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CHILD’S MOTION FOR FINDINGS TO ALLOW HIM TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED, THERE WAS EVIDENCE THE CHILD WOULD BE KILLED UPON RETURN TO EL SALVADOR (SECOND DEPT).

The Second Department, reversing Family Court, determined that the motion for an order making the findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

Based upon our independent factual review, the record supports a finding that reunification of the child with the father is not a viable option due to parental neglect… . The record demonstrates that when the child lived with the mother and the father in El Salvador, the father would physically mistreat the mother in the presence of the child by hitting her with objects such as a book and shoes, causing her bruising, and that, when the child attempted to defend the mother, the father would hit the child. The child also averred in his affidavit that “[w]hen [the father] would get angry, which was often, he became very violent toward me, yelling at me and punching me,” and the mother indicated that she had to send the child to live with his maternal grandmother in El Salvador because she was afraid of what the father would do to the child. The record also demonstrates that the father had provided no financial support for the child since the child was 10 years old. Thus, the father’s conduct, including acts of domestic violence perpetrated in the presence of the child, constituted neglect … , which established that the child’s reunification with the father is not viable … .

The record also does not support the Family Court’s determination that the child failed to show that it would not be in his best interests to return to El Salvador. The child testified that gang members in El Salvador tried to recruit him, but he refused to join, that after his refusal to join, the gang members threatened and assaulted him multiple times, “hurt me[ ] very bad,” “left me on the streets after they beat me up,” and would have killed him on one occasion if not for a police patrol “coming by that moment,” that he was afraid to go outside after the incident when he was almost killed, and that “if I go back [to El Salvador] they will kill me” … . Matter of Lucas F.V. (Jose N.F.), 2019 NY Slip Op 01079, Second Dept 2-13-19

 

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