Z.Q.L. v. Perryman...

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

Z.Q.L. V. PERRYMAN: FEDERAL JUDGE ORDERS INS DISTRICT DIRECTOR TO CONSENT TO JUVENILE COURT PROCEEDING
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

In response to a 17 year-old detainee's request for relief, an Illinois federal judge ordered the Immigration and Naturalization Services' Chicago district director to consent to state court jurisdiction over the juvenile. With the agency's consent secured, the juvenile can obtain a dependency order and thereby begin the process of applying for special immigrant juvenile status.

The juvenile is a Chinese girl who, from the age of 6, suffered severe and frequent abuse at the hands of her mother. One of her earliest memories of abuse is of punishment she received for unfinished chores: the girl's mother beat her so hard that the broomstick she used to beat her broke over the girl's back. Another time, because the girl skipped her classes, her mother bound her and hung her by her hands. When the girl was 16 years old, a male cousin sexually assaulted her. Fearing another beating, the girl fled her home and attempted to enter the U.S. She was apprehended at the Dallas Airport and placed in INS custody. The girl's attorney sought to apply for Special Immigrant Status (SIJ) on the girl's behalf.

SIJ status is an immigration remedy available to children under 18 whom a juvenile court has determined are dependent and eligible for long-term foster care. It is also available to children whom a juvenile court has committed to state agency custody due to abuse, neglect, or abandonment. A dependency order from a juvenile court is a prerequisite to an application to the INS for SIJ status. In 1997 juvenile courts were divested of jurisdiction to rule on dependency issues in situations where the child is held in INS custody. Applicants for SIJ status must therefore request that the attorney general consent to the juvenile court's jurisdiction. In order to obtain consent, the juvenile must apply to the INS district director and present information concerning his or her circumstances.

On Apr. 23, 2001, the girl's attorney wrote the Chicago district director, requesting that the agency consent to juvenile court jurisdiction to rule on whether a dependency order should be issued. The letter noted the urgency of the request since the girl would soon turn 18. The INS failed to respond. On May 15, 2001, the girl's attorney submitted a second emergency request for consent. Having received no response, the girl's attorney submitted a third request. A fourth request was submitted on May 24, 2001. On May 25, 2001, noting that the girl did not provide sufficient evidence to support her claims of abuse, the district director denied her request. In addition, the INS found that since she had made eight calls to her mother in China over a five-and-a-half month period while in detention, she could not show that family reunification was not a viable option.

On May 30, 2001, only days before the girl would turn 18, her attorneys filed a federal action requesting a declaratory judgment and a temporary restraining order. The complaint alleged that the INS had violated the girl's procedural due process rights and that the agency's decision was issued in violation of the Administrative Procedures Act. Over INS objections concerning jurisdiction, the federal judge issued an oral ruling finding irreparable harm because the child would soon reach 18 and lose her eligibility to apply for SIJ status. The court also found that the INS had violated the girl's due process rights because the agency had not set forth a formal procedure for requesting consent from the district director or any appellate procedure to challenge a denial.

After negotiations, the INS agreed not to contest further the temporary restraining order. The lawsuit was therefore dismissed with the agreement of both parties. The INS also provided written assurances that it would not contest the jurisdiction of the state court when the child applied for SIJ status.

The Midwest Immigrant and Human Rights Center and Latham & Watkins in Chicago, Illinois represented the juvenile.

Z.Q.L. v. Perryman (Case No. 010-3952); U.S. District Court for the Northern District of Illinois (May 30, 2001).