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

121 A.3d 849, 223 N.J. 196
CourtSupreme Court of New Jersey
DecidedAugust 26, 2015
StatusPublished
Cited by68 cases

This text of 121 A.3d 849 (H.S.P. v. J.K.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H.S.P. v. J.K., 121 A.3d 849, 223 N.J. 196 (N.J. 2015).

Opinion

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 non-citizen child to [200]*200apply 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 (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 Immigration Services (USCIS) demonstrating his or her statutory eligibility. 8 C.F.R. § 204.111 details the findings that must be made by a juvenile court before an alien’s application for SIJ status will be considered by USCIS: in addition to a series of factual requirements, the juvenile must demonstrate that reunification with “1 or both” of his or her parents is not viable due to abuse, neglect, or abandonment. The court is then 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 the federal 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 by the federal agency or whether the minor has met the require[201]*201ments 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 reunification with “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. This approach 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 the child’s country 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.

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 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 their deaths resulted from malnourishment, 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 school and took a job as [202]*202a 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 caused M.S. to develop a skin condition 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 walking across the United States-Mexico border in July 2011. Since arriving in the United States, 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 the Family Part 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 the petition. 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 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 assist H.S.P. in attaining custody of her 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 his best interests to remain in the United States or be returned to India.

[203]*203H.S.P. appealed. The Appellate Division affirmed the trial court’s determination that M.S. was not abandoned or neglected by J.K., finding that she 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.2014). The panel noted 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). Ibid.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Velasquez, L., Aplt v. Miranda, L.
Supreme Court of Pennsylvania, 2024
In re J.A.S.
2022 Ohio 2508 (Ohio Court of Appeals, 2022)
Sabino v. Ozuna
305 Neb. 176 (Nebraska Supreme Court, 2020)
Joaninha Kitoko v. Manzambi Salomao
2019 VT 45 (Supreme Court of Vermont, 2019)
Cabinet for Health and Family Services v. N.B.D.
577 S.W.3d 73 (Missouri Court of Appeals, 2019)
Romero v. Perez
205 A.3d 903 (Court of Appeals of Maryland, 2019)
Ramirez v. Menjivar
Nevada Supreme Court, 2018
W.R.A.H. VS. D.M.A.H. (FD-11-0866-16, MERCER COUNTY AND STATEWIDE)
New Jersey Superior Court App Division, 2018
A.E.C. v. P.S.C. (In re J.S.E.)
179 A.3d 424 (New Jersey Superior Court App Division, 2018)
State v. Burkert
174 A.3d 987 (Supreme Court of New Jersey, 2017)
In Re Henrry P. B.-P.
173 A.3d 928 (Supreme Court of Connecticut, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
121 A.3d 849, 223 N.J. 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hsp-v-jk-nj-2015.