Notice & Comment

Unblocking the Path for Abused, Neglected, and Abandoned Juvenile Immigrants: R.F.M. v. Nielsen

Immigration law provides a path to lawful permanent residence for abused, neglected, or abandoned juveniles, see 8 U.S.C. §§ 1101(a)(27)(J),[1] who are accorded Special Immigrant Juvenile (SIJ) status, see R.F.M. v. Nielsen, 2019 WL 1219425 *1 (S.D.N.Y. March 15, 2019).  To establish eligibility, the juvenile must secure a state court special finding order specifying that (1) he or she had been abused, neglected, or abandoned; (2) he or she is dependent on a juvenile court or has been placed under the custody of an individual or entity appointed by juvenile court; (3) his or her reunification with one or both parents is not viable; and (4) return to his or her previous country of nationality or of last habitual residence would not serve his or her best interest.  See Id. at *5.

The New York Family Court has jurisdiction over all proceedings involving abuse, neglect, support, guardianship, and custody in the state.  N.Y. Fam. Ct. Act § 115(a)(i)-(ii), (iv); N.Y. Const. Art. VI § 13.  The Family Court’s jurisdiction over un-consenting juveniles ends at age 18, see, N.Y. Fam. Ct. Act § 119(c), but with the juvenile’s consent, the Court retains jurisdiction to appoint guardians for juveniles up to the age of 21. N.Y. Fam. Ct. Act. §661(a).

United States Citizenship and Immigration Services (“USCIS”), the Department of Homeland Security component that acts upon requests for immigration benefits, has long regularly approved SIJ applications made by 18- to 21-year-old immigrants who obtained special findings orders issued by the New York Family Court. R.F.M. v. Nielsen, 2019 WL 1219425 at *8.  But in early 2018, USCIS began denying almost all such SIJ applications.  Id.

USCIS acknowledged the alleged pattern of results, but insisted that the pattern reflected no change in policy. Id. at *15, *16.  Rather the discontinuity stemmed from USCIS’s November 2016 centralization of SIJ adjudications from various field offices to its National Benefits Center.  Id.  As a consequence, USCIS had provided training to its National Benefits Center adjudicators and updated its Policy Manual. Id.  More to the point, in February 2018 USCIS issued  legal guidance in response to a National Benefits Center request for “legal clarification” regarding applications filed by those over 18 at the time an otherwise qualifying state court order was issued.  Id.

Under the Legal Guidance, the New York Family Court, essentially the only court in the state with jurisdiction over abuse and neglect proceedings,[2] was no longer considered competent to make the findings necessary for entering a special findings order for juveniles over 18.  Id.  Why not?  First, in the agency’s view, the New York Family Court lacked the power to grant custodial rights to juveniles over 18.  (The Court could grant guardianship, but not custody.)  Id. at *17.  Second, the Court lacked jurisdiction under state law to place the child under the custody of the allegedly unfit parent.  Id. at *15.  Yes, you read the last line correctly.[3]

The District Court overturned the policy change (or in the agency’s lexicon, “legal clarification”) as arbitrary and capricious, beyond the agency’s legal authority, and procedurally deficient, id. at *17-*22, an abuse of agency power trifecta.

USCIS’ requirement that a state court must have jurisdiction to make custody determinations to qualify as a juvenile court conflicted with the plain language of the statutory provision defining SIJ status, 8 U.S.C. §§ 1101(a)(27)(J). The statute is phrased in the disjunctive, requiring either a judicial declaration that the immigrant is dependent on a juvenile court or a qualifying custody arrangement.  Id. at *18.  The Court noted that the New York courts have held, and USCIS has agreed, that appointment of a guardian makes the juvenile “dependent” on the Family Court for purposes of the SIJ statute.  Id. at *8, *18.  USCIS reliance on its own regulations, keyed to a prior version of the SIJ statute that required a custody determination as a prerequisite of SIJ status, could not justify contravening the text of the current SIJ statute.  Id. at 18.[4]

With respect to USCIS’ position that a qualifying court must have the power to order family reunification, the Court found the agency’s position to be contrary to the statutory definition of SIJ status, lacking in a reasoned explanation.  In particular, the Legal Guidance had relied on the regulations keyed to an earlier version of the statute, which had tied SIJ status to eligibility for long-term foster care, but that statutory requirement that had been deleted ten years previously. Id. at *19.  Rather than offering a reasoned explanation for its position, the agency had, in the Court’s words, proffered nothing but its own ipse dixit to support its position.  Id.[5]  Moreover, USCIS’ premise that the Family Court that the Family Court did not meet its standard reflected a misunderstanding of New York law.  The Family Court could reunify the child with his or her allegedly abusive parents by appointing them as the child’s guardian, so long as the child consented.  Id. at *20.

The Court also found that DHS had exceeded the authority conferred upon it by 8 U.S.C. § 1101(a)(27)(J)(iii) to withhold consent to conferral of SIJ status.  Id.  According to its own policy manual, USCIS’ exercise of its authority to withhold consent is limited to ensuring that a state court order apparently meeting the statutory requirements was “bona fide,” in the sense that it “was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit.”  Id. (quoting the USCIS’ Policy Manual).  By substituting its views of the scope of the Family Courts’ jurisdiction for those of the Family Court itself, the agency had exceeded its limited power to withhold consent.  Id. at *20-21.

Plaintiffs also alleged that 5 U.S.C. §552(a)(1) barred USCIS from relying upon its new policy (sorry, “legal clarification”).  Section 552(a)(1) provides that a person may not be adversely affected by a matter the section requires to be published in the Federal Register if the agency has not done so and cannot establish that the potentially adversely-affected person had actual notice of the requirement.  Among the matters that must be published are “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” 5 U.S.C. § 552(a)(1)(D).[6]

The Court held that USCIS’s new policy (sorry, “legal clarification”) “fell within the broad category of rules and interpretations encompassed by § 552(a)(1)(D),” because of its binding effect in SIJ adjudications.  Id. at *21 (quoting Snyder v. Secretary of Veterans Affairs, 858 F.3d 1410, 1413 (Fed. Cir. 2017)). The policy (sorry, “legal clarification”) “narrowly limits agency discretion” and “establishes a binding norm” as demonstrated by the consistent denial of SIJ applications made by juveniles between the ages of 18 and 21 in New York. Id.

The agency argued that it had satisfied the publication requirements because its publicly-available Policy Manual explains its position.  Id. at *21.  However, the Court observed, the Legal Guidance’s narrow interpretation of the New York Family Court’s jurisdiction was nowhere in the Policy Manual.  Id.[7]

Dare we hope that DOJ appellate staff refuses to authorize an appeal?

*  *  *  *  *  *  *

[1] The statute defines the parameters of that special immigration statute as follows:

(J) an immigrant who is present in the United States—

(i) who 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;

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, . . .

[2] The New York Surrogate’s Court jurisdiction encompasses the power to enter such orders, but in practice that Court does not enter such orders.  R.F.M. v. Nielsen, 2019 WL 1219425 at *8, n.5.

[3] USCIS’ position does have a certain perverse logic.  Ordinarily, a court lacks jurisdiction to decide an issues if it lacks the power to grant relief.  Thus, if a family court cannot provide relief in the form of reunification with the allegedly abusive parent, it arguably lacks jurisdiction to find that the parent has been abusive.  But in the context of a statute designed to provide special immigration relief to abused, neglected, or abandoned juveniles, the USCIS’ conclusion is, to say the least, quite counter-intuitive, perhaps even Kafkaesque.

[4] The court also found that the agency’s conclusion that the Family Court lacked authority to make custody determinations misconstrued New York state law. New York law grants the Family Court jurisdiction over the custody and care of juveniles up to the age of twenty-one for certain proceedings, including guardianship proceedings, with the consent of the juvenile. Id. at *18 (citing See N.Y. Fam. Ct. Act § 661(a)). The Court noted that In New York “there is no substantive difference between the rights and responsibilities of a custodian or guardian of a child.” id. (quoting Allen v. Fiedler, 96 A.D.3d 1682, 947 N.Y.S.2d 863, 866 (2012)).

[5] As noted in an earlier note, the position can be explained by a certain perverse logic, hinging on the principle that courts lack jurisdiction to enter findings when they cannot accord relief.

[6] The agency’s argument that it had published notice of the “policy change,” was surely undercut by two other arguments is was making simultaneously, that there had been no policy change, R.F.M. v. Nielsen, at *14-*15, *16, *17, and that any policy change that existed was unreviewable because it was not final.  Id. at *16.

[7] Indeed, if it were in the Manual, the National Benefits Center would not have had to seek the “legal clarification” offered in the 2018 Legal Guidance.

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