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California Supreme Court Clears Path for Abandoned Immigrant Children to Apply for Special Visa


Ruling Overturns Lower Court Decision That Had Blocked Thousands of Immigrant Children from Seeking Lawful Permanent Residency

August 20, 2018

The California Supreme Court issued a decision last week in Bianka M. v. Superior Court (#S233757), which will clear a pathway to safety and permanency for thousands of the state’s immigrant children. The Court reversed a decision by the Court of Appeal that prevented a child with a parent living outside California from applying for federal immigration relief intended for children who were abandoned, abused or neglected unless their absentee parent agreed to participate in a California family court action – an improbable outcome given the parent’s past mistreatment.

The Court ruled the appellate court’s opinion was faulty because it allowed the abandoning out-of-state parent to “essentially bar [a child] from seeking relief premised on the very fact of his abandonment.” The petitioner in the case sought a state court order placing her in the custody of her mother and special findings enabling her to apply for Special Immigrant Juvenile Status (SIJS), an immigration protection that permits children who have been abused, neglected or abandoned by one or both parents to apply for lawful permanent residence in the United States. A child must receive Special Immigrant Juvenile Findings from a state court before she is allowed to seek this relief from the federal government.

“This unique immigration program, SIJS, was created by Congress to protect vulnerable immigrant children,” said Sara Van Hofwegen, a supervising senior staff attorney with Public Counsel. “The Court of Appeal’s decision had placed impossible hurdles before children whose safety depends on this remedy. The California Supreme Court’s ruling will ensure children receive the protections they need from our state, and it is a victory for children’s rights and our society at large.”

The petitioner in this case, Bianka M., fled Honduras at the age of 10 to seek safety in the U.S. and to reunite with her mother. Bianka’s father abandoned her and her mother before Bianka’s birth. Bianka’s father wanted nothing to do with her and said he’d rather Bianka die than provide her with money for food. Nevertheless, a Los Angeles family court ruled that it could not determine whether Bianka met the criteria for abandonment unless her father was joined to Bianka’s court case. The Court of Appeal subsequently upheld that opinion in 2016.

“Until yesterday, the Court of Appeal’s decision left abandoned, abused and neglected children like Bianka at the mercy of parents who mistreated them,” said Joshua Lee, a pro bono attorney who argued Bianka’s case before the Court of Appeal and Supreme Court. “The Supreme Court’s ruling reaffirms our state’s long-standing commitment to protecting its most vulnerable citizens and ensures they will be able to get the relief they need and deserve.”

For Bianka, the ruling puts her back on track to be placed in her mother’s custody and obtain the order she needs from the family court— confirming her status as an abandoned minor —to apply for SIJS. If her application is approved, it will open a path for Bianka to become a lawful permanent resident.

“This opens doors of opportunity for Bianka, who is now in high school and dreaming about college and her future,” said Nickole Miller, a clinical teaching fellow at the Immigrant Rights Clinic at the University of Baltimore School of Law. “When Bianka and her mom heard the good news, they both were overjoyed, but Bianka’s mom was also relieved.”

“I am thankful to God, and to everyone who fought for my daughter,” said Gladys, Bianka’s mother. “Before this decision, I lived in fear that my daughter would be separated from me and be deported, but with this decision, I am thrilled that Bianka will be able to move forward with her case without fear.”

DECISION AVAILABLE HERE

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