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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM DEFENDANT THE AGGRAVATED FELONY TO WHICH DEFENDANT PLED GUILTY SUBJECTED HIM TO MANDATORY DEPORTATION, APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA (FIRST DEPT).

The First Department determined defendant received ineffective of assistance of counsel. Counsel did not inform defendant he would be subject to mandatory deportation based upon his plea to an aggravated felony:

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea … and we hold the appeal in abeyance for that purpose. While defendant requests that his conviction be replaced by a conviction under a different subdivision of Penal Law § 220.16 that may entail less onerous immigration consequences, we find that to be an inappropriate remedy, and we instead order a hearing. People v Disla, 2019 NY Slip Op 04995, First Dept 6-20-19

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), PARENTAL NEGLECT AND DANGER FROM GANGS IN HONDURAS WAS DEMONSTRATED, APPELLATE COURT CAN MAKE ITS OWN FACTUAL FINDINGS ON A SUFFICIENT RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child’s motion for findings enabling him to petition for Special Immigrant Juvenile Status (SIJS) should have been granted:

“This Court’s power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own factual determinations, we may do so” … . Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with one or both of his parents is not a viable option based upon parental neglect … . The record reflects that the child’s parents did not provide him with adequate supervision or medical care, and that they failed to meet the child’s educational needs. Furthermore, the record also supports a finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality or country of last habitual residence. The child indicated that he was assaulted by gang members in Honduras on multiple occasions, once leaving him with a broken rib and a scar on his head, and that he had witnessed a drive-by shooting at his school which resulted in the death of his schoolmate. In addition, the child stated that the gang members tried to recruit him, but he refused to join, and that the gang members were “killing people if they didn’t want to join.” The child stated that he “felt scared all the time and could no longer live a normal life,” and that he “basically stayed inside [his] house all the time” out of fear that he “was going to be attacked again” … . Matter of Victor R. C. O. v Canales, 2019 NY Slip Op 03789, Second Dept 5-15-19

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT).

The Second Department determined the defendant was not informed of the deportation consequences of his guilty plea and therefore did not have the opportunity to move to withdraw his plea. Therefore a narrow exception to the preservation requirement applies and the matter was remitted to allow defendant to make the motion:

… [A] narrow exception to the preservation requirement exists “in rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which the court’s attention should have been instantly drawn,’ such that the salutary purpose of the preservation rule is . . . not jeopardized'” … .

In this case, the exception applies. At the plea proceeding, the court merely asked defense counsel if he had discussed with the defendant the potential “immigration consequences” of pleading guilty. Defense counsel responded: “He is here on a Green Card. We have discussed the immigration consequences.” Furthermore, the People’s contention that the written appeal waiver form demonstrates that the defendant was aware of the possibility of deportation prior to the imposition of the sentence is without merit … . Inasmuch as the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation, the defendant had “no practical ability” to object to the court’s statement or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … . People v Mohamed, 2019 NY Slip Op 02557, Second Dept 4-3-19

 

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FAMILY COURT SHOULD HAVE ISSUED AN ORDER MAKING FINDINGS TO ALLOW THE CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS, IT WAS NOT IN THE CHILDREN’S BEST INTERESTS TO RETURN TO HONDURAS (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the court should have issued an order making findings to allow the child to petition for Special Immigrant Juvenile Status (SIJS):

… [B]ased upon our independent factual review, the record supports a finding that reunification of the children with their mother is not viable due to parental abandonment … . The children testified that the mother left when they were both only three years old, and that they have not seen or spoken to the mother since that time. Thus, the record establishes that the mother has had no involvement with the children for the majority of their lives … .

Further, the record supports a finding that it would not be in the best interests of the children to return to Honduras, their previous country of nationality or country of last habitual residence … . Francis testified that when the children lived with their paternal aunt in Honduras, they were “mistreat[ed] . . . emotionally and physically.” The children testified that when they then went to live with their father and stepmother in Honduras, the stepmother beat them and “wouldn’t give us food” when the father was not around, and that the stepmother was “verbally abusive,” telling the children, among other things, that they were “good for nothing.” The record reflects that the children had no one else to take care of them if they returned to Honduras. Consequently, the record demonstrates that it would not be in the best interests of the children to return to Honduras … . Matter of Norma U. v Herman T. R.F., 2019 NY Slip Op 01421, Second Dept 2-27-19

 

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ORDER MAKING THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED, CHILD ESCAPED EL SALVADOR BECAUSE OF GANG VIOLENCE AND THREATS (SECOND DEPT).

The Second Department, reversing Family Court, determined the father’s 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, we find that the record establishes that the child met the age and marital status requirements for special immigrant status … , and the dependency requirement has been satisfied by the granting of the father’s guardianship petition prior to the child’s 21st birthday … . Further, we find that reunification of the child with her mother is not a viable option due to parental abandonment … . The record reflects that after the child came to the United States in February 2014, she did not live with the mother because the “mother did not want to support her,” and that the child lived in close proximity to the mother, but the mother only visited the child once, in March 2014, and did not visit or even contact the child from that time through the time the father made the subject motion in April 2018. We also find that the record supports a finding that it would not be in the best interests of the child to return to El Salvador, her previous country of nationality or country of last habitual residence. The record reflects that the child was threatened by gang members in El Salvador while walking home from school, that the gang members “wanted to recruit [the child] and have her sell drugs” and told her that “she had to join them or they would murder her and her family,” that the gang members started texting her to “extort money from her,” that the child was sent to live with a family friend, but the threats continued, and that the child left El Salvador to escape from the gangs … . Matter of Rina M. G.C. (Oscar L.G.–Ana M. C.H.), 2019 NY Slip Op 01407, Second Dept 2-27-19

 

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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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DEFENDANT WAS NOT INFORMED OF THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MATTER REMITTED TO ALLOW A MOTION TO VACATE THE PLEA (SECOND DEPT).

The Second Department determined the record supported defendant’s contention that Supreme Court did not inform him of the deportation consequences of his guilty plea. The matter was sent back to allow defendant to move to vacate his plea:

… [W]e remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant has now moved to vacate his plea of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing to entitle him to vacatur of the plea … . People v Hor, 2019 NY Slip Op 00899, Second Dept 2-6-19

 

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MOTHER’S MOTION TO AMEND FAMILY COURT’S FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS AFTER THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES NOTIFIED THE CHILD THAT THE FINDINGS DID NOT ADDRESS THE CHILD’S MEMBERSHIP IN THE MS-13 GANG SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to amend the findings made to allow the child to petition for special immigrant juvenile status (SIJS) should not have been denied without a hearing to address the merits. After Family Court had made the required findings, the child submitted an I-360 petition for special immigrant juvenile status to the United States Citizenship and Immigration Services (USCIS). USCIS notified the child the petition would be denied because of deficiencies in Family Court’s findings, including the failure to consider the child’s alleged involvement with the MS-13 gang. Mother then made a motion to amend the findings but Family Court denied the motion stating that mother failed to state a sufficient reason for the requested amendments:

Given USCIS’s determination, the Family Court, having granted the mother’s guardianship petition in the first instance, should have considered the merits of the subject motion as to whether an amendment of the specific findings order was appropriate, and, if so, amended the specific findings order. Although “[t]his Court’s power to review the evidence is as broad as that of the hearing court, and where . . . the record is sufficiently complete to make our own factual determinations, we may do so” … , here, the record is insufficient to determine whether the Family Court considered the child’s alleged involvement with the MS-13 gang, which would not necessarily preclude a finding that it is not in the child’s best interests to be returned to El Salvador. Consequently, the matter must be remitted to the Family Court … for a hearing on that issue and a new determination thereafter of the mother’s motion, inter alia, to amend the specific findings order … . Matter of Jose S.J. (Veronica E.J.), 2019 NY Slip Op 00275, Second Dept 1-16-19

 

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PETITION SEEKING FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition for findings to enable the child to petition for special immigrant juvenile status (SIJS) should have been granted:

… [R]eunification of the child with her father is not viable due to parental neglect … . The petitioner testified that after the father came to the United States with the child, they lived in the petitioner’s home, during which time the father would “drink every day,” and that the father eventually returned to El Salvador on his own. The petitioner stated in his affidavit in support of his motion that the father’s drinking caused him to become “aggressive,” “[h]e hit doors, walls, and started to yell at all times of the night,” and that the child became “scared of [the father].” Further, the child stated in her affidavit that the father “[drank] to the point that he could not walk,” and testified in court that she did not believe she could live with the father if she returned to El Salvador due to his excessive drinking. Thus, the record demonstrates that the father repeatedly misused alcoholic beverages to the extent of producing a state of intoxication or a “substantial manifestation of irrationality,” triggering a presumption that the child was neglected by the father … . Since the presumption of neglect was not rebutted, the Family Court should have found that reunification of the child with the father was not viable due to parental neglect. The record also supports a finding that it would not be in the child’s best interests to be returned to El Salvador, where gang members had threatened the father in the presence of the child, made the father “complete tasks and favors for them,” and murdered the child’s cousin … . Matter of Agustin E. v Luis A.E.S., 2019 NY Slip Op 00273, Second Dept 1-16-19

 

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FAMILY COURT SHOULD HAVE APPOINTED A GUARDIAN FOR THE CHILD AND MADE THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined that a guardian should have been appointed for the child and findings should have been made to allow the child to petition for special immigrant juvenile status (SIJS):

“When considering guardianship appointments, the infant’s best interests are paramount” … . Here, the Family Court erred in determining that the proposed guardian should not be appointed (see generally Family Ct Act § 355.5[7][d][ii]; Social Services Law § 371[7]), as it failed to base its decision on any assessment of the credibility of the witnesses at the hearing, and failed to examine the facts of the case within the context of the required best interests analysis … . …

… [T]he child is under the age of 21 and unmarried, and since we have found that the proposed guardian should have been appointed as the child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … .Further, based upon our independent factual review, the record supports a finding that reunification of the child with her father is not a viable option due to parental neglect … . Matter of Grechel L.J., 2018 NY Slip Op 08934, Second Dept 12-26-18

 

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