Julian Yeboah v. United States Department of Justice Immigration

PRECEDENTIAL
Filed September 29, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2921
JULIAN YEBOAH,
Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE;
CHARLES W. ZEMSKI, DISTRICT DIRECTOR, UNITED
STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE; KENNETH J. ELWOOD
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No.01-cv-03337)
District Judge: Honorable Franklin S. VanAntwerpen
Argued October 18, 2002
Before: ROTH, GREENBERG, Circuit Judges
and WARD* District Judge
(Filed: September 29, 2003)
* Honorable Robert J. Ward, District Court Judge for the Southern
District of New York, sitting by designation. Judge Ward participated in
the argument and conference in this appeal but died before the opinion
was filed.

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Stephen G. Harvey, Esquire (Argued)
Pepper, Hamilton, L.L.P.
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799
Gerard A. Dever, Esquire
Fine, Kaplan and Black, R.P.C.
1845 Walnut Street, 23rd Floor
Philadelphia, PA 19103
COUNSEL FOR APPELLANT
Robert D. McCallum, Jr.,
Assistant Attorney General
Terri J. Scadron
Senior Litigation Counsel
Brenda M. O’Malley (Argued)
Attorney
Office of Immigration Litigation
U.S. Department of Justice
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
COUNSEL FOR APPELLEES
OPINION OF THE COURT
ROTH, Circuit Judge:
We address two issues in this appeal. First, did the
District Court have subject matter jurisdiction to review the
denial of Julian Yeboah’s request for consent to a
dependency hearing for special immigrant juvenile (SIJ)
status. Second, if it did have jurisdiction, was the Attorney
General’s denial of consent for a hearing arbitrary and
capricious or an abuse of discretion under the Immigration
and Naturalization Act, 8 U.S.C. § 1101, et seq. as amended
(INA). We hold, in light of our decision in M.B. v.
Quarantillo, 301 F.3d 109 (3d Cir. 2002), that the District
Court did have jurisdiction. In addition, we conclude that
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the Attorney General did not abuse his discretion or act
arbitrarily or capriciously in denying Julian’s request.
Accordingly, we will affirm the grant of summary judgment
to the Immigration and Naturalization Service (INS) by the
District Court.
I. Facts
Julian (Kofi) Yeboah seeks SIJ status pursuant to 8
U.S.C. § 1101(a)(27)(J) (2002), which allows an alien
juvenile to remain in the United States in long-term foster
care if a state juvenile court declares the juvenile
dependent due to abuse, neglect, or abandonment. Julian
arrived at John F. Kennedy Airport in New York from the
Republic of Ghana on March 4, 2000. He was 10 years old
and unaccompanied, with no travel documents and only
$1.25 in his pocket. Upon arrival in the United States, the
INS took Julian into custody, where he remains. Julian’s
father and brother are in Ghana. His mother abandoned
the family when Julian was a small child. The remaining
facts are not clear. Julian alleges that a friend of his father
placed him on the airplane to come to the United States.
However, a Minister from the Ghanian Embassy, who
interviewed Julian, testified that Julian’s father, Thomas
Yeboah, placed Julian on the plane. Julian claims that he
has no family in the United States, but an anonymous
woman, believed to be Julian’s aunt, telephoned the
Ghanaian Embassy after Julian’s arrival, fearful that he
had not arrived. Julian states that he was abused and
abandoned, but the medical reports, read together, are
inconclusive.
The parties dispute the nature of Julian’s relationship
with his father. Dr. Marc A. Forman, a child psychologist,
conducted a 90 minute interview with Julian. In his written
report, prepared on Julian’s behalf, Dr. Forman notes that
Julian stated he came to the United States to escape his
abusive father. In view of Julian’s stuttering, nervous ticks
in both eyes, bed wetting, depressed affect, and anxiety and
sleep disturbance, Dr. Forman diagnosed Julian with
Posttraumatic Stress Disorder stemming from physical
abuse and “being sent out of the country . . . as an
unaccompanied minor.” Dr. Forman believed that Julian
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risked developing a “serious mental illness” if he were
forced to return to Ghana and recommended that Julian
remain in the United States in foster care. The report
documented that Julian “thought his father had broken one
of his fingers, or maybe his arm, but he couldn’t remember
which side.”
The INS, however, concluded that Julian was not abused,
based upon a separate medical examination at which
Julian apparently was not asked about, and failed to
mention, accidents or injuries during the previous year. X-
rays and a CAT scan revealed no physical signs of past
abuse. In addition, the INS District Director presented the
comments of the staff at Berks County Youth Center that
Julian did not exhibit depression or dysfunctional
behaviors and was social, active, and “relatively happy.”
The INS did not offer the testimony of a competing child
psychologist.
The INS believes that Julian’s father placed him on the
airplane in an attempt to secure United States citizenship
for the boy, possibly as part of an unworkable long-term
scheme to make the father and brother eligible for United
States citizenship.1 Julian’s father originally told the INS
that he wanted his son to return to Ghana. After Julian’s
first request for an SIJ hearing was denied, the father sent
a declaration that he does not want Julian to come back.
Julian has been in telephone contact with his father on 15
occasions between February and September 2001 and twice
between December 2001 and January 2002.
The INS District Director, acting on behalf of the United
States Attorney General, denied consent to an SIJ
proceeding. Julian brought suit against the INS under the
Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA)
in the District Court for the Eastern District of
Pennsylvania, arguing that the District Director’s decision
was arbitrary and capricious or an abuse of discretion. The
government moved to dismiss the action under Fed. R. Civ.
Pro. 12(b)(1), on the ground that the District Court lacked
1. The parents of children granted SIJ status are not eligible for
immigration rights and privileges. 8 U.S.C. § 1101(a)(27)(J)(iii)(II); see also
H.R. Rep. No. 105-405 at 130.
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subject matter jurisdiction to review the decision of the
Attorney General. The District Court held that the decision
of the Attorney General was subject to judicial review and
denied the government’s motion to dismiss. Yeboah v. INS,
No. 01-CV-3337, 2001 U.S. Dist. LEXIS 17360 *1, 17 (E.D.
Pa. Oct. 26, 2001).
Both parties moved for Summary Judgement. The
District Court remanded the matter to the INS District
Director for reconsideration in light of the newly received
declaration by Julian’s father that he did not want Julian
to return to Ghana. The INS again rejected Julian’s petition
on the basis that Julian was seeking SIJ status for the
improper purpose of obtaining permanent resident status,
rather than seeking relief from abuse, abandonment, or
neglect. The District Director concluded:
Julian has failed to establish that he suffered abuse,
abandonment, or neglect in Ghana. Thus, the Service
has concluded that Julian is not seeking SIJ status for
the purpose of obtaining relief from abuse,
abandonment and neglect, but rather is seeking that
status for the purpose of obtaining permanent
residence.
The parties refiled cross-motions for Summary Judgement.
The District Court granted Summary Judgement in favor of
the INS and ordered the parties to proceed with the
stipulated final removal order. Yeboah v. INS, 223
F.Supp.2d 650 (E.D. Pa. 2002). Julian now appeals the
grant of summary judgment by the District Court.
II. Jurisdiction and Standard of Review
The jurisdictional issue in this case is resolved by M.B. v.
Quarantillo, 301 F.3d 109 (3d Cir. 2002), in which a panel
of this Court held that under the APA, 5 U.S.C. §§ 701-06,
federal courts have jurisdiction to review the Attorney
General’s denial of an alien’s request for consent to a state
juvenile dependency hearing. The facts of M.B. parallel
those of the present case: a plaintiff alien requested a state
juvenile dependency hearing for purposes of determining
whether the alien qualified for SIJ status.2 Thus, pursuant
2. The Court notes that the plaintiff in M.B. was ineligible for SIJ status
since he was past the age of majority, but this distinction does not alter
the applicability of the jurisdictional review holding.
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to M.B., the District Court had subject matter jurisdiction
under 28 U.S.C. § 1331 because this action arises under
the APA.
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291, as the District Court’s order of June 26,
2002, is a final, appealable order.
Although this case is an appeal from the denial of a Fed.
R. Civ. Pro. 56(c) cross-motion for Summary Judgement,
our standard of review of the INS District Director’s
decision under the APA is limited to abuse of discretion. 5
U.S.C. § 706(2)(A) (stating that an agency action may be
overruled if “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”); see also M.B., 301
F.3d at 113 (citing INS v. Yang, 519 U.S. 26, 32 (1996)).
Although a reviewing court must “engage in a substantial
inquiry” of the administrative record before the agency, “the
ultimate standard of review is a narrow one” where the
reviewing court “is not empowered to substitute its
judgment for that of the agency.” C.K. v. New Jersey Dep’t
of Health & Human Serv., 92 F.3d 171, 181-82 (3d Cir.
1996) (quoting Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 415-16 (1971)) (internal citations
omitted). The terms of the enabling statute establish the
scope of agency authority and the factors to consider. C.K.,
92 F.3d at 182. Where the statute is not informative, it is
long-standing practice that the reviewing court must turn
to legislative history. Director v. Sun Ship, Inc., 150 F.3d
288, 291 (3d Cir. 1998) (citing Adams Fruit Co., Inc. v.
Barrett, 494 U.S. 638, 642 (1990). Operating within this
framework, the reviewing court may set aside the agency
decision only if there is “clear error of judgment.” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971) (distinguished on other grounds). Thus, even if there
are genuine issues of material fact, deference must be given
to the agency’s interpretation of the facts, so long as they
are based upon credible information.
III. Discussion
A. Background
The SIJ provisions of the INA were enacted in 1990 to
protect abused, neglected, or abandoned children who, with
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their families, illegally entered the United States. Congress
provided an alternative to deportation for these children.
Rather than being deported along with abusive or neglectful
parents, or deported to parents who had abandoned them
once in the United States, such children may seek special
status to remain in the United States. This rule was
abused, however, by juveniles entering the United States as
visiting students. See, e.g., J.A. at 48, Attorney General
Reviewing Potential Abuse of Immigration Law: Hearings on
the FY ’98 Budget Request of the Justice Department Before
the Appropriations Subcommittee on Commerce, Justice,
State and the Judiciary of the Senate Appropriations Comm.,
105th Cong. (1997) (Statement of Domenici, U.S. Senator)
(“[T]his is a giant loophole . . . every visiting student from
overseas can have a petition filed in a state court . . .
declaring that they’re a ward and in need of foster care, . .
. [and] they’re granting them.”). The 1997 amendments at
issue in this case, and discussed below, were enacted to
address this problem. An appreciation of the legislative
evolution of the SIJ provisions is vital to understanding the
context of the present case.
SIJ status is conferred under 8 U.S.C. § 1101(a)(27)(J). In
order for a child to be eligible for such status, an
immigration court must declare the child dependent and
eligible for long-term foster care as a result of abuse,
abandonment, or neglect. § 1101(a)(27)(J)(I). The child also
must be under 21 years of age and unmarried. 8 C.F.R.
§ 204.11(c)(1)-(2). Additionally, eligibility for long-term foster
care requires a finding that it is not in the best interest of
the child to return to his or her home country. 8 U.S.C.
§ 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(c)(6). Prior to the 1997
amendments, a state court was able to conduct SIJ
proceedings for any child. In 1997, Congress amended the
SIJ status provision to require the consent of the United
States Attorney General to hold a SIJ proceeding. 8 U.S.C.
§ 1101(a)(27)(J)(iii)(I) (“[T]he Attorney General [must]
specifically consent to such [juvenile court] jurisdiction.”).
The INS District Director is empowered to make this
determination on behalf of the Attorney General.3
3. We take judicial notice that several bills are pending in Congress that
may alter the role of the INS in determining eligibility for SIJ proceedings
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The standard for making the consent determination is
not articulated in the SIJ statute or its implementing
regulation at 8 C.F.R. § 204.11. For this reason, courts
must look to legislative intent.4 According to the House
Report accompanying the 1997 Amendments, the purpose
of the amendments is 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), available at 1997 WL
712946, at *1; see also M.B., 301 F.3d at 114 (stating that
the purpose of the amendments is to “curtail the granting
of special immigrant juvenile status.” (construing H.R. Rep.
No. 105-405, at 130 (1997)). SIJ status is supported if
“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.” H.R. Rep. 105-405, at 130 (1997).5
by establishing the Office of Children’s Services, which would review
these claims directly. S.R. 2444, 107 Cong. (2001) (pending before the
Senate Judiciary Committee as of May 2, 2002); H.R. 1904, 107 Cong.
(2001) (pending before the House Committee on Judiciary as of May 30,
2001); S.R. 121, 107 Cong. (2001) (pending before the Senate Judiciary
Committee, Subcommittee on Immigration, which held hearings on Feb.
28, 2002).
4. As the District Court properly notes, the INS’ September 27, 1999,
“Clarification of Interim Field Guidance” should not be afforded Chevron
deference, and we need not rule on the merits of the approach presented
there, since it lacks statutory construction and is not the product of
formal rule-making procedures. Yeboah, 223 F.Supp.2d at 653-54
(discussing Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)). The memo states that the District Director
should consent to SIJ proceedings if: “(1) it appears that the juvenile
would be eligible for SIJ status if a dependency order is issued, and (2)
in the judgment of the district director, the dependency proceeding
would be in the best interests of the juvenile.” J.A. at 347, Pl.’s Am.
Compl., Ex. A, Special Immigrant Juveniles: Clarification of Interim Field
Guidance, July 9, 1999, at 2.
5. There appears to be an issue as to whether the Attorney General
should determine if SIJ status is sought “primarily for the purpose of
obtaining the status of an alien lawfully admitted for permanent
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For the reasons stated below, we find that the INS
District Director did not act arbitrarily or capriciously or
abuse his discretion in denying consent to Julian for a
juvenile court dependency hearing.
B. Scope of Discretion of the District Director
In considering the arbitrary and capricious standard,
generally, and as noted by the District Court, we recognize
that much deference is afforded to the agency; “[a]n action
will not be deemed arbitrary, capricious, or an abuse of
discretion simply because one may happen to think it ill-
considered, or to represent the less appealing alternative
solution available . . . . Rather, we require that the agency’s
action be rationally related to the purposes to be served,
and supported by the facts found in the record.” Yeboah,
223 F.Supp.2d at 655 (citing Hondros v. United States Civil
Service Comm’n, 720 F.2d 278, 295-296 (3d Cir. 1983)
(internal citations and quotations omitted)). The INS
Director’s discretion is bound only by due process
considerations. As a juvenile alien, Julian has the right to
have his request for a dependency hearing considered in
accordance with INS policy. Yeboah, 223 F.Supp.2d at 655
(citing Blazina v. Bouchard, 286 F.2d 507, 511 (3d Cir.
1961)).
residence, rather than for the purpose of obtaining relief from abuse or
neglect” prior to consenting to the dependency hearing or afterward. The
INS in its brief in this appeal argues that the quoted language refers only
to juvenile aliens, not in INS custody, who have already obtained a state
court dependency order. In M.B., however, we considered the import of
the quoted language in determining that the INS did not act arbitrarily
and capriciously in denying a hearing to an alien who would not have
been able to meet the standards required for an SIJ application. M.B.,
301 F.3d at 114. We agree with the M.B. panel that it is not arbitrary or
capricious to deny consent to a hearing that would be an exercise in
futility. Id. Implicitly, therefore, when a District Director decides to deny
a dependency hearing, it is not arbitrary or capricious for him to have
considered whether allowing that hearing would be an exercise in futility.
In reaching this conclusion, Judge Roth and Judge Greenberg differ from
the views that Judge Ward would have expressed in his dissent, had he
lived. See footnote 7, infra.
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The INS denied consent on the ground of improper
purpose, stating:
Julian has failed to establish that he suffered abuse,
abandonment, or neglect in Ghana. Thus, the Service
has concluded that Julian is not seeking SIJ status for
the purpose of obtaining relief from abuse,
abandonment and neglect, but rather is seeking that
status for the purpose of obtaining permanent
residence.
In dispute are three aspects of the District Director’s
analysis: (1) whether the District Director may consider the
intentions of the juvenile alien’s parents when a juvenile
seeks SIJ status, (2) whether the District Director may
weigh evidence of abuse and abandonment in making the
determination whether to consent to the dependency
hearing, and (3) if so, whether the District Director’s
conclusion here that there was no abuse or abandonment
was irrational. Each is examined in turn.
Julian argues that the District Director may consider
only the intentions of the juvenile alien and not those of his
parents for a § 1101(a)(27)(J) determination. Thus, he
contends that, while his father may have had an improper
purpose in sending Julian to the United States, if Julian
does not share this intent, he should be entitled to a SIJ
hearing. It is undisputed that the language of
§ 1101(a)(27)(J) does not specify whose purpose is to be
considered. Julian cites language from House Report 105-
405, at 130, for the proposition that since the “beneficiaries
of the provision . . . [are] juveniles,” only the juvenile’s
intent matters. Similarly, Julian argues that “common
sense” dictates that the intentions of parents should not be
imputed to children for purposes of a statute designed to
protect children from parental abuse.
The issue, however, is not imputing intent, but rather,
the relevance of parental intent to the juvenile alien’s claim
for asylum. Both of Julian’s arguments embed the same
non sequitur ; it does not follow that, because the statute
seeks to protect the rights of abandoned, neglected, and
abused children, parental intent behind the migration of
the juvenile alien is irrelevant. In support of his position,
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Julian cites the 1993 statement of then-INS Acting Director
Chris Sale that states “a child in need of the care and
protection of the juvenile court should not be precluded
from obtaining special immigrant status because of the
actions of an irresponsible parent or other adult.” 58 Fed.
Reg. 42,843, *42,847 (1993) (codified at 8 C.F.R. pt. 204.11).6
This statement, however, predates the 1997 amendments
and fails to address the factors that brought them about
and that the District Director might consider in determining
if there is an improper purpose.
Certainly, the record supports a conclusion that Julian’s
father sent Julian to the United States in order for Julian
to become a permanent resident. There is evidence that: (1)
Julian’s father placed him on the airplane, (2) after the
Attorney General issued his first denial of consent to a
dependency hearing, Julian’s father recanted his statement
that he wanted Julian to return to Ghana, and (3) Julian
thought that he was going to visit an aunt in New York and
that a woman, who identified herself as Julian’s aunt,
contacted the Ghanaian Embassy to express her concern
that he had not arrived.
Moreover, in considering whose “intent” is relevant, the
parent’s or the child’s, we should keep in mind the purpose
of the 1997 amendments: to close loopholes in the SIJ
process by denying SIJ status to juvenile aliens who seek it
primarily to obtain permanent residence. When it is the
parents who are attempting to manipulate the system in
order to obtain permanent residence in the United States
for young children, it is consistent with the purpose of the
1997 amendments to focus on the purpose of the parents.
It is the parents of such children whom we want to deter
from future efforts to subvert the SIJ process; the children
are innocent pawns.
Julian contends, however, that the decision on improper
motive is based on the INS determination that he had not
suffered abuse, abandonment, or neglect. He posits that a
juvenile court is qualified to make such a determination but
that the INS is not. He argues that the District Director
6. The quoted statement does not appear in the codified version of the
final rule.
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may not consider whether or not there has been abuse and
abandonment when determining whether the purpose in
seeking SIJ status is an improper one. He urges that the
District Director usurps the role of the state juvenile court
by weighing such evidence.
There is a long-standing practice of allowing the District
Director broad discretion in immigration matters. See Jay
v. Boyd, 351 U.S. 345, 351-52 (1956). Congress did not
indicate that the 1997 Amendments alter the scope of this
discretion. In fact, the amendments broaden the discretion
of the District Director by mandating that he consent to
every SIJ proceeding. The District Court was within its
discretion to weigh the circumstances surrounding Julian’s
trip to the United States, including the various statements
of Julian’s father and “aunt,” and the contacts and
relationship between Julian and his father both before and
after Julian’s arrival here.
In order to come to the determination to deny consent, it
was certainly within the discretion of the INS to consider
the evidence of Julian’s relationship with his family and his
physical and mental condition. In doing so, the District
Director is not making a child welfare evaluation in order to
determine dependency status of the juvenile but, rather, is
weighing conflicting evidence of abandonment versus
deliberate design on the part of the father to create
permanent residence status for Julian. Certainly, a
credibility determination of conflicting evidence is an
appropriate role for the District Director to make in exercise
of his authority to consent or not to a dependency hearing.
There is sufficient evidence in the record to support the
District Director’s conclusion that Julian had suffered no
abuse or abandonment by his father and that the father’s
decision to send Julian to the United States was with the
purpose of obtaining permanent residence status for Julian.
For the above reasons, the factors cited by the District
Director in his denial of consent were considered properly
within his discretion. His conclusion, based on these
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factors and determinations, was neither arbitrary nor
capricious.7
IV. Conclusion
For the foregoing reasons, we will affirm the order of the
District Court, granting the INS’s and denying Julian’s
cross motions for Summary Judgement.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
7. Before his death, Judge Ward had expressed his intent to dissent from
Part IV of this opinion. The reasoning for his dissent was based on his
interpretation of 8 U.S.C. § 1101(A)(27)(J), the statute that grants SIJ
status, as being overarchingly protective in nature.
In Judge Ward’s view, the text of the statute, its generally protective
purpose, and its legislative history require that the juvenile court be
granted jurisdiction to hold a dependency hearing when a child seeking
SIJ status presents evidence of abuse, neglect, or abandonment. In other
words, when there is evidence that the child in question may be one of
the children whom the statute is meant to protect, the government must
permit the juvenile court, which is a neutral expert in child welfare, to
make a finding. This finding is then reviewed by the Attorney General,
who retains the power to consent to or to reject a dependency order, if
one has issued, and to grant or to deny SIJ status.
Because Julian Yeboah had presented evidence that substantiated his
claims of abuse and abandonment, Judge Ward came to the conclusion
that the District Director abused his discretion in denying Julian a
dependency hearing in juvenile court.
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