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"SIJS really is a wonderful piece of legislation," says Rebecca Press, a lawyer who works at the Door, a social-services agency in New York that works with disadvantaged youths and is helping Aicha apply for legal residency. "It has the ability to help most abused, neglected and abandoned children."
The process begins when lawyers draft an affidavit charting their young clients' history of abuse. Then these undocumented immigrants have to testify in juvenile court, and if a judge decides they meet the requirements for applying for SIJS, they are able to apply simultaneously for SIJS and lawful permanent residence before the U.S. Citizenship and Immigration Services, which tends to send young people their green cards and SIJS approval at the same time.
But not every applicant gets approved. Aicha encountered problems early on in court because her father contested the guardianship. He did that, he said in a phone interview with TIME, because he did not want to be characterized as an abuser in any court document. The charge is not true, he says, and could result in him losing custody of his two sons, ages 4 and 11. "How am I gonna abuse my daughter sexually?" he says. "I am not that kind of a person."
Even though a therapist at a social-services agency wrote in a report, "As a result of [her father's] constant abuse, Aicha suffered from extreme anxiety and depression" — and even though the girl was admitted in 2008 to Bellevue Hospital, where she was diagnosed with depression and posttraumatic stress disorder and kept for treatment for about a month — there was no physical evidence linking her suicidal tendencies to her father's alleged transgressions.
Lawyers say they don't necessarily need to prove in juvenile court that SIJS applicants have been abused by a parent — they only need to show that the young person's reunification with a parent is not viable. In that process, rather than relying on medical records, which are not available in most SIJS cases, the emphasis is put on the affidavit and the young person's testimony before the judge.
Aicha's case never got that far, however, because the woman who would be her legal guardian, a school friend's mother, withdrew her petition for guardianship. The friend's family had taken Aicha in after she left Bellevue and did not want to return to her father's house. Aicha graduated with honors in 2009, and that summer the friend's mother agreed to become her legal guardian. But when Aicha's father contested the guardianship, the woman — after a few appearances in court — backed out because she feared it would turn into "a protracted legal battle," according to Press. Subsequently, Aicha's case was closed in court in December.
She still had a few other options, although none of them were created solely for young people. One was an application for a U visa, which is available to undocumented immigrants who have suffered substantial physical or mental abuse in the U.S. and have assisted government officials in the investigation or prosecution of such criminal activity. If granted, the U visa allows them to work legally and stay in the U.S. for up to four years and to apply for permanent residence after three years.
But since Aicha's father was never charged with any crimes due to lack of evidence, she and her lawyer are instead preparing to file a petition for legal residency under the federal Violence Against Women Act (VAWA). The act includes a provision directed at children who have suffered substantial physical or mental abuse by a parent who is a U.S. citizen or lawful permanent resident. Press decided to petition for VAWA because Aicha could not find another guardian after the first one withdrew.
Although Aicha's first attempt to gain legal residency did not succeed, SIJS petitions generally work well in major metropolitan areas, where a lot of them are filed, says Laila Hlass, a staff attorney at Loyola University's law clinic in New Orleans. In many other parts of the country, however, judges in state courts may not be familiar with the federal law, even though it has been on the books for 20 years. "A judge may dismiss a case when he sees it deals with someone who is not a U.S. citizen, even though it's against the law," Hlass says. She sees the protection of abused undocumented young immigrants as a work in progress.