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BBA Helps Achieve Access to Justice for Abused Youths

November 12, 2015

It has been a momentous last few weeks for our Amicus Committee.  Most recently, they worked on a brief in the Recinos v. Escobar case that ultimately played a major role in achieving a positive outcome facilitating access to justice.  Recinos, which was initially before the Appeals Court, and was taken up sua sponte by the Supreme Judicial Court (SJC) in expedited fashion, deals with the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

In brief, since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there is a small class of individuals – roughly estimated to be about 60 in number — that would otherwise qualify for SIJ status, but may be barred from doing so because the Probate and Family Court will not make a finding because they are aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extends equity jurisdiction to hear these cases, but this is not uniform and judges have no guidance on the matter.

The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Probate and Family Court has equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argues that the pathway to permanent legal residency for immigrant youths requires the state courts to play an essential role and that the Probate and Family Court has equity jurisdiction over these cases.  First, it argues that the Court’s equity jurisdiction is not limited by statute and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argues that children who have been abused, abandoned, or neglected are dependent on the court to make such a finding since they have been mistreated and because such a finding is required to qualify for SIJ status.

It is also important to note that the BBA has previously considered this issue.  In 2014, the BBA Council approved a bill, entitled “An Act relative to abused, abandoned, or neglected immigrant juveniles,” which would have statutorily extended Probate and Family Court jurisdiction to this discrete group of individuals.  The BBA’s Immigration Committee was the force behind this action, and current Co-Chairs Iris Gomez and Prasant Desai, along with former Co-Chair Bill Graves, were a great help in vetting the current case.

Thus, the brief here was a means to the same end, and footnote 15 on pages 43-44 of the brief addresses the interplay of the case and legislation.  It notes that the Legislature is currently considering this session’s refiled versions of those bills (H1418/S740 – currently before the Joint Committee on the Judiciary) and argues that the fact that there are proposed bills pending “is not determinative of whether the court has equity jurisdiction without legislative action.  In light of inconsistent positions held by lower court judges, both routes have been pursued to ensure that these vulnerable youth have the access to the courts they desperately need.”

On Thursday, November 5, the SJC heard oral argument on the case.  The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on case law where the Probate and Family Court exercised equity jurisdiction under very different factual circumstances.  They also referenced our amicus brief.  Justice Hines explains at about the 12 minute mark that she found the brief “extremely helpful” and noted that she felt the brief clarified the dependency issue.  The Justices also asked about the pending legislation, and we hope that the explanation provided in the amicus brief and spelled out above helped them see the necessity of their action in this case.

As it turned out, on Monday, November 9, the SJC released their order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant may have time to apply for SIJ status before her 21st birthday.  We applaud the SJC for their work on this case, first taking it up sua sponte, and then handling it in such an expedited manner in order to assure justice for an individual in need and clarify the law for a small class of dependent youths.  We would also like to thank former BBA President Mary Ryan, and Cynthia Guizzetti, Nutter McClennen & Fish, LLP, and their team for drafting the brief and working with us to facilitate our participation.

In all, the BBA was proud to be involved with this case and couldn’t be more pleased with the outcome.  We look forward to keeping you up to date on all the fine work of our Amicus Committee as they continue to review and consider cases locally and nationally.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association