At the Intersection of Immigration Law and Juvenile Justice
Part 2 of a 2-part Series

by C. Kevin Morrison1

Rising rates of legal and illegal immigration since 1990 have led to unprecedented immigration law enforcement efforts by the federal government. Included in those escalating numbers of immigrants to the United States are thousands of minors, some unaccompanied by parents or guardians. Many of them come for the same reasons as adult immigrants—they believe their economic and social circumstances will be better in America than in their original country, or they wish to escape religious or political persecution and other dangers in their country. Some children, however, come to the United States because of alleged abuse, neglect, and abandonment by their parents. For those children, the federal immigration laws allow state and local juvenile courts to provide a measure of protection, sometimes leading to permanent residency status.

The previous issue of In Re… discussed how juvenile or criminal court proceedings might result in removal of a juvenile alien from the United States. This issue will consider juvenile court proceedings that bring about an opposite result, preventing the Bureau of Citizenship and Immigration Service (BCIS)2 from removing abused or neglected juveniles and returning them to their country of origin. In these “special immigrant juvenile” (SIJ) proceedings, immigration advocates use juvenile court procedures to secure permanent residency status for their alien minor clients by demonstrating that they would be or have been abandoned or subject to abuse or neglect by their parents in their home country.

Under the Immigration and Naturalization Act (INA),3 a “special immigrant juvenile” may be eligible for permanent resident status (commonly called a “green card”). Special immigrant juveniles are minors who are under the jurisdiction of an American juvenile court and who cannot or should not be returned to a parent’s or other relative’s custody.4 The specific requirements for establishing special immigrant juvenile status are as follows:

• The juvenile must have been “declared dependent on a juvenile court” or have been “legally committed to, or placed under the custody of, an agency or department of the state.…”5 Although the statute seems to contemplate a dependency proceeding, it does not expressly specify what kind of juvenile court proceeding is required. The terms “legally committed to” or “placed under the custody of” may be broad enough to include a delinquency proceeding where the juvenile has been committed to the custody of the state’s juvenile justice authority and the other elements of SIJ status are present.
  
  
• The juvenile has been “deemed eligible by [the juvenile] court for long-term foster care due to abuse, neglect, or abandonment,”6 and the court has determined that it is “not in the alien’s best interest” to be sent back to his or her parents or previous country of nationality or residence.7 According to the regulations enforcing the statute, this requirement means that the juvenile court must have determined “that family reunification is no longer a viable option.”8 Thus, in cases where reunification is still the case plan, special juvenile status will not be available.

Although the SIJ statute was always intended to provide relief for abused and neglected children, its original language did not expressly limit its application to those cases. As a result, a number of children obtained permanent residency through SIJ status without demonstrating they had been abused or neglected.9 The statute was amended in 1997 to make express the “due to abuse, neglect, or abandonment” limitation on SIJ status. One federal appeals court has recently considered this amendment and held that “the purpose of the amendment [ ] is to ‘limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children….’”10

• The Attorney General’s consent is required in two instances.11 First, in cases where the alien is already in Immigration Service custody before the juvenile court case begins, Attorney General must consent to the juvenile court’s exercise of jurisdiction.12 Second, in all cases, whether the alien is in custody or not, the Attorney General must “expressly consent

[ ] to the dependency order” as a “precondition” to special immigrant status.”

Both of these sections were added by the 1997 amendments to give the Immigration Service the opportunity to weed out cases where the juvenile court proceeding is initiated more to give the alien permanent residency status than to protect him or her from abuse or neglect. The legislative history of the amendments makes clear the purpose of the Attorney General’s consent authority:

... the Attorney General [is required] to determine that neither the dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect.13

The BCIS clearly views its consent authority as an opportunity to prevent cases where the juvenile alien has not been abused or neglected from obtaining SIJ status. An internal “Policy and Procedure Memorandum” tells Immigration Service District Directors (to whom is delegated the consent authority) that evidence of abuse or neglect “is crucial to obtaining the Attorney General’s consent to the dependency order.”14 The Courts have found that the statute gives the Immigration Service broad discretion in determining whether to consent to a juvenile proceeding or order which might result in SIJ status. For example, in Yeboah v. U.S. Dep’t of Justice, the court held that “[t]he INS Director’s discretion is bound only by due process considerations.”15

After the juvenile court has entered an appropriate order, the alien juvenile must apply to the BCIS for approval of his or her special immigrant juvenile status, and for an adjustment in alien status to permanent resident. The SIJ regulations require that the juvenile continue to be dependent on the juvenile court when the application is acted upon.16 Since the BCIS approval process can be quite lengthy, the requirement for the juvenile court case to remain open can create problems for alien juveniles who “age out” of the juvenile court’s jurisdiction before the application is approved.

Conclusion

When properly used, a special immigrant juvenile proceeding can be a useful link between the child protection function of the juvenile court and the federal immigration laws. It does have some potential for abuse, however, when used to circumvent the immigration laws for children not truly at risk of abuse or neglect. Where prosecutors are involved in those cases, they should become aware of the facts on which the cases are based to determine whether the procedures have been properly invoked.

1 Senior Attorney, American Prosecutors Research Institute.

2 The BCIS is the successor agency to the Immigration and Naturalization Service. The INS previously was a sub-agency of the U.S. Department of Justice, but in 2003 was transferred to the newly formed U.S. Department of Homeland Security. See Homeland Security Act of 2002, Pub. Law 107-296.

3 8 U.S.C. § 1101 et seq.

4 8 U.S.C. § 1101(27)(J). The statute defining “special immigrants” includes the following definition:

(J) an immigrant who is present in the United States –

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment;

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and

(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status.

5 8 U.S.C. § 1101(27)(J)(i).

6 Id.

7 8 U.S.C. § 1101(27)(J)(ii).

8 8 C.F.R. § 204.11(a). There may be due process concerns in adjudicating cases alleging wrongdoing by parents and adjudicating their parental rights while they are living in a foreign country or are not amenable to service of process. Since the cases are adjudicating the child’s status, however, most have continued on to adjudication notwithstanding the due process concerns. See, e.g., In re Juvenile 148 N.H. 743, 813 A.2d 1197, 2101 (2002) (“We acknowledge the difficulties occasioned by the residence of the parents in a foreign country and the language and cultural barriers involved in this case. Nevertheless, ‘the welfare of an allegedly abused or neglected child is of paramount importance under’” the New Hampshire statutes).

9 Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003) (“This rule was abused, however, by juveniles entering the United States as visiting students”). Juveniles whose cases were filed prior to 1997 could obtain SIJ status merely on a finding that it is contrary to their best interest to be returned to their home country, without regard to the reasons for those findings. E.g., Gao v. Jenifer, 185 F.3d 548 (6th Cir. 1999); Yue Yu v. Brown, 92 F.Supp.2d 1236 (D.N.M. 2000).

10 Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 222 (3d Cir. 2003) (quoting the amendment’s legislative history). See also M.B. v. Quarantillo, 301 F.3d 109 (3d Cir. 2002) (“The legislative history demonstrates an intent to remove immigration decisions from the exclusive control of juvenile courts and the social agencies affiliated with them”).

11 8 U.S.C. § 1101(27)(J)(iii). The statutory requirement that the Attorney General consent was enacted at a time when the INS was within the Department of Justice. The authority to consent had been delegated to the INS District Directors. See Memorandum of July 9, 1999 by Thomas E. Cook, Acting Assistant Commissioner, re: “Special Immigrant Juveniles—Memorandum #2: Clarification of Interim Field Guidance” (available at http://uscis.gov/graphics/lawsregs/handbook/AdjMem0135Pub.pdf). After the transfer of duties to the BCIS, that consent authority, presumably, was transferred as well. See, e.g. Homeland Security Act of 2002, § 456, Pub. Law 107-296 (transferring “any function” specified in prior statutes and regulations to “the head of such component” at BCIS).

12 Gao v. Jenifer, 185 F.3d 548 (6th Cir. 1999) (as a result of 1997 amendment, state courts are without jurisdiction over juveniles in Immigration Service custody absent Attorney General’s consent).

13 H.R. Rep. No. 105-405 at 2981 (1997).

14 Memorandum of July 9, 1999, supra note 11, at p. 3. The Immigration and Naturalization Service issued this Memorandum prior to its dissolution, but the BCIS continues to post it on its public Web site, and so would appear to continue to follow its dictates.

15 345 F.3d 216 (3d Cir. 2003). That court found that the INS had not abused its discretion when it denied consent to a juvenile proceeding based, in part, on evidence of the father’s intent to send his son to the U.S. for the purpose of obtaining residency status through the SIJ procedure to manipulate the system to allow his own immigration.

16 8 C.F.R. § 204.11(c)(5). The regulations do provide, however, that a child’s special juvenile status will continue if the child is adopted or placed in a guardianship. 8 C.F.R. § 204.11(a).