Written by Priscila Ulloa

Predicate Orders may not be something we encounter every day in family law, but they hold unique importance, especially in cases involving immigrant children. These orders can originate in various contexts, including guardianship proceedings, juvenile court, and family law matters. For this blog, the focus will be on their role in family law, specifically in custody cases, and how they can open the door to a vital form of immigration relief known as Special Immigrant Juvenile Status (SIJS).

When a parent or relative, like a grandparent, aunt, or uncle, petitions for custody of a child who has been abandoned by one or both parents, and that child is undocumented, there’s often more at stake than just a custody ruling. In these cases, the petitioner can ask the court to issue what’s known as a predicate order as part of the final custody decision. This special order lays the groundwork for the child to apply for SIJS, offering a possible path to legal residency and, more importantly, safety and stability.

While rare, Predicate Orders serve as a critical link between North Dakota’s family court system and federal immigration law.

What Is a Predicate Order?

A “predicate order” refers to a special set of findings that a district court is asked to make in order for a minor to apply for SIJS under federal immigration law. SIJS is a form of immigration relief available to certain undocumented immigrant children who have been abused, abandoned, or neglected by one or both parents.

The term “predicate” stems from the idea that these findings are a necessary precursor to the child being eligible to apply for SIJS through U.S. Citizenship and Immigration Services (USCIS). The district court’s role is not to grant immigration relief itself, but rather to determine certain factual matters that USCIS cannot decide independently because they are not an expert in family law.

What Does the District Court Need to Find?

When seeking SIJS status, many families and their advocates run into confusion about what exactly the district court must do and what it can do within the context of family law. Let’s break it down.

Under the Immigration and Nationality Act (INA) § 101(a)(27)(J) and its implementing regulations, a district court must make three key findings for a child to be eligible to pursue SIJS:

1. The Child is Dependent on the Court.

Under this finding, district courts may sometimes hesitate, mistakenly believing they are overstepping into the realm of immigration law. But the court’s role here is limited strictly to making a custody determination under state law, not granting immigration benefits. Per 8 C.F.R. § 204.11(a) and 8 U.S.C. § 1101(a)(27)(J), any court with authority to make child custody decisions qualifies to issue these special findings. This would include a North Dakota district court handling custody under N.D.C.C. Ch. 14-09 and N.D.C.C. Ch. 14-14.1.

In reality, many of these cases fall under the umbrella of abandonment or neglect factors that often give North Dakota district courts emergency jurisdiction under N.D.C.C. § 14-14.1-01(1). When a court accepts jurisdiction and issues a custody ruling, it effectively establishes that the child is “dependent on the court” for their care. And under federal immigration law, that dependency is a critical piece of the puzzle for SIJS.

At the heart of this family law and immigration intersection is a crucial step: the district court must also grant the petitioner primary residential responsibility (physical custody) and usually sole decision-making authority (legal custody) over the child. This isn’t just any predicate order. Since it takes place within a family law matter, the court’s ruling must also meet all the legal standards and formalities that govern custody orders.

Note: This process is often more straightforward when the petitioner is a parent. However, non-parents such as an aunt, uncle, or grandparent can also seek custody,  though they must meet additional criteria under North Dakota’s non-parent custody laws as outlined in N.D.C.C. § 14-09.4. In many cases, the custody petition is filed by default given that one or both parents have abandoned the child, leaving no one else to contest the matter.

2. Reunification with One or Both Parents Is Not Viable

The district court must also find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, maltreatment, or a similar basis under state law.

This is more than just emotional distance, as the court must examine the legal and functional relationship (or lack thereof) between the child and their parents.

As noted previously, in the realm of family law, abandonment is typically the most common scenario in cases involving undocumented children. In North Dakota, abandonment is specifically defined under N.D.C.C. § 14-14.1-01(1), and the circumstances must align with that definition for the district court to grant the custody petition and issue the necessary predicate findings.

3. Returning to the Child’s Home Country Is Not in Their Best Interest

Finally, the district court must determine that it is not in the child’s best interest to be returned to their country of origin. Why? In many cases, the child lacks a safe or suitable parent to return to, and/or the home country is affected by war, poverty, or gang violence.

In contrast, the child has a safe and stable petitioner in the United States. Someone who can provide emotional and financial support while the child remains in the country as a minor and later presumably seeks SIJS. Yet, in this proceeding, the district court’s focus isn’t on whether the child will apply for or qualify for SIJS. Its sole concern is determining what serves the best interest of the child.

Timing Matters

These findings must be made before the child turns 18, because that’s the age cut-off for the district court to have jurisdiction in a family law matter. However, the child can apply for SIJS through immigration authorities until they turn 21.

Is a District Court Considered a Juvenile Court for Purposes of SIJS?

In North Dakota, district courts handle family law cases and have the authority to decide custody matters under Chapters 14-09 and 14-14.1 of the North Dakota Century Code.  For SIJS purposes, these courts are treated as “juvenile courts” because they possess the legal power to make crucial decisions about a child’s care and custody. So yes, a custody order issued in a North Dakota district court is considered a juvenile court order for an SIJS application.

What Happens After the Predicate Order Is Issued?

Once a court issues the required findings, the case is closed in district court. From there, the child (or their legal guardian on their behalf) can apply for SIJS through USCIS[1] . If the application is approved, the child may obtain lawful permanent resident status (a “green card”) and, eventually, apply for U.S. citizenship.

However, it’s important to understand:

• The district court does not make any decisions about immigration status, only about the child’s circumstances and best interests while they are in the care of the petitioner.
• USCIS retains discretion to approve or deny SIJS applications regardless of the district court’s predicate order. USCIS will consider the district court’s factual findings as it considers that court to have expertise in custody matters and is a component of its review of an application for SIJS.
• To apply for SIJS, the child must be under 21 years of age at the time of the application.
• The child must be currently living in the United States
• The child must be unmarried
• The child must have a valid court order from the district court with those three special findings.
• The child must show that they did not obtain the district court order primarily to obtain an immigration benefit.
• And some other requirements depending on circumstances.

What Happens After a Child Applies for SIJS?

While the full SIJS process is a topic in itself, here’s a general overview: if approved, Special Immigrant Juvenile Status allows the child to remain legally in the United States, obtain work authorization, and begin the path toward lawful permanent residency (LPR), commonly known as getting a green card. After five years as an LPR, the child may be eligible to apply for U.S. citizenship. However, it’s important to note that maintaining good moral character is essential. If the petitioner commits a crime or otherwise violates U.S. laws before becoming a citizen, they risk losing their LPR status and facing forcible removal, also known as deportation to their country of origin.

Why Does It Matter?

As North Dakota welcomes increasingly diverse communities, it’s more important than ever for family law attorneys, child welfare advocates, and judges to understand how state custody proceedings can directly impact a child’s immigration future. The intersection between family law and federal immigration relief isn’t just a legal nuance; it’s a lifeline. When properly framed and supported, requests for predicate orders can open the door to protection for vulnerable children who might otherwise be forced to return to unsafe or unstable environments. Understanding this connection is key to helping these children pursue a safe, lawful path to remain in the United States.

More broadly, predicate orders ensure that decisions about children’s welfare are made by courts that specialize in such matters, while immigration authorities focus on their own role in adjudicating legal status. This division of labor helps maintain the integrity of both the child welfare and immigration systems.

Conclusion

If you would like more information, it is recommended that you contact SW&L’s family law team at 701-297-2890 or email us at info@swlattorneys.com.

The information contained in this article and on this website is for informational purposes only. Do not rely on the information on this website as legal advice. Please refer to the full disclaimer here.

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