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By Susan M. Brown

The war between Russia and Ukraine presents a crisis for many children. This article, while written almost entirely before the onset of Russia’s war against Ukraine, may have life-saving application for clients to partner with orphan-care advocates seeking to bring these orphans into stable and safe American homes.

On February 28, 2022, the Minister of Social Policy of Ukraine released emergency policies for orphaned children to leave the country with only a passport and a birth certificate.[1] Shortly after that, that same minister limited the emigration of orphans based on concerns of human trafficking by foreign citizens attempting to subvert the normal Ukrainian adoption process.[2] On March 4, 2022, the minister released amended policies whereby orphans could leave the country with legal permission granted from either the orphanage director or the local province wherein an orphan was placed into foster care.[3]

Over 1.5 million Ukrainians have evacuated Ukraine for Poland and most likely the same or a higher number to Romania. Because of these swift efforts of Ukrainian officials, orphan-care advocates, and caregivers, thousands of orphans have been safely evacuated. Yet, the temporary housing available in Poland and Romania is insufficient to meet the growing need for care for the orphans who have arrived there.

As Americans seek to help the Ukrainian refugees – adults and children – they will need legal advice. This article aims to help you guide your clients through the decision-making process and learn about possible avenues at local, state, and federal levels.

Gaining U.S. Entry

There are multiple procedural paths by which a foreign child might come into the U.S. The most obvious for Ukrainian orphans is to seek refugee status. According to U.S. Citizenship and Immigration Services of the Department of Homeland Security (USCIS), a refugee is someone who: 1) is located outside of the United States; 2) is of special humanitarian concern to the United States; 3) demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group; 4) is not firmly resettled in another country; and 5) is admissible to the United States.[4]

Refugees are admitted on a case-by-case basis upon interview by a USCIS Officer. The process begins with a USCIS Form I-590 for the child, and the forms, along with detailed instructions on how to use it, are available on the USCIS website.[5]

Another possible path to entry for a foreign orphan is Protection from Harm Parole. This special designation for temporary entry applies to children who face imminent harm in their home country and have no other means of protection. USCIS provides detailed forms and instructions.[6] To support the application, you will have to provide supporting evidence such as the severity and imminence of the harm the child fears, the child’s particular vulnerabilities, that parole is the only available mechanism for protection, and that relocation to another part of the child’s home country or a neighboring country is not possible or would not prevent the harm the child fears.[7] However, be aware that according to USCIS, “[p]arole is generally not intended to be used to avoid normal refugee processing or to provide protection to individuals at generalized risk of harm around the world.”[8]

The most streamlined entry for orphans currently emigrating from Poland or Romania may be through an accredited visiting program. This provides a quicker temporary visa using forms B1 or B2 Visitor Visas. Once again, USCIS has forms and instructions.[9]

Next, if your client is caring for a Ukrainian child already in the U.S., the child may be eligible for Temporary Protected Status (TPS). The U.S. Secretary of Homeland Security “may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”[10] On March 3, 2022, Secretary of Homeland Security Alejandro N. Mayorkas announced a new designation of Ukraine for TPS for 18 months.[11] However, this will only benefit Ukrainian individuals who were residing in the U.S. since March 1, 2022. Essentially, it prevents Ukrainian nonimmigrants from having to return to Ukraine for the next 18 months.[12]

The goal of these paths to entry is just that: entry. They do not grant citizenship, but only temporary safety. If your clients have a child in need of a more permanent situation, there is a little-known avenue for permanency and long-term protection: Special Immigrant Juvenile Status (SIJ). This special status provides a seldom-used path to safety for at-risk foreign children.

SIJ Basics

A common means of providing at-risk foreign children permanent care and citizenship is adoption. International adoptions require chess-like maneuvering, to say the least. Even the simplest involves two to three courts, three to five governments (national, state, local, foreign, domestic), and at least two to three U.S. federal agencies. For at-risk children who are already in the U.S., however, the normal process simply doesn’t fit. Normally, foreign courts initiate the adoption process, and adoptive parents must be thoroughly vetted and spend time in-country before bringing the child here. Typically, visas and immigration issues are resolved before the child enters the country.

This is not so with children temporarily in the U.S. who have been subjected to abuse, abandonment, or other harm in their home country. How can they be kept safe when returning home to begin the typical international adoption process is so dangerous? Cases – even outside of the refugee context – are easy to imagine: A child visiting family, a young student sent to study in the U.S., a child here with a foreign sports team for an invitational tournament or winter training. All of these children would be in the U.S. on temporary visas. If their caregivers here discover these children are being abused at home, what are they to do? Keep the child here illegally and face kidnapping charges? Return the child to the home country for more abuse? It’s a tough choice. But SIJ status may provide an answer to clients who come to you in such a quandary.

SIJ Requirements

SIJ status is an immigration designation granted by USCIS. It allows children who are at risk in their home country to remain legally in the U.S. The designation appears in a definitions section of the U.S. Code: § 8 U.S.C. § 1101(a)(27)(J). It requires:

• that the child be under 21 years old;
• be currently living in the U.S.;
• be unmarried; and
• have a valid juvenile court order issued by a U.S. state court finding that:
  • the child is dependent on the court or in the custody of a state agency or of an individual or entity appointed by the court;
  • the child cannot reunify with one or both of their parents because of abuse, abandonment, neglect, or similar basis under state law; and
  • it is not in the child’s best interest to return to the home country.[13]

That’s it. Yet the law is never as easy as it seems. Here are a few important requirements to remember.

In State Court

First in priority, though not in sequence: a juvenile court order must be sought, above all, for the protection of the child, not primarily for immigration purposes. If USCIS senses otherwise, it may summarily deny the child’s application. So, when filing your materials in state court, make sure anyone reading knows your clients’ main concern is protecting the child. The need for specific findings satisfying the SIJ requirements must be incidental. On this point, “Don’t write so that you can be understood, write so that you can’t be misunderstood.”[14]

So, this complex issue involving international politics and federal immigration issues must start at home. Your clients should be caregivers who are willing to offer a permanent home for the child or at least a long-term safe residence. Keeping the child here only to later invoke the foster care system seems an inadequate remedy and indeed may not be in the child’s best interests.

Your first step to protect the child is to petition a juvenile court of the state to issue an order for protection. But where exactly should you make your first filing, and what should it be? You can make your filing in any state court with authority under state law “to make judicial determinations about the custody and care of juveniles.”[15] Notably, this definition of juvenile court under federal immigration law is far broader than Alabama’s definition of the same term in Ala. Code § 12-15-102(12). That section uses the term juvenile court to refer only to circuit or district courts having authority under the Alabama Juvenile Justice Act. Under the SIJ definition, though, divorce courts, probate courts issuing adoption decrees or guardianship orders, and what we call juvenile courts may all make findings necessary to support an SIJ application.[16]

Usually, venue will be in the county where your clients live and are caring for the child. You should prepare them for the expenses of the proceedings and to open their home for examination by the court. A home visit by a social worker is almost certain. A guardian ad litem likely will be appointed to represent the child’s interests and report to the court. A post-placement report or home study prepared by a licensed social worker likely will detail your clients’ personal information – financial, marital, philosophical, familial, educational, and more. And you may need the services of a private investigator in the child’s home country or here talking with relatives here to prove the abuse, abandonment, or other circumstances there. Thus, the GAL, social worker, and investigator are all at your clients’ expense – not including legal fees.

You should prepare your clients to appear at court – perhaps to file the original sworn petition and certainly to testify. Your clients should also be aware that the process in state court will take longer than they imagine. Yes, some judges dealing with child-safety issues will act speedily. But you will be asking the court to do something out of the ordinary and to make very specific findings of fact. Outliers make even the most pro-active judge cautious. Be prepared to push for emergency orders if needed or to seek relief from another court with concurrent jurisdiction if you just can’t get a ruling.

Your filing might be a dependency petition and petition for custody,[17] request for a protection from abuse order,[18] petition for guardianship,[19] or adoption petition.[20] Your client’s goals and the specifics of your county will dictate your best course. Indeed, you might seek relief in more than one court simultaneously if concurring jurisdiction exists (the subject of another article on another day). You will need to meet all state-court requirements for notice, burden of proof, and rules of court for whichever procedure you choose.

Finally, you must be certain that the court’s order includes express findings necessary for your clients to make the SIJ application. There must be an order saying expressly that 1) the child is in custody of an individual or entity appointed by the court, 2) the child cannot reunify with one or both parents because of abuse, abandonment, neglect, or something similar, and 3) it is not in the child’s best interests to return to the home country.

And don’t forget confidentiality! Nearly all court orders involving children are subject to strict confidentiality requirements. Be sure to have the judge make a finding that any such seal is lifted for the limited purpose of allowing your client to make and support the SIJ application.

At USCIS with SIJ Application

You have an order in hand. Now it’s on to the joys of federal agency forms. Your clients may complete the appropriate forms themselves to save costs. Just be sure to review the documents before submission so you can refine language as needed. The current SIJ forms are: Form I-360 for the SIJ application (just 19 pages without supporting documents); and, if your I-360 is granted, Form I-485 for adjustment to status as permanent resident (18 pages). Of course, the agency will likely request additional information and will issue determinations as it sees fit.

As far as timing for USCIS to decide – it’s the federal government. Their agents definitely care about the child, but they are unquestionably backlogged – even more so with the current situation in Ukraine. The critical moment for your clients, however, is the filing of the application. Once filed, and so long as it remains pending, the child may legally stay in the U.S. until a determination of SIJ status is issued. After status is granted, you can make efforts toward permanent residence.

Beware the Hague

The Hague Convention provides a legal mechanism by which the parent of a wrongfully abducted child can petition the courts of a contracting state for return of the child.[21] Typically, the Convention is invoked in child-custody disputes between ex-spouses following a divorce. The Convention applies only between contracting countries. By becoming a contracting country, each country decides that a child’s place of habitual residence should have jurisdiction over custody issues.[22]

Your state court may balk at the idea of taking jurisdiction of a foreign child for fear the Convention precludes jurisdiction. However, despite its underlying preference for place of habitual residence, the Convention does not dictate state court jurisdiction.[23] Indeed, the federal law that implements the Convention, the International Child Abduction Remedies Act (ICARA), plainly provides that the “courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.”[24] What the Hague Convention does is force your court to decide the parent’s wrongful abduction claim before deciding any other issues.[25]

Yet Hope Remains

If your child’s alleged abusive parent does come to court to seek return of the child, your clients need not despair. The court retains discretion, but there are persuasive defenses to a petition under the Convention.

As an initial matter, the parent may not have met the prima facie case for return of the child. Your clients’ retention of the child in the U.S. must be wrongful, that is, in breach of the parent’s custody rights actually being exercised in the country of habitual residence.[26] Further, your clients may argue that the parent did not have custody or that the child’s habitual residence is here.

There is some conflict among U.S. courts about how to determine habitual residence. The Convention does not define the term. Some courts look to parental intent. Did the child’s parent intend for them to continue living in the home country? Other courts focus instead on the child’s experiences. Where does the child feel most settled and have life experiences and ties?[27]

Further, the Convention provides five defenses that may be available to your clients. Three of those defenses may be proved by a preponderance of evidence:

• more than a year has passed, and the child is settled in the new home;[28]
• the parent having custody rights consented to the retention of the child;[29] and
• the parent was not exercising custody rights at the time of the retention.[30]

Two of the defenses require clear and convincing evidence:

• return of the child would expose the child to a grave risk of “physical or psychological harm or otherwise place the child in an intolerable situation”;[31] and
• return of the child would violate fundamental U.S. principles “relating to the protection of human rights and fundamental freedoms.”[32]

The first three defenses may or may not exist for your clients. The last two, though requiring stronger evidence, have a good chance of success if you have filed your case to protect the child and ultimately seek SIJ status. The grave risk defense provided in the Convention and the juvenile court findings required by the SIJ definition seem indeed to rest on precisely the same evidence.

Moreover, though a Hague Convention challenge may slow your timeline, the Convention itself requires unusually fast determinations. You have genuine grounds to press for timely hearings and rulings.

Concluding Thoughts

The SIJ path is not easy. This article hasn’t even mentioned the potential political issues involved in the foreign relations arena.[33] But the process is worthwhile if it can keep a little one from harm. And these days, there are many such children in harm’s way. We hope you never have to counsel a client needing to take this path. But if you do, Godspeed, and thank you for your work.

Endnotes

[1] https://www.kmu.gov.ua. The servers are not always working due to the war. You can view the document in English if you click on the word “English” on the top right of the first page.

[2] Id.

[3] Id.

[4] U.S. Citizenship and Immigration Services, Refugees (available at https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees) (last updated March 2, 2022); See also 8 U.S.C. § 1101(a)(42).

[5] U.S. Citizenship and Immigration Services, Form I-590 (available at https://www.uscis.gov/sites/default/files/document/forms/i-590.pdf).

[6] U.S. Citizenship and Immigration Services, Guidance on Evidence for Certain Types of Humanitarian or Significant Public Benefit Parole Requests (available at https://www.uscis.gov/humanitarian/humanitarian-parole/guidance-on-evidence-for-certain-types-of-humanitarian-or-significant-public-benefit-parole-requests#DocumentstoSubmit).

[7] Id.

[8] Id.

[9] https://www.uscis.gov/forms/explore-my-options/visit-the-united-states and https://www.uscis.gov/working-in-the-united-states/temporary-visitors-for-business/b-1-temporary-business-visitor.

[10] U.S. Citizenship and Immigration Services, Temporary Protected Status (available at https:// www.uscis.gov/humanitarian/temporary-protected-status).

[11] Id.

[12] U.S. Department of Homeland Security, Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months, March 3, 2022 (available at https://www.dhs.gov/news/2022/03/03/secretary-mayorkas-designates-ukraine-temporary-protected-status-18-months).

[13] If the Department of Health and Human Services has custody of the child, that Department must generally give consent as well.

[14] President and Chief Justice William Howard Taft.

[15] 8 CFR 204.11(a); See Budhathoki v. Nielsen, 898 F. 3d 504 (5^th Cir. 2018) (bare order for child support not enough to qualify as order for care and custody).

[16] USCIS Publication, Immigration Relief for Abused Children, Special Immigrant Juvenile Status, Information for Juvenile Court Judges and Child Welfare Professionals.

[17] Ala. Code § 12-15-317; Form JU-6.

[18] Ala. Code § 30-5-3.

[19] Id. at § 26-2A-75.

[20] Id. at § 26-10A-16.

[21] The Convention on the Civil Aspects of International Child Abduction, Concluded 25 October, 1980 (hereinafter, “Hague Convention”).

[22] Hague Convention, Article 3(a).

[23] See Garbolino, Hon. James, D., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges (“Hague Guide”), 2d ed., at 6, Federal Judicial Center, 2015.

[24] 22 U.S.C. §§ 9001–9011 at § 9003(a).

[25] Hague Convention, Article 16; Parents may pursue administrative procedures in attempts to negotiate return of the child. But these lack enforcement authority, and the ultimate order must come from a court.

[26] Hague Convention, Art. 3(a), (b).

[27] See Garbolino at 55-56.

[28] Hague Convention, Art. 12.

[29] Id. at Art. 13(a).

[30] Id.

[31] Id. at Art. 3(a).

[32] Id. at Art. 20.

[33] Your clients, of course, will want to avoid being the focal point of media in an international incident. Consider contacting a U.S. Senator and the State Department to give them notice that the situation is pending in state court. You want them to hear from you first, not an angry foreign official.