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Children Were Not “Dependent on Court;” They Therefore Did Not Meet Criteria for Statutory Path to Lawful Permanent Residency in US

In a full-fledged opinion by Justice Cohen, the Second Department determined that two children born in Hong Kong, and living with their father in New York, did not meet the “dependency-on-the-family-court” requirement such that they could petition for special immigrant juvenile status (SJIS) pursuant to 8 USC1101 (which provides undocumented children with a gateway to lawful permanent residency in the US).  The court explained:

In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS … . Specifically, the findings of fact must establish that: (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 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 home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).  * * *

The requirement that a child be dependent upon the juvenile court or, alternatively, committed to the custody of an individual appointed by a State or juvenile court, ensures that the process is not employed inappropriately by children who have sufficient family support and stability to pursue permanent residency in the United States through other, albeit more protracted, procedures. In this case, there has been no need for intervention by the Family Court to ensure that the appellants were placed in a safe and appropriate custody, guardianship, or foster care situation, and the appellants have not been committed to the custody of any individual by any court….

While the appellants met all of the other requirements for SIJS, the Family Court correctly determined that the dependency requirement had not been satisfied. A child becomes dependent upon a juvenile court when the court accepts jurisdiction over the custody of that child, irrespective of whether the child has been placed in foster care or a guardianship situation… . The Family Court has only granted applications for SIJS special findings where dependency upon the court was established by way of guardianship, adoption, or custody.  Matter of Hei Ting C, 2013 NY Slip Op 05310, 2nd Dept 7-17-13

 

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