Special Immigrant Juvenile Petitions

Federal RegisterMar 8, 2022

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 204, 205, and 245

[CIS No. 2474-09; DHS Docket No. USCIS-2009-0004]

RIN 1615-AB81

Special Immigrant Juvenile Petitions

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations governing the requirements and procedures for juveniles seeking classification as a Special Immigrant Juvenile (SIJ) and related adjustment of status to lawful permanent resident (LPR). This rule codifies statutorily mandated changes and clarifies the following: the definitions of key terms, such as “juvenile court” and “judicial determination”; what constitutes a qualifying juvenile court order for SIJ purposes; what constitutes a qualifying parental reunification determination; DHS's consent function; and applicable bars to adjustment, inadmissibility grounds, and waivers for SIJ-based adjustment to LPR status. This rule also removes bases for automatic revocation that are inconsistent with the statutory requirements of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008) and makes other technical and procedural changes. DHS is issuing this rule to update the regulations as required by law, further align SIJ classification with the statutory purpose of providing humanitarian protection to eligible child survivors of parental abuse, abandonment, or neglect, and clarify the SIJ regulations.

DATES:

This final rule is effective April 7, 2022.

FOR FURTHER INFORMATION CONTACT:

Rená Cutlip-Mason, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Dr., Camp Springs, MD 20529-2140; or by phone at 240-721-3000. (This is not a toll-free number).

Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

C. Summary of the Proposed Rule

D. Summary of Changes From the NPRM to the Final Rule Provisions

1. Section Heading

(a) Special Immigrant Juvenile (SIJ) Classification

2. Definitions

(a) Definitions of “State” and “United States”

(b) Definitions of “Juvenile Court” and “Judicial Determination”

3. Eligibility Requirements for Classification as an SIJ

(a) Eligibility Requirements That Must Be Met at the Time of Filing and Adjudication

4. Juvenile Court Order(s)

(a) Dependency or Custody

(b) Qualifying Parental Reunification Determination

(d) Juvenile Court Order Validity

5. Petition Requirements

(a) Evidence of Age

(b) Similar Basis

(d) U.S. Department of Health and Human Services (HHS) Consent

6. No Contact

(a) Clarification of No Contact Provision

7. Interview

(a) Ability of Trusted Adult, Attorney, or Representative To Provide a Statement

(b) Presence of Attorney or Accredited Representative at the Interview

8. Time for Adjudication

(a) Clarification Regarding Adjudication Processing Timeframes

(b) Impact of Requests for Evidence for Adjustment of Status Applications on Processing Timeframes

9. No Parental Immigration Benefits Based on SIJ Classification

(a) Application of Prohibition to All of Petitioner's Natural and Prior Adoptive Parents

10. Revocation

(a) Moved Provisions on Automatic Revocation from 8 CFR 205.1(a)(3)(iv) to 8 CFR 204.11(j)(1)

(b) Changes to the Grounds for Automatic Revocation

(d) Revocation on Notice

11. Eligibility for Adjustment of Status

(a) Requirements for SIJ-Based Adjustment of Status

(b) Bars to Adjustment, Inadmissibility, and Waivers

(d) No Contact

E. Summary of Costs and Benefits

II. Background

A. Special Immigrant Juvenile (SIJ) Classification

B. Final Rule

III. Response to Public Comments on Proposed Rule

A. Summary of Public Comments

B. General and Preliminary Matters

1. General Support for the Proposed Rule

2. General Opposition to the Proposed Rule

3. Decision

(a) Decision Section and Notification of Appeal Rights

4. Section Heading

5. Terminology

6. Organization

7. Effective Date

8. Regulatory Comments

9. Miscellaneous

C. Definitions

1. “State”

2. “Juvenile Court”

D. Eligibility Requirements for Classification as a Special Immigrant Juvenile

1. Under 21 Years of Age

2. Unmarried

3. Physical Presence in the United States

4. Juvenile Court Order Determinations

(a) Dependency or Custody

(b) Parental Reunification Determination

5. Qualifying Juvenile Court Orders

(a) Validity at Time of Filing and Adjudication

(b) Exceptions to the Requirement That a Juvenile Court Order Be Valid at the Time of Filing and Adjudication

E. Evidence

1. Petition Requirements

2. Age

3. Similar Basis

4. Evidentiary Requirements for DHS Consent

(a) Background and Legal Interpretation of DHS Consent

(b) Roles of the Juvenile Court and DHS in Determining Eligibility

(d) DHS Consent Process and Procedures

(e) Burden on the Petitioner

(f) Privacy Concerns

(g) Consent Standards

(h) Consent and Role of the Child's Parent

5. HHS Consent

F. Petition Process

1. Required Evidence

2. No Contact

3. Interview

4. SIJ Petition Decision Timeframe Requirement

5. Decision

G. No Parental Immigration Benefits Based on Special Immigrant Juvenile Classification

H. Revocation

1. Revocation Based on Reunification With a Parent

2. Implementation of Changes to the Revocation Grounds

I. Adjustment of Status to Lawful Permanent Resident (Adjustment of Status)

1. Eligibility

2. Inadmissibility

3. No Parental Immigration Rights Based on SIJ Classification

4. No Contact

5. Other Comments Related to Adjustment of Status

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

1. Background and Summary

2. Provisions of the Rule and Impacts

(a) Requirements at Time of Filing and Adjudication

(b) DHS Consent

(d) Dependency or Custody

(e) HHS Specific Consent

(f) Petition Requirements

(g) Inadmissibility

(h) Interviews

(i) No Parental Immigration Rights

(j) No Contact

(k) Marriage as a Ground for Automatic Revocation

(l) Timeframe for Decisions

(m) Special Immigrant Juvenile Petition Filing and Adjudication Process

3. Costs and Benefits of the Final Rule

(a) Costs and Benefits of the Final Rule Relative to a Statutory Baseline

(b) Costs and Benefits of the Final Rule Relative to No Action Baseline

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Executive Order 13132 (Federalism)

G. Executive Order 12988 (Civil Justice Reform)

H. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

I. Family Assessment

J. National Environmental Policy Act

K. Paperwork Reduction Act

VI. List of Subjects and Regulatory Amendments

I. Executive Summary

A. Purpose of the Regulatory Action

DHS is amending its regulations governing the SIJ classification and related applications for adjustment of status to LPR (submitted on U.S. Citizenship and Immigration Services (USCIS) Form I-485, Application to Register Permanent Residence or Adjust Status), hereafter “adjustment of status.” Specifically, this rule revises DHS regulations at 8 CFR 204.11, 205.1, and 245.1 to reflect statutory changes, modify certain provisions, codify existing policies, and clarify eligibility requirements.

B. Legal Authority

The Immigration and Nationality Act (INA), as amended, permits the Secretary of Homeland Security (Secretary) to classify as an SIJ

a noncitizen whom a juvenile court located in the United States has declared to be dependent on the juvenile court, or whom the juvenile 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.

See

INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). The juvenile court must determine that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.

Id.

In addition, it must be determined in administrative or judicial proceedings that it would not be in the petitioner's best interest to be returned to the country of nationality or last habitual residence of the petitioner or of their parent(s).

See

INA section 101(a)(27)(J)(ii), 8 U.S.C. 1101(a)(27)(J)(ii). Finally, the Secretary, through USCIS, must consent to SIJ classification.

See

INA section 101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii). The timeframe for adjudicating SIJ petitions is 180 days.

See

TVPRA 2008 section 235(d)(2), 8 U.S.C. 1232(d)(2).

The Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978 (Nov. 29, 1990), added the SIJ classification. Congress has amended the eligibility criteria for SIJ classification several times, as noted in Table 1.

Upon classification as an SIJ, a noncitizen may be immediately eligible to apply for adjustment of status to LPR, if a visa number is available.

See

INA section 245(h), 8 U.S.C. 1255(h). Certain grounds of inadmissibility that would ordinarily prevent adjustment of status do not apply to those with SIJ classification.

See

INA section 245(h), 8 U.S.C. 1255(h). The Secretary also may waive certain grounds of inadmissibility for those with SIJ classification.

Id.

The provisions to adjust status under INA section 245(h) were added by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Public Law 102-232, 105 Stat. 1733 (Dec. 12, 1991).

DHS is prohibited from compelling SIJ petitioners or applicants for related adjustment of status to contact an alleged abuser, or family member of the alleged abuser, during the petition or application process.

See

INA section 287(h), 8 U.S.C. 1357(h).

The protection at INA section 287(h) for a petitioner seeking SIJ classification from being compelled to contact an alleged abuser, or the abuser's family member, was added by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006).

The following table summarizes the statutory amendments implemented in this final rule:

Table 1—Summary of Statutory Amendments to SIJ Classification

Legislation

Amendment

The Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994)

• Expanded the group of people eligible for SIJ classification to include those a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State.

The Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (CJS 1998 Appropriations Act), Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997)

• Required that dependency, commitment, or placement be due to abuse, neglect, or abandonment.

• Added consent functions of the Attorney General (later changed to the Secretary) of “express consent” to the dependency order as a precondition to the grant of SIJ and “specific consent” to juvenile court jurisdiction to determine custody or placement of a person in the actual or constructive custody of the federal government (later modified by TVPRA 2008).

The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006)

• Protected a petitioner seeking SIJ classification by prohibiting DHS from compelling them to contact an alleged abuser, or family member of an alleged abuser.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457, 112 Stat. 5044 (Dec. 23, 2008)

• Created the requirement that a petitioner's reunification with one or both parents not be viable due to abuse, neglect, abandonment, or a similar basis under State law (replaced a previous requirement to have “been deemed eligible . . . for long-term foster care”).

• Expanded the group of people eligible for SIJ classification to include those placed by a juvenile court with an individual or entity.

• Modified the consent requirements so that DHS consent is to the grant of SIJ classification and vested the former “specific consent” function with HHS.

• Provided age-out protection so that USCIS cannot deny SIJ classification if someone was under 21 years of age when the petition was filed.

• Created a statutory timeframe of 180 days to adjudicate SIJ petitions.

• Exempted SIJs from additional grounds of inadmissibility in relation to an application for adjustment of status.

C. Summary of the Proposed Rule

On September 6, 2011, DHS published a proposed rule in the

Federal Register

, proposing to amend the regulations governing the SIJ classification and related applications for adjustment of status to incorporate major statutory changes to the program.

See

Proposed rule;

Special Immigrant Juvenile Petitions,

76 FR 54978 (Sept. 6, 2011) (“proposed rule”). The proposed rule explained the changes that DHS was considering, including procedural requirements, and that DHS would ultimately finalize the regulatory changes through the rulemaking process.

Specifically, the proposed rule sought to revise DHS regulations at 8 CFR 204.11, 205.1, and 245.1 to:

• Implement statutorily mandated changes by revising the existing eligibility requirements under the following statutes:

○ Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994);

○ Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (CJS 1998 Appropriations Act), Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997);

○ Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); and

○ William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008).

• Clarify the use of the term “dependent” as used in section 101(a)(27)(J)(i) of INA, 8 U.S.C. 1101(a)(27)(J)(i), including that such dependency, commitment, or custody must be in effect when a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) is filed and must continue through the time of adjudication, unless the age of the petitioner prevents such continuation.

• Clarify that the viability of parental reunification with one or both of the child's parents due to abuse, neglect, or abandonment, or a similar basis under State law must be determined by the juvenile court based on applicable State law.

• Clarify that DHS consent to the grant of SIJ classification is warranted only when the petitioner demonstrates that the State juvenile court determinations were sought primarily for the purpose of obtaining relief from abuse, neglect, abandonment or a similar basis under State law and not primarily for the purpose of obtaining lawful immigration status; and that the evidence otherwise demonstrates that there is a bona fide basis for granting SIJ classification.

• Clarify that USCIS may seek or consider additional evidence if the evidence presented is not sufficient to establish a reasonable basis for DHS's consent determination.

• Remove automatic revocation under 8 CFR 205.1(a)(3)(iv)(A) and (C) to the extent that they pertain to a juvenile's age and are inconsistent with age-out protections under TVPRA 2008.

• Implement statutory revisions exempting SIJ adjustment-of-status applicants from four additional grounds of inadmissibility and clarify grounds of inadmissibility that cannot be waived.

• Improve the application process by clearly listing required evidence that must accompany Form I-360 and amend what constitutes supporting documentation; and

• Make technical and procedural changes; and conform terminology.

DHS reopened the comment period on October 16, 2019, for 30 days but did not modify these proposals. Special Immigrant Juvenile Petitions, 84 FR 55250 (Oct. 16, 2019). Hereafter, DHS refers to the 2011 proposed rule and reopened comment period collectively as the notice of proposed rulemaking (NPRM).

D. Summary of Changes From the NPRM to the Final Rule Provisions

Following careful consideration of public comments received and relevant data provided by stakeholders, DHS has made several changes from the NPRM. DHS responds to each substantive public comment in detail later in this preamble and explains why it is adopting or declining the change suggested by the commenters. DHS is making the following changes from the proposed rule in this final rule:

1. Section Heading

(a) Special Immigrant Juvenile (SIJ) Classification

The preamble in the NPRM explained that DHS used the term “dependency” in the proposed rule as encompassing dependency, commitment, or custody. 76 FR 54979. Consistent with this definition, DHS styled the section heading for proposed 8 CFR 204.11 as “Special immigrant classification for certain aliens declared dependent on a juvenile court (Special Immigrant Juvenile).” Commenters wrote that this section heading was misleading and requested that it be amended to reflect the statutory language at INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). As explained previously, the statute permits USCIS to grant SIJ classification to a noncitizen whom a juvenile court has declared to be dependent on the juvenile court,

whom the juvenile court has legally committed to or placed under the custody of an agency or department of a State, individual, or entity. In response to these comments, DHS has simplified and amended the section heading of the regulation in the final rule to “Special immigrant juvenile classification.”

See

new 8 CFR 204.11.

2. Definitions

(a) Definitions of “State” and “United States”

In order to establish eligibility for SIJ classification, a petitioner must submit qualifying juvenile court order(s) issued under State law. DHS proposed the definition of “State” in the NPRM as including an Indian tribe, tribal organization, or tribal consortium operating a program under a plan approved under 42 U.S.C. 671.

See

proposed 8 CFR 204.11(a), 76 FR 54985. After reviewing the public comments, DHS has amended the definition of “State” by also incorporating the

definition from INA section 101(a)(36), 8 U.S.C. 1101(a)(36), as including the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. In response to comments, the final rule clarifies that the term “United States” also means the definition from INA section 101(a)(38), 8 U.S.C. 1101(a)(38), as the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. New 8 CFR 204.11(a).

(b) Definitions of “Juvenile Court” and “Judicial Determination”

DHS proposed retaining the definition of “juvenile court” from the previous regulation, which defines “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.” DHS received numerous comments suggesting that the term “juvenile court” should be modified to align with INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), which prescribes eligibility for SIJ classification based on a juvenile court's dependency or custody determination. DHS agrees that defining the term “juvenile court” to mirror the language of the statute would be clearer. The definition of “juvenile court” in the final rule is “a court located in the United States that has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles.” New 8 CFR 204.11(a). DHS has incorporated the definition for the term “judicial determination” as “a conclusion of law made by a juvenile court” into the final rule for further clarity.

Id.

Commenters requested further clarity on the definition of the term “petitioner” because either a juvenile (the self-petitioner) or a person acting on the juvenile's behalf can file an SIJ petition via Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. The proposed regulatory text for petition procedures states that “[t]he alien, or an adult acting on the alien's behalf, may file the petition for special immigrant juvenile classification.” Proposed 8 CFR 204.11(d), 76 FR 54985. This language, however, did not clarify which individual DHS would consider as the petitioner—a noncitizen, or an individual acting on the noncitizen's behalf. DHS has therefore amended the final rule to include in its definition section the term “petitioner” as “the noncitizen seeking special immigrant juvenile classification,” and the term “petition” as “the form designated by USCIS to request classification as a special immigrant juvenile and the act of filing the request.” DHS also has renamed the “Petition procedures” paragraph heading at proposed 8 CFR 204.11(d) to “Petition requirements” in the final rule, and modified paragraph (d)(1) to require “[a] petition by or on behalf of a juvenile, filed on the form prescribed by USCIS in accordance with the form instructions.” New 8 CFR 204.11(d).

3. Eligibility Requirements for Classification as an SIJ

(a) Eligibility Requirements That Must Be Met at the Time of Filing and Adjudication

DHS proposed that a petitioner must be under 21 years of age at the time of filing and subject to a dependency or custody order that is in effect at the time of filing and continues through the time of adjudication.

See

proposed 8 CFR 204.11(b), 76 FR 54985. The preamble to the NPRM stated that the proposed rule would continue to apply the requirement in 8 CFR 103.2(b) that an applicant or petitioner must establish that they are eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication to the requirement that a juvenile remain unmarried both at the time of filing the SIJ petition and adjudication. DHS did not specifically include this requirement for SIJ eligibility in the proposed regulatory text because 8 CFR 103.2(b) applies to eligibility for SIJ classification as it does to all USCIS benefit requests. Nevertheless, DHS has clarified the regulatory text in the final rule by providing that a petitioner must remain unmarried at the time of filing through adjudication of the SIJ petition.

See

new 8 CFR 204.11(b)(2).

4. Juvenile Court Order(s)

(a) Dependency or Custody

The proposed rule discussed custody, commitment, and dependency.

See

proposed 8 CFR 204.11(b)(1)(iv), 76 FR 54985. DHS interprets custody to encompass commitment. Therefore, it is unnecessary and redundant to use the term “commitment” also, and in the final rule, DHS exclusively uses the terms “dependency” and “custody.”

See

new 8 CFR 204.11(c).

(b) Qualifying Parental Reunification Determination

The eligibility provisions of the proposed rule required that a petitioner be the subject of a State juvenile court determination, under applicable State law, and that reunification with one or both parents not be viable due to abuse, neglect, abandonment, or a similar basis under State law.

See

proposed 8 CFR 204.11(b), 76 FR 54985. DHS received several comments requesting that DHS clarify that termination of parental rights is not a prerequisite for a qualifying determination on the viability of parental reunification. In response to those comments, DHS has amended the final rule to clarify that “[t]he court is not required to terminate parental rights to determine that parental reunification is not viable.”

See

new 8 CFR 204.11(c)(1)(ii).

DHS has long interpreted that the best interest determination is not a repatriation determination made by a Federal entity with authority over immigration determinations, but rather is a determination by a State court or administrative body regarding the best interest of the child.

See

Immigration and Naturalization Service (INS),

Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court; Revocation of Approval of Petitions; Bona Fide Marriage Exemption to Marriage Fraud Amendments; Adjustment of Status,

Final Rule, 58 FR 42843, 42848 (Aug. 12, 1993) (“the Service believes that the decision regarding the best interest of the beneficiary should be made by the juvenile court or the social service agency officials recognized by the juvenile court, not by the immigration judge or other immigration officials”). To further clarify this interpretation, and in response to comments, DHS added the following language for best interest determinations: “Nothing in this part should be construed as altering the standards for best interest determinations that juvenile court judges routinely apply under relevant State law.” New 8 CFR 204.11(c)(2)(ii).

(d) Juvenile Court Order Validity

DHS proposed an exception to the requirement that the juvenile court order be in effect at the time of filing and continue through the time of adjudication. This exception allows a petitioner to remain eligible for SIJ classification if the juvenile court order is no longer valid after filing because “the age of the petitioner prevents such continuation.”

See

proposed 8 CFR

204.11(b)(1)(iv), 76 FR 54985. Following the publication of the proposed rule in 2011, the government entered into a “Stipulation Settling a Motion for Class-Wide Enforcement” of the 2010 settlement agreement in

Perez-Olano, et al.

Holder, et al.

(

Perez-Olano

Settlement Agreement). That stipulation contains a provision that a petitioner whose juvenile court order terminated solely due to age

prior

to filing the SIJ petition remains eligible.

Perez-Olano, et al.

Holder, et al.,

Case No. CV 05-3604 (C.D. Cal. 2015) (emphasis added). Following this Stipulation, and in response to public comments which DHS agrees reflect a legally permissible interpretation of the statute, DHS has incorporated into the final rule an exception to the requirement that the juvenile court order be valid at the time of filing and adjudication for petitioners who, because of their age, no longer have a valid juvenile court order either prior to or subsequent to filing the SIJ petition.

See

new 8 CFR 204.11(c)(3)(ii)(B). Additionally, DHS has included another exception in response to public comments that allows petitioners to remain eligible for SIJ classification if juvenile court jurisdiction terminated because adoption, placement in permanent guardianship, or another type of child welfare permanency goal (other than reunification with the parent or parents with whom the court previously found that reunification was not viable) was reached.

See

new 8 CFR 204.11(c)(3)(ii)(A).

5. Petition Requirements

(a) Evidence of Age

In the preamble to the NPRM, DHS listed the types of documents that could be accepted as evidence of a petitioner's age, including a birth certificate, passport, official foreign identity document issued by a foreign government, or other document that, in the discretion of USCIS, establishes the petitioner's age. 76 FR 54982. In response to numerous public comments requesting that DHS allow a petitioner to submit secondary evidence or affidavits as prescribed in 8 CFR 103.2(b)(2), DHS has added both the list of documents included in the NPRM preamble and that secondary evidence or affidavits may be submitted to the final rule.

See

new 8 CFR 204.11(d)(2).

(b) Similar Basis

In the preamble to the proposed rule, DHS explained that “[i]f a juvenile court order includes a finding that reunification with one or both parents is not viable under State law [due to a similar basis], the petitioner must establish that this State law basis is similar to a finding of abuse, neglect, or abandonment.” 76 FR 54981. The preamble further stated that “[t]he nature and elements of the State law must be similar to the nature and elements of abuse, abandonment, or neglect.”

Id.

DHS received numerous comments requesting further clarification and expressing concern that such a requirement of equivalency could result in ineligibility determinations for vulnerable children found by a juvenile court to be subjected to parental maltreatment. In response to these comments, DHS provides in the final rule that the petitioner can provide evidence of a similar basis through the juvenile court's determination as to how the basis is legally similar to abuse, neglect, or abandonment under State law; or other relevant evidence that establishes the juvenile court made a judicial determination that the legal basis is similar to abuse, neglect, or abandonment under State law. New 8 CFR 204.11(d)(4).

DHS received numerous comments disagreeing with the interpretation of the consent function in the NPRM, with some commenters expressing concern that it impermissibly allows USCIS adjudicators to look behind the court's order. Other commenters disagreed that the consent determination included a discretionary element. The NPRM proposed that in determining whether USCIS would consent to the grant of SIJ classification, “USCIS will consider, among other permissible discretionary factors, whether the alien has established, based on the evidence of record, that the State court order was sought primarily to obtain relief from abuse, neglect, abandonment, or a similar basis under State law and not primarily for the purpose of obtaining lawful immigration status . . . .” Proposed 8 CFR 204.11(c)(1)(i), 76 FR 54985. The NPRM also proposed that the “petitioner has the burden of proof to show that discretion should be exercised in his or her favor.” Proposed 8 CFR 204.11(c)(1)(ii), 76 FR 54985. In response to comments, DHS made two key revisions to the consent provision in the final rule. First, DHS removed reference to consent as a discretionary function and clarified that the request for SIJ classification “must be bona fide.” New 8 CFR 204.11(b)(5). Second, in recognition that petitioners can have dual or mixed motivations for seeking the juvenile court's determinations, DHS modified the consent provision to require the petitioner “to establish that

a primary reason

the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.”

Id.

(emphasis added).

Additionally, DHS proposed in the NPRM that a dependency or custody order and specific findings of fact were examples of evidence USCIS would consider in determining whether USCIS' consent is warranted.

See

proposed 8 CFR 204.11(d)(3), 76 FR 54985. In response to public comments requesting clarification of the evidence DHS will consider in its consent determination, the final rule provides that a petitioner must submit the court-ordered or recognized relief from parental abuse, neglect, abandonment, or a similar basis under State law granted by the juvenile court as well as the factual basis for the juvenile court's determinations. New 8 CFR 204.11(d)(5)(i) and (ii). The final rule also clarifies that “USCIS may withhold consent if evidence materially conflicts with the eligibility requirements [for SIJ classification] . . . such that the record reflects that the request for SIJ classification was not bona fide.” New 8 CFR 204.11(b)(5).

(d) U.S. Department of Health and Human Services (HHS) Consent

DHS proposed that HHS consent is required only if the juvenile court determines or alters the child's custody status or placement. Proposed 8 CFR 204.11(c)(2), 76 FR 54985 (using language from

Perez-Olano, et al.

Holder, et al.,

Case No. CV 05-3604 (C.D. Cal. 2010)). In response to public comments requesting clarification on when HHS consent is required, DHS has clarified in the final rule to more accurately reflect the limited circumstances under which USCIS requires evidence of HHS consent as discussed at paragraphs 7 and 17 of the

Perez-Olano

Settlement Agreement. New 8 CFR 204.11(d)(6). The Settlement Agreement clarifies that the HHS consent requirement is limited to where the juvenile court is changing the custodial placement of a petitioner in HHS custody.

See Perez-Olano, et al.

Holder, et al.,

Case No. CV 05-3604 at ¶ 7 and 17 (C.D. Cal. 2010). Therefore, the final rule provides that HHS consent is required only if the juvenile court alters the child's custody status or placement. New 8 CFR 204.11(d)(6)(ii).

6. No Contact

(a) Clarification of No Contact Provision

DHS proposed to codify the statutory requirement at section 287(h) of the INA, 8 U.S.C. 1357(h), that prohibits DHS from requiring that the petitioner

contact their alleged abuser at any stage of the SIJ petition process. One commenter recommended that DHS modify the regulatory text to more closely track the language at INA section 287(h), 8 U.S.C. 1357(h), which also includes individuals who battered, neglected, or abandoned the child as individuals that petitioners cannot be compelled to contact by DHS in relation to their SIJ matter. DHS agrees with this commenter and has incorporated language at new 8 CFR 204.11(e) more closely tracking the statutory language. In addition, for alignment with INA section 101(a)(27)(J)(i) regarding the eligibility requirement that reunification not be viable with a petitioner's parent(s) due to “abuse, neglect, abandonment, or a similar basis found under State law,” DHS is including the term “abused” at new 8 CFR 204.11(e).

7. Interview

(a) Ability of Trusted Adult, Attorney, or Representative To Provide a Statement

DHS proposed to permit a trusted adult, attorney, or representative to provide a statement at the petitioner's interview for SIJ classification. Proposed 8 CFR 204.11(e)(2), 76 FR 54986. However, commenters opposed this provision due to concerns that it would violate due process protections for the petitioner. Therefore, DHS has removed this provision from the final rule. The change was made to limit the ability of a non-attorney or representative to make a statement that could impact the outcome of a case given commenters' concerns that a “trusted adult” may not have the consent of the child to participate in the child's case and is not subject to any ethical rules or disciplinary action should they engage in misconduct. DHS does not, however, seek to inhibit the petitioner's representation by their attorney or representative, and as further addressed later in this preamble, an attorney or accredited representative is still permitted to provide a statement. DHS, has also retained the provision that the petitioner may be accompanied by a trusted adult at the interview.

See

new 8 CFR 204.11(f).

(b) Presence of Attorney or Accredited Representative at the Interview

DHS proposed that: “USCIS, in its discretion, may place reasonable limits on the number of persons who may be present at the interview.” Proposed 8 CFR 204.11(e)(1), 76 FR 54986. A number of commenters expressed concern with this provision and viewed this language as permitting USCIS to interview a child alone without their attorney or accredited representative. DHS did not intend to limit a petitioner's right to have their attorney or accredited representative present, and DHS has modified the final regulatory text for clarity, adding that although USCIS may limit the number of persons present at the interview, “the petitioner's attorney or accredited representative of record may be present.” New 8 CFR 204.11(f). This is consistent with the right to representation as codified at 8 CFR 103.2(a)(3) and 292.5(b).

8. Time for Adjudication

(a) Clarification Regarding Adjudication Processing Timeframes

DHS proposed codifying the statutory 180-day timeframe on USCIS decisions and proposed when the period would start and stop.

See

8 U.S.C. 1232(d)(2); proposed 8 CFR 204.11(h), 76 FR 54986. Several commenters asked DHS to reconsider whether temporarily pausing or restarting the 180-day period is legally permissible. These comments reflect some level of confusion regarding the proposed requirements for the 180-day timeframe, as DHS did not intend to indicate that it would be applying a different standard with regard to the impact on required processing times for SIJ petitioners versus petitioners for all other immigration benefits. As explained in the NPRM, the 180-day benchmark would take “into account general USCIS regulations pertaining to receipting of petitions, evidence and processing, and assuming the completeness of the petition and supporting evidence.”

See

proposed 8 CFR 204.11(h), 76 FR 54983. To alleviate confusion, DHS has incorporated into the final rule a reference to the regulations at 8 CFR 103.2(b)(10)(i) regarding how requests for additional or initial evidence or to reschedule an interview affect the time period imposed for processing, along with clarifying that the 180-day period does not begin until USCIS has received all required initial evidence as listed at new 8 CFR 204.11(d).

See

new 8 CFR 204.11(g)(1).

(b) Impact of Requests for Evidence for Adjustment of Status Applications on Processing Timeframes

In response to a number of comments, DHS is clarifying the impact of requests for evidence (RFEs) for adjustment of status applications on the 180-day timeframe for adjudication of the SIJ petition. New 8 CFR 204.11(g)(2). DHS agrees with commenters that where a petition for SIJ classification and an application for related adjustment of status are pending simultaneously, an RFE that relates only to the application for adjustment should not pause the 180-day clock for adjudication of the SIJ petition. The 180-day period relates only to the adjudication of the SIJ petition; therefore, RFEs, notices of intent to deny (NOIDs), or other requests unrelated to the SIJ petition itself do not impact the 180-day timeframe.

Id.

9. No Parental Immigration Benefits Based on SIJ Classification

(a) Application of Prohibition to All of Petitioner's Natural and Prior Adoptive Parents

DHS proposed that natural or prior adoptive parents of the individual seeking or granted SIJ classification cannot be accorded any right, privilege, or status under the INA by virtue of their parentage. Proposed 8 CFR 204.11(g), 76 FR 54986. Several commenters asked DHS to revisit its interpretation that the INA prohibits any parent, including a non-abusive parent, from gaining lawful status through the individual granted SIJ classification. In response, DHS notes that the statutory language is clear that “no natural parent or prior adoptive parent of any alien provided special immigrant juvenile status . . . shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.” INA section 101(a)(27)(J)(iii)(II), 8 U.S.C. 1101(a)(27)(J)(iii)(II). The statute accords no preference to a parent who did not participate in the abuse or neglect. DHS has clarified the final rule by providing that the “prohibition applies to all of the petitioner's natural and prior adoptive parent(s).” New 8 CFR 204.11(i).

10. Revocation

(a) Moved Provisions on Automatic Revocation From 8 CFR 205.1(a)(3)(iv) to 8 CFR 204.11(j)(1)

DHS proposed to codify an automatic revocation provision for SIJ classification at 8 CFR 205.1, which contains the provisions for automatic revocation of immigration benefits generally. In the final rule, DHS has incorporated the revocation provisions for SIJ classification at 8 CFR 204.11, where the rest of the regulations governing SIJ petitions are located, for ease of reference and to retain all regulations pertaining to SIJ petitions in the same location. To minimize confusion, DHS has revised 8 CFR 205.1(a)(3)(iv) to provide that the automatic revocation provisions for SIJ classification are at 8 CFR 204.11(j)(1).

(b) Changes to the Grounds for Automatic Revocation

DHS proposed removal of the automatic revocation grounds that relate to a SIJ beneficiary's age for consistency with TVPRA 2008 section 235(d)(6), the “Transition Rule” provision, which provides that DHS cannot deny SIJ classification based on age if the noncitizen was a child on the date on which the noncitizen filed the petition. DHS also proposed revising the revocation ground based on a termination of the SIJ beneficiary's eligibility for long-term foster care as this is no longer a requirement under INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). Proposed 8 CFR 205.1(a)(3)(iv)(A),(B),(C), 76 FR 54986. In the final rule, DHS has incorporated these modifications to the bases for automatic revocation. New 8 CFR 204.11(j)(i),(ii). In response to public comments, DHS also has removed marriage of the SIJ beneficiary as a basis for automatic revocation, amending its prior interpretation of INA 245(h).

DHS added to the final rule clarifying language regarding revocation on notice and automatic revocation. New 8 CFR 204.11(j)(1) and 205.1(a)(3)(iv). This language provides information about automatic revocation of SIJ petitions by incorporating by reference the general automatic revocation provisions at 8 CFR 205.1.

(d) Revocation on Notice

DHS did not propose changes to revocation upon notice in the NPRM. However, for maximum clarity, DHS has added language that USCIS may revoke an approved SIJ petition upon notice at new 8 CFR 204.11(j)(2), incorporating by reference the general provisions for revocation on notice at 8 CFR 205.2. As beneficiaries of SIJ classification have always been subject to the provisions for revocation on notice at 8 CFR 205.2, this is a technical change to have all revocation provisions for SIJs in 8 CFR 204.11.

11. Eligibility for Adjustment of Status

(a) Requirements for SIJ-Based Adjustment of Status

In response to comments, DHS has revised 8 CFR 245.1(e)(3) to provide separate standards for SIJ-based adjustment of status. DHS also has added new 8 CFR 245.1(e)(3)(i) to clarify that a noncitizen who has been granted SIJ classification will be deemed paroled into the United States for the limited purpose of meeting one of the eligibility requirements for SIJ-based adjustment of status.

(b) Bars to Adjustment, Inadmissibility, and Waivers

DHS received many public comments regarding the proposal that only certain grounds of inadmissibility could be waived for humanitarian purposes, family unity, or when it is otherwise in the public interest under INA section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), and that the grounds not listed under this statutory provision are unwaivable for SIJ adjustment applicants.

See

76 FR 54983. Commenters disagreed with this interpretation and wrote that pursuant to INA section 212, 8 U.S.C. 1182, an applicant classified as an SIJ may apply for a waiver for any applicable ground of inadmissibility for which a waiver is available. The commenters stated that while certain grounds of inadmissibility cannot be waived under INA section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), they can be waived under other waiver provisions of the INA, such as INA section 212(h). In response to these comments, in the final rule DHS has modified its interpretation of INA section 245(h)(2)(B) and now clarifies that nothing in the final rule should be construed to bar an applicant classified as an SIJ from a waiver for which the applicant may be eligible pursuant to INA section 212.

DHS has also modified 8 CFR 245.1(e)(3) to expand when a waiver at INA section 245(h)(2)(B) is available for inadmissibility under section 212(a)(2) based on the “simple possession exception.” DHS had proposed in the NPRM that a waiver is available for inadmissibility under INA section 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) (controlled substance traffickers), if the offense is related to a single offense of simple possession of 30 grams or less of marijuana.

See

proposed 8 CFR 245.1(e)(3), 76 FR 54983, 54986. The simple possession exception was applied in the proposed rule to only INA section 212(a)(2)(C) based on a plain language reading of INA section 245(h)(2)(B), which provides that in determining an SIJ's admissibility as an immigrant:

[T]he Attorney General may waive other paragraphs of section 212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest.

In the final rule, DHS has expanded application of the simple possession exception to the grounds of inadmissibility under INA section 212(a)(2)(A), 8 U.S.C. 1182(a)(2)(A) (conviction of certain crimes), INA section 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B) (multiple criminal convictions), and INA section 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) (controlled substance traffickers).

See

new 8 CFR 245.1(e)(3)(v)(A). This modification was the result of a recent Board of Immigration Appeals decision in

Matter of Moradel,

which conducted a statutory analysis of the scope of the simple possession exception under INA section 245(h)(2)(B) and concluded that it “applies to all of the provisions listed under section 212(a)(2)” and that “Congress intended the `simple possession' exception in section 245(h)(2)(B) to be applied broadly.” 28 I&N Dec. 310, 314-315 (BIA 2021).

DHS has provided standards that relate to SIJ-based adjustment of status and incorporated them into 8 CFR 245.1(e)(3) in response to comments that the proposed rule conflated standards for SIJ classification and SIJ-based adjustment of status. For clarity, and because the prohibition on parental immigration benefits applies to SIJ petitioners and applicants for related adjustment of status, DHS has amended 8 CFR 245.1(e)(3)(vi) to add the same text used at new 8 CFR 204.11(i).

(d) No Contact

Several commenters requested that DHS extend the prohibition in INA section 287(h), 8 U.S.C. 1357(h), against USCIS compelling SIJ petitioners to contact their alleged abuser(s) to the proceedings related to SIJ-based adjustment of status. DHS agrees that it is reasonable to extend this prohibition to the adjustment of status proceedings given that adjustment of status applications may be pending concurrently with SIJ petitions. DHS has revised 8 CFR 245.1(e)(3)(vii) to incorporate the no contact provision.

E. Summary of Costs and Benefits

The provisions of the final rule subject to this regulatory impact analysis will either affect a petitioners' eligibility or directly alter the petitioning and adjudication process. DHS expects the final rule to affect the following stakeholder groups: Petitioners for SIJ; State juvenile courts and appellate courts; and the Federal Government. The population of juveniles interested in attaining SIJ

classification, adjusting status, and obtaining lawful work authorization are required to initially submit Form I-360. The cost of the final rule affects newly eligible SIJ petitioners under the no action baseline. The provisions of the final rule subject to this regulatory impact analysis are examined against two baselines: (1) The pre statutory baseline; and (2) the no action baseline. The pre statutory baseline would evaluate the clarifications in petitioners' eligibility made by TVPRA 2008. In analyzing each provision against the pre statutory baseline, DHS finds that these clarificatory changes have no quantifiable impact on eligibility. Stated alternatively, in the absence of the TVPRA 2008 provisions codified by this rule, DHS has no evidence suggesting SIJ trends would have behaved differently in the intervening years. Consequently, this analysis focuses on the no action baseline and those regulatory provisions affecting the petitioning-adjudicating process and then analyzes the historical growth of demand for and grants of SIJ classification in order to assess the benefits and costs accruing to each stakeholder.

Relative to the no action baseline, the final rule will impose costs on a group of petitioners who will now be eligible to submit Form I-601, Form I-485 and Form I-765 once they already have an approved SIJ classification. This final rule will allow SIJ beneficiaries who get married prior to applying for LPR status to remain eligible to obtain permanent residence. This rule will also allow SIJ beneficiaries who have simple possession offenses to submit Form I-601 to apply for a waiver of inadmissibility under any of the provisions listed at INA section 212(a)(2), 8 U.S.C. 1182(a)(2). DHS assumes that every petitioner who will not have their SIJ classification revoked because of marriage will file Form I-485 which will result in new costs (and benefits) to those petitioners.

The changes in this final rule will not impact Form I-360 petitioners currently applying for SIJ classification under the no action baseline, however the impacts will be discussed in the pre statutory baseline discussion. The changes in this final rule will update regulations to reflect statutory changes, modify certain provisions, codify existing policies, clarify eligibility requirements, and will not impact children applying for SIJ classification. DHS has required this additional evidence since the TVPRA 2008. Due to data limitations that preclude identification of the unrelated factors that explain the changes in the volume of petitioners observed over time, DHS is limited in its ability to assess Form I-360 data. The primary benefit of the rule to USCIS is greater consistency with statutory intent, and efficiency.

II. Background

A. Special Immigrant Juvenile (SIJ) Classification

Congress created the SIJ classification through the Immigration Act of 1990 to provide humanitarian protection for certain abused, neglected, or abandoned juveniles in the child welfare system who were eligible for long-term foster care. Through several legislative amendments, this protection evolved to include juveniles outside the foster care system. The statutory provisions for SIJ classification at INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), require a juvenile court determination that:

• The juvenile is dependent on the court, or is under the custody of a State agency or department or an individual or entity appointed by the court;

• Reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law; and

• It would not be in the juvenile's best interest to return to the juvenile's (or their parent's) country of nationality or last habitual residence.

In addition, the juvenile must be under 21 years of age and unmarried. SIJ classification may be granted only upon the consent of the Secretary of Homeland Security, through USCIS.

A petitioner who has been classified as an SIJ is eligible to apply for adjustment of status. Petitioners for SIJ classification do not have the ability to include other family members who may derive LPR status based on their status (derivatives) on their petition, nor are they ever eligible to sponsor their natural or prior adoptive parents for any immigration benefit.

The previous regulations governing SIJ classification at 8 CFR 204.11 were published in in 1993.

58 FR 42843. This rule updates the regulations as required by statutory amendments to the SIJ statute since that time and further aligns the benefit with the statutory purpose of providing humanitarian protection to eligible child survivors of parental abuse, abandonment, or neglect.

8 CFR 204.11 was amended in 2009 to eliminate reference to legacy INS in accordance with the creation of DHS. 74 FR 26937 (June 5, 2009).

B. Final Rule

DHS adopts most of the regulatory amendments proposed in the NPRM and makes key clarifying changes based on public comments. DHS explains in this rule why we are making changes or adopting the proposed regulatory amendments without change. The changes to the regulatory text are summarized previously in Section I, and they are discussed in further detail later in Section III. This final rule does not respond to comments that are general in nature or seek a change in U.S. laws, regulations, or agency policies that are unrelated to the SIJ classification or SIJ-based adjustment of status. This final rule also does not change the procedures or policies of other Federal agencies or State courts, nor does it resolve issues outside the scope of the rulemaking. All comments can be reviewed at the Federal Docket Management System at

https://www.regulations.gov,

docket number USCIS-2009-0004.

III. Response to Public Comments on Proposed Rule

A. Summary of Public Comments

On October 16, 2019, DHS reopened the comment period on the proposed rule for 30 days to provide the public with further opportunity to comment on the proposed rule. 84 FR 55250 (Oct. 16, 2019). During the initial comment period for the proposed rule, DHS received 57 public comments. DHS received an additional 77 comments on the proposed rule during the reopened comment period. In total, between the two comment periods, DHS received 134 comments.

DHS has reviewed all 134 of the public comments received and addresses them in this final rule.

Six additional comments were received but not posted on

www.regulations.gov

or considered by DHS because they were identified as being duplicate, irrelevant, or internal comments.

B. General and Preliminary Matters

1. General Support for the Proposed Rule

Comment:

Several commenters expressed general support of SIJ classification and favored finalizing the proposed rule and protecting vulnerable children in our society. Two commenters wrote that they appreciated DHS incorporating the protections and expansions from TVPRA 2008.

Response:

DHS appreciates commenters' general support for this rulemaking and for its ongoing efforts to protect vulnerable children in accordance with the text and purpose of the statute.

Comment:

Two commenters indicated that they supported the proposed rule because the clarification of certain terms and elimination of ambiguous language

aids in understanding and prevents unintended consequences in the interpretation of the regulation by the relevant authorities.

Response:

DHS appreciates commenters' support of the clarifications in this rulemaking. DHS agrees and hopes that this rule will improve adjudications and the SIJ petition and related adjustment of status application processes for SIJs by eliminating ambiguities and updating the regulation to reflect statutory changes and the statutory purpose of providing humanitarian protection to eligible child survivors of parental abuse, abandonment, or neglect.

Comment:

Several commenters expressed support for the rule but stated that they did not want the benefit to go to those who might be engaging in fraud or abuse or those who do not meet certain criteria. One commenter stated they hoped that USCIS would strictly scrutinize the background of applicants to ensure the benefit goes to those “who really need it.” Another commenter stated that they agreed with the proposed rule, but only if “the parents have abandoned the children” or there were “some sort of child abuse.”

Response:

DHS appreciates commenters' support of the rule. USCIS endeavors to screen all benefits for fraud to ensure that only those eligible receive them. The statute governing SIJ eligibility at INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), states that a petitioner may be eligible if reunification with their parent(s) is not viable due to abuse, neglect, abandonment, or a similar basis under State law. DHS cannot make changes to the rule that conflict with the statutory requirements of SIJ eligibility.

Comment:

Two commenters stated that they believe that the SIJ program is a beneficial program and advocated further “revising the law to be looser for children” and to make the immigration system as a whole looser for those without criminal records.

Response:

DHS appreciates commenters' support and has implemented the SIJ program as authorized by Congress. DHS is therefore unable to make any changes in response to these comments to the extent such changes would exceed its rulemaking authority. This rule modifies the regulations surrounding SIJs specifically, not those impacted by the immigration system without criminal records, and DHS believes the changes provide greater clarity and further align the SIJ program with the statutory purpose.

2. General Opposition to the Proposed Rule

Comment:

Several commenters opposed the proposed rule on the basis that they did not agree with the statutory SIJ classification because they viewed it as giving “amnesty” to foreign-born children or using taxpayer dollars to provide benefits for foreign born children, rather than U.S. citizen children in need.

Response:

DHS has implemented the SIJ program as authorized by Congress. DHS also notes that the costs of USCIS are generally funded by fees paid by those who file benefit requests and not by taxpayer dollars appropriated by Congress.

See

INA section 286(m), 8 U.S.C. 1356(m). DHS made no changes in response to these comments.

Comment:

One commenter said that the proposed regulations fail to meet their objective of clarifying procedural and substantive requirements for the SIJ petition by adding extraneous requirements that fall outside Congress' intention to provide protection to a vulnerable population.

Response:

DHS disagrees with the commenter and does not believe that any extraneous requirements were added beyond those imposed by Congress. DHS's intent with this rule is to amend the regulations to reflect statutory changes that have taken place since the previous regulations were published and to further align the program with the statutory purpose. With regard to the commenter's specific concerns, DHS has addressed each concern in subsequent sections of the preamble.

Comment:

A commenter wrote that the proposed rule would impermissibly restrict the due process rights of affected migrants who are minors in ways that conflict with United States obligations under international law and violate customary international law.

Response:

DHS disagrees with commenters that the rule violates international law. The commenter does not specify any provision in the proposed rule that would negatively affect an immigrant minor's due process rights. DHS knows of no changes in the rule that deny, restrict, or limit the rights of a minor to due process nor of any international laws or principles that the rule violates. Therefore, DHS is making no changes in the final rule as a result of this comment.

Comment:

One commenter, referencing the USCIS press release announcing the reopening of the comment period, stated that conclusory statements that impugn the motives of SIJ petitioners wholesale are improper, impart at minimum an appearance of bias to adjudications, and thereby increase the risk of unfounded denials of relief and attendant risk that children will be returned to harm. The commenter urges DHS to include language in the rule clarifying that adjudicators must consider any application for SIJ on its own merits, to underscore DHS's commitment to fair adjudications for all children seeking humanitarian protection.

Response:

DHS respectfully disagrees that the rule's announcement contained conclusory statements that impart a bias to adjudicators. Adjudicators evaluate each petition on its own merits, and DHS does not imply any predetermined outcomes as a result of this rule. DHS remains committed to the fair and just adjudication of all immigration benefit requests. At the same time, DHS will continue vetting all immigration benefit requests to ensure they are granted only to those who are eligible. This requires DHS to ensure that petitioners do not obtain benefits for which they are not eligible under the law.

Comment:

Several commenters said that it is inappropriate that SIJ visa numbers are assigned to the employment-based fourth preference (EB-4) visa category and wrote that visa numbers in the EB-4 category should go only to employment-based immigrants. Some commenters wrote that those with SIJ classification were taking visa numbers away from skilled workers and stated that SIJ visa numbers should be placed in a separate category. Other commenters said that for SIJ petitioners to qualify for a visa number under the EB-4 category, they should be subject to requirements for other employment-based immigrants, such as being in status at the time of applying to adjust and having a bona fide relationship to the United States.

Response:

DHS is unable to address commenters' concerns because SIJ classification is one of a number of disparate immigrant classifications that collectively are under the EB-4 category pursuant to INA section 203(b)(4), 8 U.S.C. 1153(b)(4). As the designation of SIJ visa numbers under the EB-4 category is statutory, it cannot be altered via this rulemaking.

3. Decision

(a) Decision Section and Notification of Appeal Rights

In response to public comments, DHS added to the final rule a section regarding notification of decisions and appeal rights on petitions at new 8 CFR 204.11(h). Such a section was in the previous rule at 8 CFR 204.11(e) (58 FR

42850), but it had been omitted from the NPRM because USCIS regulations at 8 CFR part 103 provide for such notifications and appeals. However, DHS has included it in the final rule to ensure full clarity for SIJ petitioners.

4. Section Heading

Comment:

Nine commenters thought that the section heading of proposed 8 CFR 204.11, “Special immigrant classification for certain aliens declared dependent on a juvenile court (Special Immigrant Juvenile),” should be changed to reflect all of the categories of individuals who may be eligible.

Response:

DHS agrees that the section heading should be amended because juvenile court dependents are only one of several categories of individuals who may be eligible under INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). DHS thinks it best to simply change the section heading to “Special immigrant juvenile classification.”

See

new 8 CFR 204.11. This section heading is much more succinct and still ensures that the section heading is inclusive of all eligible individuals.

5. Terminology

Comment:

Several commenters wrote about the use of the term “alien” in the proposed rule. While some supported the use of the term and noted that it is a legally defined term of art under the INA, others contended that use of the term encourages negative stereotyping of undocumented people. These commenters recommended that the term “alien” be removed from the regulatory text and not be used to refer to the individual seeking SIJ classification.

Response:

While the term “alien” is a legal term of art defined in the INA for immigration purposes, DHS recognizes that the term has been ascribed with a negative, dehumanizing connotation, and alternative terms, such as “noncitizen,” that reflect our commitment to treat each person the Department encounters with respect and recognition of that individual's humanity and dignity are preferred. DHS will use the term “alien” when necessary in the regulatory text as the term of art that is used in the statute, but where possible we will use the term “petitioner” to refer to those who are seeking SIJ classification, and the term “applicant” to refer to those who are seeking adjustment of status based upon classification as an SIJ.

See, e.g.,

new 8 CFR 204.11(a) and 245.1(e)(3).

Comment:

One commenter noted that DHS used both the terms “status” and “classification” in referring to SIJ and asked DHS to be clear in the use of these terms.

Response:

DHS agrees with the commenter that the rule should be consistent in the use of those terms. SIJ is a “classification”; an individual does not receive an actual “status” until they become an LPR based on the underlying SIJ classification. For clarity, DHS uses “classification” throughout this rulemaking when referring to the SIJ benefit itself.

See, e.g.,

new 8 CFR 204.11(a).

Comment:

One commenter requested that the term “juvenile” be replaced with the term “immigrant” when referring to the person seeking classification as an SIJ because the statute never refers to the “special immigrant” as a juvenile. Another commenter noted that if DHS intends that an adult filing on behalf of an individual can function as the “petitioner,” then DHS should replace the word “petitioner” with “alien” for clarity and consistency.

Response:

DHS declines to make the changes requested by the commenters. DHS uses the term “petitioner” to refer to the noncitizen seeking SIJ classification but includes in the regulatory text that another person may file on the petitioner's behalf.

See

new 8 CFR 204.11(d)(1). DHS does not make any changes in this rule to DHS regulations governing who can file a petition on behalf of a child at 8 CFR 103.2. DHS will therefore use the more appropriate term “petitioner” to refer to the person seeking SIJ classification.

6. Organization

Comment:

Several commenters thought that the way DHS organized the information in the proposed rule relating to SIJ classification and the related SIJ-based adjustment of status seemed to conflate the two standards.

Response:

DHS agrees with commenters that its proposed layout may raise confusion. In the final rule, DHS separates the requirements for SIJ-based adjustment of status into 8 CFR 245.1(e)(3), and limits 8 CFR 204.11 to requirements for SIJ classification.

7. Effective Date

Comment:

One commenter asked DHS to consider grandfathering or creating an exception for those individuals who could not file under the previous rule, especially those who could qualify only if both parents abused, neglected, or abandoned the individual.

Response:

DHS appreciates this concern; however, the change the commenter was referring to was statutory, and without clear congressional instruction to retroactively apply provisions of TVPRA 2008, DHS declines to make changes based on this comment. DHS did implement the changes in 2008, consistent with the statutory language. Any cases filed after that date did benefit from those statutory changes, though USCIS regulations did not reflect the change. DHS cannot however apply those statutory changes retroactively to petitions filed prior to passage of TVPRA 2008. DHS notes that a petitioner is required to establish eligibility at the time of filing and remain eligible through adjudication of the petition. 8 CFR 103.2(b)(1). Statutes are generally prospective only, but Congress may apply a statute retroactively if it includes clear language providing for retroactive application in the legislation. For example, Congress did so in the VAWA 2013 changes to U nonimmigrant status (victims of crime). Violence Against Women Reauthorization Act of 2013, Public Law 113-4 (Mar. 7, 2013) (VAWA 2013). In creating age-out protection providing that certain qualifying family members of U nonimmigrant petitioners must file a request before the age of 21, but may exceed that age while the request is being processed, Congress added an effective date that says the amendment “shall take effect as if enacted as part of the Victims of Trafficking and Violence Protection Act of 2000.” VAWA 2013 section 805(b). Without such clear statutory authority in TVPRA 2008, DHS will not apply its SIJ provisions retroactively.

8. Regulatory Comments

Comment:

One commenter wrote that the rule is arbitrary and capricious in violation of the Administrative Procedure Act (APA) because DHS did not provide reasoned justifications for its changes to longstanding policies.

Response:

The commenter does not indicate which changes that DHS proposed were not sufficiently explained. Nevertheless, DHS provided a detailed explanation for each of its proposed regulatory provisions governing the SIJ program.

See

76 FR 54979-54983. DHS also summarized the changes again in the comment period extension notice to refresh the public comments.

See

84 FR 55250-55251. In addition, the changes are mainly in the nature of changes to implement statutory revisions, clarifying changes, changes to improve the application process, or to make technical and procedural changes. The changes are not major departures from longstanding DHS positions, and they do not rely on factual findings that contradict those that underlay our prior policy.

Comment:

Three commenters said that the proposed rule did not conduct the regulatory analysis required under Federal law and executive orders. One commenter stated that the NPRM's assessment that there will be no economic impact is inaccurate because the rule imposes a higher standard of review for the consent analysis, which will increase costs for USCIS and slow adjudications. Additionally, this commenter stated that the prediction in the NPRM that the fee impacts on petitioners are neutral is inaccurate as filings have increased beyond those expected at the time the proposed rule was issued.

Response:

USCIS provided an economic analysis in the NPRM and is updating the analysis in this final rule.

See

76 FR 54984. The commenters correctly note that DHS stated that the fee impacts of this rule on each SIJ petitioner as well as on USCIS are neutral because USCIS estimates that filings for SIJ classification will continue at about the same volume as they have in the relatively recent past.

DHS disagrees that this rule's consent analysis will delay adjudications and increase costs for USCIS. The proposed rule also stated the fees for the forms filed by petitioners seeking SIJ classification, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-601, Application for Waiver of Ground of Inadmissibility, were not affected by the rule. This rule does not change the fees that will be paid by SIJ petitioners. As noted in the economic analysis for this final rule, the number of SIJ petitioners has increased since the proposed rule, and the fees have changed as a result of rules other than this one.

See

81 FR 73292 (Oct. 24, 2016). Generally, though, SIJ petitioners are eligible to request fee waivers for USCIS benefit requests. USCIS has provided an updated regulatory impact analysis of changes being made in this rule in Section IV.A, “Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)”.

Comment:

Several commenters stated that the proposed rule was outdated and stale because of the time that elapsed between the issuance of the NPRM in 2011 and the reopening of the comment period in 2019. Three commenters noted that the results of the review of the Office of Management and Budget (OMB) are therefore outdated and unreliable for a current assessment of the proposed rule's costs and benefits. These commenters requested that DHS withdraw the NPRM pending new review and analysis by OMB in light of current USCIS procedures and policies. Another commenter requested that USCIS update its proposal and provide a revised proposed rule in a supplemental notice of proposed rulemaking that would allow comment on a complete proposal that reflects the current state of the law.

Response:

DHS recognizes that approximately 10 years have passed since it first proposed changes to the SIJ program through rulemaking and accordingly stated that it reopened the comment period “to refresh this proposed rule and allow interested persons to provide up-to-date comments in recognition of the time that has lapsed since the initial publication of the proposed rule.” 84 FR 55251. Prior to reopening the comment period in 2019, DHS assessed the changes to the program since the rule was proposed 8 years prior and determined that it was still interested in its original proposals, and that it would reopen the comment period to account for any changes over the years, to the extent that there were any for which it previously did not account. In this final rule, DHS is responding to both the comments received on the proposed rule in 2011 and the comments received in response to the reopened comment period. DHS disagrees that it should issue a supplemental notice to reflect the current state of the law because the law has not changed—the last statutory update to the SIJ portfolio occurred in 2008, prior to publishing the NPRM. Further, DHS disagrees that it should withdraw the rule pending new OMB review. DHS acknowledges that the adequacy of the notice provided and comments received can depend on if the situation around the rulemaking has changed so much that there was new or different information that the agency should have offered or the public could have provided for consideration.

DHS does not believe that there have been significant changes in the basis for the proposed rule. Nevertheless, while the information for the public to consider was not new or changed, DHS published a notice requesting a new round of public comment to ensure that the public had notice of the proposed rule and relevant background information and that DHS had current input from affected stakeholders close to the time of decision.

See Idaho Farm Bureau Fed'n

Babbitt,

58 F.3d 1392 (9th Cir. 1995);

Mobil Oil Corp.

EPA,

35 F.3d 579, 584-85 (D.C. Cir. 1994).

The reopening of the comment period and the final rule have gone through OMB review prior to publication. To the extent that data have changed and developed in the years since the proposed rule was published, DHS has updated relevant data accordingly.

Comment:

Two commenters stated that the proposed rule does not satisfy the criteria and fundamental principles of federalism required under Executive Order (E.O.) 13132. These commenters request that DHS withdraw the proposed rule and defer to the States on areas of traditional State expertise related to the administration of SIJ petitions, or, in the alternative, that DHS issue a federalism summary impact statement if it does move forward with the rule. Similarly, several commenters wrote that the proposed rule lacks statutory authority because State courts, not Federal immigration agencies, have the requisite expertise in child-welfare issues that should not be second-guessed by USCIS SIJ adjudicators and that DHS improperly encourages a re-examination of the State court's order; requires the petitioner to prove the underlying motivation behind the State child-welfare assistance sought; and mandates the disclosure of evidence treated as confidential by the States.

Response:

DHS disagrees with commenters that this rulemaking implicates federalism concerns. Specifically, INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), sets clear parameters for the extent of State versus Federal involvement in the SIJ process: “who has been declared dependent on a juvenile court located in the United States . . . and in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status.” Neither the proposed rule nor this final rule modifies the extent of State involvement. As for the commenter's assertion that DHS violated E.O. 13132 (Federalism) because it inadequately analyzed the rule's impacts on States, DHS reiterates for this final rule that the regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The United States Government's authority to regulate immigration and noncitizen status is broad, and stems in part from its constitutional power to “establish a uniform rule of Naturalization,” Art. I, § 8, cl. 4, and on its sovereign power to control and conduct foreign relations.

Arizona

United States,

567 U.S. 387 (2012). Under the Supremacy Clause, states are precluded from regulating conduct in a field that Congress has expressly determined must be regulated at the federal level or where Congress

has created a framework of regulation so pervasive that there is no room for the States to supplement it.

Id.

at 399. Here, the role of DHS is to adjudicate SIJ petitions to determine eligibility for SIJ classification and adjustment of status as prescribed by the INA—a field in which the States have no role. Accordingly, it is entirely appropriate for USCIS officers when adjudicating an SIJ petition to review the State court determinations to determine if a primary reason the petitioner sought the juvenile court determinations was to obtain relief from abuse, neglect, abandonment, or a similar basis under State law, because this review is necessary for USCIS to make the consent determination required by the INA. On the other hand, under this rule DHS has no role in making dependency or custodial determinations or granting relief from abuse, neglect, or abandonment, or a similar basis under State law, which is a field properly reserved to the States.

9. Miscellaneous

Several comments were submitted that did not relate to the substance of the NPRM, and will, therefore, not be individually discussed. These comments related to areas such as writing style and other issues outside of the scope of this rulemaking, including comments on the USCIS Policy Manual or Administrative Appeals Office (AAO) Adopted Decisions, recommendations not pertaining to this rule, and general statements unrelated to the substance of the regulation. DHS has reviewed and considered all such comments and incorporated them as applicable.

C. Definitions

1. “State”

Comment:

Six commenters recommended that DHS change the proposed definition of “State” to encompass all geographic areas under the administrative control of the United States. Another commenter pointed out that to define “State” but not “United States” was an oversight.

Response:

DHS agrees with the commenters that the proposed definition of “State” appears incomplete and will adopt the INA definitions for “State” and “United States,” which are established immigration terms of art. This final rule amends the definition of “State” and adds the definition for “United States” at 8 CFR 204.11(a) by making reference to the INA definitions.

2. “Juvenile Court”

Comment:

Twenty-three commenters recommended changes to the definition of “juvenile court.” Four commenters requested that the definition expressly indicate that qualifying juvenile courts that can issue orders include delinquency courts. One commenter wrote that the use of the term “juvenile court” did not track statutory language, which allows for a custody determination by a State juvenile court. Eighteen commenters requested that the term “juvenile court” be modified to align with INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), which recognizes juvenile court dependency or custody determination. One commenter suggested that the final rule be consistent with the definition of “juvenile court” from the AAO Adopted Decision,

Matter of A-O-C-,

which states that “petitioners must establish that the court had competent jurisdiction to make judicial determinations about their dependency and/or custody and care as juveniles under State law.”

Matter of A-O-C-,

Adopted Decision 2019-03, at 4 (AAO Oct. 11, 2019). One commenter suggested that the term “juvenile court” include the custody, care, guardianship, delinquency, or best interest of the juvenile. Another commenter suggested that the definition include care, custody, dependency, and/or placement of a child.

Response:

DHS agrees with the commenters that the definition of “juvenile court” should include dependency to align with INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), and the guidance provided in

Matter of A-O-C-.

The final rule defines “juvenile court” as a court located in the United States that has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles. New 8 CFR 204.11(a). The final rule defines the term “judicial determination” as a conclusion of law made by a juvenile court.

Id.

Further, State law, not federal law, governs the definition of “juvenile,” “child,” “infant,” “minor,” “youth,” or any other equivalent term for juvenile which applies to the dependency or custody proceedings before the juvenile court. The final rule therefore requires the juvenile court to have exercised its jurisdiction over petitioners as juveniles (or other equivalent term) under the applicable State law. New 8 CFR 204.11(c)(3)(i).

DHS, however, declines to specify the types of courts that have jurisdiction to make judicial determinations about the dependency and/or custody and care of a juvenile. The definition of “juvenile court” in the final rule already encompasses various types of State courts that have the jurisdiction to make judicial determinations about the dependency and/or custody and care of juveniles, and it does not limit qualifying courts to those specifically named “juvenile” courts. New 8 CFR 204.11(a). The names and titles of State courts that may act in the capacity of a juvenile court to make the types of determinations required to establish eligibility for SIJ classification may vary State to State. A court by a particular name may have such authority in one State, but not in another. DHS also declines to include “care,” “guardianship,” “delinquency,” “placement of a child,” or “best interest of the juvenile” as part of the definition of “juvenile court” for the same reason—that a variety of types of proceedings may result in a qualifying order for SIJ classification, and DHS does not want to create a list that may be interpreted as exhaustive.

Comment:

A commenter stated that the requirement in the NPRM for a petitioner to submit a juvenile court order issued by a court of competent jurisdiction located in the United States is redundant because the definition of the term “juvenile court” already addresses the jurisdictional and geographical limitations of the juvenile court.

Response:

DHS agrees with this comment. Because the term “juvenile court” is defined in the final rule as a court located in the United States that has jurisdiction under State law, DHS has removed the proposed provision stating that the juvenile court order be issued by a court of competent jurisdiction.

See

new 8 CFR 204.11(a).

D. Eligibility Requirements for Classification as a Special Immigrant Juvenile

This final rule adopts the eligibility requirements proposed in the NPRM regarding age, unmarried status, and physical presence. New 8 CFR 204.11(b)(1) through (3). The reasoning provided in the preamble remains valid with respect to general eligibility and is incorporated here by reference. DHS has modified and added language to the regulatory text on juvenile court order requirements and validity based on public comments and on policy decisions made after publication of the proposed rule. The changes to the regulatory text are summarized in this preamble in Section I.

Several commenters raised the issue of what point in time (time of filing or time of adjudication) USCIS assesses eligibility for SIJ classification. In general, absent any clear statutory authority or compelling reason that

suggests otherwise, DHS applies the general rule that “[a]n applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.” 8 CFR 103.2(b)(1). A petitioner who does not meet the eligibility requirements at the time of filing (and as later described in this rule, where applicable, the time of adjudication) is not eligible for SIJ classification. Exceptions to this general rule for specific SIJ classification eligibility requirements are addressed in the following discussion of the individual eligibility requirements.

The following table illustrates at what points during the petition and adjudication process USCIS will assess each eligibility requirement.

Table 2—SIJ Eligibility Requirements at Time of Filing and Time of Adjudication of Form I-360

Eligibility requirement

Time of filing Form I-360

Time of adjudication Form I-360

Under 21 years of age

Yes

No.

Unmarried

Yes

Yes.

Physical presence

Yes

Yes.

Valid juvenile court order

Yes, unless meets one of the two exceptions

Yes, unless meets one of the two exceptions.

1. Under 21 Years of Age

As explained in the proposed rule, under TVPRA 2008, USCIS may not deny SIJ classification based on age if the noncitizen was a child on the date on which they petitioned for SIJ classification (hereafter referred to as “age-out protection”). TVPRA 2008 section 235(d)(6), 8 U.S.C. 1232(d)(6). Under section 101(b)(1) of INA, 8 U.S.C. 1101(b)(1), a “child” is defined as under 21 years of age and unmarried. Through these provisions, Congress has expressed an intent that SIJ classification requires that the non-citizen be under the age of 21 only at the time of filing.

Comment:

Twelve commenters supported DHS's proposed change to prohibit USCIS from denying SIJ classification based on age if the individual was a child on the date on which they petitioned for SIJ classification. One commenter thought that the proposed rule drew an “arbitrary line” at the age of 21 and that DHS was disqualifying any person over the age of 21 from protections from deportation. Some commenters indicated that DHS should give higher priority to petitioners less than 10 years old than to those who are 18 to 21 years of age without severe disabilities.

Response:

DHS does not make any changes based on these comments because the age limit is set by statute. DHS does not have the authority to expand the program beyond the age the law permits nor to give preference to one age group over another.

See

TVPRA 2008 section 235(d)(6), 8 U.S.C. 1232(d)(6). DHS will require that the petitioner be under 21 years of age only at the time of filing at new 8 CFR 204.11(b)(1).

2. Unmarried

Comment:

One commenter agreed with the retention of the requirement that a petitioner remain unmarried through the adjudication of the SIJ petition. The commenter recommended that the final regulation further clarify that USCIS will consider other similar indicia of emancipation when determining whether USCIS should consent. The commenter said that for example, the regulation should clarify that the status of a civil union or common law marriage will be an indication of the legal equivalent of emancipation through marriage.

Response:

USCIS will consider a noncitizen's eligibility for SIJ classification based on the preponderance of the evidence in its assessment of whether a primary reason the petitioner sought the required juvenile court determinations was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.

See

new 8 CFR 204.11(b)(5). Where USCIS has evidence of a State-recognized common law marriage, it will adjudicate the SIJ petition consistently with the eligibility requirements of the final rule, which maintains the long-standing position that a petitioner for SIJ classification must be unmarried at the time of filing and adjudication.

See

new 8 CFR 204.11(b)(2). However, civil unions are not recognized by USCIS as legal marriages for immigration purposes.

Comment:

Four commenters requested that DHS remove the requirement that a petitioner remain unmarried at the time of adjudication. Commenters noted that TVPRA 2008 prohibits denial of a petition based on age as long as the conditions were met at the time the petition was filed. The commenters suggest that similar protections should be provided in regard to unmarried status, because the policy behind the TVPRA 2008 protection was to protect at-risk child victims of abuse. Other commenters discussed the effect of marriage on a petitioner's status as a dependent child in response to the preamble to the NPRM, which stated that “[m]arriage alters the dependent relationship with the juvenile court and emancipates the child.” 76 FR 54980. One commenter noted that to the extent that marital status may affect the dependency status of the petitioner, it is unnecessary to require unmarried status through adjudication since the proposed rule requires dependency at the time of adjudication. Another commenter said that while marriage in most jurisdictions changes whether someone is “dependent” or not, USCIS should acknowledge that some jurisdictions may make an exception where it is in a child's best interests.

Response:

As explained in the proposed rule, under the previous regulations at 8 CFR 204.11(c)(2), a juvenile must remain unmarried both at the time the SIJ petition is filed and through adjudication in order to qualify for SIJ classification. No legislative changes or intervening facts have caused USCIS to alter this provision. This interpretation is consistent with Congress' use of the term “child” in the “Transition Rule” provision at section 235(d)(6) of TVPRA 2008. INA section 101(b)(1), 8 U.S.C. 1101(b)(1), defines a “child” as under 21 years of age and unmarried. In section 235(d)(6) of TVPRA 2008, Congress linked the age-out protection specifically to age by providing that SIJ classification may not be denied “based on age.” TVPRA 2008 does not link age out protection to marital status. Thus, Congress required that the petitioner be under the age of 21 only at the time of filing, but did not intend a similar protection as to marital status. Further, 8 CFR 103.2(b)(1) states that “[a]n applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.” Therefore, DHS will maintain its long-standing regulatory requirements, consistent with the definition of “child” in the INA, that a petitioner be

unmarried at time of filing the SIJ petition and at time of adjudication. New 8 CFR 204.11(b)(2).

3. Physical Presence in the United States

Comment:

One commenter recommended that DHS interpret the requirement for a petitioner's physical presence in the United States as either physical or constructive presence. The commenter stated that using the word “physically” to modify the word “present” impermissibly narrows the statute and the rule should instead mirror the text of the statute, which provides that an SIJ petitioner is one who is “present in the United States.”

Response:

DHS disagrees with this interpretation. The statutory language at INA section 101(a)(27)(J)(i) requires that petitioners be subject to determinations from a juvenile court located in the United States, indicating that Congress intended that the petitioner be physically present to be eligible for a grant of SIJ classification. It has therefore been DHS's longstanding interpretation that physical presence in the United States is required for USCIS to approve the petition for SIJ classification, and no facts or circumstances have come to our attention that would justify changing that interpretation.

4. Juvenile Court Order Determinations

(a) Dependency or Custody

Comment:

Fourteen commenters thought that the proposed rule was not inclusive enough of the various types of placements by a juvenile court that could lead to eligibility for SIJ classification. These commenters want DHS to clarify that commitment to or placement under the custody of an individual could include, but is not limited to, adoption and guardianship. Another commenter requested that DHS clarify that guardianship or adoption standing alone is sufficient for SIJ classification, without being preceded by a dependency, commitment, or custody order. Several of these commenters asked DHS to clarify that a court-ordered placement with a non-offending parent or a foster home could qualify. One commenter requested that DHS clarify the types of State court proceedings that may qualify, including divorce, custody, guardianship, dependency, adoption, child support, protection orders, parentage, paternity, termination of parental rights, declaratory judgments, domestication of a foreign order, or delinquency. Another commenter said that they were concerned that USCIS is interpreting dependency to exclude children who are in the care and custody of the U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR).

Response:

The plain language of INA section 101(a)(27)(J)(i) is disjunctive, requiring a petitioner to establish that they have either “been declared dependent on a juvenile court . . .

. . . such a court has legally committed [them] to, or placed [them] under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court”. INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). The final rule clarifies that SIJ classification is available to petitioners for whom the juvenile court provides or recognizes relief from parental abuse, neglect, abandonment, or a similar basis under State law, which may include the court-ordered custodial placement, or the court-ordered dependency on the court for the provision of child welfare services and/or other court-ordered or court-recognized protective remedial relief. New 8 CFR 204.11(d)(5)(ii)(A) and (B). DHS will not include a full list of examples of qualifying placements in this rule to avoid confusion that qualifying placements are limited to those listed. However, in response to commenters' request that USCIS clarify whether adoption or guardianship standing alone may qualify, USCIS notes that a judicial determination from a juvenile court of adoption or guardianship would generally be a sufficient custodial and/or dependency determination for SIJ eligibility. In addition, juvenile court-ordered placement with a non-offending relative or foster home would also generally qualify as a judicial determination related to the petitioner's custody and/or dependency for SIJ eligibility.

In response to a commenter's concern that USCIS is interpreting dependency to exclude children who are in the care and custody of ORR, USCIS recognizes that placement in federal custody with ORR also affords protection as an unaccompanied child pursuant to Federal law and obviates a State juvenile court's need to provide a petitioner with additional relief from parental maltreatment under State law.

See generally

Homeland Security Act of 2002, Public Law 107-296, 462(b)(1), 116 Stat. 2135, 2203 (2002) (providing that ORR shall be responsible for “coordinating and implementing the placement and care of unaccompanied alien children in Federal custody by reason of their immigration status. . . .”). Such relief qualifies as relief in connection with a juvenile court's dependency determination. In this final rule, USCIS is clarifying that the relief qualifies so long as the record shows that the juvenile court was aware that the petitioner was residing in ORR custody at the time the order was issued.

See

new 8 CFR 204.11(d)(5)(ii)(B). For example, if the order states that the petitioner is in ORR custody, or the underlying documents submitted to the juvenile court establish the juvenile's placement in ORR custody, that would generally be sufficient evidence to demonstrate that the court was aware that the petitioner was residing in ORR custody. USCIS is making this clarification to ensure that those in ORR custody are not inadvertently excluded from SIJ classification because of the requirement that the juvenile court recognize or grant the relief.

Comment:

Several commenters requested further clarification on the definition of dependency. One commenter requested that DHS explain whether dependency includes temporary custody orders. Another commenter stated that the regulations should retain the definition of dependency contained in the previous 8 CFR 204.11(c)(3), which states that a petitioner should establish that they have been “declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency.” This commenter noted that whether a juvenile is dependent on the juvenile court is within the purview of the juvenile court and not USCIS.

Response:

DHS recognizes that there is no uniform definition for “dependency,” and the final rule continues to give deference to State courts on their determinations of custody or dependency under State law. DHS agrees with the commenter that the dependency determination is within the jurisdiction of the juvenile court. Thus, the final rule requires the juvenile court to have made a judicial determination “related to the petitioner's custodial placement or dependency in accordance with State law governing such determinations.” New 8 CFR 204.11(c)(1).

(b) Parental Reunification Determination

DHS received twenty-two comments on various aspects of the parental reunification determination. DHS reaffirms that the juvenile court must make this determination based on applicable State laws. Nothing in this rule should be construed as changing the standards that State courts use for making family reunification determinations, such as evidentiary

standards, notice to parents, family integrity, parental rights, and due process. DHS further notes that definitions of concepts such as abuse, neglect, or abandonment may vary from State to State. For example, it is a matter of State law to determine if a parent's actions or omissions are so severe that even with services or intervention, the child cannot be reunified with that parent.

Comment:

Several commenters requested that the final rule formally abandon USCIS' requirement that in order to make a qualifying parental reunification determination, the juvenile court must have jurisdiction to place the juvenile in the custody of the unfit parent(s). Another commenter requested that DHS explain what constitutes a qualifying reunification determination when a juvenile court does not make an explicit finding and grants the offending parent noncustodial rights. Seven commenters requested clarification that termination of parental rights is not a prerequisite for SIJ classification. One commenter requested that DHS remove from the proposed rule any discussion of the requirement that a juvenile court order contain a determination that the petitioner is eligible for long-term foster care due to abuse, neglect, or abandonment.

Response:

Consistent with longstanding practice and policy, DHS agrees that termination of parental rights is not required for SIJ eligibility and has incorporated this clarification in the final rule. New 8 CFR 204.11(c)(1)(ii). The idea that children should not grow up in the foster care system has led to changes in Federal law, such as the Adoption and Safe Families Act. Adoption and Safe Families Act of 1997, Public Law 105-89 (Nov. 19, 1997). The SIJ program has evolved along with child welfare law to include children for whom reunification with one or both parents is not viable because of abuse, neglect, abandonment, or a similar basis under State law. INA section 101(a)(27)(J)(i) previously required a State court determination of eligibility for long-term foster care due to abuse, neglect, or abandonment; however, the statute was modified by TVPRA 2008 to reflect this shift away from long-term foster care as a permanent option for children in need of protection from parental maltreatment. Accordingly, references to “foster care” were removed from the NPRM and have been removed from the final rule.

While there is no longer a requirement that petitioners be found eligible for long-term foster care, nonviability of parental reunification is still required. However, DHS no longer requires

that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification; therefore, this final rule does not include such a requirement.

See, e.g., R.F.M.

Nielsen,

365 F. Supp. 3d 350 (S.D.N.Y. 2019);

J.L., et al.

Cissna,

341 F. Supp. 3d 1048 (N.D. Cal. 2018);

Moreno Galvez

Cuccinelli,

387 F. Supp. 3d 1208 (W.D. Wash. 2019);

W.A.O.

Cuccinelli,

Civil Action No. 2:19-cv-11696, 2019 U.S. Dist. LEXIS 136045 (D.N.J. July 3, 2019). DHS further acknowledges that even while it was in effect, the reunification authority requirement should never have applied to petitioners who had juvenile-court orders entered pursuant to Section 300 of the California Welfare and Institutions Code, because California courts generally have continuing jurisdiction over juveniles even after they turn 18.

See,

Cal. Welf. & Inst. Code § 303 (which provides that juvenile courts “may retain jurisdiction over any person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains 21 years of age”). These juvenile courts have jurisdiction to issue findings regarding abuse, neglect, or abandonment, and based on these findings, “adjudge that person to be a dependent child of the court.”

See

Cal. Welf. & Inst. Code § 300.

see also Budhathoki

Nielsen,

898 F.3d 504, 512 (5th Cir. 2018) (explaining that “[w]hatever responsibilities are exclusively for the [S]tate court, USCIS must evaluate if the actions of the [S]tate court make the applicant eligible for SIJ [classification]”). However, the plain language of the statute, “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,

” demonstrates that Congress intended the determination that reunification with one or both of the petitioner's parents is not viable due to parental maltreatment to be made by a juvenile court under State law. INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i) (emphasis added). The relevant SIJ statutory language does not define abuse, neglect, or abandonment. Because the determination of parental maltreatment is a matter of State law, and the definitions of abuse, neglect, and abandonment vary from State to State, creating a standardized process or modified categorical approach would undermine Congress's instruction concerning the State's role in these determinations. For these reasons, DHS generally defers to juvenile courts on matters of State law, though it will evaluate orders for legal sufficiency under the requirements of INA and finds no need to codify additional corresponding language from the USCIS Policy Manual.

Comment:

Several commenters focused on the evidentiary requirements for establishing abuse, neglect, abandonment, or a similar basis. One commenter requested that DHS require the juvenile court to check the petitioner's proof of abandonment or abuse to in order to prevent fraud. Another commenter requested that USCIS provide guidance on what information should be contained in a juvenile court order when the court finds that a parent is abusive, including the identity of the parent and details of the abuse. Another commenter stated that juveniles who claim to have been abandoned should provide evidence showing that they have a bona fide relationship to the United States, otherwise they should reunify with relatives living in their home country.

Response:

Proving a bona fide relationship to the United States is not an eligibility requirement under INA section 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). Further, such a proposal was not a part of the NPRM and thus to codify a United States nexus requirement would be outside the scope of this rulemaking.

As noted earlier in this preamble, because a determination regarding parental maltreatment is a matter of State law, USCIS does not have the authority to mandate that a juvenile court require specific evidence from a petitioner prior to issuing its determinations. USCIS is responsible for detecting and deterring immigration benefit fraud and for determining a petitioner's eligibility for the SIJ classification. It cannot delegate these responsibilities to the States. Moreover, because the determinations of dependency, custody, and parental maltreatment are a matter of State law, USCIS cannot require State juvenile courts to act as an immigration gatekeeper or to undertake fraud investigations in connection with dependency or custody proceedings. USCIS cannot therefore require juvenile courts to take specific actions to verify that a petitioner has not reunified with his or her parent(s) or otherwise require juvenile courts to adopt specific procedures to verify or investigate parental maltreatment. However, USCIS will not grant its consent if the petitioner fails to demonstrate that a primary reason the juvenile court determinations were sought was to obtain relief from abuse, abandonment, neglect, or a similar basis under State law.

See

new 8 CFR 204.11(b)(5).

Comment:

DHS received three comments in relation to the requirement that juvenile court judges make best interest determinations under relevant State law. Proposed 8 CFR 204.11(b)(1)(vi), 76 FR 54985. One commenter expressed general support for the requirement. Another commenter stated that the final rule should not require that the juvenile court make a determination about a placement in the petitioner's or their parent(s)' country of nationality or last habitual residence. One commenter expressed opposition to the best interest requirement in the proposed rule, stating that the language of the INA provision notably does not include any requirement that the best interest determination be made in State, as opposed to Federal, judicial or administrative proceedings. This commenter suggested that the final rule should be amended to provide that under 8 U.S.C. 1101(a)(27)(J)(ii), repatriation determinations are made by USCIS, as part of its statutory consent function.

Response:

The best interest determination is one of the key determinations for establishing eligibility for SIJ classification and the only one that has not changed throughout the history of the SIJ program. Since the inception of the SIJ program, it has consistently been the expressed intent of Congress to reserve this benefit for children for whom it has been determined that it would not be in their best interest to return to their or their parent(s)' home countries. The prior regulation interpreted the best interest determination as requiring a petitioner to have “been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents.” Previous 8 CFR 204.11(c)(6). In TVPRA 2008, Congress did not alter the best interest determination, indicating that it intended to retain the agency's long-standing requirement that the best interest determination must be made in either judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions. New 8 CFR 204.11(c)(2)(i). The best interest determination is therefore not a removal determination to repatriate a child (a determination within the purview of Federal immigration law), rather, it is a determination made by a State court or relevant administrative body, such as a State child welfare agency, regarding the best interest of the child. The preamble to the 1993 SIJ final rule explained that “the Service believes that the decision regarding the best interest of the beneficiary should be made by the juvenile court or the social service

agency officials recognized by the juvenile court, not by the immigration judge or other immigration officials.” 58 FR 42848.

While the standards for making best interest determinations may vary from State to State, best interest determinations generally consist of the deliberation that courts and administrative bodies undertake under State law when deciding what type of services, actions, and orders will best serve a child, as well as who is best suited to take care of a child. Best interest determinations generally consider a number of factors related to the circumstances of the child and the parent or caregiver, with the child's safety and well-being the paramount concerns. HHS, Administration for Children and Families, Child Welfare Information Gateway, “Determining the Best Interests of the Child,” 2016, available at

https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/.

The final rule clarifies that it does not alter any obligations juvenile courts may have under State child welfare law when making best interest determinations. New 8 CFR 204.11(c)(2)(ii).

DHS agrees that a juvenile court or administrative body may not be able to make a placement determination in a foreign county. However, DHS has long held the interpretation that a determination that a particular custodial placement is the best alternative available to the petitioner in the United States does not necessarily establish that being returned to the petitioner's (or petitioner's parents') country of nationality or last habitual residence would not be in the child's best interest.

See

58 FR 42848. The best interest determination must be made based on the individual circumstances of the petitioner, and DHS will not accept conclusions that simply mirror statutory language in or cite to INA section 101(a)(27)(J)(ii), 8 U.S.C. 1101(a)(27)(J)(ii). The final rule requires evidence of the factual basis for the best interest determination as part of the evidentiary requirement for DHS consent.

See

new 8 CFR 204.11(d)(5)(i).

5. Qualifying Juvenile Court Orders

DHS received numerous comments regarding the proposed requirement that the juvenile court order be in effect at the time of filing and continue through the time of adjudication of the SIJ petition, with limited exceptions provided for by the proposed rule. The majority of commenters opposed the requirement that the juvenile court order be in effect at the time of filing and/or adjudication. Other commenters focused on the exceptions to this requirement.

(a) Validity at Time of Filing and Adjudication

Comment:

A number of commenters asked DHS to revisit its position of requiring the juvenile court order to be in effect at the time of filing the SIJ petition and continue through the time of adjudication. Several of the commenters noted that the statute uses past tense when referring to the dependency and custody determinations. Two commenters expressed support for retaining this requirement, with one commenter stating that it ensures that the request for SIJ classification is bona fide, and another commenter stating that the juvenile court order is a filter that makes sure that the benefit is reserved for children in need of special treatment. Another commenter suggested that if DHS is retaining this requirement, the language of the proposed rule should be revised to “such dependency, commitment, or custody must be in effect at the time of filing the petition and continue through the time of adjudication of the petition.”

Response:

DHS notes that the INA requirement “has been declared dependent . . . or has [been] legally committed to, or placed under the custody of” is worded in the present perfect tense.

See

INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). U.S. courts have “frequently looked to Congress' choice of verb tense to ascertain a statute's temporal reach.”

Carr

United States,

560 U.S. 438, 448 (2010). The present perfect tense refers to a time in the indefinite past or a past action that continues to the present.

See, e.g., Padilla-Romero

Holder,

611 F.3d 1011, 1013 (9th Cir. 2010) (explaining that “[a]s a purely grammatical matter, the use of the present perfect tense `has been,' read in isolation from the surrounding text of the statute, can connote either an event occurring at an indefinite past time (`she has been to Rome') or continuing to the present (`she has been here for five hours')”). DHS believes the wording of the dependency requirement in the INA is meant to show that the juvenile court has done something in the past, but the focus is on the present time (the adjudication of the SIJ petition by USCIS). For this reason, the final rule requires that the juvenile court order “must be in effect on the date the petitioner files the petition and continue through the time of adjudication of the petition.” New 8 CFR 204.11(c)(3)(ii).

Merriam-Webster.com,

“present perfect,”

https://www.merriam-webster.com/dictionary/present%20perfect

(last visited Aug. 18, 2021).

Further, longstanding USCIS regulations at 8 CFR 103.2(b)(1), in general, require an applicant or petitioner for any immigration benefit to establish eligibility “at the time of filing,” and that eligibility “must continue” through adjudication. Additionally, DHS agrees with commenters that this requirement ensures that SIJ classification is provided to those truly in need of the benefit. DHS has therefore modified the regulatory text at new 204.11(c)(3)(ii) to clarify that the juvenile court order must be in effect at the time of filing the petition and remain in effect through adjudication, except where the juvenile court's jurisdiction terminated solely because of petitioner's age or due to the petitioner reaching a child welfare permanency goal, such as adoption. These exceptions are discussed further elsewhere in this section of the preamble.

Comment:

DHS received numerous comments about how the requirement that the juvenile court order be in effect at the time of filing and adjudication applies to petitioners who relocate to another State. One commenter strongly objected to the proposed rule to the extent that it presumed that SIJ eligibility would continue even if the petitioner moved out of State. This commenter requested that DHS only recognize when a petitioner moves to another jurisdiction under the custody of a custodian appointed by the juvenile court, or when a petitioner in the custody of an institution is moved by the juvenile court to another jurisdiction.

Other commenters indicated that requiring a new court order for petitioners that relocate to a new State or juvenile court jurisdiction would be overly burdensome. Several commenters stated that the requirement to obtain a new State court order is inconsistent with other binding Federal statutes, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Interstate Compact on the Placement of Children (ICPC). Those commenters said that the UCCJEA and ICPC specifically prescribe a process by which transfer between States is obtained and the initial State typically retains jurisdiction of the matter and the juvenile. Several commenters also expressed concerns that this requirement may disproportionately affect petitioners in the custody of ORR of HHS. Another commenter stated that it would create additional hurdles for those seeking Federal long-term foster

care through the Unaccompanied Refugee Minor (URM) program.

Response:

DHS does not wish to place an extra burden on petitioners who may be moved between ORR facilities or to court-appointed custodians in another jurisdiction, or to those seeking long-term foster care through the URM program. Since the time of the NPRM, USCIS has issued policy guidance that clarifies that a juvenile court order does not necessarily terminate because of a petitioner's move to another court's jurisdiction and is maintaining this policy, regardless of this final rule.

If the original order is terminated due to the relocation of the child, but another order is issued in a new jurisdiction, USCIS will consider the dependency or custody to have continued through the time of adjudication of the SIJ petition, even if there is a lapse between court orders.

USCIS Policy Manual, Volume 6, Immigrants, Part J, Special Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM J.2], available at

https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.

As discussed previously, absent any clear statutory authority, DHS applies the general rule that “[a]n applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.” 8 CFR 103.2(b)(1). DHS will retain the requirement that the juvenile court order be in effect at the time of filing the SIJ petition and continue through the time of adjudication of the SIJ petition, and implements this provision at 8 CFR 204.11(c)(3)(ii).

(b) Exceptions to the Requirement That a Juvenile Court Order Be Valid at the Time of Filing and Adjudication

Comment:

Several commenters recommended specific exceptions to the requirement that the juvenile court order be valid at the time of filing and adjudication of the SIJ petition. The commenters requested that DHS take into account the fact that a court may terminate its jurisdiction over a child if such child finds a permanent placement, such as adoption or legal permanent guardianship. The commenters were concerned that if the court terminated its jurisdiction due to the child being placed in permanent guardianship or adoptive placement that the child would lose eligibility for SIJ classification. One commenter stated that a child who is returned to one parent is usually not subject to continuing court supervision. Another commenter stated that it would be contrary to the statute to deny SIJ classification to children who have achieved a permanency option in juvenile court merely because the juvenile court process reached its conclusion and secured a safe and permanent solution for the child.

Response:

DHS agrees that an individual adopted, placed in guardianship, or another type of permanent placement may remain eligible for SIJ classification. The previous regulation interpreted the “eligible . . . for long-term foster care” requirement generally to require an individual to remain in foster care until reaching the age of majority, but acknowledged that this did not apply if “the child is adopted or placed in a guardianship situation.” Previous 8 CFR 204.11(a). In the proposed rule, DHS did not propose to alter this position. DHS will follow this long-standing position and expand it to include other types of permanent placements, such as custody orders. DHS is clarifying this position at new 8 CFR 204.11(c)(3)(ii)(A). The final rule states that the juvenile court order must be in effect on the date the petitioner files the petition and continue through the time of adjudication, except when the juvenile court's jurisdiction terminated solely because the petitioner was adopted, placed in a permanent guardianship, or another permanency goal was reached.

Id.

Comment:

In the NPRM, DHS proposed an exception to the requirement that the juvenile court order continue through the time of adjudication for petitioners whose juvenile court orders terminated solely due to age

after

filing the SIJ petition. Proposed 8 CFR 204.11(b)(1)(iv), 76 FR 54985. Some commenters asked DHS to allow individuals to file if they are under 21 years of age and had a juvenile court order even if the order has lapsed

prior

to filing the SIJ petition. These commenters noted that the INA and TVPRA 2008 only require the petitioner to be under 21 years of age at the time of filing. Other commenters supported extending eligibility for petitioners who may age out of the juvenile court's jurisdiction due to relocation to another State.

Response:

After DHS published the 2011 NPRM, the government reached a stipulation agreement in

Perez-Olano, et al.

Holder, et al.,

which contains a provision that a petitioner whose juvenile court order terminated solely due to age

prior

to filing the SIJ petition remains eligible.

Perez-Olano, et al.

Holder, et al.,

Case No. CV 05-3604 (C.D. Cal. 2015). In accordance with the court agreement and in response to public comments, which DHS agrees reflect a legally permissible interpretation, DHS now codifies the exception to the requirement that the juvenile court order be valid at the time of filing and adjudication for petitioners who no longer have a valid juvenile court order either prior to or subsequent to filing the SIJ petition because of the petitioner's age, at new 8 CFR 204.11(c)(3)(ii)(B). In response to comments, this exception also covers the situation of a petitioner who may age out of the juvenile court's jurisdiction due to relocation to another State.

E. Evidence

1. Petition Requirements

A petitioner must submit a complete Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the form instructions. DHS has amended the form consistent with the changes made in this final rule. The final rule also removes the form number from the regulatory text. New 8 CFR 204.11. Prescribing a specific form number to be filed for a certain benefit in the Code of Federal Regulations (CFR) is generally not necessary, and mandating specific form numbers reduces USCIS' ability to modify or modernize its business processes to address changing needs.

2. Age

Comment:

Ten commenters expressed concern that the list of documents in the proposed rule that may demonstrate proof of age was restrictive. Commenters discussed the challenges that abused, neglected, or abandoned children may face in obtaining proof of their age and birth from their abusive parents. These commenters suggested adding alternate documentation of proof of age that would be acceptable, and expressly indicating that secondary evidence may be provided as is allowed for other types of immigration petitions.

Response:

DHS agrees that some vulnerable children may face challenges in obtaining documentation of their age. DHS regulations on the provision of secondary evidence at 8 CFR 103.2(b)(2)(i) apply to SIJ petitioners, and DHS did not propose to alter this in the proposed rule. The previous regulation interpreted the proof of age requirement for SIJ petitioners to include evidence in the form of “a birth certificate, passport, official foreign identity document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion of the director establishes the beneficiary's age.” Previous 8 CFR 204.11(d)(1), 58 FR 42850. DHS will follow its long-standing position of

allowing official government-issued identification or secondary evidence, and we have added clarifying language at new 8 CFR 204.11(d)(2).

Comment:

Two commenters requested that USCIS recognize that SIJ petitioners may not have government-issued identification to present at the biometrics appointment. Another commenter requested that DHS remove all references to biometrics in the regulation.

Response:

DHS appreciates the intention of these comments; however, it has acted to remove from regulations all unnecessary procedural instructions and responsibilities, such as acceptable documents for office visits. In addition, the proposed rule only referenced biometrics in the preamble and not in the regulatory text itself, which is consistent with the final rule as well. Therefore, DHS did not revise the regulation in response to the commenters' requests and biometrics submission requirements for SIJ petitioners remain the same.

Comment:

One commenter said that in addition to documentary evidence of the petitioner's age, USCIS should collect DNA samples as part of its biodata procedures, or else confirm that a sample has already been collected and added to the Combined DNA Index System (CODIS) database of the Federal Bureau of Investigation (FBI). The commenter asserts that the juvenile's age, identity, and any prior contacts with law enforcement agencies can be more accurately and expeditiously verified by USCIS using the CODIS database.

Response:

DHS appreciates the comment, but DNA collection is outside of the scope of this rulemaking. DHS did not propose to require SIJ petitioners to submit DNA in the proposed rule, and it is not a subject on which the public was requested to comment. Therefore, DHS is unable to incorporate the suggestions of the commenter.

3. Similar Basis

INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), provides that a petitioner must establish that their reunification with one or both parents is not viable due to “abuse, neglect, abandonment, or a

similar basis

found under State law” (emphasis added). When a juvenile court determines parental reunification is not viable due to a basis similar to abuse, neglect, or abandonment, the petitioner must provide evidence of how the basis is legally similar to abuse, neglect, or abandonment under State law. New 8 CFR 204.11(d)(4). The language of the order may vary based on individual State child welfare law due to variations in terminology and local State practice in making child welfare decisions.

Comment:

A number of commenters said that petitioners should not have to demonstrate to USCIS that similar basis determinations are equivalent concepts. These commenters requested that the evidentiary standard be modified to reflect that the similar basis requirement is met where the court has authority to take jurisdiction over the child. Commenters also stated that USCIS should defer to juvenile court determinations regarding what constitutes a similar basis under State law. Many of the commenters expressed concerns that the requirement in the proposed rule poses an undue burden on petitioners.

Response:

The requirement to demonstrate that a similar basis determination is legally analogous to abuse, neglect, or abandonment under State law is statutory and thus DHS does not have authority to modify it. INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i) (“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”). DHS disagrees that an assumption can be made that a basis is legally similar to abuse, neglect, or abandonment just because a juvenile court took jurisdiction over the petitioner. The final rule definition of “juvenile court” encompasses a wide variety of State courts, and such courts may take jurisdiction over the case of a juvenile for a variety of reasons that are not related to parental maltreatment.

In the preamble to the proposed rule, DHS explained that “[i]f a juvenile court order includes a finding that reunification with one or both parents is not viable [due to a similar basis] under State law, the petitioner must establish that this State law basis is similar to a finding of abuse, neglect, or abandonment.” 76 FR 54981. The preamble further stated that “[t]he nature and elements of the State law must be similar to the nature and elements of abuse, abandonment, or neglect.”

Id.

The preamble provided an example under Connecticut law of an “uncared for” child and explained that “uncared for” may be similar to abuse, abandonment, or neglect, because children found “uncared for” are equally entitled to juvenile court intervention and protection.

Id.

The preamble gave examples of additional evidence a petitioner could submit to establish the basis for a juvenile court's finding that reunification is not viable due to a similar basis found under State law; those examples focused on the factual basis for the juvenile court's parental reunification determination.

Id.

In response to comments requesting further clarification and expressing concern that petitioners would face an undue burden by having to demonstrate legal equivalency in order to establish that the ground is similar to abuse, neglect, or abandonment, DHS has further clarified how petitioners can meet the similar basis requirement at new 8 CFR 204.11(d)(4)(i) and (ii). Evidence demonstrating that this requirement is met includes options that would not place additional burden on the petitioner, such as including the juvenile court's determination as to how the basis is legally similar to abuse, neglect, or abandonment under State law. A petitioner may alternatively submit other evidence that establishes the juvenile court made a judicial determination that the legal basis is similar to abuse, neglect, or abandonment under State law. Such evidence may include the petition for dependency, complaint for custody, or other documents that initiated the juvenile court proceedings. USCIS will not re-adjudicate whether the juvenile court determinations regarding similar basis comply with that State's law, only whether they comply with the requirements of Federal immigration law for SIJ classification. Additionally, USCIS will consider outreach to juvenile courts, social workers, attorneys and other stakeholders to provide technical assistance on the level of detail in juvenile court orders and underlying documents sufficient for SIJ adjudications.

Comment:

One commenter stated that the final rule should provide that when a child has been a victim of domestic violence, forced marriage, or child endangerment, the child should be presumed to have suffered sufficient maltreatment equal to or greater than abuse, abandonment, or neglect under State law to qualify for SIJ classification without having to prove that these State laws are similar to abuse, abandonment or neglect.

Response:

DHS acknowledges the vulnerable circumstances of children who are victims of domestic violence, forced marriage, or child endangerment. However, the INA requires that a juvenile court determine that reunification is not viable with a child's parent(s)

due to

abuse, neglect, abandonment, or a similar basis under State law. INA section 101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). Therefore, a juvenile court's determination alone that a child is a victim of domestic violence, forced marriage, or child

endangerment would not be sufficient for SIJ purposes, unless it were accompanied by: a judicial determination that reunification with the child's parent(s) is not viable on that basis; and evidence indicating that the basis constituted a legal basis similar to abuse, neglect, or abandonment under State law. As mentioned previously in this preamble, DHS provides further clarity in this final rule regarding how petitioners can meet the evidentiary requirement of demonstrating that a basis is legally similar to abuse, neglect or abandonment under State law at new 8 CFR 204.11(d)(4)(i) and (ii).

Comment:

Four commenters said that the proposed regulations will result in adjudicators wrongly denying SIJ classification to minors in long-term foster care by so narrowly construing what constitutes a similar basis under State law and that greater deference should be granted to the variety of bases for which reunification with a child's parent(s) is determined not viable. One commenter noted that in certain States like Utah, there is no basis for an abandonment determination; rather a child who is abandoned to State custody is determined to be a “dependent” child. The commenter requests that such determinations resulting in the child being removed from the parents and placed in State child welfare services be considered a similar basis under State law for SIJ purposes.

Response:

DHS appreciates the commenters' concern and acknowledges that there is variation in terminology and local or State practice in making child welfare decisions. That a child has been placed in State child welfare services following a determination that parental reunification is not viable may constitute part of the evidence provided of how a judicial determination is similar to abuse, neglect, or abandonment under State law. As discussed, DHS has added regulatory language in the final rule that helps clarify what evidence must be provided to meet the burden of proof of demonstrating that the legal basis is similar to abuse, neglect, or abandonment under State law.

See

new 8 CFR 204.11(d)(4).

4. Evidentiary Requirements for DHS Consent

DHS proposed that USCIS consent would be provided where the petitioner sought the qualifying juvenile determinations primarily for the purpose of obtaining relief from abuse, neglect, abandonment, or a similar basis under State law, and not primarily for the purpose of obtaining lawful immigration status, and the evidence otherwise demonstrates that there is a bona fide basis for granting SIJ classification.

See

proposed 8 CFR 204.11(c)(1)(i), 76 FR 54985. DHS also proposed that the petitioner must submit specific findings of fact or other relevant evidence establishing the factual basis for the juvenile court's parental reunification determination as evidence that the request is bona fide.

See

proposed 8 CFR 204.11(d)(3)(ii), 76 FR 54985 (discussed in the preamble at 76 FR 54981).

Many commenters discussed the DHS consent function. Some commenters focused on the way DHS interprets the statutory consent function, while others focused on how DHS applies the consent function. The majority of comments opposed either DHS's interpretation or the operation of its consent function in some way. One commenter expressed concerns with how USCIS will determine if a petitioner is primarily seeking lawful immigration status, rather than child protection. This commenter referenced cases of children who may have suffered some abuse, neglect, or abandonment in the past, but where the abuse, neglect, or abandonment does not seem to be the reason they are before the court.

DHS will retain its long-standing position on the interpretation of the DHS consent function as requiring the factual basis for the court's judicial determinations in the final rule. DHS has amended the regulations governing the consent function in response to public comments as described in the following paragraphs.

(a) Background and Legal Interpretation of DHS Consent

Comment:

Many commenters opposed DHS's interpretation or application of the statutory consent function. These commenters said it was impermissible for USCIS to “look behind” the juvenile court order to determine whether the petitioner established that the order was sought primarily to obtain relief from abuse, neglect, abandonment, or a similar basis under State law. Some commenters suggested that DHS institute a presumption of consent where the petitioner meets all of the eligibility requirements and has a juvenile court order instead of basing its consent determination on whether the primary purpose for seeking the juvenile court order was for relief from parental maltreatment. Another commenter further noted that in finalizing the proposed rule, USCIS also must be guided by a Federal district court's conclusion in

Zabaleta

Nielsen,

367 F. Supp. 3d 208 (S.D.N.Y. 2019), that the 2008 TVPRA contracted, rather than expanded, DHS's consent function.

Response:

As discussed in the proposed rule, DHS's position comes from legislative history on the creation of the consent function.

See

76 FR 54981. Congress amended the SIJ classification requirements in 1997 to require the express consent of the Attorney General to the dependency order as a precondition to the grant of SIJ classification.

See

CJS 1998 Appropriations Act, Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997). According to the House Report accompanying the 1997 amendments, the purpose of the amendments was to “limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children.” H.R. Rep. No. 105-405, at 130 (1997). DHS may consent if it determines “neither the dependency order nor the administrative or judicial determination of the alien's best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect.”

Id.

TVPRA 2008 modified the consent function, shifting from express consent to the dependency order to consent to the grant of SIJ classification.

See

TVPRA 2008 section 235(d)(1)(B)(i). Prior to TVPRA 2008, DHS had to make two decisions while adjudicating an SIJ petition: whether to expressly consent to the dependency order and whether to approve the SIJ petition. Now USCIS need only consent to the grant of SIJ classification. The district court in

Zabaleta

Nielsen

stated that with the enactment of TVPRA 2008, “Congress diluted the agency's consent authority” when it modified the consent function. 367 F.Supp.3d at 212. The district court reasoned that “Congress decreased the agency's authority under the consent provision” when it struck the requirement that USCIS expressly consent to the dependency order. 367 F.Supp.3d at 216. DHS disagrees with this interpretation of the modification of the consent function in TVPRA 2008. While TVPRA 2008 shifted DHS's consent function to the grant of the SIJ classification and removed the requirement that DHS “expressly” consent to the dependency order,

Congress did not remove the consent function. DHS cannot treat the consent function as absent because Congress did not remove it, and neither can DHS

render it meaningless by applying a presumption that every petition that includes a juvenile court order merits consent.

DHS notes that “express” consent to an adjudicative process it controls, unlike express consent to a dependency order issued by a State juvenile court, would result in an adjudicative redundancy.

The determinations made by the juvenile court are related to the dependency or custody, parental reunification, and best interests of the child under relevant State law. USCIS does not go behind the juvenile court order to reweigh evidence and generally defers to the juvenile court on matters of State law. Granting consent based on a petitioner's eligibility for SIJ classification under immigration law is the role of USCIS. It is not the role of the State court to act as an immigration gatekeeper. It is clear that SIJ classification was created, and remains a vital way, to provide immigration relief to children who are victims of parental maltreatment. DHS therefore believes its interpretation of the consent function is a reasoned approach based on the statutory history of SIJ classification and of the consent function.

In response to commenters' concerns regarding how USCIS would weigh the petitioner's motivations, DHS recognizes that a juvenile court order may have multiple purposes and that there may be an immigration motive in seeking the determinations concurrent with, and in some instances, equal in weight to, a desire to obtain relief from parental maltreatment. For example, a child who has been placed in long-term foster care may not become aware of the need to regularize their status until well after the original determinations regarding non-reunification with their parent(s) were made by the juvenile court. At that time, they may separately seek the requisite determinations from the juvenile court related specifically to SIJ eligibility. Although a primary reason for seeking the juvenile court determinations at that point would be for the purpose of obtaining immigration status, it does not negate their underlying motivations for seeking the original relief from parental maltreatment from the court.

In recognition of the fact that SIJ petitioners may have dual or mixed motivations, DHS has modified the consent function by removing the requirement that the petitioner demonstrate that they did not seek the juvenile court's determinations “primarily for the purpose of obtaining lawful immigration status” and instead requiring the petitioner to establish that “

a primary reason

the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.” See new 8 CFR 204.11(b)(5) (emphasis added). Establishing that a primary reason the petitioner sought the juvenile court determinations was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law is dependent upon the facts and circumstances of each case. USCIS may consider any materially relevant evidence, and DHS has clarified language on the operation of its consent function.

See

new 8 CFR 204.11(b)(5) and (d)(5).

(b) Roles of the Juvenile Court and DHS in Determining Eligibility

Comment:

Many commenters expressed concern that as written, the proposed rule instructs DHS to re-adjudicate the determinations made by juvenile courts as part of the consent analysis. One commenter stated that this gives in effect “appellate review” of the State court adjudication to USCIS; another said that this provides for the impermissible review and adjudication of State court findings.

Response:

The role of DHS is fundamentally different from that of the juvenile court. The juvenile court makes child welfare-related determinations under State law. USCIS determines if a child meets the statutory requirements for SIJ classification under Federal immigration law. A juvenile court determines if it has the jurisdiction and evidence to issue an order under State law for the requested juvenile court action (

e.g.,

appoint a legal guardian). While USCIS defers to the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if a child's maltreatment constituted abuse, neglect, abandonment, or a similar basis under State law, it must still determine whether a primary reason the petitioner sought the juvenile court determinations was to obtain relief from abuse, neglect, abandonment, or similar basis found under State law. To make this determination, DHS requires the factual basis for the court's determinations and evidence that the juvenile court granted or recognized relief from parental abuse, neglect, abandonment, or similar basis under State law.

See

new 8 CFR 204.11(d)(5)(i) and (ii). DHS will not re-adjudicate the juvenile court determinations regarding State law, but rather will look to the juvenile court's determinations, the factual bases supporting those determinations, and the relief provided or recognized by the State juvenile court in exercising its consent function.

See

new 8 CFR 204.11(d)(5).

Comment:

Eight commenters thought that the DHS interpretation of the consent function in the proposed rule conflated the pursuit of a juvenile court order with the pursuit of a special order from a judge, including the determinations and factual findings necessary for SIJ classification. The commenters noted that in some jurisdictions, the determinations for dependency and custody are made in separate hearings from the other required determinations for SIJ eligibility. They further noted that in some jurisdictions, an SIJ juvenile court order is a separate, special order issued to facilitate obtaining immigration relief, while determinations relating to custody and placement are done independently. One commenter expressed general support for requiring that USCIS consent to SIJ classification, rather than the juvenile court order.

Response:

DHS understands that in some jurisdictions, the court will have a separate hearing and issue a separate order with the necessary determinations for SIJ classification. In order to ensure a clearer understanding, DHS has modified the language of the rule to state that the petitioner must establish that a primary reason they sought the juvenile court's determinations, rather than the order itself, was to obtain relief from abuse, neglect, abandonment, or a similar basis under State law. New 8 CFR 204.11(b)(5).

(d) DHS Consent Process and Procedures

Comment:

One commenter said that the requirement of consent by DHS seems wholly unnecessary if, as is stated in the proposed rule, approval of the SIJ petition is considered the granting of consent on behalf of the Secretary of Homeland Security. Other commenters said that the consent provision of the proposed rule essentially instructs USCIS adjudicators to presume fraud and State court incompetence in fact finding in every SIJ case. The commenters further noted that the “primary purpose” and “bona fide” language in proposed 8 CFR 204.11(c)(1)(i), 76 FR 54985, aims to effectively reinstitute the express consent provision from prior to the changes made by TVPRA 2008 by requiring a review of the evidence in the record for proof of the petitioner's primary motive and a “bona fide” basis to grant SIJ classification.

Response:

DHS disagrees that the consent provision is unnecessary

because the proposed rule indicated that approval of the SIJ petition is considered the granting of consent on behalf of the Secretary of Homeland Security. The NPRM specifically stated that the “the approval of a Form I-360 is

evidence

of the Secretary's consent, rather than consent being a precondition of the juvenile court order” in order to clarify the TVPRA change. 76 FR 54981 (emphasis added). DHS did not conflate consent with approval.

DHS also disagrees that the proposed rule instructs USCIS adjudicators to presume fraud or State court incompetence, or to re-adjudicate the juvenile court determinations or factual findings. The role of the State court and DHS are fundamentally different. While juvenile courts make determinations pursuant to their State law, USCIS must adjudicate petitions for SIJ classification under Federal immigration law, and may grant consent only where the eligibility criteria are met and DHS determines that a primary reason the petitioner sought the required juvenile court determinations was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.

See

new 8 CFR 204.11(b)(5). DHS cannot delegate determinations of eligibility for the SIJ classification nor its consent function to a State court.

As previously noted, DHS will conduct a case-specific adjudication of each petition to ensure that petitioners have met their burden of proving that USCIS consent is warranted. DHS therefore declines to make any change in response to these comments as DHS consent is itself an eligibility requirement pursuant to the statute at INA section 101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii).

Comment:

Three commenters wrote that DHS should develop a process for internal review if USCIS determines that the juvenile court order was sought primarily to obtain immigration benefits and USCIS would deny consent. These commenters pointed to a USCIS memorandum

and stated that it requires supervisory review prior to denying consent or issuing a denial of the SIJ petition. As an alternative to supervisory review, the commenters suggested review at USCIS headquarters.

USCIS, “Memorandum #3—Field Guidance on Special Immigrant Juvenile Status Petitions” (“Policy Memorandum #3”), May 27, 2004, available at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf.

Response:

DHS appreciates commenters' concerns regarding denials. However, DHS will not promulgate an internal review process in the rule that would bind USCIS to an administrative procedure that could restrict resource allocation and become outdated. Supervisory review instructions will be provided in guidance documents if necessary. DHS will consider these comments when drafting such guidance.

Comment:

Two commenters requested that USCIS notify the petitioner that a decision to deny consent is appealable to the AAO.

Response:

USCIS notifies denied petitioners of the right to appeal the decision to the AAO as required by 8 CFR 103.3(a)(1)(iii)(A) for all appealable decisions. For SIJ petitioners, this includes the ability to appeal the denial of an SIJ petition based on the withholding of DHS consent. DHS is not aware of this requirement not being followed, but to avoid any confusion and in response to comments, the final rule at new 8 CFR 204.11(h) requires notifying petitioners of their right to appeal pursuant to 8 CFR 103.3.

Comment:

One commenter said that if consent to SIJ classification is warranted when “the state court order was sought primarily for the purpose of obtaining relief from abuse, neglect, abandonment or some similar basis under state law,” then USCIS should clearly list all required initial evidence. The commenter further stated that it would be helpful to have a list of a few examples to clarify what “additional evidence” may be required as well.

Response:

There are variations in State laws, as well as varying requirements regarding privacy and confidentiality, so there are no specific documents that may or may not fulfill these evidentiary requirements. However, at new 8 CFR 204.11(d)(5)(i)(A) and (B), DHS provided examples of what may constitute relief from parental maltreatment, including “the court-ordered custodial placement” or “the court-ordered dependency on the court for the provision of child welfare services and/or other court-ordered or recognized protective or remedial relief . . .” to provide further clarification on what evidence may fulfil this requirement. Examples of documents that may be provided as evidence in support of the factual basis for the juvenile court order include: Any supporting documents submitted to the juvenile court; the petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings; court transcripts; affidavits summarizing the evidence presented to the court and records from the judicial proceedings; and affidavits or records that are consistent with the determinations made by the court.

USCIS Policy Manual, Volume 6, Immigrants, Part J, Special Immigrant Juveniles, Chapter 3, Documentation and Evidence [6 USCIS-PM J.3], available at

https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3.

(e) Burden on the Petitioner

Comment:

Many commenters said that the proposed regulations regarding consent imposed too great a burden on petitioners. These commenters asked DHS not to require the petitioner to submit documentation and make arguments in excess of what the statute requires, and many said that DHS should not require findings of fact or additional evidence beyond the determinations in the juvenile court order. Several commenters stated that the DHS interpretation of the consent function and requirement for evidence of the factual basis is burdensome because it requires the petitioner to prove to USCIS what the juvenile court has already determined. Another commenter said that the SIJ statute only requires that SIJ orders contain factual findings, and therefore, USCIS does not need to evaluate the petitioner's intent for initiating dependency court proceedings nor weigh evidence to determine whether it believes the court made proper findings. One commenter wrote that they strongly agree with USCIS that “the petitioner bears the burden” of proving that the State court order was not sought primarily for any other reason than obtaining relief from abuse, neglect, abandonment, or some similar basis under State law, with particular scrutiny of petitions whose primary motivation is obtaining an immigration benefit. Another commenter recommended that the final rule incorporate the principles found in the NPRM and the USCIS Policy Manual that juvenile court findings of fact regarding the basis for a determination of abuse, neglect, abandonment, or a similar basis “are usually sufficient to provide a basis for the Secretary's consent.” 84 FR 54981;