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Family Court Should Not Have Denied Child’s Motion for the Issuance of an Order Making Specific Findings that Would Allow Her to Petition for Special Juvenile Immigrant Status

The Second Department determined Family Court should not have denied the juvenile’s motion for issuance of an order making specific findings that would allow her to petition the United State Citizenship and Immigration Service (USCIS) for special immigrant juvenile status (SIJS). The court determined the record supported the child’s motion and noted that the Federal government retains control of the immigration determination of whether the child receives SIJS, which cannot be decided by Family Court. The case was remitted to Family Court for a hearing to determine whether it is in the child’s best interests to be returned to El Salvador, and for a new determination on the child’s motion. The Second Department explained the relevant law:

A child may request that the Family Court issue an order making certain specific findings that will enable him or her to petition the USCIS, an agency within the United States Department of Homeland Security, for SIJS … . The findings required to support a petition for SIJS include: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to, or placed under the custody of, an agency or department of the State or an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence (see 8 USC § 1101[a][27][J][i], [ii]; 8 CFR 204.11[c]…). Once those specific findings have been issued, the eligible child may seek the consent of “the Secretary of Homeland Security” to receive special immigrant juvenile status (8 USC § 1101[a][27][J][iii]…).

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record, which includes a detailed affidavit from the child, fully supports her contention that reunification with her father is not a viable option, due to abandonment … . Matter of Pineda v Diaz, 2015 NY Slip Op 03540, 1st Dept 4-29-15

 

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