RFE on I-360 Special Immigrant Juvenile Petition

How to Respond to USCIS Requests for Evidence in Special Immigrant Juvenile Cases (SIJS).

USCIS has been issuing RFE's on SIJS cases lately asking for Family Court Documents. This is especially true for one parent cases in which the non-custodial parent is the one who abandoned or neglected the child. I just got one recently for a case in which USCIS asked for the Family Court documents because they found the Family Court "Special Findings Order" conflicted with statements the minor child made when initially apprehended at the border!

I don't think you should have to provide USCIS with additional evidence to prove again that the child meets the criteria. If the Family Court has adjudicated the matter then USCIS should not conduct their own fact-finding mission. I would encourage other practitioners not to provide USCIS with the Family Court documents they request.

I found these two arguments to be the most compelling.

1. USCIS Lacks the Authority & Was Never Intended to Adjudicate Such Matters.

When adjudicating a Special Immigrant Juvenile Status petition, the Service examines the juvenile Court Order only to determine if it contains the requisite findings of dependency/custody; nonviability of reunification due to abandonment; and that return is no in the child’s best interest, as stated in INA §101(A)(27)(J)(i)-(ii). The Service does not act in a fact-finding capacity in regards to these issues. Matter of A-H-C, 14684 (AAO 2015). The Statute explicitly defers such findings to the expertise and judgment of the State Court. INA §101(A)(27)(J)(i)-(ii); 8 U.S.C. §1101(a)(27)(J)(i). Accordingly, the Service should not question the State Court’s order. Id. See also USCIS Memorandum No. 3 – Field Guidance on Special Immigrant Juvenile Status Petitions, 4-5 (May 25, 2004).

The USCIS Ombudsman Office has explicitly stated, “USCIS is not vested with authority to make dependency determinations. It is not empowered to engage in post-decision legal or factual review of such decisions and it lacks the expertise possessed by state tribunal specializing in family law.” USCIS Ombudsman Recommendation, Special Immigrant Juvenile Adjudications: An Opportunity for Adoption of Best Practices” April 14, 2001, p. 7.

Federal Courts have limited jurisdiction under Article III §2 of the US Constitution. 28 U.S.C. §§1251, 1253, 1331, and 1332. Matters of domestic relations such as child custody or guardianship are purely concepts of State law. The Federal Government designates matters of domestic relations to the State Courts under the Tenth Amendment of the US Constitution. Further, by enacting the Violence Against Women Act of 1994, 108 Stat. 1916, 42 U.S.C. §13931, Congress expressly confirmed the same stating that 28 U.S.C. §1367 shall not be construed, to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of child custody. 42 U.S.C. §13981(e)(4).

When the Service requests evidence underlying State Court orders, the Service is, in effect, engaging in an inappropriate review of the State Court’s decision. Family Court determinations are not a matter of federal law. The Service is not vested with authority to make such determinations. The Service is not empowered to engage in post-decision legal or factual review of such decisions and it lacks the expertise possessed by state tribunals specializing in family law.

It is prescribed by statute that in order for a child to be eligible for SIJS the child must be dependent on a juvenile court or placed under the custody of an individual appointed by a State Court pursuant to State Law. 8 C.F.R § 204.11(a); 76 Fed. Reg. 172. “Determining the viability of reunification with one or both of a child’s parents due to abuse, neglect, abandonment, or a similar basis under State law is a question that lies within the expertise of the juvenile court, applying relevant State law.” 76 Fed. Reg. 172 at 54982.

2. The Requested Evidence May be Subject to State Confidentiality Laws.

It is improper for the Service to request the State Court file when State confidentiality laws may, and often do, prevent disclosure of juvenile State Court files, especially when such files contain sensitive information regarding child abuse, abandonment and neglect. The Service has recognized this concern and addressed it in official written policy[1]. In New York State, Family Courts are generally closed to the public. Juvenile cases are automatically sealed upon conclusion in certain circumstances. N.Y. Fam. Ct § 375.1; Matter of Steven R., 121 Misc.2d 245 (N.Y. Fam. Ct. 1983).

[1] USCIS Policy Manual, Volume 6: Immigrants, Part H – Special Immigrant Juveniles, p. 8.

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