Special Status Could Spare 19-Year-Old From Deportation

, New York Law Journal

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A 19-year-old woman who entered the country illegally could be spared deportation due to a state court's interpretation of a federal immigration law.

The Appellate Division, Second Department, rejected the findings of the highest court in Nebraska by making a literal reading of the Immigration and Nationality Act and concluding that when reunification with either parent is not viable, a young alien is eligible for Special Immigrant Juvenile Status (SIJS).

Under the law, individuals who are under the age of 21, unmarried and dependent on a juvenile or family court can be awarded permanent resident status if an administrative or judicial proceeding determines it would not be in the immigrant's best interests to be returned to their native country.

In this case, Matter of Marcelina M.-G v. Israel S., 2013 NY Slip Op 06868, the young woman, Susy, has been reunited with her mother in New York. But the Second Department said the prospect of her being sent back to Honduras to a father with whom she has never lived and an abusive aunt militates in favor of special immigrant status.

"Contrary to Family Court's determination, the fact that the mother was available as a custodial resource for Susy does not, by itself, preclude the special findings under the SIJS statute," the court said in an opinion by Justice Sheri Roman (See Profile).

Susy, was born in 1994 in Honduras, where she lived with her mother, but had virtually no contact with her father, with whom she has never lived and whose last name she does not even know, according to the decision.

Around 2004, the mother, Marcelina left Susy and her half brother with an aunt and came to the United States to work. The aunt was physically and mentally abusive, and the children arranged with "coyotes" to be smuggled across the border. However, the children were caught and placed in a foster home in Texas until an uncle in Westchester County brought them to his home.

The uncle, Francisco, filed a petition to be appointed guardian of the two children, and around the same time Susy petitioned for SIJS status. Susy's mother initially supported Francisco's application for guardianship, but later filed a custody petition. Francisco withdrew his petition for guardianship.

Westchester County Family Court Judge David Klein (See Profile) granted the mother's petition for sole custody, but refused to issue a special findings order that would have made Susy eligible for SIJS consideration. Susy and her mother appealed the SIJS issue.

The Second Department's ruling centered on statutory language that says that in order for an individual to be eligible for SIJS, a court must conclude that "reunification with one or both of the immigrant's parents is not viable" due to abuse, neglect or abandonment.

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