Few Paths after a Long Journey: The Need for a Juvenile Immigration System
Abstract
:1. Introduction
2. When an Unaccompanied Child Arrives at the U.S. Border
- Whether the UAC has not “been a victim of a severe form of trafficking, and there is no credible evidence” that the child will be in danger of being trafficked if returned to Mexico;
- Whether the UAC is not afraid to return to Mexico due to a “credible fear of persecution;”
- Whether or not the UAC can independently decide to “withdraw [his or her] application for admission” to the United States.30
2.1. Unaccompanied Children and the Asylum Process
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not have a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
- All members of the applicant’s group possess an immutable characteristic, or possess a characteristic they should not be required to change;
- The social group is particularized and perceived by the broader community as a distinct group in the applicant’s society;
- The applicant’s group does in fact have social distinction—beyond persecution in itself.55
2.2. Special Immigrant Juvenile Status
2.2.1. Special Immigrant Juvenile Status in Numbers
2.2.2. The Special Immigrant Juvenile Status Petition Process
- The child must have been declared dependent on a juvenile court located in the U.S.
- Reunification with one or both of the child’s parents is not viable due to abuse, abandonment, neglect, or similar basis under state law.
- It is found, either in administrative or judicial proceedings, that it would not be in the child’s best interests to be returned to the child’s parents’ previous country of nationality or last habitual residence.75
2.2.3. A History of Serving Unaccompanied Children
(J) an 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 interests to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; except that no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.
- They are under twenty-one years of age;
- They are unmarried;
- They have been declared dependent on a U.S. juvenile court system, according to state law;
- They are eligible for long-term foster care;
2.2.4. Special Immigrant Juvenile Status Practice
- That the child is dependent on the court or grant custody to a particular person, state agency, or entity;103
- That reunification with one or both parents is not viable due to abuse, neglect, or abandonment;104
- That it is not in the UAC’s best interests to be returned to his or her country of nationality or that of his or her parents.105
3. The Inadequacy of Available Relief for Unaccompanied Children
3.1. Unaccompanied Children Do Not Have a Recognized Due Process Right to Appointed Counsel Despite the Circumstances
- The private interest that will be affected by the official action;
- The risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards;
- The government’s interest, including the function involved, and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.114
- Whether the issues involved in the civil litigation were complex or straightforward;
- Whether the other party was represented by counsel;
- The existence of substitute procedural safeguards.117
3.2. Inherent Unfairness Caused by SIJS Reliance on State Court Proceedings
3.2.1. Age
3.2.2. State Court Treatment of the “Abuse, Abandonment and Neglect” Standard
3.2.3. “One or Both”
3.2.4. State Court Inconsistency When Asked to Issue Orders Having Implications for Immigration Proceedings
At the time of the hearing, the juveniles described their living conditions in their home country prior to their arrival in the United States. Both [the juveniles’ attorney] and [the attorney representing DHHS] argued persuasively it is in the best interests of the juveniles that they remain in this country. The Court is convinced that is true. However, the Court is equally convinced there are, in all probability, tens if not hundreds of thousands of people who are here illegally or who would like to come to the United States because they would be better off in this country. In addition, the record is devoid of any credible evidence that their mother abused, neglected, or abandoned the juveniles. First of all, the mother brought them here illegally presumably for a better life. Secondly, a conscious decision was made by this family to leave the children in the care and custody of [OJS] when the mother was deported. It is incongruous for the guardian ad litem or [DHHS] to argue the mother abused and neglected these children by leaving them here in the United States and at the same time argue that by doing so, they were being afforded a better life with greater opportunity.138
4. A Federal Juvenile Immigration System
4.1. The Federal Criminal Justice System and How to Better Serve Unaccompanied Children Who Arrive at the U.S. Border
4.2. The Origins of a Federal Juvenile Justice System
4.3. Juvenile Court Proceedings and the Federal Juvenile Delinquency Act
5. Elements of a Federal Juvenile Immigration System
5.1. Establishing Immigration Court Proceedings That Recognize the Best Interests of Unaccompanied Children
Right to Counsel
5.2. Establishing a Uniform Criterion for Determining SIJS Eligibility
5.2.1. Providing Intentional Review of the Child’s Best Interests as Part of the Immigration Proceeding
5.2.2. Guardian Ad Litem
6. Conclusions
Funding
Data Availability Statement
Conflicts of Interest
References
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1 | An “unaccompanied alien child” is a child who “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2). |
2 | Facts and Figures: Deportations of Unaccompanied Migrant Children by the USA and Mexico, Amnesty Int’l. (11 June 2021), https://www.amnesty.org/en/latest/news/2021/06/facts-figures-deportations-children-usa-mexico/ (accessed on 2 June 2022). |
3 | Id. |
4 | Immigration policy is among the few policies that are widely criticized regardless of the political point of view. Both the Cato Institute, seen as a conservative thinktank, and the Brookings Institute, equally liberal in view, have described the system as “broken” and suggested wide overhauls across all aspects. See Bier (2018); Bahar (2020). |
5 | The so-called “Northern Triangle.” The widespread violence and lack of a functional police system in these states is well documented. Honduras has two cities, Tegucigalpa and San Pedro Sula, which have ranked as the cities with the highest and second highest murder rates of all cities in the world. The murder rate in San Pedro Sula, Honduras, the country’s second largest city, is the highest of any city in the world. See Human Rts. Watch (2019). El Salvador experiences significant gang-related crime and political instability and has been described as a “failed state.” Ghitis (2018). |
6 | The journey has been movingly described in Enrique’s Journey, which tells the story of a Honduran boy looking for his mother in the United States. The mother left her home in Honduras to find work in the U.S. in order to provide food and shelter for her starving family. See generally Sonia Nazario, Enrique’s Journey (2006). |
7 | “…(2) the term “unaccompanied alien child” means a child who—(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2). |
8 | See infra at I.a. |
9 | Inconsistencies among the United States’ international obligations to UACs are beyond the scope of this paper, which focuses on the internal processes available to UACs once they arrive under the U.S. immigration system. It may indeed be the case that the United States practices are inconsistent with international obligations; see e.g., “The U.S. Approach to Asylum: Examining the Disconnection Between Domestic Law Policy and International Law”, 36 (4) Jrn’l of Immigration, Asylum, and Nationality Law 300–328, which this paper only pays passing attention to for context. |
10 | Id. |
11 | See Reno v. Flores, 507 U.S. 292, 315 (1993) (holding that unaccompanied children retained on suspicion of being deportable may be released only to a parent, legal guardian, or other related adult). The following settlement in the case is known as the Flores Settlement and governs the treatment of unaccompanied children detained by the DHS and related agencies. |
12 | Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17, 1997). |
13 | The INA provides a separate removal process for certain arriving aliens that substantially differ from formal removal proceedings. Known as expedited removal, an arriving alien may be removed from the United States without formal proceedings if the alien does not have lawful entry documents or has attempted to enter the U.S. by committing fraud. INA § 235(b)(1). In 2019, the DHS exercised its authority to implement expedited removal to include all aliens physically present in the United States for less than two years, when those aliens lacked entry documents or procured entry by committing fraud or misrepresentation. See Smith (2021). |
14 | Pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), arriving aliens subject to expedited removal must be given a “credible fear” screening by Custom and Board Protection. During this screening, the officer determines if the alien has credible fear of persecution or harm if returned to their country of nationality. INA § 235(b)(1)(B). |
15 | See INA § 235(b)(1)(B)(iii)(III). |
16 | The Notice to Appear (NTA) is a document that instructs an individual to appear before an immigration judge and serves as the first step in starting removal proceedings. The NTA is also known as Form I-862 and is the official charging document filed by the DHS. |
17 | There are more than 200 short-term detention facilities that are used to detain unaccompanied children until an appropriate placement is found. Under the Flores Settlement, detained children are to be released from detention as expeditiously as possible and placed in an order of preferences beginning with a family member, an acceptable guardian, or foster home. See Office of Inspector General (2021). |
18 | Id. |
19 | The ORR is designated to take physical custody of unaccompanied children, although ICE is responsible transferring detained children from CBP to the ORR. See 8 U.S.C. § 1232(B)(1)(a), (b), (c)(3). |
20 | See 8 U.S.C. § 1232 (b)(2). |
21 | See 8 U.S.C. § 1232 ©(2). |
22 | See 8 U.S.C. § 1158. This statute recognizes the original jurisdiction of USCIS. |
23 | See 8 U.S.C. § 1229. |
24 | See 8 U.S.C. § 1231. |
25 | See 22 U.S.C. § 7102 et seq. |
26 | See Zak, supra note 14. |
27 | See 8 U.S.C. § 1232. |
28 | Id. |
29 | |
30 | Accurately assessing whether a child can independently withdraw their application for admission to the U.S. requires specialized training. UACs encounter CBP agents after weeks or months of traumatic travel. Interviews often face language barriers and are shaped by the UAC’s trauma experience. Yet, CBP agents are not trained in trauma-informed interview techniques. |
31 | CBP’s role in the process of screening UACs for repatriation is replete with conflict, as has been noted. With a core mission to serve as “guardians of our Nation’s borders,” CBP’s focus is first to return arriving aliens away from the United States. In the case of UACs, this leads to expedited removal for nearly all arriving Mexican UACs, according to Appleseed. The TVPRA’s provisions that allow a UAC from a contiguous country to remain in the United States, yet subject to normal removal procedures, are seemingly ignored. In addition, Appleseed found that CBP officers regularly misstated the rights of UACs under the TVPRA and intimidated children to return to Mexico. See Betsy Cavendish and Maru Crazar, Children at the Border: The Screening, Protection and Repatriation of Unaccompanied Mexican Minors (2011). |
32 | A person who is in removal proceedings may apply for asylum defensively by filing an application with the immigration judge, at Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice. This is referred to as “Defensive asylum.” |
33 | See section I.b. infra. |
34 | Asylum application approval rates by the immigration court vary from as low as 10% to as high as 80% (Judge-by-Judge Asylum Decisions in Immigration Courts FY 2013–2019, TRAC Immig., https://trac.syr.edu/immigration/reports/judge2018/denialrates.html (last visited 20 March 2022)). Affirmative asylum claims have a 10% approval rating. If filed as either a defensive or affirmative claim for asylum, the likelihood of success on the asylum claim is very limited. |
35 | The difficulties and challenges of this process are only made worse by the fact that asylees, including children, seeking asylum in the United States have no right to an attorney as they move through the process. UACs, the most vulnerable group of asylum seekers, have no right to have an attorney appointed to represent them, no matter their age or the circumstances of their claim. See infra, Section II. The Inadequacy of Available Relief for Unaccompanied Children. |
36 | In 2016, the approval rate for asylum petitions overall in the United States was approximately 28%. Zak, supra note 14. For UACs, one example showed a Houston (Texas) asylum division granting asylum to only 10.9% of UACs in 2018. Wu (2018). The low success rate of asylum claims in the United States can be influenced by several factors, including the strict legal standards for granting asylum. To receive a grant of asylum, petitioners must demonstrate a well-founded fear of persecution based on specific grounds. Meeting these standards requires strong and compelling evidence, which can be challenging for many asylum seekers to obtain. In addition, the U.S. immigration system faces significant backlogs, resulting in delays in processing asylum claims. This backlog can be attributed to a combination of factors, including limited resources, understaffing, and a high volume of asylum applications. The prolonged wait times can impact the efficiency and effectiveness of the asylum process. Finally, asylum officers and immigration judges assess the credibility of an asylum claimant’s testimony and evidence. If there are inconsistencies or doubts regarding the credibility of the applicant, it can negatively impact the chances of a successful asylum claim, thus implicating the discretionary decision-making role of immigration officers and judges. Such judges have the authority to exercise judgment based on their evaluation of the facts and circumstances of each case, resulting in varying outcomes, and decisions may be influenced by individual perspectives, biases, or interpretation of the law. See generally Refugee Roulette: Disparities in Asylum Adjudication, Ramji-Nogales et al. (2007); see also Immigration Judges and U.S. Asylum Policy, Miller et al. (2014). |
37 | Children present an interesting situation in asylum because they largely derive the circumstances of the refugee status from their parents and families. For example, most children have yet to engage in the kinds of activities that result in being politically persecuted. Goldberg and Sanders (2010); see also UNHCR (1951); see also Sharma-Crawford (2018). |
38 | The United States is a signatory to the United Nations 1951 Convention and the 1967 Protocol defining a refugee and created a legal obligation to provide protection to those who qualify as refugees. The 1951 Refugee Convention, supra note 41. |
39 | The difference between refugee and asylum seeker is where and how the determination that an individual faces a well-founded fear is made. In each case, the individual has endured persecution in their home country, and a refugee and an asylee are both individuals who have left their home countries due to fear of persecution or harm, but they differ in terms of their legal status and the process by which they seek protection in another country. A refugee is a person who has fled their home country due to a well-founded fear of persecution based on factors such as their race, religion, nationality, political opinion, or membership in a particular social group. They are typically outside their home country and unable or unwilling to return due to the fear of persecution. Refugees are protected under international law, specifically the 1951 United Nations Convention Relating to the Status of Refugees. An asylee, on the other hand, is a person who meets the definition of a refugee but has already reached the territory of the country where they seek protection. They apply for asylum within that country and undergo a legal process to prove their eligibility for protection. If their application is approved, they are granted asylum and become recognized as asylees. Refugees typically apply for protection from outside their home country through designated processes established by international organizations or countries. They may register with the United Nations High Commissioner for Refugees (UNHCR) or go through the resettlement process facilitated by countries that have agreed to accept refugees. Asylees, already present in the country where they seek protection, apply for asylum by submitting an application to the respective government authorities. They must demonstrate a well-founded fear of persecution and meet the specific legal criteria established by the country’s laws for granting asylum. See 8 U.S.C. § 1101. |
40 | |
41 | Martinez-Perez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018). |
42 | Id. |
43 | There are two types of asylum claims, depending on where and when the claim is filed. First is the “affirmative claim,” which requires an applicant to seek asylum either at a port of entry or within one-year of entry in the United States while maintaining legal status in the United States. Second is the “defensive claim”, which may be brought before the immigration court during removal proceedings. The TVPRA enabled UACs to file an affirmative claim even when a UAC is in proceedings, thereby providing the child with a non-adversarial hearing with a USCIS asylum officer. See Saleh v. Garland, 857 F. App’x 933, 935 (9th Cir. 2021); Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006). |
44 | Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006); Martinez-Perez v. Sessions, 897 F.3d 33 (1st Cir. 2018). |
45 | Carvalho-Frois v. Holder, 667 F.3d 69, 71 (1st Cir. 2012) |
46 | See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No. 109–13, 119 Stat. 231 (2005). |
47 | 24 I&N Dec. 208, 211, 214 (BIA 2007). |
48 | In addition to establishing state action, the applicant must further show that he or she will not be able to avoid persecution by relocating to another part of his or her home country, essentially moving within the borders of the home country to a safer location. See In re J-B-N- and S-M-, 24 I&N Dec. 208, 208 (BIA 2007). |
49 | The Real ID Act of 2005, Pub.L. 109–13, 119 Stat. 302 (2005); In re J-B-N- and S-M-, 24 I&N Dec. 208, 208 (BIA 2007). |
50 | For purposes of establishing a ground for asylum, an applicant must show that they are someone who has been “forced to flee his or her country because of persecution, war, or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.” See UNHCR (n.d.a). Furthermore, fear “cannot be incidental, tangential, superficial, or subordinate to other reasons for the harm,” and must be proven by substantial evidence. See, e.g., Carvalho-Frois v. Holder, 667 F.3d 69, 73 (1st Cir. 2012); Wright (2014). |
51 | See Larios v. Holder, 608 F.3d 105 (1st Cir. 2010). |
52 | 8 C.F.R. 1208.13. “Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. (1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant’s country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section. If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded”. Id. |
53 | Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). In addition to an immutable characteristic, asylum applicants are required to show whether the particular social group may be described particularly and whether the group is sufficiently distinct to be socially recognized. See Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). |
54 | Id. |
55 | In re R.A., Interim Decision #3403; Appeals Process After a Denied Asylum Application, AllLaw, https://www.alllaw.com/articles/nolo/us-immigration/appeals-process-denied-asylum-application.html (last visited 20 March 2022). |
56 | See Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012) This case considered BIA denial of an asylum claim filed by a Honduran man who claimed to be a member of a particular social group of young men who did not want to join criminal gangs. The court rejected the claimed social group of “young Honduran males who refused to join gangs, had notified the authority of gang harassment tactics, and had an identifiable tormentor within the gang.” Id. |
57 | Congress passed significant immigration reforms post 9/11 that reduced the likelihood of many qualified applicants receiving asylum. In addition, the BIA’s standard of review for asylum claims was amended in 2002 to allow higher deference to be given to immigration court findings, make affirmances without opinion possible, and limiting de novo review. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,888 (26 August 2002) (codified at 8 C.F.R. pt. 3). |
58 | Matters before the Federal Circuit Courts of Appeal are typically appealed from decisions of the BIA. An appeal to a U.S. Court of Appeal must follow strict deadlines and procedures. Currently, there are 13 U.S. Courts of Appeal across the country. Section 242 of the Immigration and Nationality Act (INA) governs judicial review of exclusion, deportation, and removal proceedings. According to this statute, a petition for review is to be filed within 30 days of the date of the final order. See 8 U.S.C. § 1252(e)(4). |
59 | SIJS was original created by Congress in 1990 as part of the Immigration and Nationality Act. The Act created this category as a way to assist foreign born children who have been abused, neglected, or abandoned. See Krogstad and Gonzalez-Barrera (2014). |
60 | Difficulties created by such reliance are discussed in section I.b.i. infra; U.S. Customs & Border Prot (n.d.). |
61 | Kandel, supra note 35. |
62 | Id. |
63 | Id. |
64 | Id. |
65 | Id. |
66 | Number of I 360 Petitions for Special Immigrant with a Classification of Special Immigrant Juvenile (SJV) by Fiscal Year, Quarter and Case Status, U.S. Citizenship and Immigr. Servs., https://www.uscis.gov/sites/default/files/document/reports/I360_sij_performancedata_fy2020_qtr4.pdf (accessed on 2 June 2022). |
67 | Special Immigrant Juvenile Petitions, 80 Fed. Reg. 13066, 13101 (8 March 2022) (to be codified at 8 C.F.R. 204, 205, and 245), https://www.govinfo.gov/content/pkg/FR-2022-03-08/pdf/2022-04698.pdf (accessed on 2 June 2022). |
68 | Id.; 8 U.S.C. § 1101(a)(27)(J); see, e.g., R.F.M. v. Nielsen, 365 F. Supp. 3d 350, 362 (S.D.N.Y. 2019). |
69 | An asylum applicant is said to have pursued asylum “defensively” when he or she began his or her asylum application after deportation proceedings had already begun. In contrast, applicants who apply for asylum before being placed in deportation proceedings are considered to have pursued asylum “affirmatively.” UNHCR (n.d.b). Approval rates for defensive asylees were 7% in 2018, compared with affirmative asylees’ 22% approval rate. Q2 Immigration Court Statistics for Fiscal Year 2018 (FY18), U.S. Dep’t. Just (2018) (hereinafter Defensive Asylum Statistics 2018). |
70 | Homeland Security Act of 2002, sections 471(a), 451(b), 462(c), Pub L. No 107–296, 116 Stat 2135 (25 November 2002); 8 U.S.C. § 204(a)(1)(G)(i). |
71 | See 8 U.S.C. § 1101(a)(27)(A)-(M). The classification of “special immigrant” includes thirteen sub-groups, including “an immigrant who has been declared dependent on a juvenile court”. Id. at § 1101(a)(27)(J)(i). |
72 | “Special Immigrant Juveniles” is defined at 8 U.S.C. § 1101(a)(27)(J), as clarified by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110–457, 122 Stat 5044 (2008). |
73 | Special immigrant status; certain aliens declared dependent on a juvenile court; revocation of approval of petitions; bona fide marriage exemption to marriage fraud amendments; adjustment of status. 58 Fed. Reg. 42839 (12 August 1993). |
74 | The statute requires that findings be made by a “juvenile court.” A “juvenile court” for purposes of SIJS classification is 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. § 204.11(a); Porter (2001); Immigration Act of 1990, Pub. L. 101–649, 104 Stat. 4978 (1990) (the 1990 SIJ statute); 8 U.S.C. § 1151 (green card numerical limits statute, with full list and description of amendments, including the 1990 amendment). |
75 | See 8 U.S.C. 1101(a)(27(J))(I), (II). |
76 | See 67 No. 48 Interpreter Releases 1469 (1990); Miguel Lawson and Marianne Grin, The Immigration Act of 1990, 33 Harv. Int’l. L. J. 255, n. 105 (1992); https://niwaplibrary.wcl.american.edu/wp-content/uploads/Appendix-B-SIJS-Legislative-History.pdf; 8 C.F.R. § 204.11(a). |
77 | See 8 C.F.R. § 204.11(d); USCIS generally defers to the state court’s determination on matters of state law and does no reweigh evidence or make independent factual determinations regarding abuse, abandonment, or neglect. USCIS Policy Manual, vol. 6 p.t. J ch.2 (A). |
78 | “alleviate[d] hardships experienced by some dependents of the United States juvenile courts by providing qualified aliens with the opportunity to apply for ... lawful permanent resident status, with the possibility of becoming citizens of the United States in the future.” 58 Fed. Reg. 42843, 42844 (12 August 1993). |
79 | Although lawmakers debated “numerical limits as to the worldwide level of immigration, limits for family-based immigration, and limits for employment-based immigrants,” Congress set no numerical limits for SIJS at the time it was passed. Amy Joseph et al. (2020). |
80 | Section 153(b) of the Act, entitled “Waiver of Grounds for Deportation,” providing that certain specified deportation grounds “shall not apply to a special immigrant described in section 101(a)(27)(J) based upon circumstances that exist[ed] before the date the alien was provided such special immigrant status.” Id.; Immigration Act of 1990, Pub. L. 101–649, § 153, 104 Stat. 4978 5005–06 (codified at 8 U.S.C. § 1101(a)(27)(J) (1991)). |
81 | “[N]o natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.” Immigration Act of 1990, Pub. L. 101–649, § 153(a)(3), 104 Stat. 4978 5005–06 (codified at 8 U.S.C. § 1101(a)(27)(J) (1991)). |
82 | “The undocumented alien child had to obtain three things from a state court with competent jurisdiction: a dependency order, a finding that the applicant is deemed eligible for long-term foster care, and a ruling that it is not in the child’s best interests to be returned to the home country.” Porter, supra note 81, at 444. |
83 | “There has been a tenfold increase in the number of children requesting SIJS status between FY 2005 and FY 2013. In terms of approvals, the numbers have gone from 73 in FY2005 to 3432 in FY 2013. While the data do not differentiate among those unauthorized children who arrived unaccompanied by their parents and those who were removed from their parents because of abuse, abandonment, or neglect, many observers point to the similarity in the spiking trends of both categories.” Ruth Ellen Wasem, Cong. Rsch. Serv., R43703, Special Immigrant Juveniles: In Brief Congressional Research Service 2 (2014), https://sgp.fas.org/crs/homesec/R43703.pdf (accessed on 2 June 2023). |
84 | Identified errors included, inter alia, concern that the program did not reach the youth it was intended to benefit and that many potential beneficiaries could not access SIJS’ benefits due to alternative basis for excludability, leaving many youths subject to removal even though they seemingly qualified for an SIJS Visa. Special immigrant status; certain aliens declared dependent on a juvenile court; bona fide marriage exemption to marriage fraud amendments. 56 Fed. Reg. 23207 (proposed 21 May 1991) (to be codified at 8 C.F.R. §§ 101, 103). |
85 | See The Miscellaneous and Technical Immigration and Nationality Amendments of 1991, Public Law 102–232, 105 Stat 1733 (1991). Congressional purpose for passing the 1991 Amendments to the SIJS program was prompted by the unintended barriers to SIJS serving as a way to “grant legal permanent resident status” to UACs. Joseph, supra note 86, at 278. |
86 | Following the 1993 Rule, the Immigration and Nationality Technical Corrections Act of 1994 further expanded SIJS eligibility from simply those youth who had been declared dependent on a juvenile court (and deemed eligible for long-term foster care) to those “whom such a court has legally committed to, or placed under the custody of, an agency or department of a State” (and deemed eligible for long-term foster care). Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103–416, 108 Stat. 4305 (1994). |
87 | A great deal of confusion related to the question of whether UACs who had been detained by INS could be subject to state court jurisdiction during custody proceedings. Ultimately, clarification was provided as part of the 1998 Appropriations Act, confirming that a UAC in INS custody would be treated as paroled for purposes of state court dependency determinations. See Joseph, supra note 86, at 284. |
88 | Memorandum by Thomas E. Cook, Acting Asst. Comm’r., Adjudications Div., Immigration and Naturalization Serv., U.S. Dep’t. of Justice (7 August 1998) (hereinafter 1998 Memo). |
89 | The 1999 Memorandum specified the following: “Evidence that a dependency order was issued on account of abuse, neglect, or abandonment, and that it would not be in the juvenile’s best interests to be removed from the United States is crucial to obtaining the Attorney General’s consent to the dependency order.” See Memorandum by Cook (1999). |
90 | 1998 Memo, supra note 95. |
91 | See infra section I.b.iii. |
92 | The state court order containing these findings, obtained in a family law court, is referred to here as the “predicate order.” |
93 | See, e.g., Immigr. Leg. Res. Ctr., Special Immigrant Juvenile Status (SIJS) Primer: How to Seek SIJS Findings in California Superior Courts 5 (such proceedings may be dependency, delinquency, guardianship, etc.). |
94 | See Joseph, supra note 86, at 313. |
95 | Using the Fed. R. Civ Proc, for example, a party may be served by any means reasonably calculated to give notice to the defendant. Fed R. Civ. Proc. 4(f)(1). For a respondent in another country, this might include perfecting service in the manner permitted by the other country’s laws, requesting “Letters rogatory”, obtaining personal service in the other country, or by “other means” if not precluded by court order or international agreement. See Fed. R. Civ. Proc. 4. |
96 | See, e.g., Nat’l Ctr. State Cts. et al., Guide for State Courts in Cases Involving Unaccompanied Immigrant Children 11 (2015), https://www.sji.gov/wp/wp-content/uploads/15-167_NCSC_UICGuide_FULL-web1.pdf (accessed on 2 June 2023). Several states have taken steps to address the challenges faced by immigrant youth as they seek SIJS predicate orders. For example, Maryland extended jurisdiction in custody cases to the age of 21 when SIJS is sought (Md. Code. Fam. Law 1-201(a) and (b)(10); California has authorized probate court to appoint guardians for immigrant youth up to the age of 20 when an SIJS predicate order is sought (Cal. Prob. 1501.1); see also N.Y. Fam Ct. Act § 661(a). State courts have found jurisdiction to hear SIJS proceedings up to the age of 21. See Recinos v. Escobar, 46 .E. 3d 60, 65 (Mass. 2016). |
97 | A juvenile court for SIJS purposes is defined as “a court located in the United States having jurisdiction under state law to make judicial decisions about the custody and care of juvenile.” 8 C.F.R. § 204.11(a). |
98 | These include divisions such as juvenile, family, probate, domestic relations, etc. U.S. State Cts (n.d.). |
99 | 8 U.S.C. § 1101(a)(27)(J). |
100 | See Porter, supra note 81, at 452. |
101 | Fed. R. Civ. Proc. 4(e). |
102 | Obtaining police reports and other government records from many countries can be very difficult or even impossible. Many areas do not issue birth records at the time of birth, for example, or police departments do not retain accurate records or make the records that are maintained publicly available. When records are available, they often need to be translated. In addition, public records from foreign jurisdictions require authentication, usually in the form of an apostille, which can take many weeks to obtain. See Ctr. for Gender and Refugee Stud., supra note 58, at 9. |
103 | INA § 101(a)(27)(J)(i). |
104 | Id. Despite requiring that “abuse, neglect or abandonment” be established, the INA does not define these terms. Instead, it relies on state law, which varies. State courts are to use the statutory, common law and other “similar basis under state law” to make the determination. Id. The abuse, neglect, and abandonment that prevents reunification may have occurred in either another country or the United States. Id. |
105 | The “best interests” determination is made under existing state law and, in most instances, is supported by the testimony, statement, and records regarding the UAC’s situation in their country of nationality and in the United States. INA § 101(a)(27)(J)(ii). |
106 | Zak, supra note 14. |
107 | See id. |
108 | This standard is stated in Lassiter v. Department of Social Services, wherein the Court ruled that it is “the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendment right to counsel in criminal cases, which triggers the right to appointed counsel.” 452 U.S. 18, 26 (1981) (establishing that “as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel”) (emphasis added). More recently, the Court emphasized that “no person may be imprisoned for any offense … unless he was represented by counsel at his trial.” Alabama v. Shelton, 535 U.S. 654, 664–65 (2002) (emphasis in original) (citing Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); see also Glover v. U.S., 531 U.S. 198, 203 (2001) (recognizing that “any amount of actual jail time has Sixth Amendment significance”). “The presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter, 452 U.S. at 26–27. |
109 | Gideon v. Wainwright, 372 U.S. 335, 343 (1963). |
110 | Gideon, 372 U.S. at 344. No indigent defendant whose liberty is at stake can be “assured a fair trial unless counsel is provided.” Id.; see also Shelton, 535 U.S. at 644–45 (recognizing right to counsel before a suspended sentence may be imposed); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (recognizing right to counsel if trial actually leads to imprisonment); Argersinger, 407 U.S. at 37 (1979) (recognizing right to counsel in any proceeding whether classified as a “petty, misdemeanor or felony” that results in imprisonment); see also Vitek v. Jones, 445 U.S. 480, 493–94 (1980) (right to counsel before being involuntarily committed). |
111 | “In order to assure “procedural justice for the child,” it is necessary that counsel be appointed as a matter of course whenever coercive action is a possibility, without requiring any affirmative choice by child or parent.” In re Gault, 387 U.S. 1 (1967) (holding that children have a due process right to the appointment of counsel during civil juvenile delinquency proceedings). |
112 | See Turner v. Rogers, 64 U.S. 431 (2011) (in which the Court details and applies the “distinct factors” that it “has previously found useful in deciding what specific safeguards––including a right to appointed counsel––the Constitution’s Due Process Clause requires in order to make civil proceedings fundamentally fair.”) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976). |
113 | Indeed, according to Westlaw, the case has been cited more than 56,000 times for this three-prong test. Matthews v. Eldridge, Citing References, Westlaw Edge, https://1.next.westlaw.com/Document/Ic1e7189c9c1e11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default) (accessed on 21 March 2022). |
114 | Mathews, 424 U.S. at 335. |
115 | Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 452 u.S. 18, 27 (1981) It should be noted that the Lassiter presumption is itself rebuttable. See C.J.L.G. v. Barr, 923 F.3d 622, 632 (9th Cir. 2019) (citing Lassiter, 452 U.S. at 31). |
116 | Various nonprofit organizations and legal aid groups offer pro bono (free) legal services to individuals who cannot afford an attorney. These organizations can provide legal advice and representation to individuals in immigration proceedings. |
117 | Turner, 564 U.S. at 446–48. In Turner, the Court addressed whether an individual facing civil contempt charges (that carried the threat of incarceration) always has a due process right to the appointment of counsel. See id at 448. Importantly, the Court concluded that under some circumstances, an individual facing these types of civil charge is entitled to the appointment of counsel, including in Mr. Turner’s case. Id. However, in the normal case, the opposing party would be a non-governmental entity, also unrepresented, i.e., the child’s mother seeking child support; thus, in this situation, neither party was entitled to appointed counsel. Id. |
118 | Id. at 449 (quoting Johnson v. Zerbst, 304 U.S. 458, 462–463 (1938)) (emphasis in original). |
119 | Id. (quoting Gagnon v. Scarpelli, 411 U.S. 778, 788 (1978)). |
120 | See CJLG, 923 F.3d. at 632 (applying the Mathews factors and calling for the appointment of counsel to juveniles in deportation/removal proceedings); see also Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1150 (9th Cir. 2004) (applying Matthews test to determine that due process requires that the parent or legal guardian of a juvenile facing deportation/removal proceedings must be served notice of the hearing). |
121 | 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c)(1), (2). |
122 | Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No 110–457, § 235(d), 122 Stat. 5044 (2008). |
123 | See Age of Majority, Ctr. for Parent Info. and Res., https://www.parentcenterhub.org/age-of-majority/ (last updated November 2017). |
124 | Id. |
125 | The time needed to file a proceeding and secure the SIJS order means that a UAC who will turn eighteen less than six months after arriving will most likely not be able to obtain the state court order. |
126 | Some legislatures in states receptive to promoting SIJS have made explicit that for SIJS purposes, juvenile courts have jurisdiction over individuals until the age of twenty-one. California, for example, has amended its guardianship law to allow persons between eighteen and twenty years of age to file a petition for guardianship, a move from the previous law, which allowed a guardian to be appointed only for a child under the age of eighteen. See Cal. Prob. Code § 1513(a) (2022). Another is Florida, whose statute addressing SIJS specifically states that if SIJS and an adjustment of status “have not been granted by the time the child reaches 18 years of age, the court may retain jurisdiction” until the child reaches twenty-two years of age. See Fla. Stat. § 39.013(2)(d) (2017). |
127 | Interestingly, the INA is silent on this even while depending on findings of “abuse, abandonment and neglect” to satisfy the SIJS statute. |
128 | See, e.g., Bryant v. Wigley, 269 S.E.2d 418 (Ga. 1980). |
129 | See, e.g., McKinney v. Richitelli, 586 S.E. 2d 258 (N.C. 2003). |
130 | Kids in Need of Def., Special Immigrant Juvenile Status (SIJS) 3 (2015). |
131 | 8 U.S.C. § 1101(a)(27)(J)(i). |
132 | The 2008 anti-trafficking legislation made clear that abuse, abandonment, or neglect by one parent is all that is needed, changing language from the earlier law that said such findings were required with respect to both parents. The statute refers specifically to “an individual whose 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. |
133 | Courts in Nebraska, New Jersey, and New York, for example, have declared “one or both parents” to be ambiguous, susceptible to more than one reasonable interpretation, depending upon who was involved in the child’s life prior to the petition. In re Erick M., 820 N.W.2d 639, 647 (Neb. 2012); In re Marcelina M.-G., 112 A.D.3d 100, 100 (N.Y. 2013); H.S.P. v. J.K., 121 A.3d 849, 859–60 (N.J. 2015). |
134 | See In re Erick M., 820 N.W.2d at 647; see also H.S.P., 121 A.3d at 859–60. |
135 | In re Erick M., 820 N.W.2d at 647. |
136 | Eddie E. v. Superior Court, 183 Cal Rptr. 3d. 773, 779 (Ct. App. 2015). |
137 | In re Erick M., 820 N.W. 2d at 639. |
138 | Id. at 643. |
139 | Eddie E., 183 Cal Rptr. 3d. at 779. |
140 | The first juvenile court was established in Illinois and enabled by statute in April 1899 to reflect “As the progressive view of family and children continued to become focused, ‘[t]he juvenile court movement in the United States gathered momentum in the final years of the nineteenth century.” Monrad G. Paulsen and Charles H. Whitebread, Juvenile Law and Procedure 1 (1974). |
141 | James Austin et al., Juveniles in Adult Prisons and Jails: A National Assessment, U.S. Dep’t of Jus., Bureau of Just. Assistance, ix (October 2000). |
142 | Id. |
143 | Id. |
144 | Paulsen and Whitebread, supra note 149, at 2. |
145 | Id. at 889. |
146 | Paulsen and Whitebread, supra note 149, at 2. |
147 | See Kent v. U.S., 86 S.Ct. 1045 (1966) |
148 | Wailing, supra note 154, at 889. |
149 | Charles Doyle, Cong. Rsch. Serv., RL30822, Juvenile Delinquents and Federal Criminal Law: The Federal Juvenile Delinquency Act and Related Matters 1 (2018), https://sgp.fas.org/crs/misc/RL30822.pdf. |
150 | 52 Stat. 764 (1938), 18 U.S.C. §§ 921 to 927 (1940 ed.); Doyle, supra note 159, at 1. |
151 | Dolye, supra note 159, at 1. |
152 | Id. at 2. |
153 | Id. |
154 | Id. at 2–3. |
155 | Id. at 2. |
156 | Id. at 2–3. |
157 | Id. |
158 | The presumption of state jurisdiction may be only overcome by the Attorney General certifying that the state either (1) refused or lacked jurisdiction over the juvenile or (2) lacked programs sufficient to meet the juvenile’s needs. 18 U.S.C. § 5032. Once certified, however, a juvenile offender appears before federal district court where the juvenile is charged with “juvenile delinquency” or transferred to adult status. Id. Transfer to adult status requires additional procedural requirements be met and a finding by the district court judge that prosecution as an adult serves the “interest of justice.” Id. |
159 | Unfortunately, this presumption has been eroded in many states by the prevalence of seeking a waiver from juvenile proceedings. See Prateek Shukla (2012). |
160 | In Kent v. U.S., 383 U.S. 541, 567 (1966), the Supreme Court outlined a series of “determinative factors” available to district court judges considering discretionary waiver. These included “(1) the seriousness of the alleged offense in relation to protecting the community’s safety; (2) whether the nature of the alleged offense was aggressive, violent, or willful manner premeditated; (3) whether the alleged offense was against persons or property; (4) the merits of the complaint; (5) the need to try the entire case in one court; (6) maturity of the charged; (7) record and previous history; and (8) the prospect of rehabilitation.” Id. |
161 | See Doyle, supra note 159, at 3. |
162 | 18 U.S.C. § 5032. |
163 | In Kent, 383 U.S. at 562, the Supreme Court held that juvenile offenders are entitled to the “essentials of due process” even though juvenile courts have “considerable latitude within which to determine whether it should retain jurisdiction over a child.” Id. Subsequently, in application of Gault, the Court recognized further protections for juveniles facing loss of liberty in juvenile justice proceedings. Here, the Court held that juveniles are entitled to “(1) notice of the charges; (2) a right to counsel, (3) right to confrontation and cross examination; (4) privilege against self-incrimination; (5) right to a transcript of the proceedings, and (6) right to appellate review.” 387 U.S. 1, 10 (1967). |
164 | See 8 U.S.C. § 1101(a)(15)(Q). |
165 | See generally 8 U.S.C. § 1101. |
166 | The fact that UACs are not U.S. citizens does not limit their rights to certain procedural guarantees. Non-citizens in the United States, including both legal and undocumented immigrants, are entitled to certain due process rights under the U.S. Constitution. The Fifth Amendment of the U.S. Constitution states that no person shall be deprived of “life, liberty, or property, without due process of law.” The Fourteenth Amendment further extends this protection to all persons, regardless of their citizenship status, by stating that no state shall “deprive any person of life, liberty, or property, without due process of law.” Due process rights include various procedural protections, such as the right to a fair and impartial hearing, notice of charges, the right to present evidence, the right to legal representation, and the right to appeal a decision. These rights ensure that individuals have a fair opportunity to defend themselves and challenge any actions taken against them by the government. |
167 | Richard F. Storrow, Unaccompanied Minors at the U.S.-Mexico Border: The Shifting Sands of Special Immigrant Juvenile Status, 33 Geo. Immig. L. J. 1, 20 (2019). |
168 | See id. at 6. |
169 | Id. at 17. |
170 | Id. at 33. |
171 | Id. at 1. |
172 | These include Austria, Australia, Canada, Denmark, Finland, France, the Netherlands, the United Kingdom, and New Zealand. In these countries, children have the right to free representation once preliminary processing has begun. Id. at 60–63. |
173 | 42 U.S.C. § 5106. |
174 | See Kids in Need of Def., supra note 135, at 15. |
175 | Id. at 1. |
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Virgil, S.M. Few Paths after a Long Journey: The Need for a Juvenile Immigration System. Laws 2023, 12, 60. https://doi.org/10.3390/laws12040060
Virgil SM. Few Paths after a Long Journey: The Need for a Juvenile Immigration System. Laws. 2023; 12(4):60. https://doi.org/10.3390/laws12040060
Chicago/Turabian StyleVirgil, Steven M. 2023. "Few Paths after a Long Journey: The Need for a Juvenile Immigration System" Laws 12, no. 4: 60. https://doi.org/10.3390/laws12040060