A recent reported decision from the Maryland Court of Special Appeals highlights a point made in MFLV a few months ago: immigration issues can play a big role in family law cases. The lesson from this case is that a few well placed questions and a little technical drafting might mean some children get to stay with their family in the United States instead of being deported. Professionals working with custody situations need the ability to spot and address the issues raised by this case.
The opinion is Simbaina v. Bunay, Md. Ct. Sp. App. No 01092 (Feb. 3, 2015). In this case, the appellate court ruled that the Circuit Courts in Maryland can make determinations related to whether a child qualifies for “Special Immigrant Juvenile” (“SIJ”) status, even in divorce cases where the parents have a consent agreement that gives custody to one of the parents. State court SIJ determinations in these situations potentially provide a much better, faster, and more efficient way for children to avoid otherwise horrible consequences.
The purpose of the SIJ status is to protect undocumented children under the age of 21 from abuse, neglect or abandonment by allowing them to apply for permanent residency in the United States. To qualify for SIJ status, the child first needs an SIJ-“predicate order” from a state juvenile court, defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” It can include, among others, a family court or a county court at law.
An undocumented minor child under age 21, present in the United States and unmarried, may petition the U.S. Citizenship and Immigration Services (“CIS”) for SIJ status if a juvenile court has made the determinations needed for a “predicate order.” Essentially, for purposes of family law attorneys, a “predicate order” can include any order granting custody to a parent. Such orders also must find that “reunification with 1 or both of the immigrant [child]’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” Finally, such orders must find that “it would not be in the alien [child]’s best interest to be returned to the alien [child]’s or parent’s previous country of nationality or country of last habitual residence.”
In the Simbaina case, the Circuit Court had indicated the mother, who filed for divorce with a parenting agreement that gave her custody and consented to a court order that made the required determinations, needed to file a separate action. The Court of Special Appeals disagreed. Moreover, Maryland also recently enacted a law that specifies courts have jurisdiction to make SIJ status determinations for minors under the age of 21. Fortunately for undocumented minors in Maryland, the process in this state has become more straightforward and efficient.
It should be noted that the federal statute creating the SIJ status has been amended a number of times, including recently, and that state courts continue to interpret its provisions, some of which are controversial. Other conditions, in addition to a “predicate order,” exist before a minor child can be approved by CIS for SIJ status. Moreover, important consequences arise from qualifying for SIJ status, including the inability to help other family members immigrate to the U.S. And adverse consequences can exist from applying and failing to obtain SIJ status. Advice in this area, therefore, should be given carefully and in consultation with competent immigration counsel.