Split Up

• Publication year: 2023
• Citation: Vol. 5 No. 1

Split Up

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Is the Reasoning Behind the State Court Divide on "One-Parent" Interpretations of SIJ Status Correlated with Statutory Biases Against Single Parents, Immigrants, or Neither?

Madelyn Cox-Guerra ^*

Abstract: Special Immigrant Juvenile (SIJ) status is a nonimmigrant status afforded to noncitizen youth who have been abused, neglected, or abandoned by "one or both" of their parents. To apply for SIJ status, youth applicants must obtain a court order making SIJ findings from the relevant state juvenile court. However, some juvenile courts have taken it upon themselves to interpret the federal statute's meaning of "one or both" parents, with odd results. The Nebraska Supreme Court held that "one or both parents" language in the statute actually requires that both parents have abused, neglected, or abandoned the youth applicant. This article examines why some state courts have anomalously interpreted 8 U.S.C. § 1101(a)(27)(J)(i) to require that youth be unable to be reunified with both of their parents rather than just one. The "two-parent" interpretation, as it is called, creates an unfair additional barrier for noncitizen youth. This article hypothesizes that there is a correlation between use of a two-parent interpretation of 8 U.S.C. § 1101(a)(27)(J)(i) and (1) state statutes that limit custody rights for single parents, and (2) state statutes that disadvantage immigrants. By utilizing Pearson's correlation coefficient to measure correlation, this article concludes that there is a no statistically significant correlation between SIJ interpretation and shared-parenting statutes among states, and there is a statistically significant moderately positive correlation between SIJ interpretation and state statutes that help or disadvantage immigrants. This article is not comprehensive, but the results should encourage further research on whether two-parent interpretations are motivated by anti-immigrant bias.

Introduction

Federal statute 8 U.S.C. § 1101(a)(27)(J) creates a path for permanent residency for noncitizen children in the United States who have been declared dependent on the juvenile court, or are in the custody of an agency or department of the state, due to abuse, neglect, or abandonment; this is called Special Immigrant Juvenile (SIJ) status. ¹ The statute itself requires the children to have been abused, neglected, or abandoned by "one or both" parents in order to qualify for SIJ status. ² State juvenile courts have jurisdiction to make factual

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findings on whether children meet the basic legal requirements of SIJ status. However, there is a state court split on whether 8 U.S.C. § 1101(a)(27)(J) means "one or both" parents. ³ A few state courts have argued that, despite the plain language of the statute, the purpose of 8 U.S.C. § 1101(a)(27)(J) and policy considerations actually require a child to have been abused, neglected, or abandoned by both their parents in order to meet SIJ status requirements. In this way, a few state courts have incorrectly expanded their role to include interpreting federal law.

This article examines why some state courts have anomalously interpreted 8 U.S.C. § 1101(a)(27)(J)(i) to require that youth be unable to be reunified with both of their parents rather than just one. This article hypothesizes that there is a correlation between use of a two-parent interpretation of 8 U.S.C. § 1101(a)(27)(J)(i) and (1) state statutes that limit custody rights for single parents, and (2) state statutes that disadvantage immigrants. This is concerning, as it reflects an attitude by some state courts that their role is to interpret federal law. Further, this flawed perspective is based on a policy that a noncitizen child with one parent is sufficiently cared for and thus is not truly in need of SIJ status. First, this article analyzes case law in the 50 states and Washington, D.C., to determine which states use a one-parent or two-parent interpretation. Second, this article applies a study by the National Parents Organization to examine whether there is any correlation between states that use a two-parent interpretation and states with biased custody statutes against single parents. Third, this article applies a study by the University of California Global Health Institute to examine whether there is any correlation between states that use a two-parent interpretation and states with statutes that disadvantage noncitizens. Finally, this article examines whether anti-single-parent and anti-immigrant bias together are correlated with two-parent interpretations. Ultimately, this article concludes that, while the data pool is small and thus not definitive, there is only a weak positive correlation between shared-parenting statutes and SIJ status interpretation, and a moderate positive correlation between immigration policies and SIJ status interpretation.

Background

It is possible that the state court split on SIJ status is correlated with state biases against single parents, immigrants, or both. The state court decisions interpreting 8 U.S.C. § 1101(a)(27)(J)(i) to mean that a child can qualify for SIJ status only if they cannot be reunified with both parents are driven by policy arguments that minimize the needs of single-parent families and noncitizen immigrant children. For this reason, this section examines the history and interpretation of 8 U.S.C. § 1101(a)(27)(J)(i), the custody rights of single parents per state, and state statutes that disadvantage immigrants.

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States Are Divided on the Statutory Interpretation of 8 U.S.C. § 1101(a)(27)(J)(i) Despite Its Clear Plain Language

Federal law creates a path to permanent residency for some noncitizen children who have been placed into someone's custody by a juvenile court and cannot return to a parent due to abuse, neglect, or abandonment. SIJ status is available to a noncitizen child 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 . . . ." ⁴

This section of the statute establishes four major eligibility requirements: (1) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar issue under state law, (2) it is not in the best interest of the child to be returned to their home country or their parents' home country, (3) the youth is declared dependent on the juvenile court or is in the custody of an agency or department of the state, and (4) the secretary of homeland security consents to the grant of special immigrant juvenile status. Children who meet these standards can be eligible for SIJ status. They must provide a separate application for SIJ status to U.S. Citizenship and Immigration Services (USCIS). This includes a USCIS Form I-360 and a copy of the court's findings.

The federal statute delegates to state juvenile courts the adjudication of whether children meet these standards, as juvenile courts specialize in adjudicating these issues. While the federal court gives jurisdiction to juvenile courts, ⁵ the definition of juvenile courts includes some family courts, since in some states family courts determine child custody. ⁶ The administrative regulations define juvenile courts as "a court located in the United States having jurisdiction under [s]tate law to make judicial determinations about the dependency and/or custody and care of juveniles." ⁷ Certain juvenile courts, such as those in Minnesota, "are permitted to make determinations regarding legal and physical custody of a minor child, a child's residence, parenting time, and support obligations" in the context of marriage dissolution proceedings. ⁸

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Because their purpose fits into the definition of juvenile court as defined in the federal regulations, some states have determined that their family courts have jurisdiction to evaluate SIJ status requirements. ⁹

State courts like the Minnesota Court of Appeals have held that the inability to reunify a youth with one parent due to abandonment, abuse, or neglect, satisfies the first SIJ requirement even if one nonoffending custodial parent remains ("one-parent interpretation"). ¹⁰ However, the state of Nebraska has held that the reunification requirement is only satisfied if the child cannot be reunified with both parents ("two-parent interpretation"); this has created a split among state courts. ¹¹ The Nebraska Supreme Court held that the one-parent interpretation increases the amount of SIJ status applicants and creates a risk that children who do not actually need SIJ status will get permanent residency. ¹²

In addition to the state court split, there is abundant scholarship promoting the one-parent interpretation. ¹³ The arguments within these articles examine the statutory text and supporting policy arguments emphasizing the need for vulnerable children with one nonoffending parent for the opportunity to apply for permanent residency. States and scholars use plain language, legislative history, public policy, and interpretive canons to analyze the meaning of 8 U.S.C. § 1101(a)(27)(J).

The Plain Language of "One or Both Parents" Is Interpreted as Meaning "Either Parent" or "All Living Parents"

The plain language of the statute seems to unambiguously apply if only...