In re Mario S.

• Decision Date: 21 November 2012
• Citation: 954 N.Y.S.2d 843,38 Misc.3d 444,2012 N.Y. Slip Op. 22336
• Parties: In the Matter of MARIO S., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

38 Misc.3d 444
954 N.Y.S.2d 843
2012 N.Y. Slip Op. 22336

In the Matter of MARIO S., A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, Queens County, New York.

Nov. 21, 2012.

[954 N.Y.S.2d 845]

Michael A. Cardozo, Corporation Counsel (Aimee L. Sklar–Calogero, of counsel), New York City, for Presentment Agency.

Robin Stone Einbinder, Jamaica, and The Door's Legal Services Center (Helen Pundurs and Travis M. Johnson, of counsel), New York, for Mario S.

JOHN M. HUNT, J.
[38 Misc.3d 445]I

Mario S., the respondent in this juvenile delinquency proceeding commenced under article 3 of the Family Court Act, has requested that this Court issue an order pursuant to 8 USC § 1101(a)(27)(J) finding him eligible for “special immigrant juvenile” (“SIJ”) status. For the reasons which follow, the Court finds that Mario S. satisfies the statutory criteria for a determination that he is eligible for SIJ status, and this order constitutes an “eligibility order” for any application which he may file for SIJ status with federal immigration authorities.¹

A

By petition filed pursuant to Family Court Act § 310.1(1) on December 16, 2009, it was alleged that Mario S. (born March 1, 1994), is a juvenile delinquent within the meaning of Family Court Act § 301.2.² The juvenile delinquency petition alleged that respondent committed acts which, were he an adult, would constitute the crimes of Criminal Mischief, Defacement of Property, and Possession of Graffiti Instruments. The petition further alleged that respondent was born on March 1, 1994, that he resides in Astoria, New York, and that he resides with his mother, Irma V.

[38 Misc.3d 446]Following preliminary proceedings upon the petition, the respondent entered an

[954 N.Y.S.2d 846]

admission that he committed an act which would constitute the misdemeanor of Possession of Graffiti Instruments (Penal Law § 145.65), in satisfaction of the entire petition (Fam. Ct. Act § 321.2[3] ). The Court then proceeded to a dispositional hearing at the conclusion of which, respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act § 352.1 [1] ), and he was placed on probation for a period of 12 months upon specific conditions which included his participation with Esperanza, a community-based supervision program, his regular attendance at school, the completion of 80 hours of community service, random screening and negative test results for alcohol, marijuana, and controlled substances, adherence to a daily curfew, and no further arrests for criminal or delinquent behavior (Fam. Ct. Act §§ 352.2[1][b]; 353.2).

A petition alleging that respondent violated the conditions of the order of probation was filed by the Department of Probation on August 4, 2010 (Fam. Ct. Act § 360.2). Respondent denied the allegations in the petition and a hearing was conducted in accordance with Family Court Act § 360.3. At the conclusion of the hearing the Court found that the evidence established that respondent had violated the conditions of his probation by failing to report to meetings with his probation officer, that he failed to cooperate with the Esperanza program, he failed to attend school regularly and was truant, and that he failed to obey his mother's lawful commands and had been away from home without her permission. A further dispositional hearing was conducted and at the conclusion thereof, the Court revoked the prior order of probation and entered a new order of disposition (Fam. Ct. Act § 360.3[6] ). The new order of disposition placed respondent in the custody of the New York State Office of Children and Family Services (“OCFS”) for a period of 12 months with the further directive that OCFS place respondent in the physical custody of Lincoln Hall, an authorized agency, for confinement and treatment (Fam. Ct. Act §§ 360.3[6]; 352.2[1][c]; 353.3[4]; see Matter of Robert J., 2 N.Y.3d 339, 343, 778 N.Y.S.2d 763, 811 N.E.2d 25 [2004];Matter of Vito G.L., 27 A.D.3d 471, 809 N.Y.S.2d 921 [2006] ).

B

Respondent through his court appointed attorney (Fam. Ct. Act § 249 [a] ), in conjunction with counsel from The Door's Legal Services Center, who are assisting him with immigration issues, requests that this Court make “special findings” of fact which will [38 Misc.3d 447]“enable him to petition the United States Customs and Immigration Services (USCIS) for Special Immigrant Juvenile Status pursuant to Immigration and Nationality Act 8 U.S.C. § 1101(a)(27)(J) (2010), as amended by Pub.L. No. 110–457, 122 Stat. 5044 (effective March 23, 2009) and 8 C.F.R. § 204.11 (2008)”.

More specifically, Mario S. requests that the Court find that he is an unmarried person less than 21 years of age; that he is dependent upon the Family Court by virtue of the juvenile delinquency proceeding which resulted in his placement in state custody; that reunification with at least one of his parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and that it is not in his best interests to return to Mexico, his country of birth.

In support of the application for the requested “special findings”, counsel for the respondent assert that he was born in Mexico to Irma V. and Mario S., Sr. on March 1, 1994,³ and that “[w]hen Mario

[954 N.Y.S.2d 847]

Jr.] was about six months old, his mother brought him to the United States to live with his father, who had come to the U.S. in early 1993. Mario's parents separated in 2004, after which Mario and his siblings remained with their mother in Astoria, Queens.” Respondent further asserts that his father has not supported him or his siblings since his parents separated in 2004, and that his father has made no substantial effort to maintain a relationship with him. In addition, “[i]n 2008 ... Mario went to live with his father in Corona, Queens. After Mario had lived there for about three months, his father was arrested on charges related to domestic violence for slapping his girlfriend. Mario's father was subsequently deported” and Mario, Jr. returned to his mother's home where he resided when the underlying juvenile delinquency proceeding was filed in 2009.

Respondent's mother, Irma V., has submitted an affidavit in support of the motion. The mother's affidavit states, in pertinent part, that she and her son Mario came to the United States in October 1994 to live with her husband, the father of respondent and his siblings, when Mario, Jr. was six months [38 Misc.3d 448]old. She and her husband separated in “late 2004” and respondent and her other children remained in her care. “In 2008, Mario and his sister Teresita went to live with their father in Corona, Queens [and][a]fter Mario had lived there for about three months, his father was deported. This occurred after the woman he [the father] was living with called the police during an argument.” Ms. V. further states that respondent “has received no financial support from his father and is rarely in contact with him; they probably speak three or four times a year. He does not seem to care whether he is a part of Mario's life.”

Also appended to the motion are a letter from a social worker at Lincoln Hall, the authorized agency which provided services and treatment to respondent during the period of his court-ordered placement and an affidavit from the respondent. The social worker's statement provides that respondent “made fair progress during his stay at Lincoln Hall”, including anger management, effective communication with his family, effective decision making, and positive peer interactions. Respondent “passed every class” and has excelled academically. At the time of his scheduled release from Lincoln Hall, the plan was for respondent to return to his mother's home where he would receive “aftercare” services through OCFS in the community. In his own affidavit, Mario S. states that “I am currently not in contact with my Dad. I called him around my birthday this year [2011], but I can't remember the last time we talked before that. He has not tried to maintain a relationship with me since he was deported. He has sent our family no money or gifts, and I don't think he has ever tried to call me.” Respondent further states that he departed Mexico when he was an infant, he does not have complete fluency in the Spanish language in that while he can converse in Spanish, he “is not good at reading it”, and that were he to return to Mexico, “I don't know what I would do for work and I'm not sure where I would live.”

II

“Federal law provides a path to lawful permanent residency in the United States to resident alien children who qualify for special immigrant juvenile' (SIJ) status”

[954 N.Y.S.2d 848

( In the Interest of J.J.X.C., –––Ga.App. ––––, 734 S.E.2d 120 [2012] ). “SIJ status allows a juvenile[38 Misc.3d 449]immigrant to remain in the United States and seek lawful permanent resident status if federal authorities conclude that [certain] statutory conditions are met” ( In re Interest of Erick M., 284 Neb. 340, 341, 820 N.W.2d 639, 641 [2012];see also, Zhen–Hua Gao v. Jenifer, 185 F.3d 548, 557 [6th Cir.1999];M.B. v. Quarantillo, 301 F.3d 109, 114 [3rd Cir.2002] ).

“The SIJ provisions of the [Immigration and Naturalization Act] were enacted in 1990 to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States. Congress provided an alternative to deportation for these children. 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” ( Yeboah v. Department of Justice, 345 F.3d 216, 221 [3rd Cir.2003] ). “A minor who obtains SIJ status may become a naturalized United States citizen after five years” ( In re Y.M., 207 Cal.App.4th 892, 915, 144 Cal.Rptr.3d 54, 71–72 [4th Dist.2012];see also, Zheng v. Pogash, 416 F.Supp.2d 550, 554 [S.D.TX.2006];B.F. v. Superior Court of Los Angeles...