On October 15, 2019, USCIS officially adopted three Administrative Appeals Office (AAO) decisions relating to SIJS, Matter of E-A-L-O-, Matter of D-Y-S-C- and Matter of A-O-C-. Then, on November 19, 2019, USCIS announced that their Policy Manual section concerning SIJS had been updated. Here we give a brief overview of what has been changed or “clarified” in the Policy Manual regarding SIJS.[efn_note]CILA has created a redlined version of the new Policy Manual, showing the changes between the October 2016 updates and the November 2019 updates here.[/efn_note] Some of these clarifications may not seem new because they are similar to previous non-precedential AAO cases that have been issued. However, it is important to note that as Adopted Decisions and official binding USCIS policy, these policies now have authoritative weight.
First, the drafters of this version of the Policy Manual replaced the word “finding” with “determination.” According to the first chapter of Volume 6, Park J of the policy manual, “determination” refers to a conclusion of law. “Findings” relate to decisions by a court on facts. It appears that USCIS is trying to clarify that the court should make a conclusion of law, rather than just state facts into the record.
Second, there are a lot of changes to the footnotes of the SIJ chapter of the policy manual. The drafters used the three new AAO opinions USCIS adopted to bolster some of their requirements, and generally cited to much more case law and other legal resources than in the previous version, including federal child welfare standards.
The majority of the changes to Volume 6, Part J of the Policy Manual were in Chapters 2 & 3. Chapter 2 discusses the eligibility requirements for SIJS. Whereas Chapter 3 refers to documentation and evidence. Below you will find an outline of the important revisions, according to our analysis of the changes and our observations on the Special Immigrant Juvenile Classification Updates Teleconference held on Tuesday, December 10, 2019:
Chapter 2
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- Ch 2.B – (Age-out Protections for Filing with USCIS) Included language referencing that although the INA says that SIJ status can be obtained as long as the person is under 21 and unmarried, each individual state law determines what age constitutes a juvenile. (In reference to the fact that, in some state laws, juveniles are under 18. There must be specific legislation or precedent allowing a state court to have jurisdiction over a person over the age of 18 to get a qualifying order for SIJS).
- Ch 2.C – (Juvenile Court Order) Language added further defining a “juvenile court” and indicating that even if the court generally has jurisdiction over juveniles, if the order doesn’t stem from a custody or dependency proceeding, the court is not “acting as a juvenile court at the time that the order is issued.”
- Ch 2.C.1 – (Dependency or Custody) Referencing dependency, incorporates Matter of E-A-L-O- and cites the 5th Circuit decision in Budhathoki v. Nielsen, and refers to state welfare law’s definitions of dependency and that the child’s maltreatment is “legally sufficient to support state intervention on behalf of the child.” Footnote 12 goes on to clarify that for it to be a dependency order, it generally would “involve a determination regarding the care and custody of the child or the provision of child welfare services or both.” In discussing custody, they indicated that it “generally encompasses both legal and physical custody.” The language referring to temporary guardians/caretakers was removed (however, it was added to Chapter 3).
- Ch 2.C.2 – (Parental Reunification) Added the requirement that there must be a “factual basis” for the lack of viability of parental reunification in the order including naming the petitioner’s parents “and the record must establish that the court determined the named person(s) to be the petitioner’s parents.” Also, in footnote 19, in direct relation to the RFM v. Nielson litigation, they state that “USCIS does not require that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.”
- Ch 2.C.3 – (Best Interests) Some favorable language has been added to the “best interest” portion of the manual. Juvenile courts must make case-by-case best interest assessments based on state law, but USCIS noted that “the child’s safety and well-being are typically the paramount concern.” As an example, if “the court places the child with a person in the United States pursuant to state law governing the juvenile court dependency or custody proceedings, and the order includes facts reflecting that the caregiver has provided a loving home, bonded with the child, and is the best person available to provide for the child, this would likely constitute a qualifying best interest finding with a sufficient factual basis to warrant USCIS consent.” [emphasis added]. It was also clarified that the best interest determination can be made by “other judicial or administrative bodies authorized or recognized by the juvenile court” or statute. A child welfare agency was provided as an example. The petitioner has the burden of proof to show that the best interest determinations can be made by others than the juvenile court.
- Ch 2.C.4 – (Validity of Order) Reiterated that the state law definition of all determinations of eligibility including the definition of juvenile (age wise) is controlling.
- Ch 2.D – (USCIS Consent) USCIS will only consent to grant of SIJS when the juvenile court has granted some form of relief to the child. This goes along having the order include sufficient state court intervention to satisfy USCIS that the court order was for a “bona fide” purpose and not just for an immigration benefit. Removed language regarding USCIS needing to be able to determine the court made an “informed decision.”
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Chapter 3
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- Ch 3.A.1 – (Qualifying Juvenile Court Determinations) Removed language defining juvenile courts, as it is dealt with in Chapter 2. Refers to citing the relevant state law in the order, or in other evidence/documentation submitted to the court. The court must have relied on the state laws when making its determinations (!), you can’t simply argue them later in response to an RFE. The manual then explains how to prove similar basis:
- Elements of similar state law are in the order; OR
- Providing a copy of the law used and analysis of how elements are equivalent; OR
- Showing the child is entitled to juvenile court protection and intervention because of the similar law;
- Legal terms that are different but equivalent need to be explained;
- Spells out that deceased parents do not = similar basis, the court has to rule that the death was the equivalent to (or resulted in) abuse, abandonment, or neglect.
- Ch 3.A.2 – (Final Orders) Language regarding temporary orders has been moved here. Orders that are limited or expire before 18th birthday are not sufficient nor are guardians for a limited time period. Foster parent situation could be sufficient.
- Ch 3.A.3 – (Factual Basis and USCIS Consent) Orders must be sought to protect the child and court must grant relief from abuse, abandonment, or neglect. Includes petitions, or any supporting documents submitted to the court, and the court transcript in list of documents that can be used to show factual basis.
- Ch 3.A.4 – (Supporting Evidence) Order or supporting evidence needs to state what type of relief the court is providing along with other requirements.
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One of the main takeaways from the changes is that the state court orders must have been sought to protect the child and also provide relief to the child. In addition, USCIS, on the Special Immigrant Juvenile Classification Updates Teleconference, explained that these policy manual “clarifications” are effective on November 19, 2019 and therefore apply to cases pending on or filed after that date. They also stressed on the call that this version of the Policy Manual merely reflects “clarifications” of existing policy, not actual changes in policy.