Seeking Special Findings of Fact Regarding Special Immigrant Juvenile Status (SIJS) in the Probate and Family Court

Photo of Lacey Brantley

Congress created the classification of “special immigrant juvenile” in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. “Green Card”) if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), which amended and clarified SIJS requirements.

Under TVPRA and its accompanying regulations, state juvenile courts are granted jurisdiction to enter the special findings of fact necessary for SIJS. 8 C.F.R. § 204.11 (a) (2016) Although juveniles eventually use the factual findings issued by juvenile courts to seek SIJS under federal law, state juvenile courts are initially tasked only with applying state law principles to a juvenile’s specific circumstances, and with issuing “special findings of fact” regarding the juvenile’s eligibility for SIJS. Specifically, in order for a juvenile to qualify for SIJS, a state juvenile court must find that (1) the child is an unmarried person who is living in the United States; (2) the child is “dependent upon the juvenile court located in the United States or has been legally committed to, or placed under the custody, of, an agency or department of a state or an individual or entity appointed by a state or juvenile court;” (3) the child’s “reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis found under State law;” and (4) it is not in the best interests of the child to be returned to her previous country of nationality. 8 U.S.C. § 1101 (a) (27) (J).

Given that federal law typically governs immigration proceedings, state court judges and attorneys who practice primarily in state courts are not typically familiar with the special findings required by SIJS or with the role of a state court in issuing those findings. This blog serves to address some of the common questions a Massachusetts judge might have when faced with a motion for special findings pursuant to SIJS, and how to address those questions in order to obtain the necessary special findings.

Which state courts can issue special findings required by SIJS?

>In Massachusetts, because the Probate and Family Court possesses the authority to make decisions regarding juvenile care and custody, an immigrant child may petition for special findings in either the Juvenile Court or the Probate and Family Court. Recinos v. Escobar, 473 Mass. 734, 738 (2016).

2. Can the court issue special findings for a juvenile over the age of 18?

>Yes. In Recinos, the Supreme Judicial Court clarified that, even though minors can be considered “adults” upon attaining age 18 in Massachusetts, the Juvenile Court and the Probate and Family Court retain jurisdiction to issue special findings for SIJS for so long as the juvenile remains under the age of twenty-one and unmarried. Recinos v. Escobar, 473 Mass. 734, 739 (2016).

3. How should the court determine whether a child’s reunification with his or her parents is not viable due to abuse, neglect, or abandonment?

In resolving this question, judges should apply traditional state law principles. Judges may consult definitions found in the Code of Massachusetts Regulations, the Massachusetts General Laws, or case law to determine appropriate definitions for “abuse,” “neglect,” or “abandonment.” When considering special findings for SIJS purposes, a juvenile court must find that the juvenile’s reunification with oneof his or her parents is not viable due to one of the designated reasons; it is not necessary for the judge to find that the child cannot be reunified with both parents. See Guardianship of Penate, 477 Mass. 268, 270 (2017).

Furthermore, recent Massachusetts cases have suggested that state court judges may apply somewhat loose interpretations of abuse, neglect, or abandonment in the context of SIJS special findings. For example, inCarbajal v. Zavala, 89 Mass. App. Ct. 1120 (2016) (a memorandum and order issued pursuant to Rule 1:28), the Massachusetts Appeals Court indicated that a Massachusetts juvenile court may make the special finding that an immigrant juvenile has been neglected and abandoned even when the whereabouts of the absent parent are known and even when the child has had relatively recent contact with the absent parent.

4. Upon presentation of a motion for special findings, can a judge decline to make the special findings for SIJS?

No. In the recent case of Hernandez-Lemus v. Arias-Diaz, 480 Mass. 1002 (June 29, 2018), the Supreme Judicial Court held that a Probate and Family Court judge had erred in refusing to make the special findings necessary for a juvenile’s application for SIJS when the motion for special findings was made within the context of a custody proceeding. The SJC vacated the lower court’s decision and remanded the case for the entry of special findings, holding that “[a] judge simply may not decline to make findings; he or she must make the findings — whether favorable or not — concerning those criteria.” Hernandez-Lemus v. Arias-Diaz, 480 Mass. 1002, 1003 (June 29, 2018).

5. In ruling on the special findings, should a judge consider the ultimate chance of success of the juvenile’s petition for SIJS under federal law?

No. A state court judge is tasked with making the special findings “in a fashion that does not limit federal authorities in determining the merits of the juvenile’s application for SIJ status. Therefore . . . the judge shall make such findings without regard to the ultimate merits or purpose of the juvenile’s application.” Guardianship of Penate, , 270 (2017).


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.