Featured Chrome Extensions:

Casey IRACs are produced by an AI that analyzes the opinion’s content to construct its analysis. While we strive for accuracy, the output may not be flawless. For a complete and precise understanding, please refer to the linked opinions above.

Keywords

motion
hearingmotionwillcitizenship

Related Cases

Spate Bus. Solutions, LLC; Administrator, Wage and Hour Division v.
View Case »
Najera Jimenez; U.S. v.
View Case »
Flores v. Barr
View Case »
Hulli v. Mayorkas
View Case »
Ayalew; U.S. v.
View Case »
Justia Law Link
LexisNexis Link
Westlaw Link
CourtListener Link
Oyez Link

Luis R. v. Maria Elena G

Facts

In August 2012, the petitioner filed a petition pursuant to Family Court Act article 6 for custody of his nephew, Cristian F.M.G., seeking an order declaring that the child is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age. The petitioner argued that reunification with one or both parents was not viable due to parental abuse, neglect, abandonment, or similar conduct defined under state law, and that it would not be in the child's best interests to be returned to El Salvador. The Family Court initially granted the guardianship petition but later denied the motion for the requisite declaration.

In August 2012, the petitioner filed a petition pursuant to Family Court Act article 6 for custody of his nephew, Cristian F.M.G. (hereinafter the child), for the purpose of obtaining an order declaring that the child is dependent on the Family Court [*582] and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, abandonment, or similar parental conduct defined under state law, and that it would not be in his best interests to be returned to El Salvador, his previous country of nationality and last habitual residence, so as to enable the child to petition [***3] the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC 1101 (a) (27) . Thereafter, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child [**852] to petition for SIJS. In an order dated April 16, 2013, the Family Court granted the guardianship petition. In an order dated July 31, 2013, made after a hearing, the Family Court, in effect, denied the petitioner's motion.

Issue

Did the Family Court err in denying the petitioner's motion for the issuance of an order making the requisite declaration and special findings to enable the child to petition for special immigrant juvenile status?

Did the Family Court err in denying the petitioner's motion for the issuance of an order making the requisite declaration and special findings to enable the child to petition for special immigrant juvenile status?

Rule

Pursuant to 8 USC 1101 (a) (27) (J), a juvenile must be under 21 years of age, unmarried, and legally committed to an individual appointed by a state or juvenile court. A court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or similar basis under state law, and that it would not be in the juvenile's best interests to be returned to their native country.

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 a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law ( see 8 USC 1101 [a] [27] [J] [i] ; Matter of Maria P.E.A. v Sergio A.G.G ., 111 AD3d 619, 620, 975 NYS2d 85 [2013] ; Matter of Trudy-Ann W. v Joan W ., 73 AD3d 793, 795, 901 NYS2d 296 [2010] ), and that it would not be in the juvenile's best [***4] interests to be returned to his or her native country or country of last habitual residence ( see 8 USC 1101[a] [27] [J] [ii] ; 8 CFR 204.11 [c] [6] ; Matter of Maria P.E.A. v Sergio A.G.G ., 111 AD3d at 620 ; Matter of Trudy-Ann W. v Joan W ., 73 AD3d at 795 ).

Analysis

The court applied the rule by reviewing the evidence and determining that the child's father was deceased, making reunification impossible. The court noted that the statutory requirement for reunification could be satisfied by finding that it was not viable with just one parent. The court concluded that it would not be in the child's best interests to return to El Salvador, thus supporting the petitioner's motion.

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 ( see Matter of Gabriel H.M. [Juan B.F.] , 116 AD3d 855, 857, 984 NYS2d 96 [2014] ; Matter of Kamaljit S ., 114 AD3d 949, 980 NYS2d 833 [2014] ). Based upon our independent factual review, the record establishes that the child's father is deceased, and therefore, reunification is not possible ( see Matter of Cristal M.R.M. , 118 AD3d 889, 987 NYS2d 614 [2014] ). Since the statutory reunification requirement may be satisfied upon a finding that reunification is not viable with just one parent, we need not address the petitioner's [*583] contention that the record supports the conclusion that the child's reunification with his mother was not a viable option ( see Matter of Gabriel H. M. [Juan B. F.] , 116 AD3d at 857 ; Matter of Marcelina M.-G. v Israel S ., 112 AD3d 100, 110-113, 973 NYS2d 714 [2103] ). We further find that the record reflects that it would not be in the child's best interests to be returned to El Salvador.

Conclusion

The appellate division reversed the Family Court's order, granted the petitioner's motion, and declared that Cristian F.M.G. is dependent on the Family Court.

Thus, the Family Court erred by, in effect, denying the petitioner's motion for the issuance of an order making the requisite declaration and special findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we [***5] declare that the child is dependent on a juvenile court, and we find that the child is unmarried and under 21 years of age, that reunification of the child with one or both of his parents is not viable due to the death of his father, and that it would not be in the best interests of the child to be returned to El Salvador.

Who won?

The petitioner prevailed in the case because the appellate division found that the Family Court had erred in its denial of the motion for the requisite declaration and special findings necessary for the child to petition for special immigrant juvenile status.

The petitioner prevailed in the case because the appellate division found that the Family Court had erred in its denial of the motion for the requisite declaration and special findings necessary for the child to petition for special immigrant juvenile status.

You must be