Truth About Prosecutorial Discretion and Advance Parole.
Factors ICE Uses to Determining “Priority” for a Case
It is beneficial to understand some of the basic factors ICE uses in order to evaluate the priority of a case. Common information that ICE analyzes to determine includes:
- Age of the applicant.
- The amount of time spent in the United States.
- Family ties in the country.
- American education.
- Humanitarian considerations.
Benefits of Prosecutorial Discretion
This form of deportation relief is not an official immigration status, which means it does not provide any lawful permanent residency or a means to obtain employment. However, it can allow an undocumented alien to avoid immediate removal. Prosecutorial Discretion requires a thorough understanding of federal statute and it is very unlikely that an individual will be successful pursuing prosecutorial discretion without help from a qualified immigration attorney.
We Are Ready to Help You!
Defending noncitizen minors in removal proceedings is a unique area in immigration law. Noncitizen minors may qualify for all forms of relief that are available to adults, in addition to the options discussed in this article. If you believe you or a loved one may qualify for Special Immigrant Juvenile Status (SIJS), the Central American Minors (CAM) Program, Deferred Action for Childhood Arrivals (DACA) or Prosecutorial Discretion (PD) call Pride Immigration Law Firm to discuss your case. You can also ask me a question online. It is our goal to help you understand your best option and guide you through the process if you decide to pursue a case.
Beeraj Patel, Esq.
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