South Florida appeals court turns down request from undocumented children

By Christopher Knoll | Jan 12, 2017

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 States.

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 2016.

“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 with signals.”

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."

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