Special immigration status of juvenile - published opinion from Ky Supreme Court

Commonwealth of Kentucky, Cabinet for Health and Family Services v. NBD

 

 

Under the Immigration and Nationality Act, an undocumented juvenile immigrant may apply for permanent residency by obtaining special immigration status. To obtain special immigration status, the immigrant child must present findings to a state juvenile court that satisfy certain criteria.

           

A Family Court declined to make such special immigration status findings regarding a Guatemalan child residing in Kentucky on jurisdictional grounds. In its order, The Family Court stated that there was no Kentucky statute that expressly required the Family Court to make findings under the special immigration status statute.

 

The Court of Appeals held that the special immigration status findings fell within the Family Court's jurisdiction as furthering the purpose of KRS 23A.100 by “assuring an adequate remedy for children adjudged to be dependent, abused, or neglected.” Furthermore, the Court found that requiring the family court to make special immigration status findings did not violate the anti-commandeering provisions of the Tenth Amendment of the United states Constitution because the statute does not impose any specific burden on state courts to comply with a federal scheme, but rather, only requires the family court to act in furtherance of the best interest of a child.

 

On appeal, the Kentucky Supreme Court reversed the Court of Appeals holding that "the Courts of Kentucky are not required to make additional findings related to special immigration status classification unless the Court first determines that the evidence to be gleaned from such a supplemental hearing is relevant to the child's best interests." The Court further held that "under proper circumstances, where such a placement of the child back into the country where he or she was abused, neglected, or abandoned is being considered by the state court, the Courts of Kentucky are empowered under KRS 620.023 and other statutes which grant authority to determine custody or placement of the child, to make additional findings to determine whether it would be in the child's best interest to return to his or her native country."

 

However, in this case, because the child was "in removal proceedings with DHS" and the fact that the child ran away from the home where she had been placed by immigration authorities, the state juvenile process should not be used to circumvent federal immigration law. In this case, the proper place for expert evidence is in federal immigration court, not state court. 

 

Digested by: Emily T. Cecconi