Under US federal immigration law certain juvenile aliens (which means persons under age 21) who have been declared dependent on a juvenile court can petition to become lawful US permanent residents. Special immigrant juveniles are undocumented juveniles who do not live with their parents, cannot be reunited with their parents due to abuse, neglect or abandonment, and should not, for their own best interest, be returned to their country of origin. Familiar examples from the news include the many unaccompanied juveniles who are crossing the US Mexico border fleeing abuse and neglect.
Prior to petitioning for Special Immigrant status using US Immigration Form I-360, the “Petition for Amerasian, Widow(er), or Special Immigrant Status”, certain eligibility findings are required to be made at the state level. One such finding is that the child is in the custody of the state or of a court appointed individual. When the juvenile is a ward of a guardianship, a California’s superior court can make this and other required judicial findings.
Under California law, however, guardianships only apply to minors and automatically cease when a person turns age 18. Thus, until now, persons between 18 and 21 who are juveniles for purposes of US immigration law found themselves in a difficult position to obtain the necessary judicial findings.
New California legislation has created a special adult guardianship of convenience to allow young adults between ages 18 and 21 to become subject to guardianship proceedings in a California Superior Court for immigration purposes only.
Unlike with a conservatorship of an adult conservatee, the adult ward must consent to the petition to commence the adult guardianship. Also unlike with a traditional guardianship, the adult ward would keep all of his or her rights, including, but not limited to, the right to make decisions regarding his or her medical treatment, education, and residence.
If the ward consents, however, the guardianship order can confer protective powers on the guardian. Otherwise, an adult ward, who might otherwise be conserved as an adult for his or her own protection, could not receive any protection inside a special adult guardianship while seeking special immigrant status.
Where siblings are involved, the court may consolidate the multiple siblings’ proceedings for special guardianships, but it still must issue separate findings for each sibling. The petition for the special guardianship can be filed by anyone on behalf of the proposed ward, regardless of whether they are related or not.
Once the findings of facts are established at the state level, the US immigration petition I-360 for Special Immigrant Status status can be filed on behalf of the juvenile; either by the guardian or by another person with standing. If the I-360 petition is granted, the next step is to file an I-485 adjustment of status application. If granted, this leads to permanent residency. Obtaining a green card allows these otherwise vulnerable juveniles to pursue education, work, and to live in the open without fear of deportation; things which most of us take for granted. Otherwise the same juveniles will continue to live in the shadows and under false documents.
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