Many Inadmissibility Grounds Waived for SIJ Children

The rise in the number of undocumented children coming to the United States has been widely reported this year. Research shows that the cause for the dramatic increase in children traveling to the United States is the result of the high rates of poverty and violence from gangs and drug trafficking in their home countries, particularly in Honduras, Guatemala, El Salvador, and Mexico. According to the White House, many of these children have no legal options for remaining in the United States.

Fortunately, some of these children may qualify for an extraordinary benefit called Special Immigrant Juvenile (SIJ) status, which also qualifies them to apply for lawful permanent residence (i.e. a “green card”) in the United States. The purpose of the SIJ program is to help foreign children who are physically present in the United States and who have been abused, abandoned, or neglected by their parent or parents. To learn more about the requirements for SIJ status, please read our earlier blog post on the topic.

There are many benefits of applying for a green card on the basis of SIJ status. Typically, applicants for a green card must demonstrate that they are not prohibited from obtaining a green card based on a long list of grounds of “inadmissibility,” such as entry without inspection (i.e. EWI). However, children granted SIJ status are excused from several grounds of inadmissibility and can qualify for a green card despite certain circumstances that would normally make them ineligible. Specifically, federal law excuses the following grounds of inadmissibility for children granted SIJ status:

• Child is likely to become a public charge (INA 212(a)(4))
• Child seeks to enter the United States for purpose of performing skilled or unskilled labor and does not have a valid labor certification (INA 212(a)(5)(A)
• Child entered the United States without inspection (i.e. EWI, INA 212(a)(6)(A))
• Child committed misrepresentation to procure a visa, other documentation, or admission into the United States or other immigration benefit (INA 212(a)(6)(C))
• Child is a stowaway (INA 212(a)(6)(D))
• Child lacked valid documentation (i.e. passport, visa, etc.) at time of entry to the United States (INA 212(a)(7)(A))
• Child was unlawfully present in the United States for 180 days or longer, departed the United States, and returned to the United States within 3 years of the date of departure from the United States (i.e. subject to the 3 or 10 year bar to re-entry, INA 212(a)(9)(B))

Further, children granted SIJ status are eligible for waivers of most other grounds of inadmissibility (e.g. health related grounds) for humanitarian purposes, family unity, or otherwise being in the public interest. The only grounds of inadmissibility for SIJ children that cannot be waived are those related to conviction of certain crimes, security related grounds, involvement in terrorist activities, foreign policy grounds, and if they were participants in persecution, genocide, torture or extrajudicial killing.

Therefore, a child who entered the United States undocumented, or who overstayed his or her status in the United States, may still qualify for SIJ status. Despite the extraordinary benefits of SIJ status, most of the undocumented children coming to the United States will not avail themselves of this status because there is no right to an attorney in immigration court.

“As a result, each year, thousands of children are forced to appear before an immigration judge and navigate the immigration court process, including putting on a legal defense, without any legal representation.”

How can a child know of his or her legal options without access to legal counsel?

If you or someone you know may qualify for SIJ status, please contact an attorney at Minsky, McCormick & Hallagan, P.C.