In a recent decision, Recinos v. Escobar, the Supreme Judicial Court (“SJC”) addressed and resolved a discrepancy between state and federal law as to whether individuals between the ages of 18 and 21 fall within the jurisdiction of the Massachusetts courts. 473 Mass. 734 (2016). The federal immigration statute considers individuals under the age of 21 children, but Massachusetts ordinarily considers individuals over the age of 18 adults. The discrepancy is important in immigration cases when individuals between the ages of 18 and 21 apply for Special Immigrant Juvenile (“SIJ”) status before the U.S. Citizenship and Immigration Services of the Department of Homeland Security (“USCIS”).
The plaintiff Recinos, Liliana Recinos, is a 20-year-old unmarried Salvadoran who attempted to apply to USCIS for SIJ status. SIJ status is available as an avenue for juveniles who have suffered abuse, neglect or abandonment to apply for permanent resident status before USCIS or the Immigration Court. As a prerequisite to applying for SIJ status, an applicant must obtain findings from a state court with jurisdiction to make determinations about the custody and care of juveniles that: 1) the applicant is dependent on the juvenile court; 2) reunification with one or both parents is not viable due to abuse, neglect or abandonment; and 3) it is not in the applicant’s best interests to return to her country of origin. Armed with those findings, a juvenile, up to age 21, can file a petition with USCIS for classification as a SIJ. If that classification is granted, the applicant can apply for lawful permanent resident status in the United States.
Recinos sought equitable and declaratory relief from the Middlesex County Probate and Family Court, specifically requesting the findings that would allow her to apply to USCIS for SIJ status. Twenty years old at the time of filing, Recinos “chronicled a childhood riddled with instances of physical and emotional abuse by her father,” “her mother’s failure to protect her,” and “chronic gang violence in her neighborhood.” Recinos at 736. The judge dismissed her complaint for lack of jurisdiction because she was over 18 years of age. Recinos filed an appeal with the Appeals Court, seeking expedited processing. The SJC took the appeal on its own motion and expedited the case to preserve Recinos’ opportunity to apply for SIJ status before her 21st birthday.
Justice Spina, writing for the court, described SIJ as “a unique hybrid procedure that directs the collaboration of state and federal systems.” Recinos at 737 (quoting H.S.P. v. J.K., 223 N.J. 196, 209 (2015), and Matter of Marisol N.H., 115 A.D. 3d 185, 188 (N.Y. 2013)). The state courts, which have expertise in child welfare and abuse, are entrusted by Congress to perform a best-interest analysis and make factual determinations about child welfare necessary to SIJ eligibility, while the federal agency, USCIS, retains the final determination regarding eligibility for SIJ status. Recinos at 738.
The court concluded that, while in most circumstances the Probate and Family Court has jurisdiction over children only until age 18, the court’s equitable powers under the Massachusetts General Laws, chapter 215, section 6, are “broad and flexible, and extend to actions necessary to afford any relief in the best interests of a person under their jurisdiction.” Recinos at 741 (quoting Matter of Moe, 385 Mass. 555, 561 (1982)). Noting that “a fundamental maxim of general equity jurisprudence is that equity will not suffer a wrong to be without a remedy,” the court found that the Commonwealth has a policy of protecting children from wrongs that result “from the absence, inability, inadequacy or destructive behavior of parents,” which are the same wrongs that SIJ status is intended to remedy. Recinos at 741 (quoting Mass. Gen. Laws ch. 119, § 1).
The court compared the case to Eccleston v. Bankosky, 438 Mass. 428, 431-433 (2003), in which the SJC, noting that attaining the age of majority does not necessarily mean that one is self-sufficient, extended jurisdiction through equity to order continued support for a child after the age of 18 where she could not live with either parent because of abuse and had no means of support. Because the state legislative scheme provided for post-minority support for an unemancipated child who lived with one parent, the court closed the “unintended gap” by providing an order for support through its equitable powers. Similarly, the court in Recinos used its equitable powers to fill the gap between the state court’s statutory jurisdictional limits and the federal immigration statute.
Finally, the court addressed the question of dependency. Analyzing the language of the statute, the court reasoned that, because Recinos could not become self-sufficient without having her case adjudicated, and because court findings were a prerequisite to having her immigration case considered, she was dependent on the court to obtain self-sufficiency.
Justice Cordy issued a concurring opinion, stating that, he would have preferred a legislative solution. Justice Cordy supported the majority’s conclusion because of strong state policies aimed at protecting children from the effects of asylum and neglect and the gap between the ordinary jurisdiction of the state court and the federal benefit, but said that it would have been preferable for the Massachusetts State Legislature to have acted on legislation that would have explicitly expanded the jurisdiction of the Probate and Family Court to address claims like those presented by Recinos.
Legislation has been pending which would address this issue, creating a statutory avenue for 18 to 21-year-old youth to seek findings necessary to apply for SIJ status. An Act Relative to Special Juveniles, SB 740, 189th Gen. Ct. (Mass. 2016). On April 4, 2016, subsequent to the issuance of the initial order in this case, the bill was sent to study, likely delaying the adoption of any legislation on this matter for some time.
Nancy Kelly is co-managing director of the Harvard Law School Immigration and Refugee Clinical Program (HIRC) at Greater Boston Legal Services (GBLS) and senior clinical instructor and lecturer on law at Harvard Law School.