In re Miguel A.G.G.

• Decision Date: 08 April 2015
• Docket Number: 2014-05562, Docket No. G-4165-14.
• Citation: 127 A.D.3d 858,6 N.Y.S.3d 608,2015 N.Y. Slip Op. 02967
• Parties: In the Matter of MIGUEL A.G.G. (Anonymous). Milton N.G.G. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 858

6 N.Y.S.3d 608

2015 N.Y. Slip Op. 02967

In the Matter of MIGUEL A.G.G. (Anonymous). Milton N.G.G. (Anonymous), appellant.

2014-05562, Docket No. G-4165-14.

Supreme Court, Appellate Division, Second Department, New York.

April 8, 2015.

Bruno Joseph Bembi, Hempstead, N.Y., for appellant.

Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.

PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

Appeal from an order of the Family Court, Suffolk County (Martha L. Luft, J.), dated April 16, 2014. The order, after a hearing, in effect, denied the petitioner's motion for the issuance of an order, inter alia, making special findings so as to enable the subject child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 U.S.C. § 1101(a)(27)(J).

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

In February 2014, the petitioner filed a petition pursuant to Family Court Act article 6 to be appointed guardian of his brother, Miguel A.G.G. (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 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 El Salvador, 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 U.S.C. § 1101(a)(27)(J). Thereafter, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so to enable the child to petition for SIJS. Following a hearing, the Family Court determined 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 El Salvador. However, the court, in effect, denied the motion on the ground that the petitioner failed to show that reunification of the child with his parents was not viable.

Pursuant to 8 U.S.C. § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110–457, 122 U.S. Stat. 5044) and 8 C.F.R. 204.11, a special immigrant is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. The appointment of a guardian constitutes the necessary declaration of dependency on a juvenile court for SIJS purposes (see Matter of Marvin E.M. de P. [Milagro C.C.-Mario Enrique M.G.], 121 A.D.3d 892, 892–893, 994 N.Y.S.2d 377 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296 ; Matter of Antowa McD., 50 A.D.3d 507, 856 N.Y.S.2d 576 ). Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to...