Asylum For Unaccompanied Minors
Author: New York Immigration attorney Alena Shautsova
Recent influx of children from South America posted serious questions in front of the US government. While the Obama administration promised an Immigration reform, it also decided to handle the cases of these children rather harshly: new immigration detention facility in Texas and surge dockets in Immigration courts do not look like measures that should address this crisis in a humane way.
Nevertheless, most of the children are eligible for some sort of relief. For example: asylum, Special immigrant juvenile status, U or T visa, and sometimes VAWA derivative status.
Most of the asylum claims of unaccompanied children involve allegations of family or domestic violence or gang violence.
Special Immigrant Juvenile Status can be granted to those children who have a guardian or custodian in the US pursuant to a State judge’s court order. The child can submit application for SIJ as long as he/she is under 21 years old.
In New York, any person can serve as a guardian, as long as he/she does not have disqualifying criminal convictions, and can demonstrate that he/she will be a suitable and reliable adult.
The fact that a child has one parent present in the US does not disqualify the child from the SIJ status.
Sometimes, the DHS issues an expedited order of removal against the child (for example, when the child is 18 years old, he/she can still qualify for SIJ status, but the Immigration treats him/her as an adult). Such an order will not be a bar to SIJ status. If, however, the child is placed in regular Immigration proceedings, and now is applying for SIJ, it is likely that the judge will not terminate the case until I 360 is approved.
Recently, the DHS has harshened its policies and practices of dealing with immigrant children: the DHS keeps these kids in detention, would refuse or set a very high bond; would issue expedited orders of removal against those kids who turned 18… However, it does not mean that there are no solutions for children and, if possible, a child or his/her family members should consult with an attorney to explore defenses to the removal.