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California Supreme Court Eases Requirements for Asylum-Seeking Children

By Christopher Coble, Esq. on August 17, 2018 | Last updated on March 21, 2019

Seeking asylum in the United States is no easy process for adults, let alone for children. 10-year-old Bianka entered the country by herself in 2016, fleeing violence in Honduras and, after being reunited with her mother Gladys, sought a court order giving her mother sole custody. The only problem, according to a family and appeals court? The request didn't name her father.

Despite Bianka's contentions that her father had effectively abandoned her in Honduras, the courts said they could not issue any custody ruling without joining the father in the litigation. But the California Supreme Court overturned those decisions, removing an important hurdle for children seeking asylum in the U.S.

Old Rulings

Bianka was seeking "special immigrant juvenile" status under federal immigration law, which allows immigrant children who have been abused, neglected, or abandoned by one or both parents to apply for lawful permanent residence while remaining in the United States. She claimed her father, still in Honduras, had abandoned her and, though she notified him of her emigration, has taken no steps to participate in the process or advocate for her return.

A state superior court denied Bianka's requests, claiming it could not issue either a custody order or findings relevant to special immigrant juvenile status unless she first joined her father as a party to the action, granting the court jurisdiction over the matter, and a Court of Appeal agreed.

But a unanimous state Supreme Court reversed those rulings, refusing a non-resident parent to hijack asylum and custody proceedings:

Bianka asks for three things in this proceeding: (1) the establishment of a legal mother-child relationship with Gladys; (2) an award of sole legal and physical custody to Gladys; and (3) findings relevant to special immigrant juvenile status, including findings concerning the prospect of reunification with Jorge. Certainly Jorge's participation is not essential for the court to determine the existence of a mother-child relationship between Bianka and Gladys. And although Jorge is certainly entitled to be heard on the remaining two matters if he chooses, he is not indispensable to their resolution.

New Rules

The California Supreme Court laid out the procedures for asylum-seeking children going forward. "Provided that the absent parent has received adequate notice," the court ruled, "the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party." The Supreme Court also ordered lower courts to disregard intent in the filings, allowing that "the action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides."

Courthouse News reports that Bianka, now 13, currently resides with her mother in Los Angeles.

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