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MOTHER’S MOTION TO AMEND FAMILY COURT’S FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS AFTER THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES NOTIFIED THE CHILD THAT THE FINDINGS DID NOT ADDRESS THE CHILD’S MEMBERSHIP IN THE MS-13 GANG SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to amend the findings made to allow the child to petition for special immigrant juvenile status (SIJS) should not have been denied without a hearing to address the merits. After Family Court had made the required findings, the child submitted an I-360 petition for special immigrant juvenile status to the United States Citizenship and Immigration Services (USCIS). USCIS notified the child the petition would be denied because of deficiencies in Family Court’s findings, including the failure to consider the child’s alleged involvement with the MS-13 gang. Mother then made a motion to amend the findings but Family Court denied the motion stating that mother failed to state a sufficient reason for the requested amendments:

Given USCIS’s determination, the Family Court, having granted the mother’s guardianship petition in the first instance, should have considered the merits of the subject motion as to whether an amendment of the specific findings order was appropriate, and, if so, amended the specific findings order. Although “[t]his Court’s power to review the evidence is as broad as that of the hearing court, and where . . . the record is sufficiently complete to make our own factual determinations, we may do so” … , here, the record is insufficient to determine whether the Family Court considered the child’s alleged involvement with the MS-13 gang, which would not necessarily preclude a finding that it is not in the child’s best interests to be returned to El Salvador. Consequently, the matter must be remitted to the Family Court … for a hearing on that issue and a new determination thereafter of the mother’s motion, inter alia, to amend the specific findings order … . Matter of Jose S.J. (Veronica E.J.), 2019 NY Slip Op 00275, Second Dept 1-16-19

 

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