Special Immigrant Juvenile Status (SIJS)
Consent Issues for Children in ORR Custody
IMPORTANT NOTE: This area of SIJS law is rapidly changing. The January 1, 2008 District Court decision in Perez-Olano may have made some of the following information obsolete. If you would like to discuss pursuing specific or express consent or appealing a denial of either please email Sara McDowell at smcdowell[at]uscridc.org.
Redacted Motion Appealing John Pogash's Denial of Specific Consent to Pursue SIJS filed in the United States District Court for the Southern District of Texas, Houston Division. January, 2006.
YZ v. Pogash, Redacted Order Granting Plaintiff's Appeal of DHS's Denial for Specific Consent, U.S. District Court for the Southern District of Texas, Houston Division, dated February 23, 2006. (Zheng v. Pogash, 416 F. Supp. 2d 550 (S.D. Tex. Feb. 23, 2006) (order relating to above motion).
Sample letter to John Pogash requesting he clarify that child does not need specific consent when not in federal custody. 2005.
Redacted John Pogash Denial of Consent. Haitian Entrant, April 2006.
Redacted February 13, 2007 letter from John Pogash instructing that consent is not required when a child has been released from the custody of the federal government.
Matter of Perez Quintanilla. The AAO adopted the foregoing decision on July 30, 2007 making it binding policy guidance on all USCIS personnel. The case held that specific consent is required only in circumstances where the child is in the actual or constructive custody of DHS and that constructive custody will be determined by the current policy and practices of ICE. ICE's current practice is that when a child is released from federal custody and remains in removal proceedings without a final order of removal, specific consent of the Secretary of DHS need not be obtained in order for the juvenile court to take jurisdiction under section 101(a)(27)J(iii)(I) of the INA.
January 1, 2008 U.S. District Court Decision in Perez-Olano v. Chertoff holding that for children in federal custody, ICE's specific consent is only required before a juvenile court determines custody status or placement. Thus, if a petitioner is solely seeking an SIJ predicate order, specific consent is no longer necessary before proceeding in juvenile court. This decision is currently on appeal.
May 4, 2010 Final Perez-Olano Settlement Agreement.
January 30, 3008 USCIS letter explaining that following the District Court's decision, they are "enjoined from requiring specific consent where a minor only seeks state court jurisdiction for a SIJ predicate order.
March 7, 2008 AAO Decision sustaining an appeal and finding that: 1) When an SIJS applicant turned 18, he was no longer in the actual custody of DHS nor constructive custody of ICE because ICE no longer deemed specific consent necessary and the juvenile court properly had jurisdiction; and 2) If the record supports the juvenile court's orders, CIS will give express consent to the orders and eligibility for SIJS is established.