Case 1:18-cv JGK Document 34 Filed 06/28/18 Page 1 of 2

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1 Case 1:18-cv JGK Document 34 Filed 06/28/18 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK R.F.M., T.D., S.W., and D.A.F.A., on behalf of themselves and all others similarly situated, Civ. Action No. 18-cv (JGK) Plaintiffs, v. KIRSTJEN NIELSEN, et al., Defendants. NOTICE OF MEMBERS OF CONGRESS S MOTION FOR LEAVE TO APPEAR AS AMICI CURIAE PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in Support of Members of Congress s Motion for Leave to Appear as Amici Curiae, dated June 28, 2018, non-party Members of Congress shall move this Court, before the Honorable John G. Koeltl, United States District Judge, at the United States Courthouse, 500 Pearl Street, New York, New York at a date and time to be determined by the Court, for leave to file the attached Proposed Brief of Amici Curiae Members of Congress in Support of Plaintiffs Motion for a Preliminary Injunction [Dkt. 7]. Plaintiffs consent to the filing of the proposed amici brief, while counsel for Defendants has not responded to an from counsel for the proposed amici.

2 Case 1:18-cv JGK Document 34 Filed 06/28/18 Page 2 of 2 DATED: June 28, 2018 Respectfully submitted, /s/ Kaitlin Dabbert Kaitlin Dabbert (SDNY No ) Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY Telephone: Facsimile: kdabbert@akingump.com Steven H. Schulman (pro hac vice forthcoming) Geoffrey J. Derrick (pro hac vice forthcoming) Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C Telephone: Facsimile: sschulman@akingump.com gderrick@akingump.com Attorneys for Proposed Amici Curiae Members of Congress 2

3 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 1 of 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK R.F.M., T.D., S.W., and D.A.F.A., on behalf of themselves and all others similarly situated, Civ. Action No. 18-cv (JGK) Plaintiffs, v. KIRSTJEN NIELSEN, et al., Defendants. PROPOSED BRIEF OF AMICI CURIAE MEMBERS OF CONGRESS IN SUPPORT OF PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION AKIN GUMP STRAUSS HAUER & FELD LLP Kaitlin Dabbert (SDNY No ) Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY Telephone: Facsimile: kdabbert@akingump.com Steven H. Schulman (pro hac vice forthcoming) Geoffrey J. Derrick (pro hac vice forthcoming) Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C Telephone: Facsimile: sschulman@akingump.com gderrick@akingump.com Attorneys for Proposed Amici Curiae Members of Congress

4 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 2 of 17 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTERESTS OF AMICI CURIAE...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 Page I. THE TVPRA EXPANDED ON THE SIJS PROVISION S LONGSTANDING DEFERENCE TO STATE COURTS...3 A. Since its Creation, the SIJS Provision Has Deferred to State Courts...3 B. The TVPRA Expanded on the SIJS Provision s Deference to the States...5 C. The TVPRA Deferred on the Question of a Petitioner s Age....6 II. NO REASONABLE READING OF THE TVPRA PERMITS DEVIATING FROM THAT DEFERENCE....8 A. Domestic Relations Are the Traditional Domain of State Courts...8 B. Congress Offered No Clear Indication of its Intent to Authorize DHS to Prohibit Certain Types of Best Interest Determinations from Serving as a Basis for SIJS Relief...9 CONCLUSION...13 i

5 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 3 of 17 TABLE OF AUTHORITIES Page(s) CASES Ankenbrandt v. Richards, 504 U.S. 689 (1992)...8 Barber v. Barber, 62 U.S. 582 (1858)...8 Budhathoki v. Dep t of Homeland Sec., 220 F. Supp. 3d 778 (W.D. Tex. 2016)...10 In re Burrus, 136 U.S. 586 (1890)...8 Li v. Renaud, 654 F.3d 376 (2d Cir. 2011)...6 M.B. v. Quarantillo, 301 F.3d 109 (3d Cir. 2002)...10 Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016)...9 Perez-Olano v. Gonzalez, No. CV DDPRZX, 2008 WL (C.D. Cal. Feb. 5, 2008)...10 Reyes v. Cissna, No , 2018 WL (4th Cir. Apr. 12, 2018), reh g granted (June 8, 2018)...10 In re: Self-Petitioner, 2015 WL (DHS AAO May 7, 2015)...11 United States v. Windsor, 570 U.S. 744 (2013)...8 STATUTES 8 U.S.C. 1101(a)(27)(J) (2003) U.S.C. 1101(a)(27)(J)... passim 8 U.S.C. 1101(a)(35) U.S.C. 1101(b)(1)(E)(i)...6, 9 ii

6 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 4 of U.S.C U.S.C. 675(8)(B)(iii)...7 Appropriations Act, Pub. L. No , 111 Stat (1997)...4 FLA.STAT.ANN (47) (2006)...6 Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L , 122 Stat (Oct. 7, 2008)...7 Immigration and Nationality Act of 1990, Pub. L. No , 104 Stat (1990)...3 Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No , 122 Stat (Dec. 23, 2008)... passim Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No , 115 Stat. 272 (Oct. 26, 2001)...7 OTHER AUTHORITIES 8 C.F.R , 11 Bridgette A. Carr, Incorporating A Best Interests of the Child Approach into Immigration Law and Procedure, 12 YALE HUM.RTS.&DEV. L.J. 120 (2009)...4 H.R. Rep. No , 1997 U.S.C.C.A.N (1997)...4 Hearing before the Subcomm. on Income Security & Fam. Support of the Comm. on Ways and Means at 2, H.R., 110th Cong. 3 (2007)...7 Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, Final Rule, Supplementary Information, 58 Fed. Reg. 42,843 (Aug. 12, 1993)...4 USCIS Interoffice Memorandum from William R. Yates, Assoc. Dir. for Operations, to Reg. Dirs. & Dist. Dirs. (May 27, 2004), available at s_ Memoranda/Archives% /2004/sij_memo_ pdf ( Yates Memo )...11 USCIS Policy Manual, Vol. 6, Part J. Ch. 2(d)(5) (May 15, 2008), available at HTML/PolicyManual-CVolume6-PartJ- Chapter2.html...11 iii

7 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 5 of 17 INTERESTS OF AMICI CURIAE Amici are Members of Congress. A complete list of amici is set forth in the Appendix. As Members of Congress, amici enact legislation pursuant to Article I of the Constitution. Amici are familiar with the Immigration and Nationality Act ( INA ) and other immigration laws passed by Congress that respect the interplay between the Federal government and the States. In particular, U.S. Representative Zoe Lofgren was the lead Democratic negotiator in the U.S. House of Representatives for the amendments to the INA s Special Immigrant Juvenile Status ( SIJS ) provision, 8 U.S.C. 1101(a)(27)(J) (2003), contained in the Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No , 235, 122 Stat (Dec. 23, 2008) ( TVPRA ). Amici have a substantial interest in the proper resolution of this case, which raises important issues relating to federalism and Executive Branch discretion when enforcing the INA. Amici are interested in protecting the division of powers among the branches of government as set forth in the Constitution and ensuring that the Executive Branch exercises its enforcement authority and responsibility under Article II in a manner that is faithful to Congress s intent. Given their institutional responsibility, amici are committed to ensuring that the Executive Branch interprets and applies immigration laws in a manner that is consistent with Congress s deliberate choice of statutory language. Where Congress chose statutory language that delegates to the Executive the administration of immigration benefits and the Executive acts pursuant to that authority as is the case here amici have a strong interest in ensuring that federal courts honor Congress s deliberate drafting choices. Amici also have an interest in ensuring that federal laws relying on determinations by State officials comply with traditional federalism principles. 1

8 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 6 of 17 The Members of Congress respectfully submit that their views on the SIJS provision in the INA, as well as the amendments made to the SIJS provision by the TVPRA, will assist the Court in determining whether it should grant a preliminary injunction here. SUMMARY OF THE ARGUMENT Since its creation, the SIJS provision has deferred to state juvenile courts to set limits on the types of state court proceedings that would qualify for a federal SIJS benefit. Congress intended the TVPRA s amendments to the SIJS provision to broaden the criteria for SIJS protection to better dovetail federal law with the broad array of family law schemes and systems found in the States. Specifically, the TVPRA deferred to state law with respect to the age at which the state courts would lose jurisdiction over juveniles for the purposes of making dependency determinations, establishing guardianships, or making foster care placements. Congress could have, but did not, establish an age cut off for SIJS petitioners as it did with the INA s adoption provision, which only extends federal benefits to those persons adopted before their 16th birthday even if States authorize adoptions of older children. The SIJS provision expressly defers to state court determinations and does not authorize the Department of Homeland Security ( DHS ) to set age limits other than those set by the States themselves. Indeed, USCIS has long acknowledged this understanding of the SIJS provision in its implementing regulations, its adjudications, and its guidance documents. This reading is also consistent with the Supreme Court s holding that family law matters are the exclusive province of state courts into which the Federal government cannot insert itself. Finally, the TVPRA builds on statutory contexts in which Congress has recognized the benefits of foster care for persons aged 18 through 20. For these reasons, the Court should grant Plaintiffs motion and issue the requested preliminary injunction. 2

9 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 7 of 17 ARGUMENT I. THE TVPRA EXPANDED ON THE SIJS PROVISION S LONGSTANDING DEFERENCE TO STATE COURTS. A. Since its Creation, the SIJS Provision Has Deferred to State Courts. The SIJS provision of the INA recognized from the very beginning that the States and not the Federal Government possessed the requisite expertise and systems in place to make determinations about the viability of family relationships and the best interests of children. Congress created the SIJS provision in the Immigration and Nationality Act of See Pub. L. No , 153, 104 Stat (1990). Its original text provided special immigrant status to: [A]n immigrant (i) who has been declared dependent on a juvenile court located in the United States and has been deemed eligible by that court for long-term foster care, and (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.... Id. At the time, the former Immigration and Naturalization Service ( INS and now, for the purposes relevant here, USCIS) defined the term juvenile court to mean a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. 8 C.F.R (a) (1993) (emphasis added). Of course, Congress had deferred to state courts ipso facto by its choice of the term juvenile court in the 1990 SIJS provision, as there are no federal juvenile courts. Rather than providing authority to the INS to make best interests of the child determinations, Congress elected to defer to the expertise of the States in this domestic relations matter, a traditional domain of state control. Indeed, when implementing the SIJS provision, the INS acknowledged that it lacked the expertise or time to make such determinations: it would be both impractical and inappropriate for the Service to routinely readjudicate judicial or social 3

10 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 8 of 17 service agency administrative determinations as to the juvenile s best interest. See Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, Final Rule, Supplementary Information, 58 Fed. Reg. 42,843, 42,847 (Aug. 12, 1993). Accordingly, immigration authorities rightly deferred to state juvenile courts, as the SIJS provision was the first time that Congress had incorporated the best interests of the child standard into the INA or any other immigration law. See Bridgette A. Carr, Incorporating A Best Interests of the Child Approach into Immigration Law and Procedure, 12 YALE HUM.RTS.&DEV. L.J. 120, 136, 139 (2009). In 1997, Congress amended the SIJS provision to, inter alia, add a requirement that the INS consent to the relief. Appropriations Act, Pub. L. No , 113, 111 Stat. 2440, 2469 (1997). As amended, the 1997 SIJS provision provided status to: [A]n 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.... Id. (emphasis added). Congress in 1997 intend[ed] that the involvement of the Attorney General in the new consent prong of the SIJS provision be for the purposes of determining special immigrant juvenile status and not for making determinations of dependency status, which remained the exclusive province of state juvenile courts. See H.R. Rep. No at 130, 1997 U.S.C.C.A.N. 2941, 2981 (1997). 4

11 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 9 of 17 B. The TVPRA Expanded on the SIJS Provision s Deference to the States. The TVPRA amendments to the SIJS provision reinforced Congress s approach of deferring to state juvenile court decisions concerning dependency, parental reunification, and the best interests of the child. As amended by the TVPRA in 2008, the SIJS provision now provides status to: [A]n 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, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with one or both of the immigrants parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (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 Secretary of Homeland Security consents to the grant of special immigrant juvenile status.... Pub. L. No at 235(d)(1). Section 235(d)(1)-(2) of the TVPRA sought to better dovetail federal law with the broad array of family law schemes and systems found in the 50 States and various U.S. territories. Congress did this by broadening the criteria for SIJS protection including by adding alternate criteria in some cases to better account for the different ways in which the many States handled these matters. First, the TVPRA eliminated the requirement that the state court deem[] the juvenile eligible... for long-term foster care due to abuse, neglect, or abandonment, see 8 U.S.C. 1101(a)(27)(J)(i), and replaced it with a requirement that reunification with 1 or both of the immigrant s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. Id. at 1101(a)(27)(J)(i). Second, the TVPRA expanded eligibility from those juveniles whom a juvenile court located in the United States... has legally committed to, or placed under the custody of, an agency or department of a State, to include those juveniles 5

12 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 10 of 17 committed to an individual or entity appointed by a State or juvenile court U.S.C. 1101(a)(27)(J)(i). Both of these changes demonstrate that Congress did not intend to limit the types of State court best interests determinations that could serve as a basis for granting SIJS relief. Rather, Congress sought to make federal law more deferential to state law, in order to better capture the existing state court procedures of the various States and thus further benefit from their expertise. For instance, in the area of family law, the phrase long-term foster case in the pre-tvpra SIJS provision did not accurately describe many States support systems for abused, abandoned, or neglected juveniles. Florida in 2006 used the term guardian rather than the terms foster care or dependent that appeared in the pre-tvpra SIJS provision. See FLA.STAT.ANN (47) (2006). The TVPRA s elimination of the long-term foster care requirement expanded the plain text of the SIJS provision to ensure that the statute did not exclude abused, abandoned, or neglected children in states like Florida. As such, the text of the current SIJS provision, as it now reads after the TVPRA, more accurately captures the various ways in which state juvenile courts make determinations about vulnerable juveniles. C. The TVPRA Deferred on the Question of a Petitioner s Age. Likewise, the TVPRA deferred to state law with respect to the age at which the state courts would lose jurisdiction over juveniles for the purposes of making dependency determinations, establishing guardianships, or making foster care placements. Congress could have[] but did not establish an age cut off for SIJS petitioners as it did with adoptions under the INA. See Li v. Renaud, 654 F.3d 376, 383 (2d Cir. 2011); 8 U.S.C. 1101(b)(1)(E)(i) (stating that for adoptees seeking immigration benefits, [t]he term child means... a child adopted while under the age of sixteen years... ). Rather than codifying a specific age limit in federal 6

13 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 11 of 17 law as it had done with adoptions, Congress chose to make SIJS available to the classes of individuals subject to juvenile court jurisdiction, as determined by state law. See 8 U.S.C. 1101(a)(27(J)(i). State courts make dependency and custody determinations, and the SIJS provision instructs USCIS to accept the determinations for which state law provides jurisdiction. Other statutes demonstrate Congress s deference to state determinations as to the age at which the state no longer considers individuals to be juveniles. In 2008, Congress enacted The Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L , 122 Stat (Oct. 7, 2008), which defined the term child to include an individual... who has not attained 19, 20, or 21 years of age, as the State may elect[.] 42 U.S.C. 675(8)(B)(iii). This legislation encouraged States to expand foster care systems for individuals up until the age of 21 by offering Title IV-E reimbursement for programs to allow youth to remain in, or return to, foster care after they reach the age of 18 and through the age of 21. See, e.g., 42 U.S.C Congress recognized that foster care for persons aged 18 through 20 permits them to improve their educational opportunity, access healthcare including mental health services, experience less economic hardship, and avoid involvement in the criminal justice system. See Children who Age out of the Foster Care System: Hearing before the Subcomm. on Income Security & Fam. Support of the Comm. on Ways and Means at 2, H.R., 110th Cong. 3 (2007). Likewise, in the 2001 Patriot Act, Congress extended the eligibility of children who had sought adjustment of status before September 11, 2001, for a certain amount of time after their 21st birthday. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No , 424, 115 Stat. 272 (Oct. 26, 2001). 7

14 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 12 of 17 These congressional efforts apart from the SIJS provision itself demonstrate Congress s general commitment to affording persons aged 18 through 20 the full scope of federal benefits available under the INA. II. NO REASONABLE READING OF THE TVPRA PERMITS DEVIATING FROM THAT DEFERENCE. A. Domestic Relations Are the Traditional Domain of State Courts. The TVPRA did not deviate from Congress s longstanding deference to state courts on matters involving family law. The Supreme Court has recognized for well over a century that federalism principles dictate that domestic relations matters such as dependency, parental reunification, and the best interests of the child are the exclusive province of state courts into which the Federal government cannot insert itself. In 1890, the Supreme Court held that [t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States. In re Burrus, 136 U.S. 586, (1890). In 1958, the Supreme Court reiterated that [t]he Federal tribunals can have no power to control the duties or the habits of the different members of private families in their domestic intercourse, and [t]his power belongs exclusively to the particular communities of which those families form parts[.] Barber v. Barber, 62 U.S. 582, 602 (1858). In 2008, the Supreme Court recognized that state courts are more eminently suited to domestic relations issues than are federal courts, which lack close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony and child custody decrees. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). Most recently in 2013, the Supreme Court observed that the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. United States v. Windsor, 570 U.S. 744, 767 (2013). 8

15 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 13 of 17 This remains the case even when domestic relations matters intersect with federal law, including the INA. Although the Constitution commits to the federal legislature the power [t]o establish an uniform Rule of Naturalization[,]... it has long been a hallmark of our federalism principles that full authority over domestic-relations matters resides not in the national government, but in the several States. Ojo v. Lynch, 813 F.3d 533, 540 (4th Cir. 2016) (quoting U.S. CONST. art. I, 8, cl. 4). It is not surprising, then, that the federal courts might look suspiciously upon a federal agency that treads on a traditional judicial domain of the various States. Id. The INA s marriage provision demonstrates that Congress knows how to defer to state courts despite its plenary power over immigration. The marriage provision does not define the words marriage or spouse except to exclude unconsummated proxy marriages. See 8 U.S.C. 1101(a)(35). Congress chose to leave those matters to state courts, just as it did in the SIJS provision with respect to dependency, parental reunification, and the best interests of the child. The INA s marriage provision stands in contrast to the its adoption provision, 8 U.S.C. 1101(b)(1)(E)(i), which only extends federal benefits to those persons adopted before their 16th birthday, even if States authorize adoptions of older children. Id. Here, however, Congress expressly deferred to state court determinations and did not authorize DHS to set limits other than those set by the States themselves. B. Congress Offered No Clear Indication of its Intent to Authorize DHS to Prohibit Certain Types of Best Interest Determinations from Serving as a Basis for SIJS Relief. No statute enacting or altering the SIJS provision contains a clear indication of Congress s intent to permit the Executive Branch to sua sponte impose limits on the types of state court best interests proceedings that may qualify for SIJS. To the contrary, the SIJS 9

16 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 14 of 17 provision itself has always deferred to the States to set those limits and the TVPRA did nothing but expand upon that deference. Far from authorizing the Executive Branch to impose limits on what state proceedings qualify for SIJS, the TVPRA relaxed the long-term foster care requirement and broadened the criteria for SIJS protection. The revised SIJS provision encompasses more, not less, state juvenile court proceedings as predicates for a federal SIJS benefit. With that change, Congress intended the Executive Branch to better respect the varied types of state proceedings. 1 USCIS has long acknowledged that State law governs which proceedings qualify for SIJS in its regulations implementing the SIJS provision, its adjudications, and its guidance documents. 1 Congress did not intend DHS s consent authority under 8 U.S.C. 1101(a)(27)(J)(iii) to empower DHS to sua sponte set limits on the types of state court proceedings that would qualify for a federal SIJS benefit. Instead, the TVPRA watered-down DHS s consent authority by striking the pre-tvpra requirement that the Attorney General expressly consent[] to the dependency order serving as a precondition to the grant of special immigrant juvenile status. See 8 U.S.C. 1101(a)(27)(J)(i) (emphasis added). Courts correctly interpret DHS s consent authority narrowly. For example, DHS cannot withhold its consent to an otherwise meritorious SIJS petitioner if the petitioner is detained. See M.B. v. Quarantillo, 301 F.3d 109, 113 (3d Cir. 2002). In a non-detained case, the Fourth Circuit recently found DHS s consent authority extends to verify[ing] what facts th[e state] court relied on to support its conclusion in favor of dependency. Reyes v. Cissna, No , 2018 WL , at *5 (4th Cir. Apr. 12, 2018), reh g granted (June 8, 2018); see also Budhathoki v. Dep't of Homeland Sec., 220 F. Supp. 3d 778, (W.D. Tex. 2016) (consent limited to examining a reasonable basis for the juvenile court s jurisdictional and dependency findings ). DHS can perform these inquiries verifying facts, the basis for jurisdiction, and the lack of fraud by examining only the four corners of the petitioner s state dependency determination. But DHS cannot place limits on the types of State juvenile court proceedings that may serve as a predicate for SIJS when Congress itself defined the universe of valid proceedings through State law. To permit DHS to review or readjudicate valid state juvenile court orders for persons aged 18 through 20 would seriously frustrate both separation of powers and the federalism principles at the heart of the SIJS provision. Congress reasonably designed the specific consent provision to avoid having immigration officials becoming involved in child welfare decisions, which it reserved for state courts. Perez-Olano v. Gonzalez, No. CV DDPRZX, 2008 WL , at *3 (C.D. Cal. Feb. 5, 2008). The Court therefore should find that DHS s consent authority, which Congress intended to weaken with the TVPRA, does not undermine the SIJS provision s deference to state courts. 10

17 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 15 of 17 Examining how USCIS as the agency implementing the SIJS provision understands Congress s language is helpful for understanding what, if any, clear indication Congress sent. One USCIS regulation states that the juvenile must ha[ve] been declared dependent upon a juvenile court... in accordance with state law governing such declarations of dependency, and have been deemed eligible by the juvenile court for long-term foster care. 8 C.F.R (c)(3)-(4). Another requires the juvenile to be under twenty-one years of age, Id. at (c)(1), which presumes the jurisdiction of state juvenile courts to issue dependency orders for individuals over the age of 18. In addition, USCIS s own administrative judges adjudicating SIJS petitions found that the SIJS provision does not permit USCIS to go behind the [juvenile] court s order to make [its] own determination under state child welfare law. See, e.g., In re: Self-Petitioner, 2015 WL , at *3 (DHS AAO May 7, 2015). USCIS s guidance documents also manifest the same understanding. USCIS declared in a 2004 memorandum before Congress in 2008 expanded deference to state courts in the TVPRA that the adjudicator of SIJS should generally not second-guess the court rulings or question whether the court s order was properly issued. USCIS Interoffice Memorandum from William R. Yates, Assoc. Dir. for Operations, to Reg. Dirs. & Dist. Dirs. at 4 5 (May 27, 2004), available at Memoranda/Archives% /2004/sij_memo_ pdf ( Yates Memo ). USCIS s policy manual also states that it relies on the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if the child was subjected to abuse, neglect, abandonment, or a similar basis under state law. See USCIS Policy Manual, Vol. 6, Part J. Ch. 2(d)(5) (May 15, 2008), available at HTML/PolicyManual-CVolume6-PartJ-Chapter2.html. 11

18 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 16 of 17 As such, nothing in the language of the SIJS provision indicates even remote, let alone clear, direction from Congress that the Executive Branch can impose limits on the types of state court actions that may lead to a federal SIJS benefit. The Court can have confidence that the SIJS provision reflects Congress s approach of deferring to state juvenile court decisions, under jurisdiction determined by state law, concerning dependency, parental reunification, and the best interests of the child. 12

19 Case 1:18-cv JGK Document 34-1 Filed 06/28/18 Page 17 of 17 CONCLUSION For the reasons set forth above, Congress intended the TVPRA s amendments to the SIJS provision to broaden the criteria for SIJS protection to better dovetail federal law with the broad array of family law schemes and systems found in the States. Congress did not intend to empower the Executive Branch to sua sponte set limits on the types of state court proceedings that would qualify for a federal SIJS benefit. The Court should grant Plaintiffs motion and issue the requested preliminary injunction. DATED: June 28, 2018 Respectfully submitted, /s/ Kaitlin Dabbert Kaitlin Dabbert (SDNY No ) Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY Telephone: Facsimile: kdabbert@akingump.com Steven H. Schulman (pro hac vice forthcoming) Geoffrey J. Derrick (pro hac vice forthcoming) Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C Telephone: Facsimile: sschulman@akingump.com gderrick@akingump.com Attorneys for Proposed Amici Curiae Members of Congress 13

20 Case 1:18-cv JGK Document 34-2 Filed 06/28/18 Page 1 of 1 APPENDIX LIST OF MEMBERS OF CONGRESS AMICI Clarke, Yvette D. Crowley, Joe Engel, Eliot L. Espaillat, Adriano Jefferies, Hakeem Lofgren, Zoe Representative of California Maloney, Carolyn B. Meeks, Gregory Meng, Grace Nadler, Jerrold Rice, Kathleen M. Roybal-Allard, Lucille Representative of California Serrano, José E. Suozzi, Thomas R. Velázquez, Nydia M.

21 Case 1:18-cv JGK Document 34-3 Filed 06/28/18 Page 1 of 1 CERTIFICATE OF SERVICE I, Kaitlin Dabbert, declare under penalty of perjury that on June 28, 2018, I caused the foregoing documents to be electronically filed with the Court s CM/ECF Filing System, which will send a Notice of Electronic Filing to all parties of record who are registered with CM/ECF. /s/ Kaitlin Dabbert Kaitlin Dabbert (SDNY No ) Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY Telephone: Facsimile: kdabbert@akingump.com Steven H. Schulman (pro hac vice forthcoming) Geoffrey J. Derrick (pro hac vice forthcoming) Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C Telephone: Facsimile: sschulman@akingump.com gderrick@akingump.com Attorneys for Proposed Amici Curiae Members of Congress