Criminal Defense of Immigrants


§ 12.7 (A)

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(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).



First Circuit

In re Israel O., ___ Cal.App.5th ___, 2015 WL 227892 (1st Dist. Jan. 16, 2015) (reversing the order of the juvenile court denying defendant's request that the court make factual findings that would qualify him for special immigrant juvenile (SIJ) status, and remanding for a hearing to determine whether it is in defendant's best interest to be returned to Mexico, since the findings are a prerequisite for filing an SIJ status application, to allow defendant an opportunity to pursue regularization of his immigration status in the United States; reunification of defendant with his father in Mexico is not viable due to abandonment; and an eligible minor under the SIJ statute, 8 U.S.C. 1101(a)(27)(J), includes a juvenile for whom a safe and suitable parental home is available in the United States and reunification with a parent in his or her country of origin is not viable due to abuse, neglect, or abandonment).

Fourth Circuit

Eddie E. v. Superior Court, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 545984 (4th Dist. Feb. 11, 2015) (court of appeals ordered juvenile court to make favorable findings under 8 U.S.C. 1101(a)(27)(J)), which are a prerequisite to petitioner applying for special immigrant juvenile status, SIJ status cannot be granted unless a state court finds, among other things, that petitioner cannot reunify with one or both of his parents due to abuse, neglect, or abandonment, and that it would not be in petitioner's best interest to return to his home country, and petitioner satisfied this standard).

Lower Courts of Ninth Circuit

Eddie E. v. Superior Court, 223 Cal.App.4th 622 (Oct. 2013) (trial court erred in denying SJIS status by failing to consider whether a resident alien in petitioner's position may also demonstrate he had been "legally committed to, or placed in the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States," under the relevant statute).


B.F. v. Superior Court, 207 Cal.App.4th 621, 143 Cal.Rptr.3d 730 (2d Dist. Jul. 2, 2012) (granting writ of mandate commanding Superior Court to consider the request of the Minors B.F., M.F., and L.F., by and through their legal guardians, regarding special immigrant status pursuant to INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J) and 8 CFR 204.11, and to conduct a hearing, as soon as practicable, on the merits of the Minors' request and thereafter issue a new order.)