T o address the needs of undocumented youths who were dependent on the juvenile

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1 : A Life Jacket for Immigrant Youth By Darryl L. Hamm Darryl L. Hamm Senior Attorney National Center for Youth Law th St., 15th Floor Oakland, CA dhamm@youthlaw.org T o address the needs of undocumented youths who were dependent on the juvenile court system and lacked any means to obtain legal status, Congress enacted, in 1990, the special immigrant juvenile provision of the Immigration and Nationality Act. 1 Recognizing the extremely vulnerable position of these youths, Congress provided for them to obtain lawful immigration status. 2 Advocates regularly use this provision to assist youths, many of whom had fled abuse. 3 Although thousands of youths have benefited from the special immigrant juvenile provision law over the past fourteen years, the immigration service s implementation of this law remains inconsistent and at times creates significant difficulties for applicants. Initially the Immigration and Naturalization Service (INS) adopted a fairly simple procedure for immigrant youth to take advantage of the special immigrant juvenile provision law. An undocumented youth had to obtain a state family or juvenile court order with the following findings: 4 the youth is a dependent of the court; the youth is deemed eligible for long-term foster care; and it is not in the youth s best interests to be returned to the youth s home country. 5 Once a youth received the required rulings from the juvenile court, the youth submitted the court order along with a special immigrant juvenile application and an application for adjustment of status to permanent residence to the local INS district office. After a short interview to review the documents, the INS would grant or deny the special immigrant juvenile petition. Although Congress intended that the INS defer to state court expertise in determining the best interests of the child, a conflict arose over whether the INS or the state juvenile court had jurisdiction especially when the INS had already initiated some 1 Immigration and Nationality Act 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J) (2003). 2 Youths who obtain legal status under the provision are not allowed to petition for their parents to immigrate to the United States. Id. 101(a)(27)(J)(iii)(II), 8 U.S.C. 1101(a)(27)(J)(iii)(II). 3 See Gregory Zhong Tian Chen, Elian or Alien? The Contradictions of Protecting Undocumented Children under the Special Immigrant Juvenile Statute, 27 HASTINGS CONSTITUTIONAL LAW QUARTERLY 597 (2000); see also Katherine Porter, In the Best Interests of the INS: An Analysis of the 1997 Amendment to the Special Immigrant Juvenile Law, 27 JOURNAL OF LEGISLATION 441, 444 (2001). 4 The phrase juvenile court means a court in the United States having jurisdiction under state law to determine the custody and care of juveniles. 8 C.F.R (a) (2001). The creation of specialized family or juvenile courts arose out of the realization that the complexity of relationships in children s lives demanded expertise and judicial specialization. Jay Folberg, Family Courts: Assessing the Trade-Offs, 37 FAMILY AND CONCILIATION COURTS REVIEW 448, 450 (1999). A highly trained and interested adjudicator with experience evaluating social worker documentation, mental health reports, and the testimony of concerned witnesses is most apt to make a child placement determination correctly. 5 8 U.S.C. 1101(a)(27)(J) (2003). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

2 action against the juvenile before the state court intervened.6 The confusion over who had custody and jurisdiction over these youths led to conflicting case law over the years. 7 In 1997 Congress amended the special immigrant juvenile provision and attempted to address these conflicts and concerns of possible fraud. The amendment added the requirement that eligibility for long-term foster care must be due to abuse, neglect, or abandonment. 8 Most controversial, the amendment mandated that, for youth in the actual or constructive custody of the INS (i.e., youth who had been detained or paroled by the INS or who were already involved in INS proceedings), the attorney general must specifically consent to [juvenile court] jurisdiction to determine the juvenile s custody, status, or placement. 9 I. Implementation The INS has sometimes taken years to process special immigrant juvenile applications even after youths are identified by their local child welfare agency. 10 These delays are not simply a matter of inconvenience. Youths age out of the juvenile court s jurisdiction by turning 18 or 21 and lose their opportunity to obtain legal immigration status. After years of complaints and lawsuits, immigration officials in some regions of the country have improved their response time. In the San Francisco region, advocates report that immigration officials are responding within four to ten months after receiving an application. 11 On the other hand, some regions still report significant delays. In New York immigration officials wait until youths are close to their 21st birthday before approving their special immigrant juvenile applications no matter when they file them. 12 The U.S. Citizenship and Immigration Services recently issued a field memorandum to remedy these delays. 13 The agency encourages special immigrant juvenile applicants to notify the agency when they file their application about their risk of aging out. The agency directs its district offices to schedule interviews well in advance of the applicant s 18th or 21st birthday, to complete background checks at least sixty days before the age- 6 The Service does not intend to make determinations in the course of [a] deportation proceeding regarding the best interest of the child for the purpose of establishing eligibility for special immigrant juvenile classification. The Service believes that it would be both impractical and inappropriate for the Service to routinely readjudicate judicial or social service agency administrative determination as to the juvenile s best interests. 58 Fed. Reg , (Aug. 12, 1993). 7 See Gao v. Jenifer, 185 F. 3d 548 (6th Cir. 1999) (state courts may still exercise jurisdiction over a neglected or abused immigrant child who has been paroled to foster care by the Immigration and Naturalization Service (INS) without necessarily interfering with the federal mandate to regulate immigration). But see In re C.M.K., 552 N.W.2d 768 (Minn. Ct. App. 1996) (once INS had taken the child into custody, the state had no jurisdiction over that child regardless of need because federal immigration proceedings preempted state court proceedings). 8 Pub. L. No , 113, 111 Stat. 2440, 2460 (1997) (codified as amended at 8 U.S.C. 1101(a)(27)(J) (2003)). 9 8 U.S.C. 1101(a)(27)(J)(iii)(I) (2003). 10 See, e.g., Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M. 1999); Agbemaple v. Immigration and Naturalization Service, 1998 U.S. Dist. Lexis 7953, 1998 WL (N.D. Ill. 1998). 11 Interview by Shannon Williams with Abigail Trillin, Managing Attorney for Legal Services for Children, San Francisco, Cal. (June 29, 2004). 12 Interview by Shannon Williams with Ragney Shaw, Former Staff Attorney for The Door, New York, N.Y. (June 30, 2004). Once granted permanent resident status, one apply for citizenship after five years. The benefits of citizenship, such as voting, are unnecessarily delayed when immigration officials take too much time to process special immigrant juvenile petitions. 13 U.S. Citizenship and Immigration Services, Memorandum No. 3 Field Guidance on Special Immigrant Juvenile Status Petitions (May 27, 2004). After the Homeland Security Act of 2002 was passed, INS s functions were transferred to the Department of Homeland Security. As of March 1, 2003, the INS was formally abolished, and its responsibilities were divided into two new agencies within Homeland Security: U.S. Citizenship and Immigration Services and the U.S. Customs and Border Protection. For purposes of special immigrant juvenile petitions, U.S. Citizenship and Immigration Services is now the responsible agency. It was briefly known as the Bureau of Citizenship and Immigration Services; see Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

3 out date, and to expedite processing of cases at risk of aging out. 14 II. Identification of All Eligible Youth Although there is no statistical evidence, several advocates throughout the country are convinced that local child welfare agencies, dependency attorneys, and state juvenile courts have failed to inform many eligible youths in a timely manner of their right to apply for special immigrant juvenile status. 15 As a result, some undocumented youths are aging out of the juvenile court system without any means to obtain legal status. Youths aging out of foster care already have the odds stacked against them; immigration troubles leave these youths in even more dire straits. 16 Recognizing these concerns, some jurisdictions are taking constructive measures to improve identification of eligible youth. In Los Angeles the county child welfare agency has established a special immigrant juvenile unit. Directed by one person, caseworkers with regular caseloads are trained to assist youths on their special immigrant juvenile applications. Those who work with the county report that this system is well organized and reduces the likelihood that youths are not identified. 17 In a number of places, agencies such as Legal Services for Children in San Francisco and The Door in New York City train dependency attorneys and the local child welfare agency on the availability of special immigrant juvenile status. California passed measures alleviating the hit-or-miss aspect of eligible youths being identified. The California Department of Social Services enacted emergency regulations requiring local child welfare agencies to assist foster youth on concerns related to their immigration status. As part of the services included in a foster youth s transitional independent living plan, the caseworker is supposed to teach an undocumented youth how to acquire and receive a completed application for Special Immigrant Juvenile Status. 18 California enacted legislation requiring local child welfare agencies to submit reports before youths age out of foster care; the reports must verify that the youths have certain critical documents such as proof of citizenship or residence. 19 A bill currently pending before the California legislature would require local juvenile courts to appoint an immigration attorney for any dependent child who is not a legal permanent resident or U.S. citizen; the bill would mandate that the attorney pursue a special immigrant juvenile application or other avenue to obtain legal permanent resident status. 20 III. Juvenile Delinquency Proceedings and Probate Court Guardianships While most youths who benefited from special immigrant juvenile status have come from the foster care system, some youths under juvenile court jurisdiction for delinquency and probate court jurisdiction for guardianships are eligible for 14 See Citizenship and Immigration Services, Memorandum No. 3, supra note 13, at See Trillin, supra note 11; Interview by Shannon Williams with Bernard Perlmutter, Attorney for University of Miami Children and Youth Law Center, Miami, Fla. (June 30, 2004). 16 See generally Lisa Eisenbud et al., Bridges to Independence: Improving Transitions to Adulthood for Youth Served by the New Jersey Division of Youth and Family Services (2001), available at This report details how youths aging out of the foster care system are disproportionately homeless and experience poor educational, employment, and mental health outcomes. 17 Interview by Shannon Williams with Chris Jackson, Attorney for Public Counsel in Los Angeles, Cal. (July 16, 2004). 18 CAL. CODE REGS (i)(4)(D) (2004). 19 CAL. WELF. & INST. CODE 391(b)(2) (2004). 20 Cal. Assembly Bill 1895, Leg. (Cal. 2004) (unenacted). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

4 such status. Some youths who originally came under the juvenile court s jurisdiction for acts of delinquency subsequently face circumstances that would allow a juvenile court to deem them as dependents. In many instances juvenile courts place youths in group homes or foster homes because they determined that the gravity of their offenses did not require incarceration but that the youths could not be safely returned to their homes due to abuse, neglect, or abandonment. In such circumstances many juvenile courts respond favorably to advocates requests for special immigrant juvenile orders. 21 This remedy is not available for all delinquent youths. While several grounds of inadmissibility, such as being a public charge, are waived for special immigrant juvenile youths, other grounds, such as those for certain criminal offenses, still apply. 22 For example, Citizenship and Immigration Services will still bar a special immigrant juvenile petitioner from adjusting to permanent resident status for criminal offenses such as being a drug abuser or addict or trafficking in illegal substances. 23 Advocates find that youths with multiple offenses have greater difficulties obtaining special immigrant juvenile status. 24 In recent years many youths in probate court guardianships have also obtained special immigrant juvenile status. 25 Before the child welfare system was developed in most states, probate courts took responsibility for appointing guardians for abused, neglected, or abandoned children. Probate guardianships remain a viable option for many youths. One recent study confirms that most youths in probate court guardianships come from homes where they were abused, neglected, or abandoned. 26 In assessing whether a youth is eligible for special immigrant juvenile status, advocates need to ascertain whether the youth remains a dependent of the probate court. 27 Counsel should look for indications, as evidence to support eligibility, that the probate court continues to exercise authority over the child s custody or care. 28 Indicators may include factors such as the submission of annual guardianship reports, notice regarding changes in residence, and the right to terminate the guardianship when it is not in the best interest of the child. 29 Youths in a guardianship also meet the criteria for being eligible for long-term foster care. The special immigrant juvenile regulations provide that a child who has been adopted or placed in a guardianship situation is eligible for long-term foster care. 30 IV. Youths in Actual or Constructive Custody of Citizenship and Immigration Services A number of unaccompanied immigrant youths are detained initially by Citizenship 21 Kathy Brady, Special Immigrant Juvenile Status for Children Under Juvenile Court Jurisdiction 12 (2001) (available from the Immigrant Legal Resource Center). 22 Grounds for inadmissibility are bases under immigration law to deny admission to the United States or to deny adjustment to lawful permanent resident status. The specific grounds are listed in Immigration and Nationality Act 212(a), 8 U.S.C. 1182(a) (2003). Congress exempted special immigrant juvenile youths from certain grounds of inadmissibility, such as being a public charge. Id. 245(h)(1), (2)(A), 8 U.S.C. 1255(h)(1), (2)(A). 23 Id. 212, 8 U.S.C Immigration officials for special immigrant juvenile applicants may waive some of the grounds of inadmissibility, with the notable exception of drug trafficking. See id. 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B). 24 See Shaw, supra note Zabrina Aleguire & Gregory Chen, Children in Legal Guardianships Eligible for Special Immigrant Juvenile Status, YOUTH LAW NEWS, Jan. March 2004, at 27 (available at 26 Virginia G. Weisz & Suzanne McCormick, Abandon Probate Court for Abandoned Children: Combining Probate Guardianship of the Person and Dependency into One Stronger, Fairer Children s Court, 12 SOUTHERN CALIFORNIA REVIEW OF LAW AND WOMEN S STUDIES 191, 195 (2003). 27 See Aleguire & Chen, supra note 25, at 28 29; See also Shaw, supra note 12; Perlmutter, supra note 15; and Trillin, supra note See Aleguire & Chen, supra note 25, at See, e.g., ARIZ. STAT (2003) (requires notice of change of residence); FLA. STAT (2003) (requires annual report) C.F.R (a). 326 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

5 and Immigration Services. In 2001 immigration officials detained more than 4,600 immigrant youths. 31 Children remain in detention anywhere from three days to two years while immigration officials resolve their immigration status. 32 To obtain special immigrant juvenile status, youths in actual or constructive custody by Citizenship and Immigration Services must obtain the express consent of immigration officials before a state juvenile court may assume jurisdiction. In its guidelines the agency states that immigration officials should consent to the juvenile court s jurisdiction if: (1) it appears that the juvenile will be eligible for [special immigrant juvenile] status if a dependency order is issued; and (2) in the judgment of the [Citizenship and Immigration Services] district director, the dependency proceeding would be in the best interest of the juvenile. 33 Advocates report considerable difficulties obtaining Citizenship and Immigration Services consent. 34 While undocumented youths already under a state court s jurisdiction have their best interest and other special immigrant juvenile eligibility factors assessed by juvenile court judges, youths in custody have these decisions made by immigration officials who have no real experience assessing what is in a youth s best interest. Courts are divided on whether they have subject-matter jurisdiction to review Citizenship and Immigration Services denial of consent for state juvenile court jurisdiction. In some instances courts find that they have jurisdiction under the Administrative Procedure Act to review whether Citizenship and Immigration Services acted arbitrarily and capriciously when denying its consent. 35 On the other hand, a number of courts conclude that they do not have subject-matter jurisdiction. 36 These courts rely on provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of In particular, under the Act a heading entitled Judicial Review of Orders of Removal provides that no court shall have jurisdiction to review (i) any judgment regarding the granting of relief under section of this title, [Immigration and Nationality Act] or (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General Since provisions regarding adjustment of status fall under Section 1255 of the Immigration and Nationality Act, some courts conclude that the Administrative Procedure Act is preempted by the Illegal Immigration Reform and Immigrant Responsibility Act. 39 This interpretation remains in dispute; other courts reached a contrary conclusion American Bar Association, Immigration Pro Bono Development Project, Fact Sheet on Detained Immigrant and Refugee Children (available at 32 See Clair L. Workman, Kids Are People Too: Empowering Unaccompanied Minor Aliens Through Legislative Reform, 3 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW 223, 227 (2004) (citing Women s Commission for Refugee Women and Children, Prison Guard or Parent?: INS Treatment of Unaccompanied Refugee Children (2002)). Many unaccompanied youths are not represented by counsel either. 33 Memorandum from Thomas E. Cook, Acting Assistant Commissioner, Adjudication Division, Immigration and Naturalization Service, U.S. Department of Justice, Regarding Special Immigrant Juveniles, Memorandum 2: Clarification Guidance (July 9, 1999). 34 See Porter, supra note 3, at Administrative Procedure Act, 5 U.S.C. 701 et seq. See Yeboah v. Immigration and Naturalization Service, 345 F.3d 216, (3d Cir. 2003); M.B. v. Quarantillo, 301 F.3d 109, (3d Cir. 2002) (in the limited circumstances when courts find subject-matter jurisdiction, they more often than not find that the immigration officials did not abuse their discretion when they denied consent). 36 See, e.g., Riley v. Ganter, 2003 U.S. Dist. Lexis (S.D.N.Y. 2003). 37 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No ; Immigration and Nationality Act 242(a)(2)(B), 8 U.S.C. 1252(a)(2)(B) (2003) U.S.C. 1252(a)(2)(B) (2003). 39 Riley, 2003 U.S. Dist. Lexis See Talwar v. Immigration and Naturalization Service, 2001 U.S. Dist. LEXIS 9248, 2001 WL (S.D.N.Y. 2001) (Martin, J.). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

6 V. The Unaccompanied Alien Child Protection Act Although current judicial decisions regarding Citizenship and Immigration Services discretion are not very favorable, legislative relief may be on the horizon. The Unaccompanied Alien Child Protection Act of 2003, proposed by Sen. Diane Feinstein of California, would amend the special immigrant juvenile law not to require Citizenship and Immigration Services consent before a state juvenile court may assume jurisdiction. 41 Instead of restricting juvenile court jurisdiction, Congress would require the Office of Refugee Resettlement of the U.S. Department of Health and Human Services to certify that the classification of an alien as a special immigrant under this subparagraph has not been made solely to provide an immigration benefit to that alien. 42 In effect, Congress would permit a state court to assume jurisdiction without the attorney general s consent. With a fully developed record in a state juvenile court proceeding, youths in custody should face a much easier burden obtaining special immigrant juvenile status. Instead of having to demonstrate to an immigration official who is untrained in the area of child welfare that proceeding to a dependency proceeding is in their best interest, youths would need to show that the special immigrant juvenile petition was not made solely for an immigration benefit. The Unaccompanied Alien Child Protection Act would also clarify Citizenship and Immigration Services role in reviewing state juvenile courts orders establishing special immigrant juvenile status eligibility for youths not in immigration custody. Advocates indicate that immigration officials still try to pry behind state court judges special immigrant juvenile orders regarding their findings of abuse, neglect, or abandonment. Under the proposed amendment, the state juvenile court s order would be binding on the Secretary of Homeland Security for purposes of adjudications under this subparagraph. 43 This change would eliminate any right for immigration officials to question the state juvenile courts decisions regarding abuse, neglect, or abandonment. The Unaccompanied Alien Child Protection Act has already gone through committee and has thirty-five sponsors in the Senate. The bill will not likely come up for a vote in the Senate before the end of the year, but it will be reintroduced in the next Congress. The special immigrant juvenile law has helped numerous immigrant youths establish permanent resident status and has removed barriers presented by their undocumented status. To realize the full benefits of this legislation, advocates need to remain vigilant. Even though juvenile delinquency court and probate court judges may not be as familiar with the special immigrant juvenile law as their counterparts in juvenile dependency courts, advocates need to identify clients who can meet the special immigrant juvenile criteria and request the necessary special immigrant juvenile orders. This will require additional information for and outreach to judges, public defenders, social workers, probation officers, and other service providers. Advocates need to consider legislation and regulations similar to those enacted and proposed in California to ensure that youth in the foster care, delinquency, and probate court systems are identified at an early stage. In particular, states should adopt legislation that allows courts to appoint immigration counsel to assist youth. Because immigration laws are complex and are constantly changing, the expertise of immigration counsel is especially needed. Advocates should support passage of the special immigrant juvenile amendment in the Unaccompanied Alien Child Protection Act. Author s Acknowledgments This article benefited greatly from and could not have been written without the assistance of Shannon Williams, a law clerk at the National Center for Youth Law. 41 Unaccompanied Alien Child Protection Act of 2003, S. 1129, 108th Congress (1st Sess. 2004). 42 Id. 301(a)(iii). 43 Id. 301(a)(i). 328 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004