Introduction I. The Evolving Language of the Special Immigrant Juvenile Status Provisions in the Immigration and Nationality Act A. What Is Special Immigrant Juvenile Status and What Are Its Criteria? B. Special Immigrant Juvenile Status in 1990 C. Special Immigrant Juvenile Status in 1997 D. Special Immigrant Juvenile Status in 2008 E. Recent Trends in Child Migration II. Nebraska, New York, and New Jersey Courts Interpretations of the "1 or Both" Language A. In re Erick M.--Nebraska B. In re Marcelina M.-G.--New York C. H.S.P. v. J.K.--New Jersey III. Considering the Meaning of "1 or Both" and the Inclusion or Exclusion of One-Parent SIJS Cases from Its Scope A. The Plain Meaning of the Text and the Legislative History in Support of the One-Parent SIJS Interpretation B. Addressing Gatekeeping Concerns Related to the Expansion of Special Immigrant Juvenile Status to Include One-Parent SIJS C. One-Parent SIJS Is the Best Answer for Unaccompanied Immigrant Children Conclusion INTRODUCTION
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) changed the substantive provisions that defined Special Immigrant Juvenile Status (SIJS), a type of immigration benefit for children. (1) One of the changes, concerning a court predicate finding that the child's "reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law" was generally agreed to mean that reunification was not viable when the child suffered such mistreatment from at least one parent, and not necessarily from both. (2) In 2012, however, the Nebraska Supreme Court espoused a different interpretation of the provision, supporting its view by consulting interpretative canons, vertical legislative history, and administrative decisions. (3) Other high and appellate level courts have declined to follow the Nebraska decision, but this decision is not an outlier. (4) In 2014, the New Jersey Superior Court agreed with the Nebraska Supreme Court and reinforced support for the interpretation with direct quotations from the TVPRA Congressional records. (5) The narrow interpretation propounded by Nebraska and New Jersey has the alarming potential to foreclose relief for many children seeking SIJS. (6)
Since 2012, the United States government has anticipated an increasing number of unaccompanied immigrant children arriving in the United States. (7) The increase in unaccompanied immigrant children also means a corresponding increase in the amount of potentially SIJS-eligible children. (8) Consequently, state court judges, as well as family and immigration law attorneys, will increasingly confront the question of who is or is not eligible for SIJS. Some states that will receive incoming unaccompanied children have not addressed the questions behind a SIJS petition for predicate findings in the past. Thus, judges and attorneys will likely find themselves with little guidance on the issue from higher courts within their respective states.
This Note argues that the provision in the Immigration and Nationality Act (INA) that requires a court to find that "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" is satisfied when a child suffered this type of mistreatment from at least one parent. (9) Part I provides background information on SIJS generally. It also discusses a history of the provisions for SIJS eligibility in the INA from its codification in 1990 and its major revisions in 1997 and 2008. Part II examines the conflict between states in their interpretations of the plain meaning, intent, and legislative history of the provisions. Part II also introduces and analyzes the decisions by three prominent states that have spoken directly to the issue of interpretation--New York, New Jersey, and Nebraska. Part III advocates for the adoption of the New York interpretation of the SIJS provisions in the INA, which states that reunification is not viable when the child suffered mistreatment from at least one parent, and not necessarily from both. Part III demonstrates that the New York interpretation best reflects the plain meaning and the legislative intent of the INA provision. Part III also discusses why policy considerations favor the adoption of the New York interpretation.
THE EVOLVING LANGUAGE OF THE SPECIAL IMMIGRANT JUVENILE STATUS PROVISIONS IN THE IMMIGRATION AND NATIONALITY ACT
Part I of this Note provides background information on the evolution of the SIJS provisions in 1990, 1997, and 2008. It also discusses SIJS generally and recent trends in child migration. Part I.A explains the meaning of SIJS and the criteria required to qualify for SIJS. Parts I.B, I.C, and I.D explain the SIJS provisions in 1990, 1997, and 2008, respectively, as well as the history behind the provisions and amendments. Finally, Part I.E discusses the increase of migration that began since 2011.
What Is Special Immigrant Juvenile Status and What Are Its Criteria?
SIJS is a type of special immigrant status that allows a defined set of eligible persons to obtain lawful permanent residence. (10) The INA generally enables the federal government to grant a particular status to a certain amount of "special immigrants." (11) Several other "special immigrant" statuses are detailed under different sections of the INA. (12) SIJS allows a recipient to immediately apply for lawful permanent residence based on a state court's predicate factual findings, (13) and provides the successful applicant with the opportunity to obtain United States citizenship after five years of lawful permanent residence. (14) Congress introduced SIJS at the enactment of the federal Immigration Act of 1990 in order to address problems that undocumented immigrant children often encountered in the state foster care system. (15) These obstacles included the possibility of deportation, poverty, language barriers, lack of health care or health insurance, and the lack of access to public benefits. (16) Further, unaccompanied immigrant children are generally vulnerable to harm, such as child trafficking, commercial sexual exploitation, drugs, and gangs. (17) Lawful permanent residence in the United States allows the SIJS recipient to work legally, obtain financial aid for college, and be eligible for limited public benefits. (18) Since enacting SIJS in 1990, Congress redefined it in 1997 (19) and then further amended it in 2008. (20) As of 2008, for a person to be eligible for SIJ status and have a chance to apply for lawful permanent residence, the person must meet the following three criteria. (21)
The first criterion is met based on the person's involvement in some form of juvenile court proceeding, such as a guardianship or delinquency proceeding. (22) In other words, a person "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" meets the first criterion for SIJS eligibility. (23) For example, a person may become "dependent on a juvenile court" because a court appoints her aunt as her legal guardian or because she was placed in delinquency proceedings and charged with car theft. (24)
For a person to meet the second criterion (known as the "Non-Reunification Finding"), a court must issue a finding that "reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." (25) Full termination of parental rights is not required to meet the "non-reunification" criterion. (26) The separation from a parent must be significant enough that a court would consider it unlikely that reunification is possible. (27) For example, a person may meet the non-reunification requirement if his or her parents relinquished their parental rights. (28) Another example is a person who has suffered abuse by a parent and was placed in long-term foster care as a result. (29) The SIJS order should clearly indicate that reunification is not viable due to abuse, neglect, or abandonment of the child, as opposed to some other dissimilar reason. (30)
The third criterion requires the SIJS applicant to prove that it is not in his best interest to return to his country of origin or last habitual residence. (31) The same court that signs off on the first and second criteria may also include this third criterion. (32) The juvenile court judge would need to sign an order certifying that the above findings are true. (33) Alternatively, evidence for this criterion may come from other administrative or judicial proceedings. (34) In addition to the three main criteria, there is a consent requirement with a limited purpose. (35) Moreover, a person must be a "child" under the INA, which is defined as someone who is under 21 years old and not married. (36)
Although the other parts of SIJS merit their own discussion, this Note will focus on the Non-Reunification Finding. To make factual determinations pursuant to the SIJS provisions, state courts must interpret the meaning of the rest of the federal provision that directs them to make such findings. (37) States have produced two opposing interpretations of the phrase "reunification with one or both of the [applicant's] parents is not viable," and such divergence affects what the state courts consider to be a type of case that satisfies the Non-Reunification Finding. (38) The first interpretation, known as the "one-parent SIJS" interpretation, allows a child to qualify for SIJS even when the child remains with or is actively pursuing reunification with one parent but not the other. (39) A second interpretation considers the Non-Reunification Finding to mean generally that the child must...