What Must a State Court Order Say for SIJS?

The state court order is the foundation of every Special Immigrant Juvenile Status case. USCIS does not decide who should have custody of a child and does not second-guess a judge’s view of the evidence. What USCIS does is read the order to confirm that a court with the right authority made three specific findings, that each finding has a factual basis the court actually considered, and that the case was brought to protect the child rather than to manufacture an immigration benefit. An order that is missing a finding, or that states conclusions without facts, is the most common reason an SIJS petition draws a Request for Evidence.

Which courts can issue an SIJS state court order

Federal regulation defines a juvenile court as any court in the United States with jurisdiction under state law to make decisions about the care and custody of a child. That covers more than courts with the word juvenile in their name. Guardianship, custody, dependency, delinquency, adoption and some probate proceedings all qualify if the court has authority over the child’s custody. In our offices the usual venues are the Family Court division of the DC Superior Court, the juvenile and domestic relations district courts in Virginia, and the Family Court in New York.

The choice of proceeding matters because each has its own age limit and its own standard for who may file. A guardianship brought by a relative is the most common vehicle for a child living with family. A custody case works where one parent in the United States seeks sole custody and findings against the other parent. Our SIJS state court and I-360 practice selects the proceeding based on who the child lives with, which parent the findings will address, and how old the child is today. Where a guardianship is the vehicle, our legal guardianship team handles the state side.

Finding one: dependency or a custody placement

The order must either declare the child dependent on the court or place the child in the custody of a state agency or department, or of an individual or entity appointed by the state or the court. Appointing a grandmother as guardian satisfies this. Awarding sole custody to one parent satisfies it too, as long as the award comes from the court. What does not satisfy it is a private arrangement never approved by a judge, or an order that merely acknowledges where the child is living.

Finding two: reunification with a parent is not viable

The court must find that reunification with one or both parents is not viable because of abuse, neglect, abandonment or a similar basis under state law. Three details matter here. First, the order should name which parent or parents the finding covers. Second, it should identify the state-law ground, ideally by citing the statute, because the federal law incorporates the state’s definitions. Third, it should describe the facts: when the parent left, what the parent did, what support or contact stopped, and how the court knows. A finding that simply recites that reunification is not viable due to abandonment, with nothing more, may be legally sufficient in state court and still leave USCIS unable to see a factual basis.

The word viable is about the present and the future. The question is whether the child can realistically be reunited with that parent, not whether the parent is alive or could be found. A parent who has had no contact for years and has been served by publication is a common fact pattern.

Finding three: return is not in the child’s best interest

The final finding is that it would not be in the child’s best interest to be returned to the child’s or the parent’s country of nationality or last habitual residence. Courts weigh the child’s safety, who would care for the child there, access to schooling and medical care, the child’s ties in the United States, and the conditions that led to the abuse or abandonment. A declaration from the guardian describing the home that waits for the child abroad, or the absence of one, is usually the most persuasive evidence. Country condition reports help, but the finding should be about this child.

Why the facts matter more than the labels

USCIS consent is the step that trips up well-drafted orders. USCIS must agree that the court order was sought primarily to obtain relief from abuse, neglect or abandonment, and it reviews whether the court had a reasonable factual basis for each finding. USCIS does not re-weigh the evidence, but it needs to see that evidence existed. The practical rule we follow is that the proposed order should read like a short opinion: each finding, the state statute behind it, and a paragraph of facts. We attach the petition or motion, the declarations and the exhibits that were before the judge, so the federal file mirrors the state file. When an order lacks facts, the fix is usually a motion in state court for an amended or supplemental order, which takes time the child may not have.

Timing, service and the next step

Serving a parent who lives abroad or cannot be found is often the slowest part of the state case. Courts allow alternative service, including publication, but each method has its own waiting period, and the hearing cannot proceed until service is complete. Because the order generally must be in effect when the I-360 is filed, and because some courts lose jurisdiction when the child turns 18, we start the state case the week the family retains us and prepare the federal petition while it is pending. Our walkthrough of filing Form I-360 for SIJS picks up where the order leaves off, and our overview of who qualifies for SIJS covers the eligibility rules that run alongside the order.

If a child in your care needs a guardianship or custody order with SIJS findings, the drafting of that order will shape the federal case for years. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our SIJS court order and petition page or schedule a consultation.