Rule2022-04698
Special Immigrant Juvenile Petitions
Primary source
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Published
March 8, 2022
Effective
April 7, 2022
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is amending its regulations governing the requirements and procedures for juveniles seeking classification as a Special Immigrant Juvenile (SIJ) and related adjustment of status to lawful permanent resident (LPR). This rule codifies statutorily mandated changes and clarifies the following: the definitions of key terms, such as "juvenile court" and "judicial determination"; what constitutes a qualifying juvenile court order for SIJ purposes; what constitutes a qualifying parental reunification determination; DHS's consent function; and applicable bars to adjustment, inadmissibility grounds, and waivers for SIJ-based adjustment to LPR status. This rule also removes bases for automatic revocation that are inconsistent with the statutory requirements of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008) and makes other technical and procedural changes. DHS is issuing this rule to update the regulations as required by law, further align SIJ classification with the statutory purpose of providing humanitarian protection to eligible child survivors of parental abuse, abandonment, or neglect, and clarify the SIJ regulations.
Full Text
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<title>Federal Register, Volume 87 Issue 45 (Tuesday, March 8, 2022)</title>
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[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Rules and Regulations]
[Pages 13066-13113]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04698]
[[Page 13065]]
Vol. 87
Tuesday,
No. 45
March 8, 2022
Part III
Department of Homeland Security
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8 CFR Parts 204, 205 and 245
Special Immigrant Juvenile Petitions; Final Rule
Federal Register / Vol. 87 , No. 45 / Tuesday, March 8, 2022 / Rules
and Regulations
[[Page 13066]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 205, and 245
[CIS No. 2474-09; DHS Docket No. USCIS-2009-0004]
RIN 1615-AB81
Special Immigrant Juvenile Petitions
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations governing the requirements and procedures for juveniles
seeking classification as a Special Immigrant Juvenile (SIJ) and
related adjustment of status to lawful permanent resident (LPR). This
rule codifies statutorily mandated changes and clarifies the following:
the definitions of key terms, such as ``juvenile court'' and ``judicial
determination''; what constitutes a qualifying juvenile court order for
SIJ purposes; what constitutes a qualifying parental reunification
determination; DHS's consent function; and applicable bars to
adjustment, inadmissibility grounds, and waivers for SIJ-based
adjustment to LPR status. This rule also removes bases for automatic
revocation that are inconsistent with the statutory requirements of the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (TVPRA 2008) and makes other technical and procedural changes.
DHS is issuing this rule to update the regulations as required by law,
further align SIJ classification with the statutory purpose of
providing humanitarian protection to eligible child survivors of
parental abuse, abandonment, or neglect, and clarify the SIJ
regulations.
DATES: This final rule is effective April 7, 2022.
FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, by mail at 5900 Capital Gateway Dr.,
Camp Springs, MD 20529-2140; or by phone at 240-721-3000. (This is not
a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Proposed Rule
D. Summary of Changes From the NPRM to the Final Rule Provisions
1. Section Heading
(a) Special Immigrant Juvenile (SIJ) Classification
2. Definitions
(a) Definitions of ``State'' and ``United States''
(b) Definitions of ``Juvenile Court'' and ``Judicial
Determination''
(c) Definitions of ``Petition'' and ``Petitioner''
3. Eligibility Requirements for Classification as an SIJ
(a) Eligibility Requirements That Must Be Met at the Time of
Filing and Adjudication
4. Juvenile Court Order(s)
(a) Dependency or Custody
(b) Qualifying Parental Reunification Determination
(c) Best Interest Determination
(d) Juvenile Court Order Validity
5. Petition Requirements
(a) Evidence of Age
(b) Similar Basis
(c) DHS Consent
(d) U.S. Department of Health and Human Services (HHS) Consent
6. No Contact
(a) Clarification of No Contact Provision
7. Interview
(a) Ability of Trusted Adult, Attorney, or Representative To
Provide a Statement
(b) Presence of Attorney or Accredited Representative at the
Interview
8. Time for Adjudication
(a) Clarification Regarding Adjudication Processing Timeframes
(b) Impact of Requests for Evidence for Adjustment of Status
Applications on Processing Timeframes
9. No Parental Immigration Benefits Based on SIJ Classification
(a) Application of Prohibition to All of Petitioner's Natural
and Prior Adoptive Parents
10. Revocation
(a) Moved Provisions on Automatic Revocation from 8 CFR
205.1(a)(3)(iv) to 8 CFR 204.11(j)(1)
(b) Changes to the Grounds for Automatic Revocation
(c) Notice and Evidentiary Requirements
(d) Revocation on Notice
11. Eligibility for Adjustment of Status
(a) Requirements for SIJ-Based Adjustment of Status
(b) Bars to Adjustment, Inadmissibility, and Waivers
(c) No Parental Immigration Benefits Based on SIJ Classification
(d) No Contact
E. Summary of Costs and Benefits
II. Background
A. Special Immigrant Juvenile (SIJ) Classification
B. Final Rule
III. Response to Public Comments on Proposed Rule
A. Summary of Public Comments
B. General and Preliminary Matters
1. General Support for the Proposed Rule
2. General Opposition to the Proposed Rule
3. Decision
(a) Decision Section and Notification of Appeal Rights
4. Section Heading
5. Terminology
6. Organization
7. Effective Date
8. Regulatory Comments
9. Miscellaneous
C. Definitions
1. ``State''
2. ``Juvenile Court''
D. Eligibility Requirements for Classification as a Special
Immigrant Juvenile
1. Under 21 Years of Age
2. Unmarried
3. Physical Presence in the United States
4. Juvenile Court Order Determinations
(a) Dependency or Custody
(b) Parental Reunification Determination
(c) Determination of Best Interest
5. Qualifying Juvenile Court Orders
(a) Validity at Time of Filing and Adjudication
(b) Exceptions to the Requirement That a Juvenile Court Order Be
Valid at the Time of Filing and Adjudication
E. Evidence
1. Petition Requirements
2. Age
3. Similar Basis
4. Evidentiary Requirements for DHS Consent
(a) Background and Legal Interpretation of DHS Consent
(b) Roles of the Juvenile Court and DHS in Determining
Eligibility
(c) Conflation of Pursuit of a Juvenile Court Order With the
Determinations Necessary for SIJ
(d) DHS Consent Process and Procedures
(e) Burden on the Petitioner
(f) Privacy Concerns
(g) Consent Standards
(h) Consent and Role of the Child's Parent
5. HHS Consent
F. Petition Process
1. Required Evidence
2. No Contact
3. Interview
4. SIJ Petition Decision Timeframe Requirement
5. Decision
G. No Parental Immigration Benefits Based on Special Immigrant
Juvenile Classification
H. Revocation
1. Revocation Based on Reunification With a Parent
2. Implementation of Changes to the Revocation Grounds
I. Adjustment of Status to Lawful Permanent Resident (Adjustment
of Status)
1. Eligibility
2. Inadmissibility
3. No Parental Immigration Rights Based on SIJ Classification
4. No Contact
5. Other Comments Related to Adjustment of Status
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
[[Page 13067]]
1. Background and Summary
2. Provisions of the Rule and Impacts
(a) Requirements at Time of Filing and Adjudication
(b) DHS Consent
(c) Qualifying Juvenile Court Orders
(d) Dependency or Custody
(e) HHS Specific Consent
(f) Petition Requirements
(g) Inadmissibility
(h) Interviews
(i) No Parental Immigration Rights
(j) No Contact
(k) Marriage as a Ground for Automatic Revocation
(l) Timeframe for Decisions
(m) Special Immigrant Juvenile Petition Filing and Adjudication
Process
3. Costs and Benefits of the Final Rule
(a) Costs and Benefits of the Final Rule Relative to a Statutory
Baseline
(b) Costs and Benefits of the Final Rule Relative to No Action
Baseline
(c) Total Costs of the Final Rule
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Family Assessment
J. National Environmental Policy Act
K. Paperwork Reduction Act
VI. List of Subjects and Regulatory Amendments
I. Executive Summary
A. Purpose of the Regulatory Action
DHS is amending its regulations governing the SIJ classification
and related applications for adjustment of status to LPR (submitted on
U.S. Citizenship and Immigration Services (USCIS) Form I-485,
Application to Register Permanent Residence or Adjust Status),
hereafter ``adjustment of status.'' Specifically, this rule revises DHS
regulations at 8 CFR 204.11, 205.1, and 245.1 to reflect statutory
changes, modify certain provisions, codify existing policies, and
clarify eligibility requirements.
B. Legal Authority
The Immigration and Nationality Act (INA), as amended, permits the
Secretary of Homeland Security (Secretary) to classify as an SIJ \1\ a
noncitizen whom a juvenile court located in the United States has
declared to be dependent on the juvenile court, or whom the juvenile
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. See INA section 101(a)(27)(J)(i), 8 U.S.C.
1101(a)(27)(J)(i). The juvenile court must determine that reunification
with one or both parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law. Id. In addition,
it must be determined in administrative or judicial proceedings that it
would not be in the petitioner's best interest to be returned to the
country of nationality or last habitual residence of the petitioner or
of their parent(s). See INA section 101(a)(27)(J)(ii), 8 U.S.C.
1101(a)(27)(J)(ii). Finally, the Secretary, through USCIS, must consent
to SIJ classification. See INA section 101(a)(27)(J)(iii), 8 U.S.C.
1101(a)(27)(J)(iii). The timeframe for adjudicating SIJ petitions is
180 days. See TVPRA 2008 section 235(d)(2), 8 U.S.C. 1232(d)(2).
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\1\ The Immigration Act of 1990, Public Law 101-649, 104 Stat.
4978 (Nov. 29, 1990), added the SIJ classification. Congress has
amended the eligibility criteria for SIJ classification several
times, as noted in Table 1.
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Upon classification as an SIJ, a noncitizen may be immediately
eligible to apply for adjustment of status to LPR, if a visa number is
available.\2\ See INA section 245(h), 8 U.S.C. 1255(h). Certain grounds
of inadmissibility that would ordinarily prevent adjustment of status
do not apply to those with SIJ classification. See INA section 245(h),
8 U.S.C. 1255(h). The Secretary also may waive certain grounds of
inadmissibility for those with SIJ classification. Id.
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\2\ The provisions to adjust status under INA section 245(h)
were added by the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, Public Law 102-232, 105 Stat.
1733 (Dec. 12, 1991).
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DHS is prohibited from compelling SIJ petitioners or applicants for
related adjustment of status to contact an alleged abuser, or family
member of the alleged abuser, during the petition or application
process. See INA section 287(h), 8 U.S.C. 1357(h).\3\
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\3\ The protection at INA section 287(h) for a petitioner
seeking SIJ classification from being compelled to contact an
alleged abuser, or the abuser's family member, was added by the
Violence Against Women and Department of Justice Reauthorization Act
of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5,
2006).
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The following table summarizes the statutory amendments implemented
in this final rule:
Table 1--Summary of Statutory Amendments to SIJ Classification
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Legislation Amendment
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The Immigration and Nationality Technical <bullet> Expanded the group of people eligible for SIJ
Corrections Act of 1994, Public Law 103- classification to include those a juvenile court has legally
416, 108 Stat. 4319 (Jan. 25, 1994). committed to, or placed under the custody of, an agency or
department of a State.
The Departments of Commerce, Justice, and <bullet> Required that dependency, commitment, or placement be due
State, the Judiciary, and Related Agencies to abuse, neglect, or abandonment.
Appropriations Act, 1998 (CJS 1998 <bullet> Added consent functions of the Attorney General (later
Appropriations Act), Public Law 105-119, changed to the Secretary) of ``express consent'' to the
111 Stat. 2440 (Nov. 26, 1997). dependency order as a precondition to the grant of SIJ and
``specific consent'' to juvenile court jurisdiction to determine
custody or placement of a person in the actual or constructive
custody of the federal government (later modified by TVPRA 2008).
The Violence Against Women and Department of <bullet> Protected a petitioner seeking SIJ classification by
Justice Reauthorization Act of 2005 (VAWA prohibiting DHS from compelling them to contact an alleged
2005), Public Law 109-162, 119 Stat. 2960 abuser, or family member of an alleged abuser.
(Jan. 5, 2006).
The William Wilberforce Trafficking Victims <bullet> Created the requirement that a petitioner's reunification
Protection Reauthorization Act of 2008 with one or both parents not be viable due to abuse, neglect,
(TVPRA 2008), Public Law 110-457, 112 Stat. abandonment, or a similar basis under State law (replaced a
5044 (Dec. 23, 2008). previous requirement to have ``been deemed eligible . . . for
long-term foster care'').
<bullet> Expanded the group of people eligible for SIJ
classification to include those placed by a juvenile court with
an individual or entity.
[[Page 13068]]
<bullet> Modified the consent requirements so that DHS consent is
to the grant of SIJ classification and vested the former
``specific consent'' function with HHS.
<bullet> Provided age-out protection so that USCIS cannot deny SIJ
classification if someone was under 21 years of age when the
petition was filed.
<bullet> Created a statutory timeframe of 180 days to adjudicate
SIJ petitions.
<bullet> Exempted SIJs from additional grounds of inadmissibility
in relation to an application for adjustment of status.
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C. Summary of the Proposed Rule
On September 6, 2011, DHS published a proposed rule in the Federal
Register, proposing to amend the regulations governing the SIJ
classification and related applications for adjustment of status to
incorporate major statutory changes to the program. See Proposed rule;
Special Immigrant Juvenile Petitions, 76 FR 54978 (Sept. 6, 2011)
(``proposed rule''). The proposed rule explained the changes that DHS
was considering, including procedural requirements, and that DHS would
ultimately finalize the regulatory changes through the rulemaking
process.
Specifically, the proposed rule sought to revise DHS regulations at
8 CFR 204.11, 205.1, and 245.1 to:
<bullet> Implement statutorily mandated changes by revising the
existing eligibility requirements under the following statutes:
[cir] Immigration and Nationality Technical Corrections Act of
1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994);
[cir] Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1998 (CJS 1998 Appropriations
Act), Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997);
[cir] Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat.
2960 (Jan. 5, 2006); and
[cir] William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457, 122 Stat.
5044 (Dec. 23, 2008).
<bullet> Clarify the use of the term ``dependent'' as used in
section 101(a)(27)(J)(i) of INA, 8 U.S.C. 1101(a)(27)(J)(i), including
that such dependency, commitment, or custody must be in effect when a
Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) is
filed and must continue through the time of adjudication, unless the
age of the petitioner prevents such continuation.
<bullet> Clarify that the viability of parental reunification with
one or both of the child's parents due to abuse, neglect, or
abandonment, or a similar basis under State law must be determined by
the juvenile court based on applicable State law.
<bullet> Clarify that DHS consent to the grant of SIJ
classification is warranted only when the petitioner demonstrates that
the State juvenile court determinations were sought primarily for the
purpose of obtaining relief from abuse, neglect, abandonment or a
similar basis under State law and not primarily for the purpose of
obtaining lawful immigration status; and that the evidence otherwise
demonstrates that there is a bona fide basis for granting SIJ
classification.
<bullet> Clarify that USCIS may seek or consider additional
evidence if the evidence presented is not sufficient to establish a
reasonable basis for DHS's consent determination.
<bullet> Remove automatic revocation under 8 CFR 205.1(a)(3)(iv)(A)
and (C) to the extent that they pertain to a juvenile's age and are
inconsistent with age-out protections under TVPRA 2008.
<bullet> Implement statutory revisions exempting SIJ adjustment-of-
status applicants from four additional grounds of inadmissibility and
clarify grounds of inadmissibility that cannot be waived.
<bullet> Improve the application process by clearly listing
required evidence that must accompany Form I-360 and amend what
constitutes supporting documentation; and
<bullet> Make technical and procedural changes; and conform
terminology.
DHS reopened the comment period on October 16, 2019, for 30 days
but did not modify these proposals. Special Immigrant Juvenile
Petitions, 84 FR 55250 (Oct. 16, 2019). Hereafter, DHS refers to the
2011 proposed rule and reopened comment period collectively as the
notice of proposed rulemaking (NPRM).
D. Summary of Changes From the NPRM to the Final Rule Provisions
Following careful consideration of public comments received and
relevant data provided by stakeholders, DHS has made several changes
from the NPRM. DHS responds to each substantive public comment in
detail later in this preamble and explains why it is adopting or
declining the change suggested by the commenters. DHS is making the
following changes from the proposed rule in this final rule:
1. Section Heading
(a) Special Immigrant Juvenile (SIJ) Classification
The preamble in the NPRM explained that DHS used the term
``dependency'' in the proposed rule as encompassing dependency,
commitment, or custody. 76 FR 54979. Consistent with this definition,
DHS styled the section heading for proposed 8 CFR 204.11 as ``Special
immigrant classification for certain aliens declared dependent on a
juvenile court (Special Immigrant Juvenile).'' Commenters wrote that
this section heading was misleading and requested that it be amended to
reflect the statutory language at INA section 101(a)(27)(J), 8 U.S.C.
1101(a)(27)(J). As explained previously, the statute permits USCIS to
grant SIJ classification to a noncitizen whom a juvenile court has
declared to be dependent on the juvenile court, or whom the juvenile
court has legally committed to or placed under the custody of an agency
or department of a State, individual, or entity. In response to these
comments, DHS has simplified and amended the section heading of the
regulation in the final rule to ``Special immigrant juvenile
classification.'' See new 8 CFR 204.11.
2. Definitions
(a) Definitions of ``State'' and ``United States''
In order to establish eligibility for SIJ classification, a
petitioner must submit qualifying juvenile court order(s) issued under
State law. DHS proposed the definition of ``State'' in the NPRM as
including an Indian tribe, tribal organization, or tribal consortium
operating a program under a plan approved under 42 U.S.C. 671. See
proposed 8 CFR 204.11(a), 76 FR 54985. After reviewing the public
comments, DHS has amended the definition of ``State'' by also
incorporating the
[[Page 13069]]
definition from INA section 101(a)(36), 8 U.S.C. 1101(a)(36), as
including the District of Columbia, Puerto Rico, Guam, the Virgin
Islands of the United States, and the Commonwealth of the Northern
Mariana Islands. In response to comments, the final rule clarifies that
the term ``United States'' also means the definition from INA section
101(a)(38), 8 U.S.C. 1101(a)(38), as the continental United States,
Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United
States, and the Commonwealth of the Northern Mariana Islands. New 8 CFR
204.11(a).
(b) Definitions of ``Juvenile Court'' and ``Judicial Determination''
DHS proposed retaining the definition of ``juvenile court'' from
the previous regulation, which defines ``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.''
DHS received numerous comments suggesting that the term ``juvenile
court'' should be modified to align with INA section 101(a)(27)(J)(i),
8 U.S.C. 1101(a)(27)(J)(i), which prescribes eligibility for SIJ
classification based on a juvenile court's dependency or custody
determination. DHS agrees that defining the term ``juvenile court'' to
mirror the language of the statute would be clearer. The definition of
``juvenile court'' in the final rule is ``a court located in the United
States that has jurisdiction under State law to make judicial
determinations about the dependency and/or custody and care of
juveniles.'' New 8 CFR 204.11(a). DHS has incorporated the definition
for the term ``judicial determination'' as ``a conclusion of law made
by a juvenile court'' into the final rule for further clarity. Id.
(c) Definitions of ``Petition'' and ``Petitioner''
Commenters requested further clarity on the definition of the term
``petitioner'' because either a juvenile (the self-petitioner) or a
person acting on the juvenile's behalf can file an SIJ petition via
Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
The proposed regulatory text for petition procedures states that
``[t]he alien, or an adult acting on the alien's behalf, may file the
petition for special immigrant juvenile classification.'' Proposed 8
CFR 204.11(d), 76 FR 54985. This language, however, did not clarify
which individual DHS would consider as the petitioner--a noncitizen, or
an individual acting on the noncitizen's behalf. DHS has therefore
amended the final rule to include in its definition section the term
``petitioner'' as ``the noncitizen seeking special immigrant juvenile
classification,'' and the term ``petition'' as ``the form designated by
USCIS to request classification as a special immigrant juvenile and the
act of filing the request.'' DHS also has renamed the ``Petition
procedures'' paragraph heading at proposed 8 CFR 204.11(d) to
``Petition requirements'' in the final rule, and modified paragraph
(d)(1) to require ``[a] petition by or on behalf of a juvenile, filed
on the form prescribed by USCIS in accordance with the form
instructions.'' New 8 CFR 204.11(d).
3. Eligibility Requirements for Classification as an SIJ
(a) Eligibility Requirements That Must Be Met at the Time of Filing and
Adjudication
DHS proposed that a petitioner must be under 21 years of age at the
time of filing and subject to a dependency or custody order that is in
effect at the time of filing and continues through the time of
adjudication. See proposed 8 CFR 204.11(b), 76 FR 54985. The preamble
to the NPRM stated that the proposed rule would continue to apply the
requirement in 8 CFR 103.2(b) that an applicant or petitioner must
establish that they are eligible for the requested benefit at the time
of filing the benefit request and must continue to be eligible through
adjudication to the requirement that a juvenile remain unmarried both
at the time of filing the SIJ petition and adjudication. DHS did not
specifically include this requirement for SIJ eligibility in the
proposed regulatory text because 8 CFR 103.2(b) applies to eligibility
for SIJ classification as it does to all USCIS benefit requests.
Nevertheless, DHS has clarified the regulatory text in the final rule
by providing that a petitioner must remain unmarried at the time of
filing through adjudication of the SIJ petition. See new 8 CFR
204.11(b)(2).
4. Juvenile Court Order(s)
(a) Dependency or Custody
The proposed rule discussed custody, commitment, and dependency.
See proposed 8 CFR 204.11(b)(1)(iv), 76 FR 54985. DHS interprets
custody to encompass commitment. Therefore, it is unnecessary and
redundant to use the term ``commitment'' also, and in the final rule,
DHS exclusively uses the terms ``dependency'' and ``custody.'' See new
8 CFR 204.11(c).
(b) Qualifying Parental Reunification Determination
The eligibility provisions of the proposed rule required that a
petitioner be the subject of a State juvenile court determination,
under applicable State law, and that reunification with one or both
parents not be viable due to abuse, neglect, abandonment, or a similar
basis under State law. See proposed 8 CFR 204.11(b), 76 FR 54985. DHS
received several comments requesting that DHS clarify that termination
of parental rights is not a prerequisite for a qualifying determination
on the viability of parental reunification. In response to those
comments, DHS has amended the final rule to clarify that ``[t]he court
is not required to terminate parental rights to determine that parental
reunification is not viable.'' See new 8 CFR 204.11(c)(1)(ii).
(c) Best Interest Determination
DHS has long interpreted that the best interest determination is
not a repatriation determination made by a Federal entity with
authority over immigration determinations, but rather is a
determination by a State court or administrative body regarding the
best interest of the child. See Immigration and Naturalization Service
(INS), Special Immigrant Status; Certain Aliens Declared Dependent on a
Juvenile Court; Revocation of Approval of Petitions; Bona Fide Marriage
Exemption to Marriage Fraud Amendments; Adjustment of Status, Final
Rule, 58 FR 42843, 42848 (Aug. 12, 1993) (``the Service believes that
the decision regarding the best interest of the beneficiary should be
made by the juvenile court or the social service agency officials
recognized by the juvenile court, not by the immigration judge or other
immigration officials''). To further clarify this interpretation, and
in response to comments, DHS added the following language for best
interest determinations: ``Nothing in this part should be construed as
altering the standards for best interest determinations that juvenile
court judges routinely apply under relevant State law.'' New 8 CFR
204.11(c)(2)(ii).
(d) Juvenile Court Order Validity
DHS proposed an exception to the requirement that the juvenile
court order be in effect at the time of filing and continue through the
time of adjudication. This exception allows a petitioner to remain
eligible for SIJ classification if the juvenile court order is no
longer valid after filing because ``the age of the petitioner prevents
such continuation.'' See proposed 8 CFR
[[Page 13070]]
204.11(b)(1)(iv), 76 FR 54985. Following the publication of the
proposed rule in 2011, the government entered into a ``Stipulation
Settling a Motion for Class-Wide Enforcement'' of the 2010 settlement
agreement in Perez-Olano, et al. v. Holder, et al. (Perez-Olano
Settlement Agreement). That stipulation contains a provision that a
petitioner whose juvenile court order terminated solely due to age
prior to filing the SIJ petition remains eligible. Perez-Olano, et al.
v. Holder, et al., Case No. CV 05-3604 (C.D. Cal. 2015) (emphasis
added). Following this Stipulation, and in response to public comments
which DHS agrees reflect a legally permissible interpretation of the
statute, DHS has incorporated into the final rule an exception to the
requirement that the juvenile court order be valid at the time of
filing and adjudication for petitioners who, because of their age, no
longer have a valid juvenile court order either prior to or subsequent
to filing the SIJ petition. See new 8 CFR 204.11(c)(3)(ii)(B).
Additionally, DHS has included another exception in response to public
comments that allows petitioners to remain eligible for SIJ
classification if juvenile court jurisdiction terminated because
adoption, placement in permanent guardianship, or another type of child
welfare permanency goal (other than reunification with the parent or
parents with whom the court previously found that reunification was not
viable) was reached. See new 8 CFR 204.11(c)(3)(ii)(A).
5. Petition Requirements
(a) Evidence of Age
In the preamble to the NPRM, DHS listed the types of documents that
could be accepted as evidence of a petitioner's age, including a birth
certificate, passport, official foreign identity document issued by a
foreign government, or other document that, in the discretion of USCIS,
establishes the petitioner's age. 76 FR 54982. In response to numerous
public comments requesting that DHS allow a petitioner to submit
secondary evidence or affidavits as prescribed in 8 CFR 103.2(b)(2),
DHS has added both the list of documents included in the NPRM preamble
and that secondary evidence or affidavits may be submitted to the final
rule. See new 8 CFR 204.11(d)(2).
(b) Similar Basis
In the preamble to the proposed rule, DHS explained that ``[i]f a
juvenile court order includes a finding that reunification with one or
both parents is not viable under State law [due to a similar basis],
the petitioner must establish that this State law basis is similar to a
finding of abuse, neglect, or abandonment.'' 76 FR 54981. The preamble
further stated that ``[t]he nature and elements of the State law must
be similar to the nature and elements of abuse, abandonment, or
neglect.'' Id. DHS received numerous comments requesting further
clarification and expressing concern that such a requirement of
equivalency could result in ineligibility determinations for vulnerable
children found by a juvenile court to be subjected to parental
maltreatment. In response to these comments, DHS provides in the final
rule that the petitioner can provide evidence of a similar basis
through the juvenile court's determination as to how the basis is
legally similar to abuse, neglect, or abandonment under State law; or
other relevant evidence that establishes the juvenile court made a
judicial determination that the legal basis is similar to abuse,
neglect, or abandonment under State law. New 8 CFR 204.11(d)(4).
(c) DHS Consent
DHS received numerous comments disagreeing with the interpretation
of the consent function in the NPRM, with some commenters expressing
concern that it impermissibly allows USCIS adjudicators to look behind
the court's order. Other commenters disagreed that the consent
determination included a discretionary element. The NPRM proposed that
in determining whether USCIS would consent to the grant of SIJ
classification, ``USCIS will consider, among other permissible
discretionary factors, whether the alien has established, based on the
evidence of record, that the State court order was sought primarily to
obtain relief from abuse, neglect, abandonment, or a similar basis
under State law and not primarily for the purpose of obtaining lawful
immigration status . . . .'' Proposed 8 CFR 204.11(c)(1)(i), 76 FR
54985. The NPRM also proposed that the ``petitioner has the burden of
proof to show that discretion should be exercised in his or her
favor.'' Proposed 8 CFR 204.11(c)(1)(ii), 76 FR 54985. In response to
comments, DHS made two key revisions to the consent provision in the
final rule. First, DHS removed reference to consent as a discretionary
function and clarified that the request for SIJ classification ``must
be bona fide.'' New 8 CFR 204.11(b)(5). Second, in recognition that
petitioners can have dual or mixed motivations for seeking the juvenile
court's determinations, DHS modified the consent provision to require
the petitioner ``to establish that a primary reason the required
juvenile court determinations were sought was to obtain relief from
parental abuse, neglect, abandonment, or a similar basis under State
law.'' Id. (emphasis added).
Additionally, DHS proposed in the NPRM that a dependency or custody
order and specific findings of fact were examples of evidence USCIS
would consider in determining whether USCIS' consent is warranted. See
proposed 8 CFR 204.11(d)(3), 76 FR 54985. In response to public
comments requesting clarification of the evidence DHS will consider in
its consent determination, the final rule provides that a petitioner
must submit the court-ordered or recognized relief from parental abuse,
neglect, abandonment, or a similar basis under State law granted by the
juvenile court as well as the factual basis for the juvenile court's
determinations. New 8 CFR 204.11(d)(5)(i) and (ii). The final rule also
clarifies that ``USCIS may withhold consent if evidence materially
conflicts with the eligibility requirements [for SIJ classification] .
. . such that the record reflects that the request for SIJ
classification was not bona fide.'' New 8 CFR 204.11(b)(5).
(d) U.S. Department of Health and Human Services (HHS) Consent
DHS proposed that HHS consent is required only if the juvenile
court determines or alters the child's custody status or placement.
Proposed 8 CFR 204.11(c)(2), 76 FR 54985 (using language from Perez-
Olano, et al. v. Holder, et al., Case No. CV 05-3604 (C.D. Cal. 2010)).
In response to public comments requesting clarification on when HHS
consent is required, DHS has clarified in the final rule to more
accurately reflect the limited circumstances under which USCIS requires
evidence of HHS consent as discussed at paragraphs 7 and 17 of the
Perez-Olano Settlement Agreement. New 8 CFR 204.11(d)(6). The
Settlement Agreement clarifies that the HHS consent requirement is
limited to where the juvenile court is changing the custodial placement
of a petitioner in HHS custody. See Perez-Olano, et al. v. Holder, et
al., Case No. CV 05-3604 at ] 7 and 17 (C.D. Cal. 2010). Therefore, the
final rule provides that HHS consent is required only if the juvenile
court alters the child's custody status or placement. New 8 CFR
204.11(d)(6)(ii).
6. No Contact
(a) Clarification of No Contact Provision
DHS proposed to codify the statutory requirement at section 287(h)
of the INA, 8 U.S.C. 1357(h), that prohibits DHS from requiring that
the petitioner
[[Page 13071]]
contact their alleged abuser at any stage of the SIJ petition process.
One commenter recommended that DHS modify the regulatory text to more
closely track the language at INA section 287(h), 8 U.S.C. 1357(h),
which also includes individuals who battered, neglected, or abandoned
the child as individuals that petitioners cannot be compelled to
contact by DHS in relation to their SIJ matter. DHS agrees with this
commenter and has incorporated language at new 8 CFR 204.11(e) more
closely tracking the statutory language. In addition, for alignment
with INA section 101(a)(27)(J)(i) regarding the eligibility requirement
that reunification not be viable with a petitioner's parent(s) due to
``abuse, neglect, abandonment, or a similar basis found under State
law,'' DHS is including the term ``abused'' at new 8 CFR 204.11(e).
7. Interview
(a) Ability of Trusted Adult, Attorney, or Representative To Provide a
Statement
DHS proposed to permit a trusted adult, attorney, or representative
to provide a statement at the petitioner's interview for SIJ
classification. Proposed 8 CFR 204.11(e)(2), 76 FR 54986. However,
commenters opposed this provision due to concerns that it would violate
due process protections for the petitioner. Therefore, DHS has removed
this provision from the final rule. The change was made to limit the
ability of a non-attorney or representative to make a statement that
could impact the outcome of a case given commenters' concerns that a
``trusted adult'' may not have the consent of the child to participate
in the child's case and is not subject to any ethical rules or
disciplinary action should they engage in misconduct. DHS does not,
however, seek to inhibit the petitioner's representation by their
attorney or representative, and as further addressed later in this
preamble, an attorney or accredited representative is still permitted
to provide a statement. DHS, has also retained the provision that the
petitioner may be accompanied by a trusted adult at the interview. See
new 8 CFR 204.11(f).
(b) Presence of Attorney or Accredited Representative at the Interview
DHS proposed that: ``USCIS, in its discretion, may place reasonable
limits on the number of persons who may be present at the interview.''
Proposed 8 CFR 204.11(e)(1), 76 FR 54986. A number of commenters
expressed concern with this provision and viewed this language as
permitting USCIS to interview a child alone without their attorney or
accredited representative. DHS did not intend to limit a petitioner's
right to have their attorney or accredited representative present, and
DHS has modified the final regulatory text for clarity, adding that
although USCIS may limit the number of persons present at the
interview, ``the petitioner's attorney or accredited representative of
record may be present.'' New 8 CFR 204.11(f). This is consistent with
the right to representation as codified at 8 CFR 103.2(a)(3) and
292.5(b).
8. Time for Adjudication
(a) Clarification Regarding Adjudication Processing Timeframes
DHS proposed codifying the statutory 180-day timeframe on USCIS
decisions and proposed when the period would start and stop. See 8
U.S.C. 1232(d)(2); proposed 8 CFR 204.11(h), 76 FR 54986. Several
commenters asked DHS to reconsider whether temporarily pausing or
restarting the 180-day period is legally permissible. These comments
reflect some level of confusion regarding the proposed requirements for
the 180-day timeframe, as DHS did not intend to indicate that it would
be applying a different standard with regard to the impact on required
processing times for SIJ petitioners versus petitioners for all other
immigration benefits. As explained in the NPRM, the 180-day benchmark
would take ``into account general USCIS regulations pertaining to
receipting of petitions, evidence and processing, and assuming the
completeness of the petition and supporting evidence.'' See proposed 8
CFR 204.11(h), 76 FR 54983. To alleviate confusion, DHS has
incorporated into the final rule a reference to the regulations at 8
CFR 103.2(b)(10)(i) regarding how requests for additional or initial
evidence or to reschedule an interview affect the time period imposed
for processing, along with clarifying that the 180-day period does not
begin until USCIS has received all required initial evidence as listed
at new 8 CFR 204.11(d). See new 8 CFR 204.11(g)(1).
(b) Impact of Requests for Evidence for Adjustment of Status
Applications on Processing Timeframes
In response to a number of comments, DHS is clarifying the impact
of requests for evidence (RFEs) for adjustment of status applications
on the 180-day timeframe for adjudication of the SIJ petition. New 8
CFR 204.11(g)(2). DHS agrees with commenters that where a petition for
SIJ classification and an application for related adjustment of status
are pending simultaneously, an RFE that relates only to the application
for adjustment should not pause the 180-day clock for adjudication of
the SIJ petition. The 180-day period relates only to the adjudication
of the SIJ petition; therefore, RFEs, notices of intent to deny
(NOIDs), or other requests unrelated to the SIJ petition itself do not
impact the 180-day timeframe. Id.
9. No Parental Immigration Benefits Based on SIJ Classification
(a) Application of Prohibition to All of Petitioner's Natural and Prior
Adoptive Parents
DHS proposed that natural or prior adoptive parents of the
individual seeking or granted SIJ classification cannot be accorded any
right, privilege, or status under the INA by virtue of their parentage.
Proposed 8 CFR 204.11(g), 76 FR 54986. Several commenters asked DHS to
revisit its interpretation that the INA prohibits any parent, including
a non-abusive parent, from gaining lawful status through the individual
granted SIJ classification. In response, DHS notes that the statutory
language is clear that ``no natural parent or prior adoptive parent of
any alien provided special immigrant juvenile status . . . shall
thereafter, by virtue of such parentage, be accorded any right,
privilege, or status under this Act.'' INA section
101(a)(27)(J)(iii)(II), 8 U.S.C. 1101(a)(27)(J)(iii)(II). The statute
accords no preference to a parent who did not participate in the abuse
or neglect. DHS has clarified the final rule by providing that the
``prohibition applies to all of the petitioner's natural and prior
adoptive parent(s).'' New 8 CFR 204.11(i).
10. Revocation
(a) Moved Provisions on Automatic Revocation From 8 CFR 205.1(a)(3)(iv)
to 8 CFR 204.11(j)(1)
DHS proposed to codify an automatic revocation provision for SIJ
classification at 8 CFR 205.1, which contains the provisions for
automatic revocation of immigration benefits generally. In the final
rule, DHS has incorporated the revocation provisions for SIJ
classification at 8 CFR 204.11, where the rest of the regulations
governing SIJ petitions are located, for ease of reference and to
retain all regulations pertaining to SIJ petitions in the same
location. To minimize confusion, DHS has revised 8 CFR 205.1(a)(3)(iv)
to provide that the automatic revocation provisions for SIJ
classification are at 8 CFR 204.11(j)(1).
[[Page 13072]]
(b) Changes to the Grounds for Automatic Revocation
DHS proposed removal of the automatic revocation grounds that
relate to a SIJ beneficiary's age for consistency with TVPRA 2008
section 235(d)(6), the ``Transition Rule'' provision, which provides
that DHS cannot deny SIJ classification based on age if the noncitizen
was a child on the date on which the noncitizen filed the petition. DHS
also proposed revising the revocation ground based on a termination of
the SIJ beneficiary's eligibility for long-term foster care as this is
no longer a requirement under INA section 101(a)(27)(J), 8 U.S.C.
1101(a)(27)(J). Proposed 8 CFR 205.1(a)(3)(iv)(A),(B),(C), 76 FR 54986.
In the final rule, DHS has incorporated these modifications to the
bases for automatic revocation. New 8 CFR 204.11(j)(i),(ii). In
response to public comments, DHS also has removed marriage of the SIJ
beneficiary as a basis for automatic revocation, amending its prior
interpretation of INA 245(h).
(c) Notice and Evidentiary Requirements
DHS added to the final rule clarifying language regarding
revocation on notice and automatic revocation. New 8 CFR 204.11(j)(1)
and 205.1(a)(3)(iv). This language provides information about automatic
revocation of SIJ petitions by incorporating by reference the general
automatic revocation provisions at 8 CFR 205.1.
(d) Revocation on Notice
DHS did not propose changes to revocation upon notice in the NPRM.
However, for maximum clarity, DHS has added language that USCIS may
revoke an approved SIJ petition upon notice at new 8 CFR 204.11(j)(2),
incorporating by reference the general provisions for revocation on
notice at 8 CFR 205.2. As beneficiaries of SIJ classification have
always been subject to the provisions for revocation on notice at 8 CFR
205.2, this is a technical change to have all revocation provisions for
SIJs in 8 CFR 204.11.
11. Eligibility for Adjustment of Status
(a) Requirements for SIJ-Based Adjustment of Status
In response to comments, DHS has revised 8 CFR 245.1(e)(3) to
provide separate standards for SIJ-based adjustment of status. DHS also
has added new 8 CFR 245.1(e)(3)(i) to clarify that a noncitizen who has
been granted SIJ classification will be deemed paroled into the United
States for the limited purpose of meeting one of the eligibility
requirements for SIJ-based adjustment of status.
(b) Bars to Adjustment, Inadmissibility, and Waivers
DHS received many public comments regarding the proposal that only
certain grounds of inadmissibility could be waived for humanitarian
purposes, family unity, or when it is otherwise in the public interest
under INA section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), and that the
grounds not listed under this statutory provision are unwaivable for
SIJ adjustment applicants. See 76 FR 54983. Commenters disagreed with
this interpretation and wrote that pursuant to INA section 212, 8
U.S.C. 1182, an applicant classified as an SIJ may apply for a waiver
for any applicable ground of inadmissibility for which a waiver is
available. The commenters stated that while certain grounds of
inadmissibility cannot be waived under INA section 245(h)(2)(B), 8
U.S.C. 1255(h)(2)(B), they can be waived under other waiver provisions
of the INA, such as INA section 212(h). In response to these comments,
in the final rule DHS has modified its interpretation of INA section
245(h)(2)(B) and now clarifies that nothing in the final rule should be
construed to bar an applicant classified as an SIJ from a waiver for
which the applicant may be eligible pursuant to INA section 212.
DHS has also modified 8 CFR 245.1(e)(3) to expand when a waiver at
INA section 245(h)(2)(B) is available for inadmissibility under section
212(a)(2) based on the ``simple possession exception.'' DHS had
proposed in the NPRM that a waiver is available for inadmissibility
under INA section 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) (controlled
substance traffickers), if the offense is related to a single offense
of simple possession of 30 grams or less of marijuana. See proposed 8
CFR 245.1(e)(3), 76 FR 54983, 54986. The simple possession exception
was applied in the proposed rule to only INA section 212(a)(2)(C) based
on a plain language reading of INA section 245(h)(2)(B), which provides
that in determining an SIJ's admissibility as an immigrant:
[T]he Attorney General may waive other paragraphs of section 212(a)
(other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of
such paragraph as related to a single offense of simple possession of
30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in
the case of individual aliens for humanitarian purposes, family unity,
or when it is otherwise in the public interest.
In the final rule, DHS has expanded application of the simple
possession exception to the grounds of inadmissibility under INA
section 212(a)(2)(A), 8 U.S.C. 1182(a)(2)(A) (conviction of certain
crimes), INA section 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B) (multiple
criminal convictions), and INA section 212(a)(2)(C), 8 U.S.C.
1182(a)(2)(C) (controlled substance traffickers). See new 8 CFR
245.1(e)(3)(v)(A). This modification was the result of a recent Board
of Immigration Appeals decision in Matter of Moradel, which conducted a
statutory analysis of the scope of the simple possession exception
under INA section 245(h)(2)(B) and concluded that it ``applies to all
of the provisions listed under section 212(a)(2)'' and that ``Congress
intended the `simple possession' exception in section 245(h)(2)(B) to
be applied broadly.'' 28 I&N Dec. 310, 314-315 (BIA 2021).
(c) No Parental Immigration Benefits Based on SIJ Classification
DHS has provided standards that relate to SIJ-based adjustment of
status and incorporated them into 8 CFR 245.1(e)(3) in response to
comments that the proposed rule conflated standards for SIJ
classification and SIJ-based adjustment of status. For clarity, and
because the prohibition on parental immigration benefits applies to SIJ
petitioners and applicants for related adjustment of status, DHS has
amended 8 CFR 245.1(e)(3)(vi) to add the same text used at new 8 CFR
204.11(i).
(d) No Contact
Several commenters requested that DHS extend the prohibition in INA
section 287(h), 8 U.S.C. 1357(h), against USCIS compelling SIJ
petitioners to contact their alleged abuser(s) to the proceedings
related to SIJ-based adjustment of status. DHS agrees that it is
reasonable to extend this prohibition to the adjustment of status
proceedings given that adjustment of status applications may be pending
concurrently with SIJ petitions. DHS has revised 8 CFR 245.1(e)(3)(vii)
to incorporate the no contact provision.
E. Summary of Costs and Benefits
The provisions of the final rule subject to this regulatory impact
analysis will either affect a petitioners' eligibility or directly
alter the petitioning and adjudication process. DHS expects the final
rule to affect the following stakeholder groups: Petitioners for SIJ;
State juvenile courts and appellate courts; and the Federal Government.
The population of juveniles interested in attaining SIJ
[[Page 13073]]
classification, adjusting status, and obtaining lawful work
authorization are required to initially submit Form I-360. The cost of
the final rule affects newly eligible SIJ petitioners under the no
action baseline. The provisions of the final rule subject to this
regulatory impact analysis are examined against two baselines: (1) The
pre statutory baseline; and (2) the no action baseline. The pre
statutory baseline would evaluate the clarifications in petitioners'
eligibility made by TVPRA 2008. In analyzing each provision against the
pre statutory baseline, DHS finds that these clarificatory changes have
no quantifiable impact on eligibility. Stated alternatively, in the
absence of the TVPRA 2008 provisions codified by this rule, DHS has no
evidence suggesting SIJ trends would have behaved differently in the
intervening years. Consequently, this analysis focuses on the no action
baseline and those regulatory provisions affecting the petitioning-
adjudicating process and then analyzes the historical growth of demand
for and grants of SIJ classification in order to assess the benefits
and costs accruing to each stakeholder.
Relative to the no action baseline, the final rule will impose
costs on a group of petitioners who will now be eligible to submit Form
I-601, Form I-485 and Form I-765 once they already have an approved SIJ
classification. This final rule will allow SIJ beneficiaries who get
married prior to applying for LPR status to remain eligible to obtain
permanent residence. This rule will also allow SIJ beneficiaries who
have simple possession offenses to submit Form I-601 to apply for a
waiver of inadmissibility under any of the provisions listed at INA
section 212(a)(2), 8 U.S.C. 1182(a)(2). DHS assumes that every
petitioner who will not have their SIJ classification revoked because
of marriage will file Form I-485 which will result in new costs (and
benefits) to those petitioners.
The changes in this final rule will not impact Form I-360
petitioners currently applying for SIJ classification under the no
action baseline, however the impacts will be discussed in the pre
statutory baseline discussion. The changes in this final rule will
update regulations to reflect statutory changes, modify certain
provisions, codify existing policies, clarify eligibility requirements,
and will not impact children applying for SIJ classification. DHS has
required this additional evidence since the TVPRA 2008. Due to data
limitations that preclude identification of the unrelated factors that
explain the changes in the volume of petitioners observed over time,
DHS is limited in its ability to assess Form I-360 data. The primary
benefit of the rule to USCIS is greater consistency with statutory
intent, and efficiency.
II. Background
A. Special Immigrant Juvenile (SIJ) Classification
Congress created the SIJ classification through the Immigration Act
of 1990 to provide humanitarian protection for certain abused,
neglected, or abandoned juveniles in the child welfare system who were
eligible for long-term foster care. Through several legislative
amendments, this protection evolved to include juveniles outside the
foster care system. The statutory provisions for SIJ classification at
INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), require a juvenile
court determination that:
<bullet> The juvenile is dependent on the court, or is under the
custody of a State agency or department or an individual or entity
appointed by the court;
<bullet> Reunification with one or both of the juvenile's parents
is not viable due to abuse, neglect, abandonment, or a similar basis
under State law; and
<bullet> It would not be in the juvenile's best interest to return
to the juvenile's (or their parent's) country of nationality or last
habitual residence.
In addition, the juvenile must be under 21 years of age and
unmarried. SIJ classification may be granted only upon the consent of
the Secretary of Homeland Security, through USCIS.
A petitioner who has been classified as an SIJ is eligible to apply
for adjustment of status. Petitioners for SIJ classification do not
have the ability to include other family members who may derive LPR
status based on their status (derivatives) on their petition, nor are
they ever eligible to sponsor their natural or prior adoptive parents
for any immigration benefit.
The previous regulations governing SIJ classification at 8 CFR
204.11 were published in in 1993.\4\ 58 FR 42843. This rule updates the
regulations as required by statutory amendments to the SIJ statute
since that time and further aligns the benefit with the statutory
purpose of providing humanitarian protection to eligible child
survivors of parental abuse, abandonment, or neglect.
---------------------------------------------------------------------------
\4\ 8 CFR 204.11 was amended in 2009 to eliminate reference to
legacy INS in accordance with the creation of DHS. 74 FR 26937 (June
5, 2009).
---------------------------------------------------------------------------
B. Final Rule
DHS adopts most of the regulatory amendments proposed in the NPRM
and makes key clarifying changes based on public comments. DHS explains
in this rule why we are making changes or adopting the proposed
regulatory amendments without change. The changes to the regulatory
text are summarized previously in Section I, and they are discussed in
further detail later in Section III. This final rule does not respond
to comments that are general in nature or seek a change in U.S. laws,
regulations, or agency policies that are unrelated to the SIJ
classification or SIJ-based adjustment of status. This final rule also
does not change the procedures or policies of other Federal agencies or
State courts, nor does it resolve issues outside the scope of the
rulemaking. All comments can be reviewed at the Federal Docket
Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number USCIS-
2009-0004.
III. Response to Public Comments on Proposed Rule
A. Summary of Public Comments
On October 16, 2019, DHS reopened the comment period on the
proposed rule for 30 days to provide the public with further
opportunity to comment on the proposed rule. 84 FR 55250 (Oct. 16,
2019). During the initial comment period for the proposed rule, DHS
received 57 public comments. DHS received an additional 77 comments on
the proposed rule during the reopened comment period. In total, between
the two comment periods, DHS received 134 comments.\5\ DHS has reviewed
all 134 of the public comments received and addresses them in this
final rule.
---------------------------------------------------------------------------
\5\ Six additional comments were received but not posted on
<a href="http://www.regulations.gov">www.regulations.gov</a> or considered by DHS because they were
identified as being duplicate, irrelevant, or internal comments.
---------------------------------------------------------------------------
B. General and Preliminary Matters
1. General Support for the Proposed Rule
Comment: Several commenters expressed general support of SIJ
classification and favored finalizing the proposed rule and protecting
vulnerable children in our society. Two commenters wrote that they
appreciated DHS incorporating the protections and expansions from TVPRA
2008.
Response: DHS appreciates commenters' general support for this
rulemaking and for its ongoing efforts to protect vulnerable children
in accordance with the text and purpose of the statute.
Comment: Two commenters indicated that they supported the proposed
rule because the clarification of certain terms and elimination of
ambiguous language
[[Page 13074]]
aids in understanding and prevents unintended consequences in the
interpretation of the regulation by the relevant authorities.
Response: DHS appreciates commenters' support of the clarifications
in this rulemaking. DHS agrees and hopes that this rule will improve
adjudications and the SIJ petition and related adjustment of status
application processes for SIJs by eliminating ambiguities and updating
the regulation to reflect statutory changes and the statutory purpose
of providing humanitarian protection to eligible child survivors of
parental abuse, abandonment, or neglect.
Comment: Several commenters expressed support for the rule but
stated that they did not want the benefit to go to those who might be
engaging in fraud or abuse or those who do not meet certain criteria.
One commenter stated they hoped that USCIS would strictly scrutinize
the background of applicants to ensure the benefit goes to those ``who
really need it.'' Another commenter stated that they agreed with the
proposed rule, but only if ``the parents have abandoned the children''
or there were ``some sort of child abuse.''
Response: DHS appreciates commenters' support of the rule. USCIS
endeavors to screen all benefits for fraud to ensure that only those
eligible receive them. The statute governing SIJ eligibility at INA
section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), states that a
petitioner may be eligible if reunification with their parent(s) is not
viable due to abuse, neglect, abandonment, or a similar basis under
State law. DHS cannot make changes to the rule that conflict with the
statutory requirements of SIJ eligibility.
Comment: Two commenters stated that they believe that the SIJ
program is a beneficial program and advocated further ``revising the
law to be looser for children'' and to make the immigration system as a
whole looser for those without criminal records.
Response: DHS appreciates commenters' support and has implemented
the SIJ program as authorized by Congress. DHS is therefore unable to
make any changes in response to these comments to the extent such
changes would exceed its rulemaking authority. This rule modifies the
regulations surrounding SIJs specifically, not those impacted by the
immigration system without criminal records, and DHS believes the
changes provide greater clarity and further align the SIJ program with
the statutory purpose.
2. General Opposition to the Proposed Rule
Comment: Several commenters opposed the proposed rule on the basis
that they did not agree with the statutory SIJ classification because
they viewed it as giving ``amnesty'' to foreign-born children or using
taxpayer dollars to provide benefits for foreign born children, rather
than U.S. citizen children in need.
Response: DHS has implemented the SIJ program as authorized by
Congress. DHS also notes that the costs of USCIS are generally funded
by fees paid by those who file benefit requests and not by taxpayer
dollars appropriated by Congress. See INA section 286(m), 8 U.S.C.
1356(m). DHS made no changes in response to these comments.
Comment: One commenter said that the proposed regulations fail to
meet their objective of clarifying procedural and substantive
requirements for the SIJ petition by adding extraneous requirements
that fall outside Congress' intention to provide protection to a
vulnerable population.
Response: DHS disagrees with the commenter and does not believe
that any extraneous requirements were added beyond those imposed by
Congress. DHS's intent with this rule is to amend the regulations to
reflect statutory changes that have taken place since the previous
regulations were published and to further align the program with the
statutory purpose. With regard to the commenter's specific concerns,
DHS has addressed each concern in subsequent sections of the preamble.
Comment: A commenter wrote that the proposed rule would
impermissibly restrict the due process rights of affected migrants who
are minors in ways that conflict with United States obligations under
international law and violate customary international law.
Response: DHS disagrees with commenters that the rule violates
international law. The commenter does not specify any provision in the
proposed rule that would negatively affect an immigrant minor's due
process rights. DHS knows of no changes in the rule that deny,
restrict, or limit the rights of a minor to due process nor of any
international laws or principles that the rule violates. Therefore, DHS
is making no changes in the final rule as a result of this comment.
Comment: One commenter, referencing the USCIS press release
announcing the reopening of the comment period, stated that conclusory
statements that impugn the motives of SIJ petitioners wholesale are
improper, impart at minimum an appearance of bias to adjudications, and
thereby increase the risk of unfounded denials of relief and attendant
risk that children will be returned to harm. The commenter urges DHS to
include language in the rule clarifying that adjudicators must consider
any application for SIJ on its own merits, to underscore DHS's
commitment to fair adjudications for all children seeking humanitarian
protection.
Response: DHS respectfully disagrees that the rule's announcement
contained conclusory statements that impart a bias to adjudicators.
Adjudicators evaluate each petition on its own merits, and DHS does not
imply any predetermined outcomes as a result of this rule. DHS remains
committed to the fair and just adjudication of all immigration benefit
requests. At the same time, DHS will continue vetting all immigration
benefit requests to ensure they are granted only to those who are
eligible. This requires DHS to ensure that petitioners do not obtain
benefits for which they are not eligible under the law.
Comment: Several commenters said that it is inappropriate that SIJ
visa numbers are assigned to the employment-based fourth preference
(EB-4) visa category and wrote that visa numbers in the EB-4 category
should go only to employment-based immigrants. Some commenters wrote
that those with SIJ classification were taking visa numbers away from
skilled workers and stated that SIJ visa numbers should be placed in a
separate category. Other commenters said that for SIJ petitioners to
qualify for a visa number under the EB-4 category, they should be
subject to requirements for other employment-based immigrants, such as
being in status at the time of applying to adjust and having a bona
fide relationship to the United States.
Response: DHS is unable to address commenters' concerns because SIJ
classification is one of a number of disparate immigrant
classifications that collectively are under the EB-4 category pursuant
to INA section 203(b)(4), 8 U.S.C. 1153(b)(4). As the designation of
SIJ visa numbers under the EB-4 category is statutory, it cannot be
altered via this rulemaking.
3. Decision
(a) Decision Section and Notification of Appeal Rights
In response to public comments, DHS added to the final rule a
section regarding notification of decisions and appeal rights on
petitions at new 8 CFR 204.11(h). Such a section was in the previous
rule at 8 CFR 204.11(e) (58 FR
[[Page 13075]]
42850), but it had been omitted from the NPRM because USCIS regulations
at 8 CFR part 103 provide for such notifications and appeals. However,
DHS has included it in the final rule to ensure full clarity for SIJ
petitioners.
4. Section Heading
Comment: Nine commenters thought that the section heading of
proposed 8 CFR 204.11, ``Special immigrant classification for certain
aliens declared dependent on a juvenile court (Special Immigrant
Juvenile),'' should be changed to reflect all of the categories of
individuals who may be eligible.
Response: DHS agrees that the section heading should be amended
because juvenile court dependents are only one of several categories of
individuals who may be eligible under INA section 101(a)(27)(J), 8
U.S.C. 1101(a)(27)(J). DHS thinks it best to simply change the section
heading to ``Special immigrant juvenile classification.'' See new 8 CFR
204.11. This section heading is much more succinct and still ensures
that the section heading is inclusive of all eligible individuals.
5. Terminology
Comment: Several commenters wrote about the use of the term
``alien'' in the proposed rule. While some supported the use of the
term and noted that it is a legally defined term of art under the INA,
others contended that use of the term encourages negative stereotyping
of undocumented people. These commenters recommended that the term
``alien'' be removed from the regulatory text and not be used to refer
to the individual seeking SIJ classification.
Response: While the term ``alien'' is a legal term of art defined
in the INA for immigration purposes, DHS recognizes that the term has
been ascribed with a negative, dehumanizing connotation, and
alternative terms, such as ``noncitizen,'' that reflect our commitment
to treat each person the Department encounters with respect and
recognition of that individual's humanity and dignity are preferred.
DHS will use the term ``alien'' when necessary in the regulatory text
as the term of art that is used in the statute, but where possible we
will use the term ``petitioner'' to refer to those who are seeking SIJ
classification, and the term ``applicant'' to refer to those who are
seeking adjustment of status based upon classification as an SIJ. See,
e.g., new 8 CFR 204.11(a) and 245.1(e)(3).
Comment: One commenter noted that DHS used both the terms
``status'' and ``classification'' in referring to SIJ and asked DHS to
be clear in the use of these terms.
Response: DHS agrees with the commenter that the rule should be
consistent in the use of those terms. SIJ is a ``classification''; an
individual does not receive an actual ``status'' until they become an
LPR based on the underlying SIJ classification. For clarity, DHS uses
``classification'' throughout this rulemaking when referring to the SIJ
benefit itself. See, e.g., new 8 CFR 204.11(a).
Comment: One commenter requested that the term ``juvenile'' be
replaced with the term ``immigrant'' when referring to the person
seeking classification as an SIJ because the statute never refers to
the ``special immigrant'' as a juvenile. Another commenter noted that
if DHS intends that an adult filing on behalf of an individual can
function as the ``petitioner,'' then DHS should replace the word
``petitioner'' with ``alien'' for clarity and consistency.
Response: DHS declines to make the changes requested by the
commenters. DHS uses the term ``petitioner'' to refer to the noncitizen
seeking SIJ classification but includes in the regulatory text that
another person may file on the petitioner's behalf. See new 8 CFR
204.11(d)(1). DHS does not make any changes in this rule to DHS
regulations governing who can file a petition on behalf of a child at 8
CFR 103.2. DHS will therefore use the more appropriate term
``petitioner'' to refer to the person seeking SIJ classification.
6. Organization
Comment: Several commenters thought that the way DHS organized the
information in the proposed rule relating to SIJ classification and the
related SIJ-based adjustment of status seemed to conflate the two
standards.
Response: DHS agrees with commenters that its proposed layout may
raise confusion. In the final rule, DHS separates the requirements for
SIJ-based adjustment of status into 8 CFR 245.1(e)(3), and limits 8 CFR
204.11 to requirements for SIJ classification.
7. Effective Date
Comment: One commenter asked DHS to consider grandfathering or
creating an exception for those individuals who could not file under
the previous rule, especially those who could qualify only if both
parents abused, neglected, or abandoned the individual.
Response: DHS appreciates this concern; however, the change the
commenter was referring to was statutory, and without clear
congressional instruction to retroactively apply provisions of TVPRA
2008, DHS declines to make changes based on this comment. DHS did
implement the changes in 2008, consistent with the statutory language.
Any cases filed after that date did benefit from those statutory
changes, though USCIS regulations did not reflect the change. DHS
cannot however apply those statutory changes retroactively to petitions
filed prior to passage of TVPRA 2008. DHS notes that a petitioner is
required to establish eligibility at the time of filing and remain
eligible through adjudication of the petition. 8 CFR 103.2(b)(1).
Statutes are generally prospective only, but Congress may apply a
statute retroactively if it includes clear language providing for
retroactive application in the legislation. For example, Congress did
so in the VAWA 2013 changes to U nonimmigrant status (victims of
crime). Violence Against Women Reauthorization Act of 2013, Public Law
113-4 (Mar. 7, 2013) (VAWA 2013). In creating age-out protection
providing that certain qualifying family members of U nonimmigrant
petitioners must file a request before the age of 21, but may exceed
that age while the request is being processed, Congress added an
effective date that says the amendment ``shall take effect as if
enacted as part of the Victims of Trafficking and Violence Protection
Act of 2000.'' VAWA 2013 section 805(b). Without such clear statutory
authority in TVPRA 2008, DHS will not apply its SIJ provisions
retroactively.
8. Regulatory Comments
Comment: One commenter wrote that the rule is arbitrary and
capricious in violation of the Administrative Procedure Act (APA)
because DHS did not provide reasoned justifications for its changes to
longstanding policies.
Response: The commenter does not indicate which changes that DHS
proposed were not sufficiently explained. Nevertheless, DHS provided a
detailed explanation for each of its proposed regulatory provisions
governing the SIJ program. See 76 FR 54979-54983. DHS also summarized
the changes again in the comment period extension notice to refresh the
public comments. See 84 FR 55250-55251. In addition, the changes are
mainly in the nature of changes to implement statutory revisions,
clarifying changes, changes to improve the application process, or to
make technical and procedural changes. The changes are not major
departures from longstanding DHS positions, and they do not rely on
factual findings that contradict those that underlay our prior policy.
[[Page 13076]]
Comment: Three commenters said that the proposed rule did not
conduct the regulatory analysis required under Federal law and
executive orders. One commenter stated that the NPRM's assessment that
there will be no economic impact is inaccurate because the rule imposes
a higher standard of review for the consent analysis, which will
increase costs for USCIS and slow adjudications. Additionally, this
commenter stated that the prediction in the NPRM that the fee impacts
on petitioners are neutral is inaccurate as filings have increased
beyond those expected at the time the proposed rule was issued.
Response: USCIS provided an economic analysis in the NPRM and is
updating the analysis in this final rule. See 76 FR 54984. The
commenters correctly note that DHS stated that the fee impacts of this
rule on each SIJ petitioner as well as on USCIS are neutral because
USCIS estimates that filings for SIJ classification will continue at
about the same volume as they have in the relatively recent past. Id
DHS disagrees that this rule's consent analysis will delay
adjudications and increase costs for USCIS. The proposed rule also
stated the fees for the forms filed by petitioners seeking SIJ
classification, including Form I-485, Application to Register Permanent
Residence or Adjust Status, and Form I-601, Application for Waiver of
Ground of Inadmissibility, were not affected by the rule. This rule
does not change the fees that will be paid by SIJ petitioners. As noted
in the economic analysis for this final rule, the number of SIJ
petitioners has increased since the proposed rule, and the fees have
changed as a result of rules other than this one. See 81 FR 73292 (Oct.
24, 2016). Generally, though, SIJ petitioners are eligible to request
fee waivers for USCIS benefit requests. USCIS has provided an updated
regulatory impact analysis of changes being made in this rule in
Section IV.A, ``Executive Orders 12866 (Regulatory Planning and Review)
and 13563 (Improving Regulation and Regulatory Review)''.
Comment: Several commenters stated that the proposed rule was
outdated and stale because of the time that elapsed between the
issuance of the NPRM in 2011 and the reopening of the comment period in
2019. Three commenters noted that the results of the review of the
Office of Management and Budget (OMB) are therefore outdated and
unreliable for a current assessment of the proposed rule's costs and
benefits. These commenters requested that DHS withdraw the NPRM pending
new review and analysis by OMB in light of current USCIS procedures and
policies. Another commenter requested that USCIS update its proposal
and provide a revised proposed rule in a supplemental notice of
proposed rulemaking that would allow comment on a complete proposal
that reflects the current state of the law.
Response: DHS recognizes that approximately 10 years have passed
since it first proposed changes to the SIJ program through rulemaking
and accordingly stated that it reopened the comment period ``to refresh
this proposed rule and allow interested persons to provide up-to-date
comments in recognition of the time that has lapsed since the initial
publication of the proposed rule.'' 84 FR 55251. Prior to reopening the
comment period in 2019, DHS assessed the changes to the program since
the rule was proposed 8 years prior and determined that it was still
interested in its original proposals, and that it would reopen the
comment period to account for any changes over the years, to the extent
that there were any for which it previously did not account. In this
final rule, DHS is responding to both the comments received on the
proposed rule in 2011 and the comments received in response to the
reopened comment period. DHS disagrees that it should issue a
supplemental notice to reflect the current state of the law because the
law has not changed--the last statutory update to the SIJ portfolio
occurred in 2008, prior to publishing the NPRM. Further, DHS disagrees
that it should withdraw the rule pending new OMB review. DHS
acknowledges that the adequacy of the notice provided and comments
received can depend on if the situation around the rulemaking has
changed so much that there was new or different information that the
agency should have offered or the public could have provided for
consideration.\6\ DHS does not believe that there have been significant
changes in the basis for the proposed rule. Nevertheless, while the
information for the public to consider was not new or changed, DHS
published a notice requesting a new round of public comment to ensure
that the public had notice of the proposed rule and relevant background
information and that DHS had current input from affected stakeholders
close to the time of decision.
---------------------------------------------------------------------------
\6\ See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392 (9th
Cir. 1995); Mobil Oil Corp. v. EPA, 35 F.3d 579, 584-85 (D.C. Cir.
1994).
---------------------------------------------------------------------------
The reopening of the comment period and the final rule have gone
through OMB review prior to publication. To the extent that data have
changed and developed in the years since the proposed rule was
published, DHS has updated relevant data accordingly.
Comment: Two commenters stated that the proposed rule does not
satisfy the criteria and fundamental principles of federalism required
under Executive Order (E.O.) 13132. These commenters request that DHS
withdraw the proposed rule and defer to the States on areas of
traditional State expertise related to the administration of SIJ
petitions, or, in the alternative, that DHS issue a federalism summary
impact statement if it does move forward with the rule. Similarly,
several commenters wrote that the proposed rule lacks statutory
authority because State courts, not Federal immigration agencies, have
the requisite expertise in child-welfare issues that should not be
second-guessed by USCIS SIJ adjudicators and that DHS improperly
encourages a re-examination of the State court's order; requires the
petitioner to prove the underlying motivation behind the State child-
welfare assistance sought; and mandates the disclosure of evidence
treated as confidential by the States.
Response: DHS disagrees with commenters that this rulemaking
implicates federalism concerns. Specifically, INA section
101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), sets clear parameters for the
extent of State versus Federal involvement in the SIJ process: ``who
has been declared dependent on a juvenile court located in the United
States . . . and in whose case the Secretary of Homeland Security
consents to the grant of special immigrant juvenile status.'' Neither
the proposed rule nor this final rule modifies the extent of State
involvement. As for the commenter's assertion that DHS violated E.O.
13132 (Federalism) because it inadequately analyzed the rule's impacts
on States, DHS reiterates for this final rule that the regulation will
not have substantial direct effects on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The United States Government's authority to regulate immigration and
noncitizen status is broad, and stems in part from its constitutional
power to ``establish a uniform rule of Naturalization,'' Art. I, Sec.
8, cl. 4, and on its sovereign power to control and conduct foreign
relations. Arizona v. United States, 567 U.S. 387 (2012). Under the
Supremacy Clause, states are precluded from regulating conduct in a
field that Congress has expressly determined must be regulated at the
federal level or where Congress
[[Page 13077]]
has created a framework of regulation so pervasive that there is no
room for the States to supplement it. Id. at 399. Here, the role of DHS
is to adjudicate SIJ petitions to determine eligibility for SIJ
classification and adjustment of status as prescribed by the INA--a
field in which the States have no role. Accordingly, it is entirely
appropriate for USCIS officers when adjudicating an SIJ petition to
review the State court determinations to determine if a primary reason
the petitioner sought the juvenile court determinations was to obtain
relief from abuse, neglect, abandonment, or a similar basis under State
law, because this review is necessary for USCIS to make the consent
determination required by the INA. On the other hand, under this rule
DHS has no role in making dependency or custodial determinations or
granting relief from abuse, neglect, or abandonment, or a similar basis
under State law, which is a field properly reserved to the States.
9. Miscellaneous
Several comments were submitted that did not relate to the
substance of the NPRM, and will, therefore, not be individually
discussed. These comments related to areas such as writing style and
other issues outside of the scope of this rulemaking, including
comments on the USCIS Policy Manual or Administrative Appeals Office
(AAO) Adopted Decisions, recommendations not pertaining to this rule,
and general statements unrelated to the substance of the regulation.
DHS has reviewed and considered all such comments and incorporated them
as applicable.
C. Definitions
1. ``State''
Comment: Six commenters recommended that DHS change the proposed
definition of ``State'' to encompass all geographic areas under the
administrative control of the United States. Another commenter pointed
out that to define ``State'' but not ``United States'' was an
oversight.
Response: DHS agrees with the commenters that the proposed
definition of ``State'' appears incomplete and will adopt the INA
definitions for ``State'' and ``United States,'' which are established
immigration terms of art. This final rule amends the definition of
``State'' and adds the definition for ``United States'' at 8 CFR
204.11(a) by making reference to the INA definitions.
2. ``Juvenile Court''
Comment: Twenty-three commenters recommended changes to the
definition of ``juvenile court.'' Four commenters requested that the
definition expressly indicate that qualifying juvenile courts that can
issue orders include delinquency courts. One commenter wrote that the
use of the term ``juvenile court'' did not track statutory language,
which allows for a custody determination by a State juvenile court.
Eighteen commenters requested that the term ``juvenile court'' be
modified to align with INA section 101(a)(27)(J)(i), 8 U.S.C.
1101(a)(27)(J)(i), which recognizes juvenile court dependency or
custody determination. One commenter suggested that the final rule be
consistent with the definition of ``juvenile court'' from the AAO
Adopted Decision, Matter of A-O-C-, which states that ``petitioners
must establish that the court had competent jurisdiction to make
judicial determinations about their dependency and/or custody and care
as juveniles under State law.'' Matter of A-O-C-, Adopted Decision
2019-03, at 4 (AAO Oct. 11, 2019). One commenter suggested that the
term ``juvenile court'' include the custody, care, guardianship,
delinquency, or best interest of the juvenile. Another commenter
suggested that the definition include care, custody, dependency, and/or
placement of a child.
Response: DHS agrees with the commenters that the definition of
``juvenile court'' should include dependency to align with INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), and the guidance provided
in Matter of A-O-C-. The final rule defines ``juvenile court'' as a
court located in the United States that has jurisdiction under State
law to make judicial determinations about the dependency and/or custody
and care of juveniles. New 8 CFR 204.11(a). The final rule defines the
term ``judicial determination'' as a conclusion of law made by a
juvenile court. Id. Further, State law, not federal law, governs the
definition of ``juvenile,'' ``child,'' ``infant,'' ``minor,''
``youth,'' or any other equivalent term for juvenile which applies to
the dependency or custody proceedings before the juvenile court. The
final rule therefore requires the juvenile court to have exercised its
jurisdiction over petitioners as juveniles (or other equivalent term)
under the applicable State law. New 8 CFR 204.11(c)(3)(i).
DHS, however, declines to specify the types of courts that have
jurisdiction to make judicial determinations about the dependency and/
or custody and care of a juvenile. The definition of ``juvenile court''
in the final rule already encompasses various types of State courts
that have the jurisdiction to make judicial determinations about the
dependency and/or custody and care of juveniles, and it does not limit
qualifying courts to those specifically named ``juvenile'' courts. New
8 CFR 204.11(a). The names and titles of State courts that may act in
the capacity of a juvenile court to make the types of determinations
required to establish eligibility for SIJ classification may vary State
to State. A court by a particular name may have such authority in one
State, but not in another. DHS also declines to include ``care,''
``guardianship,'' ``delinquency,'' ``placement of a child,'' or ``best
interest of the juvenile'' as part of the definition of ``juvenile
court'' for the same reason--that a variety of types of proceedings may
result in a qualifying order for SIJ classification, and DHS does not
want to create a list that may be interpreted as exhaustive.
Comment: A commenter stated that the requirement in the NPRM for a
petitioner to submit a juvenile court order issued by a court of
competent jurisdiction located in the United States is redundant
because the definition of the term ``juvenile court'' already addresses
the jurisdictional and geographical limitations of the juvenile court.
Response: DHS agrees with this comment. Because the term ``juvenile
court'' is defined in the final rule as a court located in the United
States that has jurisdiction under State law, DHS has removed the
proposed provision stating that the juvenile court order be issued by a
court of competent jurisdiction. See new 8 CFR 204.11(a).
D. Eligibility Requirements for Classification as a Special Immigrant
Juvenile
This final rule adopts the eligibility requirements proposed in the
NPRM regarding age, unmarried status, and physical presence. New 8 CFR
204.11(b)(1) through (3). The reasoning provided in the preamble
remains valid with respect to general eligibility and is incorporated
here by reference. DHS has modified and added language to the
regulatory text on juvenile court order requirements and validity based
on public comments and on policy decisions made after publication of
the proposed rule. The changes to the regulatory text are summarized in
this preamble in Section I.
Several commenters raised the issue of what point in time (time of
filing or time of adjudication) USCIS assesses eligibility for SIJ
classification. In general, absent any clear statutory authority or
compelling reason that
[[Page 13078]]
suggests otherwise, DHS applies the general rule that ``[a]n applicant
or petitioner must establish that he or she is eligible for the
requested benefit at the time of filing the benefit request and must
continue to be eligible through adjudication.'' 8 CFR 103.2(b)(1). A
petitioner who does not meet the eligibility requirements at the time
of filing (and as later described in this rule, where applicable, the
time of adjudication) is not eligible for SIJ classification.
Exceptions to this general rule for specific SIJ classification
eligibility requirements are addressed in the following discussion of
the individual eligibility requirements.
The following table illustrates at what points during the petition
and adjudication process USCIS will assess each eligibility
requirement.
Table 2--SIJ Eligibility Requirements at Time of Filing and Time of
Adjudication of Form I-360
------------------------------------------------------------------------
Time of filing Form Time of adjudication
Eligibility requirement I-360 Form I-360
------------------------------------------------------------------------
Under 21 years of age....... Yes................. No.
Unmarried................... Yes................. Yes.
Physical presence........... Yes................. Yes.
Valid juvenile court order.. Yes, unless meets Yes, unless meets
one of the two one of the two
exceptions. exceptions.
------------------------------------------------------------------------
1. Under 21 Years of Age
As explained in the proposed rule, under TVPRA 2008, USCIS may not
deny SIJ classification based on age if the noncitizen was a child on
the date on which they petitioned for SIJ classification (hereafter
referred to as ``age-out protection''). TVPRA 2008 section 235(d)(6), 8
U.S.C. 1232(d)(6). Under section 101(b)(1) of INA, 8 U.S.C. 1101(b)(1),
a ``child'' is defined as under 21 years of age and unmarried. Through
these provisions, Congress has expressed an intent that SIJ
classification requires that the non-citizen be under the age of 21
only at the time of filing.
Comment: Twelve commenters supported DHS's proposed change to
prohibit USCIS from denying SIJ classification based on age if the
individual was a child on the date on which they petitioned for SIJ
classification. One commenter thought that the proposed rule drew an
``arbitrary line'' at the age of 21 and that DHS was disqualifying any
person over the age of 21 from protections from deportation. Some
commenters indicated that DHS should give higher priority to
petitioners less than 10 years old than to those who are 18 to 21 years
of age without severe disabilities.
Response: DHS does not make any changes based on these comments
because the age limit is set by statute. DHS does not have the
authority to expand the program beyond the age the law permits nor to
give preference to one age group over another. See TVPRA 2008 section
235(d)(6), 8 U.S.C. 1232(d)(6). DHS will require that the petitioner be
under 21 years of age only at the time of filing at new 8 CFR
204.11(b)(1).
2. Unmarried
Comment: One commenter agreed with the retention of the requirement
that a petitioner remain unmarried through the adjudication of the SIJ
petition. The commenter recommended that the final regulation further
clarify that USCIS will consider other similar indicia of emancipation
when determining whether USCIS should consent. The commenter said that
for example, the regulation should clarify that the status of a civil
union or common law marriage will be an indication of the legal
equivalent of emancipation through marriage.
Response: USCIS will consider a noncitizen's eligibility for SIJ
classification based on the preponderance of the evidence in its
assessment of whether a primary reason the petitioner sought the
required juvenile court determinations was to obtain relief from
parental abuse, neglect, abandonment, or a similar basis under State
law. See new 8 CFR 204.11(b)(5). Where USCIS has evidence of a State-
recognized common law marriage, it will adjudicate the SIJ petition
consistently with the eligibility requirements of the final rule, which
maintains the long-standing position that a petitioner for SIJ
classification must be unmarried at the time of filing and
adjudication. See new 8 CFR 204.11(b)(2). However, civil unions are not
recognized by USCIS as legal marriages for immigration purposes.
Comment: Four commenters requested that DHS remove the requirement
that a petitioner remain unmarried at the time of adjudication.
Commenters noted that TVPRA 2008 prohibits denial of a petition based
on age as long as the conditions were met at the time the petition was
filed. The commenters suggest that similar protections should be
provided in regard to unmarried status, because the policy behind the
TVPRA 2008 protection was to protect at-risk child victims of abuse.
Other commenters discussed the effect of marriage on a petitioner's
status as a dependent child in response to the preamble to the NPRM,
which stated that ``[m]arriage alters the dependent relationship with
the juvenile court and emancipates the child.'' 76 FR 54980. One
commenter noted that to the extent that marital status may affect the
dependency status of the petitioner, it is unnecessary to require
unmarried status through adjudication since the proposed rule requires
dependency at the time of adjudication. Another commenter said that
while marriage in most jurisdictions changes whether someone is
``dependent'' or not, USCIS should acknowledge that some jurisdictions
may make an exception where it is in a child's best interests.
Response: As explained in the proposed rule, under the previous
regulations at 8 CFR 204.11(c)(2), a juvenile must remain unmarried
both at the time the SIJ petition is filed and through adjudication in
order to qualify for SIJ classification. No legislative changes or
intervening facts have caused USCIS to alter this provision. This
interpretation is consistent with Congress' use of the term ``child''
in the ``Transition Rule'' provision at section 235(d)(6) of TVPRA
2008. INA section 101(b)(1), 8 U.S.C. 1101(b)(1), defines a ``child''
as under 21 years of age and unmarried. In section 235(d)(6) of TVPRA
2008, Congress linked the age-out protection specifically to age by
providing that SIJ classification may not be denied ``based on age.''
TVPRA 2008 does not link age out protection to marital status. Thus,
Congress required that the petitioner be under the age of 21 only at
the time of filing, but did not intend a similar protection as to
marital status. Further, 8 CFR 103.2(b)(1) states that ``[a]n applicant
or petitioner must establish that he or she is eligible for the
requested benefit at the time of filing the benefit request and must
continue to be eligible through adjudication.'' Therefore, DHS will
maintain its long-standing regulatory requirements, consistent with the
definition of ``child'' in the INA, that a petitioner be
[[Page 13079]]
unmarried at time of filing the SIJ petition and at time of
adjudication. New 8 CFR 204.11(b)(2).
3. Physical Presence in the United States
Comment: One commenter recommended that DHS interpret the
requirement for a petitioner's physical presence in the United States
as either physical or constructive presence. The commenter stated that
using the word ``physically'' to modify the word ``present''
impermissibly narrows the statute and the rule should instead mirror
the text of the statute, which provides that an SIJ petitioner is one
who is ``present in the United States.''
Response: DHS disagrees with this interpretation. The statutory
language at INA section 101(a)(27)(J)(i) requires that petitioners be
subject to determinations from a juvenile court located in the United
States, indicating that Congress intended that the petitioner be
physically present to be eligible for a grant of SIJ classification. It
has therefore been DHS's longstanding interpretation that physical
presence in the United States is required for USCIS to approve the
petition for SIJ classification, and no facts or circumstances have
come to our attention that would justify changing that interpretation.
4. Juvenile Court Order Determinations
(a) Dependency or Custody
Comment: Fourteen commenters thought that the proposed rule was not
inclusive enough of the various types of placements by a juvenile court
that could lead to eligibility for SIJ classification. These commenters
want DHS to clarify that commitment to or placement under the custody
of an individual could include, but is not limited to, adoption and
guardianship. Another commenter requested that DHS clarify that
guardianship or adoption standing alone is sufficient for SIJ
classification, without being preceded by a dependency, commitment, or
custody order. Several of these commenters asked DHS to clarify that a
court-ordered placement with a non-offending parent or a foster home
could qualify. One commenter requested that DHS clarify the types of
State court proceedings that may qualify, including divorce, custody,
guardianship, dependency, adoption, child support, protection orders,
parentage, paternity, termination of parental rights, declaratory
judgments, domestication of a foreign order, or delinquency. Another
commenter said that they were concerned that USCIS is interpreting
dependency to exclude children who are in the care and custody of the
U.S. Department of Health and Human Services, Office of Refugee
Resettlement (ORR).
Response: The plain language of INA section 101(a)(27)(J)(i) is
disjunctive, requiring a petitioner to establish that they have either
``been declared dependent on a juvenile court . . . or . . . such a
court has legally committed [them] to, or placed [them] under the
custody of, an agency or department of a State, or an individual or
entity appointed by a State or juvenile court''. INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). The final rule clarifies
that SIJ classification is available to petitioners for whom the
juvenile court provides or recognizes relief from parental abuse,
neglect, abandonment, or a similar basis under State law, which may
include the court-ordered custodial placement, or the court-ordered
dependency on the court for the provision of child welfare services
and/or other court-ordered or court-recognized protective remedial
relief. New 8 CFR 204.11(d)(5)(ii)(A) and (B). DHS will not include a
full list of examples of qualifying placements in this rule to avoid
confusion that qualifying placements are limited to those listed.
However, in response to commenters' request that USCIS clarify whether
adoption or guardianship standing alone may qualify, USCIS notes that a
judicial determination from a juvenile court of adoption or
guardianship would generally be a sufficient custodial and/or
dependency determination for SIJ eligibility. In addition, juvenile
court-ordered placement with a non-offending relative or foster home
would also generally qualify as a judicial determination related to the
petitioner's custody and/or dependency for SIJ eligibility.
In response to a commenter's concern that USCIS is interpreting
dependency to exclude children who are in the care and custody of ORR,
USCIS recognizes that placement in federal custody with ORR also
affords protection as an unaccompanied child pursuant to Federal law
and obviates a State juvenile court's need to provide a petitioner with
additional relief from parental maltreatment under State law. See
generally Homeland Security Act of 2002, Public Law 107-296, 462(b)(1),
116 Stat. 2135, 2203 (2002) (providing that ORR shall be responsible
for ``coordinating and implementing the placement and care of
unaccompanied alien children in Federal custody by reason of their
immigration status. . . .''). Such relief qualifies as relief in
connection with a juvenile court's dependency determination. In this
final rule, USCIS is clarifying that the relief qualifies so long as
the record shows that the juvenile court was aware that the petitioner
was residing in ORR custody at the time the order was issued. See new 8
CFR 204.11(d)(5)(ii)(B). For example, if the order states that the
petitioner is in ORR custody, or the underlying documents submitted to
the juvenile court establish the juvenile's placement in ORR custody,
that would generally be sufficient evidence to demonstrate that the
court was aware that the petitioner was residing in ORR custody. USCIS
is making this clarification to ensure that those in ORR custody are
not inadvertently excluded from SIJ classification because of the
requirement that the juvenile court recognize or grant the relief.
Comment: Several commenters requested further clarification on the
definition of dependency. One commenter requested that DHS explain
whether dependency includes temporary custody orders. Another commenter
stated that the regulations should retain the definition of dependency
contained in the previous 8 CFR 204.11(c)(3), which states that a
petitioner should establish that they have been ``declared dependent
upon a juvenile court located in the United States in accordance with
state law governing such declarations of dependency.'' This commenter
noted that whether a juvenile is dependent on the juvenile court is
within the purview of the juvenile court and not USCIS.
Response: DHS recognizes that there is no uniform definition for
``dependency,'' and the final rule continues to give deference to State
courts on their determinations of custody or dependency under State
law. DHS agrees with the commenter that the dependency determination is
within the jurisdiction of the juvenile court. Thus, the final rule
requires the juvenile court to have made a judicial determination
``related to the petitioner's custodial placement or dependency in
accordance with State law governing such determinations.'' New 8 CFR
204.11(c)(1).
(b) Parental Reunification Determination
DHS received twenty-two comments on various aspects of the parental
reunification determination. DHS reaffirms that the juvenile court must
make this determination based on applicable State laws. Nothing in this
rule should be construed as changing the standards that State courts
use for making family reunification determinations, such as evidentiary
[[Page 13080]]
standards, notice to parents, family integrity, parental rights, and
due process. DHS further notes that definitions of concepts such as
abuse, neglect, or abandonment may vary from State to State. For
example, it is a matter of State law to determine if a parent's actions
or omissions are so severe that even with services or intervention, the
child cannot be reunified with that parent.
Comment: Several commenters requested that the final rule formally
abandon USCIS' requirement that in order to make a qualifying parental
reunification determination, the juvenile court must have jurisdiction
to place the juvenile in the custody of the unfit parent(s). Another
commenter requested that DHS explain what constitutes a qualifying
reunification determination when a juvenile court does not make an
explicit finding and grants the offending parent noncustodial rights.
Seven commenters requested clarification that termination of parental
rights is not a prerequisite for SIJ classification. One commenter
requested that DHS remove from the proposed rule any discussion of the
requirement that a juvenile court order contain a determination that
the petitioner is eligible for long-term foster care due to abuse,
neglect, or abandonment.
Response: Consistent with longstanding practice and policy, DHS
agrees that termination of parental rights is not required for SIJ
eligibility and has incorporated this clarification in the final rule.
New 8 CFR 204.11(c)(1)(ii). The idea that children should not grow up
in the foster care system has led to changes in Federal law, such as
the Adoption and Safe Families Act. Adoption and Safe Families Act of
1997, Public Law 105-89 (Nov. 19, 1997). The SIJ program has evolved
along with child welfare law to include children for whom reunification
with one or both parents is not viable because of abuse, neglect,
abandonment, or a similar basis under State law. INA section
101(a)(27)(J)(i) previously required a State court determination of
eligibility for long-term foster care due to abuse, neglect, or
abandonment; however, the statute was modified by TVPRA 2008 to reflect
this shift away from long-term foster care as a permanent option for
children in need of protection from parental maltreatment. Accordingly,
references to ``foster care'' were removed from the NPRM and have been
removed from the final rule.
While there is no longer a requirement that petitioners be found
eligible for long-term foster care, nonviability of parental
reunification is still required. However, DHS no longer requires \7\
that the juvenile court had jurisdiction to place the juvenile in the
custody of the unfit parent(s) in order to make a qualifying
determination regarding the viability of parental reunification;
therefore, this final rule does not include such a requirement. See,
e.g., R.F.M. v. Nielsen, 365 F. Supp. 3d 350 (S.D.N.Y. 2019); J.L., et
al. v. Cissna, 341 F. Supp. 3d 1048 (N.D. Cal. 2018); Moreno Galvez v.
Cuccinelli, 387 F. Supp. 3d 1208 (W.D. Wash. 2019); W.A.O. v.
Cuccinelli, Civil Action No. 2:19-cv-11696, 2019 U.S. Dist. LEXIS
136045 (D.N.J. July 3, 2019). DHS further acknowledges that even while
it was in effect, the reunification authority requirement should never
have applied to petitioners who had juvenile-court orders entered
pursuant to Section 300 of the California Welfare and Institutions
Code, because California courts generally have continuing jurisdiction
over juveniles even after they turn 18. See, Cal. Welf. & Inst. Code
Sec. 303 (which provides that juvenile courts ``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
21 years of age''). These juvenile courts have jurisdiction to issue
findings regarding abuse, neglect, or abandonment, and based on these
findings, ``adjudge that person to be a dependent child of the court.''
See Cal. Welf. & Inst. Code Sec. 300.
---------------------------------------------------------------------------
\7\ See also USCIS, ``Policy Alert: Special Immigrant Juvenile
Classification,'' Nov. 19, 2019, available at <a href="https://www.uscis.gov/sites/default/files/policymanual/updates/20191119-SIJ.pdf">https://www.uscis.gov/sites/default/files/policymanual/updates/20191119-SIJ.pdf</a>.
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Where a juvenile court has intervened through, for example, the
removal of a child from a home because of parental maltreatment, such
intervention may establish that the juvenile court determined that
parental reunification is not viable, even if the court order does not
explicitly reference that determination. However, the petitioner must
establish that the juvenile court's actions resulted from the court's
determination under State law that reunification with their parent(s)
was not viable due to parental maltreatment. See new 8 CFR
204.11(c)(1)(ii).
Comment: Several commenters requested that DHS clarify that
petitioners are eligible for SIJ classification when the juvenile court
determines that parental reunification with only one parent is not
viable. Two commenters further asked DHS to include language that the
viability of reunification applies equally whether the parent is a
birth parent or an adoptive parent.
Response: The ability of a State court to make a ``one parent''
parental reunification determination is a matter of State law and
depends on the individual circumstances of the case. Nothing in this
rule should be construed as changing how juvenile courts determine
under State law the viability of parental reunification. In the event
that a juvenile court determines that it needs to intervene to protect
a child from one parent's abuse, neglect, abandonment, or a similar
basis under State law, that court's determination may fulfill the
parental reunification requirement. Similarly, the ability of a court
to exercise its authority to place a child in the custody of a non-
offending parent is also a matter of State law. Therefore, if
reunification with only one of the petitioner's parents is not viable,
the petitioner may be eligible for SIJ classification. DHS, however,
declines to incorporate the request that the reunification
determination applies to both birth parents and adoptive parents
because the parental reunification determination must be made under
State law, and it is ultimately a matter of State law who constitutes a
legal parent. In other words, the nonviability of parental
reunification determination must be based upon a parent who the State
court considers the child's legal parent under State law.
Comment: DHS also received several comments regarding the
definitions of abuse, neglect, and abandonment as they relate to the
parental reunification determination. One commenter stated that the
viability of parental reunification with one or both of the
petitioner's parents due to abuse, neglect, abandonment, or a similar
basis under State law must be determined by a juvenile court based on
applicable State law. Another commenter requested that DHS incorporate
language from the SIJ section of the USCIS Policy Manual stating that
``USCIS generally defers to the court on matters of [S]tate law and
does not go behind the juvenile court order to reweigh evidence and
make independent determinations about . . . abuse, neglect,
abandonment, or a similar basis under [S]tate law.'' \8\
---------------------------------------------------------------------------
\8\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special
Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM
J.2], available at <a href="https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2">https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2</a>.
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Other commenters recommended that DHS define or categorize the
terms ``abuse,'' ``neglect,'' and ``abandonment.'' One commenter
recommended that DHS define the terms ``abuse,'' ``neglect,'' and
``abandonment,'' to allow for a
[[Page 13081]]
consistent application of the law. A second commenter suggested that
DHS implement a standardized process for the categorization of the
findings of State juvenile courts into Federal categories for abuse,
neglect, and abandonment to ensure uniformity in DHS's determination of
whether a request for SIJ classification is bona fide. This commenter
suggested adopting a version of the modified categorical approach used
to determine whether a criminal conviction has immigration
consequences.
Response: Whether a State court order submitted to DHS establishes
a petitioner's eligibility for SIJ classification is a question of
Federal law and lies within the sole jurisdiction of DHS. See Arizona
v. United States, 567 U.S. 387, 394 (2012) (``The Government of the
United States has broad, undoubted power over the subject of
immigration and the status of aliens.''); see also Budhathoki v.
Nielsen, 898 F.3d 504, 512 (5th Cir. 2018) (explaining that
``[w]hatever responsibilities are exclusively for the [S]tate court,
USCIS must evaluate if the actions of the [S]tate court make the
applicant eligible for SIJ [classification]''). However, the plain
language of the statute, ``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,'' demonstrates that Congress
intended the determination that reunification with one or both of the
petitioner's parents is not viable due to parental maltreatment to be
made by a juvenile court under State law. INA section 101(a)(27)(J)(i),
8 U.S.C. 1101(a)(27)(J)(i) (emphasis added). The relevant SIJ statutory
language does not define abuse, neglect, or abandonment. Because the
determination of parental maltreatment is a matter of State law, and
the definitions of abuse, neglect, and abandonment vary from State to
State, creating a standardized process or modified categorical approach
would undermine Congress's instruction concerning the State's role in
these determinations. For these reasons, DHS generally defers to
juvenile courts on matters of State law, though it will evaluate orders
for legal sufficiency under the requirements of INA and finds no need
to codify additional corresponding language from the USCIS Policy
Manual.
Comment: Several commenters focused on the evidentiary requirements
for establishing abuse, neglect, abandonment, or a similar basis. One
commenter requested that DHS require the juvenile court to check the
petitioner's proof of abandonment or abuse to in order to prevent
fraud. Another commenter requested that USCIS provide guidance on what
information should be contained in a juvenile court order when the
court finds that a parent is abusive, including the identity of the
parent and details of the abuse. Another commenter stated that
juveniles who claim to have been abandoned should provide evidence
showing that they have a bona fide relationship to the United States,
otherwise they should reunify with relatives living in their home
country.
Response: Proving a bona fide relationship to the United States is
not an eligibility requirement under INA section 101(a)(27)(J), 8
U.S.C. 1101(a)(27)(J). Further, such a proposal was not a part of the
NPRM and thus to codify a United States nexus requirement would be
outside the scope of this rulemaking.
As noted earlier in this preamble, because a determination
regarding parental maltreatment is a matter of State law, USCIS does
not have the authority to mandate that a juvenile court require
specific evidence from a petitioner prior to issuing its
determinations. USCIS is responsible for detecting and deterring
immigration benefit fraud and for determining a petitioner's
eligibility for the SIJ classification. It cannot delegate these
responsibilities to the States. Moreover, because the determinations of
dependency, custody, and parental maltreatment are a matter of State
law, USCIS cannot require State juvenile courts to act as an
immigration gatekeeper or to undertake fraud investigations in
connection with dependency or custody proceedings. USCIS cannot
therefore require juvenile courts to take specific actions to verify
that a petitioner has not reunified with his or her parent(s) or
otherwise require juvenile courts to adopt specific procedures to
verify or investigate parental maltreatment. However, USCIS will not
grant its consent if the petitioner fails to demonstrate that a primary
reason the juvenile court determinations were sought was to obtain
relief from abuse, abandonment, neglect, or a similar basis under State
law. See new 8 CFR 204.11(b)(5).
(c) Determination of Best Interest
Comment: DHS received three comments in relation to the requirement
that juvenile court judges make best interest determinations under
relevant State law. Proposed 8 CFR 204.11(b)(1)(vi), 76 FR 54985. One
commenter expressed general support for the requirement. Another
commenter stated that the final rule should not require that the
juvenile court make a determination about a placement in the
petitioner's or their parent(s)' country of nationality or last
habitual residence. One commenter expressed opposition to the best
interest requirement in the proposed rule, stating that the language of
the INA provision notably does not include any requirement that the
best interest determination be made in State, as opposed to Federal,
judicial or administrative proceedings. This commenter suggested that
the final rule should be amended to provide that under 8 U.S.C.
1101(a)(27)(J)(ii), repatriation determinations are made by USCIS, as
part of its statutory consent function.
Response: The best interest determination is one of the key
determinations for establishing eligibility for SIJ classification and
the only one that has not changed throughout the history of the SIJ
program. Since the inception of the SIJ program, it has consistently
been the expressed intent of Congress to reserve this benefit for
children for whom it has been determined that it would not be in their
best interest to return to their or their parent(s)' home countries.
The prior regulation interpreted the best interest determination as
requiring a petitioner to have ``been the subject of judicial
proceedings or administrative proceedings authorized or recognized by
the juvenile court in which it has been determined that it would not be
in the alien's best interest to be returned to the country of
nationality or last habitual residence of the beneficiary or his or her
parent or parents.'' Previous 8 CFR 204.11(c)(6). In TVPRA 2008,
Congress did not alter the best interest determination, indicating that
it intended to retain the agency's long-standing requirement that the
best interest determination must be made in either judicial or
administrative proceedings by a court or agency recognized by the
juvenile court and authorized by law to make such decisions. New 8 CFR
204.11(c)(2)(i). The best interest determination is therefore not a
removal determination to repatriate a child (a determination within the
purview of Federal immigration law), rather, it is a determination made
by a State court or relevant administrative body, such as a State child
welfare agency, regarding the best interest of the child. The preamble
to the 1993 SIJ final rule explained that ``the Service believes that
the decision regarding the best interest of the beneficiary should be
made by the juvenile court or the social service
[[Page 13082]]
agency officials recognized by the juvenile court, not by the
immigration judge or other immigration officials.'' 58 FR 42848.
While the standards for making best interest determinations may
vary from State to State, best interest determinations generally
consist of the deliberation that courts and administrative bodies
undertake under State law when deciding what type of services, actions,
and orders will best serve a child, as well as who is best suited to
take care of a child. Best interest determinations generally consider a
number of factors related to the circumstances of the child and the
parent or caregiver, with the child's safety and well-being the
paramount concerns. HHS, Administration for Children and Families,
Child Welfare Information Gateway, ``Determining the Best Interests of
the Child,'' 2016, available at <a href="https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/">https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/</a>. The final rule
clarifies that it does not alter any obligations juvenile courts may
have under State child welfare law when making best interest
determinations. New 8 CFR 204.11(c)(2)(ii).
DHS agrees that a juvenile court or administrative body may not be
able to make a placement determination in a foreign county. However,
DHS has long held the interpretation that a determination that a
particular custodial placement is the best alternative available to the
petitioner in the United States does not necessarily establish that
being returned to the petitioner's (or petitioner's parents') country
of nationality or last habitual residence would not be in the child's
best interest. See 58 FR 42848. The best interest determination must be
made based on the individual circumstances of the petitioner, and DHS
will not accept conclusions that simply mirror statutory language in or
cite to INA section 101(a)(27)(J)(ii), 8 U.S.C. 1101(a)(27)(J)(ii). The
final rule requires evidence of the factual basis for the best interest
determination as part of the evidentiary requirement for DHS consent.
See new 8 CFR 204.11(d)(5)(i).
5. Qualifying Juvenile Court Orders
DHS received numerous comments regarding the proposed requirement
that the juvenile court order be in effect at the time of filing and
continue through the time of adjudication of the SIJ petition, with
limited exceptions provided for by the proposed rule. The majority of
commenters opposed the requirement that the juvenile court order be in
effect at the time of filing and/or adjudication. Other commenters
focused on the exceptions to this requirement.
(a) Validity at Time of Filing and Adjudication
Comment: A number of commenters asked DHS to revisit its position
of requiring the juvenile court order to be in effect at the time of
filing the SIJ petition and continue through the time of adjudication.
Several of the commenters noted that the statute uses past tense when
referring to the dependency and custody determinations. Two commenters
expressed support for retaining this requirement, with one commenter
stating that it ensures that the request for SIJ classification is bona
fide, and another commenter stating that the juvenile court order is a
filter that makes sure that the benefit is reserved for children in
need of special treatment. Another commenter suggested that if DHS is
retaining this requirement, the language of the proposed rule should be
revised to ``such dependency, commitment, or custody must be in effect
at the time of filing the petition and continue through the time of
adjudication of the petition.''
Response: DHS notes that the INA requirement ``has been declared
dependent . . . or has [been] legally committed to, or placed under the
custody of'' is worded in the present perfect tense. See INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). U.S. courts have
``frequently looked to Congress' choice of verb tense to ascertain a
statute's temporal reach.'' Carr v. United States, 560 U.S. 438, 448
(2010). The present perfect tense refers to a time in the indefinite
past or a past action that continues to the present.\9\ See, e.g.,
Padilla-Romero v. Holder, 611 F.3d 1011, 1013 (9th Cir. 2010)
(explaining that ``[a]s a purely grammatical matter, the use of the
present perfect tense `has been,' read in isolation from the
surrounding text of the statute, can connote either an event occurring
at an indefinite past time (`she has been to Rome') or continuing to
the present (`she has been here for five hours')''). DHS believes the
wording of the dependency requirement in the INA is meant to show that
the juvenile court has done something in the past, but the focus is on
the present time (the adjudication of the SIJ petition by USCIS). For
this reason, the final rule requires that the juvenile court order
``must be in effect on the date the petitioner files the petition and
continue through the time of adjudication of the petition.'' New 8 CFR
204.11(c)(3)(ii).
---------------------------------------------------------------------------
\9\ <a href="http://Merriam-Webster.com">Merriam-Webster.com</a>, ``present perfect,'' <a href="https://www.merriam-webster.com/dictionary/present%20perfect">https://www.merriam-webster.com/dictionary/present%20perfect</a> (last visited
Aug. 18, 2021).
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Further, longstanding USCIS regulations at 8 CFR 103.2(b)(1), in
general, require an applicant or petitioner for any immigration benefit
to establish eligibility ``at the time of filing,'' and that
eligibility ``must continue'' through adjudication. Additionally, DHS
agrees with commenters that this requirement ensures that SIJ
classification is provided to those truly in need of the benefit. DHS
has therefore modified the regulatory text at new 204.11(c)(3)(ii) to
clarify that the juvenile court order must be in effect at the time of
filing the petition and remain in effect through adjudication, except
where the juvenile court's jurisdiction terminated solely because of
petitioner's age or due to the petitioner reaching a child welfare
permanency goal, such as adoption. These exceptions are discussed
further elsewhere in this section of the preamble.
Comment: DHS received numerous comments about how the requirement
that the juvenile court order be in effect at the time of filing and
adjudication applies to petitioners who relocate to another State. One
commenter strongly objected to the proposed rule to the extent that it
presumed that SIJ eligibility would continue even if the petitioner
moved out of State. This commenter requested that DHS only recognize
when a petitioner moves to another jurisdiction under the custody of a
custodian appointed by the juvenile court, or when a petitioner in the
custody of an institution is moved by the juvenile court to another
jurisdiction.
Other commenters indicated that requiring a new court order for
petitioners that relocate to a new State or juvenile court jurisdiction
would be overly burdensome. Several commenters stated that the
requirement to obtain a new State court order is inconsistent with
other binding Federal statutes, such as the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) and the Interstate Compact on
the Placement of Children (ICPC). Those commenters said that the UCCJEA
and ICPC specifically prescribe a process by which transfer between
States is obtained and the initial State typically retains jurisdiction
of the matter and the juvenile. Several commenters also expressed
concerns that this requirement may disproportionately affect
petitioners in the custody of ORR of HHS. Another commenter stated that
it would create additional hurdles for those seeking Federal long-term
foster
[[Page 13083]]
care through the Unaccompanied Refugee Minor (URM) program.
Response: DHS does not wish to place an extra burden on petitioners
who may be moved between ORR facilities or to court-appointed
custodians in another jurisdiction, or to those seeking long-term
foster care through the URM program. Since the time of the NPRM, USCIS
has issued policy guidance that clarifies that a juvenile court order
does not necessarily terminate because of a petitioner's move to
another court's jurisdiction and is maintaining this policy, regardless
of this final rule.\10\ If the original order is terminated due to the
relocation of the child, but another order is issued in a new
jurisdiction, USCIS will consider the dependency or custody to have
continued through the time of adjudication of the SIJ petition, even if
there is a lapse between court orders.
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\10\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special
Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM
J.2], available at <a href="https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2">https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2</a>.
---------------------------------------------------------------------------
As discussed previously, absent any clear statutory authority, DHS
applies the general rule that ``[a]n applicant or petitioner must
establish that he or she is eligible for the requested benefit at the
time of filing the benefit request and must continue to be eligible
through adjudication.'' 8 CFR 103.2(b)(1). DHS will retain the
requirement that the juvenile court order be in effect at the time of
filing the SIJ petition and continue through the time of adjudication
of the SIJ petition, and implements this provision at 8 CFR
204.11(c)(3)(ii).
(b) Exceptions to the Requirement That a Juvenile Court Order Be Valid
at the Time of Filing and Adjudication
Comment: Several commenters recommended specific exceptions to the
requirement that the juvenile court order be valid at the time of
filing and adjudication of the SIJ petition. The commenters requested
that DHS take into account the fact that a court may terminate its
jurisdiction over a child if such child finds a permanent placement,
such as adoption or legal permanent guardianship. The commenters were
concerned that if the court terminated its jurisdiction due to the
child being placed in permanent guardianship or adoptive placement that
the child would lose eligibility for SIJ classification. One commenter
stated that a child who is returned to one parent is usually not
subject to continuing court supervision. Another commenter stated that
it would be contrary to the statute to deny SIJ classification to
children who have achieved a permanency option in juvenile court merely
because the juvenile court process reached its conclusion and secured a
safe and permanent solution for the child.
Response: DHS agrees that an individual adopted, placed in
guardianship, or another type of permanent placement may remain
eligible for SIJ classification. The previous regulation interpreted
the ``eligible . . . for long-term foster care'' requirement generally
to require an individual to remain in foster care until reaching the
age of majority, but acknowledged that this did not apply if ``the
child is adopted or placed in a guardianship situation.'' Previous 8
CFR 204.11(a). In the proposed rule, DHS did not propose to alter this
position. DHS will follow this long-standing position and expand it to
include other types of permanent placements, such as custody orders.
DHS is clarifying this position at new 8 CFR 204.11(c)(3)(ii)(A). The
final rule states that the juvenile court order must be in effect on
the date the petitioner files the petition and continue through the
time of adjudication, except when the juvenile court's jurisdiction
terminated solely because the petitioner was adopted, placed in a
permanent guardianship, or another permanency goal was reached. Id.
Comment: In the NPRM, DHS proposed an exception to the requirement
that the juvenile court order continue through the time of adjudication
for petitioners whose juvenile court orders terminated solely due to
age after filing the SIJ petition. Proposed 8 CFR 204.11(b)(1)(iv), 76
FR 54985. Some commenters asked DHS to allow individuals to file if
they are under 21 years of age and had a juvenile court order even if
the order has lapsed prior to filing the SIJ petition. These commenters
noted that the INA and TVPRA 2008 only require the petitioner to be
under 21 years of age at the time of filing. Other commenters supported
extending eligibility for petitioners who may age out of the juvenile
court's jurisdiction due to relocation to another State.
Response: After DHS published the 2011 NPRM, the government reached
a stipulation agreement in Perez-Olano, et al. v. Holder, et al., which
contains a provision that a petitioner whose juvenile court order
terminated solely due to age prior to filing the SIJ petition remains
eligible. Perez-Olano, et al. v. Holder, et al., Case No. CV 05-3604
(C.D. Cal. 2015). In accordance with the court agreement and in
response to public comments, which DHS agrees reflect a legally
permissible interpretation, DHS now codifies the exception to the
requirement that the juvenile court order be valid at the time of
filing and adjudication for petitioners who no longer have a valid
juvenile court order either prior to or subsequent to filing the SIJ
petition because of the petitioner's age, at new 8 CFR
204.11(c)(3)(ii)(B). In response to comments, this exception also
covers the situation of a petitioner who may age out of the juvenile
court's jurisdiction due to relocation to another State.
E. Evidence
1. Petition Requirements
A petitioner must submit a complete Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, in accordance with the form
instructions. DHS has amended the form consistent with the changes made
in this final rule. The final rule also removes the form number from
the regulatory text. New 8 CFR 204.11. Prescribing a specific form
number to be filed for a certain benefit in the Code of Federal
Regulations (CFR) is generally not necessary, and mandating specific
form numbers reduces USCIS' ability to modify or modernize its business
processes to address changing needs.
2. Age
Comment: Ten commenters expressed concern that the list of
documents in the proposed rule that may demonstrate proof of age was
restrictive. Commenters discussed the challenges that abused,
neglected, or abandoned children may face in obtaining proof of their
age and birth from their abusive parents. These commenters suggested
adding alternate documentation of proof of age that would be
acceptable, and expressly indicating that secondary evidence may be
provided as is allowed for other types of immigration petitions.
Response: DHS agrees that some vulnerable children may face
challenges in obtaining documentation of their age. DHS regulations on
the provision of secondary evidence at 8 CFR 103.2(b)(2)(i) apply to
SIJ petitioners, and DHS did not propose to alter this in the proposed
rule. The previous regulation interpreted the proof of age requirement
for SIJ petitioners to include evidence in the form of ``a birth
certificate, passport, official foreign identity document issued by a
foreign government, such as a Cartilla or a Cedula, or other document
which in the discretion of the director establishes the beneficiary's
age.'' Previous 8 CFR 204.11(d)(1), 58 FR 42850. DHS will follow its
long-standing position of
[[Page 13084]]
allowing official government-issued identification or secondary
evidence, and we have added clarifying language at new 8 CFR
204.11(d)(2).
Comment: Two commenters requested that USCIS recognize that SIJ
petitioners may not have government-issued identification to present at
the biometrics appointment. Another commenter requested that DHS remove
all references to biometrics in the regulation.
Response: DHS appreciates the intention of these comments; however,
it has acted to remove from regulations all unnecessary procedural
instructions and responsibilities, such as acceptable documents for
office visits. In addition, the proposed rule only referenced
biometrics in the preamble and not in the regulatory text itself, which
is consistent with the final rule as well. Therefore, DHS did not
revise the regulation in response to the commenters' requests and
biometrics submission requirements for SIJ petitioners remain the same.
Comment: One commenter said that in addition to documentary
evidence of the petitioner's age, USCIS should collect DNA samples as
part of its biodata procedures, or else confirm that a sample has
already been collected and added to the Combined DNA Index System
(CODIS) database of the Federal Bureau of Investigation (FBI). The
commenter asserts that the juvenile's age, identity, and any prior
contacts with law enforcement agencies can be more accurately and
expeditiously verified by USCIS using the CODIS database.
Response: DHS appreciates the comment, but DNA collection is
outside of the scope of this rulemaking. DHS did not propose to require
SIJ petitioners to submit DNA in the proposed rule, and it is not a
subject on which the public was requested to comment. Therefore, DHS is
unable to incorporate the suggestions of the commenter.
3. Similar Basis
INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), provides
that a petitioner must establish that their reunification with one or
both parents is not viable due to ``abuse, neglect, abandonment, or a
similar basis found under State law'' (emphasis added). When a juvenile
court determines parental reunification is not viable due to a basis
similar to abuse, neglect, or abandonment, the petitioner must provide
evidence of how the basis is legally similar to abuse, neglect, or
abandonment under State law. New 8 CFR 204.11(d)(4). The language of
the order may vary based on individual State child welfare law due to
variations in terminology and local State practice in making child
welfare decisions.
Comment: A number of commenters said that petitioners should not
have to demonstrate to USCIS that similar basis determinations are
equivalent concepts. These commenters requested that the evidentiary
standard be modified to reflect that the similar basis requirement is
met where the court has authority to take jurisdiction over the child.
Commenters also stated that USCIS should defer to juvenile court
determinations regarding what constitutes a similar basis under State
law. Many of the commenters expressed concerns that the requirement in
the proposed rule poses an undue burden on petitioners.
Response: The requirement to demonstrate that a similar basis
determination is legally analogous to abuse, neglect, or abandonment
under State law is statutory and thus DHS does not have authority to
modify it. INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i)
(``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''). DHS disagrees that an assumption can be made that a
basis is legally similar to abuse, neglect, or abandonment just because
a juvenile court took jurisdiction over the petitioner. The final rule
definition of ``juvenile court'' encompasses a wide variety of State
courts, and such courts may take jurisdiction over the case of a
juvenile for a variety of reasons that are not related to parental
maltreatment.
In the preamble to the proposed rule, DHS explained that ``[i]f a
juvenile court order includes a finding that reunification with one or
both parents is not viable [due to a similar basis] under State law,
the petitioner must establish that this State law basis is similar to a
finding of abuse, neglect, or abandonment.'' 76 FR 54981. The preamble
further stated that ``[t]he nature and elements of the State law must
be similar to the nature and elements of abuse, abandonment, or
neglect.'' Id. The preamble provided an example under Connecticut law
of an ``uncared for'' child and explained that ``uncared for'' may be
similar to abuse, abandonment, or neglect, because children found
``uncared for'' are equally entitled to juvenile court intervention and
protection. Id. The preamble gave examples of additional evidence a
petitioner could submit to establish the basis for a juvenile court's
finding that reunification is not viable due to a similar basis found
under State law; those examples focused on the factual basis for the
juvenile court's parental reunification determination. Id.
In response to comments requesting further clarification and
expressing concern that petitioners would face an undue burden by
having to demonstrate legal equivalency in order to establish that the
ground is similar to abuse, neglect, or abandonment, DHS has further
clarified how petitioners can meet the similar basis requirement at new
8 CFR 204.11(d)(4)(i) and (ii). Evidence demonstrating that this
requirement is met includes options that would not place additional
burden on the petitioner, such as including the juvenile court's
determination as to how the basis is legally similar to abuse, neglect,
or abandonment under State law. A petitioner may alternatively submit
other evidence that establishes the juvenile court made a judicial
determination that the legal basis is similar to abuse, neglect, or
abandonment under State law. Such evidence may include the petition for
dependency, complaint for custody, or other documents that initiated
the juvenile court proceedings. USCIS will not re-adjudicate whether
the juvenile court determinations regarding similar basis comply with
that State's law, only whether they comply with the requirements of
Federal immigration law for SIJ classification. Additionally, USCIS
will consider outreach to juvenile courts, social workers, attorneys
and other stakeholders to provide technical assistance on the level of
detail in juvenile court orders and underlying documents sufficient for
SIJ adjudications.
Comment: One commenter stated that the final rule should provide
that when a child has been a victim of domestic violence, forced
marriage, or child endangerment, the child should be presumed to have
suffered sufficient maltreatment equal to or greater than abuse,
abandonment, or neglect under State law to qualify for SIJ
classification without having to prove that these State laws are
similar to abuse, abandonment or neglect.
Response: DHS acknowledges the vulnerable circumstances of children
who are victims of domestic violence, forced marriage, or child
endangerment. However, the INA requires that a juvenile court determine
that reunification is not viable with a child's parent(s) due to abuse,
neglect, abandonment, or a similar basis under State law. INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). Therefore, a juvenile
court's determination alone that a child is a victim of domestic
violence, forced marriage, or child
[[Page 13085]]
endangerment would not be sufficient for SIJ purposes, unless it were
accompanied by: a judicial determination that reunification with the
child's parent(s) is not viable on that basis; and evidence indicating
that the basis constituted a legal basis similar to abuse, neglect, or
abandonment under State law. As mentioned previously in this preamble,
DHS provides further clarity in this final rule regarding how
petitioners can meet the evidentiary requirement of demonstrating that
a basis is legally similar to abuse, neglect or abandonment under State
law at new 8 CFR 204.11(d)(4)(i) and (ii).
Comment: Four commenters said that the proposed regulations will
result in adjudicators wrongly denying SIJ classification to minors in
long-term foster care by so narrowly construing what constitutes a
similar basis under State law and that greater deference should be
granted to the variety of bases for which reunification with a child's
parent(s) is determined not viable. One commenter noted that in certain
States like Utah, there is no basis for an abandonment determination;
rather a child who is abandoned to State custody is determined to be a
``dependent'' child. The commenter requests that such determinations
resulting in the child being removed from the parents and placed in
State child welfare services be considered a similar basis under State
law for SIJ purposes.
Response: DHS appreciates the commenters' concern and acknowledges
that there is variation in terminology and local or State practice in
making child welfare decisions. That a child has been placed in State
child welfare services following a determination that parental
reunification is not viable may constitute part of the evidence
provided of how a judicial determination is similar to abuse, neglect,
or abandonment under State law. As discussed, DHS has added regulatory
language in the final rule that helps clarify what evidence must be
provided to meet the burden of proof of demonstrating that the legal
basis is similar to abuse, neglect, or abandonment under State law. See
new 8 CFR 204.11(d)(4).
4. Evidentiary Requirements for DHS Consent
DHS proposed that USCIS consent would be provided where the
petitioner sought the qualifying juvenile determinations primarily for
the purpose of obtaining relief from abuse, neglect, abandonment, or a
similar basis under State law, and not primarily for the purpose of
obtaining lawful immigration status, and the evidence otherwise
demonstrates that there is a bona fide basis for granting SIJ
classification. See proposed 8 CFR 204.11(c)(1)(i), 76 FR 54985. DHS
also proposed that the petitioner must submit specific findings of fact
or other relevant evidence establishing the factual basis for the
juvenile court's parental reunification determination as evidence that
the request is bona fide. See proposed 8 CFR 204.11(d)(3)(ii), 76 FR
54985 (discussed in the preamble at 76 FR 54981).
Many commenters discussed the DHS consent function. Some commenters
focused on the way DHS interprets the statutory consent function, while
others focused on how DHS applies the consent function. The majority of
comments opposed either DHS's interpretation or the operation of its
consent function in some way. One commenter expressed concerns with how
USCIS will determine if a petitioner is primarily seeking lawful
immigration status, rather than child protection. This commenter
referenced cases of children who may have suffered some abuse, neglect,
or abandonment in the past, but where the abuse, neglect, or
abandonment does not seem to be the reason they are before the court.
DHS will retain its long-standing position on the interpretation of
the DHS consent function as requiring the factual basis for the court's
judicial determinations in the final rule. DHS has amended the
regulations governing the consent function in response to public
comments as described in the following paragraphs.
(a) Background and Legal Interpretation of DHS Consent
Comment: Many commenters opposed DHS's interpretation or
application of the statutory consent function. These commenters said it
was impermissible for USCIS to ``look behind'' the juvenile court order
to determine whether the petitioner established that the order was
sought primarily to obtain relief from abuse, neglect, abandonment, or
a similar basis under State law. Some commenters suggested that DHS
institute a presumption of consent where the petitioner meets all of
the eligibility requirements and has a juvenile court order instead of
basing its consent determination on whether the primary purpose for
seeking the juvenile court order was for relief from parental
maltreatment. Another commenter further noted that in finalizing the
proposed rule, USCIS also must be guided by a Federal district court's
conclusion in Zabaleta v. Nielsen, 367 F. Supp. 3d 208 (S.D.N.Y. 2019),
that the 2008 TVPRA contracted, rather than expanded, DHS's consent
function.
Response: As discussed in the proposed rule, DHS's position comes
from legislative history on the creation of the consent function. See
76 FR 54981. Congress amended the SIJ classification requirements in
1997 to require the express consent of the Attorney General to the
dependency order as a precondition to the grant of SIJ classification.
See CJS 1998 Appropriations Act, Public Law 105-119, 111 Stat. 2440
(Nov. 26, 1997). According to the House Report accompanying the 1997
amendments, the purpose of the amendments was to ``limit the
beneficiaries of this provision to those juveniles for whom it was
created, namely abandoned, neglected, or abused children.'' H.R. Rep.
No. 105-405, at 130 (1997). DHS may consent if it determines ``neither
the dependency order nor the administrative or judicial determination
of the alien's best interest was sought primarily for the purpose of
obtaining the status of an alien lawfully admitted for permanent
residence, rather than for the purpose of obtaining relief from abuse
or neglect.'' Id.
TVPRA 2008 modified the consent function, shifting from express
consent to the dependency order to consent to the grant of SIJ
classification. See TVPRA 2008 section 235(d)(1)(B)(i). Prior to TVPRA
2008, DHS had to make two decisions while adjudicating an SIJ petition:
whether to expressly consent to the dependency order and whether to
approve the SIJ petition. Now USCIS need only consent to the grant of
SIJ classification. The district court in Zabaleta v. Nielsen stated
that with the enactment of TVPRA 2008, ``Congress diluted the agency's
consent authority'' when it modified the consent function. 367
F.Supp.3d at 212. The district court reasoned that ``Congress decreased
the agency's authority under the consent provision'' when it struck the
requirement that USCIS expressly consent to the dependency order. 367
F.Supp.3d at 216. DHS disagrees with this interpretation of the
modification of the consent function in TVPRA 2008. While TVPRA 2008
shifted DHS's consent function to the grant of the SIJ classification
and removed the requirement that DHS ``expressly'' consent to the
dependency order,\11\ Congress did not remove the consent function. DHS
cannot treat the consent function as absent because Congress did not
remove it, and neither can DHS
[[Page 13086]]
render it meaningless by applying a presumption that every petition
that includes a juvenile court order merits consent.
---------------------------------------------------------------------------
\11\ DHS notes that ``express'' consent to an adjudicative
process it controls, unlike express consent to a dependency order
issued by a State juvenile court, would result in an adjudicative
redundancy.
---------------------------------------------------------------------------
The determinations made by the juvenile court are related to the
dependency or custody, parental reunification, and best interests of
the child under relevant State law. USCIS does not go behind the
juvenile court order to reweigh evidence and generally defers to the
juvenile court on matters of State law. Granting consent based on a
petitioner's eligibility for SIJ classification under immigration law
is the role of USCIS. It is not the role of the State court to act as
an immigration gatekeeper. It is clear that SIJ classification was
created, and remains a vital way, to provide immigration relief to
children who are victims of parental maltreatment. DHS therefore
believes its interpretation of the consent function is a reasoned
approach based on the statutory history of SIJ classification and of
the consent function.
In response to commenters' concerns regarding how USCIS would weigh
the petitioner's motivations, DHS recognizes that a juvenile court
order may have multiple purposes and that there may be an immigration
motive in seeking the determinations concurrent with, and in some
instances, equal in weight to, a desire to obtain relief from parental
maltreatment. For example, a child who has been placed in long-term
foster care may not become aware of the need to regularize their status
until well after the original determinations regarding non-
reunification with their parent(s) were made by the juvenile court. At
that time, they may separately seek the requisite determinations from
the juvenile court related specifically to SIJ eligibility. Although a
primary reason for seeking the juvenile court determinations at that
point would be for the purpose of obtaining immigration status, it does
not negate their underlying motivations for seeking the original relief
from parental maltreatment from the court.
In recognition of the fact that SIJ petitioners may have dual or
mixed motivations, DHS has modified the consent function by removing
the requirement that the petitioner demonstrate that they did not seek
the juvenile court's determinations ``primarily for the purpose of
obtaining lawful immigration status'' and instead requiring the
petitioner to establish that ``a primary reason the required juvenile
court determinations were sought was to obtain relief from parental
abuse, neglect, abandonment, or a similar basis under State law.'' See
new 8 CFR 204.11(b)(5) (emphasis added). Establishing that a primary
reason the petitioner sought the juvenile court determinations was to
obtain relief from parental abuse, neglect, abandonment, or a similar
basis under State law is dependent upon the facts and circumstances of
each case. USCIS may consider any materially relevant evidence, and DHS
has clarified language on the operation of its consent function. See
new 8 CFR 204.11(b)(5) and (d)(5).
(b) Roles of the Juvenile Court and DHS in Determining Eligibility
Comment: Many commenters expressed concern that as written, the
proposed rule instructs DHS to re-adjudicate the determinations made by
juvenile courts as part of the consent analysis. One commenter stated
that this gives in effect ``appellate review'' of the State court
adjudication to USCIS; another said that this provides for the
impermissible review and adjudication of State court findings.
Response: The role of DHS is fundamentally different from that of
the juvenile court. The juvenile court makes child welfare-related
determinations under State law. USCIS determines if a child meets the
statutory requirements for SIJ classification under Federal immigration
law. A juvenile court determines if it has the jurisdiction and
evidence to issue an order under State law for the requested juvenile
court action (e.g., appoint a legal guardian). While USCIS defers to
the expertise of the juvenile court in making child welfare decisions
and does not reweigh the evidence to determine if a child's
maltreatment constituted abuse, neglect, abandonment, or a similar
basis under State law, it must still determine whether a primary reason
the petitioner sought the juvenile court determinations was to obtain
relief from abuse, neglect, abandonment, or similar basis found under
State law. To make this determination, DHS requires the factual basis
for the court's determinations and evidence that the juvenile court
granted or recognized relief from parental abuse, neglect, abandonment,
or similar basis under State law. See new 8 CFR 204.11(d)(5)(i) and
(ii). DHS will not re-adjudicate the juvenile court determinations
regarding State law, but rather will look to the juvenile court's
determinations, the factual bases supporting those determinations, and
the relief provided or recognized by the State juvenile court in
exercising its consent function. See new 8 CFR 204.11(d)(5).
(c) Conflation of Pursuit of a Juvenile Court Order With the
Determinations Necessary for SIJ
Comment: Eight commenters thought that the DHS interpretation of
the consent function in the proposed rule conflated the pursuit of a
juvenile court order with the pursuit of a special order from a judge,
including the determinations and factual findings necessary for SIJ
classification. The commenters noted that in some jurisdictions, the
determinations for dependency and custody are made in separate hearings
from the other required determinations for SIJ eligibility. They
further noted that in some jurisdictions, an SIJ juvenile court order
is a separate, special order issued to facilitate obtaining immigration
relief, while determinations relating to custody and placement are done
independently. One commenter expressed general support for requiring
that USCIS consent to SIJ classification, rather than the juvenile
court order.
Response: DHS understands that in some jurisdictions, the court
will have a separate hearing and issue a separate order with the
necessary determinations for SIJ classification. In order to ensure a
clearer understanding, DHS has modified the language of the rule to
state that the petitioner must establish that a primary reason they
sought the juvenile court's determinations, rather than the order
itself, was to obtain relief from abuse, neglect, abandonment, or a
similar basis under State law. New 8 CFR 204.11(b)(5).
(d) DHS Consent Process and Procedures
Comment: One commenter said that the requirement of consent by DHS
seems wholly unnecessary if, as is stated in the proposed rule,
approval of the SIJ petition is considered the granting of consent on
behalf of the Secretary of Homeland Security. Other commenters said
that the consent provision of the proposed rule essentially instructs
USCIS adjudicators to presume fraud and State court incompetence in
fact finding in every SIJ case. The commenters further noted that the
``primary purpose'' and ``bona fide'' language in proposed 8 CFR
204.11(c)(1)(i), 76 FR 54985, aims to effectively reinstitute the
express consent provision from prior to the changes made by TVPRA 2008
by requiring a review of the evidence in the record for proof of the
petitioner's primary motive and a ``bona fide'' basis to grant SIJ
classification.
Response: DHS disagrees that the consent provision is unnecessary
[[Page 13087]]
because the proposed rule indicated that approval of the SIJ petition
is considered the granting of consent on behalf of the Secretary of
Homeland Security. The NPRM specifically stated that the ``the approval
of a Form I-360 is evidence of the Secretary's consent, rather than
consent being a precondition of the juvenile court order'' in order to
clarify the TVPRA change. 76 FR 54981 (emphasis added). DHS did not
conflate consent with approval.
DHS also disagrees that the proposed rule instructs USCIS
adjudicators to presume fraud or State court incompetence, or to re-
adjudicate the juvenile court determinations or factual findings. The
role of the State court and DHS are fundamentally different. While
juvenile courts make determinations pursuant to their State law, USCIS
must adjudicate petitions for SIJ classification under Federal
immigration law, and may grant consent only where the eligibility
criteria are met and DHS determines that a primary reason the
petitioner sought the required juvenile court determinations was to
obtain relief from parental abuse, neglect, abandonment, or a similar
basis under State law. See new 8 CFR 204.11(b)(5). DHS cannot delegate
determinations of eligibility for the SIJ classification nor its
consent function to a State court.
As previously noted, DHS will conduct a case-specific adjudication
of each petition to ensure that petitioners have met their burden of
proving that USCIS consent is warranted. DHS therefore declines to make
any change in response to these comments as DHS consent is itself an
eligibility requirement pursuant to the statute at INA section
101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii).
Comment: Three commenters wrote that DHS should develop a process
for internal review if USCIS determines that the juvenile court order
was sought primarily to obtain immigration benefits and USCIS would
deny consent. These commenters pointed to a USCIS memorandum \12\ and
stated that it requires supervisory review prior to denying consent or
issuing a denial of the SIJ petition. As an alternative to supervisory
review, the commenters suggested review at USCIS headquarters.
---------------------------------------------------------------------------
\12\ USCIS, ``Memorandum #3--Field Guidance on Special Immigrant
Juvenile Status Petitions'' (``Policy Memorandum #3''), May 27,
2004, available at <a href="https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf">https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf</a>.
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Response: DHS appreciates commenters' concerns regarding denials.
However, DHS will not promulgate an internal review process in the rule
that would bind USCIS to an administrative procedure that could
restrict resource allocation and become outdated. Supervisory review
instructions will be provided in guidance documents if necessary. DHS
will consider these comments when drafting such guidance.
Comment: Two commenters requested that USCIS notify the petitioner
that a decision to deny consent is appealable to the AAO.
Response: USCIS notifies denied petitioners of the right to appeal
the decision to the AAO as required by 8 CFR 103.3(a)(1)(iii)(A) for
all appealable decisions. For SIJ petitioners, this includes the
ability to appeal the denial of an SIJ petition based on the
withholding of DHS consent. DHS is not aware of this requirement not
being followed, but to avoid any confusion and in response to comments,
the final rule at new 8 CFR 204.11(h) requires notifying petitioners of
their right to appeal pursuant to 8 CFR 103.3.
Comment: One commenter said that if consent to SIJ classification
is warranted when ``the state court order was sought primarily for the
purpose of obtaining relief from abuse, neglect, abandonment or some
similar basis under state law,'' then USCIS should clearly list all
required initial evidence. The commenter further stated that it would
be helpful to have a list of a few examples to clarify what
``additional evidence'' may be required as well.
Response: There are variations in State laws, as well as varying
requirements regarding privacy and confidentiality, so there are no
specific documents that may or may not fulfill these evidentiary
requirements. However, at new 8 CFR 204.11(d)(5)(i)(A) and (B), DHS
provided examples of what may constitute relief from parental
maltreatment, including ``the court-ordered custodial placement'' or
``the court-ordered dependency on the court for the provision of child
welfare services and/or other court-ordered or recognized protective or
remedial relief . . .'' to provide further clarification on what
evidence may fulfil this requirement. Examples of documents that may be
provided as evidence in support of the factual basis for the juvenile
court order include: Any supporting documents submitted to the juvenile
court; the petition for dependency or complaint for custody or other
documents which initiated the juvenile court proceedings; court
transcripts; affidavits summarizing the evidence presented to the court
and records from the judicial proceedings; and affidavits or records
that are consistent with the determinations made by the court.\13\
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\13\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special
Immigrant Juveniles, Chapter 3, Documentation and Evidence [6 USCIS-
PM J.3], available at <a href="https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3">https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3</a>.
---------------------------------------------------------------------------
(e) Burden on the Petitioner
Comment: Many commenters said that the proposed regulations
regarding consent imposed too great a burden on petitioners. These
commenters asked DHS not to require the petitioner to submit
documentation and make arguments in excess of what the statute
requires, and many said that DHS should not require findings of fact or
additional evidence beyond the determinations in the juvenile court
order. Several commenters stated that the DHS interpretation of the
consent function and requirement for evidence of the factual basis is
burdensome because it requires the petitioner to prove to USCIS what
the juvenile court has already determined. Another commenter said that
the SIJ statute only requires that SIJ orders contain factual findings,
and therefore, USCIS does not need to evaluate the petitioner's intent
for initiating dependency court proceedings nor weigh evidence to
determine whether it believes the court made proper findings. One
commenter wrote that they strongly agree with USCIS that ``the
petitioner bears the burden'' of proving that the State court order was
not sought primarily for any other reason than obtaining relief from
abuse, neglect, abandonment, or some similar basis under State law,
with particular scrutiny of petitions whose primary motivation is
obtaining an immigration benefit. Another commenter recommended that
the final rule incorporate the principles found in the NPRM and the
USCIS Policy Manual that juvenile court findings of fact regarding the
basis for a determination of abuse, neglect, abandonment, or a similar
basis ``are usually sufficient to provide a basis for the Secretary's
consent.'' 84 FR 54981; See also USCIS Policy Manual, Volume 6,
Immigrants, Part J, Special Immigrant Juveniles, Chapter 3,
Documentation and Evidence, A, Juvenile Court Order(s) and
Administrative Documents, 3, Factual Basis and USCIS Consent [6 USCIS-
PM J.3(A.3)], available at <a href="https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3">https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3</a>.
Response: DHS does not agree that the regulation requiring a
factual basis for the juvenile court's determinations poses too great a
burden on petitioners. The burden is on the petitioner, as it is
[[Page 13088]]
for all immigration benefit requests, to establish that they meet
eligibility requirements. DHS works to ensure that all SIJ petitions
are properly adjudicated under the requirements of the INA, and as
noted previously, will conduct case specific adjudication of each
petition to ensure that petitioners have met their burden of proving
that USCIS consent is warranted. In the majority of cases, the
petitioner can meet the burden of showing that a primary purpose for
seeking the order was to provide the petitioner relief from parental
abuse, neglect, or abandonment, or a similar basis to these grounds
simply based on the juvenile court order itself. Orders that include
findings of fact in support of the juvenile court's determinations, as
well as evidence of court-ordered or recognized relief from parental
maltreatment, will usually provide the basis for USCIS consent.
Some juvenile courts only provide a template order that mirrors the
statutory language at INA section 101(a)(27)(J) with no information on
how the determinations relate to the petitioner under State law. This
may not be enough to provide a basis for USCIS to determine whether to
grant consent absent supplemental evidence. These cases are highly case
specific, and each will be adjudicated on its own merits. In the
proposed rule, DHS gave many examples of supplementary information that
could be included with the petition, such as juvenile court findings
accompanying the custody or dependency order, actual records from the
proceedings, or other evidence that summarizes the evidence provided to
the court. See 76 FR 54981. DHS does not agree that providing
supplementary information, such as the examples on these lists, is
unduly burdensome. In many cases, most of the information was submitted
to the juvenile court by the petitioner, his or her parent(s),
advocate, or attorney and is under the control of the petitioner, his
or her parent(s), or the attorney or advocate for the child.
DHS also disagrees with commenters who said that DHS is instituting
requirements in excess of the statutory requirements, and that the
statute only requires factual findings. The statute explicitly requires
that DHS consent to the grant of SIJ classification, and for the
reasons set forth in the NPRM as well as this final rule, DHS believes
its interpretation of consent is reasonable. INA section
101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii).
As previously noted, DHS recognizes that a juvenile court order may
have multiple purposes and that there may be some immigration motive in
seeking the order concurrent with a need to obtain relief from parental
maltreatment. However, adjudicators must review the order and any other
evidence provided to determine whether or not the petition was bona
fide and merits USCIS consent. While adjudicators may not substitute
their own judgement for that of the State juvenile court on issues of
State law, USCIS must evaluate petitions for legal sufficiency under
Federal immigration law.
(f) Privacy Concerns
Comment: Thirty-one commenters had privacy concerns with the
process for USCIS consent and the requirement that petitioners provide
to USCIS the factual basis for the juvenile court's determinations.
Many of these commenters thought that requiring the petitioner to
submit additional documents from a court, government agency, or other
administrative body, beyond just the juvenile court order, compels the
petitioner to present information that is protected under State privacy
laws. Several other commenters were concerned with language in the
preamble to the proposed rule that would allow officers to obtain
records directly from a juvenile court. See 76 FR 54982. The commenters
wrote that DHS should remove this from the final rule or at least
educate officers on applicable privacy laws and instruct officers to
follow proper procedures for lawfully obtaining access to the records,
which may mean formally petitioning a juvenile court.
Response: DHS agrees that all applicable privacy laws should be
followed in the provision of juvenile court records. Nothing in DHS
guidance should be construed as requiring the release or obtaining of
records in violation of privacy laws, and officers are advised on
relevant privacy laws and procedures as they relate to SIJ petitions.
As discussed previously, often these records were submitted to the
juvenile court by the petitioner, his or her parent(s), attorney, or
advocate and the documents are already under the control of the
petitioner, his or her parent(s), attorney or advocate for the child.
DHS agrees that petitioners and their legal representatives should
follow State laws regarding the authorization of release of
confidential records.
DHS provided a list of documents in the proposed rule that may
assist the petitioner in providing evidence of the factual basis. These
documents are intended to be examples of documents that the petitioner
can provide. However, it is ultimately up to the petitioner which
particular document(s) they choose to provide. DHS will not require a
specific form of evidence to prove the factual basis. Requests for
additional evidence on SIJ petitions are governed by the same
regulations that govern all other immigration petitions. See 8 CFR
103.2 and 103.3. USCIS officers generally do not directly request
records from any party other than the petitioner and their legal
representative in adjudicating SIJ petitions. However, this does not
bar USCIS from directly requesting documents as part of a fraud
investigation, as permitted by law.
(g) Consent Standards
Comment: Twenty-one commenters wrote that DHS should not equate
``consent'' and ``discretion'' and said that the proposed rule
attempted to impermissibly give DHS discretion where the statute only
provides for consent. Commenters were concerned that this language
would allow USCIS to consider factors that are not related to SIJ
eligibility requirements.
Response: The NPRM proposed that DHS would consider both the
evidence on the record as well as ``permissible discretionary factors''
(proposed 8 CFR 204.11(c)(1)(i), 76 FR 54985) (``In determining whether
to provide consent . . . USCIS will consider, among other permissible
discretionary factors, whether the alien has established, based on the
evidence of record . . .''). The NPRM also proposed that the
``petitioner has the burden of proof to show that discretion should be
exercised in his or her favor.'' See proposed 8 CFR 204.11(c)(1)(ii),
76 FR 54985. DHS recognizes that the wording of the regulatory text in
the NPRM may have caused some confusion as to how DHS would determine
if consent is warranted, and we agree that consent is not a
discretionary function. In exercising consent, DHS intends to only
consider factors that are relevant to assessing whether a primary
reason the petitioner sought the juvenile court's determinations was to
obtain relief from parental abuse, neglect, abandonment, or a similar
basis under State law. DHS has accordingly refined the language in this
final rule and has set parameters for exercising the consent function
by codifying its interpretation of consent and the evidence required.
Under the consent function, adjudicators must determine that the
request for SIJ classification is bona fide. See new 8 CFR
204.11(b)(5). DHS requires the petitioner to submit the factual basis
for the juvenile court's determinations and evidence the court provided
relief from parental maltreatment to demonstrate that the request is
bona fide. See new 8 CFR 204.11(d)(5)(i) and (ii). DHS will generally
consent to the grant of SIJ
[[Page 13089]]
classification if the petitioner meets these evidentiary requirements.
The final rule also clarifies DHS's provision to consider the
evidence of record when assessing consent by stating that ``USCIS may
withhold consent if evidence materially conflicts with the eligibility
requirements [for SIJ classification] . . . such that the record
reflects that the request for SIJ classification was not bona fide.''
New 8 CFR 204.11(b)(5).
Pursuant to the settlement agreement in Saravia v. Barr, USCIS will
not, however, withhold consent based in whole or in part on the fact
that the State court did not consider or sufficiently consider evidence
of the petitioner's gang affiliation when deciding whether to issue a
predicate order or in making its determination that it was not in the
best interest of the child to return to their home country. USCIS also
will not use its consent authority to reweigh the evidence that the
juvenile court considered when it issued the predicate order,\14\ nor
will it consider factors without a nexus to the petitioner's
motivations for seeking the juvenile court determinations.
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\14\ Saravia v. Barr, 3:17-cv-03615 (N.D. Cal. Jan. 14, 2021).
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(h) Consent and Role of the Child's Parent
Comment: Several commenters disagreed with language in the NPRM
preamble that DHS may consider evidence of a parent or custodian's role
in arranging for the petitioner to travel to the United States or to
petition for SIJ classification as reason to suspect that the juvenile
court order was sought primarily to obtain lawful immigration status.
See 76 FR 54982. One commenter stated that punishing children for their
parents' actions ignores the independent right of the child to receive
relief, and it contravenes the purpose of the statute to protect
vulnerable children. Several commenters said that the parent sending
the child to the U.S. may have been to protect the child from the
abuse, neglect, or abandonment of the other parent.
Response: It is a matter of State law as to if and how a parent's
or custodian's role in arranging travel to the United States impacts a
juvenile court's ability to issue a court order and make the required
judicial determinations.\15\ However, a petitioner must establish by a
preponderance of the evidence that a primary reason they sought the
juvenile court determinations was to obtain relief from parental
maltreatment. See new 8 CFR 204.11(b)(5). As discussed, the final rule
clarifies that USCIS may withhold consent if evidence materially
conflicts with the eligibility requirements for SIJ classification such
that the record reflects that the request for SIJ classification was
not bona fide. Id. This may include situations such as one in which a
juvenile court relies upon a petitioner's statement, and/or other
evidence in the underlying submission to the juvenile court, that the
petitioner has not had contact with a parent in many years to make a
determination that reunification with that parent is not viable due to
abandonment, but USCIS has evidence that the petitioner was residing
with that parent at the time the juvenile court order was issued. Such
an inconsistency may show that the required juvenile court
determinations were sought primarily to obtain an immigration benefit
rather than relief from parental maltreatment. However, evidence that
the petitioner sought the juvenile court determinations for both an
immigration purpose and for relief from parental maltreatment would not
alone result in a material conflict demonstrating that the request for
SIJ classification was not bona fide. This reflects DHS' position that
SIJ petitioners may have mixed motivations.
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\15\ The proposed rule cited to Yeboah v. DOJ, 345 F.3d 216 (3d
Cir. 2003), which held, in part, that legacy INS acted within its
discretion in considering evidence of the petitioner's relationship
with his family and physical and mental condition in deciding
whether to deny consent. Yeboah addressed the legacy INS's specific
consent function for juveniles in INS custody, which has since been
amended by the 2008 TVPRA.
---------------------------------------------------------------------------
5. HHS Consent
Several commenters focused on the requirement of specific consent
from HHS, including one commenter who generally supported DHS including
specific consent from HHS in the rule. Based on TVPRA 2008 and the
Perez-Olano Settlement Agreement, the proposed rule stated that an
unaccompanied child in the custody of HHS is required to obtain
specific consent from HHS to a juvenile court order that determines or
alters their custody status or placement prior to filing a petition
with USCIS.\16\
---------------------------------------------------------------------------
\16\ TVPRA 2008 vested responsibility for issuing specific
consent for unaccompanied children in HHS custody with HHS, rather
than DHS. It also simplified the consent language used to refer
simply to ``custody'' rather than ``actual or constructive custody''
as the requirement was previously worded after its creation by the
1998 Appropriations Act. The Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act, 1998
(CJS 1998 Appropriations Act), Public Law 105-119, 111 Stat. 2440
(Nov. 26, 1997).
---------------------------------------------------------------------------
Comment: Five commenters thought that the proposed provision
regarding juvenile court orders that ``alter'' the individual's custody
status or placement went beyond what is required by the INA. INA
section 101(a)(27)(J)(iii)(I), 8 U.S.C. 1101(a)(27)(J)(iii)(I), states
that ``no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary of
[HHS] unless the Secretary of [HHS] specifically consents to such
jurisdiction'' (emphasis added).
Response: This regulation implements the limited circumstances
under which USCIS requires evidence of HHS consent at new 8 CFR
204.11(d)(6). The language intentionally restricts the pool of children
in HHS custody to whom the specific consent requirement applies, as was
intended by both TVPRA 2008 and the subsequent Perez-Olano Settlement
Agreement. Perez-Olano, et al. v. Holder, et al., Case No. CV 05-3604
(C.D. Cal. 2010). Although the Perez-Olano Settlement Agreement
indicated that HHS consent is required only if the juvenile court
determines or alters the child's custody status or placement, in the
final rule, DHS has removed ``determined'' and included ``altered''
only. New 8 CFR 204.11(d)(6)(ii). The final rule more accurately
reflects the limited circumstances under which USCIS requires evidence
of HHS consent as discussed at paragraphs 7 and 17 of the Perez-Olano
Settlement Agreement. The Settlement Agreement clarifies that the HHS
consent requirement is limited to where the juvenile court is changing
the custodial placement of a petitioner in HHS custody. See Perez-
Olano, et al. v. Holder, et al., Case No. CV 05-3604 at ] 7 and 17
(C.D. Cal. 2010). This codifies and reflects long-standing policy,
clarifying that those petitioners in HHS custody who receive juvenile
court orders declaring them dependent on the court and restating their
placement in ORR custody are not required to obtain HHS consent; only
those petitioners in HHS custody who receive orders altering their
custodial placements are required to obtain HHS consent.
Comment: Three commenters thought that the rule failed to clarify
that a court exercising jurisdiction over a child in HHS custody and
issuing an SIJ predicate order does not determine custody status or
placement triggering the specific consent requirement. Another
commenter thought this language was restrictive, limiting the pool of
children in HHS custody to whom the specific consent requirement
applies.
Response: DHS agrees that the court's determination of dependency
or custody
[[Page 13090]]
required for SIJ classification does not necessarily trigger the
consent requirement. A child is required to obtain HHS consent only if
they are in HHS custody and also want to have a state court, not HHS,
decide to move them out of HHS custody or into a placement other than
the one designated by HHS. In other words, HHS specific consent is not
required if the juvenile court order simply restates the HHS placement.
Ultimately, specific consent is a process conducted by HHS, not USCIS,
which adjudicates petitions for SIJ classification. For DHS purposes,
where HHS specific consent applies, the petitioner should present
evidence of a grant by HHS of specific consent.
F. Petition Process
1. Required Evidence
Comment: One commenter said that USCIS should require the
petitioner to provide evidence of the residence or location of their
parent(s) or legal guardians if present in the United States, and that
this information should be provided to the appropriate USCIS or U.S.
Immigration and Customs Enforcement (ICE) district office, which should
then collect a DNA sample from them. The commenter further asserted
that the petition should not be deemed properly filed until this
requirement is completed and stated that such a requirement would not
require direct contact between a petitioner and alleged abuser.
Response: The commenter's request for additional required evidence
and DNA submissions goes beyond the scope of the rulemaking and what is
required by statute to implement the SIJ program. Furthermore, DHS is
concerned that adding such a requirement may run afoul of the no
contact provision prohibiting DHS from compelling petitioners to
contact alleged abusers. See INA section 287(h), 8 U.S.C. 1357(h); see
also new 8 CFR 204.11(e). For these reasons, DHS declines to
incorporate this recommendation into the final rule.
2. No Contact
The proposed rule implemented the statutory requirement at INA
section 287(h), 8 U.S.C. 1357(h), that prohibits USCIS from requiring
that the petitioner contact the alleged abuser at any stage of the SIJ
petition process. Ten commenters discussed issues relating to this
aspect of the rule, seven of whom indicated general support for this
provision.
Comment: Two commenters suggested expansions of the no contact
provision. These commenters wrote that this protection should be
extended to proceedings for other immigration benefits based upon SIJ
classification, including LPR status and naturalization. These
commenters further suggested that USCIS employees and officers be
prohibited from contacting the petitioner's alleged abuser(s) during
the same processes.
Response: The statutory protection applies to those seeking SIJ
classification and states that such petitioners ``shall not be
compelled to contact the alleged abuser (or family member of the
alleged abuser) at any stage of applying for special immigrant juvenile
status.'' INA section 287(h), 8 U.S.C. 1357(h). DHS has extended this
provision to individuals seeking LPR status based upon SIJ
classification, at new 8 CFR 245.1(e)(3)(vii), because SIJ
classification and SIJ-based adjustment of status have historically
been sought concurrently in certain circumstances. DHS appreciates the
suggestion to extend this protection to the naturalization phase also;
however, DHS proposed no changes to the eligibility and adjudication
requirements for naturalization. Thus, that change is beyond the scope
of this rulemaking.
With regard to the commenters' suggestion that DHS expand the
prohibition against requiring contact with the abusers to DHS employees
and officers, such an expansion is not within the scope of the law's
prohibition intended to protect petitioners from having to contact
their alleged abusers.
Comment: One commenter recommended that DHS modify the proposed
regulatory text to mirror the statutory language at INA section 287(h),
8 U.S.C. 1357(h), which also includes individuals who battered,
neglected, or abandoned the child in the categories of individuals that
petitioners will not be compelled to contact. Another commenter
supported expansion of the no contact provision to anyone who has
abused the child, not just the abusive parent(s).
Response: DHS agrees with these commenters and has clarified that
these prohibitions on compelling contact apply to individuals who
abused, neglected, battered, or abandoned the child. See new 8 CFR
204.11(e) and 8 CFR 245.1(e)(3)(vii).
Comment: Five commenters suggested that the regulations should
stress that evidence of the petitioner's ongoing contact with their
parent(s) should not contradict the child's petition for SIJ
classification. These commenters suggested that while contact cannot be
required, it also cannot be held against the petitioner given the
dynamics of abuse.
Response: DHS appreciates these thoughtful comments on the dynamics
of relationships between abused children and their alleged abusers.
However, DHS will not include information on the dynamics of children
and their alleged abusers in regulation. USCIS may provide instructions
on such issues in guidance to SIJ petition adjudicators.
Comment: One commenter requested that DHS add a statement that this
prohibition on compelling contact with alleged abusers would not affect
what juvenile courts do to ensure parental notice of court proceedings.
Response: While DHS agrees that this rule does not apply the no
contact provision to juvenile court proceedings, directly advising
juvenile courts on how to conduct State court proceedings is beyond the
scope of this rulemaking and DHS authority.
3. Interview
Comment: There were a number of comments regarding the section of
the proposed rule that provided for interviews of SIJ petitioners at
USCIS discretion. See proposed 8 CFR 204.11(e), 76 FR 54986. Sixteen of
those commenters suggested that USCIS should presumptively waive in-
person interviews of SIJ petitioners, and twenty-four commenters
indicated that USCIS officers should not ask the petitioner about
abuse, neglect, or abandonment. Another commenter said that DHS should
remove the clause ``as a matter of discretion'' as the SIJ adjudication
is not a discretionary determination. These commenters expressed
concerns that such questioning only would redo what the juvenile court
has already done, that USCIS officers lack the required training for
taking such testimony, and that it can retraumatize children. Several
of these commenters recommended that USCIS establish procedures for its
staff on how to create a nonthreatening interview environment and
ensure that officers have appropriate training on interviewing
vulnerable children, and one commenter suggested that DHS incorporate
portions of the USCIS Policy Manual on SIJ interviews into the rule.
Response: Regulations on the processing and adjudication of
immigration petitions apply to SIJ petitions, including the authority
to interview anyone who files an immigration benefit request, at 8 CFR
103.2(b)(9). DHS is not changing the regulations on immigration
interviews at 8 CFR 103.2(b)(9) via this rule and retains the
discretion to interview an SIJ petitioner and grant or deny the SIJ
[[Page 13091]]
petition, consistent with the statute and this final rule. DHS
disagrees that its interview process would redo what a juvenile court
has already done, or that USCIS officers may ``lack the required
training for taking such testimony,'' as DHS assesses whether to grant
or deny an immigration benefit. DHS provides child interviewing
guidelines to adjudication officers, and notes, as it did in the
proposed rule, that USCIS seeks to establish a non-adversarial
interview environment. DHS appreciates comments aimed at improving
interviews of SIJ petitioners and will consider implementation of these
comments through guidance and training.
Comment: While commenters expressed general support for allowing a
trusted adult to be present at the interview, twenty-nine commenters
expressed concerns with the provision that USCIS may place reasonable
limits on the number of persons who may be present at the interview.
These commenters suggested that USCIS should not retain the discretion
to interview a child alone and cannot separate a petitioner from their
attorney or accredited representative. Two commenters further stated
that it is inappropriate to limit the child's representation by their
attorney to a single statement or written comment in a USCIS interview
and requested that proposed 8 CFR 204.11(e)(2), 76 FR 54986, be
stricken.
Response: The proposed rule sought to recognize the unique
vulnerability of SIJ petitioners by allowing SIJ petitioners to bring a
trusted adult to the interview, in addition to the petitioner's
attorney or legal representative. DHS did not intend to limit a
petitioner's right to have their attorney or accredited representative
present at the interview. The limitation on persons present at the
interview was aimed at individuals other than the child's attorney or
accredited representative. DHS has added clarifying language at new 8
CFR 204.11(f) indicating that USCIS will do nothing to inhibit the
representation of a petitioner by an attorney or accredited
representative. DHS also has not included the proposed provision
regarding the attorney or representative statement in new 8 CFR
204.11(f).
Comment: Eight commenters opposed the provision at proposed 8 CFR
204.11(e)(2), 76 FR 54986, that a trusted adult could present a
statement at the interview. These commenters expressed concerns that
this would violate due process protections for the petitioner because
an adult who is not an attorney or representative is not subject to any
ethical rules or disciplinary action should they engage in misconduct.
Furthermore, commenters asserted that it may be challenging for
adjudicators to discern whether the child genuinely consented to the
adult participating in their case, raising potential trafficking and
abuse concerns.
Response: In response to comments, DHS removed the provision that
the trusted adult can provide a statement at the interview. The removal
of this language is not intended to mean that an attorney or accredited
representative is not permitted to provide a statement; as addressed
previously, DHS does not seek to inhibit the petitioner's
representation by their attorney or representative. DHS will explore
further clarifying the role of the trusted adult via guidance.
Comment: Eleven commenters said that USCIS should not question a
petitioner about their criminal record in connection with the SIJ
petition. One commenter requested clarification on what information
USCIS looks at in regard to the criminal background of SIJ petitioners
and at what phase in the process the inquiry occurs.
Response: The commentary on criminal record was part of the NPRM
preamble, and not the proposed regulatory text. DHS agrees that review
of the petitioner's criminal record should be conducted in connection
with the adjustment of status application. The criminal record will be
reviewed at the SIJ petition stage only as it relates to the
eligibility requirements for SIJ classification. For example, if USCIS
learns that a petitioner found dependent on the court pursuant to
youthful offender proceedings was subsequently convicted of a crime as
an adult, that element of the criminal record may be relevant to the
petitioner's eligibility for the benefit if it results in a termination
of the juvenile court dependency prior to the time of filing and/or
adjudication. See new 8 CFR 204.11 (b)(4) and (c)(3)(ii). DHS applies
the regulations at 8 CFR part 245 on the processing and adjudication of
immigration applications for SIJ-based adjustment of status
applications, including the regulations at 8 CFR part 245.6 on
immigration interviews.
4. SIJ Petition Decision Timeframe Requirement
DHS proposed the 180-day timeframe for issuing SIJ petition
decisions and explained when the period would start and stop. See 8
U.S.C. 1232(d)(2); proposed 8 CFR 204.11(h), 76 FR 54986. DHS noted
that the 180-day timeframe relates only to the petition for SIJ
classification and not to any concurrently filed, or later filed
application for adjustment of status. DHS modeled the starting and
pausing of the decision timeframe provisions on similar provisions at 8
CFR 103.2(b)(10)(i). A number of commenters discussed the timeframe for
adjudication, with some expressing support for incorporating the 180-
day timeframe from TVPRA 2008 and others asking DHS to reconsider
whether the framing of the start and stop provisions in the proposed
rule are legally permissible.
Comment: Twenty commenters asked DHS to reconsider whether under 8
U.S.C. 1232(d)(2), temporarily pausing or completely restarting the
running of the 180-day timeframe is legally permissible. Five of the
commenters said that the timeframe should be suspended only, not
restarted, for requests for additional evidence or to reschedule an
interview. Another five of the commenters thought that a request to
bring information to an interview should not pause the running of the
180 days and said that it should be paused only on the date of the
interview if the individual fails to present the requested documents,
delaying the adjudication.
Response: Despite the confusion indicated by the comments, DHS did
not intend to change the regulations at 8 CFR 103.2(b)(10)(i) regarding
how the requests for additional or initial evidence or to reschedule an
interview impact the timeframe imposed for processing SIJ petitions.
DHS will follow the regular practices set out for all immigration
petitions in 8 CFR 103.2(b)(10)(i) to ensure regulatory consistency and
consistency in agency practice. To avoid confusion, DHS has removed
language explaining the 180-day timeframe, pauses, and when it resumes,
and refers to the regulations at 8 CFR 103.2(b)(10)(i). See new 8 CFR
204.11(g)(1).
In acknowledgement of the permanent injunction issued in Moreno
Galvez v. Cuccinelli, No. 2:19-cv-321-RSL (W.D. Wash. Oct. 5, 2020)
(concluding that all adjudications of SIJ petitions based on Washington
State court orders must be completed within 180 days), appeal docketed,
No. C19-0321-RSL (9th Cir. Dec. 4, 2020), DHS will not apply the
timeframe for issuing SIJ decisions at new 8 CFR 204.11(g)(1) to SIJ
petitions with Washington State orders. DHS retains its interpretation
that the timeframe is not absolute, and though the court mandated
compliance in Washington state, it acknowledged that:
When determining whether an agency has acted within ``a reasonable
time'' for purposes of 5 U.S.C. 555(b), the timeline established by
Congress serves as the frame of reference . . . Under governing
[[Page 13092]]
case law, that [180 day] deadline is not absolute, but it provides the
frame of reference for determining what is reasonable.
Federal courts must ``defer to an agency's construction, even if it
differs from what the court believes to be the best interpretation, if
the particular statute is within the agency's jurisdiction to
administer, the statute is ambiguous on the point at issue, and the
agency's construction is reasonable.'' Nat'l Cable & Telecommunications
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 969 (2005). While the
statute states that all petitions for special immigrant juvenile
classification under section 101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the
Secretary of Homeland Security not later than 180 days after the date
on which the petition is filed, the processing of any immigration
benefit request requires the submission and analysis of a substantial
amount of information, opportunities for the petitioner to provide
additional evidence to establish eligibility, and the vetting of SIJ
petitions for which USCIS does not control the timing. The strict
application of 8 U.S.C. 1232(d) to mean adjudicated to completion in
180 days regardless of follow up requests for evidence from petitioners
and dependence on timely actions by the United States Postal Service
(USPS), State co
[…truncated; see source link]Indexed from Federal Register on March 8, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.