Author: 47517396

Family Law and Immigration: A Child’s Path to Lawful Status

There has been an increase over the years of unaccompanied immigrant children entering the United States. So, what happens to these kids? Who cares for them? How does the government intervene to aid such vulnerable individuals?

The Office of Refugee Resettlement (ORR) takes over the care of children once they have been detained by U.S. immigration. Some children come alone into the U.S. in search of opportunities they don’t have back home such as economic and safety from abuse, abandonment, and neglect.

Congress established the Special Immigration Juvenile Status (SIJS) as a path to lawful permanent residency by the Immigration Act of 1990. Congress sought to protect immigrant children who suffered abuse, abandonment, or neglect by one or both parents and are in the U.S. without status. It saw that these children were in need of special protection and that without this path to lawful status, they would be even more vulnerable to further exploitation and instability.

There is a 2-step system for obtaining SIJS relief.

The first step involves a state juvenile or family court make a finding that meets the federal definition of a Special Immigrant Juvenile (SIJ). The state court must find that (1) the child is dependent on the court or the court has placed the child in the custody of an individual entity; (2) reunification with one or both parents is not viable due to abandonment, abuse, neglect, or similar basis; and (3) it is not in the best interests of the juvenile to be returned to his or her country of origin. This first step was granted to the states because of their expertise in fact finding in family and juvenile issues. The states are better equipped and act within their usual function of providing and ensuring the safety, welfare, and custody of abused, abandoned, and neglected children.

The second step involves immigration officials who use the findings from the state court to determine if the child is eligible for immigration relief. Eligibility is based on the child being present in the U.S., unmarried, under 21 years of age at the time of filing with the United States Citizenship and Immigration Services (USCIS) and have a qualifying state order. The applicant must submit a certified copy of the state court order along with a Special Immigrant (Form I-360) to USCIS. If the form is approved, the child attains SIJ status and is eligible to apply for adjustment of status to lawful permanent resident by filing an Application to Adjust Status (Form I-485).

But does this mean that a child must be completely alone in order to qualify?

A child under state custody would have a finding by a juvenile court that must declare the child dependent on the court or place the child in custody of an individual agency. However, there is available relief for children even if there is the possibility of reunification with one parent. An updated USCIS Policy Manual (October 2016) notes that the state court must determine the court intends that the child will not reunify with at least one parent until the child reaches the age of majority. SIJS findings can be included in custody and paternity orders, guardianships, adoptions, divorce decrees, etc. This means that children involved in adoption or guardianship proceedings may be able to obtain relief as well.

SIJS is a form of relief that brings humanitarian protection to children in vulnerable situations. This protection is found under Immigration and Nationality Act (INA) §101(a)(27)(J) and 8 U.S.C. §1101(a)(27)(J).

Written by: Jaqueline Obregon

Pets: Property or Part of the Family?

Divorces are usually an emotional roller-coaster for both parties. Not only are the parties parting ways, but they might also be parting with property. But what happens when that “property” is part of the family?

Family units keep evolving and therefore so should the law. More and more couples opt for pets instead of children or pets first, then maybe children. These pets then become part of the family or are seen as an additional child. But if this pet is more than just “property” what happens to it during a dissolution of marriage? There is not a Suit Affecting Parent-Child Relationship (“SAPCR”) for pets like there is for children. So then how do you “split” a pet when both parties have an interest in keeping it?

There are currently, 3 states in the U.S. that have adopted custody laws that allow judges to consider the best interest of the animal. This means that judges in Alaska, Illinois, and California won’t simply consider the pet a piece of property any longer but may determine who can keep the family pet. Animals feel pain and love and as such should have their best interest taken into consideration. When making a decision, judges may take into consideration factors that could affect the welfare and well-being of the pet such as who cares for, trains, walks/plays with it, and whether one neglects or even mistreats the animal. There are also protection orders, commonly used in domestic violence cases, that can be put in place while the divorce is pending.

Current California law AB 2274 was signed on September 27, 2018 and went into effect on January 1, 2019, specifically, it provides for joint custody of pets. Before, animals were not treated differently than inanimate objects, but AB 2274 now differentiates companion animals from other types of property. Although these animals are still classified as personal property, California law is adapting to the way people view pets as family. Would this then mean that in the future enforceable pet support and medical support and decisions could also be in play?

It is likely that these states will provide guidance and encouragement for other states to incorporate similar laws involving the best interest of pets. Unfortunately, the current laws only apply to divorce proceedings and not to roommates.

Once an animal is welcomed into a home and becomes part of the family, it is difficult for someone to accept that they might have to part ways from it. Families build meaningful relationships with pets that should be taken into consideration during the dissolution of a marriage. Family units keep evolving and therefore so should the law.

Written by: Jaqueline Obregon