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Viewing entries tagged
special immigrant juvenile status
The Third Circuit has determined that a Special Immigrant Juvenile is paroled for adjustment purposes only, and is still properly found removable for being present without admission or parole.
The full text of Cortez-Amador v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/221249p.pdf
The California Supreme Court has published a decision addressing the standards for obtaining a Special Immigrant Juvenile Status (SIJS) predicate order.
First, the Court noted that the applicant must prove the applicability of SIJS findings by a preponderance of the evidence.
Second, the Court reiterated that a child’s declaration can be enough to meet that burden. “Superior courts may not ignore or discredit facts shown by a child’s declaration based on surmise or on evidence outside the record or draw speculative inferences against the child.”
Third, the Court laid out factors for consideration in determining whether reunification with a parent is viable. “In making this inquiry, courts should consider all relevant circumstances, including the ongoing psychological and emotional impact on the child of the past relations between the child and the parent, how forced reunification would affect the child’s welfare, the parent’s ability and willingness to protect and care for the child, and the parent’s living conditions.” “The fact that harm to the child is attributable to a parent’s poverty does not preclude a court from determining that reunification with the parent is not viable.”
Fourth, the Court disagreed with the lower courts’ determination that abandonment and neglect for SIJS purposes requires the parent to intend to abandon or neglect the child. “Family Code section 3402, part of California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, defines ‘abandoned’ as ‘left without provision for reasonable and necessary care or supervision.’ And Welfare and Institutions Code section 300, subdivision (g) provides a laundry list of ways in which a child may be deemed abandoned for the purposes of establishing dependency jurisdiction, among them when a child is ‘left without any provision for support.’ Neither of these definitions requires a showing that the parent intended to abandon the child.”
Fifth, the Court addressed what other factors might amount to a “similar basis” to abuse, neglect, or abandonment for a nonviability determination. Among those factors are a parent’s inability to supervise or protect a child, and whether this inability poses a substantial risk that the child will suffer serious physical harm or illness. “To the extent it is more common for parents in El Salvador to be unable to protect their children from gang violence than it is for parents in California, that is an improper basis for concluding that Saul has failed to show that reunification with his parents is nonviable due to their inability to adequately protect him from ‘a substantial risk’ of ‘serious physical harm.’”
Sixth, the Court addressed the “best interest” determination. “The best interest determination is distinct from the nonviability of reunification determination in that the court’s focus is not on the relationship between the child and the child’s parent. Instead, the best interest determination focuses on the effects of sending children back to live in their home countries. The court’s inquiry involves a case-specific, holistic comparison of the child’s circumstances in California to the circumstances in which the child would live if repatriated, including the capacities of current or potential caregivers — who may or may not be the child’s parents — in each location.” “[A] court should make a holistic comparison between circumstances affecting the child’s health, safety, and welfare in California and in the child’s home country, giving special consideration, where appropriate, to the child’s wishes.”
The full text of Guardianship of Saul H. can be found here:
The California Court of Appeals has determined that if a petitioner meets her burden of proving the requirements for a Special Immigrant Juvenile Status predicate order, there is a mandatory on the court to issue the findings.
The full text of Matter of Scarlett V. can be found here:
The Board of Immigration Appeals has confirmed that INA section 245(h)(2)(B) can be used to waive inadmissibility related to a single offense of possession of less than 30 grams of marijuana. The Board indicated that the circumstance specific approach should be used to determine the amount of marijuana at issue.
The full text of Matter of Moradel can be found here:
The Ninth Circuit has issued an en banc decision finding that an Immigration Judge has the obligation to advise an individual in removal proceedings about potential eligibility for Special Immigrant Juvenile Status (SIJS) if eligibility for that relief is apparent. The court found that statements in the record that the minor had not had contact with his father for many years raised the inference that reunification with his father is not viable due to abandonment, and the death threats he received from the gang members raised the inference that it was not in the minor’s best interest to return to Honduras.
The en banc court also strongly suggested that a judge should grant a continuance for a minor to pursue SIJS when the child is “actively pursuing” the state-court order.
The court declined to address whether a minor in removal proceedings has a constitutional right to counsel, as the minor in this case obtained counsel in future administrative proceedings.
This en banc decision differs significantly from the original panel decision in this case, which conclusively determined that no such right exists, and also held that the the judge was not required to advise the minor about SIJS because hd did not yet have a predicate order from the state court. The en banc court stated that to require a minor to have already obtained a predicate order before requiring a judge to judge to advise about the possibility of SIJS relief “would eviscerate the utility of advice by the IJ and substantially undermine the core purpose of the IJ’s duty to advise—to inform a minor of rights and avenues of relief of which he may not yet be aware.”
The full text of C.J.L.G. v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/03/16-73801.pdf
The original panel decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/29/16-73801.pdf
The California Supreme Court has determined that a child’s nonresident, noncustodial parent need not be joined as a party in her parentage action seeking special immigrant juvenile findings. Provided that the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. In addition, any perceived immigration-related motivations for the filing of the parentage action have on bearing on whether the action may proceed. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.
“Ultimately we need not decide here whether the courts’ concerns about prejudice would justify Jorge’s joinder as a necessary party if it were feasible to join him. We instead assume, without deciding, that Jorge is a necessary party as to the SIJ finding of abandonment. Because Jorge’s joinder is not feasible, the central question under the mandatory joinder statute is whether the court can, “in equity and good conscience,” make the finding in Jorge’s absence. Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge’s absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge’s absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (Code Civ. Proc., § 389, subd. (b).)”
“To conclude that the state court finding cannot be made in Jorge’s absence is therefore effectively to say that Jorge, by failing to assert any right to custody or visitation of Bianka in this proceeding, can essentially bar Bianka from seeking relief premised on the very fact of his abandonment. While the potential prejudice to Jorge is, at this point, necessarily speculative, the prejudice to Bianka’s legal position is immediate and unavoidable. “
The full text of Bianka M. v. The Superior Court of Los Angeles County can be found here:
The Third Circuit has determined that the jurisdiction-stripping provision of the INA operates as an unconstitutional suspension of the writ of habeas corpus as applied to Special Immigrant Juvenile (SIJ) designees seeking judicial review of orders of expedited removal. "Because SIJ status reflects Petitioners’ significant ties to this country and Congress’s determination that such aliens should be accorded important statutory and procedural protections, Petitioners are entitled to invoke the Suspension Clause and petition the federal courts for a writ of habeas corpus. We further conclude that because the expedited removal regime does not provide an adequate substitute process, the INA’s jurisdiction-stripping provisions effect an unconstitutional suspension of the writ as applied to Petitioners."
The court recognized that SIJ designees enjoy certain statutory rights. "Yet revocation of these statutory rights without cause, notice, or judicial review is precisely the consequence of expedited removal. Despite their SIJ classification, the children, once removed, would be unable to adjust status because doing so requires physical presence within the United States, and further, they would be barred from reentry for at least five years. Moreover, Petitioners’ expedited removal would be based on a ground for inadmissibility—lack of valid immigration documentation—from which Petitioners are expressly exempted by virtue of their SIJ status. In short, expedited removal would render SIJ status a nullity."
The full text of Osorio-Martinez v. Attorney General can be found here:
