Criminal Defense of Immigrants

(A)  In General.  The Immigration Act of 1990 and subsequent amendments created a new option to help abused juveniles and the counties that house them.  Certain immigrant children can apply for Lawful Permanent Resident status (and obtain a “green card”) if they qualify as Special Immigrant Juveniles.  See § 24.30(F), infra.  To qualify, the child must complete several forms, have a medical examination, and show that a state juvenile court has ruled that the child is a court dependent and has been “deemed eligible for long term foster care,” meaning that the court has decided that family reunification is not in the child’s best interest and that the child will continue in foster care, or in adoption or guardianship.[44]

                It is important to start this process early, since the child must remain a dependent on the court until the DHS approves the application, which can take a year or more after submission.

                The juvenile court judge should issue an order making the findings regarding court jurisdiction, long-term care, and inadvisability of return to the home country, and care should be taken that this is being done for the welfare of the minor, as opposed to being motivated solely by immigration considerations.

                While this section is obviously applicable to juveniles in dependency proceedings, some advocates are exploring the possibility of its application to juveniles accused of crimes.  Some juveniles might qualify for this relief by being transferred from delinquency to dependency proceedings.  Since the resolution of a case in juvenile proceedings does not result in a conviction, most delinquency dispositions would not be a basis for inadmissibility.  The DHS might argue, however, that a juvenile who has become inadmissible on the basis of one or more of the “conduct-based” grounds of inadmissibility would be ineligible, since a conviction is not required to trigger those grounds of inadmissibility.  See § § 12.30, 12.32, infra.

                WARNING:  This legislation has been amended to require that the U.S. Attorney General must expressly consent to the juvenile dependency order serving as a precondition to the grant of special immigrant juvenile status, and that no juvenile court has jurisdiction to determine the custody status or placement of a noncitizen in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to this exercise of jurisdiction.[45] 

[44] Immigration Act of 1990, § 153, amending INA § 101(a)(27)(J), 8 U.S.C.

§ 1101(a)(27)(J).

[45] See INA § 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J).