Introduction

Children under the age of 21 who meet certain requirements are eligible for special immigrant juvenile classification. One of the primary requirements is that the petitioner for special immigrant juvenile classification must file his or her Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, prior to his or her turning 21 years of age.

There is an interesting interplay between the age limit for special immigrant juvenile classification and state law. In order to be eligible for special immigrant juvenile classification, a petitioner must have a qualifying order from a state court establishing (1) dependency on the court or placing the petitioner under the jurisdiction of an agency, department, or person or entity appointed by the state; (2) that parental reunification with at least one parent is impossible due to one or more specified grounds; and (3) that the child’s best interest would not be served by being placed in the home country of his or her parent(s). State courts must apply their own laws when making these determinations and are not allowed to implement the INA, which is federal law.

Recent reports indicate that the USCIS has generally started denying special immigrant juvenile petitions based on guardianship orders obtained by aliens in New York when they were between the ages of 18 and 21. In this article, we will examine this development and discuss what it means for aliens in New York and in other states with similar laws. We will provide updates on the issue as they become available.

If you are not already familiar with the eligibility requirements for special immigrant juvenile classification, please see our articles on that subject [see article] and on the adjudication of special immigrant juvenile petitions [see article]. For a broader view of special immigrant juvenile classification and related issues, please see our growing collection of articles on the subject [see category].

Applicable New York Law

New York Fam. Ct. Act. Section 661 discusses jurisdiction and authority for New York family courts “in proceedings regarding the guardianship of the person of a minor or infant…” It gives family courts “like jurisdiction and authority … as county and surrogate courts” in this area. Section 661(a) reads, in the pertinent part, as follows:

For purposes of appointment of a guardian of the person pursuant to this part, the terms infant or minor shall include a person who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen.

Thus, under current law, New York family courts may make guardianship determinations for persons under the age of 21. However, if the individual is older than 18 but younger than 21, the law requires that he or she “consent[] to the appointment or continuation of a guardian…”

Although section 661 applies to all minors in New York regardless of citizenship or immigration status, the age limit was statutorily extended from 18 to 21, and appearing to track the expansion of special immigrant juvenile age eligibility from 18 to 21 [link].1

Reports Suggest Change in USCIS Posture Toward Certain New York Special Immigrant Juvenile Petitions

On April 18, 2018, the New York Times reported that the USCIS appears to have begun systematically denying special immigrant juvenile applications based on petitions filed by individuals in New York placed with guardians between the ages of 18 and 21 [link].2 At the time of the publication of the article, the Legal Aid Society of New York identified at least 81 such cases originating from New York City where petitions were denied or the applicants were told the petitions would soon be denied. The Legal Aid Society added to the Times that more than 1,000 similar New York cases could be affected.

The Times article suggested that the cases show that the Trump Administration reversed prior DHS policy and began treating “guardianship” under New York law for applicants over 18 years of age as distinguishable from “custody” for those under 18 years of age. The change is noteworthy, however, in that it was not accompanied by any official agency guidance or a public announcement of a change in policy. When reached for comment, the USCIS stated that “[a] petitioner must submit a court order issued by a juvenile court that contains specific demonstrations under relevant state law.” It also referred the Times to the USCIS Policy Manual, which does not address the specific issue of New York’s guardianship law but which instructs USCIS officers on how to adjudicate special immigrant juvenile cases. We discuss the Policy Manual guidance in detail on site [see category].

Advocates who spoke to the Times suggested that they had observed changes to the adjudication of special immigrant juvenile cases near the end of the Obama Administration, but that the implementation of changes appear to have accelerated under the Trump Administration. Although no formal change in policy has been announced, it is worth noting that an October 2017 White House document titled “Immigration Principles & Policies” described the special immigrant juvenile definition as something that “is abused, and provides another avenue for illicit entry” [PDF version].

Recent Administrative Appeals Office Decisions

If a special immigrant juvenile petition is denied, the petitioner has a window to appeal the decision to the USCIS’s Administrative Appeals Office (AAO) [see section]. The following decisions are non-precedential. This means each applies only to the case under consideration and does not bind any agency or office in the adjudication of a different case. Taken together, however, they paint a picture that supports the Legal Aid Society of New York’s account that the USCIS has altered its handling of certain New York special immigrant juvenile cases.

We will review in some detail three decisions that recently resolved appeals from the denial of a special immigrant juvenile petition by New York petitioners who had sought court orders for guardianship between the ages of 18 and 21. We will also provide a long list of case names that reached similar conclusions. Each case will include the Westlaw citation for readers with access to Westlaw who are interested in assessing the decisions in further detail.

Matter of P-S, ID# 1617949 (AAO July 12, 2018) [2018 WL 3609374]

The Petitioner, at age 20, filed a guardianship petition with a New York family court, which granted guardianship over the petitioner to a distant relative under New York Fam. Ct. Act. Section 661 (“section 661”). Petitioner then sought classification as a special immigrant juvenile based on the guardianship order. The USCIS issued a Notice of Intent to Deny (NOID), citing to the fact that it appeared to the agency that New York family courts lack jurisdiction over a child’s custody beyond the age of 18. USCIS denied the petition after it determined that the Petitioner had failed to overcome the derogatory evidence.

The AAO subsequently dismissed the Petitioner’s appeal. It concluded that “the family court orders were not issued by a juvenile court and do not contain a qualifying ruling on parental reunification.” In a particularly relevant point to the issue we are examining in this article, the AAO concluded that the Petitioner’s order did not come as a result of “child protective proceedings.” In an additional holding, the AAO concluded that the Petitioner’s request for special immigrant juvenile classification was not bona fide in that it was sought primarily to obtain immigration benefits.

Matter of M-S-, ID# 551149 (AAO July 11, 2018) [2018 WL 3609366]

The Petitioner,at age 20, filed a guardianship petition with a New York family court, which granted guardianship over the Petitioner to an uncle under section 661. The Petitioner sought special immigrant juvenile classification. The USCIS issued a NOID, and subsequently denied the petition, based on concerns that the family court did not act as a “juvenile court” and that it did not make findings regarding the viability of parental reunification.

The AAO dismissed the Petitioner’s appeal primarily because it determined that the “orders were not issued by a juvenile court and they lack a qualifying determination regarding the viability of parental reunification…” The AAO expressed additional concerns regarding whether the family court had made a fully informed decision and the Petitioner’s credibility.

Matter of R-S-, ID# 1208318 (AAO July 3, 2018) [2018 WL 3609299]

Similarly to the first two cases we discussed, the Petitioner sought a court order from the Family Court of the State of New York at age 20. The petition was denied by the USCIS. In this case, the AAO concluded that there was “a reasonable factual basis for the family court’s determinations…” However, despite this finding, the AAO denied the Petitioner’s appeal because he failed to establish “that the family court has jurisdiction over his ‘custody and care’ as a juvenile when the family court issued the guardianship and SIJ status orders…” Furthermore, the AAO concluded that the Petitioner did not make a qualifying determination regarding the viability of parental reunification.

Other Decisions Since January 2018 Where AAO Concludes that NY Guardianship Order Issued Between Ages of 18-21 Was Not Issued by “Juvenile Court”

Here, we will list AAO decisions dating back to November 2018 that reached the same conclusions as the three cases above regarding the disposition of special immigrant juvenile petitions filed by aliens in New York who had received court orders from New York family or surrogate courts between the ages of 18 and 21 under New York Fam. Ct. Act. Section 661 . Although the factual circumstances of each case are unique, the AAO reached the same conclusion in each of the following cases with regard to the central issue addressed in this article.

The list is current as of July 30, 2018.

Matter of S-S-, ID# 955014 (AAO July 3, 2018) [2018 WL 3609296]
Matter of H-S-, ID# 973226 (AAO July 3, 2018) [2018 WL 3609298]
Matter of M-S-, ID# 626464 (AAO June 29, 2018) [2018 WL 3572539]
Matter of E-A-Y-Z-, ID# 1092895 (AAO June 29, 2018) [2018 WL 3572549]
Matter of C-A-A-O-, ID# 955014 (AAO Jun. 12, 2018) [2018 WL 3241563]
Matter of C-Z-N-G-, (AAO, New York, March 9, 2018) [2018 WL 1566128]
Matter of A-S-, (AAO, New York, March 5, 2018) [2018 WL 1452493]
Matter of D-B-B-U-, (AAO, New York, March 5, 2018) [2018 WL 1452499]
Matter of J-S-, (AAO, New York, March 5, 2018) [2018 WL 1452482]
Matter of H-S-, (AAO, New York, February 27, 2018) [2018 WL 1399229]
Matter of K-S-, (AAO, New York, February 23, 2018) [2018 WL 1306230]
Matter of B-, (AAO, New York, February 21, 2018) [2018 WL 1240406]
Matter of G-S-, (AAO, New York, February 7, 2018) [2018 WL 1083989]
Matter of H-S-, (AAO, New York, February 1, 2018) [2018 WL 1064796]
Matter of M-S-, (AAO, New York, January 25, 2018) [2018 WL 924858]
Matter of J-S-, (AAO, New York, January 22, 2018) [2018 WL 833560]
Matter of M-S-, (AAO, New York, January 10, 2018) [2018 WL 802575]

Analysis and Conclusions

Recent AAO decisions suggest that the USCIS is in fact not treating guardianship orders issued by New York family courts for individuals between the ages of 18 and 21 as valid for special immigrant juvenile purposes. In cases where New York family courts act under their section 661 authority in cases involving individuals between the ages of 18 and 21, the AAO has consistently concluded in recent cases that the family courts are not acting as a “juvenile court” for purposes of special immigrant juvenile classification. Specifically, the recent AAO position is that when acting under the authority of section 661 to order guardianship with the consent of the juvenile, New York courts in fact lack jurisdiction over the child’s custody. Additionally, most of the decisions include determinations that the family court did not make a qualifying family reunification determination.

Because the USCIS has not formally announced a new policy, there is uncertainty as to whether its posture on the New York family court orders at issue in this article will affect states with similar laws. It is possible that, at some point in the future, the USCIS may issue or announce a new policy or that an AAO decision on the issue may either be adopted or selected for publication as precedent [see article for explanation]. Until that time, it appears that individuals in New York seeking special immigrant juvenile classification will need a qualifying court order before turning 18 years of age.

In all cases, an individual considering special immigrant juvenile classification and/or alternative forms of relief should consult with an experienced immigration attorney expeditiously for a case-specific consultation.

We will update the article with more information if it becomes available.

  1. Krause, Beth A. T., “Expert Report on Special Immigrant Juvenile Eligibility in New York State.” Catholic Legal Immigrant Network. INC. (CLINIC). Oct. 28, 2016. https://cliniclegal.org/sites/default/files/resources/defending-vulnerable-popluations/Expert-Guardianship-NY-Report.pdf
  2. Robbins, Liz. “A Rule Is Changed for Young Immigrants, and Green Card Hopes Fade.” New York Times. Apr. 18, 2018. https://www.nytimes.com/2018/04/18/nyregion/special-immigrant-juvenile-status-trump.html