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For a special visa, young immigrants need a judge to rule they’ve been abandoned. Some judges refuse to decide.

A U.S. Border Patrol agent leads undocumented immigrants through the brush after capturing them near the U.S.-Mexico border in 2015. (John Moore/Getty Images)

The Virginia Court of Appeals is considering two cases that could determine whether young undocumented immigrants can seek special visas intended for those who can't return to their homelands because their parents have neglected, abused or abandoned them.

Across the nation, immigration lawyers increasingly have turned to the federal Special Immigrant Juvenile visa program to secure permanent legal residency for young people, mostly from Central America, who have crossed the U.S.-Mexico border, in many cases joining a parent who is already here.

During fiscal 2016, a total of 15,100 of the visas were approved, according to U.S. Citizenship and Immigration Services, compared to 1,600 in 2010. There is a two-year backlog for applications to be processed.

In order to apply, immigrants need an order from a family judge in the state court system, affirming that they are in need of protection and cannot be safely reunited with a parent in their native country.

But different judges have interpreted the program differently, with some — including those in the cases under appeal from Loudoun and Arlington counties — saying they lack the authority to make rulings in what will ultimately become a federal immigration case.

The result, advocates say, is confusion and inconsistency over what should be a straightforward government program.

“There is a lot of misunderstanding,” said Greg Chen, director of government relations for the American Immigration Lawyers Association. “You may have courts in the same state but in different counties that have different policies in how they want to handle these.”

Some states have taken steps to clarify how judges should weigh such cases. For example, in Maryland a 2014 law raised the age of who comes under a family court's jurisdiction to 21 from 18, in order to match the maximum age of eligibility for the federal program.

Virginia, where nearly 12,000 unaccompanied minors have arrived since 2014, is among the states that have left local judges to navigate the program themselves. Though there are no state-by-state statistics on Special Immigrant Juvenile petitions, a group of Virginia lawyers known as the Commission on the Needs of Children estimates that 1,382 were filed in the commonwealth last year, a calculation based on the nationwide number of visa applications and the percentage of unaccompanied minors living in Virginia.

In jurisdictions like Fairfax County, with large numbers of unaccompanied minors, family judges see many visa cases and are comfortable issuing rulings, advocates say. But their counterparts in places where such cases are rare tend to hesitate, according to legal experts in Virginia and across the country.

“A state court judge, especially when they are seeing this for the first time, their first response is: ‘Well, I’m not an immigration judge. I can’t possibly make this decision,’ ” said Abigail Trillin, executive director of Legal Services for Children in San Francisco. “So we’ve had to explain: ‘Well, you’re not being asked to make an immigration decision.’ ”

The Loudoun case being appealed deals with a 13-year-old boy from Honduras whose mother claimed his father was emotionally abusive and threatened to kidnap his son for ransom money. The Arlington case was filed by the mother of a 16-year-old boy from Guatemala who she claims was conceived during a rape, and whose father she says has been mostly absent.

In each case, the juvenile court judge ruled the court had no authority to make a finding — decisions that were upheld in Circuit Court.

“As soon as the General Assembly gives us the authority and the jurisdiction to hear these matters, I’d be happy to do so,” Loudoun Circuit Court Judge Jeanette A. Irby said, according to court records.

In an amicus brief on behalf of the plaintiffs, the office of Virginia Attorney General Mark Herring (D) argued that the local courts do have jurisdiction. Rulings on whether a child should live with one parent or another, the brief says, “are exactly the determinations that courts routinely make in custody matters.”

Tanishka Cruz, an attorney with the nonprofit Legal Aid Justice Center who represented the mothers before the appeals court, said that the federal statute governing the visa program clearly requires a ruling from a local judge.

“The order . . . in no way confers immigration status on the child,” Cruz said. “But without that order, the door is closed; They can’t even knock.”

William Hurd — a former Virginia solicitor general who was appointed to argue against overturning the Circuit Court decisions — raised questions about the facts in both cases, including whether the fathers were aware of the proceedings, and said neither case should be the source of a broad-based ruling.

In the Arlington case, Hurd said, the boy’s father was never properly notified of the petition. Cruz said an announcement of the hearing published in a local Virginia newspaper met the state’s notification requirements.

In the Loudoun case, Hurd said, Irby ruled that there wasn’t enough evidence to prove the boy had been mistreated by his father. Hurd also questioned the motivations of the boy’s mother, saying she had technically abandoned her child when she left him with her mother and came to the United States in 2006. The mother arranged for the boy to join her in Sterling in 2013.

“Here you have a father who is in Latin America who does not even know there are proceedings against him,” Hurd said.

Critics of the visa program have raised similar concerns, alleging that some immigrant parents are making false claims of mistreatment in hopes of keeping their children from being sent back to their homelands, and that in many cases the journey to the U.S. is arranged by both parents. They also question whether a young immigrant who crosses the border illegally to join a parent who is also here illegally can legitimately be considered "unaccompanied."

A bill introduced in Congress this year by Rep. Jason Chaffetz (R-Utah) seeks to address those concerns by proposing that the term “unaccompanied minor” no longer apply to those with a parent or adult relative in the United States who can assume custody. A separate bill by Rep. John Carter (R-Tex.), would restrict eligibility for the visa program to applicants who don’t have parents in the United States.

“If you’re a parent in Central America and you can pay a smuggler to get your kid to the United States, that sort of fulfills the requirement for abandonment, even though the parents very often finance the trip to the United States,” said Ira Mehlman, spokesman for the Federation for Immigration Reform, which has pushed for such reforms.

Jennifer Podkul, director of policy for the Washington-based Kids in Need of Defense, said the visa program already includes reviews “at every level” to confirm the applicant has no safe option to return to their country.

The appeals court is expected to rule by late June. The 10-judge panel began considering the two cases last week, after an initial hearing before a three-judge panel in January.

At last week’s hearing, several judges questioned whether state law requires juvenile courts to make any ruling beyond which parent gets custody, and noted that in the Loudoun case it appeared that there wasn’t enough evidence to prove parental mistreatment.

Advocates say their to goal is to make clear that family court judges do have the power — and the obligation — to rule on abandonment petitions.

“It’s still case by case,” Podkul said. “Local judges have a lot of autonomy in determining whether the specifics of a case merit the findings the child is seeking.”

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