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

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250 PUBLIC INTEREST LAW JOURNAL [Vol. 15 The Sixth Circuit reasoned that a state dependency finding mandates neither a grant of SIJ status nor an award of legal permanent residency.84 Both decisions remain firmly within the discretion of the Service.85 Through its original regulatory decision to rely on state juvenile courts and state administrative proceedings to make best interest determinations for alien minors, the Service recognized that the most appropriate forum for dependency and guardianship decisions is a state juvenile court or administrative proceedings.86 Moreover, Justice Scalia reaffirmed in Flores that the courts have long recognized that the states “possess ‘special proficiency’ in the field of domestic relations, including child custody.”87 A state finding of dependency makes a child eligible for legal permanent resident status because the Service’s own rules make it so.88 Therefore, the exercise of state court jurisdiction cannot be preempted by the federal immigration law as it is the immigration law itself that relies on the state court to act in instances of abused, neglected or abandoned minors.89 Yet, the Sixth Circuit’s holding in Gao failed to correct the erroneous preemption analysis utilized by the Minnesota Court of Appeals because it limited its ruling to the “closed class of immigrants.... whose state dependency cases arose” prior to the November 1997 amendments to the special immigrant juvenile provisions.90 In dicta, the Sixth Circuit concluded that Congress expressly preempted state court jurisdiction in 1997,91 and that, as a result, state courts could only exercise jurisdiction if the Attorney General “specifically consented” to such exercise.92 As a result, Gao appears to provide little help for juvenile aliens held by ICE and courts have proceeded on the basis that Congress preempted state court jurisdiction through the 1997 amendments to the special immigrant juvenile provisions of the INA.

Id. at 554.

Id. at 554-55. It might also be noted here that such an understanding comports with Justice Scalia’s implication that a potential guardian could proceed in state court while a minor is held by ICE. See Reno v. Flores, 507 U.S. 292, 312 n.7 (1993).

8 C.F.R. 204.11 (2005). In its comments, the Service specifically states:

[T]he Service believes that the decision regarding the best interest of the beneficiary should be made by the juvenile court... not by the immigration judge or other immigration officials. The final rule does not, however, require the decision to be made by the court which made the initial determination, since the Service believes this would be an unnecessary infringement upon the juvenile court system’s ability to make determinations regarding its own jurisdictional issues.

Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, 58 Fed.

Reg. 42,843, at 42,848 (Aug. 12, 1993).

Flores, 507 U.S. at 310 (quoting Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992)).

Gao, 185 F.3d at 554.

8 U.S.C. § 1101(a)(27)(J)(i) (2000).

Gao, 185 F.3d at 553.

Id. at 556.

Id. at 553.

2006] REGULATING CONSENT 251

B. An Alternative Preemption Analysis

The principle of federal preemption derives from Article VI of the Constitution, the Supremacy Clause.93 Federal preemption analysis requires a determination of whether Congress expressly states its intent to preempt state law, or whether Congress implies its intent to preempt state law through the structure and purpose of a statute.94 Implied preemption may itself take two different forms. Congress may so thoroughly occupy a field by enacting a comprehensive statutory scheme that it leaves no room for state action, or Congress may enact a federal law which makes compliance with a state law impossible.95 The Minnesota Court of Appeals and the Sixth Circuit both conducted an implied preemption analyses.96 The Minnesota Court of Appeals reached an erroneous conclusion because it asked an erroneous question: does Congress mean to exercise exclusive control over immigration?97 The answer to the question is unequivocal: “Yes.” Congressional power over immigration is plenary and in few fields does the federal law so clearly preempt and prohibit state action.98 Yet, as the Sixth Circuit points out in Gao, state courts exercising dependency jurisdiction over minors do not impinge on federal immigration law.99 If a state court exercises jurisdiction and finds a child dependent, then the child may apply for SIJ status.100 The unfettered discretion as to whether to grant the status and admit the child for lawful permanent residence remains with the Attorney General.101 Thus, the Minnesota Court of Appeals erred in C.M.K. and In re Y.W. The boys in each case suffered abuse in the United States and feared further abuse if returned to China.102 Had the New York Administration for Children’s Services responded to a report of abuse and taken the boys into custody prior to the Service’s raid on U.S. Const. art. VI, cl. 2.

Jones v. Rath Packing Co., 430 U.S. 519, 525-26 (1977).

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (citing, respectively, Pacific Gas & Elec. Co. v. State Energy Resource Conservation and Development Comm’n, 461 U.S. 190, 204 (1983) and Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153 (1982)).





In re C.M.K., 552 N.W.2d 768, 770 (Minn. Ct. App. 1996) (holding that application of state law would “conflict with” application of federal immigration law); In re Y.W., 1996 WL 665937 at *2 (Minn. App. 1996) (holding that Congress intended to retain “exclusive control over immigration”); compare Gao, 185 F.3d at 555 (holding that the action “of the county court did not refrain the government from acting.”).

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

“[O]ver no conceivable subject is the legislative power of Congress more complete.” Reno v. Flores, 507 U.S. 292, 305 (1993) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339-40 (1909))).

Gao, 185 F.3d at 555.

8 U.S.C. §1101(a)(27)(J) (2000).

Id.; see also Gao, 185 F.3d at 554-55.

The Minnesota Court of Appeals notes in both cases that each boy was abused by smugglers before being apprehended by the Service and faced potential abuse if returned to China. In re C.M.K., 552 N.W.2d at 770; In re Y.W., 1996 WL 665937 at *1, *3.

252 PUBLIC INTEREST LAW JOURNAL [Vol. 15 the New York apartment in which they were held, both Y.W. and C.M.K. would have been subject to the jurisdiction of the New York State family courts103 and eligible for special immigrant juvenile status.104 Thus, to accept the courts’ implied preemption analysis is to conclude that preemption exists based on the point in time at which a child is taken into custody. Yet, a child who was never legally admitted into the United States and who lives on the streets of New York after the death of his parents is as removable under the immigration law as a child arriving unaccompanied in the country after the death of his parents.105 Concluding that a state retains jurisdiction over the first case but is preempted as to the latter case is unsound.

The Attorney General possesses authority to detain aliens.106 The authority to detain, however, does not facially conflict with the exercise of state court dependency jurisdiction.107 The Service conflated the issues of dependency and detention when it opposed the Minnesota courts’ exercise of jurisdiction and asserted that the boys could not be found dependent because the Service, which held them in detention, was their guardian.108 Judge Randall of the Minnesota Court of Appeals notes

the incongruity of the Service’s position in his concurring opinion in In re Y.W.:

The INS puts itself in a truly anomalous position. They argue that Y.W. cannot really be a CHIPS, because a real CHIPS has no “guardian” and the INS points out that it is “his guardian”.... I am not comfortable with the INS holding itself out as Y.W.’s guardian, while at the same time they vigorously line up a case to deport him.109 N.Y. SOC. SERV. LAW §§ 1011-1013, 1015.

8 U.S.C. § 1101(a)(27)(J).

In 1996, the Illegal Immigration Reform and Responsibility Act (IIRIRA) replaced the definition of entry with a definition of admission. 8 U.S.C. § 1101(a)(13)(A). As a result, an immigrant who was not lawfully admitted and entered without inspection is inadmissible and thus removable as if he had been detained when trying to enter the country. 8 U.S.C. § 1182(a)(6)(A)(i) (2000); 8 C.F.R. § 235.1(d)(2) (2000).

8 U.S.C. § 1226(a) (2000); 8 C.F.R. § 236.1(c) (2005).

See Reno v. Flores, 507 U.S. 292, 312 n.7, n.8 (1993); Gao v. Jenifer, 185 F.3d 548, 555 (6th Cir. 1999).

In re C.M.K., 552 N.W.2d at 770-771; In re Y.W. 1996 WL 665937, at *4 (Minn. App.

1996).

In re Y.W., 1996 Minn. App. LEXIS 1302 at *15 (Randall, J., concurrence). It should also be noted that both boys were subject to deportation, not exclusion and that nothing in the statute precludes detained minors from accessing SIJ status. The general counsel’s opinion, in which the Service established that it would oppose any exercise of state court jurisdiction over minors in Service custody, found that adjustment of status remained available to “juveniles in INS foster care detention... subject to deportation proceedings....” I.N.S.

Gen. Couns. Op. 95-11, 1995 WL 1796318 (June 30, 1995). Yet, when such a case was taken to court, the Service took the position that aliens in INS custody, even those subject to deportation proceedings, are ineligible for SIJ status because no court can declare them dependents. Gao, 185 F.3d at 553 n.2.

2006] REGULATING CONSENT 253 Just as the state courts do not impinge upon the plenary federal immigration power, neither does the Service act as a guardian in any state law sense of the word.

While it is true that the Service provides for the immediate daily needs of a child in its custody, it has no long-term intention to parent the child110—the very job a guardian is charged with performing.111 Thus, any implied preemption analysis resting on the Attorney General’s authority to detain and care for a child while in detention is unfounded.

Although the Sixth Circuit found that the exercise of state court dependency jurisdiction did not force the government to take any immigration action, and thus was not preempted,112 it concluded in dicta that the language of the 1997 amendments creates an express preemption of state law.113 No court has ruled on whether the 1997 amendment creates an express preemption. Each court that has addressed the issue of the Attorney General’s consent since 1997 starts from the premise that state dependency jurisdiction is preempted and review is limited to an abuse of discretion determination.114 Therefore the dicta in Gao that finds express preemption in the 1997 amendments must be refuted.

Federal immigration law can only preempt state law to the extent that state dependency law actually conflicts with federal law. Congress itself reaffirmed the need to sever the responsibility for caring for a juvenile from the responsibility for prosecuting such a child in 2002 when it transferred to the Office of Refugee Resettlement the responsibility for “coordinating and implementing care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status.”115 State law redressing the needs of abused, neglected, and abandoned children does not conflict with federal immigration law; to the contrary, it is incorporated into the immigration law in numerous ways.116 To find preemption Juveniles are held pursuant to the Attorney General’s authority to detain an alien pending a determination on whether the alien is to be removed from the United States. 8 U.S.C. §

1226. Therefore, by definition, ICE is acting as “guardian” for the child only for the purpose of determining whether the child will be removed from the United States and not to make a determination of the child’s best interest. This is further supported by prior statements by the Service that only state family courts and administrative procedures should be used to make determinations of a child’s best interest, 58 Fed. Reg. 42,847. See also Flores, 507 U.S. at 314 (finding that “[t]he period of custody is inherently limited by the pending deportation hearing”).

See, e.g., OHIO REV. CODE ANN. § 2151.011(B)(16) (2005); N.J. STAT. ANN. § 2A:4Af) (2005).

Gao, 185 F.3d at 555.

Id. at 555-56.

M.B. v. Quarantillo, 301 F.3d 109, 109 (3d Cir. 2002); Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 220-221 (3d Cir. 2003); F.L. v. Thompson, 293 F. Supp. 2d 86, 92-93 (D.D.C. 2003); A.A.-M. v. Gonzales, 2005 WL 3307531 *2 (W.D. Wash., Dec. 6, 2005).

6 U.S.C.S. § 279(b)(1)(A), (B) (2006); see also Hearing Before the Senate Comm. on the Judiciary, 107th Cong. 4 (Feb. 28, 2002).

8 U.S.C. §§ 1101(a)(27)(J) (2000) (special immigrant juvenile status for state court dependents); § 1154(d) (requiring favorable home studies by state or agency authorized by the state prior to juvenile orphan adoption being approved); § 1522(d)(2)(B)(ii) (requiring 254 PUBLIC INTEREST LAW JOURNAL [Vol. 15 only as to the limited category of “detained” immigrant juveniles is ungrounded.

The key to resolving the jurisdictional question is recognizing that the children in issue are simultaneously children and undocumented immigrants and are thus subject both to state child protective laws, where state jurisdictional statutes are satisfied,117 and to federal immigration law. Preemption is no barrier to state juvenile court action.



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