Recent SJC Case Will Aid Immigrant Children Between the Ages of 18 and 21 in Massachusetts

Since 2014, the United States has seen over 160,000 unaccompanied immigrant children reach its borders. (See Improving the Protection and Fair Treatment of Unaccompanied Children September 2016, available at: https://supportkind.org/wp-content/uploads/2016/09/KIND-Protection-and-Fair-Treatment-Report_September-2016-FINAL.pdf.). These children face multiple challenges and horrors that force them to flee their home countries. According to the legal representation organization Kids In Need of Defense (KIND), there is a particularly large flow of unaccompanied children from Central America. From gang and drug related violence, to sexual assault and rape, children from this region often make their way to the U.S. hoping to just find a place to feel safe. Countries such as El Salvador, Honduras, and Guatemala are among some of the most dangerous and violence-ridden countries in the world.

So, what happens to such a child once they reach our borders? Well, Congress enacted the Immigration and Nationality Act (INA) and included a provision that created a path for citizenship for immigrant children. The journey begins with obtaining Special Immigrant Juvenile Status (SIJS). To acquire SIJS, the child must first be found by a state juvenile court to be: (1) a dependent on the juvenile court; (2) her reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in her best interests to return to her country of origin. Once these findings are made, an application for SIJS may be submitted to the United States Citizenship and Immigration Services (USCIS) agency. An application for SIJS must be submitted before the child’s twenty-first (21) birthday.

It is at this juncture that some immigrant children face a huge issue in most states, including Massachusetts. Children seeking SIJS must first obtain an order from the Massachusetts Probate and Family Court. However, the Probate and Family Court usually only has jurisdiction over children under the age of eighteen (18), while the INA provides relief for children under the age of twenty-one (21).

What about children falling in between the ages of eighteen (18) and twenty-one (21)? Previously, these children would have to find another way of acquiring lawful admission into the U.S. or face deportation. However, in March 2016, the Supreme Judicial Court (SJC) provided an equitable remedy so that children falling within this age gap have a fair chance at citizenship. In the case Recinos v. Escobar, the SJC found that the Probate and Family Court does have broad equity powers that it may invoke when encountering an immigrant child between the ages of eighteen (18) and twenty-one (21). Recinos v. Escobar, 473 Mass. 734, 740. (2016). In other words, it gives the Probate and Family Court jurisdiction over children older than eighteen (18) but younger than twenty-one (21) for the purpose of making the required findings needed to apply for SIJS. This case now sets the precedent in Massachusetts that children who are in this this age gap can now attain SIJS. Given the large number of unaccompanied immigrant children still fleeing to the U.S., this important decision will now enable a previously over-looked group of children in Massachusetts the opportunity to feel secure and safe in the U.S.