USCRI: U.S. Committee for Refugees and Immigrants

Special Immigrant Juvenile Status (SIJS)

Consent Issues for Children in ORR Custody 

The Final Perez-Olano Settlement Agreement, dated May 4, 2010, significantly changed consent issues for SIJS cases. As a result, specific consent to juvenile court jurisdiction from the Department of Health and Human Services (DHHS) is only required if a child in DHHS/ORR custody seeks to have a state court make decisions regarding his or her placement or custody. In contrast, if the child seeks only a dependency order from the state court, without seeking to determine or alter placement or custody, specific consent is not required.

 

Instructions and Form for Requesting Specific Consent

U.S. Department of Health and Human Services ORR Program Instructions for Specific Consent Requests

U.S. Department of Health and Human Services ORR Request for Specific Consent to Juvenile Court Jurisdiction Form (Specific Request Consent Form)

 

Materials Related to Perez-Olano v. Chertoff; Perez-Olano v. Holder

Final Perez-Olano Settlement Agreement, May 4, 2010

Related decision of the Administrative Appeals Office of USCIS, March 7, 2008, 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.

USCIS letter, January 30, 2008, explaining that following the District Court's decision (below), they are "enjoined from requiring specific consent where a minor only seeks state court jurisdiction for a SIJ predicate order."

The U.S. District Court Decision in Perez-Olano v. Chertoff, January 1, 2008, holds 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.

 

Archive of Materials Pre-Perez-Olano Settlement 

 

Consent After Child's Release From Federal Custody

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.

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.

Sample letter to John Pogash, 2005, requesting clarification that child does not need specific consent when not in federal custody.

Letter from DHS to attorney, 2004, clarifying ICE's position that specific consent is unnecessary when child has been released from federal custody.

 

Requests for Consent and Supporting Materials

Redacted Request for Consent to Juvenile Court Jurisdiction and accompanying Affidavit in the case of “M Y Arbol Verde," December 14, 2005.

Request to Pogash for Consent to Juvenile Court Jurisdiction, September 1, 2005

    • Requesting consent to enter juvenile court for a juvenile currently in the custody of the Office of Refugee Resettlement
    • minor was severely physically and verbally abused by his alcoholic father
    • minor is an abused, abandoned, and neglected child who has nowhere to return to in his country of origin

Emergency Request for Specific Consent to Juvenile Court Jurisdiction in the case of “JSG”. Midwest Immigrant and Human Rights Center, a program of Heartland Alliance, June 27, 2005. Attachments include:

    • Redacted Child Declaration
    • Certificate of Translator's Competence
    • Redacted Letter from Case Manager at shelter
    • Redacted Letter from Field Coordinator
    • Redacted Letter from Child Advocate

Redacted Emergency Request for Consent in Obtaining Juvenile Court Jurisdiction Over Dependency Proceedings, Chicago, IL, April 23, 2001.

 

 Grants and Denials of Consent

Redacted John Pogash Denial of Consent. Haitian Entrant, April 2006.

John Pogash Letter Granting Consent. “JSP”. Midwest Immigrant and Human Rights Center, a program of Heartland Alliance. September 22, 2005.

Redacted Grant of Consent to Pursue SIJS filed by FIAC. September 10, 2004.

    • Response to above request
    • Allowing child to pursue an SIJS classification
    • Grant of consent does not constitute a finding or an endorsement of any substantive issue relating to SIJS, merely that sufficient evidence exists to consent to the jurisdiction of a state juvenile court to make independent findings related to SIJS.

Request for Special Juvenile Immigrant Status: Decision on Consent for Jurisdiction in Juvenile Court. Sample-INS Denial of Consent. U.S. Department of Justice, Immigration and Naturalization Service, May 2001.

 

Appealing Denials of Consent 

Redacted Motion Appealing John Pogash's Denial of Specific Consent to Pursue SIJS filed in the U.S. 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).


 

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