BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy

Sometimes the best approach to advocating on an issue is to pursue change through both the judicial and the legislative process. Illustrative of this strategy is our recent work to benefit Special Immigrant Juveniles (SIJ’s).

Almost four months ago, we last updated you on our amicus brief, arguing that the Probate and Family Court has jurisdiction to make the necessary findings for certain abused, neglected, and abandoned 18-to-21-year-olds to seek status from federal immigration authorities. The SJC took the case, Recinos v. Escobar, sua sponte last November, on an expedited basis, in order to hear the argument of a plaintiff pursuing federal SIJ status as her 21st birthday approached in December.

Since 1990, the federal government has provided for SIJ status to qualified children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for otherwise-eligible individuals who are 18, 19 or 20. Thus, there exists a small class of individuals in Massachusetts – roughly estimated to be a few dozen in number — who might otherwise qualify for SIJ status, but appeared to be barred from doing so because the Probate and Family Court would not make a finding.

The BBA has been involved with this issue since 2014, when BBA Council voted to endorse a bill that would statutorily extend Probate and Family Court jurisdiction to this discrete group of affected individuals. The BBA’s Immigration Committee was the force behind this action, and current Co-Chairs Iris Gomez and Prasant Desai, along with former Co-Chair Bill Graves, were a great help in vetting the current case. The BBA continues to advocate for the legislation, which is currently before the Joint Committee on the Judiciary, entitled An Act Relative to Special Juveniles (S. 740, H. 1418).

The Recinos amicus brief, which we signed onto with a coalition of concerned organizations and individuals, was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over youths up to the age of 21 to enter the necessary findings and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that children who have been abused, abandoned, or neglected are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.

On November 5, the SJC heard oral argument on the case. The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on cases in which the Probate and Family Court exercised equity jurisdiction under very different factual circumstances. They also referenced our amicus brief: Justice Hines explains at about the 12-minute mark that she found the brief “extremely helpful” and noted that she felt the brief clarified the dependency issue. The Justices also asked about the pending legislation.

On November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant would have time to apply for SIJ status before aging out of eligibility. Ten days later, the Probate and Family Court made special findings that it had jurisdiction to hear the case, and that Liliana met the standards required by SIJ status.

Last week, the SJC released its full opinion, making clear that Probate and Family Court has equity jurisdiction over youth between the ages of 18 and 21 for the purpose of making the necessary SIJ findings. In the words of the Court,

As a policy, the Commonwealth seeks to protect children from wrongs that result “from the absence, inability, inadequacy or destructive behavior of parents.” G. L. c. 119, § 1. The wrongs from which this policy seeks to protect the Commonwealth’s children are the same as the wrongs that SIJ status attempts to remedy. … According to general principles of equity, if the Probate and Family Court does not exercise jurisdiction over the plaintiff, she, as well as any other immigrant child between the ages of eighteen and twenty-one in the Commonwealth, will have suffered a wrong with no available remedy. Such claims fall within the general principles of equity, and therefore, the Probate and Family Court may, for purposes of the Federal statute, exercise jurisdiction over immigrant children up to the age of twenty-one who claim to have been abused, abandoned, or neglected.

The SJC also made reference to the currently pending legislation, urging its passage in a concurrence written by Justice Robert Cordy and joined by Justice Barbara Lenk, which states,

In my view, it would have been far preferable if the Legislature had, as other State Legislatures have, acted on legislation that would have explicitly provided for expanded State court jurisdiction to address claims like that of the plaintiff. Without such legislation, the court is left to engage in gymnastics of logic and circular reasoning to conclude that the plaintiff is “dependent” on the court solely because she needs the court to declare that she is “dependent” on the court in order to meet one of the requirements of the Federal statute, and in no other respect.

Of course this call to action dovetails nicely with our continued legislative advocacy. We have now advocated before two branches of government on this issue, and while we are pleased with the results from the judiciary, we agree with Justices Cordy and Lenk that a legislative fix is still the best solution. Now that the SJC has ruled, we will be drafting and submitting a letter of support for An Act Relative to Special Juveniles, and hope that the Legislature will recognize the need for enactment of this bill to protect a small class of especially vulnerable individuals. We look forward to keep you updated as the bill moves through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association