Program Instruction

ACF

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Refugee Resettlement
1. Log No.: 10-01 2. Issuance Date: December 24, 2009

Administration 3. Originating Office: Division of Unaccompanied Children’s
For Children Services
and Families 4. Key Words: special immigrant juvenile status, dependency,
unaccompanied alien children, custody

PROGRAM INSTRUCTION
Subject: Specific Consent Requests
Legal and Related: The William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA of 2008); modified
section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(27)(J)) concerning special immigrant juvenile (SIJ) status;
Homeland Security Act of 2002, 6 U.S.C. § 279(b)(1).
Purpose: To obtain SIJ status under the TVPRA 2008 modifications, a
child must be declared dependent by a juvenile court.1 However, an
unaccompanied alien child (UAC) in HHS custody who seeks to invoke
the jurisdiction of a state court for a dependency order and who also
seeks to invoke the jurisdiction of a state court to determine or
alter his or her custody status or placement must first receive
“specific consent” to such jurisdiction from HHS.2
In other words, if a UAC in HHS custody seeks to have a state court
make decisions concerning his or her placement or custody, the UAC
must receive HHS’ “specific consent.” For example, if a UAC wishes to
have a state court, not HHS, decide to move him/her out of HHS
custody and into a state-funded foster care home, the UAC must first
receive “specific consent” from HHS to go before the state court.
If a UAC only seeks a dependency order and does not seek to
have the state court determine or alter his or her custody
status or placement, the UAC is not required to seek any
1

Specifically, the child “has been declared dependent on a juvenile court located in the United States
or whom such a court has legally committed to, or placed under the custody of, an agency or
department of a State, or an individual or entity appointed by a State or juvenile court located in the
United States, and whose reunification with one or both of the immigrant’s parents is not viable due
to abuse, neglect, abandonment, or a similar basis found under State law.” See TVPRA of 2008,
§235(d)(1)(A).
2

See TVPRA of 2008, § 235(d)(1)(B)(ii). See also Perez-Olano v. Holder, Case No. CV 05-03604 DDP
(RZx), C.D. Cal., “Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification
and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Adjudication,”
January 8, 2008, pp. 38 – 40 (Appeal and Cross-Appeal Pending).
1

consent from HHS. If the UAC wishes to go to state court only to be
declared dependent in order to make an application for SIJ status (i.e.,
receive an “SIJ-predicate order”3), the child does not need HHS’
consent.
HHS will review and provide decisions on “specific consent” requests,
including those requests made by children who were in pending
proceedings before the Department of Homeland Security or the
Executive Office for Immigration Review, or related administrative or
Federal appeals, on the date of the enactment of the TVPRA of 2008
(i.e., December 23, 2008).4
Instructions:
(1)

Attorneys or others acting on behalf of a UAC must fill out
both sections of the Form HHS-Request for Specific
Consent and attach a G-28, EOIR-28, EOIR-29 or other
form of authorization to act on behalf of the UAC.

(2)

This completed form with proof of authorization to
represent or act on behalf of the child must be submitted
to the Office of Refugee Resettlement (ORR) by email to
the following address: [email protected]

(3)

ORR will acknowledge by email receipt of the request
within two business days.

(4)

The ORR Director will consider the request and provide by
email a decision on the request in no more than thirty
business days. If the ORR Director denies a request,
he/she will provide, along with the decision, any
documentation reviewed in reaching the decision.

(5)

If this request is urgent (e.g., the UAC will soon turn 18
years old), the request must be marked “urgent” in the
subject line of the requestor’s email.

(6)

In the event the request is denied, the Attorney of Record
or other individual or entity authorized to act for the child
will have thirty business days from the date of the email
notice of denial to submit a request to the Assistant

3

See Id. at p. 38.

4

See TVPRA § 235(h)(2).

2

Secretary for the Administration for Children and Families
(ACF) for reconsideration of the decision.
(7)

The ACF Assistant Secretary will send his/her decision on
the reconsideration to the Attorney of Record or other
individual or entity authorized to act for the child within
fifteen business days from the date of the receipt of the
reconsideration request. This will be considered a final
administrative decision.

(9)

If a material change in circumstances develops in a child’s
situation after a final administrative denial, such that there
may be a need to review the original decision, the Attorney
of Record or other individual or entity authorized to act for
the child should submit a new Request for Specific Consent
form.

CONSIDERATIONS:
As noted in the attached Request for Specific Consent form, UAC
seeking specific consent must provide a brief statement concerning the
basis for their request to change their placement or custodial
arrangement.
Taking into consideration its responsibilities under the TVPRA of 2008
and the Homeland Security Act to provide safe and secure care and
placement for UAC, HHS will evaluate whether continued HHS custody
is required to ensure a child’s safety or the safety of the community,
or to prevent risk of flight.5 HHS may review its files concerning a
child prior to making a decision. However, HHS will not make a prima
facie determination on whether the child is eligible for SIJ status and
will not evaluate any documentation for this purpose.
Attachments:
HHS’ Request for Specific Consent Form
Inquiries: Maureen Dunn, Director, Division of Unaccompanied
Children’s Services, at 202-401-5523.

5

See TVPRA of 2008, § 235(c)(2). Also see 6 U.S.C. § 279(b)(1).
3