Opinion
A-2886-21
11-04-2022
ANAGISLENA RUANO CANO, Plaintiff-Appellant, v. JOSE ALBERTO BURGOS GUILLEN (deceased), Defendant-Respondent.
Casa de Esperanza, attorneys for appellant (Asma Warsi, on the brief). Respondent has not filed a brief.
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted October 24, 2022
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-0446-22.
Casa de Esperanza, attorneys for appellant (Asma Warsi, on the brief).
Respondent has not filed a brief.
Before Judges Currier and Mayer.
PER CURIAM
Plaintiff moved before the Family Part for an order granting her sole legal and physical custody of her minor son and for predicate findings for special immigrant juvenile (SIJ) status for him. That motion and a subsequent motion for reconsideration were denied. Because the Family Part judge erred in not entering a custody order and in not making the requisite findings, we reverse.
Plaintiff came to the United States from Guatemala in 2015. She left behind her eight-year-old son, Marty, to live with his paternal grandmother. Defendant, Marty's father, was killed in Guatemala in 2009. While Marty remained in his grandmother's care in Guatemala, plaintiff sent them money and spoke to Marty every day.
We use a pseudonym for the minor to protect his privacy. R. 1:38-3(18).
In 2020, plaintiff arranged for her son to come to New Jersey and live with her family-her partner and two daughters. Marty currently lives with plaintiff and her family and goes to school. Plaintiff and her partner are employed.
As stated, plaintiff sought a custody order for Marty and particularized findings as prerequisites for an application for SIJ Status with the United States Citizenship and Immigration Services (USCIS). Under 8 U.S.C. § 1101(a)(27)(J), an applicant for SIJ must petition the Family Part for an order setting forth its fact-findings on the following:
(1) The juvenile is under the age of 21 and is unmarried;
(2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;
(3) The "juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;
(4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and
(5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 [U.S.C.] § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by the Trafficking Victims Protections Reauthorization Act 2008].
[H.S.P. v. J.K., 223 N.J. 196, 210 (2015); see 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11.]
During the hearing on the motion, the judge asked plaintiff about her own immigration status and how her son arrived in the United States. Plaintiff answered the questions. She also explained that defendant was killed in Guatemala twelve years earlier and the paternal grandmother could no longer care for Marty because of her age and medical conditions. There were no other relatives in Guatemala who could look after the child. Plaintiff stated if Marty were returned to Guatemala, "he will be on the streets with no protection." She also stated in her supporting certification that the man who murdered defendant was never arrested for the crime and still lived in the town where she previously resided. She said he threatened her, causing her to leave the town and country for the United States.
In an oral decision, the Family Part judge discussed the five prongs. He found plaintiff could establish prongs one and three but not two and four. The judge did not make any determination regarding the fifth prong. Therefore, the court denied the request for predicate findings for the SIJ application. The court also denied plaintiff's application for a custody order.
In moving for reconsideration, plaintiff challenged the court's findings regarding the prongs; asserted the court failed to conduct the best interests analysis required under the fifth prong and exceeded its authority regarding the SIJ application.
On April 7, 2022, the court denied the motion for reconsideration and issued a written statement of reasons, reiterating its findings and reasoning from its prior oral opinion regarding the five SIJ prongs. The judge found the second prong was not satisfied because Marty was not in the custody of the state or of any individual or entity appointed by the state or a court.
The court also found plaintiff did not satisfy the fourth prong because Marty was in plaintiff's care and defendant's death twelve years earlier "d[id] not translate to abandonment." The court referred to the definition of "abandonment" under N.J.S.A. 9:6-1. Because defendant did not have care, custody, or control of Marty, he could not have abandoned the child. Since plaintiff could not establish two of the required prongs, the judge found he did not need to make a finding on the best interests of the child.
"[W]e give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 483-84 (1974)). Special deference is given to the Family Part's findings of fact because it has "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, the trial court's findings of fact are "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. We accord no deference to the trial court's legal conclusions. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, plaintiff asserts the trial court exceeded its limited role in the SIJ application process because the Family Part's duty is only to decide what is in the child's best interests and whether reunification is viable. She also contends the court was required to conduct a best interests analysis as a prong of the predicate SIJ findings regardless of its findings on the other prongs.
SIJ status permits a juvenile to apply for adjustment of status to obtain legal permanent residency and eventually United States citizenship. H.S.P., 223 N.J. at 210-11. SIJ children are not subject to certain admissibility requirements for permanent residency. Id. at 211. SIJ minors can obtain legal permanent resident status even if "they entered the country without inspection, do not hold an unexpired immigrant visa or other valid entry document, or have accrued more than 180 days of unlawful presence in the United States." Ibid.
"The process for obtaining SIJ status is 'a unique hybrid procedure that directs the collaboration of state and federal systems.'" Id. at 209 (quoting In re Marisol N.H., 979 N.Y.S.2d 643, 645 (N.Y.App.Div. 2014)). The H.S.P. Court noted that its "review of the legislative scheme relating to SIJ status demonstrates that the determination of whether a child should be classified as a special immigrant juvenile rests squarely with the federal government." Id. at 211. "The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child's best interests." Id. at 211-12 (citation omitted).
The Court emphasized that the Family Part does not have jurisdiction to approve or deny a SIJ application. Id. at 212. Rather, there is
a two-step process in which a state court makes predicate factual findings-soundly within its traditional concern for child welfare-relative to a juvenile's eligibility. The juvenile then presents the family court's factual findings to USCIS, which . . . makes the ultimate decision as to whether or not the juvenile's application for SIJ status should be granted.
[Ibid.]
"The Family Part's sole task is to apply New Jersey law in order to make the child welfare findings required by 8 C.F.R. § 204.11." Id. at 200.
H.S.P. "instructed] courts of the Family Part to make separate findings as to abuse, neglect, and abandonment with regard to both legal parents of an alien juvenile," and "[r]egardless of the outcome of that analysis, the court should next conduct the same analysis with regard to the child's other legal parent." Id. at 213. The purpose of this is to "ensure that USCIS will have sufficient information to apply 8 [U.S.C.] § 1101(a)[(27)(J)] as it sees fit when a juvenile subsequently submits the Family Part's order to USCIS in support of an application for SIJ status." Id. at 213-14. USCIS then "engages in a much broader inquiry than state courts." Id. at 212 (quoting Eddie E. v. Superior Court, 234 Cal.App.4th 319, 329 (2015)).
A Family Part judge must "make all of the federally-required findings, regardless of whether they believe that the juvenile should be declared dependent on the court or placed under the custody of an entity or individual." O.Y.P.C. v. J.C.P., 442 N.J.Super. 635, 641 (App. Div. 2015). And "[t]he trial court should not concern itself with whether the applicant filed the petition primarily to obtain legal immigration status for the juvenile, or whether the federal immigration authorities should or should not grant SIJ status." Id. at 642.
The Family Part judge did not comply with the guidelines enunciated under H.S.P. and O.Y.P.C. The judge must make predicate findings on all of the prongs including the best interests of the child-despite any conclusion that the applicant cannot satisfy one or more of the prongs. The court may not speculate as to immigration intent. Its limited province is to make the predicate fact findings.
We, therefore, remand to the court for an analysis and findings on each prong under 8 C.F.R. § 204.11(c). We provide some guidance towards that endeavor.
As the judge stated, Marty satisfies prong one. In turning to prong two, this court has stated that "a custody order would justify the court in noting, for purposes of an SIJ finding, that the child is 'dependent' on the court." A.E.C. v. P.S.C., 453 N.J.Super. 19, 29 (App. Div. 2018) (citing 8 C.F.R. § 204.11(c)).
In her original motion, plaintiff sought an order for custody under N.J.S.A. 9:2-3 and 9:2-4. On remand, the court shall consider that application and issue the appropriate order. In doing so, the court shall apply New Jersey law as it would in any other custody application. As the Court cautioned in H.S.P., the Family Part may not speculate on a petitioner's intent in filing for a custody petition and whether it "was filed 'primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence.'" 223 N.J. at 214 (citation omitted).
As the court stated, plaintiff satisfies the third prong. The Family Part has jurisdiction under state law to determine a juvenile's care and custody. And, in A.E.C., we noted that "[f]or purposes of an SIJ application filed in the Family Part, the answer to that general question [under 8 C.F.R. § 214.11(c)(3)] should always be 'yes' or 'granted.'" 453 N.J.Super. at 30.
Under the fourth prong, a court must determine whether "reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law." H.S.P., 223 N.J. at 210 (citation omitted). Plaintiff asserts Marty cannot be reunified with one of his parents because defendant died in 2009, "which effectively constitutes abandonment."
In addressing the fourth prong, the court concluded plaintiff could not meet the statutory requirements. Since Marty currently lived with his mother, reunification with her was viable. The judge then properly turned to the viability of Marty's reunification with his father. Using the definition of abandonment under N.J.S.A. 9:6-1, the judge found defendant's death did not satisfy the provision. Because defendant did not have care, custody, or control of Marty, he could not have abandoned him despite his death twelve years earlier.
Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control. N.J.S.A. 9:6-1.
The judge complied with H.S.P. and made separate findings as to both parents. Id. at 201. Because plaintiff is now taking care of Marty, reunification with her has occurred and is viable. However, the statute requires that reunification no longer be a viable option with at least one parent. The child may be reunited with one parent or other family members. See Policy Manual, Chapter 2 - Eligibility Requirements, U.S. Citizenship and Immigr. Servs. (Oct. 19, 2022), https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.
Therefore, the court must determine whether defendant abandoned Marty when defendant died in 2009 or if there is "a similar basis" to find there can be no viable reunification between defendant and his son.
We cannot disagree with the court's literal interpretation of the definition of "abandoned" as stated in N.J.S.A. 9:6-1. But we cannot think of a more permanent application of abandoning someone other than death. Defendant's death forecloses any chance of reunification with Marty. See H.S.P., 223 N.J. at 216 (stating "[i]t is equally clear that reunification with [the children's father], who is deceased, is not viable"). On remand, in making its finding under prong four, the court shall consider whether defendant's death is "a similar basis" to abuse, neglect or abandonment to preclude Marty's reunification with his father.
Finally, the court must determine whether "[i]t is not in the 'best interest' of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence." H.S.P., 223 N.J. at 210 (citation omitted). In making the finding, the court will consider plaintiff's evidence presented on this issue.
We reverse and remand for the court to consider the application for custody and to make the SIJ predicate findings in accordance with this opinion. We do not retain jurisdiction.