The
State of Undocumented Foster Youth: Inconsistent Implementation of Federal
Immigration Regulations by State Child Protective Agencies
Danielle Kalil, University of Michigan
Between
DACA, family separation, and the surge of unaccompanied minors at the border,
immigrant children have featured heavily in the news in recent years. But we
hear less about the many youth in state foster care with undocumented or
insecure status who face significant obstacles to remaining in the country.
These youth and their access to immigration relief are the focus of this paper.
U nonimmigrant status is a type of immigration relief for victims of certain
qualifying crimes who cooperate with law enforcement. To qualify, the applicant
must obtain a signed certification from a law enforcement agency. Per federal
regulations, any agency with “criminal investigative jurisdiction in their
respective areas of expertise” may certify, including “child protective
services.” Many youth in foster care are victims of a crime that would qualify
them for U status. Traditional law enforcement agencies often do not
investigate these crimes in a meaningful way, but child protective agencies do.
Youth who cooperate with these investigations should be able to obtain a
certification; nevertheless, some child protective agencies refuse to certify U
visa applications. The federal government has exclusive authority over
immigration, but by contravening federal immigration regulations, states are
determining who gets to stay in the country. Inconsistent state implementation
of federal regulations results in inequitable administration of immigration
relief. This paper will examine the concrete implications of these disparate
state policies on vulnerable immigrant youth as well as the broader
implications to administrative law of states inconsistently interpreting and
implementing federal immigration regulations.