Judges Behaving Badly ... Clinics Fighting Back: The Struggle for Special Immigrant Juveniles in State Dependency Courts in the Age of Trump

By Perlmutter, Bernard P. | Albany Law Review, Summer 2019 | Go to article overview

Judges Behaving Badly ... Clinics Fighting Back: The Struggle for Special Immigrant Juveniles in State Dependency Courts in the Age of Trump


Perlmutter, Bernard P., Albany Law Review


When people talk about refugees, the words used are "they", "us" or  "them". The moment of realization that we are a part of them, and they  are a part of us, is the moment when we can begin to affect change.                                      --Ai Weiwei, Law of the Journey (1) 

I. INTRODUCTION: A JOURNEY TO THE COURTHOUSE

In the first half of 2016, nearly 26,000 unaccompanied children--most of them from Central America--were apprehended at the U.S. border. (2) The majority of these children came from the "Northern Triangle"--El Salvador, Guatemala and Honduras--escaping gang violence, high murder rates, endemic poverty, and family break-up. (3) After making treacherous journeys through Mexico to the U.S., many of these unaccompanied minors presented themselves to state court judges in Florida and other states, seeking protection from neglect and harm and the opportunity to legalize their immigration status. (4) One of the ways that these children sought to legalize their status was through adjudications of dependency and "best interest orders" issued by state dependency court judges. (5) A best interest order is a prerequisite for an immigrant child to qualify for immigration relief as a Special Immigrant Juvenile. (6) Special Immigrant Juvenile Status ("SIJS") is a federal visa status available for certain immigrant children whom the court declares dependent, i.e., unable to reunify with one or both of their parents "due to abuse, neglect, abandonment, or a similar basis under State law." (7) The juvenile court must also find that it would not be in the child's best interests to return to his or the parent's previous country of nationality or residence. (8)

Once the court makes the required findings, the child is then eligible to apply to the Department of Homeland Security ("DHS") for SIJS and lawful permanent residence. (9) This two-step process, which involves both state courts and the federal DHS, is a classic illustration of immigration federalism. (10) What makes it unique is the centrality of the state court in this hybrid federal-state immigration decision-making system. The powers of the state courts vis-a-vis the federal government have waxed and waned over the twenty-eight years since the original passage of the law in 1990. (11)

Advocates in Florida for immigrant children seeking dependency adjudications and best interest orders encountered resistance from state court judges in the years following the Central American influx. (12) In this Article I parse the body of judicial interpretations of state dependency and federal SIJS law rejecting state court petitions filed by immigrant children, primarily in Florida. I trace undercurrents of anti-immigrant sentiment seeping into recent trial court rulings and appellate opinions.

Some of the judicial skepticism was motivated by a perception or fear that the flow of migrant children from Central America was showing no signs of letting up. (13) Perhaps for these reasons, judges felt obligated to raise the bar to claims of dependency by these children. They constructed different narratives to undergird their rulings. The narratives depicted hordes of alien children coming from Central America, entering their courtrooms, and alleging "fictional cases" of dependency which did not request anything from the court other than a best interest order as a pretext for obtaining immigration relief. (14) The implication was that they were going through the "back door" of dependency court to qualify for green cards from the U.S. Citizenship and Immigration Services ("USCIS"). (15)

I frame this case or field study of shifting judicial attitudes toward immigrant children in Florida, written largely in the first-person, as a lawyer who has devoted nearly three decades of my career providing advocacy for these clients, first as a legal services staff attorney, and for the last twenty-three years as a law school clinician. When I established the Children & Youth Law Clinic in 1996, our focus was on advocating for the legal needs of older children in the state foster care system. …

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