Marcelina M.-G. v. Israel S.
112 A.D.3d 100
| N.Y. App. Div. | 2013Background
- Susy M.-G., born 1994 in Honduras, lived with her mother who later left for the United States; Susy and her younger brother Jason were abandoned and placed with relatives after fleeing abusive conditions in Honduras.
- Susy lived with Estella, who was abusive and neglected Susy, and Susy’s father Israel was absent and allegedly abusive; Susy asserts no meaningful contact or support from him.
- Susy and Jason traveled to the United States in 2008 with smugglers; Susy was detained and placed in care before ultimately living with her uncle Francisco in New York.
- In 2009 Francisco petitioned to be Susy’s guardian; Susy sought a state court order for SIJS findings to apply for SIJS with USCIS.
- In 2011 the Family Court granted custody to Susy’s mother and denied Susy’s motion for a SIJS findings order, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SIJS eligibility requires nonviability of reunification with one or both parents. | Susy argues “1 or both” requires nonviability with at least one parent. | Family Court interpreted “1 or both” to require nonviability with both parents. | The court adopts nonviability with one parent as sufficient. |
| Whether custody by a fit parent defeats SIJS predicate findings where one parent is absent. | Susy asserts custody by mother should not bar SIJS findings since one parent is nonviable. | Custody to a fit parent could undermine eligibility. | Custody by a parent does not by itself preclude SIJS findings; one nonviable parent suffices. |
| Whether the best interests and nonviability evidence support SIJS order. | Record shows abuse/neglect by Estella and abandonment by father; SIJS findings warranted. | Record does not clearly establish nonviability to a sufficient degree. | The record supports nonviability and best interests favor remaining in the United States. |
Key Cases Cited
- Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008) (SIJS predicate order; federal determination rests with USCIS)
- Matter of Hei Ting C., 109 A.D.3d 100 (N.Y. App. Div. 2013) (defines SIJS eligible recipients and placement considerations)
- Matter of Mario S., 38 Misc.3d 444 (Fam. Ct. Queens Cty. 2012) (clarifies statutory scope and guardian-custody context for SIJS)
- Yeboah v United States Dept. of Justice, 345 F.3d 216 (3d Cir. 2003) (legislative history and interpretation of SIJS provisions)