Attorney Mooradian’s client, a young person from Central America, was recently granted special findings of fact and rulings of law. He was placed under the guardianship of his older sibling until his eighteenth birthday.
In this particular case, the child came to Attorney Mooradian’s office a matter of several weeks before his eighteenth birthday. Many clients wonder if they will continue to be eligible for Special Immigrant Juvenile Status until age 18 or 21. When the option is available, it is wise to obtain the probate and family (state) court order prior to the 18th birthday. To be sure, Massachusetts law allows the courts to retain jurisdiction until age 21. This jurisdiction has been clearly established on the basis of Equity (M.G.L. c. 215, §6), as well as on the case law (Recinos v. Escobar, Massachusetts SJC), and by a recent change to statutory law (M.G.L. c. 119, §39M).
Despite the fact that Massachusetts courts clearly have jurisdiction over immigrant juveniles until age 21, and despite the fact that the federal law that enables applicants to obtain immigrant juvenile status specifies that it is valid until age 21, an unwritten policy of the federal agency USCIS is to deny SIJS applications of those who obtain orders while between the ages of 18-21.
While it certainly is an individualized decision as to whether to continue seeking a predicate order after age 18 and before age 21, when an opportunity presents itself to obtain a guardianship with special findings before the child’s 18th birthday, such an opportunity should be pursued as a best practice.
Practical circumstances can create challenges is obtaining the order before the child’s eighteenth birthday. For example, in this case, Attorney Mooradian had to execute service on the mother to notify her of the pending matter. He was able to do so by mail and obtained a notarized, signed consent to the guardianship with a waiver of parental rights. Second, Attorney Mooradian had to negotiate with the court to have the case heard as quickly as possible. Fortunately, the court was able to accommodate this urgent request.
Factually, the client qualified for special findings due to his long history of abuse, abandonment, and neglect at the hands of his mother. This abuse and neglect included being beaten as a young boy, not being provided with adequate food and shelter, and eventually being thrown out of the family home at a young age. He was forced to flee to the United States after being left with effectively no means for his care. The court found that it was in the minor’s best interests to remain in the United States, where he is better able to pursue his education, remain safe from gang violence, and have proper social and financial support through his brother.
With the predicate order in hand, the child can move to delay or terminate his immigration (removal) proceedings which are now pending. He is also able to pursue immigration benefits, such as special immigrant juvenile status and a green card, while on a path to citizenship.