Esther K. Hong


This Article focuses on a type of judicial deference that uniquely appears in immigration cases of non-citizen minors and young adults who have adult-ish state offense findings: state adult convictions imposed while they were minors, and state youthful offender findings. Deference, as revealed in these immigration cases, is an independent analytical tool that the Board of Immigration Appeals and federal courts use to presumptively accept the judgment or law of the state or federal government, even if the act goes against the statutes or policies of the other. Specifically, in immigration cases involving state youthful offender findings, the BIA and federal courts defer to federal actors: the authority of the federal government is elevated over the state through the application of a federal non-immigration law, the Federal Juvenile Delinquency Act (“FJDA”), to determine whether these dispositions are juvenile delinquencies for immigration purposes, even if the outcome expressly goes against state action. Meanwhile, in cases where adult state convictions are imposed on minors, the BIA and federal courts defer to state actors: state authorities are elevated over federal authorities in order to find that these findings remain as convictions for immigration purposes, even if express provisions of the FJDA are violated. The study of deference in youth crimmigration cases is significant for two main reasons. First, deference impacts whether these offense findings are interpreted as juvenile delinquency acts or convictions for immigration purposes, and this distinction carries life-altering consequences for non-citizen youth with or without lawful status. Second, this study of deference adds a missing voice to the dialogue on immigration federalism – one that belongs to non-citizen youth who have been exposed to their state’s juvenile delinquency and criminal systems. The state and federal interests that are implicated for this specific population are different than typical adult non-citizens who have committed offenses that trigger immigration consequences. In deciding how to fix deference so that it is consistently and properly applied, immigration officials must take into account both federal and state interests towards non-citizen youth, in addition to the usual federal interests of preserving supremacy over immigration and creating uniformity, and the state interest of protecting its police power. In light of these interests, I ultimately propose that immigration officials should initially defer to the federal government by incorporating the FJDA or another prospective federal standard to determine the nature of these youth offenses for immigration purposes. However, state action should still carry weight, specifically when state authorities have clearly shown that they intended to not expose a non-citizen youth to a standard adult conviction. By implementing this change in deference, immigration officials will be able to advance the important goal of treating non-citizen youth in a uniform and fair manner across state lines, maintain federal plenary power over immigration, and better respect state and federal interests towards youth.

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