USCIS’s Administrative Appeals Office (AAO) issued a precedent opinion this week in Matter of Borges Borsoi, concluding that the date of one’s 21st birthday, as opposed the specific hour one was born on that date, determined whether an applicant for special immigrant juvenile status (SIJ) timely filed her petition. (AAO “conducts administrative review of” appeals of “unfavorable” agency decisions “to ensure consistency and accuracy in the interpretation of immigration law and policy”.) Curiously, this is not the first time a tribunal has been asked this question – and the answer is trickier than you may think.
SIJ Visas
Section 101(a)(27) of the Immigration and Nationality Act (INA) designates various categories of aliens as “special immigrants” who are eligible for lawful permanent resident (LPR) status – that is, to receive a “green card” – including certain “religious workers . . . and employees and former employees of the U.S. government or others who have benefited or faithfully served the U.S. government abroad”.
Those special immigrant categories are subject to numerical caps on admission, as set forth in section 203(b)(4) of the INA.
Subparagraph 101(a)(27)(J) of the INA includes SIJs among those categories, and as USCIS explains: “If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned, or neglected by a parent, you may be eligible for SIJ classification.”
To be granted an SIJ visa, aliens must show they are under the age of 21, unmarried, and possess “a valid juvenile court order issued by a state court in the United States” based on a finding the alien is a dependent of the state or the court, cannot be reunited with his or her parent or parents because of “abuse, abandonment, neglect, or” some similar “basis under state law”, and that it is not in the alien’s “best interests” to return to his or her home country.
Note subparagraph 101(a)(27)(J) of the INA doesn’t include an age limit for applying for SIJ, but because that provision requires the alien to be “declared dependent on a juvenile court located in the United States” and “to minimize confusion caused by dissimilar state laws”, the then-Immigration and Naturalization Service (INS) issued a rule in 1991 to clarify the issue and setting the filing limit at 21.
The regulation in question, now 8 C.F.R. § 204.11(b)(1), has been modified over the years, and here is how it reads today: “A petitioner is eligible for classification as a special immigrant juvenile . . . if they meet all of the following requirements: (1) Is under 21 years of age at the time of filing the petition”.
Giovana Borges Borsoi
The petitioner in this case, Giovana Borges Borsoi, is a Brazilian national and was born in Imperatriz, Brazil, on March 8, 2002.
On March 1, 2023 (a Wednesday), one week before she turned 21 years of age, Borges Borsoi “sought a dependency order and SIJ-related findings before the Commonwealth of Massachusetts Probate and Family Court”.
Two days later, on March 3 (a Friday), that court handed down an SIJ order, “Judgment of Dependency Pursuant to G.L. c. 119 § 39M and Special Findings of Fact and Rulings of Law”, concluding Borges Borsoi “age 20 years, is an unmarried juvenile ward under Massachusetts state law and was dependent upon the court” (cleaned up).
The AAO explained:
The court further concluded that reunification with the Petitioner’s mother was not viable due to neglect and abandonment, and that it was not in her best interest to return to Brazil, her country of nationality. The Petitioner mailed her SIJ petition on Monday, March 6, 2023. She sent two additional SIJ petition packages on March 7, 2023. USCIS received all three petitions on March 8, 2023, the day of her 21st birthday.
As noted, the controlling regulation requires an SIJ applicant to file the petition while “under 21 years of age”, and USCIS denied Borges Borsoi’s petition because she failed to satisfy that filing requirement.
The petitioner appealed, arguing that the AAO should consider “the exact moment or hour of her birth in determining this issue”.
Duarte Ceri v. Holder
Interestingly, this argument isn’t as far-fetched as it may sound, given that at least one U.S. district court did just that in two similar situations.
In an October 2022 decision, In re 21st Birthday Denials of Special Immigrant Juv. Status Applications by USCIS, a judge on the U.S. District Court for the Eastern District of New York (E.D. N.Y.) concluded USCIS erred in rejecting SIJ petitions that were (respectively) received by the agency on the petitioner’s birthday.
“Denial of SIJ status and the path to residency and American citizenship under these circumstances”, the court opined, “is dystopian and cruel”, which may give you some insight into the state of the judge’s mind when he issued that decision.
In any event, the court took the agency to task for failing to follow the Second Circuit’s 2010 opinion in Duarte Ceri v. Holder in calculating the deadline, by determining the time at which the petitioner’s birth took place.
Briefly, Duarte was a green card holder living with his mother when she naturalized on the morning of June 14, 1991, his birthday.
In 1994, he pled guilty to attempted sale of a controlled substance, and based on that conviction, the INS placed Duarte into deportation proceedings, charging him with deportability on controlled substance and aggravated felony grounds.
The immigration judge ordered him deported to the Dominican Republic on those grounds in February 1997, an order that was sustained by the Board of Immigration Appeals (BIA) – a DOJ administrative review tribunal – in September 2001.
Duarte filed a petition for review with the Second Circuit, contending he wasn’t removable because he was not an “alien” because he was born on the evening of June 14, 1983, and automatically derived citizenship when his mother took the naturalization oath on the morning of June 14, 1991 – less than 18 full years after the time of his birth.
At the time of his mother’s naturalization, section 321(a) of the INA (1988) granted what is known as “derivative citizenship” to certain alien children whose parents naturalized while those children were “under the age of eighteen years”, but it does not appear that he ever claimed citizenship before he was placed into deportation proceedings for his drug crime.
“The legal fiction that a day is indivisible is a rule of convenience that is satisfactory only as long as it does not operate to destroy an important right”, the circuit court concluded, but it was “important to the ends of justice to parse the day into hours” in Duarte’s case “for ‘the most precious right’ of citizenship” was “at stake”.
Not surprisingly, there was a dissent in Duarte Ceri, and the lone holdout on the three-judge panel concluded “Duarte was eighteen years old the morning of June 14, 1991, not only for the purposes of derivative citizenship, but for every other purpose recognized by law, from momentous to trivial”.
Matter of Borges Borsoi
There are a few points to dispose of before considering the AAO’s latest opinion, the first being the E.D. N.Y.’s opinion has no precedential bearing on Borges Borsoi’s case because not only wasn’t she in that court’s jurisdiction, but also – as the AAO noted – it isn’t “bound to follow the published decision of a United States district court beyond the specific parties”.
The second is that while the Second Circuit’s opinion has more precedential value than the E.D. N.Y.’s did, it’s not binding on the AAO because the petitioner here is in the jurisdiction of the First Circuit, and since 1989 the BIA has held administrative review agencies are “not required to accept an adverse determination by one circuit court of appeals as binding throughout the United States”.
The third point is that there’s a big difference between a finding that an SIJ petition was untimely filed and “the most precious right of citizenship”, deportation, and a permanent ban on reentering the United States at issue in Duarte Ceri.
Consequently, the AAO concluded it could “discern no administrative prudence in extending the divisibility method of calculating one’s biological age to SIJ petitions” and thus declined “to read Duarte-Ceri’s majority opinion as mandating its application to all immigration cases before DHS with similar regulatory or statutory age requirements”.
Granted (and fortunately), there aren’t a lot of immigration cases in which the specific timing of an alien’s birth is at issue but given there have been enough that the courts (and now the AAO) have parsed their way through the question, it’s good to have a final precedential administrative opinion on it.
Contested citizenship claims, in particular, are difficult enough already without adding the additional burden of including specific times of birth in the calculus, and as for SIJ petitions, the whole point of the status is that the alien is so dependent as a minor on the state court that a special accommodation is required – but in no U.S. jurisdiction is a person aged 21 a “juvenile”.
What About Turnbull?
Note that the AAO could have gone further, skipping a determination of whether it was appropriate to follow the “divisibility method of calculating one’s biological age” by relying on a different circuit court opinion, Turnbull v. Bonkowski, a 1969 decision from the Ninth Circuit.
At issue was a claim that William Turnbull (born January 25, 1945) suffered a personal injury when he was 11 due to allegedly tortious conduct. Statutes toll the point at which children must sue for tort injuries and thereafter lose their claims, and Turnbull’s claim was tolled until he became an “adult”, at which point he had two years to file suit.
The locus of the matter was Alaska, where the age of majority was 19, meaning Turnbull was required to file his complaint by his 21st birthday, but he didn’t file until January 25, 1966, the day he turned 21.
As the Ninth Circuit explained, the district court had held Turnbull “reached the age of nineteen on January 24, 1964, the day before the nineteenth anniversary of his birth and that his action was thus filed more, by one day, than two years after” it should have been.
The circuit court concurred, explaining that the district court’s “conclusion is soundly based upon the common law”, and that:
The logic of the common law rule is apparent. Since one is in existence on the day of his birth, he is, in fact, on the first anniversary of his birth, of the age of one year plus a day or some part of a day. [Turnbull] did, then, reach the age of nineteen years on the day before the nineteenth anniversary of his birth, and he instituted his suit more than two years thereafter. [Emphasis added.]
Thus, in the Ninth Circuit at least it could be argued that an SIJ petition must be filed no later than two days before petitioner’s 21st birthday, reading both Matter of Borges Borsoi and Turnbull together.
SIJ Has “Morphed into an Amnesty Program”
The Center has long been skeptical of the current SIJ visa scheme. As my colleague, Jessica Vaughan, explained in April 2024:
The SIJ green card was originally intended for minors who are genuine wards of the state, lacking competent parents or guardians, but in recent years it has morphed into an amnesty program for illegal aliens under 21 who would not otherwise qualify for permanent residency.
As one legal practitioner noted in the wake of this AAO decision:
What makes [Borges Borsoi’s] situation especially difficult is that a policy change came too late to save her. During the pendency of her denied petition, USCIS began allowing [SIJ] applicants approaching their 21st birthday to file in person at USCIS field offices within a two-week window before the birthday.
It’s not entirely clear why USCIS began offering this accommodation, given that the only class of SIJ petitioners who benefit from it are two weeks out from adulthood, calling into question whether this change is really what Congress intended, or consistent with the statute it wrote.
The petitioner here didn’t request the state court order she needed to seek “special immigrant juvenile” status until she was on the cusp of adulthood and thus has only herself to blame for failing to meet the filing deadline. Congress and even state lawmakers can address SIJ program abuses, but AAO may also exercise its authority to require applicants to comply with the letter – and the date – of the law.