[Federal Register Volume 76, Number 172 (Tuesday, September 6, 2011)]
[Proposed Rules]
[Pages 54978-54986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22625]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 172 / Tuesday, September 6, 2011 /
Proposed Rules
[[Page 54978]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 205, and 245
[CIS No. 2474-09; DHS Docket No USCIS-2009-0004]
RIN 1615-AB81
Special Immigrant Juvenile Petitions
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) proposes to amend
its regulations governing the Special Immigrant Juvenile (SIJ)
classification, and related applications for adjustment of status to
permanent resident. The Secretary may grant SIJ classification to
aliens whose reunification with one or both parents is not viable due
to abuse, neglect, abandonment, or a similar basis found under State
law. This proposed rule would require a petitioner to be under the age
of 21 only at the time of filing for SIJ classification. This proposed
rule would require that juvenile court dependency be in effect at the
time of filing for SIJ classification and continue through the time of
adjudication, unless the age of the juvenile prevents such continued
dependency. Aliens granted SIJ classification are eligible immediately
to apply for adjustment of status to that of permanent resident.
DATES: Written comments must be submitted on or before November 7,
2011.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2009-0004 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS Docket No. USCIS-2009-0004
in the subject line of the message.
Mail: Sunday Aigbe, Chief, Regulatory Products Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC
20529-2020. To ensure proper handling, please reference DHS Docket No.
USCIS-2009-0004 on your correspondence. This mailing address may be
used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory
Products Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite
5012, Washington, DC 20529-2020. Contact Telephone Number (202) 272-
8377.
FOR FURTHER INFORMATION CONTACT: Rosemary Hartmann, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2099, telephone (202) 272-8350 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background and Legislative Authority
III. Special Immigrant Juvenile Classification and Related
Adjustment of Status
A. Eligibility Requirements
B. Consent Requirements
C. Application Process
D. Adjudication and Post-Adjudication
E. Adjustment of Status
IV. Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. U.S. Citizenship and Immigration Services (USCIS) also
invites comments that relate to the economic, or federalism effects
that might result from this proposed rule. Comments from individuals
and agencies with direct experience handling SIJ cases are particularly
encouraged. Comments that will provide the most assistance to USCIS in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information or authority that support such recommended
change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2009-0004 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided. See the ADDRESSES section
above for information on how to submit comments. Those wishing to
submit anonymous comments should do so electronically at http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
II. Background and Legislative Authority
Section 101(a)(27)(J) of the Immigration and Nationality Act of
1952 (INA or Act), as amended, 8 U.S.C. 1101(a)(27)(J), permits the
Secretary of Homeland Security to grant special immigrant juvenile
classification to certain aliens whom a juvenile court has declared to
be dependent on the court, or whom the juvenile court has committed to
or placed under the custody of a State agency, department, individual,
or entity. The juvenile court must determine that reunification of the
alien with one or both parents is not viable due to abuse, neglect,
abandonment, or similar basis under State law. In addition, it must be
determined in administrative or judicial proceedings that the return of
the alien to the alien's or the alien's parent's country of nationality
or last habitual residence would not be in the alien's best interest.
This proposed rule would implement:
The Immigration and Nationality Technical Corrections Act
of 1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994),
The Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1998 (CJS 1998
Appropriations Act),
[[Page 54979]]
Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997),
The Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat.
2960 (Jan. 5, 2006), and
The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457, 122 Stat.
5044 (Dec. 23, 2008).
The Immigration and Nationality Technical Corrections Act of 1994,
the CJS 1998 Appropriations Act and TVPRA 2008 amended section
101(a)(27)(J) of the Act, 8 U.S.C. 1101(a)(27)(J), which permits
certain juvenile aliens to petition for special immigrant juvenile
classification, and section 245(h) of the Act, 8 U.S.C. 1255(h), which
permits aliens classified as special immigrant juveniles to adjust
status to permanent resident.
The Immigration and Nationality Technical Corrections Act of 1994
expanded the group of eligible aliens to include not only those
dependent on a juvenile court, but those the court has legally
committed to, or placed under the custody of, an agency or department
of a State. The CJS 1998 Appropriations Act limited SIJ eligibility by
requiring that dependency be due to abuse, abandonment, neglect, or a
similar basis under State law. In addition, the consent functions were
added in 1998. The scant legislative history behind these amendments
suggests that Congress intended to limit eligibility to prevent
potential abuse of this benefit, tying eligibility more directly to
judicial findings of abuse, abandonment, or neglect and allowing the
government to consent to the State court's jurisdiction and to the
granting of an immigration benefit. See H.R. Rep. No. 105-405, at 130
(1997).
VAWA 2005 added section 287(h) to the INA, protecting a child
applying for SIJ status from being compelled to contact the child's
alleged abuser or any family members of the abuser. INA section 287(h),
8 U.S.C. 1357(h).
The TVRPA 2008 expanded eligibility for SIJ status in a number of
ways. First, TVPRA 2008 replaced the requirement of eligibility for
long-term foster care with a new requirement that a juvenile's
reunification with one or both parents is not viable due to abuse,
abandonment, neglect or a similar basis under State law. INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). Second, TVPRA 2008
further expanded the group of eligible aliens to include those placed
by a juvenile court with an individual or entity. INA section
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). In addition, Congress
modified the consent requirements. DHS consent is simply consent to the
grant of SIJ status and not consent to the dependency order serving as
a precondition to the grant of SIJ status. INA section
101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii). TVPRA 2008 vested the
specific consent function with the Secretary of Health and Human
Services. INA section 101(a)(27)(J)(iii)(I), 8 U.S.C.
1101(a)(27)(J)(iii)(I). TVPRA 2008 includes age out protection so that
an alien cannot be denied SIJ classification based on age if the alien
was under 21 years of age when the petition was filed. TVPRA 2008
section 235(d)(6), 8 U.S.C. 1232(d)(6).
This proposed rule would clarify procedural and substantive
requirements for SIJ petitions. The proposed rule also would implement
statutorily mandated changes by revising the existing eligibility
requirements, including protections against aging-out, adding the
revised consent requirements, and further exempting SIJ adjustment of
status applicants from several grounds of inadmissibility.
This rule proposes to require that an alien be under the age of 21
at the time of filing. The proposed rule would require that a juvenile
be declared dependent on a juvenile court or have been legally
committed to or placed under the custody of a State agency or
department or an individual or entity appointed by a State or juvenile
court. TVPRA 2008 section 235(d)(1)(A). The proposed rule would require
that such dependency, commitment, or custody, be in effect at the time
of filing and continue through the time of adjudication, unless the age
of the juvenile prevents such continuation. TVPRA 2008 section
235(d)(6), 8 U.S.C. 1232(d)(6); see proposed 8 CFR 204.11(b)(1)(iv) and
8 CFR 205.1(a)(3)(iv)(B).
III. Special Immigrant Juvenile Classification and Related Adjustment
of Status
A. Eligibility Requirements
An alien seeking classification as a special immigrant juvenile
must file a Petition for Amerasian, Widow(er), or Special Immigrant
(Form I-360). DHS proposes to require that an alien is eligible for SIJ
classification if he or she:
(1) Is present in the United States;
(2) Is under 21 years of age at the time of filing;
(3) Is unmarried;
(4) Has been declared dependent on a juvenile court, or has 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. Such dependency, commitment, or custody must be in
effect at the time of filing and continue through the time of
adjudication, unless the age of the petitioner prevents such
continuation;
(5) Is the subject of a State or juvenile court determination that
reunification with one or both parents is not viable due to abuse,
neglect, abandonment, or a similar basis under State law;
(6) Has been the subject of a determination in judicial or
administrative 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
(7) Obtains consent from the Secretary of Homeland Security to
classification as a special immigrant juvenile.
Based on the CJS 1998 Appropriations Act and TVPRA 2008, the
proposed regulation would significantly change the Form I-360
eligibility criteria. See proposed 8 CFR 204.11(b) (currently
204.11(c)). DHS proposes to require the petitioner to be under the age
of 21 at the time of filing as provided by TVPRA 2008. DHS also
proposes to require that dependency, commitment, or custody per section
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i), as amended by
the TVPRA 2008, be in effect at the time of filing and continue through
the time of adjudication, unless the age of the petitioner prevents
such continuation.
1. Under 21 Years of Age
Under TVPRA 2008, USCIS may not deny SIJ classification based on
age if the alien was a child on the date on which the alien petitioned
for SIJ classification. TVPRA 2008 section 235(d)(6), 8 U.S.C.
1232(d)(6). Under section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), a
child is defined as under 21 years of age and unmarried. Through these
provisions, Congress has expressed an intent that special immigrant
juvenile classification requires that the alien be under the age of 21
only at the time of filing. See proposed 8 CFR 204.11(b)(1)(ii). The
TVPRA 2008 prohibition would also require removal of existing 8 CFR
205.1(a)(3)(iv)(A), which provides for automatic revocation of the
petition of an alien who reaches the age of 21 prior to adjudication of
an application for adjustment of status. It would be contrary to the
purpose of the statute for Congress to bar denial of a petition because
the petitioner aged out, yet permit USCIS to continue to revoke the
classification automatically if the alien's subsequent application for
adjustment
[[Page 54980]]
of status has not been adjudicated before the alien's 21st birthday.
2. Unmarried
Under existing regulations, a juvenile must remain unmarried both
at the time the Form I-360 is filed and through adjudication in order
to qualify for SIJ classification. 8 CFR 204.11(c)(2) and
205.1(a)(3)(iv)(B). The proposed rule continues this approach, proposed
8 CFR 204.11(b)(1)(iii), for the following reasons. Marriage alters the
dependent relationship with the juvenile court and emancipates the
child. Furthermore, no derivative benefits for spouses are provided
under the SIJ statute. This omission suggests that Congress did not
intend for married juveniles to be eligible for SIJ classification. See
58 FR 42843-51 (1993). No legislative changes or intervening facts have
caused USCIS to alter this provision. This interpretation, moreover, is
consistent with Congress's use of the term ``child'' in its
Transitional Rule provision of section 235(d)(6) of the TVPRA 2008.
The TVPRA 2008 age-out protection preserves eligibility for SIJ
status by precluding USCIS from denying SIJ classification based on age
if the alien was a child on the date on which the alien petitioned for
SIJ classification. TVPRA 2008 section 235(d)(6), 8 U.S.C. 1232(d)(6).
This section of the TVPRA uses the term ``child,'' which is defined in
section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), as a person who is
under 21 years of age and unmarried. Section 235(d)(6) of the TVPRA
2008 links the age-out prohibition specifically to age, by providing
that SIJ status may not be denied ``based on age,'' but does not link
the age-out protection to marital status. USCIS believes that Congress
intended that SIJ classification require that the alien be under the
age of 21 only at the time of filing, but that Congress did not intend
a similar time-of-filing standard with respect to marital status. See
proposed 8 CFR 204.11(b)(1)(iii).
3. Juvenile Court Dependency
An alien seeking SIJ classification must have been declared
dependent on a juvenile court located in the United States, or such a
court must have legally committed the juvenile to, or placed him or her
under the custody of, a State agency or department of a State, or an
individual or entity appointed by a State or juvenile court. The term
``juvenile court'' includes any court having jurisdiction to make
judicial determinations about the custody and care of juveniles. The
use of the term ``dependency'' throughout this proposed rule
encompasses dependency, commitment, or custody as provided in amended
section 101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i).
Dependency, commitment, or custody must be in effect when the Form
I-360 is filed and must continue through the time of adjudication,
unless the age of the petitioner prevents such continuation. See
Proposed 8 CFR 204.11(b)(1)(iv). State juvenile court age limitations
on jurisdiction and dates of ``emancipation'' vary greatly from state
to state. Eligibility for special immigrant juvenile classification,
however, depends only in part on the findings of the State court, since
USCIS retains the discretionary authority to grant, deny, or revoke SIJ
classification. The proposed rule would ensure that juveniles who age
out of State court dependency after filing the Form I-360 would remain
eligible for SIJ classification. USCIS, therefore, would not deny SIJ
classification to a juvenile with a valid dependency order at the time
of filing if the dependency order is no longer in effect at the time of
adjudication as a result of the petitioner's age or emancipation, other
than emancipation by marriage, based on State law.
Another context in which a petitioner may age out relates to
relocation to another state. Jurisdiction over a juvenile by a state
juvenile court typically ends upon the juvenile's relocation. For
example, if an 18-year-old SIJ petitioner with a valid dependency order
in one state relocates to another state, the petitioner might not be
subject to the jurisdiction of the juvenile court in the new state
because the new state deems age 18 to be the age of emancipation. Under
the proposed rule, a juvenile who cannot obtain a new juvenile court
dependency order because of age would remain eligible for SIJ
classification so long as he or she meets all other applicable
requirements. Proposed 8 CFR 204.11(b)(1)(iv) would not require
dependency to continue through adjudication for petitioners in this
situation.
When an SIJ petitioner relocates to another state, the initial
juvenile court dependency order will no longer be in effect because the
juvenile will no longer be under the initial court's jurisdiction. The
petitioner must therefore obtain a new dependency order. Despite the
lapse between dependency orders, USCIS will consider dependency to have
continued through the time of adjudication under proposed 8 CFR
204.11(b)(1)(iv). USCIS recognizes that the calendaring of State court
proceedings is beyond the petitioner's control and that a lapse between
dependency orders based on relocation does not signify a change in the
underlying facts on which special immigrant juvenile classification is
based, but rather a technical transfer of jurisdiction that may be the
cause of the lapse. USCIS, accordingly, will not consider a petitioner
ineligible for SIJ classification due to a lapse in time between the
two orders.
Proposed 8 CFR 204.11(b)(2)(i) clarifies that a juvenile who is
adopted or placed under guardianship is eligible for SIJ classification
under amended section 101(a)(27)(J)(i) of the Act, 8 U.S.C.
1101(a)(27)(J)(i). This section allows eligibility where a petitioner
has been ``legally committed to, or placed under the custody of * * *
an individual * * * appointed by a State or juvenile court located in
the United States.'' Therefore, commitment to, or placement under the
custody of an individual, can include adoption and guardianship.
4. Viability of Reunification Due To Abuse, Neglect, Abandonment, or a
Similar Basis Under State Law
An SIJ petitioner must additionally establish that reunification
with one or both parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law. Section
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i). The proposed
rule would require the juvenile to establish that he or she is the
subject of a State court order determining that reunification with one
or both parents is not viable for one of the reasons enumerated in
section 101(a)(27)(J)(i). 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. See Proposed 8 CFR 204.11(b)(1)(v). Section 101(a)(27)(J)(i) of
the Act previously required a State court determination of eligibility
for long-term foster care due to abuse, neglect, or abandonment.
The concepts of abuse, neglect, and abandonment are not defined in
immigration law. Specific legal definitions of the terms ``abuse,
neglect, or abandonment'' for the purposes of juvenile dependency
proceedings derive from State law and therefore vary from state to
state.
For example, in California, ``abuse'' encompasses distinct
definitions of physical abuse, neglect (including severe and general
neglect), sexual abuse, and emotional abuse. The basic definition of
child abuse or neglect includes physical injury inflicted by other than
accidental means upon a child by another person; willful
[[Page 54981]]
harming or injury of the child or the endangering of the person or
health of the child; and unlawful corporal punishment or injury. Cal.
Penal Code sections 11165.3, 11165.6. In the District of Columbia,
however, ``physical child abuse'' refers to infliction of physical or
mental injury upon the child and sexual abuse or exploitation of a
child. The law also specifies which acts are considered abusive and,
therefore, do not constitute mere ``discipline.'' DC Code Ann. section
16-2301.
In New York, a child is deemed ``abandoned'' if a parent shows ``an
intent to forego his or her parental rights and obligations as
manifested by his or her failure to visit the child and communicate
with the child or agency, although able to do so and not prevented or
discouraged from doing so by the agency.'' NY Soc. Serv. Law section
384-b. Virginia law, by contrast, simply states, ``Abused or neglected
child means any child less than age 18 whose parents or other person
responsible for his or her care abandons such child.'' VA Code Ann.
section 63.2-100. Thus, the language of the dependency orders varies
based on individual State laws as well.
If a juvenile court order includes a finding that reunification
with one or both parents is not viable under State law, the petitioner
must establish that this State law basis is similar to a finding of
abuse, neglect, or abandonment. The petitioner has the burden of proof
relating to the scope of the State law. The nature and elements of the
State law must be similar to the nature and elements of abuse,
abandonment, or neglect. This is a case-by-case determination because
of the variations in State law.
For example, under Connecticut law, a child may be found ``uncared
for'' if the child is ``homeless'' or if his or her ``home cannot
provide the specialized care that the physical, emotional or mental
condition of the child requires.'' See Conn. Gen. Stat. Ann. section
46b-120(9). ``Uncared for'' may be similar to abuse, abandonment, or
neglect because children found ``uncared for'' are equally entitled to
juvenile court intervention and protection. The outcomes for children
adjudged ``uncared for'' are the same as they are for children adjudged
abused, abandoned, or neglected. See Conn. Gen. Stat. Ann. section 46b-
120(8),(9); 121(a).
Petitioners are encouraged to include copies of the State laws on
abuse, abandonment, and neglect, or equivalent concepts as defined in
the State, and the State definition for the basis on which the juvenile
court has made its finding in order to more clearly meet their burden
of proof. Additional evidence to establish the basis for a finding that
reunification is not viable due to a similar basis found under State
law may include:
Evidence that shows the conduct that occurred and any acts
that led to the victimization of the petitioner (this may be contained
in the court order itself);
Other findings from the court;
Evidence of how a child subject to a finding under State
law is treated similarly by the State, for example is eligible for the
same programs, as a child who has been adjudicated abused, abandoned or
neglected;
Opinions or letters from social workers, victim advocates,
medical professionals, and others who work with the juvenile; and
Affidavits of the petitioner, other witnesses or those who
know the juvenile.
5. Determination of ``Best Interest''
The State judicial or administrative proceedings must additionally
determine, under applicable State law, that it would not be in the
alien's best interest to be returned to the country of nationality or
last habitual residence of the alien or of his or her parents. Congress
has not altered these requirements, and this proposed rule would
continue the existing requirement. Typically, the juvenile court order
itself will include this finding. This finding, however, can be made in
any State judicial or administrative proceeding. See current 8 CFR
204.11(c)(6) and proposed 8 CFR 204.11(b)(1)(vi).
B. Consent Requirements
1. DHS Consent to the Grant of SIJ Classification
All petitioners for SIJ classification must obtain the consent of
the Secretary of Homeland Security to the SIJ classification. Section
101(a)(27)(J)(iii) of the Act, 8 U.S.C. 1101(a)(27)(J)(iii), as
amended; see proposed 8 CFR 204.11(c)(1). Consent to the dependency
order was historically a precondition to granting special immigrant
juvenile classification. Section 235(d)(1)(B) of TVPRA 2008, however,
replaced that precondition with the requirement that the Secretary
consent to the SIJ classification itself. This proposed rule provides
that consent will be granted to otherwise eligible SIJ petitioners
where the qualifying State court order was sought primarily for the
purpose of obtaining relief from abuse, neglect, abandonment, or some
similar basis under State law, and not primarily for the purpose of
obtaining lawful immigration status. See proposed 8 CFR
204.11(c)(1)(i). This policy is consistent with congressional intent in
creating the consent function. See H.R. Rep. No. 105-405, at 130 (1997)
(noting that the language of the statute was modified to limit the SIJ
provisions to those for whom it was created by requiring a
determination that neither the dependency order nor the judicial
determination of best interest was sought primarily to obtain an
immigration benefit, rather than relief from abuse, abandonment or
neglect). The proposed rule clarifies that the approval of a Form I-360
is evidence of the Secretary's consent, rather than consent being a
precondition of the juvenile court order. See proposed 8 CFR
204.11(c)(1)(iii). The removal of consent to the juvenile court order
as a statutory precondition renders two separate decisions by USCIS
unnecessary and redundant.
The petitioner bears the burden of proving that the State court
order was sought primarily for the purpose of obtaining relief from
abuse, neglect, abandonment, or some similar basis under State law.
Evidence can include information about the juvenile court proceedings
such as a dependency or guardianship order, findings accompanying the
order, actual records from the proceedings, or other evidence that
summarizes the evidence presented to the court. Dependency orders that
include or are supplemented by specific findings of fact regarding the
basis for a finding of abuse, neglect, abandonment, or some similar
basis under State law are usually sufficient to provide a basis for the
Secretary's consent. Orders lacking specific factual findings generally
are not sufficient to provide a basis for consent, and must be
supplemented by separate findings or any other relevant evidence
establishing the factual basis for the order.
Evidence can also include information from persons who know the
petitioner in a personal or professional manner. This evidence could
include, but is not limited to, affidavits, letters, evaluations, or
treatment plans from the court, State agency, department, or individual
with whom the juvenile has been placed, health care professionals,
social workers, others with responsibility to evaluate and treat the
juvenile, attorneys, guardians, adoptive parents, family members, and
friends.
USCIS may seek or consider additional relevant evidence if the
evidence presented is not sufficient to establish a reasonable basis
for consent. USCIS may request additional evidence
[[Page 54982]]
from the petitioner in such cases. Moreover, USCIS may consider any
evidence of the role of a parent or other custodian in arranging for a
petitioner to travel to the United States or to petition for SIJ
classification. See Yeboah v. U.S. Dep't of Justice, 345 F.3d 216 (3d
Cir. 2003). If USCIS determines that the State court order is sought
primarily to obtain lawful immigration status, USCIS will deny consent.
2. Specific Consent of HHS
TVPRA 2008 vested custody of unaccompanied alien children, who are
often petitioners for SIJ classification, with the Secretary of Health
and Human Services rather than the Secretary of Homeland Security. In
addition, TVPRA 2008 simplified the language to refer simply to
``custody,'' in contrast to the previous ``actual or constructive
custody'' language.
No juvenile court has jurisdiction to determine the custody status
or placement of an alien in the custody of the Secretary of Health and
Human Services unless the Secretary of Health and Human Services
specifically consents to such jurisdiction. Section
101(a)(27)(J)(iii)(I) of the Act, 8 U.S.C. 1101(a)(27)(J)(iii)(I). A
juvenile in the custody of the Department of Health and Human Services
(HHS) is required to obtain specific consent from HHS to a State court
order modifying custody status or placement prior to filing a petition
for SIJ classification. See proposed 8 CFR 204.11(c)(2). The specific
consent requirement was introduced by the 1998 Appropriations Act and
amended by TVPRA 2008.
An SIJ petitioner who is in the custody of HHS must now seek
specific consent from HHS if he or she seeks a juvenile court order
that would determine or alter his or her custody status or placement.
The SIJ petitioner is not required to obtain specific consent from HHS
if the juvenile court order makes no findings as to custody status or
placement. Where required, an SIJ petitioner must submit evidence of an
HHS grant of specific consent when filing a petition for SIJ
classification with USCIS.
C. Application Process
An alien must file Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, to petition for SIJ classification under section
101(a)(27)(J) of the Act, 8 U.S.C. 1101(a)(27)(J). All petitioners for
SIJ classification must submit all required initial evidence, and
supporting documentation, with the Form I-360. See 8 CFR 103.2(b)(1)
and proposed 8 CFR 204.11(d).
This proposed rule would amend what constitutes acceptable
supporting documentation or initial evidence that must accompany the
Form I-360. See proposed 8 CFR 204.11(d). The proposed rule would
require the following initial evidence, which may be contained in one
document or in several documents:
Form I-360, completed in accordance with the instructions
on the form;
Evidence of the alien's age, such as a birth certificate,
passport, official foreign identity document issued by a foreign
government, or other document which, in the discretion of USCIS,
establishes the alien's age;
Biometrics as provided in the instructions on the form;
A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the juvenile to be dependent upon that court or that the court
has legally committed the juvenile to, or placed the juvenile under the
custody of, an agency or department of a State or an individual or
entity appointed by a State or juvenile court;
Specific findings of fact or other relevant evidence,
either incorporated into the court order or separate from the order,
establishing that reunification with one or both parents was deemed not
viable due to abuse, neglect, abandonment, or a similar basis under
State law. If the evidence includes a finding that reunification is not
viable due to a similar basis under State law, the petitioner must
establish that such a basis is similar to a finding of abuse, neglect,
or abandonment;
Evidence of a determination made in judicial or
administrative proceedings, under applicable State law, that it would
not be in the juvenile's best interest to be returned to the country of
nationality or last habitual residence of the juvenile or of his or her
parent(s); and
If a juvenile is in HHS custody and obtained a juvenile
court order that determined or altered his or her custody status or
placement, evidence that HHS granted specific consent to the new
custody status or placement ordered by the court.
USCIS may obtain initial or additional supporting evidence, documents,
or materials directly from a court, government agency, or other
administrative body in either paper or electronic format.
The Application to Register Permanent Residence or Adjust Status,
Form I-485, is used by SIJ petitioners to apply for related adjustment
of status to that of a permanent resident, either concurrently with or
subsequent to filing Form I-360. Where possible, USCIS encourages
concurrent filing of Form I-485 and Form I-360.
D. Adjudication and Post-Adjudication
1. Interview Process
USCIS may interview the petitioner for purposes of adjudicating the
Form I-360 petition. 8 CFR 103.2(b)(9). USCIS has discretion to
determine whether an interview is necessary. The determination not to
interview may apply when an SIJ petitioner files Form I-360 alone,
without an accompanying Form I-485. See proposed 8 CFR 204.11(e). USCIS
will consider such factors as the age of the juvenile, the sensitive
nature of issues of abuse, neglect, or abandonment involved in the
case, and whether the USCIS officer expects to gather additional
relevant evidence at an interview. In some instances, an officer may
require information that can only be provided by the juvenile or a
person acting on the juvenile's behalf, such as when a petition is
missing information or the juvenile has a criminal record.
USCIS seeks to establish a nonthreatening interview environment
that would promote an open, productive discussion about the SIJ
petition. Juveniles seeking SIJ classification, unlike other juveniles,
are under specific pressures and hardships relating to the loss of
parental support and to juvenile court proceedings. The juvenile could
bring a trusted adult (who is familiar with the juvenile and can be
supportive), in addition to an attorney or representative (at no
expense to the Government). The trusted adult or the attorney may
present a statement at the end of the interview. The interviewing
officer may, in his or her discretion, limit the length of such
statement or comment and may require its submission in writing. USCIS
still maintains discretion to interview a child separately when
necessary. Generally, in the context of the SIJ interview, it is not
necessary to interview a juvenile (whether alone or accompanied) about
the facts regarding the abuse, neglect, or abandonment upon which the
dependency order is based. However, USCIS retains the discretion to
interview the juvenile.
USCIS cannot compel an SIJ petitioner to contact the alleged abuser
or family members of the alleged abuser at any point during the
petition or interview process. INA section 287(h), 8 U.S.C. 1357(h),
proposed 8 CFR 204.11(f).
[[Page 54983]]
As a general rule, USCIS must interview any applicant for
adjustment of status, regardless of the underlying status and how the
applicant is adjusting status to lawful permanent resident. 8 CFR
245.6. This general interview requirement for all adjustment of status
applications also applies to SIJ petitioners. It applies when, as is
most often the case, an SIJ petitioner files the Form I-360
concurrently with the Form I-485. It also applies when USCIS grants a
Form I-360 filed separately, and then the SIJ petitioner files a Form
I-485.
Although the general interview requirement does apply to SIJ
petitioners, USCIS does have discretion to waive an adjustment of
status interview for SIJ petitioners. USCIS may waive an interview in
the case of a child under the age of 14, or where USCIS determines on a
case-by-case basis that an interview is not necessary. See 8 CFR 245.6.
USCIS will review the underlying Form I-360 (if not already approved)
and the Form I-485 during the interview and will generally provide
safeguards outlined above regarding interviews for SIJ classification.
2. Decisions
TVPRA 2008 contained a provision for expeditious adjudication of
SIJ petitions within 180 days. See TVPRA 2008 section 235(d)(2), 8
U.S.C. 1232(d)(2). USCIS intends to adhere to the 180-day benchmark,
taking into account general USCIS regulations pertaining to receipting
of petitions, evidence and processing, and assuming the completeness of
the petition and supporting evidence. Proposed 8 CFR 204.11(h); 8 CFR
103.2. The 180-day timeframe begins when the SIJ petition is receipted,
as reflected in the receipt notice sent to the SIJ petitioner. 8 CFR
103.2(a)(7). If USCIS sends a request for initial evidence, the 180-day
timeframe will start over from the date of receipt of the required
initial evidence. 8 CFR 103.2(b)(10)(i). If USCIS sends a request for
additional evidence, the 180-day timeframe will stop as of the date
USCIS sends the request, and will resume once USCIS receives a response
from the SIJ petitioner. 8 CFR 103.2(b)(10)(i). USCIS will not count
delay attributable to the petitioner or his or her representative
within the 180-day timeframe. USCIS interprets the 180-day timeframe to
apply to adjudication of the Form I-360 petition for SIJ status only,
and not to the Form I-485 application for adjustment of status. USCIS
does not interpret the 180-day timeframe to mean that an unadjudicated
petition at the end of the timeframe will be automatically approved.
3. Revocation
Current 8 CFR 205.1(a)(3)(iv) provides conditions under which a
grant of an underlying petition for SIJ classifica tion is
automatically revoked during the period when a Form I-485 is pending,
but before a decision on the Form I-485 becomes final. This proposed
rule would alter this section consistent with TVPRA 2008.
As noted above, USCIS cannot deny SIJ classification based on age
if the alien was a child on the date on which the alien filed the
petition. Current regulations, however, provide for automatic
revocation of the underlying SIJ petition if the juvenile reaches the
age of 21 or dependency on the juvenile court was terminated before the
Form I-485 was adjudicated. 8 CFR 205.1(a)(3)(iv)(A) and (C). As
discussed above, it would be contrary to the language and purpose of
the amended statute to continue this automatic revocation. Accordingly,
the proposed rule removes 8 CFR 205.1(a)(3)(iv)(A) and (C) because
these grounds relate to a juvenile's age.
The rule also proposes to modify the language at current 8 CFR
205.1(a)(3)(iv)(D) to reflect current statutory language at section
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i), requiring
automatic revocation of an approval of the Form I-360 if a court deems
reunification with one or both parents a viable option. The proposed
rule would not change the language of current 8 CFR 205.1(a)(3)(iv)(B)
(revoking approval of the petition upon the marriage of the juvenile).
As discussed above, Congress intended an SIJ petitioner to remain
unmarried.
4. No Parental Rights
The proposed rule references the statutory language at section
101(a)(27)(J)(iii)(II) of the Act that parents cannot be accorded any
right, privilege, or status under the Act. Proposed 8 CFR 204.11(g).
USCIS interprets this provision to mean that any parent or prior
adoptive parent cannot gain lawful status through the alien granted SIJ
status, regardless of whether the alien goes on to become a permanent
resident or even a United States citizen. When TVPRA 2008 added the
language regarding the non-viability of reunification with one or both
parents, Congress did not amend section 101(a)(27)(J)(iii)(II) of the
INA to permit a non-abusive parent to gain any right, privilege, or
status under the INA by virtue of the parental relationship. USCIS
continues to interpret this language to apply to any parent or any
prior adoptive parent, regardless of that parent's involvement in the
abuse, abandonment or neglect.
E. Adjustment of Status
As provided by the TVPRA 2008 amendments to section 245(h)(2)(A) of
the Act, 8 U.S.C. 1255(h)(2)(A), SIJ adjustment of status applicants
are exempt from four additional grounds of inadmissibility. The full
list of exempted grounds of inadmissibility in proposed 8 CFR
245.1(e)(3) would be modified to include:
Public charge (section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4));
Labor certification (section 212(a)(5)(A) of the Act, 8
U.S.C. 1182(a)(5)(A));
Aliens present without inspection (section 212(a)(6)(A) of
the Act, 8 U.S.C. 1182(a)(6)(A));
Misrepresentation (section 212(a)(6)(C) of the Act, 8
U.S.C. 1182(a)(6)(C));
Stowaways (section 212(a)(6)(D) of the Act, 8 U.S.C.
1182(a)(6)(D));
Documentation requirements (section 212(a)(7)(A) of the
Act, 8 U.S.C. 1182(a)(7)(A)); and
Aliens unlawfully present (section 212(a)(9)(B) of the
Act, 8 U.S.C. 1182(a)(9)(B)).
The following grounds of inadmissibility cannot be waived:
Conviction of certain crimes (section 212(a)(2)(A) of the
Act, 8 U.S.C. 1182(a)(2)(A));
Multiple criminal convictions (section 212(a)(2)(B) of the
Act, 8 U.S.C. 1182(a)(2)(B));
Controlled substance traffickers (section 212(a)(2)(C) of
the Act, 8 U.S.C. 1182(a)(2)(C)) except for a single offense of simple
possession of 30 grams or less of marijuana;
Security and related grounds (section 212(a)(3)(A) of the
Act, 8 U.S.C. 1182(a)(3)(A));
Terrorist activities (section 212(a)(3)(B) of the Act, 8
U.S.C. 1182(a)(3)(B));
Foreign policy (section 212(a)(3)(C) of the Act, 8 U.S.C.
1182(a)(3)(C)); and
Participants in Nazi persecution, genocide, or the
commission of any act of torture or extrajudicial killing (section
212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E)).
Under section 245(h)(2)(B) of the Act, 8 U.S.C. 1255(h)(2)(B), any
other inadmissibility provision may be waived on an individual basis
for humanitarian purposes, family unity, or when it is otherwise in the
public interest. The proposed rule amends 8 CFR 245.1(e)(3)
accordingly.
[[Page 54984]]
IV. Regulatory Requirements
A. Regulatory Flexibility Act
DHS has reviewed this proposed rule in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities because it affects only
individuals, who are not small entities as defined by 5 U.S.C. 601(6).
There are no costs added by this rule and no change in any process as a
result of this proposed rule that would have a direct effect, either
positive or negative, on a small entity.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
D. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget. An analysis of the costs and benefits
of this rule has been prepared and submitted to OMB for review as
required by the Executive Order. The results of that analysis are as
follows.
This rule proposes several changes to the SIJ program that are
necessary to bring the regulations into conformity with statutory
requirements and agency practice. No additional regulatory compliance
requirements will be added that will cause a detectable change in costs
for petitioning individuals. In addition, this rule is expected to
result in no changes in program costs for the government.
Qualitatively, this proposed rule would codify the practices and
procedures currently implemented via internal policy directives issued
by USCIS. This rule would establish clear guidance for petitioners and
applicants regarding the procedural and interpretative issues raised
following statutory amendments.
In fiscal year 2009, USCIS received 1,484 SIJ petitions; in 2008
USCIS received 1,361 petitions; in 2007 USCIS received 739 petitions;
and in 2006 USCIS received 541 petitions. In fiscal year 2009, USCIS
approved 1,212 SIJ petitions; in 2008 USCIS approved 697 petitions; in
2007 USCIS approved 521 petitions; and in 2006 USCIS approved 389
petitions. It does not follow that USCIS denied the remainder of
petitions filed in each fiscal year. These approval numbers do not take
into account cases that, by the end of the fiscal year, were only
initially receipted, awaiting response on a Request for Further
Evidence, still pending, transferred, or rejected. The approval numbers
may also include petitions filed in a previous fiscal year. According
to the DHS Office of Immigration Statistics, in fiscal year 2008, 989
SIJs adjusted status to permanent resident; in fiscal year 2007 772
SIJs adjusted status to permanent resident; and in fiscal year 2006,
894 SIJs adjusted status to permanent resident. The volume of petitions
for SIJ classification is not expected to change significantly as a
result of this proposed rule if finally promulgated and, therefore, the
burden of compliance both in time and fees will not increase above that
currently imposed.
USCIS funds the cost of processing applications and petitions for
immigration and naturalization benefits and services, and USCIS'
associated operating costs, by charging and collecting fees. USCIS has
determined, under its discretionary fee setting authority, however,
that no fee should be charged for filing Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, filed by petitioners
seeking SIJ classification. See 8 CFR 103.7(b)(1). These petitioners
are subject to dependency orders of a State court and are not able to
pay the filing fee for adjudication of the special immigrant juvenile
petition. USCIS believes that these limited numbers of juvenile
petitioners should be exempt from fees in the same manner as asylees
under INA section 286(m), 8 U.S.C. 1356(m).
Most petitioners seeking SIJ classification will also file a Form
I-485, Application to Register Permanent Residence or Adjust Status,
with a current $985 fee, and Form I-601, Application for Waiver of
Ground of Inadmissibility, with a current $585 fee. SIJ petitioners who
cannot afford the fees for Forms I-485 or I-601 may request a waiver of
the fees. The respective fees are not affected by this rule.
The fee impacts of this rule on each SIJ petitioner as well as on
USCIS are neutral because USCIS estimates that filings for SIJ
classification will continue at about the same volume as they have in
the relatively recent past.
E. Executive Order 13132 (Federalism)
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, USCIS has determined that this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
G. Family Assessment
This regulation may affect family well-being as that term is
defined in section 654 of the Treasury General Appropriations Act,
1999, Public Law 105-277, Div. A. This action has been assessed in
accordance with the criteria specified by section 654(c)(1). This
regulation will enhance family well-being by enabling juvenile aliens
who have been abused, neglected, or abandoned and placed in State
custody by a juvenile court to obtain special immigrant classification.
Such classification will enable these juveniles to be placed into more
stable, permanent home environments and release them from reliance on
their
[[Page 54985]]
abusers. Statutory mandate prevents the granting of immigration
benefits to the abusive parent of an SIJ. 8 U.S.C.
1101(a)(27)(J)(iii)(II). This classification will also encourage
reporting of abuse to the authorities for appropriate legal action.
H. Paperwork Reduction Act (PRA)
On June 25, 2009, USCIS published a 60-day notice in the Federal
Register requesting comments on the revised Form I-360 that included
the SIJ provisions required by Public Law 105-119, Public Law 109-162,
and Public Law 110-457. 74 FR 30312. The one comment that USCIS
received on the revised form did not relate to the SIJ provisions but
rather was a suggestion to break up the Form I-360 into separate forms
for SIJ and religious workers. USCIS responded to the commenter
directly, advising him that creating a new form solely for religious
workers and SIJs would require modification to the established
electronic systems that would be extremely cumbersome and costly at
this time. On September 8, 2009, USCIS published a 30-day notice in the
Federal Register requesting further comments on the revised form. USCIS
did not receive any further comments. 74 FR 46216.
On December 30, 2009, the Office of Management and Budget approved
the revised Form I-360 in accordance with the PRA. The approved OMB
Control No. is 1615-0020.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 205
Administrative practice and procedures, Aliens, Immigration,
Petitions.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1232, 1255; 8 CFR Part 2.
2. Section 204.11 is revised to read as follows:
Sec. 204.11 Special immigrant classification for certain aliens
declared dependent on a juvenile court (Special Immigrant Juvenile).
(a) Definitions. As used in this section, the terms:
Juvenile court means any court located in the United States having
jurisdiction to make judicial determinations about the custody and care
of juveniles.
Petition means Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, or a successor form as may be prescribed by DHS.
State includes an Indian tribe, tribal organization, or tribal
consortium, operating a program under a plan approved under 42 U.S.C.
671.
(b) Eligibility. (1) An alien is eligible for classification as a
special immigrant under section 101(a)(27)(J) of the Act if he or she:
(i) Is physically present in the United States;
(ii) Is under 21 years of age at the time of filing;
(iii) Is unmarried;
(iv) Has been declared dependent on a juvenile court or has been
legally committed to or placed under the custody of a State agency or
department or an individual or entity appointed by a State or juvenile
court. Such dependency, commitment, or custody must be in effect at the
time of filing and continue through the time of adjudication, unless
the age of the petitioner prevents such continuation.
(v) Is the subject of a State or juvenile court determination,
under applicable State law, that reunification with one or both parents
is not viable due to abuse, neglect, abandonment, or a similar basis
under State law;
(vi) Has been the subject of judicial proceedings or administrative
proceedings in which it has been determined, under applicable State
law, that it would not be in the alien's best interest to be returned
to the country of nationality or last habitual residence of the alien
or his or her parent(s); and
(vii) Obtains consent from the Secretary of Homeland Security to
classification as a special immigrant juvenile.
(2) For the purposes of establishing classification as a special
immigrant juvenile, a juvenile who has been adopted or placed under
guardianship after having been found dependent upon a juvenile court in
the United States, or having been committed to or placed under the
custody of a State agency or department or an individual or entity
appointed by a State or juvenile court, is considered eligible for SIJ
classification. Commitment to or placement under the custody of an
individual can include adoption and guardianship.
(c) Consent. (1) Every alien must obtain the consent of the
Secretary of Homeland Security to the classification as a special
immigrant juvenile.
(i) In determining whether to provide consent to classification as
a special immigrant juvenile as a matter of discretion, USCIS will
consider, among other permissible discretionary factors, whether the
alien has established, based on the evidence of record, that the State
court order was sought primarily to obtain relief from abuse, neglect,
abandonment, or a similar basis under State law and not primarily for
the purpose of obtaining lawful immigration status; and that the
evidence otherwise demonstrates that there is a bona fide basis for
granting special immigrant juvenile status.
(ii) The alien has the burden of proof to show that discretion
should be exercised in his or her favor.
(iii) Approval by USCIS of the SIJ petition also will constitute
the granting of consent on behalf of the Secretary.
(2) An alien in the custody of the Department of Health and Human
Services, who seeks a juvenile court order determining or altering the
alien's custody status or placement, must obtain specific consent from
the Secretary of Health and Human Services to the State court's
jurisdiction to determine or alter custody status prior to filing the
SIJ petition with USCIS.
(d) Petition procedures. The alien, or an adult acting on the
alien's behalf, may file the petition for special immigrant juvenile
classification. Each individual requesting special immigrant juvenile
classification must submit:
(1) A Petition completed in accordance with the instructions on the
form;
(2) Evidence of the alien's age; and
(3) One or more documents which reflect the following:
(i) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the juvenile to be dependent upon that court, or that the court
legally committed the juvenile to, or placed the juvenile under the
custody of, a State agency or department, or an individual or entity
appointed by a State or juvenile court;
(ii) Specific findings of fact or other relevant evidence, either
incorporated into the court order or separate from the order,
establishing the basis for a finding that reunification with one or
both parents is not viable due to abuse, neglect, abandonment, or a
similar basis found under State law; and
[[Page 54986]]
(iii) Evidence of a determination made in judicial or
administrative proceedings, under applicable State law, that it would
not be in the juvenile's best interest to be returned to the country of
nationality or last habitual residence of the juvenile or of his or her
parent(s).
(4) If a juvenile is in the custody of the Secretary of Health and
Human Services and obtained a juvenile court order that determined or
altered the custody status or placement of the juvenile, evidence that
the Secretary of Health and Human Services granted specific consent.
(e) Interview. In accordance with 8 CFR 103.2(b) and 245.6,
although an interview is not a prerequisite to the adjudication of a
Special Immigrant Juvenile petition, USCIS may require an interview as
a matter of discretion.
(1) The SIJ petitioner may be accompanied by a trusted adult, in
addition to an attorney or representative, at the interview. USCIS, in
its discretion, may place reasonable limits on the number of persons
who may be present at the interview.
(2) The trusted adult or attorney or representative may present a
statement at the end of the interview. USCIS, in its discretion, may
limit the length of such statement or comment and may require its
submission in writing.
(f) No contact. USCIS will not compel an SIJ petitioner to contact
the alleged abuser or family members of the alleged abuser at any time
during the petition or interview process.
(g) No parental rights. No natural or prior adoptive parent of any
alien with an approved Special Immigrant Juvenile petition shall, by
virtue of such parentage, be accorded any right, privilege, or status
under the Act. This prohibition remains in effect even after the alien
becomes a lawful permanent resident or a United States citizen.
(h) Timeframe. USCIS will adjudicate a petition for Special
Immigrant Juvenile classification within 180 days of receipt of a
properly filed petition. The date of receipt will be as provided in 8
CFR 103.2(a)(7). A request for required initial evidence from USCIS to
the petitioner or a request from the petitioner for rescheduling of
biometrics or an interview will restart the 180-day timeframe. Any
request for additional evidence will suspend the timeframe as of the
date of the request up until the date the requested evidence, response,
or a request for a decision based on the evidence already provided is
received. Any delay requested or caused by the applicant will not be
counted as part of the 180-day adjudication period.
PART 205--REVOCATION OF APPROVAL OF PETITIONS
3. The authority citation for part 205 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182,
and 1186a.
4. Section 205.1 is amended by:
a. Removing paragraph (a)(3)(iv)(A);
b. Removing paragraph (a)(3)(iv)(C);
c. Redesignating paragraphs (a)(3)(iv)(B), (D) and (E) as
paragraphs (a)(3)(iv)(A), (B) and (C) respectively; and by
d. Revising newly redesignated paragraph (a)(3)(iv)(B).
The revision reads as follows:
Sec. 205.1 Automatic revocation.
(a) * * *
(3) * * *
(iv) * * *
(B) Upon reunification of the beneficiary with one or both parents
by virtue of a juvenile court order, where a juvenile court previously
deemed reunification with that parent, or both parents, not viable due
to abuse, neglect, or abandonment; or
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
5. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277,
112 Stat. 2681; Title VII of Public Law 110-229; 8 CFR part 2.
6. Section 245.1 is amended by revising paragraph (e)(3) to read as
follows:
Sec. 245.1 Eligibility.
* * * * *
(e) * * *
(3) Special immigrant juveniles. Any alien qualified for special
immigrant classification under section 101(a)(27)(J) of the Act shall
be deemed, for the purpose of section 245(a) of the Act, to have been
paroled into the United States, regardless of the alien's actual method
of entry into the United States. Neither the provisions of section
245(c)(2) of the Act nor the inadmissibility provisions of sections
212(a)(4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), or (9)(B) of the Act
shall apply to any alien qualified for special immigrant classification
under section 101(a)(27)(J) of the Act. The inadmissibility provisions
of sections 212(a)(2)(A), (2)(B), (2)(C) (except for a single offense
of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B),
(3)(C), or (3)(E) of the Act may not be waived. Any other
inadmissibility provision may be waived on an individual basis for
humanitarian purposes, family unity, or when it is otherwise in the
public interest. The relationship between the alien and the alien's
natural parents or prior adoptive parents shall not be considered a
factor in a discretionary waiver determination based on family unity.
* * * * *
Janet Napolitano,
Secretary.
[FR Doc. 2011-22625 Filed 9-2-11; 8:45 am]
BILLING CODE 9111-97-P