The legal process for unaccompanied minors entering the United States can be complex and difficult to navigate. The following will help clarify those complexities and assist individuals who need help understanding the often confusing regulations regarding Unaccompanied Minors immigrating to the United States.
What is an Unaccompanied Minor?
An unaccompanied minor is any person under the age of 18 attempting to enter the United States without a parent or guardian.
In 2002, the Homeland Security Act required the Office of Refugee Resettlement (within the Department of Health and Human Services) to house “unaccompanied migrant children” until those children could be housed by “vetted” sponsors (typically other family members) already residing in the United States. Those rules were clarified in 2008 by further legislation which mandated children could be held in custody for no longer than 72 hours.
Do Unaccompanied Minors Have the Right to Legal Counsel?
In contrast with defendants in criminal court, the government is not required to provide an attorney in immigration proceedings, for minors or for adults.
Even for a 3 year old child, for example, they will not be appointed an attorney to represent their rights, should they be unable to obtain legal counsel on their own.
As far as rights and processes, there are two common paths available for unaccompanied minors: Asylum and Special Immigrant Juvenile Status.
What Is the Process For An Unaccompanied Minor Seeking Asylum?
First, the asylum application is filed with the United States Citizenship and Immigration Services (USCIS). This step is required even if the minor is in the midst of deportation proceedings.
If the agency denies the application, the applicant can argue their case again before an immigration judge. In general, asylum cases can prove challenging to argue. For example, gang conscription (common in many Latin American countries) and widespread societal violence are not strong claims in all jurisdictions. (Those two arguments tend to be the prominent reasons for fleeing to the United States from many Latin American countries.)
What is Special Immigrant Juvenile Status (SIJS)?
Special Immigrant Juvenile Status (SIJS) is a classification for undocumented immigrant children, under 21 years of age, who have been abused, abandoned, or neglected, and for that reason cannot be returned to either or both parents in their home country.
Minor children in this application are defined as under 21.This is an important distinction because an unaccompanied minor in the immigration setting is under 18 years of age. Thus, even when a child becomes an adult in the eyes of the immigration court, that child could still obtain SIJS through the process outlined below.
Among the claims supporting an application for SIJS, neglect is the most common and it is based on this country’s standards of care for minor children.
Also worth mentioning, a child that obtains SIJS cannot petition for an immigration benefit for his/her parents in the future. That legal relationship is severed for immigration purposes. Once a minor has been granted SIJS status, there is a high likelihood the minor may also obtain permanent residence or ‘green card’ status in the United States.
Contrary to common belief, SIJS could still apply if:
- The child is living with one parent in the United States; or
- If either parent is deceased
SIJS requires three steps:
- A Custody Petition – For the SIJS claim to start, that child must be the subject of a state-court custody order, which typically requires an adult to petition for guardianship, custody, or otherwise over the minor child.
- Complete the SIJS Application with USCIS.
- Apply for Residency
Once a visa is available, the minor child may apply for residency.*
*Depends on country of origin and reference to the monthly visa bulletin.
Should an Unaccompanied Minor Hire an Attorney?
The immigration process for an adult can be exhausting, intimidating, and require a lot of patience and perseverance. It’s that much more challenging for a child who is likely in a precarious situation to begin with.
Unaccompanied children are often moved between locations and detention centers, which only introduces further complexity to the situation. Those systems and procedures may not be consistent across the country. It’s understandably an emotional and often traumatic experience both for the children and their families.
Our specialized attorneys are standing by to help you with your immigration proceeding. We take the tough cases because we understand how much is at stake, and we put in the work to get you the best possible outcome. To speak with someone in our office, contact us at (888) 746-5245 or schedule a consultation.
Additional helpful immigration resources:
This guide from the ACLU helps to clarify the rights of unaccompanied children and the legal protections afforded to them:
The non-profit advocacy group Vera assembled this report as a resource for all immigration stakeholders who work with undocumented, unaccompanied children.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship.