In reversing Family Court, the Second Department determined the subject child, Brenda, qualified as a “special immigrant” who could apply for lawful permanent residency in the US because she had been abandoned by one (not both) of her parents:
Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101[a][J][i]…), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][J][ii]; 8 CFR 204.11[c]…).
Brenda is under the age of 21 and unmarried. Inasmuch as the Family Court placed Brenda under her mother’s custody, Brenda has been “legally committed to, or placed under the custody of . . . an individual or entity appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i)…). Based upon our independent factual review, we find that the record, which includes a detailed affidavit from Brenda, fully supports Brenda’s contention that, because her father neglected and abandoned her, reunification with her father is not a viable option … . Contrary to the Family Court’s determination, the fact that Brenda’s mother did not also neglect and abandon her does not preclude the issuance of the order requested … . Lastly, the record reflects that it would not be in Brenda’s best interests to be returned to El Salvador… . Matter of Maria PEA v Sergio AGG, 2013 NY Slip Op 07168, 2nd Dept 11-6-13
For a similar case with the same result, see Matter of Karen C, 2013 NY Slip Op 07170, 2nd Dept 11-6-13