United States: New Jersey Supreme Court Defines Family Part's Role in Applications for "Special Immigrant Juvenile" Status

In the consolidated appeals of H.S.P. v. MJ.K. and K.G. v. M.S. (Deceased) , the New Jersey Supreme Court  examined the role of the Family Part of our state court with regard to the factual findings necessary for a non-citizen child to apply to the federal government for "special immigrant juvenile" (SIJ) status.

Process for Obtaining SIJ Status

Obtaining SIJ status is a two-step process. The first step requires, the juvenile, or an individual acting on his or her behalf, to petition a state juvenile court for an SIJ predicate order. The juvenile court must then make various findings, pursuant to 8 U.S.C.A. §1101 (a)(27)(J) and 8 C.F.R. §204.11, including whether the juvenile's reunification with one or both parents is not viable due to abuse, neglect, or abandonment or other similar basis under state law and that it is not in the child's best interest to return to his or her previous country of nationality or country of last habitual residence, among other things.

Once a predicate order has been issued by the juvenile court, the second step is for the juvenile, or an individual acting on his or her behalf, to submit a petition to the United States Citizenship and Immigration Services (USCIS) for an SIJ status (I-360 petition). If this petition is approved, the juvenile will be granted SIJ status, and is then permitted to apply for adjustment of this status in order to obtain legal permanent residency, and eventually, United States citizenship.

In its opinion, the New Jersey Supreme Court made it clear that the Family Part's role in SIJ proceedings is strictly limited to making predicate findings of fact regarding abuse, neglect, abandonment and a child's best interests, based upon New Jersey law, not that of a foreign nation. The Family Part's role in making these factual findings is regardless of the Family Part's opinion as to the ultimate decision likely to be taken by USCIS in determining a petition for SIJ status (i.e. whether the minor has met the requirements for SIJ status). Once the Family Part issues a predicate order pertaining to the child's welfare and best interest, the Family Part's jurisdiction over the matter is effectively ended. All decisions pertaining to immigration remain in the hands of the federal agency, USCIS.

Using these guiding principles, the Supreme Court reversed the holdings in both H.S.P. v. J.K. and K.G. v. M.S.

H.S.P. v. J.K.

In H.S.P. v. J.K., M.S. was born in India in 1994. M.S.'s father abandoned the family when M.S. was 4 years old and M.S.'s mother became ill when he was 15 years old. In order to provide for himself and his mother, M.S. stopped attending school and became a construction worker, working approximately 75 hours per week. Due to his employment, M.S. developed a skin condition and back problems. M.S.'s mother feared he would die if he remained in India (as his siblings had) and in July 2011, she arranged for him to travel to the United States to live with her brother, H.S.P. M.S. entered the United States via the United States-Mexican border. After arriving, M.S. remained in close contact with his mother via telephone.

In May 2012, H.S.P. filed a petition in the Family Part requesting custody of M.S. and requesting that the Family Part make the required findings to classify M.S. as a SIJ.

The trial court awarded temporary custody of M.S. to H.S.P. but concluded that neither parent had abandoned M.S., reasoning that "abandonment required an affirmative act by one parent willfully forsaking the obligations owed to his or her child". The trial court determined the record was insufficient to establish that M.S.'s father had willfully abandoned M.S. (despite testimony of alcohol and drug abuse) and that M.S.'s mother had not abandoned him at all, as she remained actively involved in M.S.'s life. The trial court did not decide whether it would be in M.S.'s best interests to remain in the United States or return to India.

H.S.P. appealed. The Appellate Division affirmed the trial court's determination that M.S. was not abandoned or neglected by his mother, but reversed the finding that M.S.'s father had abandoned him finding that a "total disregard of parental duties" constituted abandonment. The panel noted that permitting a child to be employed in a dangerous activity constitutes abuse under New Jersey law, but found that it did not contravene the laws of India. Therefore, M.S. was not entitled to a finding as to whether or not it would be in his best interests to remain in the United States or return to India, because he had not demonstrated that reunification with either parent was not viable due to abuse, neglect or abandonment.

The Supreme Court reversed and remanded. The Appellate Division erred in finding that M.S.'s employment did not constitute abuse or neglect because he failed to demonstrate that his employment was contrary to the laws of India, when the panel should have applied New Jersey law.  The matter was remanded to determine whether M.S. cannot be reunited with either or both of his parents due to abuse, neglect or abandonment under New Jersey law, in addition to the other findings required under 8 C.F.R. §204.11.

K.G. v. M.S.

In K.G. v. M.S., the mother (K.G.) and the father (M.S.), natives of El Salvador, married in 1998 and had two daughters, J.S.G. and K.S.G. Approximately 10 years later, the parties separated and in January 2008, K.G. left El Salvador for the United States. J.S.G. and K.S.G. remained in El Salvador with their father and his mother. K.G. remained in close contact with her daughters and frequently sent money home for their support.

In April 2013, M.S. was murdered by a local gang, and the children remained in the care of M.S.'s mother. During a video conference with her daughters, K.G. noticed that there were bruises on K.S.G's face, which caused K.G. to believe that M.S.'s mother was physically abusing the children. Additionally, after M.S.'s death, K.G. received a phone call (in the United States) threatening to kill her and the children if the family did not leave their home in El Salvador. K.G. paid for the children to come to the United States and they entered in June 2013 by crossing the United States-Mexican border. They were apprehended by immigration officials, but ultimately released to K.G. at her home in Elizabeth, New Jersey.

K.G. filed a complaint in the Family Part seeking custody of J.S.G. and K.S.G. and requesting the trial court make predicate findings to permit them to apply for SIJ status. The trial court found that reunification with M.S. was not viable because he was deceased and that it was not in the children's best interests to return to El Salvador. However, the trial court found no basis under state law to suggest that K.G. had abused, neglected or abandoned the children, as she provided for them financially and remained involved in their lives after she moved to the United States. Reunification with K.G. was viable as the children were living with her at the time of the hearing. Based upon that determination, and the decision made in H.S.P. v. J.K., the court denied the children's application for SIJ status, despite the fact that the Family Part does not have jurisdiction to grant or deny applications for SIJ status.

K.G. filed a notice of appeal with the Appellate Divisions, and subsequently a motion for direct certification (based upon certification having been granted in H.S.P. v. J.K.), which was granted.

The Supreme Court asserted that the record was clear that K.G. remained an involved parent even while living apart from her children, and that her children have remained in her care since arriving in the United States (after their release from immigration custody officials). The record is devoid of any suggesting that K.G. abused or neglected the children and it is clear that reunification with their deceased father is not viable. However, the trial court erred in denying K.S.G.'s and J.S.G.'s application for SIJ status based upon its conclusion that reunification with K.G. was viable. The Supreme Court reversed and remanded for a new hearing instructing the Family Part to make findings as to each element of 8 C.F.R. §204.11, mindful that its sole purpose is to make the factual findings listed in the regulation and not to adjudicate the children's application for SIJ status.

Parting Words

The Supreme Court's opinion has clearly and succinctly circumscribed the Family Part's role with regard to the first hurdle that SIJ applicants must meet, and reminds the Family Part that the fact findings undertaken at the state level will set the tone for the juvenile applicant's journey for citizenship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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