«REGULATING CONSENT: PROTECTING UNDOCUMENTED IMMIGRANT CHILDREN FROM THEIR (EVIL) STEP-UNCLE SAM, OR HOW TO AMELIORATE THE IMPACT OF THE 1997 ...»

8 U.S.C. §§ 1101(a)(27)(J)(iii), (iii)(I). This change is significant because it created a new consent requirement for non-detained juvenile applicants where previously none had been codified. It also created a two layered consent requirement for detained juveniles; first, in the form of specific consent to juvenile court jurisdiction and then, in the form of the express consent that now applies to all applicants.

8 U.S.C. § 1101(a)(27)(J)(iii).

See supra note 51.

246 PUBLIC INTEREST LAW JOURNAL [Vol. 15 explaining the meaning and application of the new provisions.54 The Memorandum reasoned, “Implementation of this provision will require District Counsel and the District Director... [to] liaison with state/local courts and child welfare agencies to formalize the Attorney General’s consent....”55 In addition, the Memorandum provided that applicants for SIJ status submit to the Service evidence of “[i]nformation regarding the whereabouts and immigration status of the juvenile’s parents and other close family members; [e]vidence of abuse, neglect or abandonment of the juvenile; [t]he stated reasons why it would not be in the best interest of the juvenile to be returned to his/her or the parents’ country....”56 Almost two years later, in July 1999, the Service issued Field Memorandum #2: Clarification of Interim Field Guidance (“Cook Memorandum”), superseding the original Memorandum and reiterating that an applicant is required to provide the Service with evidence of abuse, neglect, or abandonment and an explanation that return to the juvenile’s home country would be contrary in his/her best interest.57 The overriding problem with each of the first two field memoranda was that each required the Service to make independent determinations regarding a juvenile applicant’s dependency status; thereby contradicting the Service’s own decision in 1993 that “it would be both impractical and inappropriate for the Service to routinely re-adjudicate judicial or social service agency administrative determinations.”58 As a result, many child victims of abuse and abandonment were retraumatized in immigration interviews in which untrained immigration officers asked child victims for details of their abuse and abandonment.59 With the passage of the USA PATRIOT Act and the subsequent disbanding of the Service, the Department of Homeland Security took responsibility for implementing the SIJ provisions of the INA.60 No regulations have yet been submitted for public comment, but a new Field Memorandum was issued to supersede the problematic 1997 and 1999 memoranda.61 Field Memorandum #3 – Field Guidance on Special Immigrant Status Petitions (“Memorandum #3”) clarifies that express consent does not require relitigating a state dependency finding, but rather that “approval of an SIJ application itself shall serve as a grant of express conMemorandum from Thomas E. Cook, supra note 50.

Id.

Id.

Memorandum from Thomas E. Cook, Acting Asst. Comm’r., Adjudications Div., Immigr. and Naturalization Serv., U.S. Dep’t. of Just. (Jul. 9, 1999) [hereinafter Cook Memorandum].

Special Immigrant Status, 58 Fed. Reg. 42,843, 42,847.

Gregory Zhang Tian Chen, Elian or Alien: The Contradictions of Protecting Undocumented Children Under the Special Immigrant Juvenile Status, 27 HASTINGS CONST. L.Q.

597, 623-26 (2000). In addition, we must also assume that some deserving applicants were denied SIJ status because they were unable to convince untrained immigration officers that they were the victims of, for example, abuse.

USA PATRIOT Act, 107 Pub. L. 56, 115 Stat. 272, 241 (2001).

Memorandum #3, supra note 14.

2006] REGULATING CONSENT 247 sent.”62 Moreover, Memorandum #3 eliminates the supplemental filings required by the earlier memoranda.63 An applicant no longer needs to establish independently the grounds for the dependency or the best interest determination in the immigration interview. Memorandum #3 makes explicit that an “adjudicator generally should not second-guess the court rulings or question whether the court’s order was properly issued. Orders that include or are supplemented by specific findings of fact as to the above-listed rulings will usually be sufficient.”64 The qualifier “usually,” however, suggests that there may be times when the Department of Homeland Security may challenge an underlying state court order. Absent any regulatory criteria for what might trigger such a challenge, applicants remain at risk of erroneous determinations and rejection of valid juvenile court orders.

Finally, Memorandum #3 fails to address eligibility criteria for the granting of specific consent.”65 Thus, despite the more liberal interpretation of express consent offered in Memorandum #3, specific consent remains undefined and detained minors remain subject to a Dickensian federal guardian.66

III. SPECIFIC CONSENT, PREEMPTION AND DETAINED MINORS

The legal battle over minors detained by the Service predates the existence of the SIJ provisions of the INA. In 1984, minors’ advocates challenged Service policy resulting in the detention of unaccompanied minors.67 While Reno v. Flores concludes that Service detention of juvenile aliens suspected of entering the United States illegally is sound, Justice Scalia implies that state court dependency jurisdiction is not impaired by federal detention of the children and, in fact, runs concurrently with federal immigration jurisdiction.68 Yet, when the specific question as to Id.

Id.

Id.

Id.

Juvenile advocates have spent the last quarter century challenging the conditions of confinement of minors in federal custody; yet, despite consent decrees and regulated standards, significant challenges remain. See infra note 10 and accompanying text. See also Christopher Nugent, Whose Children Are These? Towards Ensuring the Best Interest and Empowerment of Unaccompanied Alien Children, 15 B.U. PUB. INT. L.J. 187, 218 (2006) (see supra this volume).

In 1985, prior to the enactment of 8 U.S.C. § 1101(a)(27)(J), a class action suit was filed in the Central District of California seeking relief for the class of unaccompanied minors held in the INS Western region and, among other things, challenging the conditions of the minors’ detention. Flores v. Meese, 681 F. Supp. 665 (C.D. Cal., Nov. 30, 1987).

In late 1987, the parties entered into a consent decree settling all conditions claims. See Memorandum of Understanding Re Compromise of Class Action: Conditions of Detention, Flores v. Meese, No. 85-4544-RJK (Px) (CD Cal., Nov. 30, 1987). In 1998, the regulations were revised to implement the settlement reached in Flores, maintaining the substance of 8 C.F.R. § 242.24(f), (g), and (h), but re-designating the regulations at 8 C.F.R. 236.3 (2005).

Reno v. Flores, 507 U.S. 292 (1993).

Flores, 507 U.S. at 312 nn.7-8. See also 8 C.F.R. § 236.3.

248 PUBLIC INTEREST LAW JOURNAL [Vol. 15 the validity of state court jurisdiction was raised in 1996, prior to the passage of the 1997 amendments to the law, the Minnesota Court of Appeals found that federal immigration law preempted state dependency law.69 Since the 1997 amendments, courts have relied on federal preemption analysis and found congressional intent to preempt state court jurisdiction. As a result, courts have limited themselves to reviewing the Attorney General’s decisions to withhold consent to state court jurisdiction under the Administrative Procedures Act.70 Yet, the preemption analysis is in error and the judiciary should reverse it accordingly. Until courts adopt an alternative legal analysis, however, the Department of Homeland Security should promulgate regulations that create a presumption of Attorney General consent to state court jurisdiction in order to alleviate the hardships created by the current application of the law.

A. The Immigration Case Law: Creating a Preemption Framework

Reno v. Flores, decided in 1993, held that the Service policy of detaining unaccompanied alien juveniles is constitutional on its face and that a decision to release any such minor falls within the administrative discretion of the Attorney General.71 Yet, Reno v. Flores was a facial challenge to a regulatory scheme enacted “to codify Service policy regarding detention and release of juvenile aliens.”72 It did not address preemption or the ability of the Attorney General to consent to state court jurisdiction for minors held by the Service. In fact, Justice Scalia confidently notes

in the opinion that:

[O]ne wonders why the individuals and organizations respondents allege are eager to accept custody do not rush to state court, have themselves appointed legal guardians (temporary or permanent, the States have procedures for both), and then obtain the juveniles’ release under the terms of the regulation. Respondents and their amici do maintain that becoming a guardian can be difficult, but the problems they identify-delays in processing, the need to ensure that existing parental rights are not infringed, the “bureaucratic gauntlet”would be no less significant were the INS to duplicate existing state procedures.73 Through his note, Justice Scalia suggests that the state courts maintain jurisdiction over custody and guardianship determinations for minors in federal custody, as See infra note 42.

See infra note 144.

Flores, 507 U.S. at 306.

Detention and Release of Juveniles, 53 Fed. Reg. 17,449 (May 17, 1988). However it is interesting to note that the Service analogizes the detention of undocumented juvenile aliens with the pre-trial detention of alleged juvenile delinquents. Detention and Release of Juveniles, 53 Fed. Reg. 17,449 (May 17, 1988). Yet, the Service prefaces its regulatory comments with the explanation that the reason for the regulations is its “concern for the welfare of the juvenile.” Id.

Flores, 507 U.S. at 312, n.7.

2006] REGULATING CONSENT 249 he suggests that a person need only “have [oneself] appointed legal guardian”74 and then apply for the release of the minor pursuant to the regulatory scheme enacted to facilitate such release.75 Justice Scalia’s remarks further suggest, as do the Service’s comments to the regulations, that there is no reason to create a duplicative, federal family law dependency process for immigrant minors as sufficient state processes already exist.

In 1996, two sets of foster parents in Minnesota attempted to do as Justice Scalia suggested.76 Both cases involved Chinese minors who had been smuggled into the United States and held as indentured laborers.77 In both cases, the boys were without family in the United States, so the Service placed them in foster homes pursuant to an agreement between the United States, acting through the Department of Justice Community Relations Services (CRS),78 and Lutheran Immigration and Refugee Services (LIRS). The Service, however, retained “constructive” custody of the boys and initiated deportation proceedings.79 In each case, the foster parents brought suit in the local juvenile court to have their foster child found dependent.80 In both cases, the Minnesota Court of Appeals found that federal immigration proceedings preempted the state court dependency proceedings because Congress intended “to retain exclusive jurisdiction over illegal aliens.”81 Yet, as the Sixth Circuit would hold in Gao v. Jenifer only three years later, the more appropriate question, absent an express preemption, is “whether a judgment for [the juvenile] would ‘interfere with public administration’ or ‘restrain

the government from acting.’”82 As the Sixth Circuit concluded in Gao:

allowing the county court to exercise jurisdiction over Gao neither interferes with the public administration nor restrains the government from acting....

The INS position [that it does] leads to absurdity. For example, it would mean that if INS rules prevented deportation of a married illegal alien, state courts would violate sovereign immunity by licensing such a marriage.83 Id.

Compare Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000).

See infra note 42.

The boys were arrested during routine law enforcement raids of apartments known to be used by undocumented workers. In re C.M.K., 552 N.W.2d 768, 769 (Minn. Ct. App.

1996); In re Y.W., 1996 WL 665937, at *2 (Minn. App. 1996).

52 Fed. Reg. 15,569 (April 29, 1987); I.N.S. Gen. Couns. Op. 95-11 (June 30, 1995).

In re C.M.K., 552 N.W.2d at 770, n.2; In re Y.W. 1996 WL 665937 at *2; I.N.S. Gen.

Couns. Op. 95-11. See also P.G. v. Department of Children & Family Services, 867 So. 2d 1248, 1249 (Fla. 2004).

In re C.M.K, 552 N.W.2d. at 769; In re Y.W., 1996 WL 665937 at *2. Petitioners in both cases claim that they sought dependency findings in the juvenile courts because their foster children were at risk of abuse if returned to China. Respondent, INS, alleged that both cases were brought in order to circumvent the immigration law and make the children eligible for SIJ status.

In re Y.W., 1996 WL 665937 at *2; In re C.M.K., 552 N.W.2d at 771.

Gao v. Jenifer, 185 F.3d 548, 554 (6th Cir. 1999).

Id. at 555.