In re Mario S.
38 Misc. 3d 444
| N.Y. Fam. Ct. | 2012Background
- Mario S. is a Mexican-born, unmarried, under-21 juvenile delinquent living in New York; he seeks SIJ eligibility under 8 U.S.C. § 1101(a)(27)(J).
- Filed petition under Family Court Act § 310.1(1) alleging juvenile delinquency with acts that would be criminal if adult, leading to placement under state custody.
- Respondent admitted to possession of graffiti instruments; court adjudicated him delinquent and imposed 12-month probation with conditions including school, community service, and avoidance of further arrests.
- A petition alleging probation violations led to revocation of probation and placement with OCFS, ultimately Lincoln Hall for confinement/treatment; discharge occurred August 25, 2011.
- Motion for SIJ findings was filed July 11, 2011 while Mario remained under the placement order and in state custody; the court was asked to determine age, dependency, lack of reunification with parents due to abuse/neglect/abandonment, and best interests against return to Mexico.
- Court grants motion for SIJ findings, determining Mario is under 21, unmarried, dependent on state court, reunification not viable with father due to abandonment, and return to Mexico not in his best interests; order supplements prior SIJ findings and authorizes presentation to USCIS
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mario satisfies the SIJ eligibility requirements | Mario's petition shows dependency and abandonment per state law; reunification not viable; best interests favor remaining in U.S. | USCIS interpretation requires additional reunification proof and long-term foster care eligibility; Nebraska standard not binding here | Yes; Mario eligible for SIJ findings and the court grants requisite findings |
| Whether reunification with at least one parent is not viable due to abuse/neglect/abandonment | Father abandoned Mario; reunification with him not viable; continued care in U.S. appropriate | Abandonment by one parent does not automatically preclude reunification with the other without more, per some authorities | Not viable; abandonment by father supports non-viability of reunification |
| Scope of state court role in SIJ findings | State court must determine age, dependency, and non-viability of reunification and best interests; no need to pre-screen for USCIS outcomes | Nebraska Erick M. would limit court to those findings and require additional procedures | Limited to statutory findings; court need not pre-screen for USCIS considerations |
Key Cases Cited
- In re J.J.X.C., 318 Ga App 420, 734 SE2d 120 (Ga App 2012) (defined current SIJ eligibility framework for state courts)
- Erick M., 284 Neb 340, 820 NW2d 639 (Neb. 2012) (Nebraska view on reunification component under SIJ)
- Yeboah v United States Dept. of Justice, 345 F3d 216 (3d Cir. 2003) (SIJ context and congressional intent)
- M.B. v Quarantillo, 301 F.3d 109 (3d Cir. 2002) (SIJ procedural considerations Apostrophes)
- Garcia v Holder, 659 F3d 1261 (9th Cir. 2011) (SIJ as gateway to permanent residency)
- Trudy-Ann W. v Joan W., 73 AD3d 793 (1st Dep't 2010) (SIJ findings and state court role)
- Jisun L. v Young Sun P., 75 AD3d 510 (1st Dep't 2010) (state court findings for SIJ eligibility)
- Matter of Emma M., 74 AD3d 968 (2d Dep't 2010) (standards for SIJ-related findings)