When people talk about refugees, the words used are "they", "us" or "them". The moment of realization that we are a part of them, and they are a part of us, is the moment when we can begin to affect change. --Ai Weiwei, Law of the Journey (1) I. INTRODUCTION: A JOURNEY TO THE COURTHOUSE
In the first half of 2016, nearly 26,000 unaccompanied children--most of them from Central America--were apprehended at the U.S. border. (2) The majority of these children came from the "Northern Triangle"--El Salvador, Guatemala and Honduras--escaping gang violence, high murder rates, endemic poverty, and family break-up. (3) After making treacherous journeys through Mexico to the U.S., many of these unaccompanied minors presented themselves to state court judges in Florida and other states, seeking protection from neglect and harm and the opportunity to legalize their immigration status. (4) One of the ways that these children sought to legalize their status was through adjudications of dependency and "best interest orders" issued by state dependency court judges. (5) A best interest order is a prerequisite for an immigrant child to qualify for immigration relief as a Special Immigrant Juvenile. (6) Special Immigrant Juvenile Status ("SIJS") is a federal visa status available for certain immigrant children whom the court declares dependent, i.e., unable to reunify with one or both of their parents "due to abuse, neglect, abandonment, or a similar basis under State law." (7) The juvenile court must also find that it would not be in the child's best interests to return to his or the parent's previous country of nationality or residence. (8)
Once the court makes the required findings, the child is then eligible to apply to the Department of Homeland Security ("DHS") for SIJS and lawful permanent residence. (9) This two-step process, which involves both state courts and the federal DHS, is a classic illustration of immigration federalism. (10) What makes it unique is the centrality of the state court in this hybrid federal-state immigration decision-making system. The powers of the state courts vis-a-vis the federal government have waxed and waned over the twenty-eight years since the original passage of the law in 1990. (11)
Advocates in Florida for immigrant children seeking dependency adjudications and best interest orders encountered resistance from state court judges in the years following the Central American influx. (12) In this Article I parse the body of judicial interpretations of state dependency and federal SIJS law rejecting state court petitions filed by immigrant children, primarily in Florida. I trace undercurrents of anti-immigrant sentiment seeping into recent trial court rulings and appellate opinions.
Some of the judicial skepticism was motivated by a perception or fear that the flow of migrant children from Central America was showing no signs of letting up. (13) Perhaps for these reasons, judges felt obligated to raise the bar to claims of dependency by these children. They constructed different narratives to undergird their rulings. The narratives depicted hordes of alien children coming from Central America, entering their courtrooms, and alleging "fictional cases" of dependency which did not request anything from the court other than a best interest order as a pretext for obtaining immigration relief. (14) The implication was that they were going through the "back door" of dependency court to qualify for green cards from the U.S. Citizenship and Immigration Services ("USCIS"). (15)
I frame this case or field study of shifting judicial attitudes toward immigrant children in Florida, written largely in the first-person, as a lawyer who has devoted nearly three decades of my career providing advocacy for these clients, first as a legal services staff attorney, and for the last twenty-three years as a law school clinician. When I established the Children & Youth Law Clinic in 1996, our focus was on advocating for the legal needs of older children in the state foster care system. From the beginning, we also identified the needs of unaccompanied immigrant children in our community as a secondary priority. Clinic faculty and students developed expertise in the intersecting bodies of state and federal law involved in these cases.
Our clinic's first client, nicknamed "Tyson," was a homeless, undocumented Haitian-born teenager, abandoned by his parents, living on the streets of Miami, playing in a midnight basketball league where he was mentored by a tax lawyer, who did not have any background in Florida dependency law or federal immigration law and did not know how to assist him. We represented this first client on a private petition for dependency, filed in the Miami-Dade Circuit Court, asking the court to adjudicate him dependent based on allegations and evidence that he had been abandoned and neglected by his parents. Following several hearings in front of the dependency judge assigned to hear his case, Tyson was declared dependent and placed in the foster care system, where he thrived.
After his adjudication of dependency, the judge signed a best interest order, and we assisted Tyson in petitioning the Immigration and Naturalization Service (precursor to USCIS) for approval of his SIJS and lawful permanent residence applications. Today Tyson is a U.S. citizen and tech entrepreneur with two sons, and he has established a small foundation to assist young immigrants like him. (16)
Over the years, our clinic has represented dozens of clients like Tyson in dependency and foster care, delinquency, family custody and probate court, as well as in the immigration visa phase of the SIJS and permanent residence process. (17) For almost all of these clients, their journeys to the courthouse and their experiences in the courtroom before receptive judges have been transformative, even life-changing. Representing these clients has also fueled our efforts to share our expertise and experiences with others wanting to assist immigrant children.
I evaluate changing state judicial trends in SIJS cases and explore broader themes about state courts in a time of polarized attitudes towards immigrants. I discuss in equal measure the evolving legal doctrine and the fears of an onslaught that shaped the doctrine, even though the available data suggest that the fears were exaggerated. I also examine how our clinic and others challenged these legal trends and tried to refute the underlying messages. I write this Article from the perspective of a law school clinician, fighting in the trenches to help these clients. Law school clinics are on the front line before these courts, together with other advocates, and I discuss some of the arguments and strategies that we deployed to challenge judges. I look at the role of clinical legal education, through the training of law students, providing direct legal representation of these powerless and often unpopular clients, and trying to effectuate broader systems reforms. I give some examples of how we advocated not just in courts but other arenas (legislative and administrative) where state and federal policies affecting immigrant children seeking SIJS are developed.
In Part II, I analyze a recent decision of the Florida Supreme Court, B.R.C.M. v. Florida Department of Children & Families, (18) halting this trend, and the different views expressed by the plurality, concurring, and dissenting justices about the standards for adjudicating an immigrant child dependent under Florida law, notwithstanding the child's intent to seek a best interest order for SIJS eligibility under federal law. I discuss the importance and impact of this largely favorable decision, and speculate about whether the plurality opinion issued by the court is likely to endure in the current climate.
In Part III, I analyze historical antecedents to the recent trends rejecting dependency claims by immigrant children in Florida, and some of the responses by law school clinics and child and immigrant advocates. I focus on one egregious case of judicial hostility that posed a threat to undocumented children and families who appeared in his courtroom in Palm Beach County fourteen years ago. I describe some of the judge's actions of sharing confidential court records about undocumented immigrants with U.S. Border Patrol from the bench and the anti-immigrant views that he aired to the public. I write about different strategies we used, and some not used, to put a halt to the xenophobia that he displayed on and off the bench.
In Part IV, I delve a little further into some of the sources of the recent backlash against immigrant children by the state judiciary in Florida and elsewhere. In Part V, I profile the rulings of another juvenile court judge, in Miami-Dade County, who was a catalyst and theorist for rulings by other dependency judges and adverse appellate court decisions that the Florida Supreme Court in B.R.C.M. II halted. In Part VI, I show how the Miami judge's rulings influenced other judges before B.R.C.M. II and give a few examples of continuing problems in our state, even after this decision.
In Part VII, I describe different ways our clinic participated in the efforts to fight judges whose perceptions of immigrants and national immigration policy views may have influenced their rulings. (19) I evaluate how the modest B.R.C.M. II plurality opinion, achieved through legal argument and client storytelling, helped to ensure a modicum of procedural due process for one undocumented immigrant child, and I conjecture about its prospects to keep the courthouse door open for other immigrant children. I give a descriptive account of the different strategies we used and use this account as a guide for future strategy to sustain and enforce the B.R. CM. II decision.
Finally, I evaluate recent polarization in the state judiciary over immigrant children in light of the immigrant-baiting, wall-building rhetoric that...