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IRCA’s benefits, however, were never intended to redress the status of undocumented minors: to qualify for IRCA benefits, an applicant was required to have been in the United States prior to 1982 and to file no later than 180 days after the effective date of the statute. 8.

U.S.C. § 1255a(a)(1)(A). Thus, the IRCA was of extremely limited use for undocumented minors in state care.

Undocumented minors have always been able to apply for immigration relief in the form of asylum, withholding of deportation, relief under the Torture Convention, and through the Violence Against Women Act (“VAWA”). See generally, 8 U.S.C. §§ 1158, 1231(b)(3)(A), 1182(a)(6)(B) (2000). None of these forms of relief, however, are directed specifically at minors and each involves unique challenges for minors who, because of their status as a minor, may not be able to satisfy the criteria of a specific provision under which he or she might apply.

Immigration Act of 1990 § 153.

8 U.S.C. § 1101(a)(27)(J).

The purpose of the 1990 Act was to “amend the Immigration and Nationality Act to change the level, and preference system for admission, of immigrants to the United States, and to provide for administrative naturalization, and for other purposes.” S. 358, 101st Cong. (1990) (enacted.). The 1990 Act “provide[d] for a significant increase in the overall number of immigrants permitted to enter the United States each year.” Statement by President George H.W. Bush, Office of the Press Secretary (Nov. 29, 1990) reprinted in SELECTED LEGISLATIVE HISTORY OF THE IMMIGRATION ACT OF 1990, at 2 (American Immigr.

Law. Assoc. 1991). Because of these liberalized levels of immigration, the legislative history of the Act makes it clear that the House and Senate disagreed mostly over numerical limits as to the worldwide level of immigration, limits for family-based immigration, and limits for employment-based immigrants. The history does not reflect any particular controversy over the special immigrant juvenile status. See generally SELECTED LEGISLATIVE HISTORY OF THE IMMIGRATION ACT OF 1990 (American Immigr. Law. Assoc. 1991); 101 CIS Legis. Hist. P.L. 694 (1990) (LEXIS); 101 Bill Tracking S. 358 (1990) (LEXIS) 242 PUBLIC INTEREST LAW JOURNAL [Vol. 15 granted SIJ status could translate such a grant into legal permanent resident status.22 Second, SIJ status juxtaposed the jurisdiction of state juvenile courts and federal immigration authority without explaining how such concurrent jurisdiction would operate. The change thus left open the question of the eligibility for special immigrant juvenile status of minors over whom ICE asserts custody: were they children or potential immigrants?23 In 1991, Congress addressed the first problem by passing technical amendments to “alleviate hardships experienced by some dependents of United States juvenile courts.”24 Created by the technical amendments, Section 245(h)25 provides for the adjustment of status of SIJ applicants by waiving specific grounds of inadmissibility such as public charge26 or absence of valid immigrant visa,27 as well as allowing for waivers of other grounds of inadmissibility on a case-by-case basis.28 Amendments to other provisions of Section 245 provide for the waiver of bars to adjustment of status, such as having accepted or continued in unauthorized employment.29 Section 245(h) also provides that SIJ applicants are deemed paroled into the United States.30 The technical amendments made clear that “for the purpose of applying for adjustment of status as a special immigrant juvenile... of the Act only, these juveniles will be treated as if they had been paroled into the United States.”31 “A significant number of aliens eligible for classification as special immigrant juvenile court dependents were ineligible to become lawful permanent residents because they could not meet the statutory requirements for immigrant visa issuance or for adjustment of status.” Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, 58 Fed.

Reg. 42,843 (Aug. 12, 1993).

See infra part II.A. notes 32-43.

Special Immigrant Status, 58 Fed. Reg. at 42,844. The most egregious example, of course, being that court-dependent minors could not overcome public charge grounds for exclusion. Id.

As enacted by Sec. 302(d)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733; 8 U.S.C. § 1255(h) (2000).

8 U.S.C. § 1182(a)(4)(A) (2000).

8 U.S.C. § 1182(a)(7)(A).

8 U.S.C. § 1255(h)(2)(B). Some grounds of inadmissibility remain applicable to SIJ applicants, such as 8 U.S.C. §§ 1182(a)(2)(A) (criminal related grounds), (2)(B) (multiple criminal convictions), 2(C) (controlled substance traffickers (except as relates to less than 30 g. of marijuana), (3)(A)(security and related grounds), 3(B) (terrorist activities), (3)(C) (foreign policy), (3)(E) (participants in genocide or commission of any act of torture or extrajudicial killing).

8 U.S.C. § 1255(c).

8 U.S.C. § 1255(h)(1). While parole into the United States does not constitute an admission, 8 U.S.C. § 1182(d)(5); see also Leng May Ma v. Barber, 357 U.S. 185, 186 (1958), it is, nevertheless, necessary for adjustment of status if an applicant was never admitted. 8 U.S.C. § 1255.

Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, 58 Fed. Reg. 42,843, 42,849 (Aug. 12, 1993).

2006] REGULATING CONSENT 243 Unlike adults, most minors are not actually responsible for their manner of entry, admission, or lack of admission into the United States.32 In addition, all minors are, by definition, dependent, and likely to be a public charge if the state removes them from their parent or caregiver. Thus, allowing the waiver of grounds of inadmissibility and deeming minors paroled ensures that dependent minors can establish eligibility for the relief intended them in the 1990 Act: legal permanent resident status.

With regard to the second problem, concurrent federal and state jurisdiction, it was not until the Service promulgated regulations in 1993 that there was any explication of how state dependency law and federal immigration law would concurrently apply. The comments to the final regulations, however, establish that the Service recognized the superseding jurisdiction of the family court with regard determining the best interest of the child.33 The comments specifically provide that “the decision concerning the best interest of the child may only be made by the juvenile court or in administrative proceedings authorized or recognized by the juvenile court.”34 According to the Service, it would be “both impractical and inappropriate for the Service to routinely readjudicate judicial or social service agency

administrative determinations as to the juvenile’s best interest.”35 The Service further clarified:

[I]t would be impractical and inappropriate to impose consultation requirements upon the juvenile courts or the social service system, especially requirements which could possibly delay action urgently needed to ensure proper care for dependent children.36 Although the Service understood that Congress enjoys plenary power over immigration, it also recognized that the paramount determination for potentially statedependent, undocumented minors is that of “proper care” and “best interest,” which are decisions properly situated within the jurisdiction of the state juvenile courts.37 Thus, the final regulations reflect the legislative intent to create a partnership between federal immigration authority and state jurisdiction over juveniles in which the state courts determine state-dependency and best interest before the Service makes any determination as to immigration status.38 Despite the unequivocal language in the regulations that calls for the unencumbered exercise of state court jurisdiction, the Service adopted an agency policy that distinguished detained minors from non-detained minors.39 The Service acknowlThe INS itself recognized in its comments to the final regulations for SIJ status that “a child in need of the care and protection of the juvenile court should not be precluded from obtaining special immigrant status because of the actions of an irresponsible parent or other adult.” Special Immigrant Status, 58 Fed. Reg. at 42,847.







I.N.S. Gen. Couns. Op. 95-11, 1995 WL 1796318 (June 30, 1995).

244 PUBLIC INTEREST LAW JOURNAL [Vol. 15 edged in its legal opinion that “[n]othing in the statute or the regulations explicitly excludes detained juvenile aliens from eligibility for special immigrant juvenile status.”40 Nevertheless, the Service went on to clarify that “the INS will seek revocation of any juvenile court dependency order issued for a detained alien juvenile [as] [s]uch juveniles are not eligible for long-term foster care because of their federal detention.” 41 In 1996, two Minnesota state appellate court decisions constitutionalized the Service’s argument holding that “[a] finding that [a child] is in need of protection or services based on circumstances in China would directly conflict with the immigration proceeding, and thus, is preempted by federal law.”42 In reaching its conclusion, the Minnesota Court of Appeals gave no weight to the agency’s own determination that “[n]othing in the statute or regulations explicitly excludes detained juveniles from eligibility.”43 Thus began the constitutional confusion over the concurrent jurisdiction of the state courts and the federal government.

B. 1997 Amendments and the Notion of “Consent”

In 1997, Senator Pete Domenici of Arizona proposed amendments to SIJ status because he believed that older Mexican teenagers were being granted SIJ status while resident in Mexico and were then entering the United States as legal permanent residents to attend American colleges and universities.44 Congress had intended to insulate SIJ status from such abuse in two ways. First, any child who obtains legal status through the SIJ provision is barred permanently from sponsoring a biological parent for legal immigration.45 As family immigration creates the most accessible path to legal immigration into the United states, prohibiting a biological parent from immigrating through an adjusted, state-dependent child discourages families from sending children to the United States alone and without immigration status in order to leapfrog themselves into legal status.46 Second, Section 245(h)47 Id.

The position was supported, albeit, without explanation, by the Administrative Appeals Unit of the INS in In re X, AAU A70 174 665 (February 9, 1996).

In re C.M.K., 552 N.W.2d 768, 771 (Minn. Ct. App. 1996); see also In re Y.W., 1996 WL 665937 (Minn. App. 1996); In re X, 1997 WL 33170585 (INS) (May 14, 1997) (citing In re C.M.K. and concluding that “state juvenile courts have no jurisdiction to determine the custodial status and to enter dependency orders for juvenile aliens in federal custody.”) I.N.S. Gen. Couns. Op. 95-11, 1995 WL 1796318 (June 30, 1995).

Senator Domenici stated, “[T]his is a giant loophole.... every visiting student from overseas can have a petition filed in a State court declaring that they are a ward and in need of foster care... [and] they are granting them.” Attorney General Reviewing Potential Abuse of Immigration Law: Hearings Before a Subcomm. of the Comm. on Appropriations., 105th Cong. 1 (1998) (statement of Pete Domenici, U.S. Senator).

8 U.S.C. § 1101(a)(27)(J)(iii)(II) (2000).

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for Fiscal Year 1998: Hearings Before a Subcomm. of the Comm. on Appropriations, 105th Cong. 322-23 (1998) (statement of Pete Domenici, U.S. Sen.).

2006] REGULATING CONSENT 245 provides that “[n]othing in this subsection or section 101(a)(27)(J) shall be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status.”48 Despite the existence of protections in the law, Congress acted on Senator Domenici’s anecdotes and constricted the SIJ provisions for both detained and nondetained minors.49 For non-detained minors, the constraint on relief took the form of new language requiring that minors demonstrate eligibility for foster care on account of “abuse, neglect or abandonment.”50 In addition, the amendments codify and expand the notion of consent into legal requirements of “express” and “specific” federal consent.51 The new statutory language provides that a special immigrant juvenile is an immigrant “in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status;

except that—no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction....”52 Through this codification Congress unnecessarily conflated state dependency jurisdiction and federal immigration jurisdiction and created the opportunity for muddled preemption analysis that the Minnesota Court of Appeals would shortly thereafter adopt.53 Because the law took immediate effect and the regulations remained unchanged, the Service circulated a Field Memorandum in August of 1998 (“Memorandum”) 8 U.S.C. § 1255(h) (2000).


Sec. 113, Act of Nov. 26, 1997, Pub. L. No. 105-119, 111 Stat. 2460; H.R. REP. NO.

105-405, at 130 (1997) (Conf. Rep.).

The conference report on the amendment states:

The language has been modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children, by requiring the Attorney General to determine that neither the dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect.

H.R. REP. NO. 105-405, at 130 (1997) (Conf. Rep.); see also 8 U.S.C. § 1101(a)(27)(J)(i); 75 No. 40 INTERPRETER RELEASES 1445 (Oct. 19, 1998), app. II Memorandum from Thomas E.

Cook, Acting Asst. Comm’r., Adjudications Div., Immigr. and Naturalization Serv., U.S.

Dep’t. of Just. (Aug. 7, 1998).

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