On the Limited Role of State Courts in SIJ Applications

From the New York Family Court:

This Court would be remiss in not setting forth why it declines to follow the recent opinion of the Supreme Court of Nebraska in Erick M. which, were it binding upon this Court, would require that Mario’s application for special findings be denied.

Under the Nebraska Supreme Court’s interpretation of the SIJ provisions of the immigration statute, Mario would be unable to meet the reunification component under 8 USC § 1101(a)(27)(J) (Erick M . at 343). In the view of the Supreme Court, which was grounded upon its interpretation of administrative decisions made by the USCIS, the administrative agency “does not consider proof of one absent parent to be the end of the inquiry under the reunification component [and][a] petitioner must normally show that reunification with the other parent is also not feasible” (Id. at 350). Thus, “[i]f a juvenile lives with only one parent when a juvenile court enters a guardianship or dependency order, the reunification component under § 1101(a)(27)(a) is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to the parent who had custody” (id.).

The function of the juvenile court in deciding an application for special findings which would permit a juvenile to file an application for adjustment of status as a special immigrant juvenile is limited in scope. The juvenile court is simply called upon to determine whether, under state law, the juvenile is under the age of 21, unmarried, dependent upon the court through an order of placement or other court order, whether reunification with one or both of the juvenile’s parents is not possible due to abuse, neglect, or abandonment of the child, and whether it would be contrary to the juvenile’s best interest to be returned to his or her previous country of nationality.

The statute and regulation commit these specific and limited issues to state juvenile courts. The juvenile court need not determine any other issues, such as what the motivation of the juvenile in making application for the required findings might be (In the Interest of T.J., 59 So 3d 1187, 1191 [Fla Ct App 2011]; F.L.M. v. Department of Children and Families, 912 So 2d 1264, 1269 [Fla Ct App 2005]; L.T. v. Department of Children and Families, 48 So23d 928, 931 [Fla Ct App 2010] ); whether allowing a particular child to remain in the United States might someday pose some unknown threat to public safety (e.g., Shannon M. Ray, Note, The Breakdown of a System: The Consequence of Permitting Dangerous Illegal Juvenile Aliens to Reside in Your Community, 56 Wayne L Rev 819 [2010] ); and whether the USCIS, the federal administrative agency charged with enforcing the immigration laws, may or may not grant a particular application for adjustment of status as a SIJ.

In re Mario S.
2012 N.Y. Slip Op. 22336
N.Y.Fam.Ct. 2012. – November 21, 2012

An infinitely reasonable SIJ opinion.

More information: OA of Erick M; Full opinion of Erick M.

 

 

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