GENERAL INTEREST When Federal Immigration Law is a State Issue: Special Immigrant Juveniles in Virginia by Christine Lockhart Poarch Since Congress’s creation of the special immigrant juvenile status (SIJS) remedy in 1990, its scope and application has confused family lawyers, judges, guardians ad litem, and even immigra-tion attorneys. The federal statutory or regulatory language — intended to apply across the fifty states to juvenile court practice involving certain qualifying undocumented children — does not pair intuitively with the parlance of the Virginia juvenile and domestic relations courts. Accordingly, more than a few judicial brows furrow when practitioners walk through the interpretative gymnas-tics necessary to explain why a state juvenile court is involved with federal immigration law. The present border crisis with undocumented juveniles has only heightened the sense that these children may overwhelm the already-stressed judicial and social services system and that reme-dies like SIJS must be highly scrutinized. Even though Congress has not expanded the scope of the law since 2008, and in the last fiscal year only 3,993 SIJS applications were filed with U.S. Citizenship and Immigration Services nationally , 1 the palpable sense in certain state court proceed-ings is that SIJS is an illicit end-run around nor-mal immigration processing or an impermissible short-cut to green card status. This article is intended to answer some of the questions con-cerning the propriety of SIJS and the confusion that often arises regarding state court jurisdiction. To understand why this law has been a source of confusion and consternation at the state level, it is necessary to briefly examine the history of the law, its legislative amendments and its current requirements. 16 VIRGINIA LAWYER | October 2014 | Vol. 63 | GENERAL INTEREST FEATURES SIJS: An Overview SIJS is a federal immigration remedy for certain undocumented children 2 in the United States, for whom family reunification with one or both par-ents is not viable due to abuse, abandonment, neglect, or a similar basis under state law, and for whom it would not be in their best interests to return to their home country. 3 Congress tasked the state court with jurisdiction over juveniles — in Virginia, typically the juvenile and domestic relations (JDR) court — with making these fac-tual findings. The predicate order from the JDR court containing these findings is then used to support the child’s application for permanent sta-tus to U.S. Citizenship and Immigration Services (USCIS). While the juvenile court’s order does not confer immigration status on the child, with-out this SIJS order the child cannot apply for sta-tus to USCIS, the benefits-granting agency that ultimately decides the child’s eligibility for SIJS. Why Are State Courts Involved in SIJS? Commonly, state courts question the propriety of Congress’s dependence on state predicate orders to prove the factual determinations regarding SIJS. After all, isn’t there an immigration court that can make these decisions? Although immi-gration courts are organized around the country, SIJS determinations are not within their mandate. Because immigration courts are regional, often covering several states, they may lack local insight or access to fact witnesses necessary to make the particularized findings SIJS requires. In the same way, JDR courts regularly make findings of fact regarding the best interests of children and as such are experts on this standard. Immigration courts have no such expertise. Moreover, state courts have statutes governing notice and service of process on absent parents that give the SIJS determination a higher indicia of reliability than if it was heard by a regional immigration court. Finally, having immigration courts hear these cases would put an undue burden on local departments of social services as to those undoc-umented children in that agency’s custody. State www.vsb.org