Opinion
DOCKET NO. A-4138-14T1
02-24-2016
C.I.M., Plaintiff-Appellant, v. F.M.R., Defendant-Respondent. IN THE MATTER OF B.I.M., a minor.
Teresa M. Graw, L.L.C. and Diaspora Law, L.L.C., attorneys for appellant (Randi Mandelbaum, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-000179-15. Teresa M. Graw, L.L.C. and Diaspora Law, L.L.C., attorneys for appellant (Randi Mandelbaum, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff C.I.M. filed a verified complaint seeking custody of his brother, B.I.M. (Ben), as an initial step toward obtaining special immigrant juvenile status (SIJ) for Ben from the United States Citizenship and Immigration Services (USCIS) pursuant to 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 (2008). If a person obtains SIJ status, he may then submit a petition to the USCIS requesting lawful permanent residency, a step toward citizenship. H.S.P. v. J.K., 223 N.J. 196, 200 (2015).
The child's name is fictionalized to protect his privacy.
Before an undocumented citizen may seek SIJ status from the USCIS, he (or someone on his behalf) must first apply to and obtain a predicate order from a state court finding he meets certain requirements set forth in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). Ibid. A state court does not have the authority to grant SIJ status; it merely makes factual findings concerning whether the child meets the following requirements:
These five requirements derive from the federal statute, 8 U.S.C.A. § 1101(a)(27)(J), and the federal regulations, 8 C.F.R. § 204.11(c), as modified by the Trafficking Victims Protection Reauthorization Act of 2008. O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 640 (App. Div. 2015). We refer to these requirements as the "five factors" throughout this opinion.
(1) The juvenile is under the age of 21 and is unmarried;
(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 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
(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 by TVPRA 2008].
[H.S.P. v. J.K., 223 N.J. 196, 210 (2015) (quoting In re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. App. 2015)) (citing 8 C.F.R. § 204.11(a), (c) & (d); 8 U.S.C.A. § 1101(a)(27)(J)).]
Here, after filing his complaint for custody, plaintiff filed a motion requesting that the court make the above findings with respect to Ben, with the exception of the third factor. In addition, plaintiff requested that Ben be placed in his custody as part of the process of seeking SIJ status. The court denied plaintiff's request for custody and did not make any other findings; a subsequent motion for reconsideration was denied.
We assume plaintiff refrained from asking for a finding on the third factor because there was no question the court had jurisdiction to make custody determinations.
Plaintiff appeals the January 5, 2015 order denying his motion and the April 8, 2015 order denying his motion for reconsideration. After reviewing the record and the applicable legal principles, we vacate the orders and remand for further proceedings.
I
Plaintiff and Ben are brothers. They are natives of Guatemala, where F.M.R., who is their mother, and eleven siblings still reside. Their father is deceased. Plaintiff, who is in his thirties, moved to the United States a number of years ago and established a home in New Jersey. Ben, presently nineteen years of age, left his home in Guatemala in August 2013 and entered the United States from Mexico; however, he was intercepted and detained by immigration officials who placed him into a children's shelter. At the time, Ben was seventeen years old. In October 2013, the United States Department of Health and Human Service, Office of Refugee Resettlement, released Ben into plaintiff's care. Ben has been living with plaintiff since and is attending high school.
In a certification filed in support of plaintiff's motion for custody and for the court to make findings of fact on four of the five factors, Ben asserted his father left home when he was ten years of age and moved to the United States, leaving him and other siblings in the care of his mother. Ben certified his mother was violent, frequently beating him with a belt and often withholding food.
Ben's father periodically sent money to his mother from the United States, but he died when Ben was thirteen. After his father's death, Ben's mother became more abusive. She also told Ben he either had to leave home, because she could not afford to support him, or had to drop out of school and go to work so that he could help support the family. Ben ultimately dropped out of school after completing the eighth grade and went to work. However, when local gangs learned of his father's death, members from these gangs threatened to hurt Ben unless he joined their particular gang. Ben resisted, but on one occasion was punched and kicked by members of a particular gang who warned he would be beaten to death unless he joined its group.
Out of fear, Ben refused to leave his house, but his mother then beat him for not working. Because his mother refused to support him financially and protect him from the gangs, Ben ran away to the United States. Ben certified he cannot return to his home in Guatemala because his mother will beat and refuses to support him, and he is at risk for being killed by gang members. Plaintiff submitted a report by a psychotherapist who found Ben suffers from depression and, if returned to Guatemala, will be suicidal.
The court denied plaintiff's request for custody because by the return date of the motion, Ben had turned eighteen. The court concluded Ben was an adult under N.J.S.A. 2A:4A-22(a) and N.J.S.A. 9:17B-3. The trial court did not divulge why it relied upon N.J.S.A. 2A:4A-22(a), a statute found in the Code of Juvenile Justice; juvenile delinquency was not an issue in the case. However, under N.J.S.A. 9:17B-3, the court concluded Ben was an adult because he had reached the age of eighteen and, thus, could not be placed in another's custody. The court did not make any findings about the subject factors set forth in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11. We assume the court declined because, given the second factor could not be met, see 8 C.F.R. § 204.11(c)(3), engaging in such exercise would be superfluous.
Plaintiff's motion for reconsideration was denied for primarily the same reason his initial motion was, although the court added that "[t]he only reason [plaintiff made] this application is so [Ben] . . . could get an advantage under the special immigrant juvenile status law, which was not the intent of the law."
II
On appeal, plaintiff contends the court erred by denying his motion for custody on the ground Ben had reached the age of eighteen. Plaintiff argues the law recognizes circumstances under which a person may not be deemed an adult even though he has reached the age of majority, and that those circumstances exist here.
Subsequent to the Family Part's decision, we decided O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 638-39 (App. Div. 2015), where the trial court had similarly denied the plaintiff's immigration-related petition for custody of her brother, who was eighteen years of age. We observed that "it would defeat the purpose of the hybrid federal-state scheme Congress created if state family courts decline to hear these cases solely because a juvenile is over the age of eighteen, so long as the juvenile is still under the age of twenty-one." Id. at 640.
We further noted, "[g]enerally, New Jersey statutes provide for the granting of custody for juveniles under eighteen years old." Id. at 642 (citing N.J. Div. of Youth and Family Servs. v. W.F., 434 N.J. Super. 288, 295-96 (App. Div.), certif. denied, 218 N.J. 275 (2014)). However, we found our courts do have some sources of jurisdiction when one seeks custody over a person between the ages of eighteen and twenty-one. One such source is found in N.J.S.A. 9:17B-3. Although this statute does provide that, in general, a person eighteen years of age or more is an adult, the statute also "excepts from its definition of adulthood-at-age-eighteen 'the right of a court to take any action it deems appropriate and in the interest of a person under 21 years of age.'" Id. at 643 (quoting N.J.S.A. 9:17B-3). We remanded the matter for the court to consider these other sources of jurisdiction.
None of the other sources of jurisdiction mentioned in O.Y.P.C. is applicable here. --------
We further pointed out that, even if a court denies a petitioner custody of a non-citizen child pursuant to a SIJ petition, as mandated by the Court in H.S.P., the trial court must still make the required findings in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). Id. at 641.
Finally, a trial court may not consider "whether the applicant filed the petition primarily to obtain legal immigration status for the juvenile, or whether the federal immigration authorities should or should not grant SIJ status." Id. at 642. "'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.'" Ibid. (quoting H.S.P., supra, 223 N.J. at 214).
Accordingly, we vacate the January 5, 2015 and April 8, 2015 orders and remand this matter to the Family Part for further proceedings consistent with this opinion.
Remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION