Undocumented children in the United States are especially vulnerable due to their lack of access to resources, when compared to children with legal status. For instance, they are five times more likely to come into state care due to sexual abuse. This vulnerability is exacerbated when they are victims of abuse, abandonment, and/or neglect by one or both of their parents. These children may attempt to obtain intervention from state courts to look after their welfare and best interests. State courts may then afford the child an opportunity to apply for a Special Immigrant Juvenile Status (SIJ) with United States Citizenship and Immigration Services (USCIS), a federal agency of the Department of Homeland Security. Because of this hybrid system between state and federal law, state judges often misconstrue their role in the state courts and believe that they are granting undocumented children legal status, as opposed to declaring them dependent on a state court that will determine the child’s best interests. As a result, the child’s case in state court becomes politicized, and the child is not looked at as an individual child with a unique story of parental abuse; they are seen instead as someone fabricating a parental abuse story solely to obtain immigration status.
Although state courts should be confined to protecting the child’s best interests because federal authorities retain full discretion on whether to grant SIJ status, state courts often act as immigration gatekeepers. For example, state courts can get caught up in an analysis best left to immigration authorities on whether the child is admissible or should be allowed to stay in the country. Some courts reject taking part in the decision at all, clearly misunderstanding their role in the SIJ process. In the Miami-Dade County court, there was even a clear fear expressed by judges of a massive influx from the Northern Triangle and how it would impact the judicial process.
It is crucial for state courts to remain neutral on immigration issues to help individual children in care and custody matters. All undocumented children seeking state court intervention need access to caseworkers and legal representation, and there needs to be better tracking of SIJ data in state courts. At both a national and local level, this intervention will prompt better training and support for state courts working with undocumented children seeking relief.
There is currently no way to gauge neutrality issues at state courts due to a lack of data. There is data available on SIJ applications at the USCIS and immigration court level, but not at the state court level. In 2019, USCIS received 20,721 SIJ applications, while 29,299 applications remained pending during that fiscal year. It is unclear, however, how many children could not get a special finding order from a state court and the reason why—whether it was a lack of legal representation, judicial bias, or the court’s misunderstanding of the SIJ process.
Access to legal representation is vital to undocumented children seeking intervention from state courts. Although undocumented migrants usually lack access to a government lawyer, undocumented children, especially those abused and/or neglected by one or both of their parents, should. Recently, the American Bar Association addressed the lack of legal representation for undocumented children and urged the appointment of “counsel for unaccompanied children at government expense at all proceedings necessary to obtain SIJS and other remedies.” With adequate representation, a child’s best interests would be advocated by their attorneys, who would ensure that the state court proceedings focused on the overall welfare of the child.
Children need caseworkers to advocate on their behalf and connect them to local resources, including legal services. A child who has been abused, abandoned, and/or neglected needs court intervention and access to services, but they currently lack the same access as children with legal status. Undocumented children are excluded from receiving federal support through the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and are sometimes even excluded from shelters. Furthermore, these children don’t have the same job and education opportunities, housing, and in most states, a right to a driver’s license. Massachusetts is one out of only six states that uses state funds to cover children’s health care regardless of their immigration status.
Allocating caseworkers to undocumented children would ensure that there is an advocate looking out for the child’s best interests who can connect them to resources. With their expertise in child development and cultural competency, a social worker would speak out for the human rights of each child and ensure that their needs are acknowledged. Social workers can also help plan for the transitional services needed by children about to age out of the system, as well as help them access the social services they require.
One way to improve the court system is to assign one judge to hear all SIJ cases. In the Brooklyn Family Court, one judge has become an expert in SIJ cases and hears all of these cases by default. Having a centralized system in the courts for SIJ children creates a better understanding of the process by training the judges and the clerks, and it creates a consistent application of the law for abused minors. The caseworkers would be assigned to work with all of the children who are assigned to the SIJ judge. They would connect the child to legal services, resources, and have familiarity with the court system. The caseworkers could even help track data on state court trends related to SIJ cases to keep the system accountable. In sum, caseworkers, judges, and counsel would work collaboratively to act in the child’s best interests, just as it works when other children have been abused and/or neglected in the United States.
Undocumented children who have been abused and/or neglected by their parents deserve a holistic approach based on the individual facts and circumstances of each case. These children further deserve a youth empowerment approach as described above, so they have a chance to live a safe and secure life in the United States. Having an advocate, counsel, a trained judge, and accountability in state courts can ensure that undocumented children who have been abused and/or neglected receive the court intervention every child needs to heal from trauma and feel safe. By placing them in safe homes in the United States, where a lot of potential family members can support them, courts can grant undocumented children the very security they arrived in the United States in search of. It is crucial that these children are not sent back to dangerous countries by default, where they are vulnerable to further abuse.
By Caroline M. Foley
Caroline Foley is currently finishing her final semester at Western New England University School of Law. As the Assistant Symposium Editor of the Law Review, she has contributed her longstanding and specialized knowledge of Immigration Law to Volume 43’s Symposium Issue on immigration reform. She hopes to further her contributions as an Immigration Attorney after graduation.
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