In the Matter of Mohamed B. (anonymous)
| Decision Date | 12 April 2011 |
| Citation | 2011 N.Y. Slip Op. 03057,921 N.Y.S.2d 145,83 A.D.3d 829 |
| Parties | In the Matter of MOHAMED B. (Anonymous), appellant.Cynthia C. (Anonymous), petitioner, et al., respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Lauren Burke, New York, N.Y. (Daniel M. Gonen of counsel), for appellant.JOSEPH COVELLO, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In a guardianship proceeding pursuant to Family Court Act article 6, the subject child, Mohamed B., appeals from an order of the Family Court, Kings County (Sheares, J.), dated March 11, 2010, which, after a hearing, in effect, denied his motion for the issuance of an order declaring that he is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in his best interest to be returned to his previous country of nationality or last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).
ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the motion is granted, it is declared that Mohamed B. is dependent on the Family Court, and it is found that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental neglect and abandonment, and that it would not be in the best interest of Mohamed B. to return to Sierra Leone, his previous country of nationality or last habitual residence.
Mohamed B., a native of Sierra Leone, is 19 years old and unmarried. Mohamed lived primarily with his grandmother and older brother while growing up in Sierra Leone, and testified that, during the limited time that he lived with his parents, his father beat him regularly and both parents neglected him. He also testified that when he lived with other family members, his parents did not provide him with emotional or financial support. Mohamed's father died in Sierra Leone in 2007, and his mother remains in that country.
In 2006 Mohamed won a scholarship competition sponsored by a Connecticut church, and the church obtained a visa for him for the purpose of visiting the United States. Prior to his scheduled return to Sierra Leone, Mohamed became separated from his hosts while on a trip to Manhattan. Following the separation, he lived with natives of Sierra Leone whom he met in New York City, and eventually enrolled in high school. Since February 2009, he has lived in New York with his former teacher. There is uncontroverted evidence that Mohamed's former teacher has provided him with financial and emotional support and the ability to pursue educational goals.
In February 2009, with Mohamed's consent, Mohamed's former teacher commenced this proceeding, seeking to be appointed as his guardian. Two months later, Mohamed moved for an order making findings that would enable him to apply to the United States Citizenship and Immigration Services (hereinafter the USCIS) for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Both the petition and the motion were unopposed. The Family Court granted the guardianship petition. However, after expressing concern about the circumstances surrounding Mohamed's separation from his hosts while in Manhattan, it denied the motion in an order dated March 11, 2010.
The Family Court improperly denied Mohamed's motion for the issuance of an order declaring that he is dependent on the Family Court and making specific findings that would allow him to apply to the USCIS for special immigrant juvenile status—a gateway to lawful permanent residency in the United States. Pursuant to 8 USC § 1101(a)(27)(J) () and 8 CFR 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. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile...
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