Immigration issues can seriously affect Michigan families. But most of the time, decisions regarding a person’s legal status are made in federal court, not by the states. However, a recent Michigan Court of Appeals opinion explained how federal law can allow a Michigan adoption court to take on immigration for Special Immigrant Juveniles.
In light of the current Administration’s stance on immigration, many Michigan families may be looking for ways to protect themselves, and their children from deportation. But few would think to look to the Michigan family courts for help. Even some family and probate judges do not realize they have a role to play in certain immigration petitions.
In a recent stepparent adoption decision, a family court judge was asked to find that the child in the case was eligible for Special Immigrant Juvenile status. The child was an undocumented juvenile immigrant from Honduras. His mother and step-father filed a petition for adoption, asking the court to terminated the parental rights of his biological father. The court granted that request and placed the child in the home of his mother and step father.
However, when the family asked the judge to make special findings related to the child’s immigration status, the court refused. The judge noted that “classification based upon alienage is reserved solely for the federal government, so I’m not supposed to pay attention to that.” The judge determined that a Michigan adoption court did not have the authority to make immigration decisions. But the Michigan Court of Appeals disagreed.
Special Immigrant Juvenile Petitions and Juvenile Courts
The form of immigration in question was a petition for Special Immigrant Juvenile Status, pursuant to the Immigration and Nationality Act of 1990 (8 USC 1101(a)(27)(J)). It establishes a path for certain child immigrants living in the U.S. to obtain legal permanent resident status. But before a juvenile immigrant can apply for legal SIJ status, he or she must first get a state court order that he or she:
- has been the subject of a juvenile court proceeding in state court;
- should not be reunified with one or both parents because of abuse, neglect, or abandonment makes reunification;
- would not have his or her best interests served by returning to his or her home country.
The SIJ petitioner then provides that order to the federal immigration court along with evidence that he or she:
- Is under 21 years old
- Is unmarried
- Is a current dependent of a juvenile court
- Is eligible for long-term foster care
Based on the language of the statute, the Court of Appeals found that a state juvenile court had the authority to make the initial factual findings regarding the child’s welfare and best interests to support an SIJ petition. The federal immigration court then relies on those factual findings in making the final decision whether SIJ status is appropriate for a given child.
Michigan Adoption Courts and SIJ Status
The question for the Michigan Court of Appeals in In re LFOC was whether the Michigan adoption court was a “juvenile court” capable of making SIJ factual determinations. This appears to be the first time the Court of Appeals has decided an SIJ issue.
Under federal law, “juvenile court” means a U.S. court with jurisdiction under state law to decide the custody and care of juveniles. This can include custody proceedings, adoptions, and probate issues. In Michigan, the family division of the circuit court has jurisdiction over adoptions, including the authority to terminate parental rights and place children in their adoptive parents homes. The Court of Appeals said this met the criteria for a juvenile court under the immigration statute.
Are Stepparents Foster Care?
The Court of Appeals also addressed whether a stepparent adoption was a form of long-term foster care under the immigration statute. The court noted that traditionally, “long-term foster care” required the child to be expected to remain in foster care until becoming an adult unless the child was adopted or appointed a guardian. However, in 2008, that requirement was modified to allow the state juvenile court to place the minor child in a state agency or with an individual following a finding of abuse, neglect, or abandonment prevented reunification. Because a Michigan adoption court places the minor child with his or her step-parent at the end of a second parent adoption proceeding, that child can be considered to be in long-term foster care with his or her step-parent.
In re LFOC has provided Michigan adoption courts explicit authority to take on immigration challenges facing families within their jurisdiction. However, doing so will require close collaboration between family lawyers and immigration attorneys to protect their children against possible deportation.
Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She provides adoption services to families across Metro Detroit. If you are looking for a step-parent adoption, contact Schmidt & Long today for a free consultation.