Special immigrant status for juveniles in the United States

Special Immigrant Juveniles in the United States: Who They Are, What They Get and Why They Get It

At any rate, we think it not improper to say that deportation under the circumstances would be deplorable. Whether the relator came here in arms or at the age of ten, he is as much our product as though his mother had borne him on American soil. He knows no other language, no other people, no other habits, than ours; he will be as much a stranger in Poland as any one born of ancestors who immigrated in the seventeenth century. However heinous his crimes, deportation is to him exile, a dreadful punishment, abandoned by the common consent of all civilized peoples. -- United States ex rel. Klonis v. Davis, 13 F.2d, 630, 630 (2d Cir. 1926) (L. Hand, J.).

Introduction

The epigram above serves to highlight the unique status that has historically been enjoyed by immigrant juveniles in the United States. While the nation is experiencing some fundamental changes in its immigration policies that promise to have profound implications for people seeking to emigrate to the United States in the future following the terrorist attacks of September 11, 2001, well before this time special consideration had already been assigned to certain categories of alien juveniles that remain in effect today. In the 1980s, the country witnessed the greatest increase in immigration rates since the beginning of that century; according to Dentler, immigrants arrive in the United States at a rate of over one million a year, mostly from Mexico, Central America, and Asia. In 1990, Congress created the special immigrant juvenile category, defined as undocumented children who have been adjudicated as dependents of the state as a result of abandonment, neglect, or abuse (Abel et al. At 873). While this category does not afford universal protections from other immigration law provisions or provide absolute guarantees of citizenship, the special immigrant juvenile category does carry with it a wide range of protections and benefits for those so designated. This paper provides a background and overview of juvenile immigrants in America, how the special immigrant juvenile designation came about, followed by an analysis of constraints to their representation. A summary of the research will be provided in the conclusion.

Review and Discussion

Background and Overview. Following the massive waves of large-scale immigration to the United States over the last 40 years, immigrants and their children total 55 million persons, or one out of every five Americans (Louie at 77). The incorporation of adult immigrants, as well as those juveniles who arrived here before attaining their maturity, has far-reaching implications for the United States today and in the future. One of these implications has been the emergence of new concentrations of ethnic groups in several states and metropolitan areas; another concerns the eventual outcomes for these immigrant groups. Historically, the vast majority of immigrants to the United States have fared very well, and have managed to assimilate themselves while maintaining a semblance of their native cultures in their new homeland. Things are different today, though, and the country is at war on a number of fronts that all involve foreigners to some extent or another. In this environment, immigration has assumed a new level of importance for the American public who is clamoring for reductions in the numbers of newcomers who are allowed into the country and for what purposes.

Today, perhaps the most visible agencies in the United States that are responsible for administering the programs for juvenile immigrants are the Homeland Security's Bureau of Citizenship and Immigration Services (BCIS), which assumed most of the responsibilities for the Immigration and Naturalization Service (INS) as part of that department's creation in 2003 (Immigration and Naturalization Service at 1) and the juvenile court system (Champion et al. At 34). These two governmental agencies have assumed a critical role in how and when juvenile immigrants are allowed into the United States, for what purposes and for what duration.

According to Champion et al., it is reasonably accurate to characterize the juvenile court as being the foundation of the juvenile justice system in the country because in some ways, after the court was established, the judicial "system" tended to develop around it. "The juvenile court did not spring suddenly full-blown onto the American justice scene," Champion et al. note, "In fact, it is possible to view the juvenile court as the culmination of several centuries of jurisprudential evolution" (at 35). In the early part of the 20th century, it was claimed that the "evil effects of immigration show themselves in an alarming increase of pauperism and crime" (Hourwich at 353). This attitude towards immigration in general during was focused on preventing newcomers to the country from taking good-paying jobs from those already here, and the picture that emerged from these early efforts at immigration control was largely one characterized by the need to control crime amid these impoverished and marginalized segments of society.

Wolcott points out that, "Since the latter half of the nineteenth century, the police have been the foremost public authorities who regulate juvenile crime and delinquency. More often than not, police tactics have been portrayed as crudely punitive, rather than sympathetic to children and youth" (p. 349). This author maintains that the creation of juvenile courts during this period in American history by well-meaning but misguided social reformers served to define much of the behavior that was characteristic of working-class immigrant youths, thereby framing the concept of delinquency around behaviors typically associated with special immigrant juveniles from the very beginning (Wolcott at 349).

In the United States, two events in particular served to fuel the creation of a separate juvenile court system in the first place. The first event was the Industrial Revolution of the mid-to-late 19th century that transformed the nation from its origins as a rural, agrarian economy to an economy increasingly based on manufacturing and heavy industry. At this time, the United States experienced an enormous influx of immigration from Europe (both eastern and western European countries) and from Asia as well (Id. At 350).

These newly arrived immigrants provided that labor, frequently at the lowest wages possible, that helped develop the industrial economy of the U.S. Furthermore, these early immigrants brought with them children who "often roamed the streets of the industrial cities. Concern over immigrant children committing crime and living dissolute lives led many progressive reformers to seek ways to aid these children" (Davis in Champion et al. At 35). This new atmosphere of concern for immigrant juveniles was part of what fueled the second major event that help fuel the creation of the juvenile court system in the U.S.

Progressive movement reformers were concerned about the quality of life in America's cities, and from these efforts evolved what has come to be known as the "child saving movement"; although there are various interpretations of the "child savers'" motives, there were numerous philanthropic societies and associations in American cities that were dedicated solely to improving the lives of lower-class immigrant children, particularly those who became involved with the adult criminal justice system (Champion et al.).

Because the care of dependent children was widely recognized as being a public responsibility, the number of orphanages in the United States increased from 624 in 1880 to 1,067 in 1910 (Morton at 65). While the median number of juveniles who were sheltered in 1910 was sixty, 109 orphanages cared for more than 200 children each, and twenty-four institutions were responsible for 400 or more. According to this author, "The largest child-care institution, the New York Catholic Protectory, housed 2,500 children. These large orphanages were almost always sectarian and were often committed to lengthy stays for their inmates, were viewed with increasing dismay by the emerging social work profession" (Id. At 66). Regardless of the religious affiliation of such institutions, the vast majority of the juveniles who came into their care were from low-income and ethnic minority families who were unable or unwilling to provide for them.

While some of these children only stayed in these facilities a short time, the vast majority were required to remain much longer, in some cases for years, until their families were able to care for them or the juveniles became able to support themselves. "Rejecting the nineteenth-century belief that institutions could save and reform inmates," Morton says, "child welfare workers now argued that dependent children should be raised in their own homes or foster homes, not orphanages" (at 66). These child welfare initiatives have all helped create an atmosphere in the United States that suggests juveniles in general and immigrant juveniles in particular represent a special case with unique needs that demand special attention from immigration and criminal justice authorities alike.

History and Evolution of Controlling Legislation for Special Immigrant Juveniles. The United States may pride itself on being the "melting pot of the world," but Prchal points out that this pride is somewhat misplaced. In reality, it would seem that as soon as people have reached the American shores in the past, they reformulate their attitudes about other new arrivals (except, perhaps, from their own countries). According to Prchal, "As the nineteenth century became the twentieth, the United States experienced an unprecedented surge in immigration. Some 3.8 million Italians, 3.4 million Slavs, and 1.8 million Russian and Eastern European Jews -- along with still more from other ethnic groups -- entered the country between 1899 and 1924" (at 189). These enormous numbers of newcomers to the country concerned those who were already here, particularly most native-born Americans; however, the ethnic composition of these new arrivals was the source of even greater concern for many: "Unlike the so-called 'old immigrants,' Prchal says, "who had come from the northern and western regions of Europe (and continued to do so in declining percentages), the majority of these 'new immigrants' were arriving from southern and eastern Europe. The descendants of the earlier immigrant groups often perceived the Italians, Slavs, Jews, and others entering the country as belonging to races that were different from and inferior to their own" (Id. At 190).

Increasingly heated debates concerning how the United States should resolve this perceived threat of cultural deterioration coalesced into four schools of thought:

one advocated immigration restriction; one called for all immigrants to put aside their ethnic distinctiveness and assimilate into the dominant culture; another viewed the process as being a merging of the best traits of the world's peoples to create an ever-evolving, cosmopolitan American race in the national melting pot; a final camp emerged that introduced the radical concept of what has come to be known as "cultural pluralism," what Prchal terms "a vision of a heterogeneous country where ethnic difference is respected rather than erased" (Id.).

The efforts to place more strict controls on mass immigration in the 1920s attempted to do more than merely reduce the number of new immigrants; initiatives at this time also included specific social objectives affecting the nation's racial and ethnic composition (in fact, the popular name for the Immigration Act of 1924 was the "National Origins Act" because of this focus) (Briggs at 5). Following the progressive reforms of the 1960s, though, there were some shifts in the national policy concerning which categories of immigrants would benefit the national interests. For example, the Immigration Act of 1965 contained provisions for using immigration policy as a means of meeting the economic needs of the nation that had been introduced in 1952 by the Immigration and Nationality Act.

On the one hand, the 1965 legislation provided new opportunities for the admission of some immigrants who already possessed skills and who had work experiences that were needed in the nation's labor market; however, on the other hand, these provisions of the Immigration Act of 1965 remained a secondary objective and only small numbers of immigrants were admitted for this purpose. Nevertheless, the 1965 act represented the first time since immigration had become a subject of regulation that a formal route was available for certain refugees to be admitted on the basis of humanitarian concerns (Briggs at 6). At this time, the criteria for being classified as a refugee continued to be restricted only to those persons faced with persecution from nations to which U.S. foreign policy was opposed (such as those living in Communist-dominated nations) rather than those who were confronted with persecution in their native lands per se. As a result, even this aspect of the 1965 legislation is regarded as being targeted primarily to satisfy political priorities (Id.).

The 1965 act was also important for what it did not do: "Specifically, it failed to specify any effective measures to enhance the enforcement of its new provisions. Its supporters did not foresee the imminent explosion of illegal immigration that quickly ensued in the years after its passage" (Id.). While the Immigration Act of 1965 did provide for a modest increase in legal immigration, its passage also represented the beginning of the "fourth wave" of mass immigration shown in Figure 1 below. The increase in the level of immigration resulted, at least in part, because the Act's provisions provided for such an outcome but primarily due to the fact that the statute failed to establish enforcement procedures, a situation that invited an enormous amount of abuse that was virtually ignored by policymakers for years (Briggs at 7).

After almost a decade-and-a-half following the enactment of the Immigration Act of 1965, though, it became painfully obvious to even the most liberal-minded politician that immigration policy was not working and immigration reform was placed on the national political agenda once again. In 1978, Briggs reports that the Congress established the Select Commission on Immigration and Refugee Policy (SCIRP) which was created to study the effects of what had happened since 1965, and to develop recommendations for changes.

The commission was comprised of 16 members and was headed by the Rev. Theodore Hesburgh (at the time, president of Notre Dame University and former chairman of the U.S. Civil Rights Commission and appointed by then-President Carter). The commission released its comprehensive report and recommendations in 1981; in their report, the commission stated that immigration was "out of control"; that the nation must accept "the reality of limitations"; and that "a cautious approach" should be used in developing the design of any reform initiatives. Following the release of the SCIRP report, the Congress passed three major immigration statutes: 1) the Refugee Act of 1980, 2) the Immigration Reform and Control Act of 1986, and the "capstone of the statutes," the Immigration Act of 1990 (Briggs at 7).

As can be seen in Figure 1 below, the U.S. has indeed experienced some wide swings in the rates of immigration over the years, and the Immigration Act of 1990 came hard on the heels of a major wave of immigration. During the 1960s, for example, approximately 3.3 million legal immigrants came to the United States and this total increased slightly to almost 4.5 million in the 1970s. By the 1980s, though, the admission of legal immigrants to the United States increase to more than 7.3 million, an amount that has been previously exceeded only by the almost 8.8 million legal immigrants who were admitted to the United States between the years 1901 and 1910 (Delaet at 77).

Figure 1. Legal Immigration to the United States: 1821-1990 [Source: Delaet at 78].

The steady rise in the number of legal immigrants to the United States since the 1960s has resulted in some profound shifts in popular opinion about the need for more stringent immigration controls. The results of a 1965 Gallup poll indicated that just one-third of the American public supported reductions in legal immigration at that time; by sharp contrast, though, a 1977 Gallup poll showed that 42% of those Americans surveyed believed legal immigration should be reduced.

This increased opposition to the growing numbers of legal immigrants continued to grow in subsequent years; for instance, a 1990 Roper poll found that 75% of the respondents believed that legal immigration should not be increased, and almost 50% indicated that legal immigration should even be reduced (Delaet at 76). As was the case with illegal immigration, public concern over rising numbers of legal immigrants has been further adversely affected by the perception that these immigrants cost the American public an enormous amount of taxpayer resources that would be better spent elsewhere.

These attitudes were, of course, further exacerbated following the terrorist attacks of September 11, 2001. Today, public opinion polls indicate that a majority of Americans believe that immigrants continue to displace U.S. workers, burden social welfare systems, and threaten American culture. According to this author, "Since the 1980s, then, public opinion polls generally have indicated that, at the very least, a majority of the U.S. public favors stabilizing current legal immigration levels, and significant numbers of Americans prefer a reduction in legal immigration to this country. In response to public demands for the reform of legal immigration policy, Congress passed the Immigration Act of 1990" (Id. At 77-8).

Just as complex problems demand complex solutions, special immigration circumstances require special solutions. "That's certainly the case when a child or young adult from another country is determined, typically by a U.S. court, to have no means of support. With that in mind, Congress created a special immigrant category for juveniles in 1990" (Visas for Juveniles in Special Situations at 1). The Immigration Act of 1990 established the category of special immigrant juvenile:

Sec. 153. Special Immigrant Status for Certain Aliens Declared Dependent on a Juvenile Court (Juvenile Special Immigrants):

J) an immigrant i) who has been declared dependent on a juvenile court located in the United States and has been deemed eligible by that court for long-term foster care, and 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; except that no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

A b) Waiver of Grounds for Deportation.

1) In general. -- Section 241 (8 U.S.C. 1251) is amended by adding at the end the following new subsection:

h) Paragraphs (1), (2), (5), (9), or (12) of subsection 241(a) (other than so much of paragraph (1) as relates to a ground of exclusion described in paragraph (9), (10), (23), (27), (29), or (33) of section 212(a)) shall not apply to a special immigrant described in section 101(a)(27)(J) based upon circumstances that exist before the date the alien was provided such special immigrant status.

2) Use of new grounds for deportation. -- Effective on the date that the amendments made by section 602 of this Act become effective, the subsection added by paragraph (1) is amended to read as follows:

h) Paragraphs (1)(A), (1)(B), (1)-, (1)(D), or (3)(A), of subsection 241(a) (other than so much of paragraph (1) as relates to a ground of exclusion described in paragraph (2) or (3) of section 212(a)) shall not apply to a special immigrant described in section 101(a)(27)(J) based upon circumstances that exist before the date the alien was provided such special immigrant status."

According to Black's Law Dictionary, in the United States, a juvenile is "a young person who has not yet attained the age at which he or she should be treated as an adult for purposes of criminal law; under the federal Juvenile Delinquency Act, a 'juvenile' is a person who has not attained his eighteenth birthday" (at 867). The regulations concerning special immigrant juveniles, though, are less restrictive. U.S. Congress originally created the juvenile special immigrant category in 1990; however, in order to be eligible for a green card in this category, the individual must be under the age of 21 years and still be unmarried; such designation also requires that the juvenile has been declared a ward of a U.S. court which has determined that the child is eligible for long-term foster care or has already been placed in the custody of a state agency.

In addition, there must be an adjudicated determination that it would not be in the juveniles' best interests to be returned to their home country. Susser adds that the decision reached by a court regarding the child is final and binding.

Special immigrant juveniles are specifically exempted from many of the normal grounds of deportation that apply to others; among these are:

Entry without inspection;

Inadmissibility at the time of entry (except when it is based on criminal convictions, drug violations, national security grounds and participation in Nazi activities);

Failure to maintain valid nonimmigrant status;

Working without authorization; and Prostitution (Susser at 1).

Applications for special immigrant juveniles are made using Form I-360; juveniles in this category are allowed to file themselves, or a person acting on behalf of the juveniles may also file for them. The Form I-360 is then filed with the newly created BCIS (formerly INS) local office with jurisdiction over the child. An application for adjustment of status can be filed with the application to be classified as a special immigrant juvenile. A child who receives permanent residency through the special juvenile immigrant category cannot petition for residency for their natural or adoptive parents (Susser at 2).

Constraints and Other Considerations Involved in Special Immigrant Juvenile Representation. The U.S. Congress has recently passed the most significant immigration restrictions in years with both illegal immigration reform and welfare reform legislation in 1996; however, it remains unclear whether either of these initiatives will be adequate to effectively restrict illegal immigration. Further, the processes that were in place for admitting legal immigrants that was implemented pursuant to the Immigration Act of 1990, including the provisions for special immigrant juveniles, remain largely in place today (Delaet at 3). According to Kanstroom, notwithstanding the wide protections afforded special immigrant juveniles, a unified field theory of constitutional punishment has not been codified today. This lack of uniformity has led to dramatically different results, such as when parents have a right to counsel if the state seeks to take their children, but they do not enjoy any such right if they or their children face separation as a result of one or the other's deportation (at 1934). This author points out that in the field of immigration law in general, and deportation law in particular, this paucity of a comprehensive theoretical approach has been even more problematic. "Classifying the proceedings as 'civil,'" he says, "has simply subjected questions of fairness and rights to decisions based on a muddle of models" (Id.). In the past, the courts have relied on the techniques provided by Woodby v. INS and Matthews v. Eldridge, as well as the application of certain procedural surrogates for substantive rights to avoid directly addressing these functional aspects of deportation law (Id. At 1935).

Other constraints also exist as well. For example, the federal Legal Services Corporation (LSC) was established by Congress to administer funds in support of legal representation for immigrants. According to Abel et al., 45 C.F.R. pt. 1626 (2001) prohibits LSC recipients from seeking or accepting fee awards in most circumstances and Congress has only allowed such recipients to represent certain categories of immigrants. The categories of immigrants allowed to be represented include permanent residents, refugees, asylees, certain specially admitted agricultural workers, and aliens falling into several additional categories (Id. [subsection] 1626.5, 1626.11).

Today, though, there are a large number of legal aliens who live in the U.S. who do not fall into any of these categories and are therefore ineligible for legal representation from the LSC; these categories of immigrants include:

Workers who were recruited and brought into this country by their employers under the federal H-2B visa program for nonagricultural employees;

Individuals granted temporary protected status because they are from countries that the U.S. has recognized as being unsafe;

Asylum applicants;

Parolees;

Aliens in exclusion or deportation proceedings;

Aliens who have not filed for permanent residence but who are the spouses, parents or unmarried children under age twenty-one of U.S. citizens;

Individuals on temporary visas (e.g., student visas);

Special immigrant juveniles (defined for this purpose as undocumented children adjudicated state dependents because of abandonment, neglect, or abuse); as well as certain others.

Further, undocumented aliens are also generally ineligible for representation (see 45 C.F.R. [section] 1626.3 (2001).

In view of the recent Supreme Court decision concerning alien detainees, the waters for immigrant juveniles became a little less muddy. The U.S.A. Patriot Act (the "Act") expanded the substantive grounds on which all aliens, regardless of age, can be potentially excluded from the country or deported after their arrival for reasons of terrorism (section 411); the Act also established a new mechanism for certifying and detaining all aliens pending their removal from American territory (section 412).

The Act also specifically made the application of the section 411 amendments retroactive, an ex post facto addition that may have profound implications for special immigrant juveniles and how their cases are adjudicated in the future. According to Sinnar, the Act "extends to actions taken by an alien before, on, or after the date of enactment of the new law. The new provisions apply to all aliens seeking admission on or after the law's enactment, and to all present and future removal proceedings of aliens already present" (emphasis added) (at 1419). The Supreme Court, though, had already held that alien detainees, regardless of age, being held in deportation proceedings are entitled to procedural due process. This well-established precedent affirms that deportation is a deprivation that is sufficient to require the review of procedural due process; therefore, because detention is part of the deportation process, it must also be covered by procedural due process standards. In other words, not only is the substantive evaluation of an alien's deportability subject to due process of law, but the detention of an alien pursuant to deportation hearings is also congruent with these due process protections.

In this regard, the Supreme Court's decision in Reno v. Flores confirmed that alien detention implicates a protected liberty interest. In Flores, the Court explicitly subjected alien custody to a procedural due process inquiry. That case concerned a former INS regulation that allowed the release of arrested alien juveniles to their parents or close family members only. A class of alien juveniles subsequently maintained that the regulation violated their due process protections because it did not require the INS to determine in each individual case whether the best interests of the minor lay in INS custody or in release to a "responsible adult" beyond those authorized under the regulation. The Court here approached the procedural due process inquiry first by repeating the point that it is "well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings" (Reno v. Flores, 507 U.S. At 292, 1993). Based on that principle, the Court then considered whether the specific custody procedures were sufficient to meet those standards.

While the Court ultimately determined that the procedures were adequate, the Flores Court reached that conclusion only through a detailed assessment of the procedures rather than through careful questioning as to whether INS custody had implicated a liberty interest of the alien. Sinnar suggests that the Court apparently found its own precedent conclusive on the issue and this precedent appears to settle the point, res judicata, that detention of an alien pursuant to removal does implicate a protected interest (Id. At 306). In one of the rare cases to come before the courts for special immigrant juvenile issues, a remedy was granted in a suit brought against the INS for a failure to act in Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999), and compelled the INS to process the juvenile plaintiff's application for special immigrant juvenile status.

In an Immigrant's Rights Update, the National Immigration Law Center (NILC) reports that an important decision affecting abused and neglected children was concluded in December 2002 when the Office of Administrative Appeals (AAO) of the Immigration and Naturalization Service ruled that reinstatement of removal does not apply to a special immigrant juvenile who was applying for adjustment of status. At that time, The AAO concluded that, because under the Immigration and Nationality Act special immigrant juveniles seeking adjustment are regarded to have been paroled into the U.S., such juveniles cannot be considered to have entered the U.S. unlawfully and are therefore not subject to reinstatement of removal. The NILC notes that the decision by Antonio Francis-Lugo, INS Office of Administrative Appeals (November 14, 2002), concerned the case of a 17-year-old Mexican boy who sought to adjust his status based on a special immigrant juvenile petition. "The district director denied the adjustment application because the boy had returned to the United States without inspection, after having been removed three times under expedited removal orders. The district director found that reinstatement of removal applied to the applicant and barred him from the relief of adjustment of status" (Removal Procedures and Defenses at 3). The juvenile petitioner subsequently appealed the denial to the AAO and, upon further review, the AAO ordered the district director to withdraw the decision and remand the case.

According to the NILC, the Congress subsequently amended the reinstatement of removal provision at issue when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The revised provision (e.g., Immigration and Nationality Act 241(a)(5)) stated that an individual who reentered the U.S. illegally after removal or departed voluntarily under such an order would be subject to the previous removal order, and may not reopen his or her case, and is barred from all further relief. The NILC reports that the AAO began its analysis by pointing out that nothing in the reinstatement of removal provision exempted minors from its provisions; however, the appellate unit acknowledged that INA section 245(h)(1) provided special immigration juveniles with a special status. The NILC points out that this statute provides that an individual seeking adjustment as an special immigrant juvenile "shall be deemed, for purposes of subsection (a) [the section on adjustment of status] to have been paroled into the U.S." Given this finding, the AAO then relied on Leng May Ma v. Barber, 357 U.S. 185 (1958), for the basic tenet that a paroled alien could not be deemed to have entered the U.S.

The AAO reasoned that for this reason, the special immigrant juvenile petitioner could not be considered to have entered the U.S. unlawfully and was therefore not subject to the reinstatement of removal provision. It should be pointed out, though, that the AAO went on to state that while an special immigrant juvenile applicant might be able to avoid the reinstatement provision, the petitioner was still subject to the inadmissibility grounds under INA section 212. In this case, the petitioner's previous removals and misrepresentations of citizenship provided the basis for several grounds of inadmissibility; however, the INS has the authority to waive these grounds for humanitarian purposes, family unity, or when it is otherwise in the public interest (Removal Procedures and Defenses at 3). According to the NILC, in this case at least, the appellate unit's decision, while it did not carry the same weight as a precedent decision, was still significant because it was the AAO's first decision analyzing treatment of special immigrant juveniles applicants with illegal reentries and the appellate unit has jurisdiction over a number of matters, including appeals of denials of applications for adjustment of status.

Disposition and Special Needs of Juvenile Immigrants. Once a juvenile succeeds in securing a special immigrant juvenile designation, the question remains what is the best course of action for a newly arrived young person from another country who may not have any formal education or the ability to speak English? Even adults may have trouble negotiating new cultures, particularly when the transition has not been a voluntary one, and such culture shock can only be expected to be more pronounced among the young. According to Zhou, fundamental differences in national origins, socioeconomic backgrounds, and geographic patterns of settlement are important factors for immigrant adaptation; however, such adaptational outcomes are also determined by the structural conditions of the host society. "The context of the reception that has greeted contemporary immigrants and their children," she says, "has changed dramatically over the past three decades to create additional obstacles to 'melt' the diverse body of immigrants and their offspring into a single mainstream" (Zhou at 64). Unlike their European immigrant counterparts from previous immigration waves, immigrants to the U.S. today are entering an economy that has been struggling to recover and an increasingly hostile attitude towards immigration in general; these trends are particularly unfavorable for the adaptation of the nation's adult immigrants in general, but they also portend real problems for juveniles in particular.

Clearly, these newly arrived juveniles are going to require some type of transitional assistance that may not be immediately forthcoming. During the recent tsunami disaster and the displacement of millions of people that followed, many American parents were dismayed and frustrated to learn that first and foremost, immigration regulations require that a child be officially determined to be an orphan in order to be officially adoptable in the U.S. The BCIS defines orphan as any child whose parents have died or abandoned the child; whose sole surviving parent is unable to provide for the child, and who is under age 16 years when the orphan petition is filed.

Once a child is referred to the parents wanting to adopt, they file the Petition to Classify Orphan as an Immediate Relative with the BCIS. This document is filed with a proof of the orphan's age (typically a birth certificate), death certificate(s) of the orphan's parent(s) if applicable, together with proof that the orphan's surviving parent cannot provide for her or that the orphan has been abandoned to an orphanage, and proof that the pre-adoption requirements of the state of the adoptive parents' residence have been satisfied. If applicable, proof of the adoption having taken place overseas is also required.

After the petition has been approved, the special immigrant juvenile is considered to be an immediate relative of a U.S. citizen and is not required to wait to receive an immigrant visa; rather, the juvenile is issued an orphan visa and is allowed to enter the country as a legal, permanent resident of the United States. The juvenile does not automatically become a U.S. citizen upon entry, however; Babb et al. point out that to do so, all internationally adopted juveniles must first be naturalized. In addition, in some instances, the petition may not be approved at all because it is subsequently determined that the juvenile does not qualify as an orphan for some reason, or because INS determines that the adoptive parents will be unable to provide proper care for the juvenile (Babb et al. At 182).

Depending on the age of the immigrant juvenile, there will undoubtedly be a wide range of special needs required that American social services may not be able to deliver. According to Dentler et al., "A central challenge here is the accelerating pace of cultural and socioeconomic diversity of conditions among immigrant children and their families" (at 1). The problem relates to a fundamental need to ensure that these juvenile immigrants are provided with the quality and type of education they require to succeed in their new country while avoiding the tendency to promote an ethnocentristic view that overrides their own culture and social norms. "Poor school achievement or failure has been found to be a precursor of dropping out among children of all ethnic groups," Bhattacharya points out, and dropping out, in turn, has been directly associated to bonding with deviant peers, which has been linked with increased drug use and other problem behaviors, such as sexual promiscuity. "Children who have recently immigrated to the United States from non-English-speaking countries experience several barriers to academic achievement, including lack of language proficiency" (Bhattacharya at 77). According to Rothstein, "Bilingual education, a preferred strategy for the last 20 years, aims to teach academic subjects to immigrant children in their native languages (most often Spanish), while slowly and simultaneously adding English instruction" (at 672).