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Immigration & Custody

Apr 3, 2018 | Written by: Diana N. Fredericks, Esq. |

Immigration status may have a significant impact on decisions affecting custody.

In a recent case[i], the Appellate Division in New Jersey addressed a brother seeking custody of his younger brother as a predicate to obtaining special immigrant juvenile status. 

Nick and Oliver[ii] live in New Jersey and their parents live in Guatemala.  Nick moved to New Jersey as an undocumented immigrant in 2006, and Oliver has been living with his brother since he crossed the border illegally in 2015 at age sixteen.  

During the trial, both Nick and Oliver described life in Guatemala.  Oliver was required to work since age six to help support the family.  He was not permitted to play or go to school, even as a young child, due to the family’s fear of being kicked out of their home.  Once in the USA, Oliver was able to obtain a GED. 

If he were forced to return to Guatemala, Oliver would have no place to live and no familial support. 

Regardless of these facts, the trial court determined that their mother had neither abused, neglected, or abandoned Oliver and that it was not in Oliver’s best interests to be placed in the custody of his brother, an undocumented immigrant, because if he were deported, Oliver would be left alone in the USA. 

On appeal, Nick contended the trial court erred in determining that their mother had neither abused, neglected nor abandoned Oliver.  The Appellate Court agreed.

To obtain Special Immigrant Juvenile (SIJ) status, either the subject juvenile or an adult acting on his behalf "must first petition for 'an order from a state juvenile court [to] mak[e] findings that the juvenile satisfies certain criteria.'"  H.S.P., 223 N.J. at 210 (citation omitted).   Those criteria, enumerated in 8 C.F.R. § 204.11(c), are: (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. § 4.11(a), (d)(2)(iii) [amended by TVPRA 2008]. 

After a State court has made and placed these five findings into an order, the juvenile may submit a petition, attaching the State court's order, to the United States Citizenship and Immigration Services (USCIS) for SIJ status.  The State court's findings are necessary for the USCIS to determine if a juvenile is entitled to such status.  If the USCIS approves the juvenile's petition, he is awarded SIJ status.  Id. at 210 (citing Perez-Olano v. Gonzalez, 248 F.R.D. 248, 254 (C.D. Cal. 2008)).  Significantly, when addressing the five factors, the law of the State is to be applied.  H.S.P., 223 N.J. at 215.  "[T]he SIJ evidence must be viewed through the lens of New Jersey law, not the law of the juvenile's country of origin."  O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 641 (App. Div. 2015).  Further, a State court 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."  Ibid.

The Appellate Division reversed and remanded, finding that under New Jersey law, neglect of a child includes willfully failing to provide a child with a regular school education.  The Appellate Court also found that the trial court erred in denying custody to Nick because he was an illegal alien.  There was no evidence that deportation was imminent.  In fact, Nick had already taken action to become a lawfully-present alien.  As such, the court found that the decision to make Nick ineligible to take custody of Oliver because of his undocumented immigrant status was unfounded.  The Trial Court was Ordered to conduct the appropriate and thorough hearing within 45 days.


[ii] All names have been changed and are fictitious. 


Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters.  She is a Certified Matrimonial Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, and 2018, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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