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Recent decisions in the ever changing terrain of SIJS

Corey Lee Law - NYC Immigration Attorney > C.T.LEE & Associates Blog  > Recent decisions in the ever changing terrain of SIJS

Recent decisions in the ever changing terrain of SIJS

Special Immigrant Juvenile Status

In Matter of E-A-L-O-, they agreed that a newly enacted law defining juvenile as an unmarried person under 21 applies retroactively and a petitioner over 18 will still qualify for SIJS as long as he or she establishes the other points of eligibility. Here, the appeal was dismissed because although the petitioner was correct in asserting that the new law applied retroactively, the petitioner did not submit any evidence establishing that the order he received from the family court was issued in connection with any type of custody or dependency proceedings. Further, the family court order submitted by the petitioner stated that reunification with his mother was not viable due to abandonment, but there was no evidence to support the assertion that he had been abandoned by his mother. The AAO clarified that such contentions must be supported by the evidence in the record.

In Matter of A-O-C-, the AAO clarifies that a SIJS petitioner must establish that the juvenile court issuing the dependency order has competent jurisdiction to issue such orders, and that the definition of “juvenile,” “youth,” “minor,” “child,” etc. is governed by state law, not federal law. This petition was initially denied because the petitioner was not considered eligible due to the fact that he was over the age of 18 at the time he applied and therefore no longer considered a juvenile under Massachusetts law. On appeal, the petitioner tried to argue that it didn’t matter if he was no longer a juvenile under state law because the INA designated 21 as a definition of a child for SIJS classification. The AAO clarified that only state law can define “child,” etc. not federal law. The AAO also found in this appeal that the new Massachusetts law defining juvenile applied retroactively and thus they sustained the appeal.

In Matter of D-Y-S-C-, the AAO states that USCIS consent to issue SIJS is warranted where the petitioner shows the juvenile court proceedings granted relief from parental maltreatment under state law beyond just submitting a bare bones special findings order. Here, USCIS issued a NOID in response to the initial petition because the juvenile court order repeated the language from the INA without discussing with which parent reunification was not viable and for what reasons. The petitioner, who was in the custody of Texas Department of Family and Protective Services due to the abuse from her father, did not respond to the NOID in time because the documents requested by USCIS took longer than the time allotted to obtain. Petitioner submitted a Motion to Reopen with additional documentation explaining that DFPS was granted sole conservatorship over the Petitioner and her siblings. DFPS requested termination of parental rights and the family court denied the father custody or visitation and refused to appoint the mother or father as managing conservator as it was considered against the best interest of the child. USCIS dismissed the motion to reopen and concluded that the petitioner was not eligible for SIJS. Petitioner appealed and appeal was sustained because, in the entirety of the record, eligibility was clearly established.

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