NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1121-12T1
H.S.P., APPROVED FOR PUBLICATION Petitioner-Appellant, March 27, 2014
v. APPELLATE DIVISION
J.K.,
Respondent-Respondent. ________________________________
Argued November 4, 2013 – Decided March 27, 2014
Before Judges Ashrafi, St. John and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-163-13.
Francis X. Geier argued the cause for appellant (Basaran Law Office, attorneys; Melinda M. Basaran, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
LEONE, J.S.C. (temporarily assigned).
Petitioner H.S.P. filed a complaint and a motion in the
Chancery Division, Family Part, seeking custody of his
seventeen-year-old nephew, M.S., and factual findings that would
assist M.S. in obtaining Special Immigrant Juvenile ("SIJ") status from the United States Citizenship and Immigration
Services ("USCIS") of the Department of Homeland Security. A
September 27, 2012 order of the Family Part awarded petitioner
custody of M.S., but denied or did not make the factual findings
requested. Petitioner appeals. We affirm in part and reverse
and modify the court's order in part.
I.
The proceedings have been non-adversarial. The facts were
presented by petitioner without participation by any opposing or
neutral party. We recite the pertinent facts with an assumption
of their accuracy.
Petitioner H.S.P. is a United States citizen and lives with
his wife and children in Passaic County. He works as a taxi
driver in New York City. M.S. is a citizen of India, born there
in December 1994 to J.K. (his mother) and B.S. (his father). In
July 2011, at the age of sixteen, M.S. entered the United States
without documentation, that is, illegally.
In India, M.S. was raised by his mother. He has no
recollection of ever meeting his father. He lived in poverty-
stricken, disease-ridden slums. His older brother and sister
died of unknown causes when they were about seventeen years old.
Medical care was not available in their community, and his
mother could not afford to travel and to pay for medical
2 A-1121-12T1 treatment for her children. His mother also suffered from ill
health. They went to live with his maternal grandmother, who
was also ill. M.S. left school and, at the age of fifteen,
worked long hours in construction jobs. He developed back pain
and a skin condition.
In an effort to save M.S. from unsanitary and potentially
deadly living conditions, his mother and grandmother determined
to send him to the United States to live with petitioner, who is
the mother's brother. The mother arranged and paid for M.S. to
be transported by ship to Turkey and then to Mexico. M.S.
walked across the United States border in July 2011 without
being admitted and without entry documentation.
He has been living in New Jersey with petitioner's family,
and now considers them to be his family. Although he dropped
out of school in New Jersey because he was too far behind the
other students, he has obtained a General Educational
Development (GED) diploma and hopes to go to college. He
maintains weekly telephone contact with his mother in India.
Petitioner's complaint, filed in the Family Part in May
2012, stated that M.S. "is in need of an order granting custody
of him to [petitioner] so that he may regularize his immigration
status pursuant to" 8 U.S.C.A. § 1101(a)(27)(J) ("Subparagraph
J") of the Immigration and Nationality Act (INA), 8 U.S.C.A. §§
3 A-1121-12T1 1101-1537. Subsequently, petitioner filed a sworn
acknowledgement of service from M.S.'s mother, in which she
declined to answer the complaint and requested that default be
entered against her. She said she did not oppose the petition,
and she "abandoned" M.S. to petitioner.1
Petitioner asked the Family Part judge to make findings
referenced in Subparagraph J of the federal statute and its
implementing regulation, 8 C.F.R. § 204.11(d) ("the
Regulation"). Specifically, petitioner asked the court to find
that M.S. was dependent on the New Jersey family court, that he
had been abandoned or neglected by his father and mother, and
that it was not in his best interest to return to India. At a
hearing on September 27, 2012, the judge heard testimony from
petitioner and M.S., and reviewed the documentary evidence
submitted by petitioner. Finding that the Family Part had
jurisdiction to consider the petition because M.S. was a minor
residing in New Jersey, the court awarded physical custody of
M.S. to petitioner. However, the court found insufficient
evidence that M.S. was neglected or abandoned by either of his
parents, and therefore, a "best interest analysis is not
required."
1 Although J.K. is named as a respondent in the caption of this case, she and petitioner have acted cooperatively in bringing the petition before the Family Part.
4 A-1121-12T1 Petitioner appeals from the Family Part's order to the
extent it denied or did not make the findings he sought.
II.
SIJ status brings significant advantages for an
undocumented juvenile. The INA contains special provisions for
the issuance of immigrant visas to special immigrants, including
juveniles. 8 U.S.C.A. §§ 1153(b)(4), 1204. SIJ status provides
exemption from deportation on certain grounds, including for
being "present in the United States" unlawfully. 8 U.S.C.A. §
1227(a)(1)(B), (c). A juvenile granted SIJ status is deemed "to
have been paroled into the United States" for purposes of
discretionary adjustment of his status "to that of an alien
lawfully admitted for permanent residence." 8 U.S.C.A. §
1255(a), (h)(1). In determining the admissibility of such a
juvenile as an immigrant, certain grounds of inadmissibility do
not apply (including unlawful entry into the United States) and
other grounds may be waived by the Attorney General. 8 U.S.C.A.
§ 1255(h)(2); see 8 U.S.C.A. § 1182.
In Subparagraph J, the INA defines the term "special
immigrant" to include:
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
5 A-1121-12T1 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;
(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; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]
[8 U.S.C.A. § 1101(a)(27)(J).]
The implementing Regulation requires a petition for SIJ
status to have attached a juvenile court order with findings as
set forth in the statute. 8 C.F.R. § 204.11(b), (d)(2).2 Thus,
Subparagraph J creates "a special circumstance 'where a state
juvenile court is charged with addressing an issue relevant only
to federal immigration law.'" E.C.D. v. P.D.R.D., 114 So. 3d
2 The Regulation was adopted before Subparagraph J was amended in 2008. The proposed regulations to reflect the 2008 amendment's criteria have not yet been adopted. See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54,978 (proposed Sept. 6, 2011). We will ignore those portions of the Regulation based on the former criteria of Subparagraph J that were removed by the 2008 amendment of the statute.
6 A-1121-12T1 33, 36 (Ala. Civ. App. 2012) (quoting In re J.J.X.C., 734 S.E.2d
120, 124 (Ga. Ct. App. 2012)).
III.
To fulfill his objectives in this case, petitioner first
asked the Family Part to find that M.S. "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." 8 U.S.C.A. §
1101(a)(27)(J)(i).3 Although the court exercised jurisdiction
over M.S. and placed him in the custody of petitioner, we are
concerned at the invocation of the Family Part's jurisdiction to
obtain custody with no apparent purpose other than to seek
immigration benefits.
The petition was not brought in an adversarial proceeding
for custody, or initiated by any juvenile court or child welfare
agency seeking to protect the health and well-being of M.S.
Petitioner is M.S.'s uncle, and already had physical custody of
him with the consent and approval of the boy's only available
parent. M.S. was living in petitioner's home in the United
3 "Juvenile court means 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).
7 A-1121-12T1 States, sent voluntarily to this country by his mother to be
cared for by petitioner. No showing was made that a judicial
declaration of custody was needed for any reason related to the
custody statutes of this State. Most important, the only reason
the Family Part's jurisdiction was invoked was petitioner's
declaration that M.S. was "in need of . . . regularizing his
immigration status." We question whether Congress intended
Subparagraph J to apply to juveniles who are placed in the
custody of an individual not because necessity was shown under
State law, but because custody was requested for immigration
purposes. Cf. In re C.G.H., 75 A.3d 166, 172-74 (D.C. 2013)
(finding the court had jurisdiction and was required to make SIJ
findings when called upon to approve a child's adoption).
In a case with facts similar to this matter, our Family
Part expressed doubt that the court's jurisdiction was being
invoked for proper purposes. D.C. v. A.B.C., 417 N.J. Super.
41, 47 (Ch. Div. 2010). A juvenile's step-mother sought to be
appointed his guardian so the juvenile could establish the first
prerequisite for SIJ status. Id. at 44. The plaintiff could
offer no reason why she should have received guardianship or
custody, because the juvenile was already living with his
father. Id. at 47-48. The court ruled that "it is not
necessary to appoint plaintiff as [the juvenile's] guardian as
8 A-1121-12T1 the child is thriving in the custody of his father. There is no
need for this court to exercise jurisdiction . . . ." Id. at
51.
Petitioner did not cite any New Jersey statute in support
of his request for custody. The trial court in D.C. cited as
its jurisdictional authority N.J.S.A. 9:2-9, which allows a
third party to bring an action regarding a child. Id. at 47.4
"N.J.S.A. 9:2-10 then allows a court, in an action brought by a
third party pursuant to N.J.S.A. 9:2-9, to award custody of the
child to that third party." Watkins v. Nelson, 163 N.J. 235,
4 That State statute is headed "Unfit parents and custodians, court action to grant relief," and it provides:
When the parents of any minor child or the parent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care and education of such child, or shall neglect to provide the child with proper protection, maintenance and education, or are of such vicious, careless or dissolute habits as to endanger the welfare of the child 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 Superior Court, 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.
[N.J.S.A. 9:2-9.]
9 A-1121-12T1 244 (2000). In a proceeding under N.J.S.A. 9:2-9 and 9:2-10, "a
presumption of custody exists in favor of the parent," which a
third party can overcome "by satisfying the standard required
for termination of the rights of a non-consenting parent,"
including abandonment or neglect. Id. at 244-45. Here, the
family court awarded custody of M.S. to petitioner even though
it did not find that M.S.'s mother had abandoned or neglected
him.
We are also concerned that petitioner asked the Family Part
to find that M.S.'s father neglected and abandoned him, and to
award custody of M.S. to petitioner, without naming the father
in the complaint, or even attempting to serve him. A parent
normally must be given the opportunity to oppose an accusation
of abandonment and neglect, or an award of custody of a child to
a third party, which in many respects resembles the termination
of parental rights. Id. at 253-54. Service on the parent is
generally required, R. 5:4-4(a); N.J.S.A. 2A:34-69, even if the
parent is out of state, N.J.S.A. 2A:34-60, or out of the
country, R. 4:4-4(b)(1)(B). "[W]here the adverse party cannot
be located," our rules require diligent inquiry to locate a
parent for service. R. 5:4-4(c).5
5 See also N.J.S.A. 9:6-8.38(c), -8.41(b) (requiring reasonable efforts to serve a parent accused of abuse or neglect); N.J.S.A. (continued) 10 A-1121-12T1 We note, however, that the INA states that a juvenile "who
has been battered, abused, neglected, or abandoned, shall not be
compelled to contact the alleged abuser (or family member of the
alleged abuser) at any stage of applying for special immigrant
juvenile status." 8 U.S.C.A. § 1357(h); see 151 Cong. Rec. S
13,749 (2005) (Sen. Biden) ("This section assures that
immigration authorities are not required to contact abusive
parents or family members," and "prevents abusive parents from
keeping their children from accessing help and support in the
United States"). Thus, there may be a conflict between this
section and our State laws that require efforts to provide
notice to an absent parent.
We do not attempt in this appeal to resolve that apparent
conflict. Despite our concerns, we will assume that the judge's
custody determination is sufficient to satisfy the first
precondition for SIJ status, and we will examine the judge's
other findings under Subparagraph J.
IV.
The second finding petitioner sought was that M.S.'s
"reunification with 1 or both of the immigrant's parents is not
(continued) 30:4C-15.1(b)(1)(b) (requiring "reasonable efforts to locate the parent" accused of abandonment); N.J.S.A. 30:4C-17(b) (requiring "adequate effort to serve notice on the parent" whose whereabouts are unknown).
11 A-1121-12T1 viable due to abuse, neglect, abandonment, or a similar basis
found under State law." 8 U.S.C.A. § 1101(a)(27)(J)(i)
(emphasis added). The Family Part found that neither the mother
nor the father had abused, neglected, or abandoned the juvenile.
We agree with the court's finding as to the mother, but disagree
as to the father.
There was no allegation that the juvenile had been
intentionally abused by his parents. We will therefore focus on
neglect and abandonment.
Petitioner argued that the mother's neglect of M.S. was
shown by his lack of medical care and schooling. The judge
declined to find that the mother committed an act of neglect
under N.J.S.A. 9:6-1, which includes: "(a) willfully failing to
provide proper and sufficient food, clothing, maintenance,
regular school education as required by law, medical attendance
or surgical treatment, and a clean and proper home, or (b)
failure to do or permit to be done any act necessary for the
child's physical or moral well-being."
Though "willfully" does not require an "evil intent or bad
motive," it does require that the parent deny proper care
"intentionally or purposely as distinguished from inadvertently
or accidentally." State v. Burden, 126 N.J. Super. 424, 427
(App. Div.), certif. denied, 65 N.J. 282 (1974). Other New
12 A-1121-12T1 Jersey statutes similarly define neglect to include a parent's
failure "to exercise a minimum degree of care . . . in supplying
the child with adequate food, clothing, shelter, education,
medical or surgical care though financially able to do so."
N.J.S.A. 9:6-8.9(d); N.J.S.A. 9:6-8.21(c)(4). Failure to
exercise a minimum degree of care "at least requires grossly
negligent or reckless conduct." N.J. Div. of Youth & Family
Servs. v. T.B., 207 N.J. 294, 306 (2011).
The evidence submitted by petitioner did not show that the
mother had the financial means to provide better care to M.S.
but refused to do so willfully, recklessly, or with gross
negligence. Rather, petitioner's evidence showed that the
mother was financially unable to provide better care for M.S.
See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,
37-38 (2011) (finding failure to provide heat or medical
checkups is not neglect where parents lack the financial means
to do so).
In D.C., supra, 417 N.J. Super. at 49, the petitioner
similarly alleged that the juvenile's ill mother in Guatemala
had abused and neglected him by failing to provide adequate
food, clothing, and education. The D.C. court concluded that
mother's inability to provide for the child "was not the result
of intentional neglect but was caused by her inability to earn
13 A-1121-12T1 enough money to adequately support the family." Ibid.
Moreover, the mother had also paid to transport the juvenile to
the United States to be reunited with his father. Id. at 45.
The court concluded: "These are not the actions of an abusive or
neglectful parent; instead, they describe a caring mother
[living in poverty] who is trying to provide better living
conditions for her son." Id. at 49. We agree, and find the
same conclusions applicable to this case.
Petitioner stresses that, because M.S. was the only person
in the household who was physically able to work, he stopped
going to school and, at the age of fifteen, worked long hours
doing manual labor in construction. As a result, he developed
back and skin problems, and became very thin, ill, and
depressed. The judge found that M.S. had done harsh work for at
least a year, causing back problems, but the judge did not find
any protracted impairment to M.S. or any abuse or neglect by the
mother.
New Jersey law considers it to be abuse for a parent to
"permit[] a child to be employed in any vocation or employment
injurious to its health or dangerous to its life or limb, or
contrary to the laws of this State." N.J.S.A. 9:6-1. However,
M.S. was employed in India, not New Jersey, and petitioner has
not shown that M.S. was employed contrary to the laws of India.
14 A-1121-12T1 Similarly, petitioner has not shown that M.S.'s employment
exposed M.S. to danger to life or limb or injured his health in
a serious or protracted way. See N.J.S.A. 9:6-8.9(b); N.J.S.A.
9:6-8.21(c)(2). We cannot conclude on this record that M.S.'s
employment in India, which has not been shown to violate that
country's child labor laws, shows that his mother has willfully
or grossly negligently abused or neglected him within the
meaning of our State child welfare laws. See D.C., supra, 417
N.J. Super. at 49-51.
Finally, petitioner asserted that the mother's neglect of
M.S. was corroborated by the fatal illnesses of his two older
siblings. In his testimony, M.S. was vague about the causes of
the deaths of his sister and brother in 2001 and 2005,
respectively. Nor was petitioner fully aware of the
circumstances under which the older siblings died because he
lived in the United States and had no direct knowledge.
Petitioner testified generally that their deaths were due to the
mother's poverty and her inability to obtain medical care and
otherwise to provide for her children. In her acknowledgment of
service, the mother stated that her children's illnesses and
deaths were "caused by a lack of nutrition." Although proof of
neglect of one child is admissible to show neglect of another
child, N.J.S.A. 9:6-8.46(a)(1), the judge properly found no
15 A-1121-12T1 evidence that the mother willfully failed to provide food or
medical care to the siblings despite having the financial
ability.
With respect to the father, although the petitioner raised
abandonment and neglect, he principally contends that the father
abandoned M.S. before he was born.
In considering whether there had been "abandonment" of M.S.
by either his mother or his father, the judge properly utilized
the definition of that term in N.J.S.A. 9:6-1:
Abandonment of a child shall consist 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 control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (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.
Other statutes similarly protect "a child who has been willfully
abandoned by his parent." N.J.S.A. 9:6-8.9(e); N.J.S.A. 9:6-
8.21(c)(5). Under these statutes, abandonment requires "a
finding that 'a parent has willfully forsaken obligations,
although physically and financially able to discharge those
obligations.'" In re Adoption of a Child by D.M.H., 135 N.J.
473, 481 (1994) (quoting In re Adoption of Children by L.A.S.,
16 A-1121-12T1 134 N.J. 127, 134-35 (1993)), cert. denied, 513 U.S. 967, 115 S.
Ct. 433, 130 L. Ed. 2d 345 (1994).
The judge found that M.S. had not been abandoned by the
mother, who "is actively involved in the child's life," is in
"constant contact with" him, and participated in this litigation
by providing the acknowledgment. The judge noted that the mother
desired the award of custody to her brother in the United States
because it would be better for M.S. Further, the mother paid
for M.S. to be transported from India, through Turkey and
Mexico, to the United States. As the judge found, these facts
gave "clear indications of a mother who is unable to take care
of this child and who wants nothing but the best for this
child." Our Supreme Court has held that it is not willful
abandonment for a parent to voluntarily surrender a child to
foster care because it is in the child's best interest, or
because the parent is currently incapable of providing the
needed care, so long as the parent stays or tries to stay in
regular contact with the child. In re Guardianship of K.L.F.,
129 N.J. 32, 38-39 (1992); In re Guardianship of J.C., 129 N.J.
1, 6, 16-17 (1992).
In D.C., the court reached the same conclusion on similar
facts. An impoverished mother paid to smuggle her son from
Guatemala to the United States to live with his father, because
17 A-1121-12T1 she was not "physically and financially able" to care for him,
and she remained in contact with the juvenile after he arrived
here. D.C., supra, 417 N.J. Super. at 45, 48. The court aptly
found that "[n]o rational view of this evidence can support the
conclusion that defendant abandoned her son." Id. at 48. The
United States District Court has also declined to find parental
abandonment in factual circumstances similar to this case. The
federal court concluded that an African father who sent his son
to the United States and "wanted the best for his son and
remained in regular communication with him," was "a concerned
father" rather than "an abusive, neglectful father who abandons
his son." Yeboah v. U.S. Dep't of Justice, 223 F. Supp. 2d 650,
658 (E.D. Pa. 2002), aff’d, 345 F.3d 216 (3d Cir. 2003).
Here, the evidence supports the judge's finding that the
juvenile's mother did not abuse, neglect, or abandon him.
Therefore, under the terms of Subparagraph J, petitioner did not
show that reunification of M.S. with his mother was "not viable
due to abuse, neglect, or abandonment." 8 U.S.C.A. §
1101(a)(27)(J)(i).
We do not reach the same conclusion with respect to the
juvenile's father. The mother certified that the father was
addicted to alcohol and drugs and abandoned the family before
M.S. was born. M.S. testified that he never met his father. He
18 A-1121-12T1 was unaware that his father had ever sent any money for him or
his mother. Petitioner claimed that no one knew the father's
whereabouts or even his date of birth to assist in locating him.
The family court cited the allegation that the father's
abandonment was a result of alcoholism or drug addiction, and
concluded there was insufficient evidence that the father's
conduct was willful. Some cases have found that addicted
parents have not abandoned their child. In re Guardianship of
K.H.O., 308 N.J. Super. 432, 455 (App. Div. 1998), rev’d on
other grounds, 161 N.J. 337 (1999); In re Adoption of a Child by
J.R.D., 246 N.J. Super. 619, 629 (Ch. Div. 1990). In those
cases, however, the parent made efforts to maintain contact with
the child, and expressed a desire for reunification. K.H.O.,
supra, 308 N.J. Super. at 437 (noting the parent's many visits);
J.R.D., supra, 246 N.J. Super. at 623-25, 628-29 (noting the
parent's visits with his child, efforts to find her after the
child moved, intermittent payment of child support, and
opposition to the adoption petition). We are not aware of any
case that holds that a total disregard of parental duties,
although caused by alcohol or drug addiction, is insufficient to
constitute abandonment of a child.
As we have stated, abandonment must be willful. The
"parent 'must have engaged in a course of conduct that
19 A-1121-12T1 "evidences a settled purpose to forego all parental duties and
relinquish all parental claims to the child."'" D.M.H., supra,
135 N.J. at 481 (citations omitted). Here, the evidence was
that the father engaged in such a course of conduct and
abandoned his parental duties to his children. The father's
absence during the juvenile's entire life plainly demonstrates
his settled purpose to forego his parental duties and relinquish
parental claims to M.S. See N.J.S.A. 30:4C-15.1(b)(1)(a)-(b)
(permitting the termination of parental rights for abandonment
if the parent has had no contact with the child for six months
or more and the parent's whereabouts are unknown).
The family court also noted that petitioner and the
juvenile's mother had not tried to find the father for purposes
of adjudicating this petition. As noted above, it is unclear
what if any contact, notice, or service is required or permitted
in the context of an SIJ determination. In any event, as the
Family Part proceeded to grant custody and make findings without
such an effort, we do not regard this as a basis on which to
refuse to find abandonment.
We must hew to our standard of review, which requires
deference to a trial court's factual findings. N.J. Div. of
Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010)
(citations omitted). We nevertheless conclude that the court
20 A-1121-12T1 erred in finding insufficient evidence that father had in fact
abandoned the juvenile. See N.J. Div. of Youth & Family Servs.
v. C.S., 367 N.J. Super. 76, 114-15 (App. Div. 2004).
Petitioner was thus entitled to a finding that M.S.'s
reunification with his father is not viable because of
abandonment. See 8 U.S.C.A. § 1101(a)(27)(J)(i).
V.
Petitioner also asked the Family Part to make an additional
finding that "it would not be in the [juvenile's] best interest
to be returned to the [juvenile's] or parent's previous country
of nationality or country of last habitual residence." 8
U.S.C.A. § 1101(a)(27)(J)(ii). Petitioner presented evidence of
the deplorable conditions in the slums of India, the greater
opportunities available in the United States for nutrition,
education, and medical care, and the love and support of M.S. by
petitioner and his family.
The judge declined to make a "best-interest" determination
because he found insufficient evidence that either parent had
abandoned or neglected the juvenile. Because we disagree with
the judge's finding regarding the father, we must address the
federal statute further and determine whether it applies to
circumstances where only one parent has abused, neglected, or
21 A-1121-12T1 abandoned the juvenile but the other parent has not, and
reunification with the other parent is viable.
Several commentators6 and several courts, In re Minor
Children of J.E., 432 N.J. Super. 361, 372 (Ch. Div. 2013); In
re Marisol N.H., 979 N.Y.S.2d 643, 647 (App. Div. 2014); In re
Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 721-23 (App.
Div. 2013); In re Mario S., 954 N.Y.S.2d 843, 851 (Fam. Ct.
2012),7 have interpreted Subparagraph J as requiring proof that
only one parent abused, neglected, or abandoned a juvenile, even
where the available custodial parent did not and reunification
with that parent is viable. On the other hand, the Supreme
Court of Nebraska fully analyzed the federal statute and held
that the requirements of Subparagraph J are not met where one
parent is available and did not abuse, neglect, or abandon the
6 See Jennifer Baum, Alison Kamhi, and C. Mario Russell, Most In Need But Least Served: Legal And Practical Barriers To Special Immigrant Juvenile Status For Federally Detained Minors, 50 Fam. Ct. Rev. 621, 622 (2012); Laureen A. D'Ambra, The Vital Role of the Rhode Island Family Court and its Unique Jurisdiction in Immigration Cases Involving Abused and Neglected Children, 15 Roger Williams U. L. Rev. 24, 31 (2010); Angie Junck, Special Immigrant Juvenile Status: Relief for Neglected, Abused, and Abandoned Undocumented Children, 63 Juv. & Fam. Ct. 48, 56 (2012); see also 3 Charles Gordon et al., Immigration Law & Procedure § 35.09 at 35-44 & n.79 (rev. ed. 2013)(quoting cases). 7 In accordance with Rule 1:36-3, we do not cite unpublished opinions, such as that of an intermediate appellate court in Minnesota that reached the same conclusion as the cited cases.
22 A-1121-12T1 juvenile. State v. Erick M., 820 N.W.2d 639, 644-47 (Neb.
2012). The Nebraska court stated: "when ruling on a
petitioner's motion for an eligibility order under §
1101(a)(27)(J), a court should generally consider whether
reunification with either parent is feasible." Id. at 648. The
Nebraska court ruled that because "reunification with [the
juvenile's] mother was feasible, he was not eligible for SIJ
status," and he "was not seeking SIJ status to escape parental
abuse, neglect, or abandonment." Id. at 642, 648. We agree
with the holding of the Nebraska court, and overrule the
contrary holding of J.E., supra, 432 N.J. Super. at 372.
Subparagraph J requires a finding by the family court that
a juvenile's "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.A. § 1101(a)(27)
(J)(i). We understand the "1 or both" phrase to require that
reunification with neither parent is viable because of abuse,
neglect, or abandonment of the juvenile. In other words, the
statute is not satisfied where reunification with one or both
parents is viable. We hold that it is insufficient that
reunification with one parent is not viable due to abuse,
neglect, or abandonment, if the juvenile has another "safe"
parent who has not abused, neglected or abandoned the juvenile.
23 A-1121-12T1 If that parent is deceased or unable to protect the child
against abuse or neglect by the unsafe parent, then
reunification with one or both of the juvenile's parents is not
viable due to abuse, neglect, or abandonment.
The legislative history of Subparagraph J supports our
understanding of the statute. "The SIJ provisions of the INA
were enacted in 1990 to protect abused, neglected, or abandoned
children who, with their families, illegally entered the United
States." Yeboah v. U.S. Dept. of Justice, 345 F.3d 216, 221 (3d
Cir. 2003). "Rather than being deported along with abusive or
neglectful parents, or deported to parents who had abandoned
them once in the United States, such children may seek special
status to remain in the United States." Ibid. As originally
enacted, however, the statute "was abused . . . by juveniles
entering the United States as visiting students" who used it to
improve their immigration status. Ibid.
In 1997 Congress amended Subparagraph J to require the
juvenile to have "been deemed eligible . . . for long-term
foster care due to abuse, neglect, or abandonment." Depts. of
Commerce, Justice, & State, the Judiciary, & Related Agencies
Appropriation Act, Pub. L. No. 105-119, § 113, 111 Stat. 2440,
2460 (1997). Congress also added that the Attorney General (now
the Secretary of Homeland Security) must expressly consent to
24 A-1121-12T1 the grant of SIJ status. Ibid. The conference report stated
that "[t]he language has been modified in order to limit the
beneficiaries of this provision to those juveniles for whom it
was created, namely abandoned, neglected, or abused children,"
and to ensure that the juvenile court determination was not
"sought 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." H.R.
Rep. No. 105-405, at 130 (1997). Congress thus sought to deter
juveniles and their parents from "attempting to manipulate the
system to obtain permanent residence" for juveniles in the
United States. Yeboah, supra, 345 F.3d at 224; see also M.B. v.
Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002) ("The legislative
history confirms that the revision in the statute was intended
to curtail the granting of special immigrant juvenile status.").
In 2008, Congress amended the statute further by enacting
the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. No. 110-457, § 235(d)(1)-
(3), 122 Stat. 5044, 5079-80 (2008). Section 235 of the
Wilberforce Act made two pertinent changes to Subparagraph J.
First, by permitting SIJ applications from juveniles who were
placed under the custody of "an individual or entity appointed
by a State or juvenile court," ibid., the amendment "broadened
25 A-1121-12T1 the category of those to whom a child's custody could be legally
committed." C.G.H., supra, 75 A.3d at 168 n.2.
Second, the 2008 amendment removed the phrase "eligible for
long-term foster care," and substituted "reunification with 1 or
both of the immigrant's parents is not viable." This
represented less of a change than it appeared, as the Regulation
already provided that "[e]ligible for long-term foster care
means that a determination has been made by the juvenile court
that family reunification is no longer a viable option." 8
C.F.R. § 204.11(a).8 The 2008 amendment retained the 1997
requirement that reunification not be viable because of "abuse,
neglect, [or] abandonment," adding "or a similar basis found
under State law." Ibid.
There is no specific legislative history on the "1 or both"
language. 3 Charles Gordon et al., Immigration Law & Procedure
§ 35.09 at 35-44 (rev. ed. 2013) ("The shift in language . . .
was accomplished without a trace of legislative history.").9
8 See Randi Mandelbaum and Elissa Steglich, Disparate Outcomes: The Quest for Uniform Treatment of Immigrant Children, 50 Fam. Ct. Rev. 606, 608 (2012). 9 The proposed regulations similarly are "silent on the issue of the one-parent versus two-parent question." Id. at 35-44 n.80; see Erick M., supra, 820 N.W.2d at 644.
26 A-1121-12T1 However, some guidance can be gained from the legislative
history of the 2008 legislation as a whole.
The 2008 Wilberforce Act was intended to continue the fight
against human trafficking. H.R. Rep. No. 110-430, pt. 1 at 3.10
The legislation was named to recognize "the immense
contributions of British Parliamentarian William Wilberforce to
the abolition of the global slave trade in the 19th Century."
Id. at 34. One of its key initiatives was "[p]reventing the
trafficking of unaccompanied alien children found in the United
States by ensuring that they are not repatriated into the hands
of traffickers or abusive families." Id. at 33; see 153 Cong.
Rec. H. 14,098, 14,121 (Rep. Sanchez); 154 Cong. Rec. S. 4,795,
4,800 (2008) (Sen. Biden); 154 Cong. Rec. H. 10,888, 10,903
(2008) (Rep. Berman). The legislation's section that amended
Subparagraph J was entitled "Enhancing Efforts to Combat the
Trafficking of Children." § 235, 122 Stat. at 5074-80.
At the same time, Congress did not forget the concerns it
had expressed in 1997. At the introduction of the bill,
Representative Lamar Smith stated that the bill would add
"reasonable protections for unaccompanied alien minors," and
thanked the sponsors for addressing his concerns by modifying
10 This House Report accompanied the bill that first introduced the "1 or both" language.
27 A-1121-12T1 provisions to discourage "illegal immigration and immigration
fraud." 153 Cong. Rec. H. 14,098, 14,121 (2007). When the bill
was ultimately passed, Senator Dianne Feinstein stated: "This
legislation does not expand the current immigration rights of
any child. Instead, it presumes that children will be placed in
removal proceedings — unless they qualify for immigration benefits
under current law." 154 Cong. Rec. S. 10,886, 10,887 (2008).
Congress's continued concern with misuse of the law was
reflected in the Executive Branch's implementation of
Subparagraph J. Guidance memoranda to federal immigration
directors, issued both before and after the 2008 amendment,
instruct that the Secretary of Homeland Security "will not
consent to a petition for SIJ status if it was sought 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." See
Erick M., supra, 820 N.W.2d at 646 & n.25 (citations and
quotation marks omitted). The proposed regulations would
explicitly incorporate this language into 8 C.F.R. § 201.11.
Special Immigrant Juvenile Status, 76 Fed. Reg. 54,978, 54,981-
82, 54,985 (proposed Sept. 6, 2008).
Thus, the legislative and administrative history of
Subparagraph J shows two competing goals. Congress wanted to
28 A-1121-12T1 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.
Our understanding of Subparagraph J — that it requires a
finding that reunification with neither parent is viable because
of abuse, neglect, or abandonment — achieves both of Congress's
goals. It effectuates Congress's protective goal by making a
juvenile eligible for SIJ status if the juvenile cannot be
reunited with a parent without being put in danger by an unsafe
parent. It also serves Congress's goal of preventing misuse of
the statute by not granting immigration advantages when the
juvenile has a safe parent with whom he can be reunited.
The contrary interpretation does not achieve both of
Congress's goals. It would mean that a juvenile could apply for
SIJ status, with its immigration advantages, even if that
juvenile could be viably reunified with one parent who never
abused, neglected, or abandoned the juvenile. Indeed, it would
permit SIJ status even if that safe parent had raised the
juvenile from birth, in love, comfort, and security, and even if
reunification with the safe parent would not result in any
further contact with the unsafe parent. Nothing in the
legislative history of Subparagraph J supports such a broad
29 A-1121-12T1 interpretation. Finally, that broad interpretation would render
Subparagraph J's words "or both" superfluous, because it would
always be sufficient that "reunification with 1 . . . of the
immigrant's parents is not viable."
Petitioner and M.S. presented a sympathetic case to the
family court. However, courts misuse their power and authority
if they misinterpret and misapply a statute contrary to its
legislative intent. If Congress wished to create a "'gateway'" 11
for all abused or impoverished foreign juveniles to enter the
United States and benefit from the better conditions provided in
this country, it could have done so. It did not do so by
enacting the 2008 amendments to Subparagraph J. See Garcia v.
Holder, 659 F.3d 1261, 1271 (9th Cir. 2011) (Subparagraph J
shows "a congressional intent to assist a limited group of
abused children to remain safely in the country"). The purpose
of Subparagraph J remains the protection of those abused,
neglected, or abandoned juveniles whose compelled repatriation
would place them in danger from a parent who abused, neglected,
or abandoned them.
In Yeboah, the United States Court of Appeals for the Third
Circuit stated:
11 See Mario S., supra, 954 N.Y.S.2d at 848 (citations omitted).
30 A-1121-12T1 SIJ status is supported if "neither the dependency order nor the administrative or judicial determination of the alien's best interest was sought 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."
[Yeboah, supra, 345 F.3d at 222 (quoting H.R. Rep. No. 105-405, at 130 (1997)).]
The 2008 amendments did not alter that intent of the
federal law. Erick M., supra, 820 N.W.2d. at 645 & n.23. Here,
the express objective of the petition was for M.S. to obtain
relief for purposes of his immigration status, rather than for
the purpose of obtaining relief from abuse, neglect, or
abandonment, as his mother had not abused, neglected, or
abandoned him.
We therefore hold that the Family Part was not required to
make a "best interest" finding under 8 U.S.C.A. §
1101(a)(27)(J)(ii) because petitioner failed to satisfy 8
U.S.C.A. § 1101(a)(27)(J)(i). As set forth above, there was
sufficient credible evidence supporting the court's finding that
the mother had not abused, neglected, or abandoned M.S., and
petitioner failed to show reunification with the mother was not
viable for those reasons.
Finally, we note that when M.S. was before the trial court,
he was seventeen years old, and that he is now nineteen. The
31 A-1121-12T1 Family Part in this State would typically not decide the issue
of a juvenile's custodial status and best interests if he has
reached the age of majority, generally eighteen years old. See
N.J. Div. of Youth & Family Servs. v. W.F., ___ N.J. Super. ___
(App. Div. Jan. 28, 2014) (slip op. at 9-13). However, under
federal law, an alien remains eligible for SIJ status if he
"[i]s under twenty-one years of age," "[i]s unmarried," and
"[h]as been" found to meet the criteria of Subparagraph J. 8
C.F.R. § 204.11(c); see also 8 U.S.C.A. § 1232(d)(6)
("Notwithstanding any other provision of law, an alien described
in [Subparagraph J] may not be denied special immigrant status
under such section after the date of the enactment of this Act
based on age if the alien was a child on the date on which the
alien applied for such status."). Because the application was
filed and heard before M.S. reached the age of majority, his
current age does not moot the appeal.
Affirmed in part, reversed in part, and remanded for
modification of the Family Part's order to include a finding for
purposes of Subparagraph J that M.S. was abandoned by his
father.
32 A-1121-12T1