On June 1, 2015, Kuck Immigration Partners, through our amazing associate attorney Anna Erwin, received a groundbreaking (but as of yet unpublished) decision from the Board of Immigration Appeals. The Board reversed the decision of the Atlanta Immigration Judge to deport our 11-year-old client and found that the Judge should have addressed our client’s eligibility for a Special Immigration Juvenile Visa (SIJS), and that the Judge should have continued the case to let our client pursue her SIJS through a state court custody petition putting her in the sole custody of her father.
Our client is a native of El Salvador. Her mother abandoned her as a baby. Her paternal grandparents cared for her in El Salvador and her father came to the U.S. to work and support his family. In 2014, our client’s grandparents became too elderly and ill to care for her. Her mother still would not take responsibility for her care. Our client had no choice but to come to the United States where her father could care for her. Our client was apprehended by immigration at the border in 2014 and placed in removal proceedings in Atlanta.
This young girl came to our office, and we saw that she qualified for SIJS. The law provides SIJS can be granted to an unmarried juvenile under 18 years of age who is:
an immigrant who is present in the United States—
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence
INA § 101(a)(27)(J).
Our client had been abandoned by one parent, her mother, and she was in the U.S. with her father who was willing to take custody of her. We filed a petition in the state court to place her in the sole custody of her father, and we asked the state court judge to find that reunification with her mother was not viable due to abandonment, and that it was not in our client’s best interest to return to El Salvador because there was no one left to care for her.
Sounds like a slam dunk – so we thought.
Our client had only been in removal proceedings for 14 days, and at her initial immigration hearing we presented to the Judge a copy of the petition for custody pending in the state court and a brief on her eligibility for SIJS. The Judge put the brief to the side and told the child she did not qualify for SIJS because she lived with her father and only her mother abandoned her. The ICE counsel incorrectly stated that a juvenile can only get dependency in Georgia if both parents had abandoned the child, even though we explained we were not pursuing dependency but rather custody. The Judge ordered our client removed without any discussion of her eligibility for SIJS through a custody order.
The Board of Immigration Appeals correctly read the law, reversed the Judge’s decision to remove our client, and ordered the case back to the immigration court. The Board pointed out that the Judge ignored that our client was not pursuing SIJS through a dependency order but rather through a custody order. The Board ordered the Judge to consider the argument and quoted the SIJS law that a juvenile pursuing SIJS can be “’dependent on a juvenile court’ or “placed under the custody of . . . an individual.’” In addition, the Board stated that the Judge not only should have addressed our argument, but also should have continued or administratively closed our client’s case for adjudication of the custody petition, “absent evidence of an alien’s ineligibility for SIJ status.” The Government presented no evidence of ineligibility in the hearing because the Government did not address SIJS through a custody order.
This decision is important for several reasons. First, the decision is in clear compliance with the SIJS law. The decision took a hard and clear stance with the law to a Judge who didn’t give a second thought to deporting a child in two weeks without even reading her case.
Second, the decision finally addresses the problem in Georgia of focusing too much on using dependency to get SIJS and forgetting about using custody and commitment orders. By far the most common way to pursue SIJS in Georgia is through a dependency order. But while federal law, as seen above, allows a juvenile to receive SIJS if they have been abandoned by only one parent, dependency law in Georgia largely requires abandonment or neglect by both parents for a dependency to be granted. As often happens, the federal and state laws are in conflict. However, a juvenile can obtain a commitment or custody order in Georgia putting them in the custody of one parent and making the other SIJS findings. The judges and the government in Atlanta did not understand this plain reading of the statute. Because dependency was the most common way to pursue SIJS, and dependency requires abandonment by both parents, they had tunnel vision and thought all ways of getting SIJS must require abandonment by both parents. Not to mention this tunnel vision led them easily to their goal – deportation. Their interpretation of the law was not correct, and the Board of Immigration Appeals saw this.
If your client has been abandoned by one parent but is cared for by the other parent, and they are under 18, do not let yourself be bullied, get yelled at, or be told you’re wrong, Stand tall and show the immigration judge the law they don’t want to see. Kudos to Anna Erwin for this victory!