The SIJS Starter Kit: From Petition to protection by Volunteer Lawyers for Justice

AGENDA

I.Welcome/Introduction(5minutes)

II.SIJSBasics(10minutes)

III.StepOne:FamilyCourt(30minutes)

IV.StepsTwoandThree:USCIS(15minutes)

V.WorkingwithSIJSClients(15minutes)

VI.GettingStarted(10minutes)

VII.Q&A(5minutes)

SpeakerBiographies

SamanthaRumsey

SamanthaRumseyistheLegalDirectoroftheNewJerseyConsortiumforImmigrantChildren (NJCIC),astate-widelegalservicesandpolicyadvocacyorganizationdedicatedtoempowering youngimmigrants.NJCIC'slegalteamprovidesholistic,youth-centeredlegalrepresentationto unaccompaniedchildrenandotherimmigrantyouththroughouttheGardenStateandservesasthe centralintakeandreferralhubforNewJersey'sLegalRepresentationforChildrenandYouth Program(LRP).NJCIC'sprojectsincludeFlorecer,amedical-legalpartnershipwithZufallHealth, andaneducational-legalpartnershipwithJerseyCityPublicSchools.Samanthahasovertenyears ofexperiencerepresentingimmigrantchildren,adultasylumseekers,andadultsinimmigration detention.

BeforejoiningNJCIC,SamanthawasaSeniorAttorneyattheNewarkOfficeofKidsInNeedof Defense(KIND)andaStaffAttorneyintheImmigrantRightsClinicatRutgersLawSchool. SamanthareceivedherJ.D.fromSetonHallUniversitySchoolofLawandherB.A.in InternationalRelationsandHispanicStudiesfromtheCollegeofWilliamandMary.

EmeraldSheay

EmeraldSheay,Esq.isastaffattorneyatVolunteerLawyersforJusticewhofocusesonprobono recruitment,training,andcaseplacement.EmeraldadditionallysupportsVLJ’sChildren’s RepresentationProgram,DivorceProgram,andPRIDENameChangeProgram.Priortojoining VLJ,Emeraldpracticedfamilylaw,andclerkedfortheHonorableLisaF.Chrystal,P.J.F.P.atthe SuperiorCourtofNewJersey–FamilyDivisioninUnionCounty.Emeraldalsovolunteeredwith VLJ’sDivorceProgramwhileinprivatepractice.

Emeraldisespeciallypassionateaboutadvocatingforthosewithoutaccesstothejudicialprocess, includingchildrenandanimals.ShesharesthesentimentofformerAttorneyGeneralJanetReno thatlawyerswhoengagein“probonoservicetoprotectthosewhocannothelpthemselvesare trulytheheroesandtheheroinesofthelegalprofession.”EmeraldcurrentlysitsastheCo-Chair oftheNewJerseyStateBarAssociation’sAnimalWelfareCommittee.Shehaspublishedarticles onfamilylaw,animallaw,andempatheticlawyeringintheAnimalLawReview,NewJersey LawyerMagazine,andNewJerseyFamilyLawyer.Emeraldearnedabachelor’sdegreesumma cumlaudeinmusicfromRowanUniversityandaJurisDoctoratecumlaudefromSetonHallLaw School,whereshereceivedthe“Dean’sAward”upongraduation.Sheisadmittedtopracticein NewJerseyandtheUnitedStatesDistrictCourtofNewJersey.

OutsideofVLJ,EmeraldperformswithprofessionalchamberchoirVocalaEnsemble,andisan activememberoftheUnionCountyBarAssociation.

Section 1:

Relevant Statutes and Directives

Copy Citation

This document is current through the September 19, 2025 issue of the Federal Register, with the exception of the amendments appearing at 90 FR 44496 and 90 FR 45140.

LEXISNEXIS’ CODE OF FEDERAL REGULATIONS Title 8 Aliens and Nationality Chapter I — Department of Homeland Security (Immigration and Naturalization) Subchapter B — Immigration Regulations Part 204 — Immigrant Petitions Subpart A — Immigrant Visa Petitions

§204.11

Special immigrant juvenile classification.

(a) Definitions. As used in this section, the following definitions apply to a request for classification as a special immigrant juvenile.

Judicial determination means a conclusion of law made by a juvenile court.

Juvenile court means a court located in the United States that has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles.

Petition means the form designated by USCIS to request classification as a special immigrant juvenile and the act of filing the request.

Petitioner means the alien seeking special immigrant juvenile classification.

State means the definition set out in section 101(a)(36) of the Act, including an Indian tribe, tribal organization, or tribal consortium, operating a program under a plan approved under 42 U.S.C. 671

United States means the definition set out in section 101(a)(38) of the Act.

(b) Eligibility. A petitioner is eligible for classification as a special immigrant juvenile under section 203(b)(4) of the Act as described at section 101(a)(27)(J) of the Act, if they meet all of the following requirements:

(1) Is under 21 years of age at the time of filing the petition;

(2) Is unmarried at the time of filing and adjudication;

(3) Is physically present in the United States;

(4) Is the subject of a juvenile court order(s) that meets the requirements under paragraph (c) of this section; and

(5) Obtains consent from the Secretary of Homeland Security to classification as a special immigrant juvenile. For USCIS to consent, the request for SIJ classification must be bona fide, which requires the petitioner to establish that a primary reason the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.

USCIS may withhold consent if evidence materially conflicts with the eligibility requirements in paragraph (b) of this section such that the record reflects that the request for SIJ classification was not bona fide. USCIS approval of the petition constitutes the granting of consent.

(1) Court-ordered dependency or custody and parental reunification determination. The juvenile court must have made certain judicial determinations related to the petitioner’s custody or dependency and determined that the petitioner cannot reunify with their parent(s) due to abuse, neglect, abandonment, or a similar basis under State law.

(i) The juvenile court must have made at least one of the following judicial determinations related to the petitioner’s custodial placement or dependency in accordance with State law governing such determinations:

(A) Declared the petitioner dependent upon the juvenile court; or

(B) Legally committed to or placed the petitioner under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court.

(ii) The juvenile court must have made a judicial determination that parental reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under State law. The court is not required to terminate parental rights to determine that parental reunification is not viable.

(2) Best interest determination.

(i) A determination must be made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions that it would not be in the petitioner’s best interest to be returned to the petitioner’s or their parent’s country of nationality or last habitual residence.

(ii) Nothing in this part should be construed as altering the standards for best interest determinations that juvenile court judges routinely apply under relevant State law.

(3) Qualifying juvenile court order(s).

(i) The juvenile court must have exercised its authority over the petitioner as a juvenile and made the requisite judicial determinations in this paragraph under applicable State law to establish eligibility.

(ii) The juvenile court order(s) must be in effect on the date the petitioner files the petition and continue through the time of adjudication of the petition, except when the juvenile court’s jurisdiction over the petitioner terminated solely because:

(A) The petitioner was adopted, placed in a permanent guardianship, or another child welfare permanency goal was reached, other than reunification with a parent or parents with whom the court previously found that reunification was not viable; or

(B) The petitioner was the subject of a qualifying juvenile court order that was terminated based on age, provided the petitioner was under 21 years of age at the time of filing the petition.

(d) Petition requirements. A petitioner must submit all of the following evidence, as applicable to their petition:

(1) Petition. A petition by or on behalf of a juvenile, filed on the form prescribed by USCIS in accordance with the form instructions.

(2) Evidence of age. Documentary evidence of the petitioner’s age, in the form of a valid birth certificate, official government-issued identification, or other document that in USCIS’ discretion establishes the petitioner’s age. Under no circumstances is the petitioner compelled to submit evidence that would conflict with paragraph (e) of this section.

(3) Juvenile court order(s). Juvenile court order(s) with the judicial determinations required by paragraph (c) of this section. Where the best interest determination was made in administrative proceedings, the determination may be provided in a separate document issued in those proceedings.

(4) Evidence of a similar basis. When the juvenile court determined parental reunification was not viable due to a basis similar to abuse, neglect, or abandonment, the petitioner must provide evidence of how the basis is legally similar to abuse, neglect, or abandonment under State law. Such evidence must include:

(i) The juvenile court’s determination as to how the basis is legally similar to abuse, neglect, or abandonment under State law; or

(ii) Other evidence that establishes the juvenile court made a judicial determination that the legal basis is similar to abuse, neglect, or abandonment under State law

(5) Evidentiary requirements for DHS consent. For USCIS to consent, the juvenile court order(s) and any supplemental evidence submitted by the petitioner must include the following:

(i) The factual basis for the requisite determinations in paragraph (c) of this section; and

(ii) The relief from parental abuse, neglect, abandonment, or a similar basis under State law granted or recognized by the juvenile court. Such relief may include:

(A) The court-ordered custodial placement; or

(B) The court-ordered dependency on the court for the provision of child welfare services and/or other court-ordered or court-recognized protective or remedial relief, including recognition of the petitioner’s placement in the custody of the Department of Health and Human Services, Office of Refugee Resettlement.

(6) U.S. Department of Health and Human Services (HHS) consent. The petitioner must provide documentation of specific consent from HHS with the petition when:

(i) The petitioner is, or was previously, in the custody of HHS; and

(ii) While in the custody of HHS, the petitioner obtained a juvenile court order that altered the petitioner’s HHS custody or placement status.

(e) No contact. During the petition or interview process, USCIS will take no action that requires a petitioner to contact the person(s) who allegedly battered, abused, neglected, or abandoned the petitioner (or the family member of such person(s)).

(f) Interview. USCIS may interview a petitioner for special immigrant juvenile classification in accordance with 8 CFR 103.2(b). If an interview is conducted, the petitioner may be accompanied by a trusted adult at the interview. USCIS may limit the number of persons present at the interview, except that the petitioner’s attorney or accredited representative of record may be present.

(g) Time for adjudication.

(1) In general, USCIS will make a decision on a petition for classification as a special immigrant juvenile within 180 days of receipt of a properly filed petition. The 180 days does not begin until USCIS has received all of the required evidence in paragraph (d), and the time period will be reset or suspended as described in 8 CFR 103.2(b)(10)(i).

(2) When a petition for special immigrant juvenile classification and an application for adjustment of status to lawful permanent resident are pending at the same time, a request for evidence relating to the separate application for adjustment of status will not stop or suspend the 180-day period for USCIS to decide on the petition for SIJ classification.

(h) Decision. USCIS will notify the petitioner of the decision made on the petition, and, if the petition is denied, of the reasons for the denial, pursuant to 8 CFR 103.2(b) and 103.3. If the petition is denied, USCIS will provide notice of the petitioner’s right to appeal the decision, pursuant to 8 CFR 103.3.

(i) No parental immigration rights based on special immigrant juvenile classification. The natural or prior adoptive parent(s) of a petitioner granted special immigrant juvenile classification will not be accorded any right, privilege, or status under the Act by virtue of their parentage. This prohibition applies to all of the petitioner’s natural and prior adoptive parent(s).

(j) Revocation.

(1) Automatic revocation. USCIS will issue a notice to the beneficiary of an approved petition for special immigrant juvenile classification of an automatic revocation under this paragraph as provided in 8 CFR 205.1. The approval of a petition for classification as a special immigrant juvenile made under this section is revoked as of the date of approval if any one of the following circumstances occurs before the decision on the beneficiary’s application for adjustment of status to lawful permanent resident becomes final:

(i) Reunification of the beneficiary with one or both parents by virtue of a juvenile court order, where a juvenile court previously deemed reunification with that parent, or both parents, not viable due to abuse, neglect, abandonment, or a similar basis under State law; or

(ii) Administrative or judicial proceedings determine that it is in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of their parent(s).

(2) Revocation on notice. USCIS may revoke an approved petition for classification as a special immigrant juvenile for good and sufficient cause as provided in 8 CFR 205.2.

Statutory Authority

Authority Note Applicable to 8 CFR Ch. I, Subch. B, Pt. 204

History

[56 FR 23208, May 21, 1991; redesignated at 58 FR 42849, Aug. 12, 1993; 58 FR 42850, Aug. 12, 1993; 74 FR 26933, 26937, June 5, 2009; 87 FR 13066, 13111, Mar. 8, 2022]

Annotations

Notes

[EFFECTIVE DATE NOTE:

74 FR 26933 , 26937, June 5, 2009, revised paragraph (b), effective July 6, 2009; 87 FR 13066, 13111, Mar. 8, 2022, revised this section, effective Apr. 7, 2022.]

Notes to Decisions

Administrative Law: Agency Adjudication: Hearings: Evidence

Constitutional Law: Equal Protection: Parentage

Family Law: Child Custody: Jurisdiction

Family Law: Child Custody: Jurisdiction: Subject Matter Jurisdiction

Family Law: Family Protection & Welfare: Children: Proceedings

Family Law: Guardians Governments: Courts: Authority to Adjudicate

Immigration Law: Adjustment of Status: Administrative Proceedings

Immigration Law: Adjustment of Status: Eligibility

Immigration Law: Asylum & Related Relief

Immigration Law: Deportation & Removal: Relief: Suspension of Deportation

Immigration Law: Duties & Rights of Aliens: General Overview

Immigration Law: Immigrants

Immigration Law: Immigrants: Special Immigrants

Administrative Law: Agency Adjudication: Hearings: Evidence

Budhathoki v. Nielsen, 898 F.3d 504, 2018 U.S. App. LEXIS 21377 (5th Cir. 2018)

Overview: The agency properly considered the effect of the state court order under Tex. Fam. Code Ann. § 101.032 of Suits Affecting Parent-Child Relationship (SAPCR) because the agency had an obligation to review the SAPCR order, which was for child support, and consider its impact on the petitioner’s applications for Special Immigrant Juvenile (SIJ) status.

•

Constitutional Law: Equal Protection: Parentage

M.B. v. Quarantillo, 301 F.3d 109, 2002 U.S. App. LEXIS 17412 (3d Cir. 2002).

Family Law: Child Custody: Jurisdiction

Alberto v. State (In re Luis J.), 300 Neb. 659, 915 N.W.2d 589, 2018 Neb. LEXIS 136 (Neb. 2018).

Overview: A county court erred in finding it was not a juvenile court authorized to make findings needed for a child to seek special juvenile immigrant status under 8 U.S.C.S. § 1101(a)(27)(J), because, under amended Neb. Rev. Stat. § 43-1238(b) (Reissue 2016), having awarded guardianship of the child, it had jurisdiction to make such findings.

•

In order to achieve special immigrant juvenile status, an individual whose custody has been determined prior to age 21, 8 C.F.R. § 204.11, must have obtained the judicial determinations listed in 8 U.S.C.S. § 1101(a)(27)(J)(i) and (ii) from a “juvenile court,” as that term is used in the federal provisions. The Code of Federal Regulations defines “juvenile court” as a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. § 204.11(a). A Nebraska county court which properly appoints a guardian for a juvenile makes a custody determination, and thus, a county court is considered a “juvenile court” for purposes of 8 U.S.C.S. § 1101(a)(27)(J)(i) and (ii). A guardianship over a juvenile renders the juvenile subject to 8 U.S.C.S. § 1101(a)(27)(J)(i) Go To Headnote

Family Law: Child Custody: Jurisdiction: Subject Matter Jurisdiction

Gonzalez v. State (In re Carlos D.), 300 Neb. 646, 915 N.W.2d 581, 2018 Neb. LEXIS 135 (Neb. 2018).

Overview: A county court erred in finding it could not make findings required to seek special immigrant juvenile status under 8 U.S.C.S. § 1101(a)(27)(J) because, having granted guardianship of the subject child, it was, pursuant to amended Neb. Rev. Stat. § 43-1238(b) (Reissue 2016), a “juvenile court” authorized to make such findings.

• The agency obligation to review state court orders for their sufficiency is the approach of the regulations identifying the documents that must be submitted in support of Special Immigrant Juvenile (SIJ) status: (2) One or more documents which include: (i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary to be dependent upon that court; (ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary eligible for long-term foster care; and (iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. 8 C.F.R. § 204.11(d) Go To Headnote

In order to achieve special immigrant juvenile status, an individual whose custody has been determined prior to age 21, 8 C.F.R. § 204.11 (2018), must also obtain the judicial determinations listed in 8 U.S.C.S. § 1101(a)(27)(J)(i) and (ii) from a “juvenile court,” as that term is used in the federal provisions. The Code of Federal Regulations defines “juvenile court” as a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. § 204.11(a). A guardianship of a child is a child custody determination, and thus, a county court is considered a “juvenile court” for purposes of 8 U.S.C.S. § 1101(a)(27)(J)(i) and (ii). A guardianship over a juvenile renders the juvenile subject to 8 U.S.C.S. § 1101(a)(27)(J)(i). Go To Headnote

Family Law: Family Protection & Welfare: Children: Proceedings

Romero v. Perez, 463 Md. 182, 205 A.3d 903, 2019 Md. LEXIS 163 (2019)

Overview: In a case involving whether an undocumented minor was eligible for special immigrant juvenile status, the Court of Appeals concluded that returning the minor to the custody of a mother who inadequately cared for and supervised him could not be a reunification that was viable.

• •

The application process for special immigrant juvenile (SIJ) status is set forth in the Federal Immigration and Nationality Act and involves two primary steps. First, the child, or someone acting on the child’s behalf, must obtain a predicate order from a state juvenile court that includes certain factual findings regarding the child’s eligibility for SIJ status. Without that order, a child cannot apply for SIJ classification. Second, the child, or any person acting on the child’s behalf, 8 C.F.R. § 204.11(b), must submit a petition, along with the predicate order and other supporting documents, to the United States Citizenship and Immigration Services (USCIS) for review and approval. If USCIS approves the petition, the child is then eligible to apply for adjustment of status to a lawful permanent resident under 8 U.S.C.S. § 1255 Go To Headnote

Federal regulations define juvenile courts as courts having jurisdiction under state law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. § 204.11(a). Maryland law designates circuit courts as having such jurisdiction and, consequently, authority to preside over special immigrant juvenile status proceedings. Md. Code Ann., Fam. Law § 1-201(b)(10) (2012, 2018 Supp.). Go To Headnote Family Law: Guardians

Gonzalez v. State (In re Carlos D.), 300 Neb. 646, 915 N.W.2d 581, 2018 Neb. LEXIS 135 (Neb. 2018)

Governments: Courts: Authority to Adjudicate

Alberto v. State (In re Luis J.), 300 Neb. 659, 915 N.W.2d 589, 2018 Neb. LEXIS 136 (Neb. 2018).

Immigration Law: Adjustment of Status: Administrative Proceedings

Budhathoki v. Nielsen, 898 F.3d 504, 2018 U.S. App. LEXIS 21377 (5th Cir. 2018)

•

Special Immigrant Juvenile (SIJ) status is available to an immigrant who is present in the United States — (i) who has been 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, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law 8 U.S.C.S. § 1101(a)(27)(J). By regulation, a juvenile court is a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. § 204.11(a). Once the applicant has the necessary predicate order, he must submit his application to the agency, attaching the state court order 8 C.F.R. § 204.11(d). The petitioner bears the burden of establishing eligibility. 8 U.S.C.S. § 1361. A successful application also requires the consent of the Secretary of Homeland Security to the grant of the SIJ status, which can be given through directors of U.S. Citizenship & Immigration Service. 8 U.S.C.S. § 1101(a)(27)(J)(iii) Go To Headnote

The agency obligation to review state court orders for their sufficiency is the approach of the regulations identifying the documents that must be submitted in support of Special Immigrant Juvenile (SIJ) status: (2) One or more documents which include: (i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary to be dependent upon that court; (ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary eligible for long-term foster care; and (iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. 8 C.F.R. § 204.11(d) Go To Headnote

Immigration Law: Adjustment of Status: Eligibility

Pierre v. McElroy, 200 F. Supp. 2d 251, 2001 U.S. Dist. LEXIS 19982 (S.D.N.Y. 2001)

Overview: PATRIOT Act gave immigrant right not to age out due to terrorist attacks of September 11, 2001, and INS was required to perform its duty to do requisite investigation and adjudication of I-360 petitions brought before September 11, 2001.

• about the custody and care of juveniles. 8 C.F.R. § 204.11(a). A Nebraska county court which properly appoints a guardian for a juvenile makes a custody determination, and thus, a county court is considered a “juvenile court” for purposes of 8 U.S.C.S. § 1101(a)(27)(J)(i) and (ii). A guardianship over a juvenile renders the juvenile subject to 8 U.S.C.S. § 1101(a)(27)(J)(i) Go To Headnote

To be eligible for Special Immigrant Juvenile Status under 8 C.F.R. § 204.11(c), the petitioner must be under 21 years of age, single, and must have been declared dependant upon a juvenile court. In addition, the petitioner must be found eligible for long-term foster care, and a court must have found that it would not be in the petitioner’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents.

Go To Headnote

Immigration Law: Asylum & Related Relief

Alberto v. State (In re Luis J.), 300 Neb. 659, 915 N.W.2d 589, 2018 Neb. LEXIS 136 (Neb. 2018).

•

To Headnote

Gonzalez v. State (In re Carlos D.), 300 Neb. 646, 915 N.W.2d 581, 2018 Neb. LEXIS 135 (Neb 2018)

•

Immigration Law: Deportation & Removal: Relief: Suspension of Deportation

Alberto v. State (In re Luis J.), 300 Neb. 659, 915 N.W.2d 589, 2018 Neb. LEXIS 136 (Neb. 2018)

•

guardianship over a juvenile renders the juvenile subject to 8 U.S.C.S. § 1101(a)(27)(J)(i) Go To Headnote

Gonzalez v. State (In re Carlos D.), 300 Neb. 646, 915 N.W.2d 581, 2018 Neb. LEXIS 135 (Neb. 2018)

Immigration Law: Duties & Rights of Aliens: General Overview

Osorio-Martinez v. AG United States, 893 F.3d 153, 2018 U.S. App. LEXIS 16265 (3d Cir. 2018).

Overview: The jurisdiction-stripping provision of the Immigration and Nationality Act, 8 U.S.C.S. § 1252, operated as an unconstitutional suspension of the writ of habeas corpus as applied to special immigrant juvenile designees seeking judicial review of orders of expedited removal.

The text of the Immigration and Nationality Act explicitly designates special immigrant juvenile as a status that affords its designees a host of legal rights and protections. 8 U.S.C.S. §§ 1101(a)(27)(J)(iii), 1255(h); 8 C.F.R. § 204.11(b). Go To Headnote

Alien children may receive special immigrant juvenile status only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a juvenile court find it would not be in the child’s best interest to return to her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state. 8 U.S.C.S. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c). The child must also receive approval from the United States Citizenship and Immigration Services and the consent of the United States Secretary of Homeland Security to obtain the status. 8 U.S.C.S.§ 1101(a)(27)(J) Go To Headnote

Immigration Law: Immigrants

Budhathoki v. Nielsen, 898 F.3d 504, 2018 U.S. App. LEXIS 21377 (5th Cir. 2018)

Immigration Law: Immigrants: Special Immigrants

Amaya v. Rivera, 135 Nev. 208, 444 P.3d 450, 2019 Nev. LEXIS 37 (Nev. 2019)

Overview: In a case in which district court denied mother’s motion to make the three predicate findings necessary to petition the federal government for special immigrant juvenile (SIJ) status, district court erred when it declined to consider whether reunification with child’s father was viable after concluding that reunification with mother was viable.

•

Federal law provides a pathway for undocumented juveniles residing in the United States to acquire lawful permanent residency by obtaining special immigrant juvenile (SIJ) status under 8 U.S.C.S. ? 1101(a)(27)(J). 8 C.F.R. ? 204.11 (2018). Obtaining SIJ status is a two-step process implicating both state and federal law: first, the applicant must go to state court to obtain a juvenile court order issuing predicate findings, and only after such findings are made can the applicant petition the United States Citizenship and Immigration Services (USCIS) for SIJ status. The state trial court does not determine whether a petitioner qualifies for SIJ status, but rather provides an evidentiary record for USCIS to review in considering an applicant’s petition. Go To Headnote

Romero v. Perez, 463 Md. 182, 205 A.3d 903, 2019 Md. LEXIS 163 (2019)

•

• 1101(a)(27)(J). By regulation, a juvenile court is a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. § 204.11(a). Once the applicant has the necessary predicate order, he must submit his application to the agency, attaching the state court order 8 C.F.R. § 204.11(d). The petitioner bears the burden of establishing eligibility. 8 U.S.C.S. § 1361. A successful application also requires the consent of the Secretary of Homeland Security to the grant of the SIJ status, which can be given through directors of U.S. Citizenship & Immigration Service. 8 U.S.C.S. § 1101(a)(27)(J)(iii) Go To Headnote

Osorio-Martinez v. AG United States, 893 F.3d 153, 2018 U.S. App. LEXIS 16265 (3d Cir. 2018).

•

To qualify for special immigrant juvenile status, applicants not only must be physically present in the United States, unmarried, and under the age of 21, but also, before applying to the United States Citizenship and Immigration Services, they must obtain an order of dependency from a state juvenile court. 8 U.S.C.S. § 1101(a)(27)(J)(i); 8 C.F.R. § 204.11(c). That order requires the state court to find: (1) that the applicant is dependent on a juvenile court or placed under the custody of a state agency or someone appointed by the state; (2) that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or habitual residence,; and (3) that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law. 8 U.S.C.S. § 1101(a)(27)(J)(i). Moreover, these determinations must be in accordance with state law governing such declarations of dependency, 8 C.F.R. § 204.11(c)(3), which, depending on the state, may also entail specific residency requirements. Go To Headnote

J.U. v. J.C.P.C., 176 A.3d 136, 2018 D.C. App. LEXIS 2 (D.C. 2018)

M.B. v. Quarantillo, 301 F.3d 109, 2002 U.S. App. LEXIS 17412 (3d Cir. 2002).

Pierre v. McElroy, 200 F. Supp. 2d 251, 2001 U.S. Dist. LEXIS 19982 (S.D.N.Y. 2001).

•

In re Tomas J , 318 Neb. 503, 18 N.W.3d 87, 2025 Neb. LEXIS 15 (Neb. 2025)

Overview: The court reasoned that because Tomas was 18 years old when the minor guardianship petition was filed, he was no longer considered a "child" under the UCCJEA. Therefore, the county court's jurisdiction was not governed by the UCCJEA.

• The text of the Immigration and Nationality Act explicitly designates special immigrant juvenile as a status that affords its designees a host of legal rights and protections. 8 U.S.C.S. §§ 1101(a)(27)(J)(iii), 1255(h); 8 C.F.R. § 204.11(b). Go To Headnote

Under federal immigration law, factual findings to support Special Immigrant Juvenile (SIJ) status must be made by a state court that has entered an order either declaring the immigrant to be dependent on the court or placing the immigrant in the custody of an agency or department of the state or an individual or entity appointed by the court. 8 U.S.C.S. § 1101(a) (27)(J)(i). 8 C.F.R. § 204.11(c)(1)(i)(B).Go To Headnote

Research References & Practice Aids

Hierarchy Notes:

8 CFR Ch. I

8 CFR Ch. I, Subch. B, Pt. 204

LEXISNEXIS’ CODE OF FEDERAL REGULATIONS

Administrative Office of the Co u rts

Michael J. Blee , J .A.D.

Act ing Admin ist rative D ir ector of t he Court s

Ric h ard J. Hughes Justice Complex • P.O. Box 037 Trenton , NJ 08625-0037 ° njcourts .gov • Te l: 609 - 376 -3000 • Fax: 609-376-3002

To: Assignment Judges Trial Court Administrators

From: Michael J. Blee, J.A.D.~f

Re:

DIRECTIVE# 04-25

Que stion s may b e di re cted to the Famil y Pract ice D ivision at 609-815-2900 , ext. 55350

Date: Family - Special Immigrant Juvenile Status (SIJS) Filing Requirements

August 13, 2025

This Directive is to clarify the filing requirements for complaints filed in the Superior Court for parties seeking a "predicate" order for Special Immigrant Juvenile Status (SIJS).

Federal immigration law affords protections for abused , neglected , or abandoned children who wish to apply for lawful , permanent resident status in the United States. These children may be eligible for classification as a " special immigrant juvenile," which permits them to remain legally in the United States.

The two-step SIJS process involves both state and federal systems. It begins with an application in a state comt requesting the entry of a " predicate " order, which requires the court to make the following findings:

1. The juvenile is under the age of 21 at the time the complaint is filed and is unman-ied;

2. The juvenile is dependent on the court or has been placed under the custody of an agency or an indiv idual appointed by the court;

3. The comt has jurisdiction under State law to make judicial determinations about the custody and care of the juvenile;

4. Reunification with one or both juvenile's parents is not viable due to abuse , neglect , or abandomnent or a similar basis under State law; and

5. It is not in the "best interest" of the juvenile to be returned to the parent's previous

Directive# 04-25-Family -Special ImmigrantJuvenile Status (SIJS) Filing Requirements

August 13, 2025

Page 2 of3

countryofnationalityorcountryoflasthabitualresidence.

The state'spredicate order isnot animmigration determination. Itis a prerequisite that mustbe fulfilledpriortothesecondstepoftheprocess, whichis thesubmission ofaSUS application totheUnited States Citizenship and Immigration Services (USCIS)intheforofan 1-360petition. Thepredicate order is to be included withthe SUSapplication. IftheUSCIS approves the 1-360 petition, thejuvenileisgrantedSUS.

Requests forthe SUS predicateordershouldbefiledintheSuperiorCourt, FamilyPart. The form, "Verified Complaint forSpecialImmigrant JuvenileStatus PredicateOrder" (CN 13321)was createdfor self-representedlitigants and is available online at Forms/13321. The form whencompleted sets forth the minimum statutorily requiredinformationthatmust be submitted as part ofthe complaint fora SUSpredicateorder. Thecourt, inits discretion, may requireadditionalinformation itdeemsnecessarytomake the predicateSIJS findings.

Acomplaint for a SUSpredicateordermay be filedby any ofthe following:

1. Theparentorguardianofthe minorchild.

2. A lawguardianortheDivisionofChild Protection&Permanency (DCPP)ifthereis an openFNor FGcase.

3. The child, iftheyare 18 yearsofageorolder.

4. Thechild, ifthey areunderthe ageof18 and do not haveaparent orguardian.

SuperiorCourtFilingRequirements

Generally, requests for aSUSpredicateorder shall be filedin the non-dissolution (FD) docketexceptasset forthbelow(basedonanyexistingFamilycase). For complaints filed in theFDdocket, aseparatecomplaint shall be filed foreachchild. Ifthereismorethanonechild seeking SUSunderanactive/openFN, FGorFM matter, aseparatepredicateorder foreach child shallbeentered.

Existing Family Case Filing Docket

None Non-Dissolution (FD)

Active/Open ChildProtection (FN) FN

ClosedFN FD

Active/Open TerminationofParental Rights (FG) FG

ClosedFG FD

Active/Open KinshipLegal Guardianship (FL) FL

ClosedFL FD

Active/Open or Closed Child Placement (FC) FD

Directive # 04-25~Family Special Immigrant Juvenile Status (SIJS) Filing Requirements

August 13, 2025

Page 3 of3

Active/Open Adoption (FA) FA

Closed FA FD

Active/Open or Closed Juvenile Delinquency (FJ) FD

Active/Open or Closed Family Crisis (FF) FD

Active/Open Dissolution (FM)

FM - Filing party is the plaintiff or defendant in FM case.

FD - Filing party is not the plaintiff or defendant in FM case.

Closed FM FD

Active/Open or Closed Domestic Violence (FV) FD

Active/Open or Closed Family - Other (FO) FD

Confidentiality

SIJS predicate orders shall contain language petmitting limited release ofinformation for SUS purposes, such as the following sample text:

This Order is a confidential document. Nevertheless, the court authorizes its disclosure to federal immigration officials in connection with the child's application for immigration relief.

Questions regarding Special Immigrant Juvenile Status (SUS) Filing Requirements may be directed to the Family Practice Division at (609) 815-2900, ext. 55350.

cc: Chief Justice Stuart Rabner

Family Presiding Judges

Steven D. Bonville, Chief of Staff

AOC Directors and Assistant Directors

Clerks of Court

Special Assistants to the Administrative Director

AOC Family Practice Chiefs

Fan1ily Division Managers and Assistant Managers

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

Office of the Director Camp Springs, MD 20588-0009

U.S. Citizenship and Immigration Services

June 6, 2025 PA-2025-07

Policy Alert

SUBJECT: Special Immigrant Juvenile Classification and Deferred Action

Purpose

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to eliminate automatic consideration of deferred action (and related employment authorization) for aliens classified as Special Immigrant Juveniles (SIJs) who are ineligible to apply for adjustment of status to lawful permanent resident (LPR) status due to visa unavailability.

Background

The SIJ classification is available to alien children subject to state juvenile court proceedings related to abuse, neglect, abandonment, or a similar basis under state law. 1 SIJ classification does not render an alien lawfully present, does not confer lawful status, and does not result in eligibility to apply for employment authorization. An alien classified as an SIJ, however, may seek to adjust status to that of an LPR based on the SIJ classification if the alien meets certain requirements. One of the requirements is that an immigrant visa be immediately available at the time of filing the adjustment of status application. 2

On March 7, 2022, USCIS updated its policy guidance to provide that the agency will automatically consider granting deferred action on a case-by-case basis to aliens classified as SIJs who are ineligible to apply for adjustment of status solely due to unavailable immigrant visas. 3

While Congress likely did not envision that SIJ petitioners would have to wait years before a visa became available, Congress also did not expressly permit deferred action and related employment authorization for this population. Neither an alien having an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without an immediately available immigrant visa available nor a juvenile court determination relating to the best interest of the SIJ are sufficiently compelling reasons, supported by any existing statute or regulation, to continue to provide a deferred action process for this immigrant category.

Therefore, USCIS has determined that this update is necessary to more closely align agency policies and procedures with statutory requirements and authorities. Further, this policy adheres to Executive

1 See INA 101(a)(27)(J). See 8 CFR 204.11

2 See INA 245(a) and INA 245(h). See 8 CFR 245.2(a)(2)(i)(A)

3 See Special Immigrant Juvenile Classification and Deferred Action, PA-2022-10, issued March 7, 2022.

PA-2025-07: Special Immigrant Juvenile Classification and Deferred Action Page: 2

Order 14161, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats” (January 20, 2025) 4 and USCIS has determined it is in the national and public interest to revert to the policy prior to March 7, 2022.

This guidance confirms that USCIS will no longer consider granting deferred action on a case-bycase basis to aliens classified as SIJs who are ineligible to apply for adjustment of status solely due to unavailable immigrant visas. This update, contained in Volume 6 of the Policy Manual, is effective immediately and applies to aliens classified as SIJs before, on, or after that date based on an approved Form I-360. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

Policy Highlights

• Provides that USCIS will no longer conduct deferred action determinations for aliens with SIJ classification who cannot apply for adjustment of status solely because an immigrant visa is not immediately available.

• Removes prior guidance stating USCIS will accept new Applications for Employment Authorization (Form I-765), under category (c)(14), from aliens with SIJ classification who have been granted deferred action by USCIS because they cannot apply for adjustment of status solely because an immigrant visa number is not immediately available

• Explains that aliens with current deferred action based on their SIJ classification will generally retain this deferred action, as well as retain their current employment authorization provided based on this deferred action, until the current validity periods expire.

• Provides minor clarifications to the current policy on terminating SIJ deferred action and confirms that USCIS, within its discretion, may terminate deferred action and revoke any associated employment authorization prior to the end of the current validity period.

Summary of Changes

Affected Section: Volume 6 > Part J > Chapter 4, Adjudication

• Revises Section G (Deferred Action) in its entirety.

USCIS may also make other minor technical, stylistic, and conforming changes consistent with this update.

Citation

Volume 6: Immigrants, Part J, Special Immigrant Juveniles, Chapter 4, Adjudication [6 USCIS-PM J.4].

4 This directs federal agencies to, in part, “vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States.” This policy promotes this by ensuring that USCIS Fraud and National Security personnel, as well as adjudicating officers, are not unnecessarily restricted from considering potentially relevant information within a record.

Section 2:

New Jersey Case Law

Reporter

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

Supreme Court of New Jersey

April 14, 2015, Argued; August 26, 2015, Decided A-114 September Term 2013, A-117 September Term 2013, 074241 and 074527

223 N.J. 196 *; 121 A.3d 849 **; 2015 N.J. LEXIS 878 ***

H.S.P., PLAINTIFF APPELLANT, v. J.., DEFENDANT.K.G.,PLAINTIFF APPELLANT, v. M.S. (DECEASED), DEFENDANT.IN THE MATTEROF J.S.G.ANDK.S.G. (MINORS).

Prior History: H.S.P. v. J.K., 435 N.J. Super. 147, 87 A.3d255,2014N.J. Super. LEXIS 42 (App.Div., 2014)

Syllabus

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approvedby the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

H.S.P. v. J.K. (A-114-13) (074241)

K.G. v. M.S. (Deceased) (A-117-13) (074527)

Argued April14, 2015 -- Decided August 26, 2015

CUFF,P.J.A.D.(temporarily assigned), writing for a unanimous Court. &

In these appeals, the Court examines the role of New Jersey state courts, pursuant to 8 U.S... 1101(a)(27)(J) and its implementing regulation, 8 C.F.R. § 204.11, in making the predicate findings necessary for a non-citizen child to apply for "special immigrant juvenile" (SIJ) status, which is a form of immigration relief permitting alien children to obtain lawful permanent residency and, eventually, citizenship, under the Immigration Act of1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

M.S., who was born in India in 1994,entered the United States without proper documentation in July 2011. In India, M.S. resided with his mother, J.K., after the family was abandoned by M.S.'s father when M.S. was four years old. When M.S. was fifteen, J.K.becameill and

could no longer work. M.S. took a job as a construction worker, working approximately seventy-five hours per week and developing a skin condition and back problems. Fearing that M.S. would die if he remained in India,J.K. arranged for him to travel to the United State to live with her brother, petitioner H.S.P. Sincearriving in the United States, M.S. has remained in close contact with his mother via weekly telephone calls.

In May 2012, H.S.P. filed a petition in the Family Part requesting that he be granted custody of M.S. and that the court issue a predicateorder, pursuant to 8 U.S.C.A. § 1101(a)(27)(J) and its implementing regulation, 8 C.F.R. § 204.11, finding that M.S. meets thestatutory requirements to be a special immigrant juvenile. Specifically, H.S.P. asked that, under the statute, the court find that reunification with "1 or both" of M.S.'s parents was not viable due to abuse, neglect, or abandonment and that returning to India would not be in M.S's bestinterests, allowing M.S. to then apply to the United States Citizenship and Immigration Services (USCIS) for SIJ status. Although the court awarded temporary custody to H.S.P., it did not find that either of M.S.'s parents had willfully abandoned him and, consequently, did not reach the question ofhis best interests. H.S.P. appealed, and, in a published decision, the Appellate Division affirmed. H.S.P. v. J.K., 435 N.J. Super. 147, 87 A.3d 255 (App. Div. 2013). The panel agreed that M.S. was not abandoned or neglected by J.K because, although permitting a child to be employed in a dangerous activity constitutes abuse under New Jersey law, it did not contravene the laws of India.The panel also affirmed the trial court's refusal to make a best interests finding. This Court granted H.S.P.'s petition for certification. 218 N.J. 532, 95 A.3d 258 (2014).

J.S.G., born in 1998, and K.S.G., born in2001, are the biological daughters of K.G. (their mother) and M.S. (their father), natives of El Salvador.After separating from M.S. in 2008, K.G. came to the United States, although she remained in near-daily contact with her daughters and sent money for their support. M.S. was murdered in 2013, and the children were cared for by

223 N.J. 196, *196; 121 A.3d 849, **849;2015N.J. LEXIS 878, ***878

M.S.'s mother, who K.G. believed may have been physically abusing the girls. Shortly after M.S.'s death, a threat was made on hismother'slife, as well as the lives of J.S.G. and K.S.G. K.G. arranged for her daughters to come to theUnitedStates,but they were apprehended by immigration enforcement agents when crossing at the United States-Mexican border. Removal proceedings commenced, although the girls ultimately went to live with their mother in Elizabeth. In March 2014, K.G. filed a complaint in the Family Part seeking custody of her daughters and requesting that the court make the predicate findings to permit them to apply for SIJ status.

The court granted K.G.'s application for custody. Italso 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 because no family membercould care for them there. However, the court determined that reunification with K.G. was viable, and that there was no basis under state law to suggest she had abused, neglected, or abandoned her daughters. Based on thatdetermination, and in reliance on the Appellate Division's decision inH.S.P., the court denied the children's application for SIJ status. This Court granted K.G.'s motionfordirectcertification.220 N.J.493, 107 A.3d681 (2014).

HELD: When faced with a request for an SIJ predicate order, the Family Part's sole task is to apply New Jersey law to make factual findings with regard to each of the requirements list in 8 C.F.R. § 204.11. The Family Part does not have jurisdiction to grant or deny applications for immigration relief.

2. The legislative scheme relating to SIJ status demonstrates that the determination of whether a child should be classified as a specialimmigrant juvenile rests squarely with the federal government. Congress opted to rely on state courts as the appropriate forum for making initial factual findings because of their special expertise in making abuse and neglectdeterminations, evaluating the best interest factors, and ensuring appropriate custodial arrangements. However, there can be no legitimate argument that a New Jersey family court has jurisdiction to approve or deny a child's application for SIJ status. Rather, pursuant to theSIJ statute, a state court makes predicate factual findings relative to a juvenile's eligibility, and the juvenile then presents those findings to USCIS, which makes the ultimate decision as to whether or not the application for SIJ status should be granted. This comports with the well-established rule that the regulation of immigration is exclusively a federal power. (pp. 20-22)

3. The Family Part, when performing its closely circumscribedtask of making specified predicate factual findings, is required to apply New Jersey law, and not that of a foreign nation. This conclusion is supported by the plain language of 8 U.S.C.A. § 1101(a)(27)(J)(i), which requires a petitioner to show that reunification with "1 or bothofthe immigrant's parents is not viable due to abuse, neglect, abandonment, or a similarbasis under Statelaw." In light of the limited role played by the New Jersey Family Part in SIJ proceedings, the Court declines to interpret the "1 or both" language ofthe statute, finding that such a task is exclusively the province of the federal government. However, in order to ensure that factual findings issued by New Jersey courts provide USCIS with the information required to determine whether a given alien satisfies the eligibility criteria for SIJstatus, the Court instructs courts of the Family Part to make separate findings as to abuse, neglect, and abandonment with regard to both legal parents of an alien juvenile. Finally, the determination of

1. The1952Immigration and Nationality Act (INA), 8 U.S.C.A. §§ 1101-1537, is the cornerstone of United States immigration law and includes protections for abused, neglected, or abandoned childrenwho illegally entered the United States. In accordance with 8 U.S.C.A. § 1101(a)(27)(J), an undocumented minor immigrant is eligible for classification as a "special immigrant juvenile," which affords the minor relief from deportation and the opportunity to apply for permanent residency. The SIJ scheme was most recentlyamended in 2008 with the enactment of the TVPRA, which inserted language requiring that the child not be able to reunify with "1 or both" parents because of "abuse, neglect, abandonment, or a similar basis" under state law.8U.S.C.A. § 1101(a)(27)(J)(i). The current iteration of the statute also requires a finding that it would not be in the juvenile's best interest to be returned to his or her previous country of nationality. 8 U.S.C.A. § 1101(a)(27)(J)(ii). The processfor obtaining SIJ status is a unique, two-step, hybrid procedure involving both state and federal systems. Specifically, the child, or an individual acting on his or her behalf, must first petition a state juvenile court for an order making findings that the child satisfies certain criteria, including the requirements containedin8U.S.C.A. § 1101(a)(27)(J)(i) and (ii) and 8 C.F.R§ 204.11. This predicate order is not an immigration determination, but merely a prerequisite that must be fulfilled prior to the second step of the process, which is submission of the application for SIJ status to USCIS. (pp.16-20)

223 N.J. 196, *196; 121 A.3d 849,**849; 2015 N.J. LEXIS 878, ***878

whether an immigrant's purpose in applying for SIJ status matches with Congress's intent in creating that avenue of relief is properly left to the federal government. (pp. 22-25)

4.Whilereviewing courts give deference to a trial court's factual findings, no deference is owed to legal conclusions drawn by the trial court. With respect to the specific facts of H.S.P., the Court reverses and remands that aspect of the Appellate Division judgment finding that M.S.'s employment did not constitute abuse or neglect because H.S.P. failed to demonstrate that it was contrary to the laws of India. The Family Part is instructed to conduct an analysis, under New Jersey law, of whether reunification with each of M.S.'s legal parents is viable due to abuse, neglect or abandonment, in addition to making the other required findings under C.F.R.§ 204.11. With respect to K.G., the Court concludes that the trial court's factual determinations were supported by competent, credible evidence. However, the trial court erred in purporting to deny K.S.G.'s and J.S.G.'s applications for SIJ status. That determination is reversed and remanded, with instructions to the Family Part to make findings regarding each element of 8 C.F.R § 204.11, mindful that its sole purpose is to make those factual findings and not to adjudicate the children's applications for SIJ status. (pp. 26-28)

The judgment of the Appellate Division in H.S.P. is REVERSED and the matter is REMANDED to the Family Part for a new hearing conducted in accordance with this decision.The judgment of the trial court in K.G. is likewise REVERSED and REMANDED.

Counsel: [***1] H.S.P. v. J.K. (A-114-13): On certification to the Superior Court, Appellate Division, whose opinion is reported at 435 N.J. Super. 147, 87 A.3d 255 (App.Div.2014).

K.G. v. M.S.(A-117-13): On appeal from the Superior Court, Chancery Division, Union County.

Francis X. Geier argued the cause for appellant in H.S.P. v. J.K. (Basaran Law Office, attorneys; Mr. Geier and Melinda M. Basaran on the brief).

Kevin B. Kelly, Solangel Maldonado, Jessica Miles, Kimberly M. Mutcherson, Lori A. Nessel, Meredith Schalick, Sandra Simkins, and Carol A. Wood in H.S.P v. J.K. (Ms.Mandelbaum, Ms. Gottesman, Ms. Schalick, and Sarah Koloski Regina on the brief).

Randi S. Mandelbaum argued the cause for amici curiae

Ms. Mandelbaum, Farrin Anello, Jenny-Brooke Condon, Anne E. Freedman, Joanne Gottesman,AnjumGupta,

A. Matthew Boxer argued the cause for amici curiae American Friends Service Committee, Kids in Need of Defense, and The Young Center for Immigrant Children's Rights inH.S.P. v. J.K. (Lowenstein Sandler, attorneys; Mr. Boxer, Catherine Weiss, Eric Jesse, and Kathryn S. Pearson on the brief).

Randi S. Mandelbaum argued the cause for appellant in K.G. v. M.S. (Ms.Mandelbaum and Sarah Koloski Regina on the brief).

Judges: JUSTICES LaVECCHIA, ALBIN, PATTERSON, [***2] FERNANDEZ-VINAand SOLOMON join in JUDGE CUFF's opinion. CHIEF JUSTICE RABNER did not participate.

Opinion by: CUFF

Opinion

[**851] [*199] JUDGE CUFF (temporarily assigned) delivered the opinion of the Court.

In this appeal, we examine the role of our state courts in making the predicate findings necessary for a noncitizen child to [*200] apply for "special immigrant juvenile" (SIJ) status under the Immigration [**852] Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 122 Stat. 5044. SIJ status is a form of immigration relief permitting alien children to obtain lawful permanent residency and, eventually, citizenship. To obtain SIJ status, a juvenile must complete a two-step process: first, the juvenile must apply to a state court for a predicate order finding that he or she meets the statutory requirements; second, he or she must submit a petition to United States Citizenship and ImmigrationServices (USCIS) demonstrating his or her statutory eligibility. 8C.F.R. § 204.111 detailsthe findings that must be made by a

1 The full citation for this regulation is: Special immigrant status for certain aliens declared dependent on a juvenile court

223 N.J. 196, *200; 121 A.3d849,**852; 2015 N.J. LEXIS 878, ***2

juvenile court before an alien's application for SIJ status will be considered by USCIS: in addition to a series of factual requirements, the [***3] juvenile must demonstratethat reunification with "1 or both" of his or her parents is not viable due to abuse, neglect, or abandonment. The court isthen required to determine whether it is in the juvenile's best interests to return to his or her home country.

The Family Part plays a critical role in a minor immigrant's attempt to obtain SIJ status but that role is closely circumscribed. The Family Part's sole task is to apply New Jersey law in order to make the child welfare findings required by 8 C.F.R. § 204.11. The Family Part does not have jurisdiction to grant or deny applications for immigration relief. That responsibility remains squarely in the hands of thefederal government. Nor does it have the jurisdiction to interpret federal immigration statutes. The Family Part's role in the SIJ process is solely to apply its expertise in family and child welfare matters to the issues raised in 8 C.F.R. § 204.11,regardless of its view as to the position likely to be taken [***4] by the federal agency or whether the minor has met the requirements [*201] for SIJ status. To that end,Family Part courts faced with a request for an SIJ predicate order should make factual findings with regard to each of the requirements listed in 8 C.F.R. § 204.11. When analyzing whether reunificationwith "1 or both" parents is not viable due to abuse, neglect, or abandonment, the Family Part shall make separate findings as to each parent, and that determination shall be made by applying the law of this state. Thisapproach will provide USCIS with sufficient information to enable it to determine whether SIJ status should be granted or denied, in accordance with the statutory interpretation of the SIJ provision applied by that agency.

Accordingly, we reverse the Appellate Division's decision in H.S.P. and the Family Part's decision in K.G. Both failed to address all of the requirements identified in 8 C.F.R. 204.11. The panel in H.S.P. also improperly applied the law of thechild'scountry of origin rather than the law of this state to address whether the juvenile had been abused, neglected, or abandoned in his or her home country. We remand both cases for further findings consistent with this opinion.

I. A. ***51

(special immigrant juvenile), 8 C.F.R. §204.11(2014). For the sake of brevity, we refer to this regulation as 8 C.F.R. § 204.11.

M.S., born in India on December 14, 1994, entered the United States without proper documentation in July 2011. Since then, he has resided with his uncle, petitioner H.S.P., and H.S.P.'s family in Passaic County. Prior to coming to the United States, M.S. resided with his mother, respondent [**853] J.K., and two older siblings. M.S.'s father abandoned the family when M.S. was four years old.M.S.'s siblings both died of unknown causes when each was seventeen years old. M.S. believes that theirdeathsresultedfrommalnourishment, unsanitary living conditions, the unavailability of medical care, and heart problems. When M.S. was fifteen, J.K. became ill and was unable to work. M.S.and J.K. moved in with J.K.'s mother, and M.S. stopped attending schooland took a job as [*202] a construction worker. M.S. worked approximately seventy-five hours a week at a construction site located more than two miles from the family home. The work causedM.S. to develop a skincondition and occasional back problems.

At some point, M.S. became ill. J.K. feared that he would die if he remained in India. She arranged for him to travel to the United States to live with her brother, H.S.P. M.S.entered the United States by [***6] walking across the United States-Mexico border in July 2011. Since arriving in the UnitedStates, M.S. has not had any health problems. He and J.K. remain in close contact via weekly telephone calls.

In May 2012, H.S.P. filed a petition in theFamilyPart requesting that he be granted custody of M.S. The petition identified J.K. as the respondent; however, in actuality, the two acted in concert to bring thepetition. H.S.P. also requested that the Family Part make the required findings to classify M.S. as a special immigrant juvenile under 8 U.S.C.A.§1101(a)(27)(J) and its implementing regulation, 8 C.F.R. § 204.11.

The Family Part conducted a custody hearing on September 27, 2012. The trial court awarded temporary custody of M.S. to H.S.P. Turning to the SIJ predicate findings, the court concluded that neither parent had "abandoned" M.S. It reasoned that "abandonment" required an affirmative act by a parent willfully forsaking the obligations owed to his or her child. The trial court credited testimony suggesting that M.S.'s father was an alcoholic or a drug addict, but determined that the evidence of record was insufficient to establish that he had willfully abandoned his son. Moreover,the trial court found [***7] that J.K. had not abandoned M.S. In contrast, J.K. remained actively involved in M.S.'s life. J.K.'s concern for M.S.'s best interests was evidenced by her decision to send M.S. to the United States and

223 N.J. 196,*202; 121 A.3d 849, **853;2015N.J. LEXIS 878, ***7

assistH.S.P.in attaining custody ofher son. Because it did not find that M.S. had been abandoned or neglected, the court did not reach the question of whether it would be in hisbest interests to remain in the UnitedStates or be returned to India.

[*203]

H.S.P. appealed. The Appellate Division affirmed the trial court's determinationthat M.S. was not abandoned or neglected by J.K., finding thatshe was financially unable to provide better care. H.S.P. v. J.K., 435 N.J. Super. 147, 159, 171, 87 A.3d 255 (App.Div.2013). The panelnoted that permitting a child to be employed in a dangerous activity constitutes abuse under New Jersey law, but found that petitioner failed to demonstrate that M.S.'s employment contravened the laws of India. Id. at 160, 87 A.3d 255. The panel reversed the trial court's finding with regard to abandonment by M.S.'s father, finding that a "total disregard of parental duties" was sufficient to constitute abandonment. Id. at 171, 87 A.3d 255. Despite that finding, the panel affirmed the trial court's refusal to make a best interests finding pursuant to 8 U.S.C.A. § 1101(a)(27)(J)(ii). lbid. The panel [***8] held that petitioner was not entitled to such a finding becausehe had not demonstrated that reunification with "neither" parent was viable due to abuse, [**854] neglect, or abandonment.Id. at 166,87A.3d255.

This Court granted H.S.P.'s petition for certification.218 N.J. 532, 95 A.3d 258 (2014). We also permitted the American Friends Service Committee (AFSC), Kids in Need of Defense (KIND), the Young Center for Immigrant Children's Rights (YCICR), and, in their individual capacities, numerous New Jersey law school professors specializing in family and immigrationlaw, to appear as amici curiae.

J.S.G., born December 1, 1998, and K.S.G., born April 30, 2001, are the biological daughters of K.G. (their mother) and M.S. (their father). K.G. and M.S., who are natives of El Salvador, married in 1998 and lived together in their home country for approximately ten years before separating. In January 2008, K.G. left El Salvador to come to the United States. J.S.G. and K.S.G. remained in El Salvador under the care of their father and his mother. After K.G.'s departure, she and her daughters remained in near-daily contact through telephone and video-conference calls. [*204] K.G. frequently sent money to M.S. for the care and support of J.S.G. and K.S.G. [***9]

M.S. was murdered by members of a local gang on April

13, 2013. His family believes that he was killed because he refused to pay a fee demanded by the gang. After his death, the children remained in the care of M.S.'s mother. At some point, during a video-conference with J.S.G. and K.S.G., K.G. observed bruises on K.S.G.'s face. This caused K.G. to believe that M.S.'s mother was physically abusing the girls. M.S.'s death was not the family's first interaction with gang violence. In summer 2012, when J.S.G. was twelve years old, she was raped by an acquaintance. Sheidentified him as a member of the "18"2 gang based on his piercings, tattoos, and hairstyle. At some point after the rape -which she did not reveal to her mother until after arriving in the United States -- J.S.G. attempted suicide.

Shortly after M.S.'s death, his mother received a telephone call, wherein the caller threatened to kill her, J.S.G., and K.S.G. [***10] if they did not leave their home. K.G. arranged for J.S.G. and K.S.G. to stay with her sister until she could save enough money to bring them to the United States. Their grandmother went to a son's house. The girls remainedwiththeirmaternal aunt for approximately twenty days, after whichthey began thejourney to the UnitedStates.

J.S.G. and K.S.G. entered the United States in June 2013 by crossing the United States-Mexico border. At that time, they were apprehended by immigration enforcement agents and removal proceedings were initiated. J.S.G. and K.S.G. were transferred to a shelter in Chicago, Illinois run by the Office of Refugee Resettlement (ORR). On July 27, 2013, ORR released both girls to K.G.'s care. They continue to reside at her home in Elizabeth. While in removal proceedings, both girls applied for SIJ status.

[*205] On March18,2014, K.G. filed a complaint in the Family Part seeking custody of J.S.G. and K.S.G.and requesting that the court make the predicate findings to permit them to apply for SIJ status. The Family Part conducted a hearing on April [**855] 28, 2014. After hearing testimony from K.G., J.S.G., and K.S.G., the court granted K.G.'s application for custody of her [***11] daughters.

Thetrial court then addressed the predicatefindings for SIJ status. The court determined that both girls were

2 This is apparently a shorthand reference to a group known as M-18, a transnational criminal organization considered a major threat to public security in El Salvador. U.S. Dept. of State, Bureau of Diplomatic Security, El Salvador2013Crime and SafetyReport 9 (2013).

223 N.J.196, *205; 121 A.3d 849, **855; 2015 N.J. LEXIS 878, ***11

less than twenty-one years of age, unmarried, and dependent on the court. The court found that reunificationwithM.S. was not viable because he was deceased, and that it was not in the children's best interests to return to El Salvador because their grandmother was incapable of caring for them and there were no other family members able to assume that role. The trial court found no basis under state law to suggest that K.G. had abused, neglected, or abandoned the children. Instead, the court concluded that she had provided for them financially and remained involved in their livesaftermoving to the United States. The court determined that reunification with K.G. was viable, noting that the children were living with her at the time of the hearing. Based on that determination, and in reliance on the Appellate Division's decision in H.S.P., the court denied the children's application for SIJ status.

K.G.filed a notice of appeal with the Appellate Division and, subsequently, a motion for direct certification pursuant to Rule 2:12-2. This Court grantedcertification. K.G. v. M.S., 220 N.J. 493, 107 A.3d 681 (2014).

I. [***12]

H.S.P. contends that the Appellate Division misapplied the SIJ standard when it applied the lawofIndia,and not that of New Jersey, in determining thatM.S.had not been abused. H.S.P. reasons that the relevant inquiry was whether M.S.'s treatment [*206] constituted abuse as defined by New Jersey law. He contends that, measured by the proper standard, M.S. suffered abuse when he was forced to leave school at age fifteen to work long hours at a construction site, which caused him to develop back pain and a skin condition. He asserts that the improper reliance on foreign lawledthe Appellate Division to the erroneous conclusion that M.S. was not abused, and created a "dangerous precedent" requiring New Jersey courts to undertake the "unrealistic task" of researching and applying the laws of a child's home country when making findings under 8 U.S.C.A. § 1101(a)(27)(J).

H.S.P. also argues that the Appellate Division erroneously evaluated the "neglect" prong ofthe SIJ statute by focusing"almostexclusively" on whetherthe neglect was "intentional."In reliance on this Court's decision in G.S. v. Department of Human Services, 157 N.J. 161, 723 A.2d 612 (1999), H.S.P. asserts that the proper inquiry iswhetherthe guardian's conduct was grossly negligent. Here, J.K.'s conduct in [***13] permitting M.S. to work long hours in a construction job

and failing to provide basic care and medical attention constituted gross negligence, even in the absence of any intent to harm him. H.S.P. further contendsthat J.K.'s conduct in sending a sick child to make a perilous journey overseas without supervision constitutes abandonment under N.J.S.A. 9:6-1(b).

Next, H.S.P. argues that the Appellate Division misinterpreted the "1 or both" language of 8 U.S.C.A. § 1101(a)(27)(J)(i). H.S.P. reasons that the panel disregarded Congress's specific requirement that "reunification with 1 or both [parents] is not viable," 8 U.S.C.A. § 1101(a)(27)(J)(i), and substituted its own, more onerous requirement that reunification with "neither" parent be viable. H.S.P. asserts that this result improperly renders the "1 or both" language a nullity and ignores the fundamental [**856] legislative purpose of the SIJ statute. Finally, H.S.P. notes that the Appellate Division's interpretation conflicts with theinterpretation relied upon by USCIS,which routinely grants petitions based on a family court's determination that reunification with only one parent is not viable.

[*207] Respondent J.K. did not file a brief.

Amici curiae New Jersey Law School Professors Specializing [***14] in Family Law and Immigration Law, in their individual capacities, assert that the Appellate Division improperly relied on Indian law, instead of New Jersey law, in determining that M.S.had not been abused or neglected by his mother. Amici also assert that the Appellate Division erroneously applied an "intent" standard in concluding that J.K. had not neglected M.S. Amici argue that, had the panel properly applied the wanton or reckless standard, it would have concludedthat J.K.'s action in sending M.S. to work long days in a dangerous job created a substantial risk of harm and therefore constituted neglect.

Amici AFSC, KIND, and YCICR argue that, in performing what should have been a straightforward review of the trial court's factual findings, the Appellate Division erred in interpreting the "1 or both" language in a manner contradictory to its plain language. Amici argue that, in limiting SIJ eligibility to cases where "reunification with neither parent is viable," the Appellate Division decision effectively strikes "1 or both" from the statute in derogation of the canon against "interpreting any statutoryprovision in a manner that would render another provision superfluous."" [***15] (Quoting Bilski v. Kappos, 561 U.S. 593, 608, 130 S. Ct.3218, 3228, 177 L. Ed. 2d 792, 805 (2010)). Amici contend that nothing in the legislative history supports the Appellate

223 N.J. 196, *207; 121 A.3d 849, **856; 2015 N.J. LEXIS 878,***15

Division's interpretation of the "1 or both" language, and that the plain language of the statute comports with Congress's intent to protect immigrant children who have been abused, neglected, or abandoned. They argue that the Appellate Division's interpretation is further undermined by that of USCIS,thefederalagency charged with applying the SIJ statute, which routinely grants SIJ petitions based on a state court's determination that reunification with only one parent is not viable due to abuse, neglect, or abandonment.

K.G. asserts that the Family Part confused its role and overstepped its jurisdictional authority by interpreting her request for [*208] an SIJ predicate order as an invitation to adjudicate her daughters' application for SIJ status. K.G. reasons that Congressinserted state courts into the SIJ process because of their experience and proficiency in adjudicating child welfare matters; however, the state court enjoys no corresponding expertise with regard to federal immigration law. In K.G.'s view, the state court's role in an SIJ case is strictly limited to identifying abused, neglected, [***16] or abandoned children, and USCIS, the agency charged with overseeing lawful immigration to the United States, is thesole body charged with adjudicating applications for SIJ status.

Next, K.G. asserts that the trial court erred by relying on the appellate panel's determination in H.S.P. that SIJ status is limited to children who cannot be reunited with either parent. K.G. asserts that,contrary to that ruling, Congress intended SIJ status to be available to children who could not be reunited with both biological parents; children who can be reunited with only one fitparent are therefore eligible for SIJ status. Accordingly, the trial court'sinquiryshould have ended when itdetermined that reunification with the children's father, who is deceased, was not viable. K.G. asserts that this interpretation is supported by the plain language of [**857] the statute, Congress's purpose in enacting it, and the weight of authority from other jurisdictions. Importantly, K.G. argues this interpretation is also supported by USCIS -- the agency charged with administering the statute -- which consistently permits children living in the custody of one fit parent to obtain SIJ status.

Finally, K.G. asserts [***17] that this case must be distinguished from H.S.P. for three reasons: first,J.S.G. and K.S.G. face a specific and direct threat of harm if returned to El Salvador; second, they do not have a safe or appropriate caregiver in their home country; and third, they are presently in removal proceedings.

III.

The 1952 Immigration and Nationality Act (INA), 8 U.S.C.A. §§ 1101-1537, remains the cornerstone of United States immigration [*209] law. In 1990, Congress amended the INA to include protections for "abused, neglected, or abandoned children who, with their families, illegally entered the United States." Yeboah v. U.S. Dep't of Justice, 345 F.3d 216, 221 (3d Cir.2003). In accordance with 8 U.S.C.A. § 1101(a)(27)(J), as added by Pub. L. 101-649, § 153, an undocumented minor immigrant is eligible for classification as a "special immigrant juvenile," which wouldafford him or her relief from deportation and the opportunity to apply for lawful permanent residency. Yeboah, supra, 345F.3d at 221.

The SIJ scheme has since been amended several times. The most recent amendment occurred in 2008, when Congress enacted the TVPRA. The SIJ amendments implemented by the TVPRA were intended to expand SIJ classification to include protections for minor victims of human trafficking. Notably, the TVPRA liberalized the requirements for SIJ status [***18] by eliminating the requirement that the child be eligible for long-term foster care. See 8 U.S.C.A. § 1101(a)(27)(J)(i). The TVPRA inserted language requiring that the child not be able to reunify with"1 or both" parents because of "abuse, neglect, abandonment, or a similar basis" under state law. See ibid. Thus, the present iteration of the statute defines a "special immigrantjuvenile" as a juvenile (i) who has beendeclared dependent on a juvenile court located in theUnitedStates or whom such a courthas legallycommitted to, or placed under the custody of, an agency or departmentof a State, or an individual or entity appointed by a State or juvenile court locatedin the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law[.]

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence[.]

[8 U.S.C.A. § 1101(a)(27)(J).]

The process for obtaining SIJ status is "a unique hybrid procedure that directs the collaboration ofstate [***19] and federal systems." In re Marisol N.H., 115 A.D.3d

223 N.J. 196,*209;121 A.3d 849, **857; 2015 N.J. LEXIS 878, ***19

185, 188, 979 N.Y.S.2d 643 (N.Y.App.Div.2014) (quoting In re Hei Ting C., 109A.D.3d100, 104,969 N.Y.S.2d 150 (N.Y.2013)); E.C.D. v. P.D.R.D. 114 So. 3d 33, 36 (Ala.Civ.App.2012) (explaining that SIJ statute creates [*210] "a special circumstance 'where a state juvenile court is charged with addressing an issue relevant only to federal immigration law."" (quoting In re J.J.X.C., 318 Ga. App. 420, 734 S.E.2d 120, 124 (Ga.2012)). Thechild -- or another individual acting on his or her behalf -- must first petition for "an order from a state juvenile court making findings that [**858] the juvenile satisfies certain criteria." Simbaina v. Bunay, 221 Md. App. 440, 109 A.3d 191, 197-98 (Md.Ct.Spec.App.2015) (quoting In re Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 107, 973 N.Y.S.2d 714 (N.Y.App.Div.2013)). The juvenile court mustmakethe following findings:

(1) The juvenileis under the age of 21 and unmarried; is

(2)The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;

(3)The"juvenile court" has jurisdictionunder state law to make judicial determinations about the custody and care of juveniles;

(4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law: and

(5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C.A. § 1101(a)(27)(J)(ii); 8 C.F.R.§ 204.11(a), (d)(2)(iii) [amended byTVPRA 2008].

[In re DanyG., 223 Md. App.707, 117 .3d650, 2015 Md. App. LEXIS 90 at *8 (Md.Ct.Spec.App.2015) (internal citations omitted) [***20] (citing 8 C.F.R. § 204.11(a), (c) & (d); 8 U.S.C.A. § 1101(a)(27)(J))-]

"By making these preliminary factual findings, the juvenile court is not rendering an immigration determination." Marcelina M.-G., supra, 112A.D.3dat 109 (citation omitted); J.J.X.C., supra, 734 S.E.2d at 123;3-35 Immigration Law andProcedure § 35.09(3)(a) (Matthew Bender 2013)). The aptly named state court "predicate" order is merely a prerequisite that must be fulfilled before a juvenile can submit his or her application for SIJ status to USCIS in the form of an I360 petition. If USCIS approves the juvenile's I-360, he

or she will be granted SIJ status. Perez-Olano v. Gonzalez, 248F.R.D.248, 254 (C.D.Cal.2008) (citing 8 C.F.R. § 204.11; Application, 8 C.F.R. § 1245.2(a)(1)(i) (2014)).

Afterobtaining SIJ status, a child is permitted to apply for adjustment of statusunder8U.S.C.A. § 1255, in an effort to [*211] obtain legal permanent residency, and, eventually, U.S. citizenship. 8 U.S.C.A. § 1255 permits SIJs to circumvent various admissibility requirements that might otherwise prevent them from obtaining permanent residency. For example, an SIJ is not required to demonstrate that he or she is unlikely to become a public charge or that he or she did not come to the United States for the purpose of performing unskilled labor. 8 U.S.C.A. § 1255(h)(2)(A). Likewise, minors classified as special immigrant juveniles are not prevented from obtaining legal permanent [***21] resident status because they entered the country without inspection, do not hold an unexpiredimmigrant visa or other valid entry document, or have accrued more than 180 days of unlawful presence in the United States. Ibid.

IV.

We take this opportunity to comment on and clarify the limited role played by New Jersey State courts in the SIJ application process. Our review of the legislative scheme relating to SIJ status demonstrates that the determination of whether a child should be classified as a special immigrant juvenile rests squarely with the federal government. "Congress chose to rely on state courts to make [initial factual findings] because of their special expertise in making determinations as to abuse and neglect issues, evaluating the best interest factors, and ensuring safe and appropriate custodial arrangements." [**859] Meghan Johnson & Kele Stewart,Unequal Access to Special Immigrant Juvenile Status: State Court Adjudication of One-ParentCases, American Bar Association (July 14, 2014), http://apps.americanbar.org/litigation/committees/childri ghts/content/articles/summer2014-0714-unequalaccess-special-immigrant-juvenile-status-state-courtadjudication-one-parent-cases.html.

"The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child's best [*212] interests." [***22] In re Y.M., 207 Cal. App. 4th892,144 Cal. Rptr. 3d 54, 68 (Cal.App.Div.2012) (citing PerezOlano, supra, 248 F.R.D. at 265).

223 N.J. 196, *212;121 A.3d 849,**859; 2015 N.J. LEXIS 878, ***22

However, there can be no legitimate argument that, as suggested by the trial court in K.G., a New Jersey family court has jurisdiction to approve or deny a child's application for SIJ status. That fact is clear from a review of the SIJ statute, whichimplements a two-step process inwhich a state court makes predicate factual findings -- soundly within its traditional concern for child welfare -- relative to a juvenile's eligibility. The juvenile then presents the family court's factual findings to USCIS, "which engages in a muchbroader inquiry than state courts," Eddie E. v. Superior Court, 234 Cal. App. 4th 319, 183 Cal. Rptr. 3d 773, 780 (Cal.App.Div.2015), and makes the ultimatedecision as to whether or not the juvenile's application for SIJ status should be granted. Thus, the findings made by the state court only relate to matters of child welfare, a subjecttraditionally left to the jurisdiction of the states. All immigration decisions remain in the hands of USCIS, the agency charged with administering theINA.Lucaj v. Dedvukaj, 749 F. Supp. 2d 601, 607 (E.D.Mich.2010) (noting that USCIS, one of three immigration-related agencies falling under Department of Homeland Security, is charged with "administer[ing] immigration benefits"). This arrangement comports with the well-established rule that the "[p]ower to regulate [***23] immigration is unquestionably exclusively a federal power," De Canas v. Bica,424 U.S. 351, 354, 96 S. Ct. 933, 936,47 L. Ed. 2d 43, 48 (1976), concept that has imbued our law and policy since 1889, see Chae Chan Ping v. United States, 130 U.S. 581, 604, 9 S. Ct. 623,629, 32 L. Ed. 2d 1068, 1075 (1889) (explaining that "[t]he power[] to.. . admit subjects of other nations to citizenship [is a] sovereign power[], restricted in [its] exercise only by the Constitution itself and considerations of public policy and justice whichcontrol, more or less,the conduct of allcivilized nations").

In performing its closely circumscribed task of making specified predicate factual findings, we conclude that the Family Part is required to apply New Jerseylaw,and not that of a [*213] foreign nation. 8 U.S.C.A. § 1101(a)(27)(J)(i) requires a petitioner to show that "reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law[.]" (Emphasis added). As recentlyreiteratedby the United States Supreme Court, "[i]f the statutory language is plain, we must enforce it according to its terms." King v. Burwell, U.S. 135 S. Ct. 2480, 2489, 192 L. Ed. 2d 483, 494 (2015). The plain language of 8 U.S.C.A.§ 1101(a)(27)(J)(i) requires New Jersey courts to apply New Jersey law, and not that of an alien's home country, when whether a juvenile has been determining abused,

neglected, or abandoned.

Our reflection on the limited role played by [***24] the New Jersey Family Part in SIJ proceedings leads us to two additional conclusions. First, we decline petitioners' invitation to interpret the "1 or both" language [**860] of the statute. Such a task is exclusively the province of the federal government, which has provided copious guidance as to the application process and eligibility. See,e.g., USCIS, SIJ PetitionProcess (2011); USCIS, Eligibility Status forSIJ (2011).

Westate only the following regarding the nature of the findings to be made by the Family Part. In an effort to ensure that factual findings issued by New Jersey courts provide USCIS with the necessary information to determine whether a givenalien satisfies the eligibility criteria for SIJ status, we instruct courts of the Family Part to make separatefindings as to abuse, neglect, and abandonment with regard to both legal parents of an alien juvenile. For example, the FamilyPartshould first determine whether reunification with one of the child's parents is not viable due to abuse, neglect, or abandonment. Regardless of the outcome of that analysis, the court should next conduct the same analysis with regard to the child's other legalparent. By requiring the Family [***25] Part to make independent findings as to both of the juvenile's parents, we ensure that USCISwill have sufficient information to apply8 U.S.C.A. § 1101(a)(27)(J) as it sees fitwhen a juvenile subsequently submitsthe Family Part'sorder to USCIS in support [*214] of an application for SIJ status. That is the role Congressenvisioned for the juvenile courts of the fifty states, and that is the process that should be followed by theFamily Part.

Second, we note that, throughout its decision in H.S.P., the Appellate Division expressed concern that H.S.P.'s petition for custody of M.S. was filed "primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment." H.S.P., supra, 435 N.J.Super. at 167, 87 A.3d 255 (citing State v. Erick M., 284 Neb. 340, 820 N.W.2d 639, 646 & n.25 (Neb.2012)). It is true that, as noted by the Appellate Division, "the legislative and administrative history of Subparagraph J shows two competing goals. Congress wanted to permit use of the SIJ procedure when necessary to prevent the return of juveniles to unsafe parents.Where such protection is unnecessary, however, Congress wanted to prevent misuse of the SIJ statute for immigration advantage." Id. at 169, 87 A.3d 255; see In re Israel O., 233 Cal. App.

223 N.J. 196,*214; 121 A.3d 849, **860; 2015 N.J. LEXIS 878,***25

4th 279, 182 Cal. Rptr. 3d 548, 553 (Cal.Ct.App.2015); Erick M., supra, 820 N.W. 2d at 647. The panel relied [***26] on that rationale in support ofits decision to uphold the Family Part's determination that it was not necessary to make a best interest finding under 8 U.S.C.A. § 1101(a)(27)(J)(ii). The panel's attempt to divine and support Congress's intent is laudable. However, New Jersey state courts are not charged with undertaking a determination of whether an immigrant's purpose in applying for SIJ status matches with Congress's intent in creating that avenue of relief. That determination is properly left to the federal government. "Nothing in 8 U.S.C.A. § 1101(a)(27)(J) or the regulation indicates that the Congress intended that state juvenile courts pre-screen potential SIJ applications for possible abuse on behalf of USCIS." In re Mario S., 38 Misc. 3d 444, 954 N.Y.S.2d 843, 851 (N.Y. Fam. Ct. 2012). As stated by USCIS,

[jjuvenile court judges issue juvenile court orders that help determine a child's eligibility for SIJ status. A child cannot apply to USCIS for SIJ classification without a court order from a juvenile court. However, juvenile judges should note that providing a qualifying order does not grant SIJ status or a Green Card -- only [*215] USCIS can grant or deny these benefits. The role of the [**861] court is to make factual findingsbased on state law about the abuse, neglect, or abandonment, family reunification,[***27] and best interests of the child.

[USCIS, Immigration Relief for Abused Children (2014), available at http://www.uscis.gov/sit es/default/files/USCIS/Green%20Card/Green%20C ard%20Through%20a%20Job/lmmigration_Relief_f or_Abused_Children-FINAL.pdf.]

In reviewing a decision made by a trial court in a nonjury trial, an appellate court must"give deference to the trial court thatheard the witnesses, sifted thecompeting evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254,105 A.3d 1082 (2015) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474,483-84,323A.2d495 (1974)). Reviewing courts "should 'not disturb the factual findings and legal conclusions of the trial judge' unless convinced that those findings and conclusions were 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484, 323 A.2d 495). However, legal issues are subject to de

novo review; the appellate court owes no deference to legal conclusions drawn by the trial court. M.S. v. Milburn Police Dept., 197 N.J. 236, 246 n.10, 962 A.2d 515 (2008).

We now turn to the specific facts of the two cases before us.

A.

In H.S.P., supra, the Appellate Division determined that M.S.'s employment did not constitute abuse or neglect because H.S.P. failed to demonstrate that his employment was contrary to the laws of India. 435 N.J. Super. at 160, 87A.3d 255. We reverse thataspect of [***28] the Appellate Division judgment and remand. The Family Part is obliged to determine whether M.S. cannot be reunited with either or both of his parentsdue to abuse, neglect, or abandonment under New Jersey law. At that hearing, the Family Part is required to conduct an analysis ofwhether reunification [*216] with each of M.S.'s legal parents is viable due to abuse, neglect or abandonment, in addition to making the other required findingsunder 8 C.F.R.§204.11.

B.

In K.G., the trial court determined that there was no basis under state law to find that K.G. had abused. neglected, or abandoned her daughters, K.S.G. and J.S.G. In support ofthatconclusion,the court cited to the fact that K.G. remained involved in the children's lives after leaving them in their father's care to come to the United States. She sent M.S. money for their support and remained in near-daily contact with them via telephone calls and video conference.WhenM.S. died and the children fled the home they shared withhis mother, K.G. arranged for the children to stay with her sister until she could arrange for them to join her in the United States. Those facts make clear that she remained an involved parent even while living apart [***29] from her children, a conclusion supported by thefactthat the children have remained in K.G.'s care since being released from the custody of Office of Refugee Resettlement.

The record is devoid of any suggestionthatK.G. abused K.S.G. and J.S.G. It is equally clear that reunification with M.S., whoisdeceased, is not viable. Therefore, we conclude that the trial court's factual determinations were supported by competent, [**862] credible evidence. However, the trial court erred in purporting to deny K.S.G.'s and J.S.G.'s applications for SIJ status based on its conclusion that reunification with K.G. was

223 N.J. 196, *216;121 A.3d 849, **862; 2015 N.J. LEXIS 878, ***29

viable.We reverse thatdetermination and remand for a new hearing, at which the Family Part is instructed to make findings regarding each element of 8 C.F.R.§ 204.11, including whether it would not be in the best interest of the juvenile alien to be returned to his or her country of origin, mindful that its sole purpose is to make the factual findings listed in that regulation and not to adjudicate the children's applications for SIJ status.

[*217] VI.

The judgment of the Appellate Division in H.S.P. is reversed and the matter remanded to the Family Part for a new hearing conducted in accordance with this [***30] decision. The judgment of the trial court in K.G. is likewise reversed and remanded.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON join in JUDGE CUFF's opinion. CHIEF JUSTICE RABNER did not participate.

End of Document

Reporter

L.A.P.H. v. M.A.R.

Superior Court of New Jersey, Appellate Division November14,2019,Submitted; August 12, 2020, Decided

DOCKET NO. A-3938-18T2

2020 N.J. Super.Unpub. LEXIS 1594 *; 2020 WL 4668061

L.A.P.H. Plaintiff-Appellant, v. M.A.R., (Deceased), Defendant-Respondent.IN THE MATTER OF L.V.E.P.1, a Minor.

Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

Prior History: [*1] On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2382-17.

Counsel: Grigaite & AbdelsayedLLC, attorneys for appellant (Shokry G. Abdelsayed, on the brief).

Judges: Before Judges Alvarez and Nugent.

Opinion

PER CURIAM

Qualifying for "special immigrant juvenile" (SIJ) status under the Immigration Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, 122 Stat. 5044 (Trafficking Protection Act), provides "a form of immigration relief permitting alien children to obtain lawful permanent residency and, eventually, citizenship." H.S.P. v. J.K., 223 N.J. 196, 200, 121 .3d 849 (2015). A child residing in New Jersey who seeks SIJ status must apply to a Superior Court judge for a predicate order finding the child meets the statutory requirements. lbid. The child must then petition the

1 Initials are used in this appeal of an order denying a motion to amend a predicate order required to petition the United States Citizenship and Immigration Services to protect the privacy and safety of the appellant and minor child. Protection of the appellant and minor child is a compelling interest that outweighs the Judiciary's commitment to transparency.

United States Citizenship and Immigration Services (Immigration Services) and demonstrate statutory eligibility.

In this case, plaintiff L.A.P.H., on behalf of her child, applied for and received from a Family Part judge a predicate order the child met the statutory criteria for SIJ status. Immigration Services deemed the Family Part judge's findings inadequate. [*2] The child filed a motion for an amendment to the first order, and different Family Part judge denied the motion and entered the order from which this appeal is taken. We reverse and remandforfurther proceedings.

In 2017, plaintiff commenced this action in the Family Part seeking custody of her child and a predicate order under the Trafficking Protection Act and its implementing regulation, 8 C.F.R. § 204.11(c), that would enable her child, a non-citizen, to apply for SIJ status. A court deciding such applications must make the following findings:

(1) The juvenile is under the age of 21 and is unmarried;

(2) Thejuvenile is dependent on the court or has been placed under the custody of an agency or an individualappointed by the court;

(3) The"juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;

(4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and

[H.S.P., 223 N.J. at 219 (citing [*3] In re Dany G., 223 Md. App. 707, 117 A.3d 650 (Md. Ct. Spec. App. 2015)).]

When making these findings, the court is to apply New Jersey law. Id. at 212.

The Family Part judge who heard plaintiff's initial application found the child, a citizen and national of Guatemala, was an unmarried, unemancipated minor under the age of twenty-one. The judge noted New Jersey law authorized the court to make judicial determinations about custody and care of juveniles. The judge declared the child dependent on the Superior Court of New Jersey. Based on the evidence before him, the judge determined that it was not in the best interest of the child to be returned to the country of origin and of last habitual residence, Guatemala, because there was no one in Guatemala to support and care for the child, the child'sfather and numerous family and friends having beenkilled as the resultofpervasive gang violence.2

Significant to this appeal, the court made "no findings as to abuse and neglect [because] reunification is otherwise impossible because the minor's father is deceased." The court granted sole physical and residential [*4] custody of the child to plaintiff after determining it was in the child's best interest to remain outside Guatemala in the care and custody of plaintiff, the child's mother.

In September2017, after the FamilyPartjudge entered his order, plaintiff submitted a Form I-360 application to Immigration Services for SIJ status for her child. Immigration Services found the Family Part order inadequate. Specifically, Immigration Services deemed the Family Part Order insufficient because "itdoes not show that reunification with one or bothof your parents is not viable due to abuse, neglect, abandonment, or a

2 The longstanding violence in Guatemala during the period that included the time of the father's death is well known. "Following the official end of Guatemala's 36-year-long armed conflict in 1996,"widespread social and economic violence by youth gangs and other groups had become the norm. Alisa Winton, Youth, gangs and violence: Analysing the Socialand spatial mobility of young people in Guatemala City, CHILDREN'S GEOGRAPHIES 3:2 167, 170 (2005), https://www.tandfonline.com/doi/full/10.1080/14733280500161

537 "Incredibly, the death rate in Guatemala is now higher than it was for much of the civil war.... Between 2000 and 2009, the number of killings rose steadily, ultimatelyreaching sixty-fourhundred.. .. In 2009, fewer civilians were reported killed in the war zone of Iraq than were shot, stabbed, or beaten to death in Guatemala." David Gran, A Murder Foretold: Unravelling the ultimate political conspiracy, The New Yorker, (March 28. 2011) https://www.newyorker.com/magazine/2011/04/04/a-murderforetold.

similar basis under state law." Citing the Family Part's order expressly declining to make such findings, Immigration Services advised plaintiff and her child:

Please provide a copy of a juvenile court order declaring that: 1) you are dependent on the court or under custody of an agency or department ofthe state, or an individual entity appointed by the court; 2) reunification with one or both of your parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and 3) it would not be in your best interest to bereturned to your or your parent's country [*5] of nationality or last habitual residence.

In response, plaintiff and her child filed a motion in the Family Part seeking an amendment to the previous order. After determining he was authorized to hear the motion by Rule 4:50, which sets forth circumstances underwhich a court may relieve a party from a final judgment or order, the second Family Part judge denied the motion "because death alone does not equate to abandonment under NewJersey law." The judge found that the father's murder was not a willful forsaking of the child, a requisite for abandonmentunder New Jersey law. Plaintifffiled this appeal.

On appeal, plaintiff raises a single point: THE CHILD IN THIS CASE QUALIFIES FOR RELIEF ON THE GROUNDS OF ABANDONMENT OR OTHER SIMILAR BASIS UNDER NEW JERSEY LAW.

Our review of "[flinal determinationsmade by the trial court sitting in a non-jury case [is] limited and wellestablished[.]" Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169, 14 A.3d 36 (2011). The court's findings offact are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12,713 A.2d 390 (1998). If a trialcourt's findings are not supported by adequate, substantial, credible evidence, and resolution of a critical issue requires a more complete record, a remand for the development of the [*6] record is appropriate. See In re Decision on CAA 47-2007, 209 N.J. 335, 337, 37 A.3d 1087 (2009) (citing State v. Moore, 180 N.J. 459, 460, 852 A.2d 1073 (2004)). A trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995).

Here, the trial court's determination that death alone does not equate to abandonment under New Jersey

does not settle the question of whether reunification with the father is not possible due to abuse, neglect, abandonment, or a similar basis. That question cannot be adequately answered based on the inadequate recordbefore us. The recordisdevoidof any evidence surrounding the father's death, aside from the brief mention it was due to "pervasive gang violence." We do not know from the record before us, for example, whetherthefather was an active participant in a gang, engaged in illegal activity, and was perhaps killed during gang warfare, or whether he was an innocent victim. The details are important to the ultimatedetermination.

The term "abandonment" is statutorily defined:

Abandonment of a child shallconsist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the [*7] control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficientprotection;(c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.

[N.J.S.A. 9:6-1.]

Evident from the statutory language is that the term abandonment is broader than willfully forsaking the child. Moreover, the findings a Family Court must make when considering an SIJ-related matter include whether reunification with the father is not possible due to abuse, neglect, abandonment, or a similar basis.

The phrase "or a similar basis"adds breadth to the inquiry. In that regard, N.J.S.A. 9:2-9, entitled "Parents or custodian of child unfit; action in Superior Court, Chancery Division,FamilyPart," provides:

When the parents of any minor child or theparent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrustedwith the care and education of such child, or shall neglect to provide thechild with proper protection, maintenance [*8] and education, or are of such vicious, careless or dissolutehabits as to endanger the welfare of thechild or make the child a public charge, or likely to become a public charge; or when the parents of any minor child are dead or cannot be found, and there is no other person, legal guardian or agency exercising custody over such child; it shall be lawful for any

person interested in the welfare of such child to institute an action in the SuperiorCourt, Chancery Division, Family Part, in the county where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. The court may proceed in the action in a summary manner or otherwise.

That the declaration, "death alone does not equate to abandonment," is too narrow a focus is illustrated bythe hypothetical death of a fatherwho commits suicide. Has he neglected or abandoned his children, willfully forsaken them, failed to care for and keep control and custody of them so that they shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with their care, custody [*9] and control?

Obviously, the case before us does not involve suicide. Yet, if plaintiff's child's father knowingly and actively participated in gang activity marked by pervasive violence,particularly violent activity that exposed him to a high risk of serious injury or death, he may well have failed to care for and keep control and custody of the child so that the childshallbe liable to be supported and maintained at the expense of the public; or perhaps failed to care for andkeep the control and custody of the child so that thechildshallbe exposed to physical or moral risk without proper and sufficientprotection; or, perhaps more significant, prevented reunification due to conduct having a similar basis.

These inquiries cannot be answered based on the recordbefore us. Thatis not the fault of the Family Part judge, considering the record before him. The record before us is scant, as we presume it was in the Family Part. Perhaps there is something in the trial record, not includedin the appellate record, that demonstrates the father'shomicide was nothing more than the profoundly tragic murder of an innocent man. However, given the conceivably unimaginable consequences that [*10[ may flow from the Family Part fact-finding, we deem it appropriate to remand this matter so that the child has the opportunity to develop an appropriate record on which to make the case for SIJ status. Cf. In re Decision on CAA 47-2007, 209 N.J. at 337.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

End of Document

Section 3:

Articles and Resources

SPECIAL IMMIGRANT JUVENILE STATUS: A PRIMER FOR ONE-PARENT CASES

Special Immigrant Juvenile Status (SIJS) cases, involving a claim of abuse, abandonment or neglect against one parent while the child resides with the non-offending parent, are commonly referred to as one-parent cases. These cases, though permissible under the plain language of the statute as well as federal agency interpretation, have proved challenging particularly at the state court phase of the application process and at times before U.S. Citizenship and Immigration Services (USCIS), the agency that adjudicates SIJS petitions. This advisory is intended to be a primer for practitioners new to representing minors in one-parent SIJS claims so that they can successfully advocate for SIJS in these cases.

Background on One-Parent SIJS

Special Immigrant Juvenile Status was created by statute in 1990 to provide a path to lawful permanent residency for certain vulnerable children for whom it would not be in their best interest to return to their home county 1 It has been amended multiple times since its creation, most notably in 2008 by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).2 The TVPRA clarified and amended the definition of a Special Immigrant Juvenile. Specifically, it eliminated the “eligible for long-term foster care” language for Special Immigrant Juvenile eligibility, and replaced it with language requiring that reunification not be viable with “1 or both of the immigrant’s parents” due to abuse, neglect, abandonment, or a similar basis found under State law.3 This statutory change not only broadened eligibility for SIJS applicants beyond those children who were eligible for long term foster care,4 but by using the language “1 or both” Congress signified that the child need not be separated from both parents to be eligible for SIJS. Rather, the non-viability of reunification with just one parent due to abuse, neglect, abandonment, or a similar basis is sufficient grounds to request that a state court make the necessary findings. Practically speaking, this means that a child who is residing with one parent but is unable to reunify with the other parent due to abuse, neglect, or abandonment can qualify for SIJS.5

1 See 8 U.S.C. § 1153(b)(4)(allocating a percentage of immigrant visas to special immigrants); 8 U.S.C. § 1101(a)(27)(J)(defining Special Immigrant Juvenile Status).

2 Trafficking Victims Protection Reauthorization Act 2008, Pub. L. No. 110-457, §235, 112 Stat. 5044.

3 8 U.S.C. § 1101(a)(27)(J).

4 See Memorandum from USCIS to Field Leadership re TVPRA of 2008: Special Immigrant Juvenile Status Provisions (Mar. 24, 2009), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf (last visited Nov. 20, 2014).

5 In dependency proceedings, this means that in a case where the parent of a child is still receiving reunification services, an SIJS order can be entered without termination of parental rights for that parent as long as there are allegations of abuse, neglect or abandonment against the other parent (whom may have already had their parental rights terminated).

Unfortunately, because there is very little legislative history on the meaning of this language, and because some state courts have interpreted it in a way that is at odds with its plain meaning, advocates handling these cases must anticipate and be prepared to address skepticism from state courts, and sometimes even USCIS.

What is a One-Parent SIJS Claim?

Advocates use the language “one-parent SIJS claim” to refer to two different factual scenarios. The first refers to a situation in which the claim of abuse, neglect, or abandonment is against one parent while the child resides with the non-offending parent. The other interpretation is a claim based upon the abuse, neglect, or abandonment of one parent while the child lives with a nonparent. In this scenario, the non-offending parent is typically still in the child’s life, though presently unable to provide full-time care and support. This guide addresses only the first type of claim associated with the phrase “one-parent SIJS,” that is, a petition for SIJS when a child is residing safely with one parent.

Such one-parent SIJS claims can arise in a variety of contexts in state court. For example:

Special Immigrant Juvenile Status is an avenue for undocumented children to obtain legal status when they cannot be reunified with one or both parents due to abuse, neglect, abandonment, or a similar basis found under State law and it is not in their best interests to return to their home country.

The federal government tasks state courts with making three findings:

1) that the child has been declared dependent on a juvenile court or legally committed to or placed under the custody of a state agency or department or an individual or entity appointed by a state or juvenile court;

2) that reunification with one or both of the child’s parents is not viable due to abuse, neglect, abandonment or a similar basis; and 3) that it is not in the child’s best interest to be returned to his or her country of nationality or last habitual residence.

These three findings must be made before a child can even apply for SIJS before the federal agency, U.S. Citizenship and Immigration Services.

Custody Proceedings: Angel was abused and neglected by his father in his home country. As a teenager, Angel travels to the United States to reunite with his biological mother who has been residing in the United States for years, working and sending money home to provide for Angel. Angel is apprehended while attempting to cross the border, transferred to the custody of the Office of Refugee Resettlement (ORR) and later reunified with his mother in Los Angeles. Angel’s attorney files a parentage petition in family court in Los Angeles based on his mother’s desire to establish sole custody over him. His mother is seeking sole custody because Angel’s father was abusive and she wants to be able to make decisions about his education, healthcare and welfare without his father’s involvement. In connection with the parentage petition, an order making the findings necessary for SIJS is requested based on the abuse and neglect that Angel suffered in his father’s care.

Delinquency Proceedings: Eduardo was brought to the United States by his mother at the age of two years old. He has no recollection of the journey. He has only faint memories of his father, whom he has seen on only two occasions since arriving to Washington state, even though his father has come to

Washington on various occasions. His father is now residing in Mexico, but his exact whereabouts are unknown. He has never provided any financial or emotional support for Eduardo. At age 14, while residing with his mother, Eduardo is arrested for burglary, his case is handled in juvenile delinquency court, and he is put on probation. The juvenile probation department refers Eduardo to immigration authorities. He is then transferred to ORR custody and later reunified with his mother. Eduardo’s immigration attorney then works with his public defender to request an SIJS predicate order from the juvenile delinquency court based on his father’s abandonment.

Dependency Proceedings: Patricia lived with both her mother and father in the United States. Unfortunately, she was abused by her father and there were allegations that her mother failed to protect her from his abuse. The abuse was reported to local child welfare authorities and Patricia was removed from the home. Her father’s parental rights were terminated. Her mother left her father and received reunification services through the court. During the course of reunification services, Patricia’s dependency attorney sought an order from the dependency court making the findings necessary for SIJS based on reunification not being viable with her father due to abuse. Patricia was ultimately reunified with her mother.

Guardianship Proceedings: 6 Carla is twelve years old. She was brought to the United States as an infant. She has resided in California in her mother’s care her whole life and has never met her father. Carla’s father abandoned the family after they arrived in the United States and her mother believes he now resides in Alabama, though they have not had contact for many years. Carla’s mother is terminally ill with brain cancer, and is concerned that she needs another adult authorized to provide care for and make decisions for Carla should she become too ill to do so. Carla’s mother petitions the court for a joint guardianship to allow her best friend to have authority to step in to care for Carla when she is too ill to do so, or passes away. Her mother’s attorney also seeks an order from the guardianship court making the findings necessary for SIJS based on reunification not being viable with Carla’s father due to abandonment.

What State Law Addresses One-Parent SIJS Claims?

For years following the TVPRA’s passage, there was no published case law on the interpretation of the “1 or both” language of the SIJS statute. In 2012, the Nebraska Supreme Court issued a published

6 Note that in cases where the child is residing with a parent, a guardianship may not be an appropriate avenue in which to obtain an SIJS order, depending upon the law governing guardianships in your state.

7 Some states have also passed laws addressing the SIJS statute. For example, in California, SB 873 was signed into law in September 2014. This law, among other things, clarified that family courts have jurisdiction to make the findings necessary for SIJS. This is particularly important for one-parent SIJS claims, as family courts are the main venue in which one-parent SIJS cases are filed in California and have historically been quite contentious. A California Judicial Council Memorandum implementing SB 873 also provided helpful language in support of oneparent SIJS cases, stating that: “a child whose parent was awarded sole custody based on another parent’s conduct… assuming no other impediments…” will be eligible for the finding that she has come under the supervision of the court. See Memorandum to the Presiding Judges and Court Executive Officers of the Superior Courts: Senate Bill 873 and the Special Immigrant Juvenile Process in the Superior Courts (Sept. 30, 2014), p. 14, available at http://www.ncjfcj.org/sites/default/files/SIJ%2BMemo%2Bfor%2BCourts%2BSeptember%2B2014.pdf (last visited Feb. 19, 2015).

decision interpreting the language to require failed reunification with both parents. Some state courts in other jurisdictions have looked to this case to support denial of requests for SIJS findings when a child is residing with one parent. A New Jersey appellate court followed suit in 2014, although that case is currently on appeal to the New Jersey Supreme Court. Thankfully, contrary case law has also developed in both New York and California. Summaries of both the negative and positive case precedent are set forth below.

Negative Case Precedent on One-Parent Claims.

At the time of this writing, there are two published state court decisions interpreting the statutory language to require failed reunification with both parents: the Nebraska Supreme Court’s decision in In re Interest of Erick M., and a New Jersey appellate court decision in H.S.P. v. J.K.8

In In re Interest of Erick M., Erick was adjudicated delinquent and committed to the care and custody of a state agency. A petition for SIJS findings was made in the delinquency proceedings, alleging that Erick had been abandoned by his father, whose whereabouts were unknown. He did not allege an inability to reunify with his mother, who participated in his delinquency case and with whom he intended to reunify. The lower court found that the facts failed to demonstrate that reunification with Erick’s mother was not viable due to abuse, neglect, or abandonment and on that basis held that the failed reunification component of the SIJS statute was not met. The lower court also found that there was no evidence of abuse or neglect by Eric’s father and did not make a finding as to whether Erick’s father had abandoned him. Because the reunification component was not met, the court did not consider whether it would not be in Erick’s best interest to return to his home country. In affirming the lower court’s holding, the Nebraska Supreme Court stated that, “when ruling on a petitioner’s motion for an eligibility order under Section 1101(a)(27)(J), a court should generally consider whether reunification with either parent is feasible.”9

The Nebraska Supreme Court’s analysis is seriously flawed. First, the court found that the federal SIJS statute is ambiguous and thus turned to the legislative history of the statute. In summarizing the various changes to the federal statute, the court focused on what it thought to be the central purpose of the various amendments: ensuring that SIJS is sought primarily to obtain relief from abuse, neglect, or abandonment and not for the purpose of obtaining immigration relief.10 However, USCIS does not examine whether SIJS was sought primarily to escape abuse, neglect, or abandonment, but instead whether the initiation of the juvenile court action itself was sought for an immigration benefit. In Erick’s case, the initiation of court action was due to his offense and not for an immigration benefit. Nonetheless, the court held that “Erick was not seeking SIJ status to escape from parental abuse, neglect, or abandonment.”11 But this express consent function12 is one relegated to USCIS, not to the juvenile court in its adjudication of an SIJS motion.

8 In re Interest of Erick M., 284 Neb. 340, 820 NW 2d. 639 (2012); H.S.P. v. J.K., 435 N.J.Super. 147, 87 A.3d 255 (N.J.Super.A.D. Mar. 27, 2014), cert. granted, 218 N.J. 532 (N.J. July 28, 2014)).

9 In re Interest of Erick M., 284 Neb. at 352.

10 Id. at 347.

11 Id.

The court also considered unpublished Administrative Appeals Office (AAO)13 decisions in support of this proposition, ultimately finding that the appellant “could not satisfy the reunification component without showing that reunification with his mother was not feasible.”14 However, many of the AAO decisions relied upon by the court were addressing pre-TVPRA cases where failed reunification was required with both parents, while others were in cases where the petitioner could not reunify with both parents due to abuse, neglect, or abandonment and thus, simply reflected the facts of those cases. Moreover, the Nebraska Supreme Court did not consider the federal agencies’ interpretations of the statute (discussed below), thus issuing its decision in ignorance of the agency’s own interpretation and implementation of the federal statute.

H.S.P. v. J.K., a New Jersey appellate court decision currently on appeal to the New Jersey Supreme Court arose out of a custody petition filed by an uncle seeking custody of his seventeen-year-old nephew. A request for SIJS findings was also included, based on facts alleging that he had been abandoned and neglected by his father and neglected by his mother and that it was not in his best interest to return to India. The lower court found insufficient evidence that the minor was neglected or abandoned by either of his parents.

The appellate court went on to consider whether the second prong of the SIJS statute was satisfied, that is, whether reunification with one or both parents was not viable. The court found that there were facts sufficient to demonstrate neglect and abandonment by the father, but nonetheless denied the request for SIJS findings, holding that “[w]e understand the ‘1 or both’ phrase to require that reunification with neither parent is viable because of abuse, neglect or abandonment of the juvenile.”15 The court relied on legislative history to reach this conclusion, ultimately finding that the

Practice Tip. In the H.S.P. case, the appellate court expressed concern “at the invocation of the Family Part’s jurisdiction to obtain custody with no apparent purpose other than to seek immigration benefits.” See H.S.P. v. J.K., 435 N.J.Super. at 155. The court noted that, “the only reason the Family Part’s jurisdiction was invoked was petitioner’s declaration that M.S. [the minor] was ‘in need of…regularizing his immigration status.’” Id. at 155-156. Further, the court found it troubling that the father was not a party to the proceeding, nor had the parties even attempted to serve him. Id. at 157. Although the court ultimately upheld the judge’s custody determination, this analysis should serve as a warning to practitioners that they must structure petitions for custody or guardianship based on state law, rather than immigration law.

12 The SIJS law provides for two types of consent. One type involves USCIS consent to the grant of Special Immigrant Juvenile Status. This type of consent, required in every SIJS case and evidenced by the approval of the SIJS petition, replaces the concept of “express consent” in place before the TVPRA. The other type of consent involves the fairly unusual case in which a child is first placed in the custody of ORR during removal proceedings because he or she is deemed “unaccompanied” and seeks a change in custody status or placement to a local jurisdiction while in ORR custody. This is referred to as “specific” consent.

13 The Administrative Appeals Office is the office that reviews appeals of USCIS decisions, under authority delegated to the USCIS by the Secretary of the Department of Homeland Security.

14 In re Interest of Erick M., 284 Neb. at 347.

15 H.S.P. v. J.K., 435 N.J.Super. at 166.

legislative and administrative history showed “two competing goals.”16 According to the court, on the one hand, “Congress wanted to permit use of the SIJ procedure when necessary to prevent the return of juveniles to unsafe parents…,” but “[w]here such protection is unnecessary, Congress wanted to prevent misuse of the SIJ statute for immigration advantage.”17 Based on its own interpretation of the legislative history, the appellate court found that its interpretation of the “1 or both” language achieved both of Congress’ goals. The court also found that the contrary interpretation of the “1 or both” language would render the words “or both” superfluous because it would always be sufficient that reunification with one of the child’s parents was not viable.

The New Jersey appellate court’s analysis is flawed for several reasons. First, given the plain language of the SIJS statute, it was not necessary for the court to turn to the legislative history. Second, even if the statute was ambiguous, there is nothing in the legislative history to suggest that Congress intended to only make SIJS available for children who could not reunify with either parent. In fact, the court itself acknowledged that “[t]here is no specific legislative history on the ‘1 or both’ language.”18 The court cited legislative history related to the 1997 amendment, which was aimed at ensuring that juveniles who entered on student visas did not abuse the SIJS statute.19 However, the legislative history of the 1997 amendment is inapplicable to interpretation of the current SIJS statute, which passed under the TVPRA in 2008 and “expanded the group of aliens eligible for SIJS status.”20 Even in examining the 1997 legislative history, nothing in it suggests that Congress intended that state courts take on the role of prescreening potential applicants for SIJS.21 Third, the court’s argument that a broader interpretation would render “or both” superfluous is at odds with the plain meaning of the statute. Congress used the disjunctive to indicate that SIJS findings could be made when reunification is not viable with just one parent, and also could be made when reunification is not viable with both parents. Further, if the statute omitted the words “or both” and simply read: “reunification is not viable with one of the immigrant’s parents,” the plain meaning of that phraseology would render immigrant youth for whom reunification was not viable with both parents ineligible for SIJS. This would clearly be at odds with the purpose of SIJS, which is to protect vulnerable immigrant children. Lastly, the court’s decision ignored federal agencies’ interpretation of the SIJS statute.

Positive Case Precedent on One-Parent Claims. As of the writing of this advisory, there are four published state court decisions interpreting the “one or both parent” language to require failed reunification with only one parent: a New York family court decision in Matter of Mario S., a New York appellate court decision in Marcelina M.-G. v. Israel S., a California First Appellate District decision in In re Israel O., and a California Fourth Appellate District decision in Eddie E. v. Superior Court 22

16 Id. at 169.

17 Id.

18 Id. at 168.

19 Id. at 166.

20 USCIS Memo, supra note 4.

21 Matter of Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012)

22 Matter of Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012); Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 973 N.Y.S.2d 714 (N.Y. Fam. Ct. 2013); In re Israel O. (2015), 233 Cal. App. 4th 279; Eddie E. v. Superior Court, No. G049637, 2015 Cal App. LEXIS 136 (Cal. Ct. App. Feb. 11, 2015)

In the Matter of Mario S. case, Mario, a child brought to the United States when he was six-months old, had been adjudicated delinquent for graffiti-related offenses, placed on probation and then placed into state custody after he violated probation. Mario’s mother was involved in his court case and no allegations of abuse or neglect were made against her. Further, Mario’s case plan anticipated his reunification with his mother and he was in fact returned to her custody upon discharge from agency custody. Mario’s father had been deported due to domestic violence. He was not involved in Mario’s court case, had not provided him with any financial support since he separated from Mario’s mother, and did not make any substantial effort to maintain a relationship with him. The court found that although reunification with Mario’s mother was possible, abandonment by his father was enough to satisfy the SIJS statute. Further, it found that it was not in Mario’s best interest to be returned to Mexico because of the length of time he had resided in the United States and the fact that there was no one to care for him in Mexico. Importantly, the court declined to follow the Nebraska Supreme Court’s decision in In re Erick M., stating that the state court’s role is limited to making factual findings, and it is not the state court’s role to determine a petitioner’s intent in seeking SIJS, whether that child might someday pose a threat to public safety, or whether USCIS might ultimately grant or deny an application for adjustment of status as a Special Immigrant Juvenile. The court further noted that nothing in the statute or regulations indicates that Congress intended that state courts pre-screen potential applicants for SIJS for potential abuse.

In Marcelina M.-G. v. Israel S., Susy, the child, had initially filed for a guardianship to have her uncle appointed as her guardian although her mother lived nearby and she saw her regularly. That petition alleged that reunification was not viable with her father due to neglect and abandonment and that reunification was not viable with her mother because she had neglected and abandoned her by leaving her in Honduras and by failing to provide her with any substantial financial assistance since she arrived in the United States. Although the mother had initially supported her brother-in-law’s application for guardianship, she later filed a petition for custody of Susy. The mother’s petition for sole custody was granted by the Family Court and as a result, the guardianship petition dismissed. The Family Court proceeded to deny Susy’s motion for Special Immigrant Juvenile Status findings, stating that it was “a strained reading of a statute” to interpret it to mean that SIJS findings could be made when the child was residing with one parent.23 On appeal, the court looked to the plain meaning of the statute, holding that the “1 or both” language provides SIJS eligibility “where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar basis under state law.”24 The court, therefore, declined to adopt the Nebraska Supreme Court’s interpretation of the statute

In In re Israel O., Israel was adjudicated delinquent for receiving stolen property. He was returned to his mother’s home, subject to conditions of probation. He had no memory of his father, had only limited telephone contact with him and had never received any physical or emotional support from him. Israel petitioned the court for an order making the findings necessary for SIJS, alleging that his father had

23 Marcelina M.-G. v. Israel S., 112 A.D.3d at 106.

24 Id. at 110.

abandoned him and that if he were returned to Mexico, he would have no place to live and his father would not provide for him. The juvenile delinquency court found that Israel’s father had abandoned him. However, relying largely on the In re Erick M. decision, the court interpreted the “1 or both” language of the SIJS statute as prohibiting SIJS findings if return to a custodial parent remained feasible. On appeal, the People originally filed a brief arguing that the statute was ambiguous and that legislative history failed to support Israel’s position that inability to reunify with either parent would support SIJS eligibility, again relying heavily on In re Erick M. Subsequently, the People withdrew their position in light of USCIS materials indicating that a child could be eligible for SIJS while residing with one parent. The People took the position that it would be inappropriate for “a state attorney general to urge an interpretation of federal immigration policy in a manner that would contradict with information provided by the federal agency tasked with enforcing such policy.”25

The appellate court considered the single issue of the meaning of the SIJS statute’s “1 or both” language. The appellate court stated that it agreed with In re Erick M. that the statute is ambiguous and susceptible to more than one interpretation, but it departed from Erick M. to the extent that that decision contemplated a state court role in effectuating federal immigration policy. The appellate court looked to agency interpretation of the “1 or both” language and found little doubt that USCIS interprets the federal statute to include children residing with a non-abusive parent. Although the agency interpretations cited in the case were not contained in formal regulations, the court found that they were entitled to respect, “but only to the extent those interpretations have the ‘power to persuade.’”26 The appellate court found the agency interpretation of the statute to be persuasive and consistent with the purpose of the SIJS statute, and thus held that an eligible minor for SIJS includes a juvenile for whom a safe and suitable parental home is available in the United States. The court remanded for the lower court to consider whether it was not in Israel’s best interest to be returned to Mexico.

In Eddie E. v. Superior Court, Eddie was brought to the U.S. at the age of 5 and resided in the U.S. since that time. Eddie was adjudicated delinquent for unlawfully taking a vehicle and related offenses. He was referred to Immigration and Customs Enforcement by the Probation Department, placed in removal proceedings and later reunified with his father His mother had abandoned the family when he was 8 years old and later passed away After a previous denial of SIJS findings on other grounds, a successful writ petition, and remand to the juvenile court to consider Eddie’s request for SIJS findings,27 the juvenile court found that Eddie satisfied the first finding because he was in the custody of a state agency, but not the second or third findings. The juvenile court found that Eddie did not satisfy the second prong because he lived with his father, who did not abuse him. The court relied on In re Erick M

25 In re Israel O., 233 Cal. App. 4th at 286.

26 Id. at 290.

27 In December 2012, Eddie made his initial request for SIJS findings from the juvenile court. The juvenile court refused to make the findings because it found that his commitment to juvenile hall and placement on probation did not qualify as being a dependent of the court. The appellate court reversed, finding that an alternative basis to satisfy the statute could be: having been “legally committed to, or placed in the custody of, an agency or department of a State, or an individual or entity…”. See Eddie E. v. Superior Court (2013) 223 Cal.App.4th 622. The appellate court remanded for consideration of this alternative basis to satisfy the first prong of the SIJS statute and for the court to consider the second and third prongs of the SIJS statute.

in holding that to satisfy this prong of the statute, Eddie had to prove he could not reunify with both parents, not just one. The juvenile court also held that alternatively, Eddie’s inability to reunify with his mother was not due to abandonment, but death, since his mother had passed away after abandoning him. Further, the juvenile court found that Eddie did not satisfy the third prong of the statute because it would be in his best interest to return to Mexico. On this point, the court speculated that a “fresh start” in Mexico might work to his benefit given his poor choices and violations of the law.28

On appeal, the court held that the SIJS statute is not ambiguous and that the plain language means that a petitioner can satisfy this finding by showing an inability to reunify with one parent due to abuse, neglect, abandonment, or a similar basis found under State law. The court then considered and rejected both the In re Erick M. and H.S.P. decisions. The appellate court explicitly rejected In re Erick M.’s reasoning and holding, including its understanding of the role of the state court in the SIJS process In considering the Erick M. decision, the appellate court disagreed with the Erick M. court’s conclusion that the statute was ambiguous, finding instead that “it is commonplace for statutes to provide alternative means of satisfying a condition using the disjunctive word ‘or.’”29 The appellate court went on to find that even if it considered the statute to be ambiguous, the Erick M. court’s rationale for resolving the ambiguity as it did was not persuasive because none of the USCIS unpublished decisions that the court relied upon discussed the pertinent issue: “whether ‘1 or both’ can be satisfied by a showing applicable to only one parent when there is another known parent.” 30 Further, the appellate court disagreed with the Erick M. court’s understanding of the relative roles of the state court and USCIS, holding that “[t]he task of weeding out bad faith applications falls to USCIS, which engages in a much broader inquiry than state courts.”31 The appellate court also explicitly rejected the H.S.P. case, finding that it should not have delved into legislative history without a finding that the statute was ambiguous, and that the court fundamentally misunderstood the state court’s role in the SIJS process. The appellate court went on to find that Eddie’s mother’s death did not render her abandonment ineffective, stating that “[i]t would be a particularly parsimonious reading of the statute…to deny relief to a petitioner who had been fully abandoned just because his or her parents, by dint of circumstance, died after the abandonment.”32 Lastly, the court held that Eddie satisfied the third prong of the SIJS statute regarding whether it is in his best interest to be returned to Mexico, finding uncontradicted evidence that Eddie has lived in the U.S his entire life, has family here, and has no one in Mexico to turn to. Accordingly, the appellate court directed the lower court to issue an order making the SIJS findings.

What Federal Guidance Exists on One-Parent SIJS Claims?

Federal SIJS regulations have not been updated following the TVPRA’s revision of the SIJS statute to address the “1 or both” clause, nor are there any federal policy memos that speak directly to the

28 Eddie E. v. Superior Court, No. G049637, 2015 Cal App. LEXIS 136, at *7.

29 Id. at *14

30 Id.

31 Id. at *16.

32 Id. at *23.

interpretation of the clause.33 Nonetheless, there is significant federal support for one-parent claims. Set forth below is a list of some of the most relevant evidence that should be cited to and included in state court filings when resistance to these claims is encountered.

 USCIS’s general information publication on SIJS acknowledges that “SIJ eligible children may…[b]e living with…the non-abusive parent.”34

 USCIS regularly grants SIJS petitions wherein a state court has found that reunification was not viable only as to one parent.35 In fact, responses from a 2012 national survey of immigrant youth advocates in 15 different states around the country administered by the ILRC for the Vera Institute of Justice indicated a 100% approval rate of one-parent SIJS applications filed with USCIS.

 The proposed revised Form I-360, “Petition for Amerasian, Widow(er), or Special Immigrant” clearly acknowledges that the failed reunification may only be with one parent by providing separate boxes that allow an applicant to check that: “a juvenile court has determined that reunification with” [check box] “one or” [check box] “both of my parents is not viable…”36

 A June 2013 Administrative Appeals Office decision reversed USCIS’s denial of an I-360 petition in a case where a juvenile court had determined that a young woman from Honduras was abused and abandoned by her father and placed her in her mother’s custody.37 In this case, USCIS had determined that the petition was not bona fide. Notably however, neither the USCIS nor the Administrative Appeals Office considered the minor’s reunification with her mother to be relevant to her eligibility for SIJS. Instead, the AAO reversed USCIS’s determination, and found that the request was bona fide and that the applicant’s inability to reunite with her father due to his abuse and abandonment satisfied the requirements of the Immigration and Nationality Act.

33 Proposed regulations were issued in 2011 and public comment was received. However, at the time of this writing, the proposed regulations have not been finalized and thus are not binding.

34 USCIS, Immigration Relief for Abused Children, available at http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/Immigrat ion_Relief_for_Abused_Children-FINAL.pdf (last visited Nov. 20, 2014).

35 See Junck, Angie, ILRC Practice Advisory: An Update on One-Parent Special Immigrant Juvenile Status Claims, available at http://www.immigrationadvocates.org/nonpr ofit/library/item.533703Practice_Advisory_An_Update_on_OneParent _Special_Immigrant_Juvenile_Status (last visited Dec. 7, 2014). Membership in Immigration Advocates Network is required and is limited to certain qualifying individuals.

36 See AILA InfoNet, USCIS Comment Request on Form I-360, p. 9, Part 8, Question 3.A, available at http://www.aila.org/content/fileviewer.aspx?docid=50482&linkid=281819 (last visited Dec. 7, 2014).

37 See In re: [Redacted], No. [Redacted] (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., June 3, 2013), available at http://www.uscis.gov/sites/default/files/err/C6%20%20Dependent%20of%20Juvenile%20Court/Decisions_Issued_in_2013/JUN032013_01C6101.pdf (last visited Dec. 7, 2014).

 A brief filed by Immigration and Customs Enforcement in the Baltimore Immigration Court confirmed that this is USCIS’s position: “[C]ounsel for USCIS [] has confirmed that a child who enters the United States illegally to join his/her parent in the United States may be considered “abandoned” for the purposes of an I-360. However, a child who enters the United States illegally to join both parents may not be considered abandoned.”38

 A January 2014 publication of the Executive Office for Immigration Review (EOIR), more commonly known as the Immigration Court, states that ”[u]nder the current version of the statute, because it is only reunification with one parent that must not be viable, the alien child could potentially be living with one parent and still qualify for SIJ status.”39

 EOIR, sitting as the San Antonio Immigration Court, has held that the express language of Section 101(a)(27)(J)(i) of the Immigration and Nationality Act requires failed reunification with either one or both of the alien’s parents.40 In that case, the respondent’s reunification with his father was no longer viable due to neglect or abandonment. The fact that the respondent was able to reunify with his mother did not render him ineligible for Special Immigrant Juvenile Status. The court there stated: “The express language of section 101(a)(27)(J)(i) of the Act requires failed reunification with one or both of the alien’s parents. The respondent demonstrated that reunification was not viable with one of his parents, thus, satisfying the requirements of the statute.”41

Thus, under both USCIS interpretation and EOIR’s reading of the statute, the non-viability of reunification with either one or both of a child’s parents is sufficient for purposes of satisfying the SIJS statute. Advocates should stress these interpretations to state courts, as they owe deference to interpretations of the SIJS statute by the federal agencies charged with its implementation, including the Department of Homeland Security (under whose umbrella USCIS exists) and the Department of Justice (under whose umbrella EOIR exists).42

The Immigrant Legal Resource Center, founded in 1979 and based in San Francisco, California is a national resource center that provides training, technical assistance, and publications on immigration law.

www.ilrc.org

38 Amy S. Paulick, Assistant Chief Counsel, Department of Homeland Security, DHS Line, In the Matter of [Redacted], on file with the author.

39 Executive Office for Immigration Review, Special Immigrant Juveniles: All the Special Rules, Immigration Law Advisor, Vol. 8, No. 1 (January 2014), available at http://www.justice.gov/eoir/vll/ILANewsleter/ILA%202014/vol8no1.pdf (last visited Nov. 20, 2014).

40 In re A.R.J. (Exec. Office Imm. Rev., San Antonio, Tex. Aug. 10, 2009), on file with the author.

41 Id.

42 See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).

IntheMatterof:

SUPERIORCOURTOFNEWJERSEY

CHANCERYDIVISION-FAMILYPART

THISMATTER,havingbeenbroughttotheattentionoftheCourtbyundersigned counselforthePlaintiff,_____________,uponNoticeofMotionandsupportedbytestimony, exhibits,certifications,aswellasargumentsoflawandfact,andtheCourthavingheardthe petition;andforgoodcauseshown:

ITISonthis____________dayof_________________,20__,

ORDEREDTHAT:

1. TheMinor,________________,wasbornon__________.

2. TheMinor,________________,isunmarried.

3. ThisCourthasjurisdictionunderNewJerseylawtomakejudicialdeterminationsabout thecustodyandcareofjuveniles. Here,theCourthasjurisdictiontomakeacustody determinationfor________________,pursuantto[N.J.S.A.9:2-3and9:2-4forone parentv.anotherparentORN.J.S.A.9:2-9and9:2-10forthirdpartycustody].Such jurisdictionisnecessaryfortheprotectionandsafetyoftheminordue[childabuse, neglect,orabandonment]

4. PursuanttoN.J.S.A.9:17B-3andA.E.C.v.P.S.C.,453N.J.Super.19(App.Div.2018) thisCourthasjurisdictiontograntacaregivercustodyofanunemancipatedchildwhois undertwenty-one.ThisCourtfindsthat______________isunemancipatedandinneedof acourt-orderedcustodianbecauseshedependson_______________tomeetherneed

forhousing,food,clothing,medicalcare,andemotionalsupportandbecausesheis enrolledinhighschool[orifincollegesimplystateaneducationalprogram],anddoes notwork.

5. Becausetheminor,_______________,isunemancipated,sheisdependentonthisCourt forher/hisprotectionandsafety,andthisCourtmustdetermineanappropriatecustodian forher,pursuantto[putinN.J.S.A.9:2-3and9:2-4orN.J.S.A.9:2-9and9:2-10].

6. Theminor,______________,isdependentuponthisCourtforher/hisprotectionand safety,andthisCourtmustdetermineanappropriatecustodianforherpursuantto __________________[putinN.J.S.A.9:2-3and9:2-4orN.J.S.A.9:2-9and9:2-10]

7. [Child’sname]________________istoremainunderthisCourt’sjurisdictionuntil furtherorderofthisCourt. Accordingly,thisCourthasexclusive,continuingjurisdiction overanycustodydeterminationsconcerning[child’sname]____________.

8. Baseduponevidencebeforethecourt,thisCourtrecognizes______astheminor’sfather

9. Reunificationwiththeminor’sfather,[father’sname]__________________,isnotviable duetoabuse,neglect,andabandonment,pursuanttoN.J.S.A.9:6-1andN.J.S.A.9:68.21. [father’sname]’s________________actionsconstitutephysicalandverbalabuse, ashefrequentlybeat[child’sname]_____________withabeltandhishandand frequentlyusedprofaneandinappropriatelanguagetowardher.[Father’s name]’s___________________actionsconstituteneglectandabandonmentbecause since2009,hehaswillfullyfailedtoprovideforanyoftheminor’sneeds,andhasnot caredfornorhadanycontactwiththeminor.

10. Reunificationwiththeminor’smother,[mother’sname]_____________________,is viable. Theminorcurrentlyliveswithhermotherandisthrivinginhercare.[Mother’s name]______________providesfortheminor’sfood,shelter,andemotionalwell-being

11. Itisinthebestinterestof[child’sname]_______________toremainintheUnited Statesinthesolecustodyof[nameofcustodian]________________.If[child’s name]______________weretoreturnto[countryoforigin]________,shewouldbein danger[STATEWHY]andwouldhavenoonetocareforher,protecther,andkeepher safe. [STATEWHY]Accordingly,thisCourtfindsthatitisinthebestinterestof [child’sname]___________________thatsheremainintheUnitedStatesandthatsole legalandphysicalcustodyoftheminor,[child’sname]_______________,begrantedto [proposedcustodian]_________________.

ITISHEREBYORDEREDthat_________________begrantedlegalandphysical custodyofminor,____________________,andthatthisCourtretainjurisdictionover ___________________untilsuchfurtherorderofthisCourt.

DATE: _______________________________

J.S.C.

Commented [r1]:THISPARAGRAPHISONLY NEEDEDIFCHILDISAPPROACHINGOROVERTHE AGEOF18

Commented [r2]:USEPARAGRAPH5IF APPROACHINGOROVERTHEAGEOF17. IFNOT, THENUSEPARAGRAPH6.

Commented [RM3]: Onlyincludethisparagraphifthe father’snameisnotonbirthcertificate

Commented [r4]:Obviouslythefacts willbedifferentand theparentmaynothaveabused,neglectedandabused. Only one isnecessary.

Commented [r5]:Thisparagraphwouldbeforasituation wherechild was withMother. Ifchild isnot withMother thandraftaparagraphsimilartotheoneforthefatherabove. Commented [r6]:Facts willneedtobeaddedandchange inthis paragraph