Maryland Family Law Maryland family law opinions and commentary
Children seeking special immigrant juvenile status to become legal permanent residents of the U.S. do not have to prove their parents left them to “fend for [themselves]” for a circuit court to find they were neglected, the Court of Special Appeals has ruled.
Instead, trial courts must consider whether a child’s living conditions in his home country would be considered neglectful under Maryland standards, the intermediate appellate court ruled in an opinion filed July 6. If the child lacked proper care and attention or faced substantial harm in his country of origin, a finding of neglect should stand even if his poor living conditions were not unusual for residents of the home country, the court concluded.
Several local immigration attorneys lauded the ruling and said clarification of these legal standards could have a significant practical impact, particularly after the influx of tens of thousands of undocumented immigrant children into the U.S. last year.
“I think this is going to be a great thing for a lot of our clients,” said Adonia Simpson, managing attorney for immigration legal services at the Catholic Charities’ Esperanza Center. “There may not be blatant abuse by a parent or abandonment by a parent, but this area of neglect has always been a little murky.”
Backlog of cases
The high number of undocumented immigrant children who entered the U.S. from fall 2013 to summer 2014 led to an overwhelming increase in the backlog of pending cases, a backlog that has persisted long after the immigration surge slowed down: In Baltimore alone, there were 11,325 cases pending in immigration court at the end of May, compared to 7,627 last year and 5,245 in 2013.
From October 2013 to September 2014, 3,884 unaccompanied children were released to sponsors in Maryland while they await immigration proceedings, according to the Office of Refugee Resettlement, a division of the U.S. Department of Health and Human Services. That’s the sixth-highest number of any state, after Texas, New York, California, Florida and Virginia.
Several local immigration attorneys said many of their clients are among those thousands awaiting court proceedings in Maryland — and more often than not, their situations fit the definition of neglect that this decision establishes. Maryland was already a relatively attractive state for undocumented immigrant minors before the appellate court’s decision, Simpson said, but the expanded and clarified definition will benefit more of those children.
“We have a lot of kids with the same sort of facts pattern as the decision. A lot of kids, a large majority of the kids we’re seeing, could potentially qualify for SIJ [status],” she said. “We’ve had very positive experiences with the circuit court judges; a lot of judges are open and understanding. I think we’re very fortunate to be in Maryland — it’s a very hospitable place for all this.”
Essential step
A state court finding of at least one parent’s neglect, abuse or abandonment of a child is an essential step in obtaining special immigrant juvenile, or SIJ, status, which is granted by U.S. Citizenship and Immigration Services. A successful application for SIJ status then allows the child to apply for legal permanent residency, which is also granted by USCIS.
In the case of a Guatemalan immigrant minor living with his relatives in Maryland, the Court of Special Appeals found that the Montgomery County Circuit Court failed to apply the correct legal standard in ruling that the child’s living situation in Central America — which included quitting school before age 13 to perform manual labor — did not qualify as neglectful. The appellate court vacated the circuit court’s finding and remanded the case.
“We will not voluntarily select a standard that automatically sends a child back to wretched conditions that our state has found to be abusive, neglectful, or to constitute abandonment solely because those conditions are considered acceptable in the child’s home country,” Judge Daniel A. Friedman wrote. “Trial judges are to determine whether the child would be considered abused, neglected or abandoned under Maryland law without regard to where the child lived at the time the events occurred.”
Dangerous working conditions
In November 2013, the Montgomery County Circuit Court appointed Charlene M. as the temporary guardian of her cousin, Dany G., a native of Guatemala.
Around this time, Charlene also filed a motion seeking an order for findings on Dany’s eligibility for SIJ status, and on June 26, 2014, the circuit court held a hearing on the motion.
Charlene testified at this hearing that Dany stopped attending school in Guatemala when he was 12 years old, and instead had worked in the fields from 6 a.m. to 1 or 2 p.m. every Monday through Saturday to support his disabled parents. Dany described the work as “very risky” because herbicides used in the fields often made workers sick.
Baltimore immigration attorney Hayley Tamburello said the vast majority of her cases involve children like Dany who were working before they came to the U.S.
“It’s one of the first questions that I ask them, and they almost all say yes, especially the boys,” Tamburello said. “A lot of them work in agriculture, especially in Central America. It’s not a safe job — you don’t think of farming as super dangerous, but they’re harvesting sugar cane and using machetes. It’s not like they just go outside and pick some vegetables; it’s not like there’s an adult supervising them and giving them safety gloves. It’s literally sending children into fields with very sharp knives and not much instruction.”
Easy to overlook
In the special immigrant juvenile cases she’s handled, Tamburello said, she’s never had a judge cite the lower standard of living in another country or the fact that it’s common for teenagers to help support their families in many nations as a reason to deny a request for a finding of neglect or abandonment. However, she said, clarifying the legal standard will prevent that from happening across the state.
“I think, especially here in the U.S. where we have such strong safety laws, it’s easier to overlook this and say, ‘Oh, I had a summer job as a kid; I worked at an ice cream stand,’” she said, “but these are kids that are working in very dangerous conditions.”
When Dany was 17, his father took out a loan to help him travel to the U.S., according to Dany’s testimony. His father then took out another loan to help Dany travel from a detention center in Arizona to Maryland after he was detained by U.S. immigration authorities.
“That act alone, sending a teenager by himself to travel from Guatemala through to Mexico and through to the United States, how is that not a neglectful act? That’s such a dangerous trip,” Tamburello said.
At the time of the hearing, Dany had completed ninth grade at Albert Einstein High School in Kensington. Charlene told the court that if he went back to Guatemala, he would have to work to support his family rather than further his education.
Maryland standards
Federal law requires applications for SIJ status to include a finding by a state court that the child was abused, neglected or abandoned by at least one parent and a finding that it is not in the child’s best interest to return to his home country. But it does not define terms like “neglect” — that responsibility lies with the state courts, the Court of Special Appeals wrote in its decision.
And in Dany’s case, the state court mistakenly failed to apply the state law definition of “neglect” as it would be applied in Maryland, the appellate court ruled.
“We are … mindful that if parents in Maryland allow or force their child to leave school at the age of 12, this factor would lead to a finding that the child was neglected,” Friedman wrote for the court. “In fact, it is illegal in Maryland for parents to fail to send their child to school. Similarly, if a child worked 8 hours a day, 6 days a week in Maryland under dangerous conditions, a finding of neglect would surely follow.”
Because the federal government has jurisdiction over immigration law, Simpson said, there’s often a lack of clarity surrounding the standards that state courts must apply. But in cases like these, she said, the circuit courts are essentially making a best interest determination, which they’re uniquely equipped to do.
Sheela Murthy, an Owings Mills immigration attorney. (The Daily Record / Maximilian Franz)
Sheela Murthy, an Owings Mills immigration attorney, said the Court of Special Appeals decision reinforces the humanitarian purpose of the law by making it clear that terms like “neglect” should be interpreted broadly.
“Special immigrant juvenile status, it is really meant to give a lot of latitude to kids,” Murthy said. “It’s not their fault that they were pushed or made to come here by their parents. The statute itself is broad, but courts can continuously expand the definition.”
The clarification provided by the appellate court is just as important for immigration attorneys and advocates as it is for the bench, Simpson added.
“It provides a lot more guidance to practitioners and puts us in a position where we can provide legal advice as far as the viability of a potential form of relief that could lead to permanent residency,” she said.
