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F.L. v. Thompson

October 03, 2003

F.L., PLAINTIFF,
v.
TOMMY THOMPSON, ET AL., DEFENDANTS.



MEMORANDUM OPINION

The issue plaintiff presents is a narrow one. An unaccompanied minor in United States custody asks the Court to decide whether the Homeland Security Act of 2002 ("HSA"),*fn1 in its allocation of the functions formerly performed by the Immigration and Naturalization Service ("INS") to the Department of Homeland Security ("DHS") and the Office of Refugee Resettlement ("ORR"), gives ORR the sole authority to grant him consent to request a state juvenile court to exercise jurisdiction over him. ORR has declined to decide whether to grant plaintiff's request for such consent, instead transferring his request to DHS. Plaintiff seeks a declaration and a temporary restraining order requiring the ORR to issue a decision on his request for consent by October 7, 2003.*fn2

Having reviewed the relevant statutes and pleadings and heard argument on September 30, the Court is persuaded that DHS has been granted authority to grant or deny consent to unaccompanied minors for state court jurisdiction. Accordingly, plaintiff's request is denied, and the complaint will be dismissed.*fn3

BACKGROUND

Plaintiff is a seventeen-year old citizen of Tanzania who came to the United States in July 2001 on a tourist visa with other young Tanzanians to attend an International Boy Scout Jamboree in Virginia. As the Jamboree drew to a close, plaintiff and three other Tanzanian Scouts left the group without notifying the Scoutmaster. After hearing media reports describing them as missing and sought by the Federal Bureau of Investigation, they turned themselves in to the District of Columbia police, who in turn transferred them into the custody of the INS.

While awaiting the resolution of his immigration status over the past two years, plaintiff has remained in United States custody.*fn4 He is currently living with a foster family in Michigan. The federal government funds his foster care placement as his custodian, but this funding will expire when he turns eighteen on October 11, 2003. Plaintiff wishes to request a Michigan juvenile court for a declaration of dependency, which would include a determination of his eligibility for long-term foster care available under state law.

Acquisition of this declaration of dependency from a state court is also a prerequisite to application for a special immigrant juvenile ("SIJ") visa, available to certain unmarried aliens under the age of twenty-one. 8 U.S.C. § 1101(27)(J); 8 C.F.R. § 204.11(c). SIJs are unaccompanied minors who have been found eligible by state courts for long-term foster care due to abuse, neglect or abandonment suffered in their home countries, where family unification is not an option, and return to their home country would not be in their best interest. 8 U.S.C. § 1101(27)(J)(i), (ii); 8 C.F.R. § 204.11. If he obtains a dependency order from the state court, plaintiff will apply for an SIJ visa, which would protect him from deportation.

Because plaintiff is in United States custody, before he may request a declaration of dependency from the Michigan court, he first must obtain consent to the jurisdiction of the juvenile court from the United States Attorney General. 8 U.S.C. § 1101(27)(J)(iii)(I).*fn5

Under the recently enacted HSA, ORR replaces INS as plaintiff's custodian. (Pl.'s Mem. at 9.) Plaintiff, believing that ORR is now the agency with the sole authority to consent to the state court's exercise of jurisdiction, submitted his request for such consent to ORR Director, defendant Nguyen Van Hanh, by letter dated August 29, 2003. (Pl.'s Mem., Ex. 1.) ORR responded on September 5, 2003, stating that because the HSA did not "specifically address the SIJ status process," ORR and the DHS "are discussing the two agencies' roles and responsibilities in the process." (Pl.'s Mem., Ex. 2.) Pending clarification of the roles and responsibilities, Hanh indicated that ORR is forwarding all requests concerning SIJ cases to DHS. ( Id.)

On September 25, 2003, plaintiff filed a complaint with this Court along with a motion seeking both a declaratory judgment establishing ORR's statutory responsibility to issue a decision on his request for consent and a temporary restraining order or injunction requiring ORR to render a decision on or before October 7, 2003. Receiving a timely consent decision is crucial to plaintiff, as the Michigan court only has jurisdiction to issue a dependency order prior to plaintiff's eighteenth birthday. Mich. Comp. Laws § 712A.2(b)(1).*fn6

Following the filing of this complaint, a DHS deputy assistant director wrote plaintiff's counsel on September 29, 2003, confirming receipt of plaintiff's request for consent from ORR. The letter reiterates the agencies' position that they "have not reached a final decision regarding which agency will have responsibility for making SIJ consent decisions," but that in the interim, "ORR and DHS have decided that DHS should continue to make SIJ consent decisions." (Defs.' Mot., Ex. A at 1.) The letter presents DHS's interpretation of the HSA and explains the basis for its conclusion that it is the appropriate agency to address plaintiff's request for consent. It also states that plaintiff's consent request fails to provide sufficient information to allow a determination as to whether plaintiff would meet the "basic eligibility requirements for SIJ status," but that if such supporting information were to be submitted by October, 1, 2003, DHS "would make every effort to provide a decision" by October 7. ( Id. at 2.)

At oral argument on September 30, defendants' counsel conceded that if no further evidence was forthcoming, DHS would deny plaintiff's consent request. (9/30/03 Tr. at 43-44.) Plaintiff's counsel represented to the Court that plaintiff will not submit any further information to supplement his consent request. ( Id. at 54-55.) Plaintiff claims injury, not because of DHS's denial of his request, but because only ORR, and not DHS, has the authority to grant or deny a request for consent.

STATUTORY FRAMEWORK

The statutory provision establishing SIJ status was enacted in 1990 as part of the Immigration and Nationality Act ("INA") of 1952, 8 U.S.C. § 1101(a)(27)(J). It establishes special status for an immigrant

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment; [and]

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

The statute as enacted did not prevent a state court from assuming jurisdiction over a juvenile immigrant in the legal custody of the INS. See M.B. v. Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002). In 1997, Congress amended the statute to add a prerequisite of Attorney General consent to the state court's exercise of jurisdiction by mandating that "no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction." 8 U.S.C. § 1101(27)(J)(iii)(I); Pub. L. 105-119, § 113 (1997).

By Memorandum dated July 9, 1999 (the "Cook Memorandum"), the Acting Assistant Commissioner of the INS's Adjudications Division, Thomas Cook, authorized INS district directors, in consultation with legal counsel, to give consent to minors for juvenile court jurisdiction on behalf of the Attorney General. The Cook Memorandum indicates that the district director, in consultation with the district counsel, should consent to the juvenile court's jurisdiction if: 1) it appears that the juvenile would be eligible for SIJ status if a dependency order is issued; ...


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