In re Jose H.

• Decision Date: 29 July 2016
• Citation: 2016 N.Y. Slip Op. 26349,40 N.Y.S.3d 710,54 Misc.3d 324
• Parties: In the Matter of the Application of JOSE H. For Special Findings Supporting a Special Immigrant Juvenile Application Relating to a Youthful Offender Adjudication.
• Court: New York Supreme Court

54 Misc.3d 324

40 N.Y.S.3d 710

2016 N.Y. Slip Op. 26349

In the Matter of the Application of JOSE H. For Special Findings Supporting a Special Immigrant Juvenile Application Relating to a Youthful Offender Adjudication.

Supreme Court, Nassau County, New York.

July 29, 2016.

Theo Liebmann, Esq., Hofstra Youth Advocacy Clinic, Hempstead.

ADA Monica M.C. Leiter, Appeals Bureau, Nassau County District Attorney's Office, Mineola.

WILLIAM C. DONNINO

, J.

Petitioner Jose H. seeks an order from this Court setting out Special Findings that would make him eligible for Special Immigrant Juvenile status which, if granted by immigration authorities, would permit him to stay in the United States.¹ See 8 U.S.C. § 1101(a)(27)(J)

; 8 C.F.R. § 204.11. The application for Special Findings is denied, as the petitioner is not “dependent” on a “juvenile court” within the meaning of the governing federal statute.

Petitioner's Judgments

On April 21, 2014, in the Supreme Court, Nassau County, the petitioner was charged by indictment, as an adult, with Assault in the First Degree and related crimes, based on his having inflicted serious physical injury on the complainant by means of a machete. On July 16, 2014, the petitioner pled guilty to Assault in the First Degree. On February 20, 2015, the Court decided to adjudicate the petitioner (who was 17 years of age at the time of the crime) a Youthful Offender and sentence him to one and one-third to four years in state prison. On the date of that sentence, the petitioner also pled guilty under a separate indictment to Promoting Prison Contraband in the First Degree, for possession of a home-made knife while he was detained in jail pending the resolution of the assault charge; and, in the same sentencing proceeding the Court also adjudicated the petitioner a Youthful Offender for that felony, and accorded him a time-served sentence on that adjudication.

Summary of Decision

Special Immigrant Juvenile status is intended to provide relief from deportation to children who are in the United States illegally and who, because abuse, neglect, or abandonment prevents reunification with one or both of their parents, find themselves in need of the intervention of a “juvenile court”—typically in the form of guardianship, foster care, or other provisions for their care and custody. When a “juvenile court” has such a child before it, federal law permits it to make certain Special Findings which can serve as the basis for a Special Immigrant Juvenile application with immigration authorities. Among these findings are that the child is “dependent” on the “juvenile court”; that the child is unable to reunite with one or both parents due to parental abuse, neglect, or abandonment; and that it is in the child's best interest to remain in the United States. One of the bases for a finding that a child is “dependent” on a “juvenile court” is that “such a court has legally committed [the child] to, or placed [him or her] under the custody of, an agency or department of a State.” 8 U.S.C. § 1101(a)(27)(J)

.

Here, the petitioner argues that he is “dependent” on a “juvenile court” because he was “legally committed to, or placed under the custody of, an agency or department of a State” when this Court—after the petitioner's conviction of felony assault for ambushing and hacking an unarmed man with a machete—adjudicated him a Youthful Offender and sentenced him to state prison.

This strained interpretation of the federal statute fails. The “juvenile court” in New York state is the Family Court. While the New York Supreme Court is a court of general jurisdiction and a judge of the Supreme Court may sit to adjudicate a Family Court case, this Supreme Court judge did not do that in the petitioner's case. Indeed, the Family Court was without jurisdiction to entertain the petitioner's case because he was charged, as an adult, with a felony. In other words, the petitioner was not legally committed or placed in custody by a “juvenile court,” as required for Special Immigrant Juvenile status, see 8 U.S.C. § 1101(a)(27)(J)

, because this Court was not exercising “juvenile court” jurisdiction when it sent him to state prison.

The petitioner is wrong in claiming that a Youthful Offender adjudication is a type of “juvenile court” adjudication. For eligible young adults who have been convicted of a crime, Youthful Offender treatment ameliorates some of the collateral consequences of that conviction by replacing it with a Youthful Offender adjudication and keeping the records relating to it confidential, and Youthful Offender treatment permits a more lenient prison sentence. But, in contrast to a Juvenile Delinquent or a Juvenile Offender, a Youthful Offender is someone who was subject to adult criminal liability, was tried in an adult court, using adult criminal procedures, and was sent to an adult prison for a maximum indeterminate term of up to four years.

Thus, as federal courts have recognized, Youthful Offender adjudications are adult, rather than juvenile, proceedings in New York.

Consequently, the petitioner does not qualify as “dependent” on a “juvenile court” within the meaning of the federal statute—and he certainly is not the type of vulnerable child in need of “juvenile court” intervention that Special Immigrant Juvenile status was intended to aid. Accordingly, his application is denied.

Background

Special Immigrant Juvenile Status

In 1990, Congress created the status of Special Immigrant Juvenile to provide relief from deportation to unaccompanied or otherwise neglected children who were in the United States illegally. See 8 U.S.C. § 1101(a)(27)(J)

(defining Special Immigrant Juvenile); Marcelina M.G. v. Israel S., 112 A.D.3d 100, 101, 973 N.Y.S.2d 714 (2d Dept.2013) (setting out history of Special Immigrant Juvenile statute); In re Hei Ting C., 109 A.D.3d 100, 102, 969 N.Y.S.2d 150 (2d Dept.2013) (same). To be eligible for Special Immigrant Juvenile status, a child had to be a child under federal immigration law (that is, under age 21 and unmarried); declared “dependent” on a “juvenile court”; eligible for long-term foster care; and, in addition, a state “juvenile court” had to make a factual finding that it was not in the child's best interest to return to his or her native country. 8 C.F.R. § 204.11(c) (implementing regulations for Special Immigrant Juvenile statute); Marcelina M.G., at 107, 973 N.Y.S.2d 714.

In 1997, Congress became concerned that Special Immigrant Juvenile status was being abused by visiting foreign students who were having themselves declared wards of the court and eligible for long-term foster care. Marcelina M.G., at 107, 973 N.Y.S.2d 714

. Consequently, Congress amended the statute to require that the child be eligible for long-term foster care due to abuse, abandonment, or neglect, “in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children.” H.R. Rep. 105–405, at 130 (1997); Marcelina M.G., at 107–08, 973 N.Y.S.2d 714

. At the same time, Congress modified the dependency requirement—that is, that a child be “ declared dependent on a juvenile court”—to include as well children who were “ legally committed to, or placed under the custody of, an agency or department of a State.” Marcelina M.G., at 107–08, 973 N.Y.S.2d 714.

Significantly, Congress also added a requirement that immigration authorities consent to the granting of Special Immigrant Juvenile status. Id. This requirement was intended to limit the granting of this status to children who were genuinely vulnerable. Id. Immigration authorities were therefore expected to determine that “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.” H.R. Rep. 105–405, at 130 (1997); see also Yeboah v. U.S. Dept. of Justice, 345 F.3d 216, 222 (3d Cir.2003)

; Commentary on Proposed Rule 8 CFR 204.11, 76 FR 54978–01, III(B)(1) (proposed new implementing regulations of Special Immigrant Juvenile statute) (citing legislative history of statute and providing, “If USCIS determines that the State court order is sought primarily to obtain lawful immigration status, USCIS will deny consent.”); William R. Yates, Field Status on Special Immigrant Juvenile Status Petitions; Memorandum Three, USCIS (May 27, 2004), p. 2 (citing statute's legislative history and directing immigration authorities to determine whether dependency order was sought for primary purpose of Special Immigrant Juvenile application, rather than for relief from state court from abuse or neglect); Special Immigrant Juvenile Status: Information for Juvenile Courts,

U.S. Citizenship & Immigration Services, (undated information sheet), p. 2 (citing “primary purpose” standard).

In 2008, Congress again amended the statute, this time expanding the class of juveniles it protected by adding another basis for the “dependency” requirement: now, this element could be satisfied not only by a finding that a child either was declared dependent by a “juvenile court,” or was committed to or placed under the custody of a state agency or department by a “juvenile court,” but also by a finding that the child was placed in the custody of an individual or entity appointed by the state or “juvenile court.” Marcelina M.G., at 108, 973 N.Y.S.2d 714

. This amendment was intended to bring within the application of Special Immigrant Juvenile status children for whom a “juvenile court” had appointed a guardian. In re Hei Ting C., 109 A.D.3d at 103, 969 N.Y.S.2d 150.

Thus, after this, its most recent, amendment, the federal statute provided for three types of “juvenile court” proceedings—collectively termed “dependency” proceedings—that would make a child eligible for Special Immigrant Juvenile status. See Commentary on...