Matter of Jasbir S. (Dayal S. -- Gurdev S.)

138 A.D.3d 750, 29 N.Y.S.3d 446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2016
• Docket: 2015-08150
• Status: Published

Opinion

Appeal from an order of the Family Court, Queens County (Nicolette M. Pach, J.H.O.), dated August 3, 2015. The order, after a hearing, in effect, denied the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child, Jasbir S., to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101 (a) (27) (J).

Ordered that the order is affirmed, without costs or disbursements.

In April 2014, the petitioner filed a petition pursuant to Family Court Act article 6 to be appointed guardian of Jasbir S. (hereinafter the child), for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to abandonment, neglect, or abuse, and that it would not be in his best interests to be returned to India, his previous country of nationality and last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101 (a) (27) (J). Thereafter, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Following a hearing, the Family Court determined, inter alia, that the child was under 21 years of age, unmarried, and dependent on the Family Court, and that it would not be in his best interests to return to India. However, the court, in effect, denied the motion on the ground that the petitioner failed to establish that reunification of the child with one or both of his parents was not viable.

Pursuant to 8 USC § 1101 (a) (27) (J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SUS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101 [a] [27] [J] [i]; Matter of Maria P.E.A. v Sergio A.G.G., 111 AD3d 619, 620 [2013]; Matter of Trudy-Ann W. v Joan W., 73 AD3d 793, 795 [2010]), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101 [a] [27] [J] [ii]; 8 CFR 204.11 [c] [6]; Matter of Maria P.E.A. v Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795).

Contrary to the child’s contention, the record does not support a determination that his reunification with one or both of his parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see Matter of Malkeet S., 137 AD3d 799 [2d Dept 2016]; Matter of Leslie J.D. [Maria A.A.G. —Sylvia D.], 136 AD3d 902 [2016]; Matter of Maria S.Z. v Maria M.A., 115 AD3d 970, 971 [2014]). Accordingly, the Family Court properly, in effect, denied the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS.

Chambers, J.P., Austin, Roman and Duffy, JJ., concur.