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Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status

The Second Department determined Family Court erred when it found the children were not dependent on a juvenile court, a prerequisite for special immigrant juvenile status (SIJS).  The mother had filed a family offense proceeding against the father and the allegations in the petition had been substantiated:

Contrary to the Family Court’s determination, in support of their motion, the children established that they were dependent upon a juvenile court. While guardianship, adoption, and custody are not directly or presently at issue in this family offense proceeding …, under the particular circumstances of this case, the children have become dependent upon the Family Court. The children’s mother has filed a family offense petition against the father seeking an order of protection, alleging that the father has assaulted her and the children. In their motion, the children claimed that they have been neglected by the father based on allegations including physical, mental, and verbal abuse. After conducting an investigation, the Administration for Children’s Services concluded that certain of these allegations were substantiated. On May 6, 2013, shortly after the children made their motion, the Family Court issued an order of protection, effective for two years, directing the father, inter alia, to stay away from the mother and the children.

While a family offense proceeding, or the mere issuance of an order of protection, will not always give rise to a determination that a child has become dependent upon a juvenile court, based on the particular circumstances of this case, we conclude that such a determination is warranted here. As we have previously observed, the intended beneficiaries of the SIJS provisions of the Immigration and Nationality Act are limited to ” those juveniles for whom it was created, namely abandoned, neglected, or abused children'” … . Thus, while, for example, a child support proceeding will not give rise to a determination that a child has become dependent upon a juvenile court (see Matter of Hei Ting C., 109 AD3d 100), under the proper circumstances, a child involved in a family offense proceeding involving allegations of abuse or neglect may properly be the subject of such a determination as an intended beneficiary of the SIJS provisions. Matter of Fifo v Fifo, 2015 NY Slip Op 02762, 2nd Dept 4-1-15

 

 

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Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel

The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:

On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided … . Without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel’s performance was governed by the rule that “the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” … . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status

The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:

Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras … . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)… . However, contrary to the court’s determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner’s contention that, because his father neglected and abandoned him, reunification with his father is not a viable option … . The fact that the child’s mother did not also neglect and abandon him does not preclude the issuance of the order requested … . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14

Same result in Matter of Gabriela Y U M…, 2014 NY Slip Op 04937, 2nd Dept 7-2-14

 

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Juvenile Entitled to Petition for Special Immigrant Juvenile Status—Family Court’s Ruling to the Contrary Reversed

The Second Department reversed Family Court and determined the subject child was eligible to petition for special immigrant juvenile status:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is an undocumented resident who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101[a][27][J][i]). For the juvenile to qualify for SIJS status, it must be also determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]).

Based upon our independent factual review, we find that the record, which includes affidavits from Cristal and her mother, fully supports the conclusion that Cristal was abandoned by her father. Cristal never lived with her father; he visited her only once. He never provided any financial support, and failed to communicate with her. Thus, Cristal established that reunification with her father was not viable due to abandonment … . Accordingly, the Family Court should have granted Cristal’s motion. Matter of Cristal MRM, 2014 NY Slip Op 04496, 2nd Dept 6-18-14

 

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Application for “Special Immigrant Juvenile” Status Need Only Assert Reunification with One Parent Is Not Possible

The Second Department reiterated  that an application for “special immigrant juvenile” status need only be supported by the allegation that reunification with one parent is not possible:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110—457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant juvenile” is a resident alien who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such [*2]a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101[a][27][J][i]). For a juvenile to qualify for SIJS status, it must also be determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]). As previously determined by this Court, the “1 or both” language requires only a finding that reunification is not viable with one parent … .  Matter of Gabriel HM…, 2014 NY Slip Op 02587, 2nd Dept 4-16-14

 

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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14

 

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Mother Entitled to Hearing/Children May Be Eligible for Special Immigrant Status

The Second Department reversed Family Court and sent the mother’s custody petition back for a hearing.  The mother alleged father had abandoned the children and the children, due to their immigration status, could be returned to El Salvador where they could be victimized by family and gangs. Mother argued the children could apply for special immigrant status if she were awarded custody:

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511…). According to the petitioner, the children’s father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status… . Matter of Sanchez v Bonilla, 2014 NY Slip Op 01761, 2nd Dept 3-19-14 

 

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Defendant Entitled to Hearing on Motion to Vacate His Conviction (by Guilty Plea) Based Upon Defense Counsel’s Alleged Failure to Inform Him of the Risk of Deporatation

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant presented sufficient evidence to warrant a hearing about whether his attorney’s alleged failure to inform him that his guilty plea could result in deportation constituted ineffective assistance of counse under Padilla v Kentucky, 559 US 356.  The court explained the analytical criteria:

“In order to prevail on a claim that, prior to deciding whether to plead guilty, a defendant was deprived of the right to the effective assistance of counsel under the United States Constitution, he or she must meet the two-part standard set forth in Strickland v Washington … . “Under the first prong of that standard, the defendant must show that counsel’s representation fell below an objective standard of reasonableness'” … . “The second prong focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process'” … . * * *

In Padilla, the Supreme Court held that the Sixth Amendment to the United States Constitution requires an attorney for a criminal defendant to provide advice to the defendant about the risk of deportation which will arise as a result of a plea of guilty … . Thus, in those cases in which Padilla is applicable, “where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, his or her representation falls below an objective standard of reasonableness” … . * * *

“To satisfy the second prong of the Strickland standard, also known as the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . “In the context of a Padilla claim, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances'” … . Under the particular circumstances of this case, the defendant established, sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargain would have been rational.  People v Varenga, 2014 NY Slip Op 01472, 2nd Dept 3-5-14

 

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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

 

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