In addition to the good news for a number of our key BBA budget priorities, which you can read more about here, the Legislature and Governor also took an important, and long overdue, step to provide critical access to justice for a very small but very vulnerable set of young people between the ages of 18 and 21. The final FY19 budget includes, in Outside Sections, language that would allow immigrants who are at least 18 years old, but have yet to turn 21, to make the case to federal authorities that they quality for special status under existing federal law, because they have been abused, neglected, or abandoned, and would be at risk if returned to their home countries.
The need for this statutory language tracks back to 1990, when the federal government began providing for Special Immigrant Juvenile (SIJ) status to 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 individuals who are 18, 19 or 20. Thus, in Massachusetts, there was a small class of individuals that would otherwise qualify for SIJ status, but might be barred from doing so simply because the Probate and Family Court would not make a finding due to their age. According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but this was not uniform and judges had no guidance on the matter.
The BBA first weighed in on this issue in 2014, supporting An Act relative to abused, abandoned, or neglected immigrant juveniles, which would have statutorily extended Probate and Family Court jurisdictions to this discrete group. Then, in 2015, we filed an amicus brief in Recinos v. Escobar, arguing that the Probate & Family Court has jurisdiction, in equity, over those seeking status as special immigrant juveniles (SIJ’s) and may make predicate special findings to support SIJ applications for those up to age 21.
The court accepted the argument, but the ruling did not obviate the need for a statutory remedy as a permanent and comprehensive solution to this limited but urgent problem. In fact, the U.S. Citizenship and Immigration Services (USCIS) has recently begun acting in defiance of the spirit, if not the letter, of Recinos, finding that SIJ applicants who are over the age of 18 have not met their burden of proof, and claiming that the Legislature “has established that a child is someone under the age of 18” and that therefore our Juvenile Court lacks jurisdiction to make the necessary dependency findings for anyone between 18 and 21.
Now, Recinos is explicitly codified into law, granting the Court that statutory jurisdiction, applicable retroactive to the date of the Recinos decision and to any petitions that were wrongfully denied or revoked in this manner, based on the child’s age. As lawyers, we recognize that while the courts enjoy significant power to right wrongs through their equitable jurisdiction, only the Legislature can act to provide clear statutory parameters and guidelines for the courts’ authority. Here, given the position of the USCIS, it is even clearer that legislation was the only mechanism by which a pathway to stable legal status can be offered to all at-risk juveniles who meet the federal law’s requirements, without having to rely on the discretion and the legal interpretations of individual judges on a case-by-case basis. Furthermore, these provisions spell out a well-defined framework for the courts in handling such cases – helping judges and their staffs, as well as applicants and their legal counsel (if any) to understand how to file and pursue a claim.
You can learn more about our past legislative and amicus advocacy on this issue here. This year, we once again advocated in support of this important statutory provision, sending letters to the Chairs of the Judiciary Committee, and eventually the budget conference committee and the Governor.
A big thanks goes to bill sponsors Senator Cynthia Creem and Representative Louis Kafka, as well as the Governor, and the House and Senate for their support. And, of course, a very big thanks goes to the many supporters of the bill, including the courts, bar associations, and legal-service providers like GBLS who represent the individuals whose ability to stay in Massachusetts – and with it their safety and security – are at stake.
Legislative and Public Policy Manager
Boston Bar Association