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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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The existing procedural checks on state juvenile courts adjudicating dependency actions mean that an appropriate forum exists in which to hear juvenile cases regarding allegations of abuse, neglect or abandonment. Barring potentially abused youth from state juvenile courts when they have been detained by ICE serves no legitimate government purpose. The federal immigration authorities have recognized on multiple occasions that duplicating state family law within a federal context is unnecessary. Thus, regulations are needed to allow state courts to do what federal authorities have recognized that state courts do best: make determinations regarding potentially abused, neglected or abandoned minors.

IV. EXPRESS CONSENT: JUVENILE COURT ORDERS AND CRIMINAL CONVICTIONS

Assuming that regulations are implemented to correct the specific consent challenges posed by the 1997 amendments, we are still left with Section H.R. REP. NO. 105-405, 130 (1997).

See the statement of principles between The Department of Homeland Security and The Department of Health and Human Services Unaccompanied Alien Child program, available at http://www.acf.hhs.gov/ programs/orr/programs/uac.htm.

Memorandum #3, supra note 61.

Id.

States receiving federal funding pursuant to the Child Abuse and Prevention Act (“CAPTA”) are required to appoint a guardian for a child in a dependency proceeding. 42 U.S.C. § 5101 (2000). See also FLA. STAT. ANN. § 415.508 (2005). Unlike an attorney who is ethically obligated to advocate a client’s express preferences, a guardian ad litem is required to represent the child’s “best interest.” See, i.e., N.Y. FAM. CT. ACT § 241 (1998).

2006] REGULATING CONSENT 259 101(a)(27)(J)(iii), which requires the Secretary to expressly consent to a juvenile court order serving as a basis for SIJ status.149 The first two Field Memoranda that attempted to explain “express consent” confused both agency adjudicators and children’s advocates. As noted infra, the problem with Field Memorandum #1 and the Cook Memorandum was that both called for the applicant to supply proof to the agency, in addition to a valid state court order, of abuse, neglect, or abandonment and to explain why return to the juvenile’s home country would not be in the child’s best interest.150 The memoranda thus called for the agency to make independent determinations of a juvenile applicant’s dependency status: this effectively required the agency “to routinely readjudicate judicial or social service agency administrative determinations” in contravention of the agency’s own stated preference for deferring to state agency decisions.151 Nevertheless, the agency’s decision to adjudicate is consistent with its historic role in adjudicating other forms of affirmative relief.

In asylum cases, DHS is the fact finder.152 The statute provides that all decisions regarding credibility and weight of the evidence fall squarely within the purview of the DHS.153 Similarly, the Violence Against Women Act (“VAWA”)154 provides that the agency is the fact finder. 155 VAWA applications, like SIJ applications, can use state court orders as offers of proof.156 However, within a VAWA adjudication, unlike an SIJ application, the state court orders are merely one set of facts among many to be evaluated.157 One can be a beneficiary of a VAWA petition and have submitted no state court orders at all. Similarly, one can have received multiple, valid state protective orders, but be unable to benefit from the provisions of VAWA.158 SIJ status petitions are uniquely different. SIJ status establishes the fact finder for SIJ purposes as the state juvenile court which must determine whether an unacU.S.C. § 1101(a)(27)(J)(iii) (2005).

Memorandum from Thomas E. Cook, supra note 50; Cook Memorandum, supra note 57.

58 Fed. Reg. 42,847 (1993). It is also important to note that the readjudication of state dependency decisions posed significant problems vis-à-vis broaching federally endorsed confidentiality provisions, or worse, retraumatizing children forced to recount instances of abuse to untrained immigration examiners.

Id.; 8 U.S.C. §1158(b)(1)(A) (2000); In an asylum claim, the applicant bears the burden of establishing to the Secretary of Homeland Security or the Attorney General that he is a refugee within the meaning of INA § 101(a)(42)(A).

8 U.S.C. §§ 1158(b)(1)(A); (b)(1)(B)(iii).

8 U.S.C. §§ 1154(a)(1)(A)(iii)-(iv), (a)(1)(B)(ii)-(iii) (2000); 8 C.F.R. § 204.2(c), (e) (2000). The Violence Against Women Act created immigration status relief for the battered spouses and children of U.S. citizen and resident alien batterers to apply for lawful immigration status without relying on their abusive spouse or parent to file a petition on their behalf.

Id.

8 C.F.R. § 204.2(c)(2)(iv) (2005).

See supra notes 153, 155.

8 C.F.R. § 204.2(c)(3)(ii)-(iii) (2005).

260 PUBLIC INTEREST LAW JOURNAL [Vol. 15 companied alien minor is the victim of abuse, neglect, or abandonment, and whether returning the child to his or her home country would be contrary to the child’s best interests. One could assert that SIJ petitions are most like marriage petitions, as they both rely on state sanction. Yet, marriage certificates involve no judicial determination of facts as to the legitimacy of the marriage. Hence, the burden must shift to the agency to litigate the validity of marriages in adjustment of status applications. In contrast, state juvenile court dependency orders involve a judicial determination of facts.

Field Memorandum #3 largely eliminates the problems of the earlier memoranda with regard to express consent, as it only requires that an applicant submit the court order making the requisite findings by the state court.159 The Memorandum goes on to instruct that “[o]rders that include or are supplemented by specific findings of fact as to the above-listed rulings will usually be sufficient to establish eligibility for consent.”160 Until regulations are promulgated, however, dependent children remain at some risk as a USCIS examiner could find on any grounds that the child’s court order is insufficient.

Thus, the adjudication most analogous to the affirmative application for SIJ status is a removal proceeding based on a criminal conviction. State dependency orders are most like state criminal convictions in that they apply the facts of a case to the specific law of a state and make findings as to whether these facts meet the requirements or elements of a particular state law. In a challenge to removal on criminal grounds, the alien is not able to relitigate the state court conviction. The most the alien can challenge is that the state criminal conviction fails to make the findings necessary to establish the commission of a prohibited crime as defined in the INA. Since both state criminal convictions and state dependency determinations make findings of fact and conclusions of law, both should be given equal deference by federal immigration adjudicators. Just as federal adjudicators cannot “look behind a criminal conviction,” so too should they be proscribed from evaluating the facts in a state dependency finding. Thus, as suggested in Memorandum #3, if a state court dependency order makes factual findings, USCIS should only be able to “review” these to the extent that it reviews the language to ensure it makes the necessary federal findings to qualify a child for special immigrant juvenile status.

V. CONCLUSION

SIJ status is a tremendously important form of immigration relief that comports with our national and state decisions to focus first on the safety and health of the children and not to punish a child for the sins of the parents. Without updated regulations in place, however, the availability and effectiveness of SIJ status is in question. Courts are left to adjudicate challenges on an ad hoc basis and as a result applicants worry whether theirs will be the state court order that is unusual and Memorandum #3, supra note 61.

Id. (emphasis added).

2006] REGULATING CONSENT 261 therefore challenged. The government must promulgate regulations immediately to clarify that children are children first and potential immigrants second. Regulations must require that the Secretary refer detained minors to state courts upon any showing of abuse, neglect, or abandonment. Regulations must also require agency examiners to treat state dependency orders as facially valid and to accept a state court’s findings of fact. The language of “express consent” reinforces the idea that the immigration decisions remain unbounded and they do—so long as they remain immigration decisions and not dependency decisions. Family court decisions, in contrast, must sit in the family court and the Agency must give full faith and credit to final family or juvenile court decisions just as they do to criminal court convictions. Only through such regulations and such an interpretation of express consent can the government adequately rein in the notion of consent and protect the full spectrum of minors to whom Congress offered relief with the creation of SIJ status

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