Protections for Abused, Abandoned, and Neglected Children Are At Risk, Again

Photo by U.S. Department of Defense

Juan journeyed to the United States from his native El Salvador at the age of 13 after experiencing years of familial neglect and threats from armed gang members.  When Juan was an infant, his father abandoned him and his mother, claiming that Juan was not his son and refusing to have any further contact with Juan.  A few years later, Juan’s mother left for the United States so that she could better provide for her son back home.  She left Juan with her mother, Juan’s grandmother, and sent money home whenever she could.  But Juan’s grandmother mistreated him, barely feeding him, and did not allow him to speak to his mother when she would call from the U.S.  Juan was forced to drop out of school when gang members repeatedly threatened him as he walked to and from school each day.  Eventually, fed up with his grandmother’s abuse and terrified that the gangs would carry out their threats, Juan made the harrowing journey to the United States to reunify with his mother.

As record numbers of unaccompanied immigrant children have arrived at the southern U.S. border in recent years, lawmakers and other government officials have debated about how best to respond.  Lawyers and child advocates have struggled to keep up with the demands of screening these children for eligibility for lawful immigration status, as well as providing legal representation to them in immigration court proceedings and in applications for legal relief.

One of the most common forms of relief for which such children are often eligible is called Special Immigrant Juvenile Status (SIJS).  Created by Congress in 1990 in order to protect this especially vulnerable population, SIJS provides a path to lawful permanent residence (or a “green card”) to children who have been abused, abandoned, or neglected by their parent(s).  Before a child can petition U.S. Citizenship and Immigration Services (USCIS) for status as a Special Immigrant Juvenile and a green card, a state juvenile court judge must first determine that reunification with the child’s parent(s) is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and that it is not in the child’s best interest to be returned to his or her home country.  State courts typically make such determinations during custody, guardianship, or neglect proceedings, though available mechanisms vary from state to state.

In order to be eligible for SIJS, children originally needed to demonstrate that they were “eligible for long-term foster care.”  Under federal regulations at the time, this meant that family reunification, with either of the child’s parents, was not possible.  However, in 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) expanded eligibility for SIJS.  Among other things, the 2008 TVPRA eliminated the requirement that a child be found eligible for long-term foster care and instead made the relevant determination whether reunification with one or both of the child’s parents was viable due to abuse, neglect, abandonment, or something similar.  This allowed children living with court-appointed legal guardians, adoptive parents, or in other custody arrangements, as well as those in foster care, to qualify for SIJS.

This change has led to so-called “one-parent” SIJS cases like Juan’s described above, where a child may have been mistreated or abandoned by one parent but is now safely living with his or her other parent in the United States.  The TVPRA amendments provided further recognition of the special protections that these children require and deserve and brought this provision of U.S. immigration law into better alignment with child welfare guidelines.  Principles of child welfare have long established that a child’s reunification with his or her family should be a priority whenever safe and possible.  Thus, a child who has been abused, abandoned, or neglected by one of his or her parents should be encouraged to reunify with the non-abusive or -neglectful parent whenever practicable, without giving up his or her eligibility for protection under immigration law, particularly when the law is specifically designed to provide that protection.

However, a number of members of Congress have recently introduced (or, in some cases, reintroduced) legislation that, if enacted, would strip protections for unaccompanied immigrant children in a number of ways, including restricting SIJS eligibility.  Both H.R. 1153, the Asylum Reform and Border Protection Act, and H.R. 1149, the ironically named Protection of Children Act of 2015, introduced last month, include provisions that would eliminate one-parent SIJS by only allowing eligibility for children who cannot reunify with either of their parents.

These efforts to weaken existing, much-needed protections are yet another misguided attempt to play politics with children’s lives and wellbeing.  The bills’ supporters seem to believe that children are coming to this country in droves, mostly from Central America, because they know the intricacies of U.S. immigration law and are looking to “exploit” supposed “loopholes.”  But the truth, as study after study after study has shown and as a recent Government Accountability Office report has confirmed, is that these children are fleeing crime and violence, both in their homes and from ruthless gangs, as well as seeking family reunification and better educational and/or economic opportunities.  They are not coming to this country because they have heard of Special Immigrant Juvenile Status, or Deferred Action for Childhood Arrivals (DACA), or any other form of legal relief that may or may not be available to them.  U.S. immigration law is notoriously complex, and though applications have risen in recent years, SIJS is still a very underutilized form of relief, in part because even many immigration lawyers are still unfamiliar with it.  It should also be noted that under current law, children who obtain lawful permanent residence or eventually U.S. citizenship through SIJS can never petition for either of their parents through the family-based immigration system, regardless of whether they originally sought protection from one or both of their parents, undercutting any potential concerns that one-parent SIJS cases will open the floodgates to more unauthorized immigration by parents.

During hearings on H.R. 1153 and H.R. 1149 in the House Judiciary Committee last week, Representative Bob Goodlatte called one-parent SIJS cases an “unintended consequence” of the 2008 TVPRA amendments.  But that law was passed with bipartisan, unanimous support and was signed into law by Republican President George W. Bush; surely Congress and President Bush could not have misunderstood the plain language of the law, allowing a child to qualify for SIJS when reunification is not viable with “one or both” parents.

Many advocates have attempted to fight these bills, and Representative Hank Johnson introduced a proposed amendment to the Protection of Children Act, suggesting that the provision to eliminate one-parent SIJS be eliminated from the bill because it “simply does not make sense.”  Unfortunately, that proposed amendment failed by a vote of 10 to 14 after a vote along party lines.

Still, these bills and others designed to weaken protections for unaccompanied children have a ways to go before they become law, and would likely be vetoed by President Obama were they to get that far.  But their introduction is troubling in and of itself.  They would increase the vulnerability and trauma experienced by a population who has already gone through more than enough of it in their short lifetimes, while simultaneously demonstrating a fundamental misunderstanding of the factors causing this humanitarian crisis.

A child who has been abandoned or abused in his or her home country should not face deportation back to that country, and accordingly to that same unsuitable caregiver, just because he or she happens to live with his or her other parent here in the U.S.  Rather, the availability of a safe home with a loving parent and away from mistreatment and abuse is exactly what the creators of SIJS intended to provide for these ill-treated yet resilient children.  Any child who has been found by a state court judge to be abused, abandoned, or neglected should be eligible for protection if that judge determines it is not in the child’s best interest to return to her home country, regardless of whether her current caregiver is her aunt, older brother, family friend, or parent.

Tags: abuse, child welfare, house of representatives, policy, politics, republicans, SIJS, Special Immigrant Juvenile Status, TVPRA, UACs