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Hastings Constitutional Law Quarterly

Abstract

In 1990, Congress enacted the Special Immigrant Juvenile ("SIJ") statute establishing a new form of immigration relief for undocumented children who have suffered from family abuse, neglect, or abandonment. The new law called for cooperation between federal immigration and state child welfare authorities in the implementation of the SIJ law, particularly with regard to jurisdictional and custodial power. Since the late nineteenth century, the federal government has asserted and maintained control over immigration matters, including determinations of individual immigration status. State and local governments, however, have historically taken principal responsibility for protecting the health, safety, and welfare of children within their territories. The Article considers how powers over these minors should be allocated between federal and state authorities. In 1997, Congress amended the SIJ law to address the federal and state conflicts. The amendments restricted state power over these children and granted additional power to the federal authorities. The Article argues that the 1997 amendments jeopardized the safety of children and undermined the purpose of the SIJ statute. Instead, the Article recommends a rule that grants states greater control over the custody and placement of these children.

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