The plaintiffs, R.F.M., T.D., S.W., D.A.F.A., and O.M.S., are young immigrants who have been determined by the New York State Family Court ("New York Family Court" or "Family Court") to have been abused, abandoned, or neglected by one or both of their parents. Each plaintiff has sought Special Immigrant Juvenile ("SIJ") status -- a form of immigration relief that provides a path to lawful permanent residence in the United States
The plaintiffs move to certify a class under Federal Rule of Civil Procedure 23(b)(2) and for leave to proceed with this litigation anonymously. The defendants move to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and the parties cross-move for summary judgment
It is plain that the defendants, contrary to their prior practice, and in contravention of federal law, are now following a policy whereby the New York Family Court cannot issue the necessary findings to juvenile immigrants between the ages of eighteen and twenty-one to enable them to obtain SIJ status. That effectively precludes those immigrants in New York State from obtaining SIJ status despite the fact that the immigration statute otherwise provides that relief. If the immigration laws are to be changed in that way, the change must come from Congress and not from the immigration authorities. Therefore, the plaintiffs' motion for summary judgment should be granted, and the plaintiffs' motion for class certification should also be granted and they should be allowed to proceed anonymously. The defendants' motions should be denied.
I.
In defending against a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiffs bear the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States,
In deciding a motion for summary judgment under Rule 56, courts "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett,
Under the APA, courts review issues of law de novo. See
II.
Because this case centers on the agency's administration of SIJ status in New York, we begin with an overview of the relevant statutes and regulations.
A.
Congress created SIJ status under the Immigration and Nationality Act of 1990 ("INA").The USCIS is charged with administering the statute.
Once an immigrant successfully petitions for SIJ classification, the immigrant becomes eligible for a visa under
(i) who 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) for whom 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) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status ...
After its passage in 1990, the SIJ statute has been amended a number of times, and accordingly, the criteria for SIJ eligibility have changed over time. In 1990, the INA accorded SIJ status to juveniles who had been "declared dependent on a juvenile court," and "deemed eligible by that court for long-term foster care," in cases where the juvenile court also determined "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." Immigration Act of 1990, Pub. L. No. 101-649 § 153,
In 1993, the Immigration and Naturalization Service ("INS") adopted implementing regulations defining the statutory term "juvenile court" as a "court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles."
Congress amended the SIJ statute in 1997, making clear that the SIJ statute applied to immigrant juveniles who had been "legally committed to, or placed under the custody of, an agency or department of a State and who ha[d] been deemed eligible by that [juvenile] court for long-term foster care due to abuse, neglect, or abandonment." Pub. L. No. 105-119 § 113,
After the 1997 amendment, INS regulations continued to define "juvenile court" as a "court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles."
The SIJ statute was amended in 2008 by the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"). The TVPRA struck the requirement that the juvenile must be eligible for long-term foster care, broadening
Despite the 2008 amendments striking any reference to foster care, the agency failed to amend its regulations requiring that the juvenile be deemed eligible for long-term foster care. See
B.
The following facts relating to the individual plaintiffs are taken from the administrative record or the plaintiffs' sworn declarations and are not disputed by the defendants.
The plaintiffs are young immigrants who, between their eighteenth and twenty-first birthdays, were determined by the New York Family Court to have been abused, neglected, or abandoned by one or both parents. Each plaintiff obtained a Special Findings Order -- that is, a state court order making the requisite findings for SIJ status --from a New York Family Court, stating that (1) the plaintiff had been abused, neglected, or abandoned; (2) the plaintiff was dependent on the Family Court; (3) reunification with one or both of their parents was not viable; and (4) return to the plaintiff's previous country of nationality or of last habitual residence would not be in his or her best interest. Each plaintiff petitioned the federal government for SIJ status on the basis of their Family Court Special Findings Orders.
Plaintiff R.F.M. was born in the Dominican Republic. Malionek Decl. Ex. 1 ¶ 3. R.F.M.'s mother has had limited involvement in her life, and R.F.M.'s father has had none.
On February 15, 2017, the Family Court in The Bronx, New York, appointed
Plaintiff T.D. was born in Haiti in 1997. Malionek Decl. Ex. 2 ¶ 2. She was raised in her father's home by aunts and uncles, who disciplined T.D. by beating her with belts, branches, and their hands, causing her to bleed.
When T.D. was fourteen years old, her father sent her to live with his sister in Brooklyn, New York.
T.D. has found support in her high school assistant principal, I.L.
Plaintiff S.W. was born in Jamaica in 1998. Malionek Decl. Ex. 3 ¶¶ 2-3. S.W.'s mother left Jamaica when S.W. was about five years old, leaving S.W. and her sister to live with their grandmother, who became their primary caretaker.
S.W. travelled to Florida to visit her aunt in 2005.
One or two years after moving in with her aunt in Florida, S.W.'s aunt told S.W. that S.W. had to move to The Bronx to stay with her Uncle O.
On October 16, 2016, a New York Family Court appointed S.W.'s Uncle O to be her guardian.
Plaintiff D.A.F.A. was born in 1998 in El Salvador. Malionek Decl. Ex. 4 ¶ 2. D.A.F.A.'s father has never been a part of his life.
When D.A.F.A. was a teenager, local gangs attempted to recruit him. First, members of the "18" gang began to approach D.A.F.A. after school.
In April 2015, D.A.F.A. left El Salvador seeking safety in the United States.
On February 21, 2017, a New York Family Court appointed D.A.F.A.'s mother as his guardian.
Plaintiff O.M.S. was born in Mexico in 1997. Malionek Decl. Ex. 16 ¶ 2. O.M.S. lived with her grandmother when she was very young, and her grandmother has since passed away.
For most of her life, O.M.S. has lived with her mother.
A New York Family Court granted custody to O.M.S.'s mother on March 26, 2007.
Each of the plaintiffs applied for SIJ status on the basis of their Special Findings Orders. The USCIS sent each plaintiff at least one, and sometimes multiple, requests for evidence to show that the Family Court was acting as a "juvenile court" at the time that it issued the Special Findings Orders. Eventually, each plaintiff's SIJ application was denied.
The agency stated that the plaintiffs' SIJ petitions were denied because the Family Court was not acting as a juvenile court when it issued the plaintiffs' Special Findings Orders. The agency gave two bases for this conclusion: first, the Family Court allegedly lacks jurisdiction as a "juvenile court" over immigrants between their eighteenth and twenty-first birthdays because it cannot make custody determinations for those individuals; and second, the Family Court must have the power to order reunification with the allegedly abusive parent in order to be able to make the requisite finding that "reunification with 1 or both of the immigrant's parents is not viable." See
The plaintiffs assert that these bases for their denials constitute a new policy that violates the APA because it is arbitrary and capricious, "in excess of statutory jurisdiction,"
C.
The New York Family Court is recognized as a "special agency for the care and protection of the young and the preservation of the family." Jesmer v. Dundon,
Although the Family Court typically only has jurisdiction over juveniles up to the age of eighteen, see
New York courts hold, and the USCIS agrees, that appointment of a guardian makes the juvenile "dependent" on the Family Court for purposes of the SIJ statute. See, e.g., Matter of Trudy-Ann W.,
Until early 2018, the USCIS regularly approved SIJ applications made by immigrants who obtained Special Findings Orders from the New York Family Court after turning eighteen years old, but before turning twenty-one. However, in early 2018, the USCIS began denying almost all SIJ applications from petitioners who obtained Special Findings Orders from the New York Family Court after turning eighteen. The plaintiffs contend that the bases for these SIJ denials constitute an arbitrary and capricious policy that is contrary to both state and federal law. They
III.
The plaintiffs have moved for class certification under Federal Rule of Civil Procedure 23(b)(2). The proposed class would include all immigrants who obtained Special Findings Orders from the New York Family Court between their eighteenth and twenty-first birthdays, applied for SIJ status, and either:
(1) [were] issued (i) Notices of Intent to Deny, (ii) Notices of Intent to Revoke, (iii) Decisions of Denial, or (iv) Decisions revoking previously-granted SIJ status since January 1, 2016 on the ground that the Family Court is not a "juvenile court" under8 C.F.R. § 204.11 (a) and/or that the Family Court is not empowered to issue Special Findings Orders under8 U.S.C. § 1101 (a)(27)(J) ; or
(2) have a Special Findings Order finding the eligibility criteria of8 U.S.C. § 1101 (a)(27)(J) are satisfied and have a pending petition for SIJ status before the USCIS based on the Special Findings Order.
See Dkt. No. 9 (defined terms omitted).
Under Rule 23, a class may be certified only if the proposed class satisfies the four requirements of Rule 23(a) : numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a)(1)-(4) ; Marisol A. v. Giuliani,
In addition to these four prerequisites, a class may be certified only if it is deemed appropriate under one of the subdivisions of Rule 23(b).
The plaintiffs bear the burden of establishing the Rule 23 class certification requirements by a preponderance of the evidence. Brown,
A.
First, the numerosity requirement is met. The proposed class is "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). The plaintiffs reasonably estimate
Numerosity is also satisfied because joinder would be impracticable. New members regularly and continuously join the proposed class as their SIJ status petitions are adjudicated. Cf. Robidoux v. Celani,
The defendants argue that commonality is not satisfied because review of an SIJ status determination requires analysis of each individual state court order. The defendants' argument misses the mark. The plaintiffs are not challenging individual SIJ status decisions, nor do the plaintiffs ask this Court to determine the outcome of any individual petition. Rather, the plaintiffs challenge an alleged agency policy affecting the outcomes of their SIJ adjudications as violating the APA. See Perez-Olano v. Gonzalez,
The defendants also argue that commonality is not satisfied because Wal-Mart Stores requires that the plaintiffs suffer a common injury. However, the Supreme Court in Wal-Mart Stores emphasized that the Wal-Mart plaintiffs could not point to a corporate policy that predominated in the claims of the putative class; rather, they sought to sue over "literally millions of employment decisions at once."
Next, the defendants argue that typicality is not satisfied because the class includes plaintiffs in various stages of the SIJ adjudication process. The named plaintiffs belong to the subcategory of the class involving those who have been issued decisions denying SIJ status, but the class
The defendants' argument again incorrectly assumes that the plaintiffs seek review of their individual claims. The plaintiffs do not seek to litigate individual claims but rather a policy the agency uses to adjudicate those claims. The policy challenged by the plaintiffs poses the same "risk of an injury" to all members of the class, even those who have not yet received a final decision on their SIJ petition. See Baby Neal for and by Kanter v. Casey,
The adequacy requirement is also satisfied. The plaintiffs' counsel is qualified and experienced to conduct this litigation.
Finally, the plaintiffs have satisfied Rule 23(b)(2) because they seek "final injunctive relief" that will resolve a central issue in the claims by the "class as a whole." See Fed. R. Civ. P. 23(b)(2).Whether the New York Family Court is a juvenile court for purposes of rendering sufficient findings for an SIJ determination is a determinative factor for all members of the class. "The key to the (b)(2) class is 'the indivisible nature of the injunctive or declaratory remedy warranted -- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.' " Wal-Mart Stores,
Because the requirements of Rule 23(a) and 23(b)(2) are satisfied, the plaintiff's motion for class certification is granted.
IV.
The plaintiffs also move to proceed anonymously by using only their initials to identify themselves in this litigation.
Federal Rule of Civil Procedure 10(a) states the general proposition that a complaint must identify the names of the parties. See Fed. R. Civ. P. 10(a). "This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." Sealed Plaintiff v. Sealed Defendant,
(1) whether the litigation involves matters that are highly sensitive and of a personal nature;
(2) whether identification poses a risk of retaliatory physical or mental harm to the ... party seeking to proceed anonymously or even more critically, to innocent non-parties;
(3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity;
(4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age;
(5) whether the suit is challenging the actions of the government or that of private parties;
(6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court;
(7) whether the plaintiff's identity has thus far been kept confidential;
(8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity;
(9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weakpublic interest in knowing the litigants' identities; and
(10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.
First, this action involves "matters that are highly sensitive and of a personal nature."
The parties disagree over the second factor -- whether identification poses a risk of retaliatory physical or mental harm to the plaintiffs. The plaintiffs fear that disclosure could lead to retaliation from local police or federal immigration authorities and members of the public such as employers, school personnel, and family members. The defendants argue that the alleged risk of retaliation is speculative and does not warrant proceeding anonymously.
The plaintiffs' fear of retaliation by the government is unfounded, given that the plaintiffs have already disclosed their identities to the defendants for purposes of this litigation so that the government could retrieve the relevant administrative records. The question whether the plaintiffs' fear of retaliation from members of the public is a legitimate fear "is a close one," see Plaintiffs # 1-21 v. Cty. of Suffolk,
The parties do not present any arguments on the third factor and it is therefore neutral. The fourth factor -- whether the plaintiffs are vulnerable to harm from disclosure -- weighs in the plaintiffs' favor. The facts underlying the plaintiffs' SIJ petitions involve "matters of a highly sensitive and personal nature." Moe v. Dinkins,
The fifth factor also weighs in the plaintiffs' favor. The plaintiffs bring this action against the federal government. "[W]here a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff's interest in proceeding anonymously is considered particularly strong." EW v. N.Y. Blood Ctr.,
The sixth factor, risk of prejudice to the defendants, favors anonymity. Any risk of prejudice to the defendants is slight. The defendants' ability to defend this action will not be impaired by the plaintiffs' anonymity because the plaintiffs have already identified themselves to the government for purposes of this litigation. See Dkt. No. 40.
The seventh factor -- whether the plaintiffs have retained their anonymity thus far -- favors the plaintiffs. In this case, the plaintiffs have retained their anonymity, which weighs in favor of allowing the plaintiffs to continue proceeding anonymously.
The eighth and ninth factors ask the Court to weigh the public's interest in disclosure. Here, there is a weak public interest in knowing the plaintiffs' identities because this case is based purely on questions of law. The particular identities of the plaintiffs have "little bearing on the nature of the dispute or the merits of the case," and the issue of the plaintiffs' identities is "largely irrelevant to the public concern with the nature of the process." Doe v. Del Rio,
The parties dispute the tenth factor -- whether there are alternative mechanisms for protecting the identities of the plaintiffs. One such measure has already been taken: the plaintiffs have disclosed their identities to the defendants so that the government could retrieve all of the relevant administrative records. The defendants suggest that rather than allowing the plaintiffs to proceed anonymously, the Court should allow certain documents in this case to be filed in redacted form or under seal. However, there is no reason to think that redacted documents would further the public's interest in disclosure any more than documents identifying the plaintiffs by their initials and, as previously discussed, risk of prejudice to the defendants has been mitigated because the plaintiffs have disclosed their identities to the defendants.
Having weighed and considered all the relevant factors, the balance of considerations tilts decidedly in favor of allowing the plaintiffs to proceed anonymously. Accordingly, the plaintiffs' motion to proceed anonymously is granted.
V.
The defendants argue that the Court lacks jurisdiction to review the claims of two portions of the class: (1) those who have received decisions from the USCIS revoking a previous grant of SIJ classification and (2) those whose SIJ petitions are still pending. The defendants argue that
A.
The INA strips courts of jurisdiction to review any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security."
The government cites several cases to support its argument that the INA bars this Court from reviewing decisions made under § 1155 to revoke a visa petition. See, e.g., Bultasa Buddhist Temple of Chicago v. Nielsen,
These cases are not on point because the plaintiffs did not seek judicial review of an agency policy, but rather, sought review of their individual visa revocations or the failure to issue visas in individualized cases.
B.
The defendants also argue that the Court lacks jurisdiction to consider claims by class members whose SIJ petitions are still pending because there has been no final, reviewable agency action under the APA. See
1.
The defendants base their argument on the assertion that there is no new policy. According to the defendants, because there is no new policy, and because this portion of the plaintiff class has not received a final decision on their SIJ petitions, there is no reviewable agency action under § 704 of the APA. The plaintiffs argue that there has been a fundamental policy change. Specifically, the plaintiffs contend that for several years the USCIS has routinely granted SIJ status to petitioners in New York between the ages of eighteen and twenty-one who received the necessary findings from the New York
The USCIS does not dispute that until early 2018, it regularly approved SIJ applications by petitioners who were older than eighteen when they received a Special Findings Order from a New York Family Court, and that after early 2018 it began denying virtually all such petitions on the grounds that the Family Court was not acting as a "juvenile court." The USCIS attributes its sudden departure from its past practice to a November 2016 decision to centralize the adjudication of SIJ petitions. Before November 2016, SIJ decisions were made by individual field offices. In November 2016, the USCIS centralized its processing of SIJ petitions at its National Benefits Center in Missouri. AR 621, 650, 655.
As part of this centralization, the USCIS provided training to its National Benefits Center adjudicators and updated the USCIS Policy Manual. In February 2018, the USCIS issued a Legal Guidance in response to a request from the National Benefits Center for legal clarification regarding applications filed by petitioners over the age of eighteen at the time the state court order was issued. See
The February 2018 Legal Guidance stated that for a state court order to be considered a "valid juvenile court order for purposes of establishing SIJ eligibility, the court that issued the order must have had competent jurisdiction under state law to make the required determinations about the custody and care of juveniles."
The agency updated its Consolidated Handbook of Adjudication Procedures to comport with the February 2018 Legal Guidance.
2.
Because there is a new agency policy, the operative question with respect to this Court's jurisdiction is whether the policy is a final, reviewable agency action.
For the policy to be a "final" and therefore Reviewable agency action, it must meet two criteria. First, the policy "must mark the 'consummation' of the agency's decisionmaking process," and second, the policy must "be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.' " Bennett v. Spear,
The defendants assert that the policy is not final under the first Bennett prong because the agency did not follow any formal procedures to enact it.
The policy is also final under the second prong of Bennett. The February 2018 guidance embodies an agency policy from which " 'rights or obligations have been determined' and from which 'legal consequences will flow.' " Bennett,
The defendants contend that the SIJ status denials (or pending denials) do not flow from the February 2018 guidance but rather from the SIJ statute and related regulations. This argument is simply wrong. The denials and prospective denials of SIJ status are based on the agency's allegedly incorrect interpretation of the SIJ statute based on its new statutory interpretation and not on the statute itself. The stark departure in the agency's evaluation of New York-based SIJ petitions cannot be explained by the agency's assertion that the plaintiffs' denials flowed from the regulations and SIJ statute itself, because neither the regulations nor the statute changed in early 2018. The only change explaining the departure was the new policy set forth in the agency's February 2018 Legal Guidance. It was not until the agency issued the guidance that SIJ status denials for plaintiffs in New York State between the ages of eighteen and twenty-one who had received Special Findings Orders from the New York Family Court became the norm.
Accordingly, both prongs of Bennett are satisfied, and the policy is reviewable under the APA.
VI.
The plaintiffs and defendants both move for summary judgment on the issues of whether the agency's new policy is arbitrary, capricious, in excess of statutory jurisdiction, and contrary to law, and whether the agency was required to provide public notice of its policy change under
Courts are required to set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
A.
The plaintiffs argue that the agency's new policy violates the APA because it (1) imposes requirements for a state court to qualify as a "juvenile court" that go beyond the scope of the statute, (2) misinterprets New York State law, (3) requires the agency to act beyond the scope of its consent authority, and (4) was enacted without adequate notice. The defendants argue that the agency's positions as expressed in the February 2018 Legal Guidance are reasonable and in accordance with the law.
The dispute centers on the questions of whether, to qualify as a juvenile court, the New York Family Court must have (1) jurisdiction over the custody of the petitioners, and (2) the authority to order reunification between the juvenile and an unfit parent. The agency's new policy answers both of these questions in the affirmative. However, as explained below, these requirements go beyond the scope of the SIJ statute and lack a reasoned explanation.
1.
The first basis for the agency's conclusion that the New York Family Court is not a "juvenile court" when it exercises jurisdiction over juveniles who are between the ages of eighteen and twenty-one is that, according to the agency, the Family Court lacks jurisdiction to grant custodial rights over juveniles older than eighteen.
The agency's requirement -- that to be a juvenile court the state court must have jurisdiction to make custody determinations --is inconsistent with the SIJ statute's plain language, which requires that a juvenile be declared dependent on a juvenile court or placed in a qualifying custody arrangement.
In any event, the agency's conclusion that Family Courts in New York do not have authority to make custody determinations is based on a misunderstanding of New York State law. New York law grants the Family Court jurisdiction over the custody and care of juveniles up to the age of twenty-one for certain proceedings, including guardianship proceedings, with the consent of the juvenile. See
2.
The agency's second basis for determining that the New York Family Court does not act as a juvenile court when it exercises jurisdiction over juveniles who are older than eighteen is that, according to the agency, in order to make the finding that "reunification with 1 or both of the immigrant's parents is not viable,"
The agency's position -- that in order to make the factual finding that "reunification with 1 or both of the immigrant's parents is not viable,"
To support its position, the Legal Guidance specifically relied on the regulations that interpreted the statute when it required that a juvenile be eligible for long-term foster care, a requirement that was deleted in 2008. See AR 724 (citing
Rather than provide reasoning for its conclusion that a state court must have legal authority to order reunification to be able to reach the factual conclusion that reunification is not viable, the agency simply states its position. See, e.g., Tr. at 44-48 (government attorney explaining that it "necessarily follows ... that the [state] court must have had the authority to make that determination which affected the absent parent's rights," without providing legal authority for that position). The agency's ipse dixit falls short of its obligation to provide a "satisfactory explanation for its action[s]." See Motor Vehicle Mfrs. Ass'n of U.S., Inc.,
In any event, the USCIS misconstrues New York law when it argues that the
3.
The plaintiffs also argue that the agency's policy is arbitrary and capricious because in order to implement the policy, the agency must act beyond the scope of its consent authority.
For a child to qualify for SIJ status, the Secretary of DHS must consent to the grant of SIJ status.
Relying on Budhathoki v. Nielsen,
Having reviewed the named plaintiffs' Special Findings Orders, the defendants
By arguing that the New York Family Court lacks jurisdiction to make the requisite SIJ findings, the agency is substituting its interpretation of New York law for that of the New York Family Court. The defendants have not cited any authority to support such a broad use of the consent function. Indeed, such a broad use of the consent function contravenes the directives in the agency's Consolidated Handbook of Adjudication Procedures, which instructs that the USCIS "should defer to the juvenile court's interpretation of the relevant state laws" and, accordingly, "a petition should not be denied based on USCIS' interpretation of the relevant state laws." Id. at 728; cf. J.L.,
4.
The plaintiffs also argue that the agency's policy is procedurally defective because the agency failed to provide adequate notice under § 706 of the APA, which requires courts to hold unlawful and set aside agency action, findings, and conclusions found to be "without observance of procedure required by law."
The agency argues that it complied with the APA's notice requirements because its Policy Manual, which is available to the public, explains its position. However, the USCIS's narrow interpretation of the New York Family Court's jurisdiction to issue Special Findings Orders for petitioners over the age of eighteen -- which was the dispositive factor in the denial of each named plaintiff's SIJ petition -- cannot be found in the Policy Manual. At oral argument, the defendants stated that Section J.D.2 of its Policy Manual explains its policy. See Tr. at 54. That section, however, merely states that
[t]he juvenile court must find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under the relevant state child welfare laws. Lack of viable reunification generally means that the court intends its finding that the child cannot reunify with his or her parent (or parents) remains in effect until the child ages out of the juvenile court's jurisdiction. The temporary unavailability of a child's parent does not meet the eligibility requirement that family reunification is not viable. However, actual termination of parental rights is not required.
The findings must be based upon the person (or persons) who is the petitioner's parent (or parents) under state law. If the juvenile court order establishes that the person (or persons) is the petitioner's parent (or parents), USCIS generally considers this requirement met. However, if the record does not establish that the person (or persons) is the petitioner's parent (or parents), USCIS may request additional evidence.
AR 708. Other portions of the Policy Manual provide that state courts must follow their own laws regarding their jurisdiction and that Special Findings Orders should establish that the findings made by the state court were made under state law.
The Policy Manual contains no statement that the state court must have jurisdiction over the petitioner's custody, even in cases where the petitioner is declared dependent on the juvenile court. Nor does the Policy Manual explain the agency's position that in order to find that reunification with one or more parents is not viable, the state court must have the authority to order reunification with an unfit parent. It is only in the February 2018 Legal Guidance that the agency explains its policy, stating that
[w]here a court loses the capacity to order reunification with a parent at age18, they necessarily cannot make a juridical determination that reunification is not viable. Accordingly, a state court order finding that parental reunification is not viable will not be considered valid for the purpose of establishing SIJ eligibility if the evidence submitted by the petitioner does not establish the courts' jurisdiction under state law to place the child under the custody of the allegedly unfit parent.
Because the agency's policy is contrary to the plain language of the SIJ statute, lacks a reasoned explanation, is premised on erroneous interpretations of state law, and was not enacted with adequate notice, the policy is arbitrary and capricious, "in excess of statutory jurisdiction," and "without observance of procedure required by law." See
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the agency's new policy is in violation of the APA. The plaintiffs' motions for class certification, to proceed anonymously, and for summary judgment are granted. The defendants' motions to dismiss and for summary judgment are denied. The Clerk of Court is directed to close Docket Numbers 7, 9, 12, 64, 78, and 92.
The plaintiffs are directed to submit a proposed judgment with declaratory and injunctive relief and a supporting brief by March 22, 2019 . The defendants may respond by March 29, 2019.
SO ORDERED.
Notes
See
The defendants are Kirstjen Nielsen, in her capacity as Secretary of DHS; Lee Francis Cissna, in his capacity as Director of the USCIS; Barbara Velarde, in her capacity as Chief of the Administrative Appeals Office of the USCIS; Robert M. Cowan, in his capacity as Director of the USCIS National Benefits Center; Thomas Cioppa, in his capacity as Director of the USCIS New York City District Office; Edward Newman, in his capacity as Director of the USCIS Buffalo District Office; Daniel Renaud, in his capacity as Associate Director of the USCIS Field Operations Directorate; Gwynne Dinolfo, in her capacity as USCIS Albany Field Office Director; Gina Pastore, in her capacity as USCIS Brooklyn Field Office Director; Carmen Whaling, in her capacity as USCIS Buffalo and Syracuse Field Office Director; Elizabeth Miller, in her capacity as USCIS Long Island Field Office Director; William Bierman, in his capacity as USCIS New York Field Office Director; and Brian Meier, in his capacity as USCIS Queens Field Office Director.
Congress originally charged the Immigration and Naturalization Service ("INS") with administering the SIJ statute. However, the Homeland Security Act of 2002 created the DHS, abolished the INS, and transferred INS functions to the DHS, of which the USCIS is a part. See Pub. L. No. 107-296,
The plaintiffs submitted data, which the defendants do not dispute, showing that prior to 2018 the agency approved hundreds of SIJ applications by petitioners who were over the age of eighteen when they received a Special Findings Order from the New York Family Court. Since 2018, the agency has denied virtually all of these petitions. See Stotland Decl. ¶¶ 9-13.
At oral argument, both parties agreed that the court in New York that issues Special Findings Orders for SIJ status is the Family Court. See Transcript of the February 25, 2019, argument on the motions ("Tr.") at 8-12, 55. The parties also agreed that the New York Surrogate's Court would also be empowered to issue Special Findings Orders, but that as a matter of practice, Special Findings Orders are issued by the Family Court. The government stated that its new interpretation of the SIJ statute would also apply to the Surrogate's Court. Id. at 55. Issues surrounding the Surrogate's Court have not been briefed, and in any event, the class is defined only to include juveniles who obtained Special Findings Orders from the Family Court. Id. at 11.
To show numerosity, it is sufficient for the plaintiffs to "reasonably estimate the number of class members" and they "need not show the exact number." Robidoux v. Celani,
The plaintiffs are represented by attorneys from The Legal Aid Society of New York and Latham & Watkins LLP.
Moreover, none of these cases involve SIJ status. However, it is unnecessary to decide whether the holdings apply to SIJ revocations for purposes of this motion.
The plaintiffs have included an April 25, 2018, report from Politico. Malionek Decl. Ex. 13. In that report the USCIS reportedly commented that it "ha[d] denied roughly 260 applicants who sought special immigrant juvenile status based on guidance issued in February [2018]."
At oral argument, the government stated that it "hate[d]" to call the new policy a policy, and instead, preferred to refer to the policy as "the agency's interpretation of the statute." Tr. at 38-39.
The agency's argument that it did not follow procedure strengthens the plaintiffs' argument that the new policy is procedurally defective. See
As explained below, this conclusion is predicated on a misinterpretation of New York State law.
For example, S.W.'s SIJ petition denial states that "Even assuming you became 'dependent' on the court when the court exercised its jurisdiction and granted the appointment of a guardian for your behalf, the INA requires that the custody placement or dependency declaration be made by a juvenile court, which the regulation defines as a court with jurisdiction over both the 'custody and care' of the special immigrant juvenile petitioner." AR 414.
In addition to the fact that the agency has not provided a reasoned explanation for this requirement, the requirement makes little sense. The deference that the SIJ statute accords to state-court findings flows not from state courts' power to order reunification but rather from state courts' expertise in making determinations about the best interest of the child. See Perez-Olano v. Gonzalez,
Moreover, the Family Court is an expert in making reunification findings. When the Family Court appoints one natural parent over another to be a guardian, or appoints a person other than a parent, the Family Court necessarily evaluates the viability of parental reunification. See, e.g., Matter of Marisol N.H.,
The defendants also argue that notice was not required because there is no new policy. However, as explained above, the positions taken in the February 2018 Legal Guidance constitute a new agency policy. Moreover, the agency's position that it did not enact a new policy supports the plaintiffs' argument that the policy is arbitrary and capricious because when enacting a policy, "the agency must at least 'display awareness that it is changing position.' " Encino Motorcars,