MIAMI – The Florida Third District Court of Appeal on Dec. 28 rebuffed a request by
four undocumented immigrant children from El Salvador for legal dependency status with
the court or an appropriate state agency.
In 2012, the four children in this case
lost their mother in a homicide in El Salvador and their father died two years
later of complications from diabetes. A child custody court in the Central
American nation awarded custody of the children to an aunt. Threats for
protection money from violent gangs, however, caused all five individuals to
flee the country for the United States, eventually finding refuge with the
uncle in Miami.
The unnamed claimants petitioned the court through a
state statute that complies with a 1990 federal law in regard to undocumented immigrants designated as "special immigrant juveniles"
(SIJ), in the apparent hopes of obtaining future permanent legal status.
According to the U.S. Citizenship and Immigration Services (USCIS), an eligible SIJ can obtain a green card to
permanently live and work in the country, but must be under the age of 21 and unsupported by a parent.
In applying for SIJ status, the applicant begins the
process by asking the state to deem him/her a dependent of the court, a state
agency or someone appointed by the court. The process continues through the
circuit court and, if necessary, the appeals court, with the USCIS having the
final say on whether the applicant is eligible for SIJ status. The claimant must
prove that he or she lacks parental guardianship due to incidents of neglect, abuse
or outright abandonment.
Martha Lilliana Arias, an immigration attorney with
Arias Villa Law in Miami, spoke with the Florida
Record about cases similar to the one mentioned above. She said that prior
to 2014, Florida courts in general and Miami in particular were swamped by what
she termed an ‘overflow’ of undocumented children arriving in the United
This occurred because dependency status was granted if
a child was left unsupported by a parent who had cared for the child previously,
even if the other parent was still in the picture.
Since 2014, it is reported
that over 100,000 children have entered the United States seeking dependency.
Arias told the Record that in talking
with a fellow immigration attorney earlier in the year, she was informed that
nearly 20,000 children had arrived in Florida just in January and February of
“I really think it is very sad,” Arias said, “It is one
of the things that you say, OK, from a humanitarian point of view it’s really
sad that we are having all these children coming to the border. But at the same
time, how many of these children can our society absorb? How are we going to
educate these children and who is going to take care of these children?”
Currently, undocumented minors are being housed and
cared for in a temporary facility in Homestead, overseen by U.S. Immigration and
Customs Enforcement (ICE), which has contracted a private detention center
staffing company called the GEO Group to run the day-to-day operations. The
environment, Arias claims, is far from optimal.
“I have a client,” Arias stated, “she works there at
the [Homestead] shelter … they have children of all ages and they also have gang
members. Now how do they identify them? By of the way they dress and how they communicate
The December decision is just another in a series of
five similar cases that have been ruled on in Florida circuit courts. In each
case, the claimants’ requests were denied for the usual reason that a relative
was present who could act as a source of support.
In announcing the Third District’s decision, Chief
Judge Richard Suarez and Judge Barbara Lagoa stated that the evidence and
nature of the requests compelled them to abide by prior appeal court decisions
of circuit court rulings, but they did express the hope that the issue would be
addressed by the Florida Supreme Court.
While no specifics were presented, it would appear
that the justices concurred with an opinion released in a previous case
overseen by Justices Frank Sheperd and Thomas Logue, in which the two judges
stated that it was not for them to decide if a claimant from a country that
does not offer basic safety and support can be eligible for permanent residency
in the United States. Issues of that nature, the justices said, were a “matter
of federal policy entrusted to the United States Congress," reports the
News Service of Florida.
In dissent to the opinion was Justice Vance Salter,
who has long said that such cases were being summarily rejected by the circuit
courts without proper evidentiary hearings or close analysis.
One such case
occurred in September when two children from Guatemala fled that country
after their mother was killed and began living with their father in West Palm
Beach. It is reported that the appeals court did not see sufficient reason for
the case to proceed to the state court because the children had a parent to
live with and support them in this country.
Cases such as these, Salter claims, also highlight the
dominating role played by the federal government that is exacerbated by the
policy differences between a state’s dependency courts and the U.S. Congress.
In past opinions, Salter has decried what he sees as states subordinating
themselves to the "whims of the U.S. Congress."