You are here: / / Natural Mother Appointed Guardian of Her Children to Facilitate Undocumented...
,

Natural Mother Appointed Guardian of Her Children to Facilitate Undocumented Children’s Pursuit of Special Immigrant Juvenile Status

In a full-fledged opinion by Justice Chambers, the Second Department reversed Family Court and awarded mother guardianship of her children so the undocumented children could pursue special immigrant juvenile status (SIJS) to become lawful residents of the United States.  In El Salvador the children had been threatened with death if they did not join a local gang, and the children’s grandmother had been killed by the gang:

The Immigration and Nationality Act, which established SIJS (see 8 USC § 1101[a][27][J]; Pub L 101-649, § 153, 104 US Stat 4978 [101st Cong, 2d Sess, Nov 29, 1990]), employs “a unique hybrid procedure that directs the collaboration of state and federal systems” … . The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child’s best interests to be returned to his or her home country … . Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services (hereinafter USCIS) for SIJS … . In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age (see 8 CFR 204.11[c][1], [2]). Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS… . The Secretary’s consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse, neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status … . Since ultimately the Secretary must give consent, the Family Court “is not rendering an immigration determination” … .

In the case before us, there are sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests … . * * * Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador … . In sum, assuming the truth of the allegations, we disagree with the Family Court’s conclusion that there is “no reason” to appoint the mother as guardian of the children. Matter of Marisol NH 2014 NY Slip Op 00664, 2nd Dept 2-5-14

The Second Department reached the same conclusion in another case decided the same day: Matter of Maura AR-R (Santos FR), 2014 NY Slip Op 00669, 2nd Dept 2-5-14

 

You might also like
ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).
The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action
Handwriting Expert Not Necessary to Create Question of Fact About Authenticity of Signature
A NOTE EXECUTED BY ONE TENANT BY ENTIRETY AND SECURED BY REAL PROPERTY OWNED BY BOTH TENANTS BY THE ENTIRETY, DONE WITHOUT THE OTHER TENANT BY THE ENTIRETY’S CONSENT, DOES NOT ENCUMBER THE OTHER TENANT BY THE ENTIRETY’S INTEREST IN THE REAL PROPERTY (SECOND DEPT).
REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD.
Abuse Finding, Based Upon an Unsatisfactory Explanation for the Child’s Injury, Reversed Based Upon the Testimony of Petitioner’s Medical Witness Who Stated the Injury Could Have Been Caused by a Fall and Described the Child as Basically Asymptomatic and Happy at the Hospital
MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT).
Proof of Value of Property For Purposes of Entering a Deficiency Judgment Not Sufficient

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation... Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable...