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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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In one of its most authoritative cases on preemption, the Supreme Court held that “issues arising under the Supremacy Clause ‘start[] with the assumption that the historic police powers of the states [are] not to be superseded by... [a] Federal Act unless that [is] the clear and manifest purpose of Congress.’”118 When Congress amended the special immigrant juvenile provisions of the INA in 1997, it used language that the Sixth Circuit presumed in dicta expressly preempted state court jurisdiction: “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.”119 The congressional record, however, reflects that Congress amended the law to curb abuse of the SIJ provisions, and “to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children... .”120 Congress sought to ensure 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.”121 Nothing in the legislative history suggests that Congress intended to divest state courts of jurisdiction or to distinguish between minors based on their detention status.122 Some number of minors detained by the Service are abused, neglected or abandoned.123 Yet, under the express preemption analysis suggested refugee children to be placed under the laws of the state into which they are resettling).

Many states, for example, grant state court jurisdiction in the county of the child’s residence, the county in which the abuse, neglect or abandonment occurred, or where no state court would otherwise have jurisdiction; see, e.g., N.Y. FAM. CT. ACT § 1015 (1998);

OHIO REV. CODE ANN. §§ 2151.06, 2151.27(A)(1) (2006); TEX. FAM. CODE ANN. § 152.201 (1999).

There may be detained immigrant children who are unable to meet state jurisdictional requirements for dependency actions. This article does not argue that such a barrier is specious; but rather, that such a barrier is the only potentially legitimate, statutory barrier to state court action, albeit never addressed in existing caselaw.

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 515-16 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Gao v. Jenifer, 185 F.3d 548, 553 (6th Cir. 1999); 8 U.S.C. § 1101(a)(27)(J)(iii).

H.R. REP. NO. 105-405, at 130 (1997).

Id.

See id.

In 2004, the last year for which statistics are available, 25 arriving immigrants were found to be abused, neglected or dependent. U.S. Dep’t of Homeland Security, 2004 YEARBOOK OF IMMIGRATION STATISTICS (2005).

2006] REGULATING CONSENT 255 by Gao, such minors are left with no protective relief: there is no federal family court to provide them protection, and their “guardian” actively seeks their deportation. Thus, the intent of Congress is frustrated by the Gao Court’s reasoning that denies these potentially abused, abandoned or neglected minors access to state courts.

The language of the amendment as codified provides no clear guidance as to Congress’s intent. Courts have recognized since before Flores that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”124 The Service and its successor, the Department of Homeland Security, have similarly deferred to the expertise of the state juvenile courts.125 Finally, the INA continues to rely on the findings of state juvenile and family courts in a number of areas. The Gao Court’s dicta is illogical given such scant evidence of an express Congressional preemption.

The Sixth Circuit’s implied preemption analysis remains sound and should not be limited to pre-1997 cases: state court dependency jurisdiction does not conflict with the application of the immigration law, and therefore is not preempted.126 Discretion regarding whether or not to grant immigration status remains with the Attorney General.127 In addition, to find federal preemption of state court jurisdiction, one would have to accept that some minors are utterly without relief. Federal law, itself, provides no remedy for abused, neglected or abandoned minors, and ICE, through exercise of its deportation and removal authority, actively strives to remove each child from its custody—the antithesis of a guardian’s role.

The Supreme Court has held prohibiting application of state law where federal law fails to provide a remedy is “jurisprudentially unsound.”128 In Silkwood v.

Kerr-McGee Corp., the Supreme Court found that comprehensive federal legislation addressing nuclear energy provided no relief for victims of radiation.129 As there was no legislative history to suggest that Congress intended to prohibit such relief, Justice White concluded for the Court that “[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”130 It is similarly difficult to believe that Congress would bar relief for those abused, abandoned and neglected children who have the





misfortune of being detained by ICE.131 As Justice Brennan said in Plyler, punishing children for their parents’ misconduct:

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (quoting In re Burrus, 136 U.S.

586, 593-94 (1890)).

See supra notes 32-40.

Gao v. Jenifer, 185 F.3d 548, 554-55 (6th Cir. 1999).

Id.

Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).

Id. at 251.

It is plausible that Congress feared the cost and the imposition on the states if every child detained by ICE were submitted to state juvenile court jurisdiction. Each year, for example, approximately 80,000 unaccompanied immigrant children are stopped at U.S. borPUBLIC INTEREST LAW JOURNAL [Vol. 15 does not comport with fundamental conceptions of justice. “[V]isiting...

condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the... child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the... child is an ineffectual—as well as unjust—way of deterring the parent.”132 Despite the apparent clarity of the language, the legislative history of the 1997 amendments and the plain language of the statute demonstrate no clear Congressional intent to expressly preempt state juvenile court jurisdiction, or to leave abused children without relief. INA § 101(a)(27)(J)(iii)(I) and the requirement of specific consent of the Attorney General should be stricken from the law. Its present interpretation leaves a discrete class of abused, abandoned and neglected children without any form of relief and subject to removal and return to the abuse they fled. Children in the Service’s custody are deserving of the state’s protection and must be given access to a court that can address their “best interests” without consideration of their immigration status.

C. A Workable Regulatory Scheme

The ideal resolution of the muddled preemption analysis created by the courts is a repeal of 8 U.S.C. § 1101(a)(27)(J)(iii)(I). As such a resolution is unlikely, correcting the regulatory scheme is the next best chance to resolve the issues raised by the specific consent language inserted into the statute in 1997. Regulations could provide, for example, that the Secretary of Homeland Security shall consent to refer detained minors to state juvenile courts upon any showing of abuse, neglect, or abandonment. In this way, every juvenile who raises a child protection issue would get a substantive hearing on the facts alleged.133 ders. Danielle Knight, Waiting in Limbo, Their Childhood Lost, U.S. NEWS AND WORLD REPORT, Mar. 13, 2004, available at http://www.usnews.com/usnews/culture/articles/040315/15asylum_4.htm. Nevertheless, there are always costs involved in actions taken with regard to children. Finding that there is no federal preemption does not have to mean that all 80,000 children will have to be admitted to state foster care systems. It does mean, however, that regulations that ensure that children who raise issues of abuse, neglect or abandonment—even those arriving illegally—are given an opportunity for a fair hearing to determine whether they fall within the category of congressionally intended beneficiaries.

Plyler v. Doe, 457 U.S. 202, 220 (1982) (quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)).

As noted supra, juveniles would also have to meet jurisdictional requirements. I recognize that such a schema could encourage DHS to detain juveniles in states in which juveniles would be unable to meet jurisdictional requirements, but it would, nevertheless, give more juveniles access to the state courts than the current 10 percent obtaining specific consent annually. See U.S. Dep’t of Homeland Security, 2004 YEARBOOK OF IMMIGRATION STATISTICS (2005).

2006] REGULATING CONSENT 257 Under the current schema, the Secretary’s decision whether or not to specifically consent to state court jurisdiction is reviewed under § 706(2)(A) of the Administrative Procedure Act for abuse of discretion.134 Yet, because no standard for granting consent has been promulgated, courts are left with little guidance for determining when the Secretary’s action constitutes an abuse of discretion. As a result, different courts have used different standards and reached different conclusions as to whether the Secretary abused his discretion in withholding consent to state juvenile court jurisdiction.

The Third Circuit has reviewed two challenges to the Secretary’s denial of consent.135 In M.B., the court found that the existing regulations along with the Cook Memorandum136 provide “some law to apply,” making judicial review available.137 In Yeboah¸ the Third Circuit relied on M.B. to find the Secretary’s decision reviewable, but then looked, in part, to the legislative history of the amendment to inform the court’s review.138 Most recently, the district court in Washington relied on the Cook Memorandum to provide a “sufficient standard by which to judge the agency’s exercise of discretion.”139 Yet, the Third Circuit and the Washington District Court reached different outcomes: the Third Circuit finding no abuse of discretion while Washington found abuse.140 In order to ensure that child victims of abuse, neglect and abandonment are not divested of state protection as a result of federal intervention to protect its enforcement authority, at a minimum, regulations must be promulgated that establish the parameters of specific consent. The Third Circuit suggests that the critical determination is “whether the [Secretary] should determine if SIJ status is 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’ prior to consenting to the dependency hearing or afterward.”141 Yet the Third Circuit again conflates detention authority with dependency adjudications and, as a result, finds no abuse of discretion where “allowing the juvenile court proceeding to go forward would have amounted to endorsing an exercise in futility.”142 As noted repeatedly the Secretary is neither equipped nor competent to make dependency evaluations.143 Moreover, the Secretary is without jurisdiction or authority in state juvenile courts and, as a result, cannot know when a foray into state court is an “exercise in futility.” The agency recognized this fact in 1993;

See Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003); M.B. v. Quarantillo, 301 F.3d 109, 112-13 (3d Cir. 2002) for a legislative history of the amendments;

A.A.-M. v. Gonzales, 2005 WL 3307531, *3 (W.D. Wash., Dec. 6, 2005).

M.B., 301 F.3d 109 and Yeboah, 345 F.3d 216.

Cook Memorandum, supra note 57.

M.B., 301 F.3d at 113.

Yeboah, 345 F.3d at 221.

A.A.-M., 2005 WL 3307531 at *4.

Yeboah, 345 F.3d at 224; A.A.-M., 2005 WL 3307531, at *5.

Yeboah, 345 F.3d at 222 n.5.

M.B., 301 F.3d at 115.

See supra notes 32-40, 116.

258 PUBLIC INTEREST LAW JOURNAL [Vol. 15 Congress reaffirmed it in 1997 and 2002;144 and the Department of Homeland Security re-emphasized it when contracting with the Department of Health and Human Services’ Office of Refugee Resettlement (“ORR”) to provide care for detained, unaccompanied, alien minors.145 Field Memorandum # 3 specifically withdraws from the Third Circuit’s reasoning in affirming that “[t]he role of the District Director in determining whether to grant express consent is limited to the purpose of determining special immigrant juvenile status, and not for making determinations of dependency status.”146 By its own acknowledgement, the agency (ICE) should not attempt to evaluate a child’s intent in coming to the United States while that child is being detained and alleging abuse, neglect or abandonment.147 Despite the best intentions of any individual custodian, the dual role of guardian and border enforcer are incongruous and cannot mimic the environment of a state juvenile court in which parties are expressly driven by the custodial and best interests of children.

Regulations can ensure that any child who raises an issue of abuse, neglect, or abandonment will be referred to a state juvenile court for a hearing on the facts. In state court, the child will be appointed a guardian ad litem to advocate for the outcome independently determined to be in the child’s best interest.148 Within the context of such an action, the Secretary is able to apply to be a party; and, the state retains discretion to decline to prosecute the abuse, neglect, or abandonment case.



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