Much has been written and commented upon regarding the issue of children born to undocumented immigrants or those who are in the US illegally. For children born in the US, however, regardless of their status or that of their parents, they are considered US citizens pursuant to the 14th Amendment to the US Constitution.
This interpretation of the applicable provision of the 14th Amendment has lately been questioned, however, if you use the original intent approach to constitutional interpretation since the amendment was unquestionably drafted so that slaves born in the US automatically became US citizens. Whether this applies to anyone else born in the US is an issue that may be lurking in the background of the recent polarizing immigration debate though no lawsuit seeking an interpretation has been filed, similar to the ones regarding the meaning of the “right to bear arms” found in the Second Amendment. Still, there is some quiet talk of legislative action on this issue.
Unfortunately, there is no automatic path to citizenship for many undocumented children who may have been brought to this country illegally but who may only speak English, have only attended American schools, and who are all but indistinguishable from any other American children. Then there are others who were reputedly abused or abandoned or simply dropped off by their parents hoping that their children can be raised in the US, free from the repressive regime and violence found in their country. Unfortunately, unlike criminal defendants who have the right to be represented by a public defender if they are indigent, no such right exists for immigrants.
For many of these children, the services of an experienced immigration attorney may be necessary to fend off possible deportation to a country in which they may have never lived, where they do not speak the language, or where their parents ostensibly or in reality no longer want them.
Possible Paths to Citizenship
For some of these children, there are some options:
Asylum is available for those immigrants who can demonstrate the following:
- Persecution or a well-founded fear of persecution in their native country
- If they are a member of a particular religion, race or nationality, or hold certain political beliefs or have membership in a certain social group that is being persecuted
There are two types of asylum-affirmative and defensive. “Affirmative” asylum pertains to those seeking asylum who do not have removal proceedings pending against them. Though you must file within a year of arriving in the US, an exception is made if you can demonstrate changed circumstances that materially affected your eligibility or extraordinary circumstances pertaining to your delay in filing.
You may certainly need an immigration attorney if you are seeking asylum since most undocumented children have been in the US for many years. Your attorney will have to show that you are from a country that persecutes people like you so long as you belong to one of the enumerated groups indicated, and can demonstrate the required changed or extraordinary circumstances that delayed your filing.
Most undocumented children in this category may be seeking asylum through “Defensive” asylum, which means if you were caught by authorities in the US or at a port of entry while lacking documentation or was captured at the border and placed in expedited removal and have a well- founded fear of persecution or torture.
Abused and Abandoned Children
With the relatively recent influx of thousands of children from Central America countries–specifically Honduras, Guatemala and El Salvador where violence is endemic–many of these children have sought asylum. For others, there is a federal program for abused and abandoned children where SIJ or “Special Immigrant Juvenile” status can be obtained so they can immediately apply for green card status. Like any other government program or process, it can be a laborious and complicated process. Experienced attorneys or those who are trained in this area are necessary to ensure that these children possess the qualifying circumstances to gain SJI status. Qualifications for this classification include:
- Be under the age of 18 or be before 21 when applying
- Be a dependent or in a state’s child welfare system
- Have been or are in federal custody for being undocumented
- Have been a victim of abuse while in the US
- Have been the victim of abuse, neglect or abandonment while in the child’s native country
- Have sought a court order for protection from abuse, neglect or abandonment and not solely to gain an immigrant benefit
The attorney must also seek and receive an order from a juvenile, family or probate court that establishes that the child cannot be reunited with either parent because of neglect, abuse or abandonment; that the child is dependent on the court or under the custody of a court-appointed custodian or agency; and that return to the child’s native country would not be in his or her best interests. There may be other circumstances where additional work must be done so that the child becomes eligible for SIJ status.
Becoming naturalized or gaining legal status for undocumented children is complex. More attorneys are needed to assist the thousands of undocumented children who desperately need the services of trained immigration attorneys.