The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
In re Marisol N.H., 2014 WL 444170 (N.Y. App. Div.).
Family court erred in denying petition by children for findings to support SIJS application. The court may make SIJS prerequisite findings of dependency when one parent abused or neglected a child. The court may also appoint a protective parent guardian when returning the children to their home country would subject them to abuse or neglect.
Three siblings, age 19, 18, and 16, were born in El Salvador. The father abused alcohol and physically abused the mother leading her to leave with the children when the oldest child was four. The father had little contact after that.
Lacking support from the father, the mother was forced to live in a neighborhood controlled by gangs. The oldest sibling was pressured into joining a gang. Threats were made on his life if he did not join and he knew of nine other young people who had been killed for refusing to join the gang. A gang member threatened to kill the mother if she would not have sex with him.
Given this situation, the mother fled to the U.S. She first brought the oldest son, who had been the subject of the most immediate threats. The younger children stayed with their grandmother, who was then killed by a gang on her way home from work. Although three individuals were arrested for her murder, other gang members continued to threaten the family. The mother was able to bring the children, and their now orphaned uncle, to the U.S. The mother moved to New York and was able to find employment to support the four children.
The children petitioned for Special Immigrant Juvenile Status (SIJS) and to have their mother appointed their guardian.
The family court concluded that a hearing was not warranted because the children were not dependent on the mother to protect them. The children appealed.
The New York Supreme Court, Appellate Division reversed. The court first provided an overview of Special Immigrant Juvenile Status (SIJS). SIJS is a type of immigration relief that offers a path to lawful residency and citizenship for children who are abused or neglected. The ‘child’ must be under age 21 and be unmarried. The child or his or her representative must petition a court with child welfare jurisdiction. To be eligible the court must find the child is dependent. Next the court must find that reunification with one or both parents is not viable and it is not in the child’s best interests to return to their home country.
If the court makes these findings of fact, the child may petition the United States Citizenship and Immigration Services (CIS) for SIJS. That agency must ultimately consent and the consent should be granted where the facts show the child is primarily seeking the relief to avoid further abuse or neglect, rather than legal residency.
First, the court considered whether the state court had authority to appoint a parent as a guardian. Citing the state Surrogate’s Court Procedure Act, which allowed guardianships for “any person” the court found the trial court did have that statutory authority. Case law does not suggest a different result. In contests between, usually parents and relatives, parents may be awarded custody, which is functionally similar to guardianship under state law. Further, there is no reason to treat contested and uncontested guardianship or custody proceedings differently.
Next, the court discussed the family court’s determination that no hearing was necessary on the children’s best interests because the mother was available and able to protect them. Citing prior state case law, the court held that SIJS findings could be made in cases where a child was abused or neglected by one parent. Further, in determining best interests, the legislative goal of SIJS suggests courts should consider the harm a child might face if returning home.
The court held the uncontested facts clearly supported finding the children would be dependent but for the appointment of their mother as guardian and pursuing SIJS. Their father had abandoned them and, if returned to El Salvador, they faced being forced into gangs or worse.