Immigration  Bulletin

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The Massachusetts Supreme Judicial Court Issued Its Full Opinion in Recinos v. Escobar Today, And Closed The Jurisdictional Gap Between Federal And State Law For Juveniles Seeking State Court Findings To Apply For Special Immigrant Juvenile Status.


March 4, 2016 Darren P. Cross


Special Immigrant Juvenile (SIJ) Status is a federal classification that allows certain children under 21 years old who have been abused, abandoned or neglected by a parent and who are present in the United States without legal immigration status immediately to apply to the United States Citizenship and Immigration Services (USCIS) for lawful permanent resident status.


A child cannot apply to USCIS for SIJ status without a qualifying order from a state court with jurisdiction to make rulings about the custody and care of children that includes findings relevant to the child's elibility for SIJ status. A qualifying state court order must find that: (1) the child is "dependent upon" the [state] court or is in the custody of the state; (2) the child cannot be reunited with one or both of the parents due to abuse, neglect, abandonment or similar reasons; and (3) it is not in the best interests of the child to return to his or her country of origin.


In Massachusetts, the court responsible for making judicial determinations regarding the custody and care of children is the Probate and Family Court, but that court typically has no jurisdiction over such matters once a child turns 18. This has left the judges of the Probate and Family Court with the question of whether they could rule at all on a request for SIJ findings for a child between the ages of 18 and 21. The SJC answered the question, at least in this case for this plaintiff, in the affirmative, creating a path forward for Recinos and a path to jurisdiction to obtain SIJ orders in Massachusetts for others between 18 and 21 years of age.


In Recinos, plaintiff Liliana Maribel Rivera Recinos (Recinos) filed a complaint in equity seeking equitable and declaratory relief in the form of special findings, including a finding that she was "dependent" upon the Massachusetts Probate and Family Court and other findings consistent with the requirements of federal law regarding her familial status and history of abuse. Recinos, born in El Salvador, detailed years of severe physical, verbal and emotional abuse by her father and her fear, despite his death, of returning to El Salvador. Because she was over 18 (although still less than 21 years old), the Probate and Family Court judge concluded it did not have jurisdiction over her complaint and dismissed it. Implicit in this ruling was a finding that Recinos was not dependent on the Probate and Family Court and that a custody ruling was needed, but was beyond the court's jurisdiction.


In December 2015, the SJC reversed the dismissal of Recinos' complaint, ruling that the Probate and Family Court had jurisdiction to entertain it and that "the plaintiff is dependent on the court for these purposes" (i.e., making the rulings need to obtain an order qualifying her to apply to USCIS for SIJ status). The Court entered its order as rescript for issuance to the trial court immediately to ensure there was time for the court to make findings and, if the requested findings were made, to allow Recinos to apply to USCIS for SIJ status before she turned 21. Because it acted quickly, the SJC did not issue its full opinion at the time, but noted it was to follow.


The SJC's full opinion today explains the rationale underlying its December 2015 order, including its finding that the Probate and Family Court could exercise jurisdiction over Recinos' complaint pursuant to its broad equity powers. And most interestingly, the SJC explained that the requirement for an SIJ applicant to show that he or she is "dependent" on the state court was met, at least in Recinos' case, by the fact that she was, literally, dependent upon the Probate and Family Court to issue its findings before she could apply to the USCIS for SIJ status.  No showing of her being in state custody or requiring state care beyond that was required.


The SJC's decision is in line with pending Massachusetts legislation that clearly defines "dependant on the court" to mean "subject to the jurisdiction of the court for the findings, orders and referrals" required by federal law to apply for SIJ status, and that would close the gap for immigrant children otherwise eligible for SIJ status who are between 18 and 21 years old (2015 House Doc. No. 1418).