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Galvez v. Cuccinelli

United States District Court, W.D. Washington, Seattle

July 17, 2019

LEOBARDO MORENO GALVEZ, et al., Plaintiffs,
v.
KENNETH T. CUCCINELLI, [1] et al., Defendants.

          ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

          ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on “Plaintiffs' Motion for Preliminary Injunction.” Dkt. # 3. Plaintiffs are young immigrants who have been determined by the courts of the State of Washington to have been abused, neglected, or abandoned by one or both of their parents. They seek classification as Special Immigrant Juveniles (“SIJ”) as a pathway to lawful permanent residency in the United States. They contend that defendants - the United States Department of Homeland Security (“DHS”), the United States Citizenship and Immigration Services (“USCIS”), the individuals in charge of DHS and USCIS, and the director of the National Benefits Center - adopted a new policy in 2018 that unlawfully denies them SIJ status. Plaintiffs seek a preliminary injunction enjoining application of that policy.

         I. Background

         A. Federal Law

         Congress created the SIJ status in 1990 as a means of alleviating “hardships experienced by some dependents of United States juvenile courts by providing qualified aliens with the opportunity to apply for special immigrant classification and lawful permanent resident status, with possibility of becoming citizens of the United States in the future.” 58 Fed. Reg. 42843, 42844 (Aug. 12, 1993). SIJ status is available if:

(i) [the juvenile immigrant] has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) [it] has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) … the Secretary of Homeland Security consents to the grant of special immigrant juvenile status ....

8 U.S.C. §1101(a)(27)(J). If granted, SIJ status provides a pathway to lawful permanent residency and, ultimately, citizenship. See 8 U.S.C. §§1255, 1427. When an immigrant applies for SIJ status, USCIS must grant or deny the application within 180 days. 8 U.S.C. §1232(d)(2).

         When SIJ status was first recognized as a form of immigration relief, the applicant had to be “eligible for long-term foster care, ” which the agency interpreted as requiring a determination “by the juvenile court that family reunification is no longer a viable option.” 8 C.F.R. §204.11(a). Agency regulations clarified that eligible juveniles were aliens “under twenty-one years of age.” 8 C.F.R. §204.11(c)(1).

         In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), amending the SIJ statute in three significant ways. Pub. L. No. 110-457 §235(d), 122 Stat. 5044 (2008). First, the TVPRA expanded the universe of immigrants would could obtain SIJ status. It removed the requirement that applicants be eligible for long-term foster care, broadening the statute to apply instead to juveniles for whom “reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law.” Id. §235(d)(1)(B) (amending 8 U.S.C. §1101(a)(27)(J)). It also made SIJ status available to juveniles who had been “legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court” in addition to those who had been “declared dependent on a juvenile court.” Second, the TVPRA clarified that an applicant's eligibility for SIJ status is dependent on the juvenile's age at the time he or she applied for SIJ status rather than at the time the application was processed. Id. §235(d)(6). Finally, the amendments removed the requirement that the agency “expressly consent” to the state court's dependency order, instead requiring “consent[] to the grant of special immigration juvenile status.” Id. §235(d)(1)(B). USCIS exercises its “consent” authority by verifying whether the SIJ petition is bona fide, “meaning that the juvenile court order was not sought primarily to obtain the status of an alien lawfully admitted for permanent residence” but “rather to obtain relief from abuse or neglect.” Dkt. #25 at 15.

         Following enactment of the TVPRA, a petitioner for SIJ status must be (a) under twenty-one years of age, (b) unmarried, (c) declared dependent on a juvenile court or placed in the custody of a state agency or individual appointed by the court, and (d) the subject of state court findings that (i) reunification with one or both parents is not viable because of abuse, abandonment, neglect, or similar basis under state law and (ii) it is not in the juvenile's best interests to be returned to his or her country of origin. Despite the amendments, the implementing regulations continue to reference pre-TVPRA statutory text conditioning SIJ status on eligibility for long-term foster care. See 8 C.F.R. §204.11(a), (c)(4)-(5) (2009) (“SIJ regulation”). Defendants rely heavily on these regulations in support of their rather convoluted argument that a state court is competent to make the factual findings required by the SIJ statute only if it has the power to reunify the juvenile with his or her biological parents.

         B. Washington Law

         Washington juvenile courts have jurisdiction to determine the care and custody of youth up to the age of twenty-one in certain circumstances. Pursuant to RCW 13.34.267, juvenile courts may, with the consent of the youth, maintain jurisdiction over dependency proceedings after the juvenile turns eighteen “to promote permanency and positive outcomes” and counteract the increased risks facing dependent juveniles when they leave the child welfare system. RCW 13.34.267 (Findings - 2013 Wash. Legis. Serv. Ch. 332 (S.S.S.B. 5405) (West)).[2]In the context of this extended foster care program, Washington courts have jurisdiction to make the findings necessary for an immigrant youth to pursue SIJ status. Juvenile courts in Washington may also extend their jurisdiction over youth if, prior to his or her eighteenth birthday, criminal proceedings are pending or an extension is necessary for disposition or sentence to be imposed or enforced. RCW 13.40.300(3). In this context, the state court has authority to commit a juvenile to Washington's Department of Social and Health Services (“DSHS”) for placement in a juvenile facility or release to a “responsible adult” at least up until the age of twenty-one (and in some cases until the age of twenty-five). RCW 13.40.040(5); RCW 13.40.300. When committing juveniles to DSHS, courts have the power to make the findings necessary for an immigrant youth to pursue SIJ status.

         In 2017, the Washington legislature established the Vulnerable Youth Guardianship (“VYG”) program specifically for juveniles aged eighteen to twenty-one years old. RCW 13.90.900. The VYG program allows the juvenile to consent to the appointment of a guardian even if he or she was not previously in the child welfare system. The legislature found that “[o]pening court doors for the provision of a vulnerable youth guardianship serves the state's interests in eliminating human trafficking, preventing further victimization of youth, decreasing reliance on public resources, reducing youth homelessness, and offering protection for youth who may otherwise be targets of traffickers.” Id. In creating the VYG program, the legislature intended to fix a disconnect between state and federal law. RCW 13.90.901(1)(d). Under federal immigration law, SIJ status is available to youth until the age of twenty-one. 8 U.S.C. §1101(b)(1). In Washington, however, youth who were not already under the jurisdiction of the juvenile courts had limited opportunities to request that the state court make the findings necessary to apply for SIJ status. As of 2017, Washington extended juvenile court jurisdiction to cover “judicial determinations regarding the custody and care of youth” between the ages of eighteen and twenty-one and to make findings necessary for a juvenile in that age group to seek SIJ status. RCW 13.90.901(1)(a).

         C. Plaintiffs

         Plaintiff Leobardo Moreno Galvez came to the United States on his own when he turned 14 and has lived with relatives and friends during the past six years. In 2016, Moreno Galvez was arrested for Minor in Possession at seventeen years of age. The Skagit County Superior Court adjudicating the offense extended its jurisdiction past Moreno Galvez' eighteenth birthday. When he was eighteen years old, the Superior Court placed him in state custody and found that (a) it had jurisdiction under state law to make a judicial determination about his care and custody, (b) Moreno Galvez should be legally committed to or placed in the custody of a state agency as of October 20, 2016, (c) reunification with one or both parents was not viable because they had sent him away years ago and “failed to provide for his basic needs including food, shelter, clothing and education, ” and (d) it would not be in Moreno Galvez' best interests to return to Mexico. Dkt. #4-4 at 2-3. Six weeks later, Moreno Galvez submitted a Form I-360 Petition for Special Immigrant Juvenile Status to USCIS. On December 20, 2018, USCIS denied the petition, stating that “the evidence you submitted does not establish that the state court had jurisdiction under state law to make a legal conclusion about returning you to your parent(s)' custody.” Dkt. #4-7 at 3. The denial notified Moreno Galvez that he was not lawfully present in the United States and that, if he did not depart within thirty-three days of the letter, USCIS may commence removal proceedings against him.

         Plaintiff Jose Luis Vicente Ramos entered the United States as an unaccompanied minor in 2016, when he was seventeen years old. He eventually went to live with a cousin in Vancouver, Washington. In February 2018, Vicente Ramos was detained by USCIS. Utilizing the VYG program, Vicente Ramos consented to the appointment of his cousin as his guardian and requested that the Pierce County Superior Court make the necessary SIJ findings. It did so and, ten days later, Vicente Ramos submitted a Form I-360 Petition for Special Immigrant Juvenile Status to USCIS. The petition was denied on February 5, 2019, on the ground that Vicente Ramos had failed to show that the state court had jurisdiction “to make a legal conclusion about returning ...


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