The Second Department, reversing Family Court, determined the petition for an order making specific findings which would lead to special immigrant resident status (SIJS) should have been granted:
Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not possible due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interest to be returned to his or her previous country of nationality or country of last habitual residence … .
Based upon our independent factual review, the record establishes that the child’s father is deceased, and therefore, reunification of the child with the father is not possible … .
Further, the Family Court erred with respect to its recital of the best interest element. The law does not require a finding that “it is in [the child’s] best interest to remain in the United States,” but that “it would not be in the [child’s] best interest to be returned to [his or her] previous country of nationality or country of last habitual residence” (8 USC § 1101[a][27][J][ii]). Here, the record reflects that it would not be in the child’s best interest to be returned to El Salvador, her previous country of nationality and last habitual residence. Matter of Carlos A.M. v Maria T.M., 2016 NY Slip Op 05374, 2nd Dept 7-6-16
FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/SPECIAL IMMIGRANT RESIDENT STATUS (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)