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Since the creation of the juvenile court movement over a century ago,1 states

have pursued an increasingly interventionist role in protecting children. Since 1944, courts have recognized that the state may affirmatively intervene in the family in order to protect the well-being of a child.2 Later, as awareness of and sensitivity to child abuse heightened, the federal government passed a series of laws supporting state efforts to intervene in families to protect children from inadequate or dangerous caregivers.3 The federal government also created incentives for states to provide permanency for children on whose behalf the state had intervened to sever the family relationship.4 Despite federal efforts to support state child protecAssistant Clinical Professor, Michael E. Moritz College of Law, Ohio State University.

In 1899, as a result of societal changes in the perception of children and childhood, and the burgeoning Progressive Era, Illinois became the first state to create a juvenile court to segregate juveniles out of the more punitive adult system. “An Act to Regulate the Treatment and Control of Dependent, Neglected and Delinquent Children,” Act of Apr. 21, 1899, 1899 Ill. Laws. 131. See generally, Julian W. Mack, The Juvenile Court, 23 HARV. L. REV.

104, 107 (1909).

In 1943, Massachusetts chose to intervene as against a child’s custodian in order to protect Betty Simmons, a nine-year-old Jehovah’s Witness, from the dangers of preaching on public streets. The intervention satisfied the Massachusetts child labor laws, but was alleged to violate the custodian’s right to raise the child and the child’s right to exercise religious liberty. The Supreme Court, however, found the intervention constitutional. Prince v. Massachusetts, 321 U.S. 158 (1944).

See, e.g., Child Abuse Prevention and Treatment Act (“CAPTA”), 42 U.S.C. §§ 5101 et seq. (2000); Adoption Assistance and Child Welfare Act of 1980, Pub. L. 96-272, 94 Stat.

500 (codified at 42 U.S.C. §§ 620-629, 670-79); Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified at 42 U.S.C. § 671-75).

42 U.S.C. § 675(5)(E) (2000) (requiring states to initiate a termination of parental rights 238 PUBLIC INTEREST LAW JOURNAL [Vol. 15 tive actions, a relatively discrete population of children remained unstable because

they presented a unique challenge to permanency that the states could not rectify:5

some children had no legal immigration status within the United States. States, through their respective family laws, could remove these children from harmful caregivers, place them in appropriate foster homes, and even free them for and facilitate their adoption; but, upon turning eighteen, these young adults would become “illegal immigrants” and would be unable to live and work legally in the United States on account of the federal immigration law.6 Then, in 1990, Congress sought to rectify the problem by amending the immigration law. In enacting Public Law No. 101-649, Congress created the Special Immigrant Juvenile (“SIJ”) status and gave undocumented, state-dependent minors hope for permanency through legalization of their immigration status. 7 SIJ status is an exceptionally limited provision within the behemoth that is the Immigration and Nationality Act (“INA”).8 Yet, SIJ status is remarkable in that it intertwines uniquely state jurisdiction in family law with uniquely federal jurisdiction in immigration law. The SIJ provision of the INA broadly specifies that minors in the United States who are found to be dependent upon a state juvenile court and for whom return to their home country is contrary to their best interests may apply to legalize their immigration status.9 The juveniles who potentially qualify for such relief fall into two broad categories: (i) minors who are physically present in the United States, but who have never had any involvement with Immigration Control and Enforcement (“ICE”), and (ii) minors who are detained or constructively held by ICE.10 hearing if a child has been in foster care for 15 of the previous 22 months, except in specified circumstances).

See Hines v. Davidowitz, 312 U.S. 52, 68 (1941) (finding that states enjoy no power with respect to the registration of aliens).

The INA provides that aliens who are unlawfully present in the United States are ineligible for admission into the country and thus, ineligible for legal status. 8 U.S.C. § 1182(a)(9)(B) (2000). However, the law excepts any unlawful presence by an alien who is less than eighteen years old, 8 U.S.C. § 1182(a)(9)(B)(iii)(I). The INA also makes inadmissible any alien who has accepted work without receiving prior approval from the government. 8 U.S.C. § 1182(a)(5)(A).

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified in scattered sections of 8 U.S.C.).

In 2004, the last year for which statistics are available, only 634 special immigrant juveniles were granted legal permanent resident status by the USCIS. U.S. Dep’t of Homeland Security, 2004 YEARBOOK OF IMMIGRATION STATISTICS (2005).

8 U.S.C. § 1101(a)(27)(J) (2000).

Prior to passage of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.

2135 (codified at 6 U.S.C. § 101 et. seq.), the Immigration and Nationality Service (“INS”) handled both the benefit and enforcement aspects of immigration practice in the United States and unaccompanied children were both detained by the INS and granted legalization by INS. However, the Homeland Security Act divided the agency into a service agency, U.S.

Citizenship & Immigration Services (“USCIS”), which handles benefits, and an enforcement agency, U.S. Immigration and Customs Enforcement (“ICE”), which is responsible for borREGULATING CONSENT 239 Because the new provision created a federal benefit—legal immigration status— grounded upon autonomous state action, disagreement immediately arose over the application of SIJ status to potentially dependent minors who fell into the latter group of minors in ICE custody. The predecessor to ICE, the Immigration and Naturalization Service (“the Service”), contended that only aliens who succeeded in “entering” the United States, who were admitted or entered without inspection, were eligible for SIJ status.11 Then, in 1997, Senator Domenici from Arizona alleged that SIJ status was subject to unchecked abuse by the first group, non-detained juveniles.12 As a result, Congress took action to curb the alleged abuses by non-detained minors and to address the issue of the availability of SIJ status to detained minors. The 1997 amendments to SIJ status attempted to define more restrictively the minors to whom SIJ status was available by codifying that such children have to be found dependent upon a state juvenile court “on account of abuse, neglect or abandonment.”13 The amendments also created an intermediate step in an application for SIJ status for all minors in the form of consent of the Attorney General.14 Since December 1997, the Attorney General must “expressly consent to a dependency order serving as a precondition to the grant of special immigrant juvenile status” for der control and enforcement. Thus, unaccompanied children who are now held by the federal government for immigration purposes are held under the auspices of ICE. 6 U.S.C.S. § 279 (2006).

Historically, the INS utilized a variety of state-licensed facilities around the country to house minors in INS custody. In 2001, the INS Juvenile Program contracted with “over 100 facilities, which provide[d] over 500 bed spaces for juveniles.” Unaccompanied Juveniles in INS Custody, Report Number I-2001-009, Sept. 28, 2001. Most of the facilities were roundly criticized for their abusive treatment of the minors housed there. See generally, Amnesty International, United States of America: Unaccompanied Children in Immigration Detention, 2003; Human Rights Watch, United States: Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration & Naturalization Service, December 1998; Amnesty International, Slipping Through the Cracks: Unaccompanied Children Detained by the U.S.

Immigration and Naturalization Service, 1997. Since March 1, 2003, the Director of the Office of Refugee Resettlement (“ORR”) of the Department of Health & Human Services (“DHHS”) has been responsible for providing shelter care and/or detention for unaccompanied minors in federal custody due to their immigration status. See 6 U.S.C.S. § 279. ORR continues to fund a number of facilities which house only unaccompanied immigrant children. See http://www.acf.hhs.gov/programs/orr/programs/facilitiesmap.htm.

I.N.S. Gen. Couns. Op. 96-9 (Apr. 23, 1996).

See infra note 44 and accompanying text.

8 U.S.C. § 1101(a)(27)(J)(i).

8 U.S.C. § 1101(a)(27)(J)(iii). The amendment originally vested jurisdiction with the Attorney General. However, pursuant to the adoption of the Homeland Security Act of 2002, authority transferred to the Secretary of the Department of Homeland Security, who has authorized the ICE National Juvenile Coordinator to make consent decisions for detained juveniles. Memorandum from William R. Yates, Assoc. Dir. for Operations, U.S. Citizenship and Immigr. Serv., Dep’t. of Homeland Security (May 27, 2004) [hereinafter Memorandum #3].

240 PUBLIC INTEREST LAW JOURNAL [Vol. 15 every SIJ applicant, and must “specifically consent” to a state juvenile court exercising jurisdiction over undocumented children in “the actual or constructive custody of the Attorney General.”15 Thus did undocumented immigrant children find themselves in the care of their Evil Step-Uncle Sam.

Eight years after the passage of the amendment, the content and parameters of federal consent remain undefined. No regulations have been promulgated, and SIJ applicants have been forced to rely on Field Memoranda explaining the agency’s understanding of the provision.16 Because the power to control immigration is plenary, and because the special immigrant juvenile statute expressly incorporates and defers to state juvenile court jurisdiction, the debate over the consent provisions has been confused. This article will attempt to clarify and resolve the debate. Part II will provide an overview of SIJ status and explain the rationale governing the addition of the consent provisions in 1997. Part III will address “specific consent” and challenge the jurisdictional decisions made by the courts to date. It will demonstrate that the federal government did not intend to preempt an area of substantive state law, leaving potentially abused, neglected or abandoned minors without relief.

This section will argue that, at a minimum, if a child presents any evidence of abuse, neglect or abandonment, regulations establishing a presumption of Attorney General consent should be promulgated. Part IV will address “express consent” and assert that it is best incorporated into the federal adjudication of SIJ petitions in the same manner that state criminal convictions serve as a basis for deportation and/or removal proceedings. Finally, the article will conclude that state family law and federal immigration law can be intertwined successfully. This can happen if federal regulations defer to historically state court purview over family law and child dependency, and if federal adjudications of immigration petitions honor state court dependency findings in the same manner that federal deportation and removal proceedings honor state court criminal convictions. Through adoption of such regulation, the nation’s historic commitment to protecting vulnerable minors, regardless of their immigration status can be fulfilled, and Evil Step-Uncle Sam can be redeemed.


Legal immigration into the United States is predominantly family-based.17 As a result, children unable to live with or reunify with their biological families or legal custodians historically have had no method for obtaining legal immigration status.18 8 U.S.C. § 1101(a)(27)(J)(iii)(I).

See, e.g., infra part II.B.

In 2003, for example, 491,551 of the 705,827 legally admitted immigrants were family based immigrants; 332,657 were, in fact, relatives of U.S. citizens. Department of Homeland Security, 2003 YEARBOOK OF IMMIGRATION STATISTICS (2004). See generally, 8 U.S.C. §§ 1151(a)(1), (b)(2)(A)(i) (2000) (providing respectively that family sponsored immigrants may apply for legal permanent residence and that immediate relatives of U.S. citizens may immigrate without numerical limitation.) Prior to the enactment of SIJ status, the only opportunity for undocumented, courtREGULATING CONSENT 241 The Immigration Act of 1990 (“the 1990 Act”), however, squarely addressed the issue of state court dependent minors.19 Section 153 of the 1990 Act created SIJ status, a permanent form of immigration relief for minors: (i) who had been found dependent upon a state juvenile court; (ii) who were eligible for long-term foster care; and, (iii) for whom the state juvenile court had determined that it was contrary to their best interest to be returned to their country of origin or last habitual residence.20 While the 1990 Act stirred controversy and debate because it liberalized the overall levels of immigration, the SIJ provisions were enacted with little fanfare or floor debate. 21 As a result, we are unable to discern definitively Congressional intent with regard to the overlay of federal immigration jurisdiction and state family court jurisdiction for all potential beneficiaries of SIJ status.

A. SIJ Status: 1990-1997 Two issues arose immediately upon the creation of SIJ status. First, no related provisions of the INA had been amended in the 1990 Act to ensure that those dependent minors to seek legalization came through the general immigration relief provided by the Immigration Reform and Control Act of 1986 (“IRCA”). Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of U.S.C.); 8 U.S.C. § 1255a (2000).

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