In the Matter of Tommy E.H. Silvia C., Appellant
134 A.D.3d 840
| N.Y. App. Div. | 2015Background
- In April 2014 the mother petitioned under Family Court Act article 6 seeking sole custody of her son, Tommy E. H., and specific findings needed to enable him to apply for Special Immigrant Juvenile Status (SIJS).
- Family Court initially awarded the mother sole custody in an order dated June 11, 2014, but in a subsequent order dated September 5, 2014 denied the mother’s motion for the SIJS-specific findings.
- The mother appealed the denial, asking the Appellate Division to issue the findings required by 8 U.S.C. § 1101(a)(27)(J) (SIJS): that the child is unmarried and under 21, legally committed to or under the custody of a court-appointed individual, reunification with a parent is not viable due to neglect/abandonment, and it is not in the child’s best interests to return to El Salvador.
- The Appellate Division conducted an independent factual review of the record, focusing on custody/commitment status, parental abandonment/neglect, and risk of returning to El Salvador.
- The Second Department reversed the Family Court, granted the mother’s motion, and made the SIJS findings: the child is unmarried and under 21; he has been legally committed to/placed under the custody of a court-appointed individual; reunification with a parent is not viable due to abandonment/neglect; and return to El Salvador would not be in his best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether child meets SIJS custody/commitment requirement | Mother: child is legally committed/placed under custody of court-appointed individual | Family Court: record insufficient to make SIJS custody finding | Held: child qualifies as legally committed/under custody of a state/juvenile court-appointed individual |
| Whether reunification with a parent is not viable due to neglect/abandonment | Mother: father’s neglect/abandonment makes reunification not viable | Family Court: insufficient proof of neglect/abandonment to support SIJS finding | Held: record supports finding that reunification with father is not viable due to neglect/abandonment |
| Whether return to El Salvador is not in child’s best interests | Mother: returning to El Salvador would harm child; not in his best interests | Family Court: insufficient evidence to find return would be contrary to child’s best interests | Held: returning to El Salvador would not be in the child’s best interests |
| Whether appellate court may make SIJS findings de novo | Mother: appellate court can independently review record and make necessary findings | Family Court: findings should remain; record did not support granting motion | Held: appellate court conducted independent factual review and made the SIJS findings itself |
Key Cases Cited
- Matter of Trudy-Ann W. v Joan W., 73 A.D.3d 793 (2d Dep’t 2010) (explains SIJS requirements including reunification and best-interest findings)
- Matter of Pineda v. Diaz, 127 A.D.3d 1203 (2d Dep’t 2015) (custody/commitment analysis under SIJS)
- Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d 619 (2d Dep’t 2013) (reunification not viable due to abandonment/neglect supports SIJS findings)
- Matter of Mohamed B., 83 A.D.3d 829 (2d Dep’t 2011) (standard for parental neglect/abandonment in SIJS context)
- Matter of Miguel A.G.G. v. Milton N.G.G., 127 A.D.3d 858 (2d Dep’t 2015) (best-interest-to-return analysis for SIJS)
- Matter of Marisol N.H., 115 A.D.3d 185 (2d Dep’t 2014) (factors relevant to best-interest determination in SIJS cases)
- Diaz v. Munoz, 118 A.D.3d 989 (2d Dep’t 2014) (appellate review and SIJS-related findings)
- Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100 (2d Dep’t 2013) (SIJS determinations and prerequisites)