The VBA Journal is the official publication of The Virginia Bar Association.
Issue link: http://vba.epubxp.com/i/436865
26 • VBA JOURNAL 2 6 • V B A J O U R N A L Four criteria must be met for a child to be granted SIJS. First, the individual must be unmarried, younger than 21 years of age, and present in the United States. Second, the child must obtain an order from a state court declaring he or she is dependent on the juvenile court or the child may ob- tain an order placing the individual under the custody of the Department of Social Services here in Virginia. Te child must have the permission of the Department of Social Ser- vices or the Department of Health and Human Services to petition for SIJS status. Finally, the petitioner must obtain a determination that it is not in the child's best interest to be returned to his or her country of citizenship or last habitual residence. Tis fnal determination may be part of the action in the state court or may be separate from that. 4 Original jurisdiction on all custody issues outside of divorce lies with the juvenile and domestic relations district court. 5 To in- voke SIJS for a child, a petition needs to be fled but it does not necessarily need to be a petition solely for custody. By invoking the jurisdiction of the juvenile court over a child, that child becomes "dependent on the court." 6 Terefore, any action that involves a child other than child support in juvenile court could potentially invoke the child's status as dependent on the court. Actions that would allow a child to seek SIJS include in- ter alia custody cases fled by one parent when the other is unavailable or has abandoned the child or other relative, protective order cases involving abuse or neglect, foster care matters, delinquency petitions and CHINS petitions (Child in Need of Services or Child in Need of Supervision). 7 Once jurisdiction has been obtained over the child, the court must make four fndings to invoke SIJS eligibility. First and foremost, the court must fnd that the child is less than 21 years of age. In almost all cases, the juvenile and domestic relations district court would only have jurisdic- tion over a child younger than 18 years of age. However, minors between 18 and 21 may have the opportunity to fle for declaratory judgment or fle a complaint for a writ of habeas corpus in circuit court. 8 Te age requirement may be satisfed through a birth certifcate, passport, an identity document used by a foreign government, Department of Social Services documentation or the child's own declara- tion. 9 Te next fnding the court must make after invoking its jurisdiction over the child is to fnd that reunifcation is not viable because of abuse, abandonment or neglect. In other words, the court must fnd that for some reason the child may not return to a parent. Tere does not need to be a showing that the child has been abandoned, abused or neglected by both parents. Next, the court must make a determination that it is not in the best interest to return the child to the home country or last place of domicile. To do this, there will need to be a fnding that it is unsafe for the child to return to home. Finally and probably the most important factor is that there must be specifc consent from the Department of Health and Human Services if the court makes a specifc fnding as to the child's custody status or placement. 10 Once the child has obtained an appropriate order from the court, be it a custody order, a CHINS, delinquency or protective order, the juvenile may then apply for SIJS with the federal government. Although research indicates no cases that the author is aware of that have been fled in Virginia circuit courts, it is possible to fle an action in circuit court either for de- claratory judgment or a writ of habeas corpus to invoke the circuit's decision for an order granting Special Immigrant Juvenile Status. Although the use of habeas corpus actions in custody is rare, there is still the availability under both Virginia Code and case law to allow for such fling to be made. With today's crowded dockets in J&DR; courts it may be more expeditious to fle such an action directly in circuit court. Regardless of the politics involved, we are faced with a situation with thousands of children crossing the border into this country illegally who need assistance. When chil- dren who are detained are faced with deportation hearings in which they are not granted the right to counsel nor are they appointed a guardian ad litem in spite of the fact that they are under a legal disability, it is refreshing to know that Congress has enacted at least one provision that allows a child to apply for legal status in this country and go before the courts that specialize in dealing with children and chil- dren's issues. Tose are the juvenile and domestic relations courts of Virginia and the equivalent family or juvenile courts of other states. Te SIJS process alone provides chil- dren with the guarantee that they will be aforded a hearing in the court that understands their special needs. ■ The SIJS process alone provides children with the guarantee that they will be aforded a hearing in the court that understands their special needs. 26 • VBA JOURNAL