Special Immigrant Juvenile Status: a “Juvenile” Here is not a “Juvenile” There
Washington and Lee Journal of Civil Rights and Social Justice
Special Immigrant Juvenile Status: a “Juvenile” Here is not a “Juvenile” The re
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1 Heryka Knoespel, Special Immigrant Juvenile Status: a “Juvenile” Here is not a “Juvenile” Th ere, 19 Wash. & Lee J. Civ. Rts. & Soc. Just. 505 (2013). Available at:
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Special Immigrant Juvenile Status: a “Juvenile”
Here is not a “Juvenile” There
Parents serve an important role in a child’s life. Society expects a
parent to advocate for their child’s needs. Nevertheless, when abuse,
neglect or dependency issues occur in a household, society can no longer
trust a parent to carry out vital roles on behalf of their child. Unfortunately,
due to high volumes of children, limited resources, and the conflicting
priorities of a state government, being in state custody as a child cannot
compare to having a reliable parent advocate. Ultimately, abused,
neglected, or abandoned children are left with little power over their own
situation. Further, when an abused, neglected, or abandoned child is in the
United States without legal status, their life can quickly unravel as their
opportunities for employment, education, and public benefits decrease.
This Note provides an overview of the Special Immigrant Juvenile
(“SIJ”) immigration remedy available to abused, neglected, or abandoned
persons under the age of twenty-one in the United States1 and discusses a
procedural issue associated with the remedy. Part I provides the history of
the SIJ remedy. Part II gives an overview of the SIJ petition process. Part
III details the benefits of receiving SIJ status and compares the SIJ remedy
to other immigration remedies available for undocumented children. Part
IV explains the problem—although eighteen to twenty-one year olds
qualify for SIJ status at the federal level, many states prohibit these
individuals from accessing state-level juvenile courts to secure the
necessary judicial findings, a prerequisite for filing the federal SIJ petition.2
Part V tracks how states with large immigrant populations—Florida, Texas,
New York, and California—have approached the problem. Part VI
recommends that state legislatures harmonize state law with federal law to
allow persons between the ages of eighteen and twenty-one to secure
findings from a juvenile court for the purpose of filing an SIJ petition with
United States Citizenship and Immigration Services (“USCIS”).3
1. See Immigration and Nationality Act, Pub. L. No. 101-649, § 153, 104 Stat. 4978,
5005-06 (1990) (codified at 8 U.S.C. § 1101(a)(27)(J) (2006)).
2. See id. (explaining the need to be declared dependent on a juvenile court as a
3. See FLA. STAT. ANN. § 39.013 (West 2013) (allowing the court to retain
jurisdiction over SIJ applicants).
II. The History of the Special Immigrant Juvenile Immigration Remedy
In 1990, Congress passed the Immigration and Nationality Act.4 The
Immigration and Nationality Act included a Special Immigrant Juvenile
classification as an immigration remedy for unaccompanied immigrant
minors present in the United States.5 The requirements were few: a state
juvenile court had to declare the petitioner dependent on the court; the court
had to deem the individual eligible for long-term foster care; and the court
had to determine that it was not in the individual’s best interest to return to
their home country.6 The language “eligible for long-term foster care”
meant that the juvenile court found that family reunification was no longer
a viable option.7 Further, if a child received SIJ status, the child’s parents
could not benefit from the child’s status by filing for family-based
immigration legal status through the child.8 The legislative history shows
the Act passed with no controversy.9
But, in 1997, Congress had to amend the Act to prevent abuse from
unintended beneficiaries.10 Specifically, persons who entered the United
States as visiting students began fraudulently applying for SIJ status.11
5. See id.
(intending to assist a specific group of unaccompanied minors but not
expressly stating this intent in the Act until a 1997 amendment)
(stating the initial requirements under the 1990 Act)
7. See 8 C.F.R. § 204.11(a) (2009) (“Eligible for long-term foster care means that a
determination has been made by the juvenile court that family reunification is no longer a
8. See 8 U.S.C. § 1101(a)(27)(J)(iii)(II) (2006) (“No natural parent or prior adoptive
parent of any alien provided special immigrant status under this subparagraph shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this
11. See id. (“The SIJ provisions of the INA were enacted in 1990 to protect abused,
neglected, or abandoned children who, with their families, illegally entered the United
States. Congress provided an alternative to deportation for these children. Rather than being
deported along with abusive or neglectful parents, or deported to parents who had abandoned
them once in the United States, such children may seek special status to remain in the United
Therefore, Congress amended the Act to expressly state that SIJ remedy
was only for children needing long-term care because they were abused,
neglected, or abandoned.12 Previously, although the remedy was intended
for this subset of unaccompanied minors in the United States, the language
of abuse, neglect, and abandonment did not appear in the Act.13
Even though the language was added, the Act does not define “abuse,”
“neglect,” or “abandonment.” Instead, state law has discretion to define
these terms.14 State law definitions of these terms vary widely. For
example, in California, the state law definition of “abuse” outlines specific
causes and circumstances,15 including the willful harming or endangering of
a child, as well as instances of both physical and mental pain.16 Moreover,
in California, “neglect” refers to “the negligent treatment or the
maltreatment of a child by a person responsible for the child’s welfare
under circumstances indicating harm or threatened harm to the child’s
States. This rule was abused, however, by juveniles entering the United States as visiting
students.”); see also M.B. v. Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002) (“The legislative
history demonstrates an intent to remove immigration decisions from the exclusive control
of juvenile courts and the social agencies affiliated with them.”).
14. See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54980 (proposed Sept. 6,
2011) (to be codified at 8 C.F.R. 204.11(b)(1)(v)), available at http://www.
gpo.gov/fdsys/pkg/FR-2011-09-06/pdf/2011-22625.pdf (“The concepts of abuse, neglect,
and abandonment are not defined in immigration law. Specific legal definitions of the terms
‘abuse, neglect, or abandonment’ for the purposes of juvenile dependency proceedings
derive from State law and therefore vary from state to state.”).
15. See CAL. PENAL CODE § 11165.6 (West 2008) (“‘[C]hild abuse or neglect’
includes physical injury or death inflicted by other than accidental means upon a child by
another person, sexual abuse as defined in Section 11165.1, neglect as defined in Section
11165.2, the willful harming or injuring of a child or the endangering of the person or health
of a child, as defined in Section 11165.3, and unlawful corporal punishment or injury as
defined in Section 11165.4. ‘Child abuse or neglect’ does not include a mutual affray
between minors. ‘Child abuse or neglect’ does not include an injury caused by reasonable
and necessary force used by a peace officer acting within the course and scope of his or her
employment as a peace officer.”).
16. See PENAL § 11165.3 (“The willful harming or injuring of a child or the
endangering of the person or health of a child, means a situation in which any person
willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain
or mental suffering, or having the care or custody of any child, willfully causes or permits
the person or health of the child to be placed in a situation in which his or her person or
health is endangered.”).
health or welfare[,] . . . [t]he term includes both acts and omissions on the
part of the responsible person.”17
Whereas, in the District of Columbia, “abused” means “infliction of
physical or mental injury upon the child, sexual abuse or exploitation of a
child, or negligent treatment or maltreatment of a child.”18 The District of
Columbia also specifies certain acts it considers abusive that do not
constitute mere “discipline.”19 Simply put, discipline must be reasonable.20
The statute lists acts not considered discipline, such as “burning, biting, or
cutting a child,”21 or “striking a child with a closed fist.”22
Even the term “abandoned” carries different definitions depending on
the state law applied. In New York, the law deems a child “abandoned” if a
parent shows “an intent to forego his or her parental rights and obligations
as manifested by his or her failure to visit the child and communicate with
the child.”23 Therefore, a state’s unique definition of abuse, neglect, and
abandonment will determine whether a person qualifies for the federal
remedy and once the state issues findings of abuse, neglect, or
abandonment, USCIS cannot reinvestigate the findings.24
In 2008, the Trafficking Victims Protection and Reauthorization Act
(“TVPRA”) substantially changed the eligibility requirements for SIJ
status.25 The change not only expanded the group of aliens eligible for
SIJ,26 but it also delineated specifically the findings a state juvenile court
must make for a valid SIJ petition.27 Prior to TVPRA, the INA required
that the juvenile court make a finding that the child was eligible for
longterm foster care. This caused concern that only children who were in state
foster care were eligible for SIJ status.28 To address this concern, the
TVPRA amended the statute to allow eligibility for children declared
dependent on a juvenile court, or legally committed to or placed under the
custody of a State agency or department. Therefore, the TVPRA clarified
that SIJ status was not just for children in foster care. Additionally, the
TVPRA added the new requirement that “reunification with one or both
parents is not viable due to abuse, neglect or abandonment or a similar basis
found under State law.”29 This is a significant change because it has led to
what many advocates call the “one parent SIJ cases,” where the child was
abused, neglected, or abandoned by one parent but resides with the other
parent. Also, to expedite the process, TVPRA required that USCIS
adjudicate a SIJ petition within 180 days of the petitioner’s filing.30
Most importantly, TVPRA granted some limited age-out protections
for SIJ petitioners.31 As of December 23, 2008, if petitioner was a “child”32
on the date that an SIJ petition was filed, regardless of the petitioner’s age
at the time of adjudication, USCIS may not deny SIJ status based on age.
USCIS officers must now consider the petitioner’s age at the time of filing
with USCIS to determine whether the petitioner has met the age
requirement. Officers can no longer deny or revoke SIJ status based on age
if on the date the SIJ petition was filed, the alien was under twenty-one
years of age.33 Thus, even if the petitioner turns twenty-one while the SIJ
State; or who has been placed under the custody of an individual or entity appointed by a
State or juvenile court.”).
27. See id. at 2 (indicating specifically what was required of a state juvenile court
order regarding findings for Special Immigrant Juvenile cases).
29. Trafficking Victims Protection Reauthorization Act § 235(d), Pub. L. No.
110457, 122 Stat. 5044 (2008).
30. See id. at 4 (“Section 235(d)(2) of the TVPRA 2008 requires USCIS to adjudicate
SIJ petitions within 180 days of filing.”).
31. See Trafficking Victims Protection Reauthorization Act § 235(d), Pub. L. No.
110457, 122 Stat. 5044 (2008) (explaining the need for age-out protections).
32. See id. (referring to the use of “child” eligible for SIJ to follow the definition under
INA § 101(b)(1) of an unmarried person under the age of 21 at the time of filing).
33. See Memorandum from Donald Neufeld, Acting Associate Director Domestic
Operations, USCIS & Pearl Chang, Acting Chief Office of Policy & Strategy, USCIS, to
Field Leadership 3-4 (Mar. 24, 2009), http://www.uscis.gov/USCIS/Laws/Memoranda/
Static_Files_Memoranda/2009/TVPRA_SIJ.pdf (explaining age protections).
petition is being adjudicated, it is not grounds for an automatic revocation
of the petition, a common occurrence prior to TVPRA. This protection is
important because it set a concrete deadline as to when USCIS will
determine the petitioner’s age. Although under TVPRA, USCIS must
complete SIJ adjudications within six months of petitioner’s filing,34 this is
seldom the case.35 As a result, if the age protection were not in place, many
petitioners would be left wondering whether USCIS had processed their
application prior to their twenty-first birthday.36 With this change, SIJ
petitioners now know that if they were under twenty-one years old when
they filed their SIJ petition with USCIS, then their age qualifies under the
Act. As a result of the age protection changes implemented by the TVPRA,
many more qualify for SIJ status.
The most recent change to SIJ status occurred in 2011, when USCIS
proposed a rule reinterpreting the federal Act.37 USCIS stated on its
The proposed rule includes protections against aging-out, meaning that
petitioners would still be eligible for SIJ status even if they reach the age
of 21 while the petition is pending. Also, petitioners would be required
to have a valid juvenile court order that is in effect at the time of filing.
While this court order would be required to remain in effect through the
time of adjudication, the proposed rule would exempt that requirement
for individuals if their court order is no longer in effect at the time of
adjudication because the petitioner’s age prevents continued
The rule was promulgated although not with all of its original
language. As of today, the SIJ remedy is now available to unmarried39
persons under twenty-one years old,40 who were abused, neglected, or
abandoned,41 and continue to be dependent on a juvenile court.42 The 2011
rule did not address the procedural problem explored in this Note. This
history sheds light on SIJ processes in place today.
III. Petitioning for Special Immigrant Juvenile Status: A Two Step Process
The two steps involved in petitioning for SIJ status are (1) obtaining
juvenile court findings at the state level and (2) filing forms with USCIS at
the federal level.43 These steps must occur consecutively.44 While
immigration officials have the final say on whether they will grant a SIJ
petition,45 the individual cannot even apply to USCIS for the remedy
without first having the necessary findings issued by a state juvenile court.46
9010VgnVCM10000045f3d6a1RCRD (emphasis added).
See 8 C.F.R. § 204.11 (c)(2) (2009) (requiring applicant to be single).
40. See Trafficking Victims Protection Reauthorization Act of 2008 § 234(e)(3)(A)
(“(A) the date on which the child reaches the age designated in section 412(d)(2)(B) of the
Immigration and Nationality Act (8 U.S.C. 1522(d)(2)(B)).”); see also 8 C.F.R. §
204.11(c)(1) (2009) (requiring applicant to be under the age of twenty-one).
41. See 8 U.S.C. § 1101(a)(27)(J)(i) (2006) (intending remedy for abused, neglected or
42. See Pub. L. No. 105-119, § 113, 11 Stat. 2440, 2460 (1997) (codified as amended
at 8 U.S.C. §1101(a)(27)(J)(i) (2003)) (“[W]ho has been declared dependent on a juvenile
court located in the United States or whom such a court has legally committed to, or placed
under the custody of, an agency or department of a State, or an individual or entity appointed
by a State or juvenile court located in the United States, and whose reunification with 1 or
both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a
similar basis found under State law.”).
43. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., SIJ Petition Process,
e0310VgnVCM100000082ca60aRCRD (last visited Sept. 10, 2013) (explaining the SIJ
45. See Vesselin Mitev, Salvadoran Immigrant Abandoned as a Child Permitted to
Seek Special Status, N.Y. L.J., Mar. 5, 2010, http://www.newyorklawjournal.com/
PubArticleNY.jsp?id=1202445540726 (“[T]he ultimate determination as to an immigrant
juvenile’s status rests squarely within the purview of the federal government.”).
46. See 8 U.S.C. § 1101(a)(27)(J)(ii) (2006) (stating that the SIJ applicant must have
findings from judicial proceedings).
A. Obtaining a Juvenile Court Order
First, a juvenile court in the United States must make certain findings
of fact.47 Under the federal definition, a “juvenile court” is determined by
the court’s function rather than the name the state gives the court.
Specifically, the law defines a juvenile court as “a court located in the
United States having jurisdiction under state law to make judicial
determinations about the custody and care of juveniles.”48 USCIS
recognizes that the exact name of a juvenile court may differ among
states.49 Courts that handle juvenile matters including dependency,
guardianship, delinquency, or adoption will qualify.50 If a juvenile “has
been the subject of judicial proceedings or administrative proceedings
authorized or recognized by the juvenile court,” then he or she is dependent
upon the court.51
A petitioner needs a juvenile court to make necessary findings. These
include that the child is unmarried, under twenty-one, dependent on the
court, cannot be reunited with one or both parents due to abuse,
abandonment, or neglect, and it is not in the child’s best interest to return to
his or her country of citizenship.52
Certain states have streamlined their SIJ procedures, making the
remedy more accessible within their court system. For example, New
York53 and California54 created an official court order form for SIJ findings
that simplify the proceeding for the presiding judge. North Carolina has
created a sample court order form so judges become familiar with the
necessary findings for SIJ status.55 With a juvenile court order in hand, the
petitioner may progress to the second stage of the SIJ process.
While the state juvenile court process may seem tedious, it is actually
beneficial for the petitioner to appear before a juvenile court because the
judges are trained in abuse, neglect, and dependency issues. First, it gives
the SIJ immigration status legitimacy by showing the public that a judge
trained in issues of abuse, neglect, and dependency finds the child’s story
credible. This leaves less room for criticism of the SIJ immigration remedy
because a neutral fact finder, whose role it is to routinely make best interest
determinations for children, issues the necessary findings. Second, it is
beneficial for SIJ petitioners because, unlike other immigration remedies, a
judge must consider whether it is in the child’s best interest to return to
their home country. For these reasons, it is logical to leave the findings of a
federal immigration case to a juvenile state court.
After receiving state juvenile court findings, a SIJ petitioner must file
forms with USCIS.56 A petitioner will need to file at minimum two forms:
Form I-36057 Petition for Special Immigrant and Form I-48558 Application
to Register Permanent Residence or Adjust Status. Additional forms
become relevant depending on an individual’s circumstances.59
Once USCIS receives the petition, the petitioner will then receive
notification of the date and time of their interview.60 In some cases, USCIS
may waive an interview.61 For example, USCIS may waive an interview
for petitioners under the age of fourteen or when it is determined that an
interview is not necessary.62 At the interview, a District Adjudications
Officer will interview the petitioner under oath to assess eligibility for SIJ
status and adjustment of status.63 District Adjudications Officers have
direct, delegated authority to decide naturalization and citizenship
applications. These officers are located in district and sub-offices of USCIS
throughout the United States.64 At the time of the interview, the District
Adjudications Officer may ask questions about the SIJ petition but may not
undermine the juvenile court’s findings of abuse, neglect, or
abandonment.65 After the interview, USCIS will then provide written
notification to the petitioner of the approval or denial of the SIJ petition. If
the officer denies the petition, the petitioner may appeal the decision to the
Office of Administrative Appeals.66 The Office of Administrative Appeals
has jurisdiction over most immigration petition appeals entered by USCIS
district offices,67 reviewing denied SIJ petitions de novo.68
petitioner is under age 14, or when it is determined that an interview is unnecessary).
See § 245.6 (explaining interview procedures for SIJ candidates).
64. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Appendix 4-5 District
Adjudications Officer GS 1801-9 PD # HI070E (Grade Nine), http://www.uscis.
gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-26756. html (last visited
Sept. 23, 2013) (explaining the role of a District Adjudications Officer).
65. See January Contreras, U.S. CITIZENSHIP AND IMMIGRATION SERVS. OMBUDSMAN,
Special Immigrant Juvenile Adjudications: An opportunity for Adoption of Best Practices 5
(Apr. 15, 2011), available at
http://www.dhs.gov/xlibrary/assets/Citizenship-andImmigration-Services-Ombudsman-Recommendation-Special-Immigrant-JuvenileAdjudications.pdf (“USCIS is permitted to inquire as to whether the juvenile court judge
made a finding of abuse, neglect or abandonment. However, it is expressly prohibited from
engaging in a de novo review of the facts and circumstances underlying the determination of
dependency.”); see also Memorandum from Donald Neufeld, Acting Associate Director
Domestic Operations, USCIS & Pearl Chang, Acting Chief Office of Policy & Strategy,
USCIS, to Field Leadership 4 (Mar. 24, 2009), http://www.uscis.gov/
USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf (“During an
interview, an officer should focus on eligibility for adjustment of status and should avoid
questioning a child about the details of the abuse, abandonment or neglect suffered, as those
matters were handled by the juvenile court, applying state law.”).
66. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., The Administrative Appeals
6685e1e6210VgnVCM100000082ca60aRCRD (last visited Sept. 23, 2013) (“The
Administrative Appeals Office reviews the decisions made by USCIS adjudications officers
on petitions and applications for immigration benefits to ensure consistency and accuracy in
the interpretation of immigration laws, regulations and policies.”).
67. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., USCIS Adopted Decisions,
IV. The Benefits of Obtaining Special Immigrant Juvenile Status
Approval of an SIJ petition can substantially improve an individual’s
life because it yields lawful permanent residency. Also, if granted, an SIJ
petitioner can apply for United States citizenship within five years.69
Moreover, SIJ status provides practical benefits that citizens take for
granted. Under most circumstances, an undocumented youth may only
attend college at the tuition rate for international students, not at in-state
tuition rates. With the death of the DREAM Act,70 SIJ status can make
college financially attainable for an undocumented immigrant child. Upon
receiving legal status, an individual may obtain a driver’s license, work
legally, receive federal education based financial aid, attend college at an
in-state tuition rate, and gain eligibility for some public benefits.71 SIJ
status is the only path for children to obtain permanent residency as a result
of being abused, neglected, or abandoned by one or both parents.72
Alternatively, a person not eligible for SIJ status may qualify for
prosecutorial discretion under President Obama’s 2012 Deferred Action for
Childhood Arrivals program (DACA).73 The program is meant to shield
9010VgnVCM10000045f3d6a1RCRD (last visited Sept. 23, 2013) (detailing which
immigration petitions fall under the scope of the Administrative Appeals Office).
68. See 5 U.S.C. § 557(b) (1967) (“On appeal from or review of the initial decision,
the agency has all the powers which it would have in making the initial decision except as it
may limit the issues on notice or by rule.”).
from deportation those children who entered the United States at a young
age and “know only this country as home.”74 To qualify for prosecutorial
discretion under the program, an applicant must (1) have come to the
United States under the age of sixteen, (2) have continuously resided in the
United States for a least five years preceding the date of June 15, 2012 and
be present in the United States on June 15, 2012, (3) be currently enrolled
in school, graduated from high school, obtained a general education
development certificate, or be an honorably discharged veteran of the Coast
Guard or Armed Forces of the United States, (4) have not been convicted of
a felony offense, a significant misdemeanor offense, multiple misdemeanor
offenses, or otherwise pose a threat to national security or public safety, and
(5) not be above the age of thirty.75 One may apply through USCIS by
submitting Form I-821D.76
Persons granted deferred action under the program will receive
deferred action for two years, subject to renewal, and may be eligible for
employment authorization.77 The program only defers removal action of an
individual as an act of prosecutorial discretion. The biggest difference
between SIJ status and the Deferred Action for Childhood Arrivals program
is that “deferred action does not confer lawful status upon an individual.”78
Therefore, deferred action is not as secure as SIJ status because it is only a
temporary fix, failing to provide a pathway to citizenship like SIJ status
does. Moreover, the Executive branch can revoke the program at any time.
Further, the instability of the program grows as states grapple with
whether or not to extend benefits, such as driver’s licenses, to persons
granted deferred action under the program.79 Even though the federal
exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (“By this
memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the
Department of Homeland Security (DHS) should enforce the Nation's immigration laws
against certain young people who were brought to this country as children and know only
this country as home.”).
75. See id. at 1 (setting criteria by which to consider deferred action applicants).
76. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Consideration of Deferred Action
for Childhood Arrivals, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
extchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD (last visited Sept. 23,
77. See DEP’T OF HOMELAND SEC., Deferred Action for Childhood Arrivals,
http://www.dhs.gov/deferred-action-childhood-arrivals (last visited Sept. 23, 2013)
(detailing the program’s benefits).
79. See Franco Ordonez, As states weigh licenses for young illegal immigrants, N.C.
government has said persons approved under the program are lawfully
present in the United States and should receive benefits, several states are
debating whether to comply with the mandate.80 For example, North
Carolina, after debating whether to comply or not with the President’s
program, has finally acquiesced but has said that the driver’s licenses issued
will differ from the standard North Carolina driver’s license.81 In North
Carolina, immigrants granted Deferred Action for Childhood Arrival will
receive a driver’s license, but it will be distinguishable. Initially, the
driver’s license would be vertical with a pink header stating in bold and all
caps “NO LAWFUL STATUS.”82 Pat McCrory, North Carolina’s
Republican governor, says it is a “pragmatic compromise” between those
who did not want to issue licenses and those that wanted regular licenses.83
Ultimately, the pink header was dropped but the license reads “LEGAL
PRESENCE NO LAWFUL STATUS” in red letters at the top.84 As states
begin deciding how to execute the President’s program at the state level, it
switches its position, CHARLOTTE OBSERVER, Jan. 10, 2013,
http://www.charlotteobserver.com/2013/01/10/3778437/as-states-weigh-licenses-foryoung.html#storylink=misearch (listing Arizona, Iowa, Michigan and Nebraska as states not
granting drivers licenses to deferred action recipients as well as North Carolina on the brink
of deciding against it); but see On driver’s licenses, a test for McCrory, CHARLOTTE
OBSERVER, Jan. 24, 2013,
http://www.charlotteobserver.com/2013/01/24/3810679/ondrivers-licenses.html#storylink=misearch (“Iowa has since decided to issue the drivers
licenses while North Carolina, Michigan and Arizona reconsider their decision not to, but
Nebraska maintains its position not to issue the licenses.”).
81. See Michael Biesecker, Pink Stripe on NC Illegal Immigrant Licenses Eyed,
ASSOCIATED PRESS, Feb. 22, 2013, http://m.apnews.com/ap/db_268773/contentdetail
.htm?contentguid=e9W7qG5x (detailing proposed design features for immigrant driver’s
licenses); see also Rob Schofield, DOT will make drivers licenses for immigrants look
second class, THE PROGRESSIVE PULSE, Feb. 18, 2013, http://pulse.ncpolicy
(explaining North Carolina Transportation Secretary Anthony Tata’s idea of creating
different looking driver’s licenses for immigrants granted the right to stay in the United
States under the Deferred Action for Childhood Arrivals).
82. See id. (“Not only will the licenses be vertical rather than horizontal—something
ordinarily reserved for beginning drivers—but they will also feature a pink header and
include the following words in all caps ‘NO LAWFUL STATUS.’”).
83. See Liz Goodwin, North Carolina Immigrant Protest Pink Driver’s Licenses,
YAHOO! NEWS, Mar. 5, 2013,
http://news.yahoo.com/blogs/ticket/north-carolina-immigrantsprotest-pink-driver-licenses-202908864--election.html (discussing the controversy over the
proposed North Carolina driver’s licenses for immigrants granted deferred action).
84. See Gustavo Valdes, North Carolina debuts driver’s licenses for undocumented
immigrants, CNN, Mar. 25, 2013,
http://www.cnn.com/2013/03/25/us/north-carolinaimmigrant-licenses (introducing North Carolina’s new driver’s licenses for undocumented
is clear that not all beneficiaries of the Deferred Action for Childhood
Arrivals program will receive its intended benefits.
V. The State-Level Procedural Problem: Persons Eighteen Through
Twenty-One Cannot Initiate Special Immigrant Juvenile Procedures
Most states set their age of majority at age eighteen. This means a
person above that age cannot access a juvenile court. This makes it
impossible for a person to receive the necessary juvenile court findings in
order to petition for SIJ status at the federal level because they cannot
initiate proceedings in a juvenile court. As some states do not permit a
finding of dependency for those over the age of eighteen, a person not
declared dependent on the juvenile court before reaching the age of
eighteen will not be eligible to apply for SIJ status. The extent of this
problem and how many people it affects is difficult to measure because of
how state juvenile courts are organized. Persons eighteen through
twentyone seeking SIJ findings will be unable to have their case heard in a
juvenile court because they lack standing. Cases will rarely be published
illustrating their inability to obtain jurisdiction in a state juvenile court
because they cannot access the court.
One case illustrative of this problem is Carmen’s story,85 a client at the
Washington and Lee University School of Law Citizenship and
Immigration Clinic. Carmen had a difficult childhood in her home country.
Carmen’s father, avoiding someone who was trying to kill him, abandoned
Carmen and her family when she was six-years-old. At the tender age of
eight, Carmen’s mother abandoned her too. Carmen’s grandparents let her
and her siblings live with them, but living there was not easy. Carmen’s
grandparents verbally and physically abused the children. To make matters
worse, Carmen knew that her grandfather sexually abused many of her
cousins. She lived in constant fear that he would also try to molest her.
About six years later, Carmen left her grandparent’s house to live with
her aunt, believing living conditions might be better there. Her life did not
improve. Her aunt ran a bar from inside her home and made Carmen work
in the bar as a waitress despite her young age. Her aunt beat her almost
daily with belts, jump ropes, wire cables, and tree branches. Carmen often
bled from the beatings and suffered bruises from the abuse. Carmen’s aunt
even threatened to beat her with a machete, which Carmen saw her use
85. Client name has been changed for confidentiality, redacted declaration (on file
with the Washington and Lee School of Law Immigrant Rights Clinic).
violently towards her own children. Carmen’s closest encounter with death
was at the age of fifteen. Her aunt strangled her. During the time she lived
with her aunt, gang members who frequented the bar gang raped Carmen
When Carmen’s boyfriend learned of the abuse she was suffering, he
offered for her to come live with him in another village. Hoping that the
distance would allow her to escape the abuse, Carmen agreed to live with
him. Because of his drug and alcohol dependency issues and physical
abuse, their living arrangement only lasted a year. Carmen believed he
belonged to a gang because he had several gang member friends. Also, he
had the letters “MS” tattooed on his knuckles, which stands for “Mara
Salvatrucha” (a popular gang in Honduras) and several dots tattooed
between his thumb and his pointer finger, a sign of certain crimes
Because Carmen feared returning to live with her grandparents, aunt,
and ex-boyfriend, Carmen fled to the United States. She knew that when
her mother abandoned her, she immigrated to the United States. Carmen
thought she could live with her mother. Border Patrol detained Carmen
upon entering the United States. She was seventeen years old at the time.
She was later released into her mother’s care. Unfortunately, Carmen
underwent more physical abuse in her mother’s household by her
father-inlaw and sister. It got so severe that the police were dispatched to the home
in one incident where Carmen was beaten relentlessly.
People abused Carmen her entire life. Both parents abandoned her at
an early age. While she lives with her mother now, her mother does not
protect her from physical abuse. Carmen is a good candidate for SIJ status
because she has been abused, neglected and abandoned by at least one
parent and it would not be in her best interest to return to her home country
because she fears her ex-boyfriend and family. Carmen, however, would
not qualify at this time because she is nineteen years old. Because her
state’s age of majority is eighteen she cannot access a state juvenile court to
begin the SIJ process. This is unfortunate as the federal age limit for the
remedy is twenty-one. Like Carmen, there are many other youth between
the ages of eighteen and twenty-one who qualify for SIJ status but cannot
initiate proceedings in a state juvenile court due to their age.
VI. Gauging Opportunity for Change: Tracking State Action
The Department of Homeland Security (DHS) recognizes that “certain
inequities caused by variations in state law are unavoidable.”86 This
understanding suggests that while the federal government may establish the
ceiling of age eligibility for SIJ, a state has the power to establish the
baseline eligibility for its residents. Alternatively, cognizant of state
juvenile courts’ jurisdiction maximum age, if Congress wanted all juveniles
to become ineligible for SIJ when they turned eighteen, it would be
explicitly expressed as their intent. Instead, the statute states that the
petitioner is eligible for SIJ until he or she is twenty-one years old.87 States
should consider the injustice of qualifying for a federal immigration benefit
but being unable to apply due to the state law’s age of majority.
Fairness implications and forum shopping are at stake. The
Government of the United States has broad, undoubted power over
immigration and the status of aliens based on its constitutional power to
“establish an uniform Rule of Naturalization.”88 In spite of this, in the case
of special immigrant juveniles, Congress has delegated some of its power to
state juvenile courts to assess abuse, neglect, and abandonment issues as
well as best interest determinations for the child. But, when SIJ petitioners
become aware of more favorable venues for their claims, they are more
likely to settle in those states and flood those state juvenile courts. This
burdens these specific state courts in furtherance of a federal remedy.
Therefore, immigration issues should be as uniform as possible across state
The need for consistency was recognized at the federal level in 2011
when USCIS focused on streamlining the SIJ adjudication and interview
procedure after stakeholders expressed concern about “lack of consistent
expertise being applied in adjudications.”89 USCIS issued a report to
standardize procedures for SIJ adjudications across its field offices.90 The
same concern exists at the state level because of inconsistent state laws
regulating the extension of a state juvenile court’s jurisdiction over SIJ
petitioners and the ability of youth between eighteen and twenty-one to
A. Florida’s Solution: Amending State Law to Extend Jurisdiction for
Special Immigrant Juvenile Petitioners
In 2005, Florida amended their state law to extend a state juvenile
court’s jurisdiction over certain noncitizens after they reach the age of
eighteen.91 Florida cooperates with the federal immigration process by
extending jurisdiction over SIJ petitioners until the conclusion of the federal
adjudication or petitioner’s twenty-second birthday (whichever comes
The Florida statute states that once a court declares a child
dependent, a court shall retain jurisdiction until the child turns eighteen
years old.93 But, the youth can petition the court to extend jurisdiction to
allow for their SIJ petition to be considered by federal authorities.94 The
(Apr. 15, 2011), available at
http://www.dhs.gov/xlibrary/assets/Citizenship-andImmigration-Services-Ombudsman-Recommendation-Special-Immigrant-JuvenileAdjudications.pdf (“Case problems submitted to the Ombudsman show two broad issues
arising in SIJ processing: (1) lack of consistent expertise being applied in adjudications; and
(2) delays in file transfer between USCIS and other DHS components.”).
90. See id. (“For USCIS, there is an opportunity to identify leadership teams that have
implemented best practices and to encourage the adoption of these practices throughout the
91. See FLA. STAT. § 39.013(2) (2013) (allowing extended jurisdiction over youth over
eighteen years old with pending special immigrant juvenile petitions); see also In re Amend.
to Fla. R. Juv. P., 951 So.2d 804, 812 (Fla. 2007) (“If a petition for special immigrant
juvenile status and an application for adjustment of status have been filed on behalf of a
foster child and the petition and application have not been granted by the time the child
reaches 18 years of age, the court may retain jurisdiction solely for the purpose of allowing
the continued consideration of the petition and application by federal authorities. Review
hearings shall be set solely for the purpose of determining the status of the petition and
application. The court’s jurisdiction shall terminate on the final decision of the federal
authorities, or on the immigrant child’s 22nd birthday, whichever occurs first.”).
93. See id. (expressing that generally when an order is granted it is valid until an
individual reaches the age of eighteen).
94. See id. (creating extended jurisdiction past the age of eighteen for those with
pending special immigrant juvenile petitions).
court’s jurisdiction will terminate upon petitioner receiving the final
decision from the federal authorities.95
Moreover, the Florida statute provides that in dependency proceedings,
if a child is not a citizen, then a case plan will be developed to evaluate
whether the child qualifies for SIJ status.96 If the child is eligible, the court
may provide findings of his or her eligibility.97 No later than sixty days
after a court grants an order, the department will file a petition for SIJ status
on behalf of the child.98 In cases where the petition is filed but not granted
by the time the child turns eighteen, the court may retain jurisdiction to
allow the petition to be reviewed by the federal authorities.99 The court
may not retain jurisdiction after the immigrant child’s twenty-second
After the Florida statute was amended, the Office of Administrative
Appeals reviewed an eighteen-year-old SIJ applicant’s petition because it
was a matter of first impression whether the 2005 amended Florida child
welfare statute was sufficient for petitioner to meet the regulatory
requirements for SIJ eligibility.101 The District Adjudications Officer
believed the Florida statute was amended “solely to allow individuals who
were over the age of 18 to gain permanent residence through the Special
Immigrant Juvenile petition.”102
95. See id. (ending the jurisdiction at the issuance of a final decision from the federal
96. See § 39.5075(3) (“If the case plan calls for the child to remain in the United
States, and the child is in need of documentation to effectuate this plan, the department or
community-based care provider must evaluate the child's case to determine whether the child
may be eligible for special immigrant juvenile status.”).
97. See § 39.5075(4) (“The ruling of the court on this petition must include findings as
to the express wishes of the child, if the child is able to express such wishes, and any other
circumstances that would affect whether the best interests of the child would be served by
applying for special immigrant juvenile status.”).
98. See FLA. STAT. § 39.5075(5) (2013) (explaining the department’s timeline for
filing a special immigrant juvenile petition on behalf of the child).
99. See § 39.5075(6) (stating that retention of jurisdiction is solely for the purpose of
allowing the petition to be reviewed by the federal authorities).
See id. (indicating the maximum age permitted for retained jurisdiction is
twenty101. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Office of Administrative Appeals
(June 19, 2006), http://www.uscis.gov/err/C6%20-%20Dependent%20of%20Juvenile
%20Court/Decisions_Issued_in_2006/Jun192006_01C6101.pdf (affirming the decision of
the director to approve the special immigrant juvenile petition).
102. Id. at 2.
The Office of Administrative Appeals approved the petition, stating
that an extension of jurisdiction under the Florida statute is sufficient to
meet the federal requirement of being dependent on a juvenile court.103 In
analyzing the new Florida statute, the Administrative Appeals Office
reasoned that petitioner’s counsel well articulated that the Florida
Legislature was attempting to protect the welfare of all children in the
custody of its courts, including undocumented immigrants. Prior to 2005,
Florida dependency laws did not address undocumented immigrants despite
the state’s jurisdiction over a substantial number of undocumented
immigrants. The amendment, however, allows an undocumented
immigrant child who otherwise meets the SIJ requirements but is over
eighteen to acquire resident status through the SIJ petition process.104 The
Office of Administrative Appeals explained that this would be banned if the
Florida statute defeated the purpose of federal law.105 Importantly, the
Office of Administrative Appeals found Florida’s action to be permissible
and within their powers because the federal statute allows the SIJ remedy
for persons under the age of twenty-one.106 Here, the applicant had an order
for extended jurisdiction from the Florida court, and otherwise met all the
requirements under the federal statute.107 Thus, Florida could extend
juvenile jurisdiction for SIJ petitioners that crossed into the age of majority
while USCIS was reviewing their application.108
Florida’s decision had positive implications for SIJ petitioners. After
the 2008 TVPRA amendments passed, however, the problem that Florida’s
state law solved no longer exists. Still, age out protections are needed at the
state level for petitioners between eighteen and twenty-one seeking to
initiate the SIJ petition process in a state juvenile court. Nevertheless, the
103. See id. at 5 (confirming that the petitioner meets the statutory requirements of 8
C.F.R. § 204.11).
104. FLA. STAT. § 39.5075(6), (7) (2013).
105. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Office of Administrative Appeals
(June 19, 2006), http://www.uscis.gov/err/C6%20-%20Dependent%20of%20Juvenile
%20Court/Decisions_Issued_in_2006/Jun192006_01C6101.pdf (affirming the decision of
the director to approve the special immigrant juvenile petition).
106. See 8 C.F.R. § 204.11(c)(1) (2009) (“An alien is eligible for classification as a
special immigrant under section 101(a)(27)(J) of the Act if the alien: (1) Is under twenty-one
years of age.”).
107. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Office of Administrative Appeals
(June 19, 2006), http://www.uscis.gov/err/C6%20-%20Dependent%20of%20Juvenile
%20Court/Decisions_Issued_in_2006/Jun192006_01C6101.pdf (affirming the decision of
the director to approve the special immigrant juvenile petition).
Florida situation teaches a larger lesson—a state can fix SIJ procedural
problems so long as it acts within federal law’s limitations.
B. The Struggle to Amend Texas State Law to Include Protections for
Special Immigrant Juveniles
In Texas, family district courts have jurisdiction over “child welfare,
custody, support and reciprocal support, dependency, neglect, and
delinquency.”109 Therefore, under the Act, family district courts are
juvenile courts.110 The Texas Family Code, however, has not made any
changes that would benefit SIJ petitioners between the age of eighteen and
twenty-one. The Texas Family Code maintains that a “child” is “a person
under 18 years of age who is not and has not been married.”111
The Legislative Budget Board staff in the 2009 Texas State
Government Effectiveness and Efficiency (GEE) report recognized the
jurisdictional problem for SIJ petitioners and proposed extending the state
juvenile court’s jurisdiction over SIJ petitioners as a solution.112
Representative Hernandez Luna has advocated for a change since 2009.113
She not only hopes to follow in Florida’s footsteps of extended jurisdiction,
but also wishes to address the ability of persons between ages eighteen and
twenty-one to initiate proceedings in a juvenile court in order to obtain the
necessary SIJ findings to file a petition with USCIS.114 As such, House Bill
4426, sponsored by Representatives Robert Alonzo, Leticia Van de Putte
and Ana Hernandez Luna proposed amending the Texas Family Code to
add chapter forty-six to address special immigrant juvenile status of “young
adults,” or those between the ages of eighteen and twenty-one.115 The
chapter would allow a “young adult” to file a suit requesting SIJ findings.116
The House Bill would also amend Texas Family Code chapters
fiftyone, one hundred fifty-five, and two hundred sixty-two.117 This would
allow a court to retain jurisdiction over a young adult who has petitioned
for SIJ status until the earliest of: the young adult’s twenty-first birthday;
the date the young adult was granted lawful permanent resident status; the
date an appeal was denied for a permanent residency application based on a
SIJ petition; or the day after the last day to file an appeal of the denial of an
application for permanent residency based on a petition for SIJ status.118
The bill’s intent is to address “[t]he lack of consistency between ‘age out’
dates in the state and federal statute [that] complicates access to this relief
for abused and abandoned children in Texas.”119 Thus, as proposed the
House Bill would solve the problem that this Note addresses. Accordingly,
House Bill 4426 was introduced into the eighty-first Texas Legislative
Session, during which over one hundred other bills were filed referencing
state immigration matters, and more than sixty percent were anti-immigrant
bills.120 It passed in the Texas House with 111 votes.121 The Senate,
however, did not vote on the bill prior to the close of the session.122
In 2011, Representative Ana Hernandez Luna tried again, filing House
Bill 1466 in the eighty-second Texas Legislative Session.123 The bill
contained the same text as House Bill 4426, but this time the bill did not
make it out of the House, likely due to the political composition of the
House at that time.124
On January 14, 2013, Representative Hernandez Luna filed House Bill
496 with the same text as previous attempts.125 Again, the bill aspires to
allow “young adults” between the ages of eighteen and twenty-one to
initiate proceedings for SIJ findings and to extend jurisdiction over
individuals who have filed for SIJ.126 The Bill would allow a young adult
who is not a citizen or permanent resident of the United States to file a suit
requesting the court to declare that the young adult has been abused,
neglected, or abandoned and otherwise meets the requirements for SIJ
status. Texas’s proposed change would be monumental, helping those
youth between the ages of eighteen and twenty-one to initiate a proceeding
for SIJ findings in a Texas family court. Thus, while Texas has not yet
implemented any change to their Family Code, SIJ advocates are hopeful
that Representative Hernandez Luna’s efforts will be better received in
Texas’ eighty-third Legislative Session.
C. New York’s Guardianship Proceedings: Creating a Path for Persons
Between the Ages of Eighteen and Twenty-One to Obtain Special Immigrant
Pursuant to a 2008 amendment, New York Family Court Act Section
661(a)127 explicitly authorizes the appointment of a guardian for a person
“who is less than twenty-one years old who consents to the appointment or
continuation of a guardian after the age of eighteen.”128 Prior to the
amendment, the maximum age for guardianship proceedings was
eighteen.129 This is an important change because it allows persons between
the ages of eighteen and twenty-one to initiate proceedings in a juvenile
court and thus receive findings for a SIJ petition. In fact, following the
2008 amendment, Matter of Antowa McD.130 expressly held that
guardianship proceedings for persons between the ages of eighteen and
twenty-one constitute a declaration of dependency on a juvenile court for
purposes of applying for SIJ.131 Following the change, several SIJ
petitioners between the ages of eighteen and twenty-one obtained SIJ
findings through guardianship proceedings.132
In Matter of Sing W.C.,133 the court further acknowledged its
protection of SIJ petitioners. The court determined that it possessed the
authority to order the New York City Administration for Children’s
Services to conduct an investigation to determine guardianship for persons
over the age of eighteen but under twenty-one in order to apply for SIJ,
despite the agency’s objection that their authority only extended to persons
under the age of eighteen.134
Further defending it’s position, in 2011, the New York Second
Department reversed Family Court decisions denying SIJ status for a
nineteen year old,135 and a twenty year old,136 reinforcing its view that the
benefits of guardianship for SIJ purposes and the need to protect a child’s
best interest outweigh other countervailing considerations. In Mohamed B.,
a ‘minor,’ defined as a person not yet 18 years of age.”).
130. See In re Antowa McD., 865 N.Y.S.2d 576, 576 (2008) (reversing denial of
findings that would enable appellant to apply for special immigrant juvenile status).
131. See id. (“Family court’s appointment of a guardian constitutes the necessary
declaration of dependency on a juvenile court.”).
132. See Trudy-Ann W. v. Joan W., 901 N.Y.S.2d 296, 299 (2010) (“Since we have
appointed Alcie S. as Trudy-Ann’s guardian, Trudy-Ann is dependent on a juvenile court.”);
see also In re Jisun L. v. Young Sun P., 905 N.Y.S.2d 633, 635 (2010) (declaring that 21
year old appellant is dependent on the Family Court, unmarried, under 21 years of age, that
reunification with one or both parents is not viable due to abuse and neglect, and that it is in
his best interest to be returned to South Korea).
133. See In re Sing W.C. v. Sing Y.C., 920 N.Y.S.2d 135, 142 (2011) (holding “that
within the context of a proceeding commenced pursuant to Family Court Act § 661 (a) for
the purpose of establishing eligibility for special immigrant juvenile status, the Legislature
intended the meaning of the word ‘child’ to include any individual under the age of 21”).
134. See id. at 138 (rejecting ACS’s argument that, “since it was created by statute to
investigate reports of suspected abuse and maltreatment of children, and the term ‘child’ is
defined as a person under the age of 18”).
135. See In re Mohamed B., 921 N.Y.S.2d 145, 146 (2011) (“Mohamed B., a native of
Sierra Leone, is 19 years old and unmarried.”).
136. See In re Alamgir A., 917 N.Y.S.2d 309, 310 (2011) (“Alamgir A., a native of
Bangladesh, is 20 years old, unmarried, and has lived in the United States with nonrelatives
since age 12.”).
the child originally lived with his grandmother and older brother in Sierra
Leone because his father regularly beat him and both parents neglected
him.137 Mohamed won a scholarship competition sponsored by a
Connecticut church. The church obtained a visa for him to visit the United
States.138 Prior to his scheduled return to Sierra Leon, Mohamed became
separated from his hosts while visiting Manhattan.139 Following the
separation, he lived with natives of Sierra Leone whom he met in New
York City, and eventually enrolled in high school.140 He then began living
with his former teacher in New York.141 The evidence showed that
Mohamed’s former teacher gave him financial support, emotional support,
and the ability to pursue educational goals.142
Mohamed’s former teacher commenced guardianship proceedings with
Mohamed’s consent.143 Mohamed, now nineteen years old, moved for an
order making findings that would enable him to apply to USCIS for SIJ
status.144 The Family Court granted the guardianship petition,145 but denied
the motion for SIJ findings due to concern about the circumstances
surrounding Mohamed’s separation from his hosts while in Manhattan146
The Second Department indicated that it was error to consider the
underlying circumstances where the individual met the requirements of the
federal Immigration and Nationality Act.147 Mohamed met the
requirements: he was under the age of twenty-one, unmarried, dependent on
the court because he underwent guardianship proceedings, reunification
with one or both parents was not viable due to abuse and neglect, and it was
not in his best interest to return to Sierra Leone.148 Therefore, the Family
Court’s focus on the circumstances surrounding Mohamed’s separation
from his hosts led to an improper denial of Mohamed’s motion for SIJ
findings.149 This case illustrates that at the New York state level, persons
between the ages of eighteen and twenty-one are able to receive SIJ
findings by going through guardianship proceedings.
At the federal level, the USCIS Office of Administrative Appeals
confirmed Section 661 as a viable option for New York SIJ petitioners.150
In one case, a New York USCIS District Director denied a SIJ petition after
the petitioner had received the necessary state findings. On appeal, the
Office of Administrative Appeals emphasized that the juvenile court’s
appointment of petitioner’s grandmother as his guardian in a guardianship
proceeding verified that it was in petitioner’s best interest to remain in the
United States instead of returning to Guyana. The Office of Administrative
Appeals relied on the guardianship proceeding as evidence of best interest
because Section 661 determines that guardianship appointments will be
based on the best interests of the child.151 Therefore, the Office of
Administrative Appeals set precedent that the New York state guardianship
law adheres to federal immigration law, creating a path for petitioners
between the age of eighteen and twenty-one to petition for SIJ status.
Consequently, any state that had doubts about following New York’s
footsteps can now do so without fear of being at odds with the federal Act.
D. California: Establishing Best Practices For Accommodating Special
Immigrant Juvenile Petitioners
California’s age of majority is eighteen.152 Under California state law,
however, a court may retain jurisdiction over all juveniles until the age of
twenty-one.153 Thus, under California state law there is no conflict with the
federal statute, allowing the applicant time to petition up to age twenty-one
149. See In re Mohamed B., 921 N.Y.S.2d 145, 147 (2011) (reversing the lower court).
150. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., Office of Administrative Appeals
(Oct. 14, 2009), http://www.uscis.gov/err/C6%20-%20Dependent%20of%20Juvenile
%20Court/Decisions_Issued_in_2009/Oct142009_01C6101.pdf (granting special immigrant
juvenile petition because petitioner met statutory requirement after being placed under the
custody of his grandmother).
151. See N.Y. FAM. CT. ACT § 661 (a) (McKinney 2008) (“[T]he court may appoint a
permanent guardian of a child if the court finds that such appointment is in the best interests
of the child.”).
152. See CAL. FAM. CODE § 6500 (West 1994) (“A minor is an individual who is under
18 years of age.”).
153. See CAL. WELF. & INST. CODE § 303 (West 2013) (“The court may retain
jurisdiction over any person who is found to be a ward or a dependent child of the juvenile
court until the ward or dependent child attains the age of 21 years.”).
despite the state age of majority being eighteen.154 Also, in California, SIJ
petitioners have benefited from a broad interpretation of “juvenile court,”
allowing their SIJ findings to be found by a superior court.155 Moreover,
effective January 1, 2013, California added a section to their code titled
“Children in juvenile court cases eligible for special immigrant juvenile
status; guidance on best practices and facilitation of exchange of
information among counties.”156 The section instructs the State Department
of Social Services to annually provide best practices on how to assist a
juvenile that is eligible for SIJ status.157 The guidance helps petitioners
apply for SIJ status before they turn twenty-one.158 California’s focus on
helping SIJ petitioners apply before they turn twenty-one (the federal age
maximum) instead of eighteen (the California state age of majority), shows
that California is committed to providing access to state courts to aid
petitioners in obtaining the federal remedy.
California provides practical assistance to qualifying persons. For
example, Los Angeles County has created a system that should serve as a
model for the rest of the United States.159 The program depends on the
cooperation of social workers, judges, immigration officials, and pro bono
lawyers working together to ensure that eligible persons are granted SIJ
154. See 8 C.F.R. § 204.11(c)(1) (2009) (“An alien is eligible for classification as a
special immigrant under section 101(a)(27)(J) of the Act if the alien: (1) Is under twenty-one
years of age.”).
155. See B.F. v. Superior Court, 207 Cal. App. 4th 621, 630 (2012) (“We conclude the
superior court sitting as a probate court has the authority and duty to make findings within
the meaning of section 1101(a)(27)(J) and 8 Code of Federal Regulations part 204.11.”).
CAL. WELF. & INST. CODE § 10609.97 (West 2013).
157. See WELF. & INST. § 10609.97(a) (“The State Department of Social Services shall
provide guidance on best practices and facilitate an exchange of information and best
practices among counties on an annual basis, commencing no later than January 1, 2014, on
assisting a child in a juvenile court case who is eligible for special immigrant juvenile status
under Section 1101(a)(27)(J) of Title 8 of the United States Code. This exchange of
information may be accomplished by posting training and other information on the
department's Internet Web site.”).
158. See id. § 10609.97(b) (West) (“The guidance shall include procedures for assisting
eligible children in applying for special immigrant juvenile status, before the children reach
21 years of age or get married, and applying for T visas, U visas, and Violence Against
Women Act self-petitions.”).
159. See Anna Gorman, Green Cards Go Unclaimed by Many Youths in Foster Care:
Certain Abused or Abandoned Dependents of the State are Eligible for Legal Residency, But
Not All Know the Law, L.A. TIMES, June 25, 2007, http://articles.latimes.
com/2007/jun/25/local/me-foster25 (“Los Angeles County is among the few areas where the
law works well, experts said. The county's program is seen as a model nationwide, because
social workers, judges, immigration officials and pro bono lawyers work together to ensure
that eligible juveniles get green cards.”).
status before their age prohibits it,160 with the attitude, “it just takes one
person to identify that someone is eligible,”161 California is making a
difficult procedure more accessible for potential petitioners. In response,
USCIS officials at that local office have streamlined their procedures for
persons close to the age of twenty-one because they recognize the risk of
them aging out.162 California’s efforts demonstrate that a law fixing SIJ
procedural issues must also address practical realities.
At the federal level, limited age-out protection exists. As a result of
the 2008 TVPRA, USCIS can no longer deny a SIJ petition because the
petitioner has reached the age of majority and can no longer claim
dependency on the court. Furthermore, USCIS cannot automatically deny a
petition if the petitioner turns twenty-one while the case is being
adjudicated. Now, USCIS may approve the SIJ petition as long as the child
is under the age of twenty-one when the petition is filed. Thus, the federal
government has done its part to ensure age-out protections are in place.
Accordingly, it is important for states to take action and set age-out
protections for the part of the SIJ process that the state controls. Because
the federal government cannot infringe state sovereignty, state legislatures
must act independently to extend juvenile court jurisdiction over all SIJ
eligible youth. This Note recommends that states lacking SIJ procedural
protections amend their state codes to allow youth between the ages of
eighteen and twenty-one to initiate SIJ findings at the state court level.
Texas’ proposed change to its state family code is the ideal solution to
the age related procedural problem discussed in this Note. Its coverage of
persons between the ages of eighteen and twenty-one ensures that all
persons the federal Act intended to reach may apply for SIJ status. Like the
Texas proposed bill, in drafting state law amendments, states should make
specific mention of special immigrant juveniles because acknowledging the
group will spread awareness of the remedy’s existence and significance.
Also, by naming the group, there will be no question that the state intended
SIJ petitioners to benefit from the amendment.
162. Id. at 2 (“Age out issues are of concern, . . . In order to prevent that from
happening . . . we try to shorten that processing time frame as much as possible.”).
While the state changes will impact SIJ petitioners directly, the
changes would also have wider implications. The nation’s conversation on
immigration is changing. Politicians in both parties are rethinking their
stances on immigration. For example, former Republican presidential
candidate Mitt Romney stated that his campaign did not do a good job
connecting with Hispanic voters.163 Many Republicans acknowledge that
“the party needs to change its image” to be more welcoming of Hispanics
and softer on immigration.164 The need to attract Hispanic voters alone
should serve as an incentive to make compromises and enact pro-immigrant
measures. Hispanic voters are important because the Census estimates that
by 2043, the Hispanic population will be the largest ethnic group in the
The SIJ immigration remedy is not particularly controversial. SIJ
status is an immigration remedy designed to help abused, neglected and
abandoned children. It is much less controversial than other immigration
measures. The SIJ remedy only benefits the abused, neglected, or
abandoned youth. “Floodgate” concerns carry little weight. Unlike other
immigration remedies, parents of SIJ beneficiaries cannot obtain lawful
status as a result of their child possessing lawful status.166 The parent still
faces deportation if he or she entered the United States illegally.
Accordingly, all political parties should be able to agree on protections for
abused, neglected, and abandoned children and young adults.
Given the benefits SIJ status can confer on abused, neglected, or
abandoned youth, states must act to prevent this vulnerable group of
persons from losing access to a valuable federal immigration remedy.
Some states have already taken action. Florida, Texas, New York, and
California have all made strides to ensure that their state-level procedures
for petitioning for SIJ status are accessible to persons eligible under the
federal Act. An ideal state model will identify Special Immigrant Juvenile
status as a federal immigration remedy available to persons under the age of
twenty-one, allowing youth between the ages of eighteen and twenty-one to
initiate proceedings despite the state’s age of majority. States must make
efforts to complement the federal SIJ remedy. A juvenile under federal law
should be a juvenile under state law. Anything else defies justice,
compassion, and common sense.
4. See Immigration and Nationality Act , Pub. L. No. 101 - 649 , § 153 , 104 Stat. 4978 , 5005 - 06 ( 1990 ) (codified at 8 U .S.C. § 1101 (a)( 27 ) (J) ( 2006 )) (establishing Special Immigrant Juvenile Status) .
9. See 101 Bill Tracking S. 358 ( 1990 ) (Lexis); see also IMMIGRATION ACT OF 1990 , http://www.govtrack.us/congress/bills/101/s358#overview (last visited Sept . 23 , 2013 ) (showing quick, favorable movement through the House and Senate).
10. See Yeboah v. U.S. Dep't of Justice , 345 F.3d 216 , 221 ( 3d Cir . 2003 ) (“This is a giant loophole . . . every visiting student from oversees can have a petition filed in a state court . . . declaring that they're a ward and in need of foster care , . . . [and ] they're granting them .”).
12. See Immigration and Nationality Act , Pub. L. No. 105 - 119 , § 113 , 111 Stat. 2440 , 2460 ( 1997 ) (requiring findings of abuse, neglect , or abandonment); see also 143 Cong. Rec. H10809-01 , 1997 WL 705004, H. Rep . No. 105 - 405 ( 1997 ).
17. PENAL § 11165 .2.
18. D.C. CODE § 16 - 2301 ( 23 ) ( A ) ( 2012 ).
19. § 16 - 2301 (B) (i).
20. Id .
21. § 16 - 2301 (B) (i)(I).
22. § 16 - 2301 (B) (i)(II).
23. N. Y. SOC. SERV. LAW § 384-B ( 5)(a) (McKinney 2012) .
24. See Memorandum from William R. Yates , Associate Director for Operations, to Regional Directors & District Directors 4-5 (May 27, 2004 ), http://www.uscis.gov/ USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2004/sij_memo _052704. pdf (“The adjudicator generally should not second-guess the court rulings or question whether the court's order was properly issued .”).
25. See Trafficking Victims Protection Reauthorization Act , Pub. L. No. 110 - 457 , 122 Stat. 5044 ( 2008 ) (amending the INA, and making changes to requirements for SIJ status, streamlining SIJ procedures) .
26. See Memorandum from Donald Neufeld, Acting Associate Director Domestic Operations , USCIS & Pearl Chang , Acting Chief Office of Policy & Strategy , USCIS, to Field Leadership 2 ( Mar . 24, 2009 ), http://www.uscis.gov/USCIS/Laws/ Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ. pdf (“An eligible SIJ alien now includes an alien who has been declared dependent on a juvenile court; whom a juvenile court has legally committed to, or placed under the custody of an agency or department of a
34. See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54983 ( Sept . 6, 2011 ) (to be codified at 8 C.F .R. pt. 204 , 205 and 245), available at http://www.gpo.gov/fdsys/pkg/FR-2011 - 09-06/pdf/2011- 22625 . pdf (explaining that USCIS intends to adhere to the 180-day benchmark contained in TVPRA 2008 ) ; see also 8 C.F .R. § 103 . 2(b)(10)(i) ( 2008 ) (stating the 180-day timeframe begins when the SIJ petition is receipted, but, if USCIS sends a request for additional evidence, the 180-day timeframe will stop and resume once USCIS receives a response from the SIJ petitioner) .
35. See January Contreras, U.S. CITIZENSHIP AND IMMIGRATION SERVS . OMBUDSMAN, Special Immigrant Juvenile Adjudications: An opportunity for Adoption of Best Practices (Apr . 15, 2011 ), available at http://www.dhs.gov/xlibrary/assets/Citizenship-andImmigration- Services-Ombudsman-Recommendation-Special-Immigrant-JuvenileAdjudications.pdf (explaining that there is a delay in SIJ petition turnover ).
37. See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54983 ( Sept . 6, 2011 ) (to be codified at 8 C.F .R. pt. 204 , 205 and 245), available at http://www.gpo.gov/fdsys/pkg/FR-2011 - 09-06/pdf/2011- 22625 .pdf.
38. U.S. CITIZENSHIP AND IMMIGRATION SERVS ., USCIS Seeks Public Comment on Proposal to Amend Special Immigrant Juvenile Regulations, (Sept. 6 , 2011 ) http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgn
47. Id .
48. 8 C.F.R. § 204 .11( a ) ( 2009 ).
49. See id. (defining juvenile court as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of the juveniles”).
50. Id .
51. § 204 .11( c )( 6 ).
52. See § 204 . 11 (d)(2) (listing the required showings for SIJ status) .
53. See NEW YORK FAMILY COURT, GF-42 Special Immigrant Juvenile Status Order, http://www.nycourts.gov/forms/familycourt/pdfs/gf-42.pdf (last visited Sept . 23 , 2013 ).
54. See CALIFORNIA SUPERIOR COURT, JV-244 Order Regarding Eligibility for Special Immigrant Juvenile Status , http://www.courts.ca.gov/documents/jv224.pdf (last visited Sept . 23 , 2013 ).
55. See Memorandum from Deana Fleming to District Administrators and Attorney Advocates 4 (July 27, 2006 ), http://www.nccourts.org/Citizens/Gal/Documents/
69. See IMMIGRANT LEGAL RES. CTR ., Introduction and Overview to Special Immigrant Juvenile Status (Jan . 2010 ), http://www.ilrc.org/files/2010_ sijs-chapter_03- sijs_overview.pdf 3-10 (discussing benefits of SIJ) .
70. See Development , Relief, and Education for Alien Minors Act of 2007, S . 774 , 110th Cong. ( 2007 ) (proposing to amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to authorize cancellation of removal and adjustment of status of certain alien students who are long-term United States residents who entered the United States as children in order to determine State residency for higher education purposes).
71. See IMMIGRANT LEGAL RES. CTR ., Introduction and Overview to Special Immigrant Juvenile Status (Jan . 2010 ), http://www.ilrc.org/files/2010_ sijs-chapter_03- sijs_overview.pdf (discussing benefits of SIJ) .
72. Other remedies, however, are available. For example, there is an immigration remedy available for a crime victim who and reports the crime to the police and cooperates with the authorities if there is an investigation. This remedy is called a U Visa, but it is not limited to children .
73. See Memorandum from Janet Napolitano to David V. Aguilar, Acting Commissioner U.S. Customs and Border Prot ., Alejandro Mayorkas , Director U.S. Citizenship and Immigration Servs ., & John Morton, Director U.S. Immigration and Customs Enforcement (June 15, 2012 ), available at http://www. dhs.gov/xlibrary/assets/s1-
86. See Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court, Final Rule , Department of Justice, Immigration and Naturalization Service , Supplementary Information, 58 Fed. Reg. 42843 , 42846 (Aug. 12, 1993 ) (“An alien in one state would be eligible for the benefit, while an alien in substantially identical circumstances living in another state would not be eligible .”).
87. See 8 C.F.R. § 204 . 11 (c)(1) ( 2009 ) (“An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien: (1) Is under twenty-one years of age .”).
88. See U.S. CONST. art. I, § 8, cl. 4 (“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States .”).
89. See January Contreras, U.S. CITIZENSHIP AND IMMIGRATION SERVS . OMBUDSMAN, Special Immigrant Juvenile Adjudications: An opportunity for Adoption of Best Practices
109. TEX. GOV'T CODE § 24 . 601 (b)(4) (West 2013 ).
110. See Immigration and Nationality Act § 101 (a)( 27 ) (J) ( 2006 ).
111. TEX. FAM. CODE § 101 .003( a ) ( West 2013 ).
112. See Legislative Budget Board Staff , Texas State Government Effectiveness and Efficiency 240 ( Jan . 2009 ), http://www.f2f.ca.gov/res/pdf/TXGovtEffectiveEfficiency ReportSIJSONLY. pdf (“Recommendation 6: Amend the Texas Family Code to extend the jurisdiction that county courts and district courts have over youth in foster care from age 18 to age 21, if Special Immigrant Juvenile Status petitions and legal permanent status applications have been filed .”).
113. See H .B. 1466 , 82nd Sess., (Tex . 2011 ) (detailing the bill to be enacted).
114. See id. (detailing the favorable components of bill to be enacted for the benefit of SIJ petitioners) .
115. See HOUSE RESEARCH ORGANIZATION, Bill Digest (May 8, 2009 ), http://www.lrl.state.tx.us/scanned/hroBillAnalyses/81-0/HB4426.PDF (explaining House Bill 4426 ).
116. See id. (explaining the amended law's benefits for young adults between the ages of eighteen and twenty-one) .
117. See H .B. 1466 , 82nd Sess., (Tex . 2011 ) (explaining the chapters in the state code that would be amended to accommodate SIJ petitioners) .
118. See id. at 2 (providing a digest of the bill's defining features ).
119. SENATE RESEARCH CENTER, Bill Analysis (May 17 , 2009 ), http://www.legis.state.tx.us/tlodocs/81R/analysis/html/HB04426E.htm.
120. See Thomas Esparza, Jr., 2009 Legislative Activity in Texas, Oklahoma and New Mexico (Nov. 6 , 2009 ), http://www.tomesparza.com/ 2009 /11/07/ (providing statistics courtesy of the Texas American Civil Liberties Union and the Mexican-American Legal Defense Fund) .
121. See OPEN STATES , HB 4426 , http://openstates.org/tx/bills/81/HB4426/ (last visited Sept. 10 , 2013 ) (showing the bill passed in the house with 111 votes on May 12, 2009 ).
122. See id. (showing the bill only progressing through the House) .
123. See H .B. 1466 , 82nd Sess., (Tex . 2011 ) (detailing the bill to be enacted).
124. See THE TEXAS TRIBUNE, 82nd legislative session Bills , http://www. texastribune.org/session/ 82R/bills/HB1466/ (last visited Sept. 23 , 2013 ) (tracking the progress of House Bill 1466) .
125. See H .B. 486 , 83rd Sess., (Tex . 2013 ) (providing the bill text and status ).
126. Id . (“In this chapter, 'young adult' means a person who is at least 18 years of age and younger than 21 years of age .”).
127. See N.Y. FAM. CT . ACT § 661 (a) ( McKinney 2008 ) (“For purposes of appointment of a guardian of the person pursuant to this part, the terms infant or minor shall include a person who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen .”).
128. Trudy-Ann W. v. Joan W., 901 N.Y.S.2d 296 , 299 ( 2010 ).
129. See In re Vanessa D. v. Deborah T., 856 N.Y.S.2d 868 , 868 ( 2008 ) (dismissing a guardianship proceeding because the child was no longer a minor subject to the court's jurisdiction); see also Matter of Luis A .-S., 823 N.Y.S.2d 198 , 199 ( 2006 ) (“However, the authority of the Family Court to appoint a guardian extends only to the person or property of
163. Mitt Romney on Fox News Sunday: Heart Told Him He'd Win , Until He Saw Florida, ASSOCIATED PRESS, Mar . 3 , 2013 , http://bigstory.ap.org/article/romney -heart-toldhim-hed-win-until-he-saw-fla.
164. See Tim Eaton, Immigration Bills Dwindle at Texas Legislature, STATESMAN (Feb. 3 , 2013 ), http://www.statesman.com/news/news/immigration-bills -dwindle-at-texaslegislature/nWFCR/ (discussing the changes leading to immigration becoming a nonissue).
165. See Whites Will No Longer Be a Majority in the U.S. by 2043 as Hispanic Population Surges, Census Data Reveals , ASSOCIATED PRESS, Dec . 12 , 2012 , http://www.dailymail.co.uk/news/article-2247119/2043-census -prediction-US-whiteslonger-majority-Hispanic-population-surges.html (projecting changes in demographics).
166. See 8 U.S.C. § 1101(a)(27)(J)(iii)(II) ( 2006 ) (explaining neither natural nor adoptive parent can benefit from child's SIJ status) .