Obama Immigration News: Victory For Abused Child Migrants In N.J. Supreme Court Ruling

In the latest victory for advocates of unaccompanied child migrants, the New Jersey Supreme Court has lowered the burden for minors to receive “ special immigrant juvenile ” status, or SIJ. The decision follows a federal court ruling against the Obama administration last week, which ordered immigration officials to end its practice of jailing child migrants awaiting deportation proceedings and asylum case reviews. SIJ is not the same as asylum, in which applicants must prove that they are members of a specifically persecuted group -- a near impossibility for the average child migrant who is fleeing the general violence of, for example, El Salvador.

Special immigrant juvenile status is for “abused, abandoned, or neglected” children “who are unable to be reunited with a parent,” according to U.S. Customs and Immigration Services. In the past, that’s meant that migrant children have to prove that both parents had abused them actively or through neglect. The New Jersey Supreme Court ruling clarified that courts must consider a broader consideration of the child’s welfare. The decision settled two cases, H.S.P. v. J.K. and K.G. v. M.S.. In one case, a 15-year-old Indian migrant was forced by his parents to quit school to work a 75-hour-per-week construction job. In another, two sisters from El Salvador (aged 12 and 13) were physically abused by their paternal grandmother, according to NJ.com .

"This is a terrific decision for immigrant children," said Randi Mandelbaum, the director of the Child Advocacy Clinic and the attorney who represented the two girls who was quoted in the New Jersey Law Journal . "The lower courts were not interpreting the federal law correctly"

That lower courts ruled that the Indian boy wasn’t subject to neglect because his working hours only violated New Jersey law, not Indian law. Another lower court had ruled that the El Salvadorian twins were not eligible for protection because their abuse was committed by their grandmother, not a parent. Their father is deceased, their mother is in New Jersey. It’s unclear what the other’s immigration status is. Reports indicate that the children will be left in her care.

All three children will get a green card (permanent residency), allowing them to live and work in the U.S. indefinitely. Unlike a normal green card, juvenile status comes with a restriction: SIJ recipients can’t ever bring their parents to the U.S. on a green card through family-based immigration petitions. In other words, those “neglectful” parents can’t benefit immigration-wise from sending their kids on the often harrowing and dangerous journey to the U.S.

The two El Salvadorian girls and the Indian boy are statistically lucky: they had lawyers. Since the child migrant surge began in the summer of 2014, only half of the 13,451 children to enter deportation proceedings have had access to an attorney, according to Politico , who also notes that 1,500 children without legal counsel have had their cases dismissed since April 2015. Bills to fund legal representation have stalled in congress. One such bill was proposed by Rep. Hakeem Jeffries (D-NY) in June of 2014.

“Some of the children who have come to this country may not have a valid legal basis to remain, but some will. Yet, it is virtually impossible for a child to assert a valid claim under immigration law in the absence of legal representation,” Hakeem said at the time.