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

• Citation: 87 A.3d 255,435 N.J.Super. 147
• Court: Superior Court of New Jersey
• Decision Date: 27 March 2014
• Parties: H.S.P., Petitioner–Appellant, v. J.K., Respondent–Respondent.

435 N.J.Super. 147

87 A.3d 255

H.S.P., Petitioner–Appellant,

v.J.K., Respondent–Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 4, 2013.

Decided March 27, 2014.

Francis X. Geier, Elizabeth, argued the cause for appellant (Basaran Law Office, attorneys; Melinda M. Basaran, on the brief).

Respondent has not filed a brief.

Before Judges ASHRAFI, ST. JOHN and LEONE.

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 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. §§ 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.”

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); see8 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 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 33, 36 (Ala.Civ.App.2012) (quoting In re J.J.X.C., 318 Ga.App. 420, 734 S.E.2d 120, 124 (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 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, 8 A.3d 260 (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, 8 A.3d 260. 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, 8 A.3d 260. The court ruled that “it is not necessary to appoint plaintiff as [the juvenile's] guardian as the child is thriving in the custody of his father. There is no need for this court to exercise jurisdiction....” Id. at 51, 8 A.3d 260.

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, 8 A.3d 260.⁴ “ 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, 244...