H.S.P. v. J.K.(074241)/k.G. v. M.S.(074527)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
H.S.P. v. J.K. (A-114-13) (074241)
K.G. v. M.S. (Deceased) (A-117-13) (074527)
Argued April 14, 2015 -- Decided August 26, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In these appeals, the Court examines the role of New Jersey state courts, pursuant to 8 U.S.C.A. §
1101(a)(27)(J) and its implementing regulation, 8 C.F.R. § 204.11, in making the predicate findings necessary for a
non-citizen child to apply for “special immigrant juvenile” (SIJ) status, which is a form of immigration relief
permitting alien children to obtain lawful permanent residency and, eventually, citizenship, under the Immigration
Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA).
M.S., who was born in India in 1994, entered the United States without proper documentation in July 2011.
In India, M.S. resided with his mother, J.K., after the family was abandoned by M.S.’s father when M.S. was four
years old. When M.S. was fifteen, J.K. became ill and could no longer work. M.S. took a job as a construction
worker, working approximately seventy-five hours per week and developing a skin condition and back problems.
Fearing that M.S. would die if he remained in India, J.K. arranged for him to travel to the United State to live with
her brother, petitioner H.S.P. Since arriving in the United States, M.S. has remained in close contact with his
mother via weekly telephone calls.
In May 2012, H.S.P. filed a petition in the Family Part requesting that he be granted custody of M.S. and
that the court issue a predicate order, pursuant to 8 U.S.C.A. § 1101(a)(27)(J) and its implementing regulation, 8
C.F.R. § 204.11, finding that M.S. meets the statutory requirements to be a special immigrant juvenile. Specifically,
H.S.P. asked that, under the statute, the court find that reunification with “1 or both” of M.S.’s parents was not
viable due to abuse, neglect, or abandonment and that returning to India would not be in M.S’s best interests,
allowing M.S. to then apply to the United States Citizenship and Immigration Services (USCIS) for SIJ status.
Although the court awarded temporary custody to H.S.P., it did not find that either of M.S.’s parents had willfully
abandoned him and, consequently, did not reach the question of his best interests. H.S.P. appealed, and, in a
published decision, the Appellate Division affirmed. H.S.P. v. J.K., 435 N.J. Super. 147 (App. Div. 2013). The
panel agreed that M.S. was not abandoned or neglected by J.K because, although permitting a child to be employed
in a dangerous activity constitutes abuse under New Jersey law, it did not contravene the laws of India. The panel
also affirmed the trial court’s refusal to make a best interests finding. This Court granted H.S.P.’s petition for
certification. 218 N.J. 532 (2014).
J.S.G., born in 1998, and K.S.G., born in 2001, are the biological daughters of K.G. (their mother) and M.S.
(their father), natives of El Salvador. After separating from M.S. in 2008, K.G. came to the United States, although
she remained in near-daily contact with her daughters and sent money for their support. M.S. was murdered in
2013, and the children were cared for by M.S.’s mother, who K.G. believed may have been physically abusing the
girls. Shortly after M.S.’s death, a threat was made on his mother’s life, as well as the lives of J.S.G. and K.S.G.
K.G. arranged for her daughters to come to the United States, but they were apprehended by immigration
enforcement agents when crossing at the United States-Mexican border. Removal proceedings commenced,
although the girls ultimately went to live with their mother in Elizabeth. In March 2014, K.G. filed a complaint in
the Family Part seeking custody of her daughters and requesting that the court make the predicate findings to permit
them to apply for SIJ status.
The court granted K.G.’s application for custody. It also found that reunification with M.S. was not viable
because he was deceased, and that it was not in the children’s best interests to return to El Salvador because no
family member could care for them there. However, the court determined that reunification with K.G. was viable,
and that there was no basis under state law to suggest she had abused, neglected, or abandoned her daughters. Based
on that determination, and in reliance on the Appellate Division’s decision in H.S.P., the court denied the children’s
application for SIJ status. This Court granted K.G.’s motion for direct certification. 220 N.J. 493 (2014).
HELD: When faced with a request for an SIJ predicate order, the Family Part’s sole task is to apply New Jersey
law to make factual findings with regard to each of the requirements listed in 8 C.F.R. § 204.11. The Family Part
does not have jurisdiction to grant or deny applications for immigration relief.
1. The 1952 Immigration and Nationality Act (INA), 8 U.S.C.A. §§ 1101-1537, is the cornerstone of United States
immigration law and includes protections for abused, neglected, or abandoned children who illegally entered the
United States. In accordance with 8 U.S.C.A. § 1101(a)(27)(J), an undocumented minor immigrant is eligible for
classification as a “special immigrant juvenile,” which affords the minor relief from deportation and the opportunity
to apply for permanent residency. The SIJ scheme was most recently amended in 2008 with the enactment of the
TVPRA, which inserted language requiring that the child not be able to reunify with “1 or both” parents because of
“abuse, neglect, abandonment, or a similar basis” under state law. 8 U.S.C.A. § 1101(a)(27)(J)(i). The current
iteration of the statute also requires a finding that it would not be in the juvenile’s best interest to be returned to his
or her previous country of nationality. 8 U.S.C.A. § 1101(a)(27)(J)(ii). The process for obtaining SIJ status is a
unique, two-step, hybrid procedure involving both state and federal systems. Specifically, the child, or an individual
acting on his or her behalf, must first petition a state juvenile court for an order making findings that the child
satisfies certain criteria, including the requirements contained in 8 U.S.C.A. § 1101(a)(27)(J)(i) and (ii) and 8 C.F.R
§ 204.11. This predicate order is not an immigration determination, but merely a prerequisite that must be fulfilled
prior to the second step of the process, which is submission of the application for SIJ status to USCIS. (pp. 16-20)
2. The legislative scheme relating to SIJ status demonstrates that the determination of whether a child should be
classified as a special immigrant juvenile rests squarely with the federal government. Congress opted to rely on
state courts as the appropriate forum for making initial factual findings because of their special expertise in making
abuse and neglect determinations, evaluating the best interest factors, and ensuring appropriate custodial
arrangements. However, there can be no legitimate argument that a New Jersey family court has jurisdiction to
approve or deny a child’s application for SIJ status. Rather, pursuant to the SIJ statute, a state court makes predicate
factual findings relative to a juvenile’s eligibility, and the juvenile then presents those findings to USCIS, which
makes the ultimate decision as to whether or not the application for SIJ status should be granted. This comports
with the well-established rule that the regulation of immigration is exclusively a federal power. (pp. 20-22)
3. The Family Part, when performing its closely circumscribed task of making specified predicate factual findings,
is required to apply New Jersey law, and not that of a foreign nation. This conclusion is supported by the plain
language of 8 U.S.C.A. § 1101(a)(27)(J)(i), which requires a petitioner to show that reunification with “1 or both of
the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law.” In
light of the limited role played by the New Jersey Family Part in SIJ proceedings, the Court declines to interpret the
“1 or both” language of the statute, finding that such a task is exclusively the province of the federal government.
However, in order to ensure that factual findings issued by New Jersey courts provide USCIS with the information
required to determine whether a given alien satisfies the eligibility criteria for SIJ status, the Court instructs courts of
the Family Part to make separate findings as to abuse, neglect, and abandonment with regard to both legal parents of
an alien juvenile. Finally, the determination of whether an immigrant’s purpose in applying for SIJ status matches
with Congress’s intent in creating that avenue of relief is properly left to the federal government. (pp. 22-25)
4. While reviewing courts give deference to a trial court’s factual findings, no deference is owed to legal
conclusions drawn by the trial court. With respect to the specific facts of H.S.P., the Court reverses and remands
that aspect of the Appellate Division judgment finding that M.S.’s employment did not constitute abuse or neglect
because H.S.P. failed to demonstrate that it was contrary to the laws of India. The Family Part is instructed to
conduct an analysis, under New Jersey law, of whether reunification with each of M.S.’s legal parents is viable due
to abuse, neglect or abandonment, in addition to making the other required findings under 8 C.F.R. § 204.11. With
respect to K.G., the Court concludes that the trial court’s factual determinations were supported by competent,
credible evidence. However, the trial court erred in purporting to deny K.S.G.’s and J.S.G.’s applications for SIJ
status. That determination is reversed and remanded, with instructions to the Family Part to make findings regarding
each element of 8 C.F.R § 204.11, mindful that its sole purpose is to make those factual findings and not to
adjudicate the children’s applications for SIJ status. (pp. 26-28)
The judgment of the Appellate Division in H.S.P. is REVERSED and the matter is REMANDED to the
Family Part for a new hearing conducted in accordance with this decision. The judgment of the trial court in K.G. is
likewise REVERSED and REMANDED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON join in
JUDGE CUFF’s opinion. CHIEF JUSTICE RABNER did not participate.
2
SUPREME COURT OF NEW JERSEY
A-114 September Term 2013
A-117 September Term 2013
074241 and 074527
H.S.P.,
Plaintiff-Appellant,
v.
J.K.,
Defendant.
K.G.,
Plaintiff-Appellant,
v.
M.S. (DECEASED),
Defendant.
IN THE MATTER OF J.S.G.
AND K.S.G. (MINORS)
Argued April 14, 2015 – Decided August 26, 2015
H.S.P. v. J.K. (A-114-13): On certification
to the Superior Court, Appellate Division,
whose opinion is reported at 435 N.J. Super.
147 (App. Div. 2014).
K.G. v. M.S. (A-117-13): On appeal from the
Superior Court, Chancery Division, Union
County.
Francis X. Geier argued the cause for
appellant in H.S.P. v. J.K. (Lowenstein
1
Sandler, attorneys; Mr. Geier and Melinda M.
Basaran on the brief).
Randi S. Mandelbaum argued the cause for
amici curiae Ms. Mandelbaum, Farrin Anello,
Jenny-Brooke Condon, Anne E. Freedman,
Joanne Gottesman, Anjum Gupta, Kevin B.
Kelly, Solangel Maldonado, Jessica Miles,
Kimberly M. Mutcherson, Lori A. Nessel,
Meredith Schalick, Sandra Simkins, and Carol
A. Wood in H.S.P v. J.K. (Ms. Mandelbaum,
Ms. Gottesman, Ms. Schalick, and Sarah
Koloski Regina on the brief).
A. Matthew Boxer argued the cause for
amici curiae American Friends Service
Committee, Kids in Need of Defense, and The
Young Center for Immigrant Children’s Rights
in H.S.P. v. J.K. (Lowenstein Sandler,
attorneys; Mr. Boxer, Catherine Weiss, Eric
Jesse, and Kathryn S. Pearson on the brief).
Randi S. Mandelbaum argued the cause for
appellant in K.G. v. M.S. (Ms. Mandelbaum
and Sarah Koloski Regina on the brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In this appeal, we examine the role of our state courts in
making the predicate findings necessary for a non-citizen child
to apply for “special immigrant juvenile” (SIJ) status under the
Immigration Act of 1990, as amended by the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA), Pub. L. No. 110-457, 122 Stat. 5044. SIJ status is a
form of immigration relief permitting alien children to obtain
lawful permanent residency and, eventually, citizenship. To
obtain SIJ status, a juvenile must complete a two-step process:
2
first, the juvenile must apply to a state court for a predicate
order finding that he or she meets the statutory requirements;
second, he or she must submit a petition to United States
Citizenship and Immigration Services (USCIS) demonstrating his
or her statutory eligibility. 8 C.F.R. § 204.111 details the
findings that must be made by a juvenile court before an alien’s
application for SIJ status will be considered by USCIS: in
addition to a series of factual requirements, the juvenile must
demonstrate that reunification with “1 or both” of his or her
parents is not viable due to abuse, neglect, or abandonment.
The court is then required to determine whether it is in the
juvenile’s best interests to return to his or her home country.
The Family Part plays a critical role in a minor
immigrant’s attempt to obtain SIJ status but that role is
closely circumscribed. The Family Part’s sole task is to apply
New Jersey law in order to make the child welfare findings
required by 8 C.F.R. § 204.11. The Family Part does not have
jurisdiction to grant or deny applications for immigration
relief. That responsibility remains squarely in the hands of
the federal government. Nor does it have the jurisdiction to
1The full citation for this regulation is: Special immigrant
status for certain aliens declared dependent on a juvenile court
(special immigrant juvenile), 8 C.F.R. § 204.11 (2014). For the
sake of brevity, we refer to this regulation as 8 C.F.R. §
204.11.
3
interpret federal immigration statutes. The Family Part’s role
in the SIJ process is solely to apply its expertise in family
and child welfare matters to the issues raised in 8 C.F.R. §
204.11, regardless of its view as to the position likely to be
taken by the federal agency or whether the minor has met the
requirements for SIJ status. To that end, Family Part courts
faced with a request for an SIJ predicate order should make
factual findings with regard to each of the requirements listed
in 8 C.F.R. § 204.11. When analyzing whether reunification with
“1 or both” parents is not viable due to abuse, neglect, or
abandonment, the Family Part shall make separate findings as to
each parent, and that determination shall be made by applying
the law of this state. This approach will provide USCIS with
sufficient information to enable it to determine whether SIJ
status should be granted or denied, in accordance with the
statutory interpretation of the SIJ provision applied by that
agency.
Accordingly, we reverse the Appellate Division’s decision
in H.S.P. and the Family Part’s decision in K.G. Both failed to
address all of the requirements identified in 8 C.F.R. 204.11.
The panel in H.S.P. also improperly applied the law of the
child’s country of origin rather than the law of this state to
address whether the juvenile had been abused, neglected, or
4
abandoned in his or her home country. We remand both cases for
further findings consistent with this opinion.
I.
A.
M.S., born in India on December 14, 1994, entered the
United States without proper documentation in July 2011. Since
then, he has resided with his uncle, petitioner H.S.P., and
H.S.P.’s family in Passaic County. Prior to coming to the
United States, M.S. resided with his mother, respondent J.K.,
and two older siblings. M.S.’s father abandoned the family when
M.S. was four years old. M.S.’s siblings both died of unknown
causes when each was seventeen years old. M.S. believes that
their deaths resulted from malnourishment, unsanitary living
conditions, the unavailability of medical care, and heart
problems. When M.S. was fifteen, J.K. became ill and was unable
to work. M.S. and J.K. moved in with J.K.’s mother, and M.S.
stopped attending school and took a job as a construction
worker. M.S. worked approximately seventy-five hours a week at
a construction site located more than two miles from the family
home. The work caused M.S. to develop a skin condition and
occasional back problems.
At some point, M.S. became ill. J.K. feared that he would
die if he remained in India. She arranged for him to travel to
the United States to live with her brother, H.S.P. M.S. entered
5
the United States by walking across the United States-Mexico
border in July 2011. Since arriving in the United States, M.S.
has not had any health problems. He and J.K. remain in close
contact via weekly telephone calls.
In May 2012, H.S.P. filed a petition in the Family Part
requesting that he be granted custody of M.S. The petition
identified J.K. as the respondent; however, in actuality, the
two acted in concert to bring the petition. H.S.P. also
requested that the Family Part make the required findings to
classify M.S. as a special immigrant juvenile under 8 U.S.C.A. §
1101(a)(27)(J) and its implementing regulation, 8 C.F.R. §
204.11.
The Family Part conducted a custody hearing on September
27, 2012. The trial court awarded temporary custody of M.S. to
H.S.P. Turning to the SIJ predicate findings, the court
concluded that neither parent had “abandoned” M.S. It reasoned
that “abandonment” required an affirmative act by a parent
willfully forsaking the obligations owed to his or her child.
The trial court credited testimony suggesting that M.S.’s father
was an alcoholic or a drug addict, but determined that the
evidence of record was insufficient to establish that he had
willfully abandoned his son. Moreover, the trial court found
that J.K. had not abandoned M.S. In contrast, J.K. remained
actively involved in M.S.’s life. J.K.’s concern for M.S.’s
6
best interests was evidenced by her decision to send M.S. to the
United States and assist H.S.P. in attaining custody of her son.
Because it did not find that M.S. had been abandoned or
neglected, the court did not reach the question of whether it
would be in his best interests to remain in the United States or
be returned to India.
H.S.P. appealed. The Appellate Division affirmed the trial
court’s determination that M.S. was not abandoned or neglected
by J.K., finding that she was financially unable to provide
better care. H.S.P. v. J.K., 435 N.J. Super. 147, 159, 171
(App. Div. 2013). The panel noted that permitting a child to be
employed in a dangerous activity constitutes abuse under New
Jersey law, but found that petitioner failed to demonstrate that
M.S.’s employment contravened the laws of India. Id. at 160.
The panel reversed the trial court’s finding with regard to
abandonment by M.S.’s father, finding that a “total disregard of
parental duties” was sufficient to constitute abandonment. Id.
at 171. Despite that finding, the panel affirmed the trial
court’s refusal to make a best interests finding pursuant to 8
U.S.C.A. § 1101(a)(27)(J)(ii). Ibid. The panel held that
petitioner was not entitled to such a finding because he had not
demonstrated that reunification with “neither” parent was viable
due to abuse, neglect, or abandonment. Id. at 166.
7
This Court granted H.S.P.’s petition for certification.
218 N.J. 532 (2014). We also permitted the American Friends
Service Committee (AFSC), Kids in Need of Defense (KIND), the
Young Center for Immigrant Children’s Rights (YCICR), and, in
their individual capacities, numerous New Jersey law school
professors specializing in family and immigration law, to appear
as amici curiae.
B.
J.S.G., born December 1, 1998, and K.S.G., born April 30,
2001, are the biological daughters of K.G. (their mother) and
M.S. (their father). K.G. and M.S., who are natives of El
Salvador, married in 1998 and lived together in their home
country for approximately ten years before separating. In
January 2008, K.G. left El Salvador to come to the United
States. J.S.G. and K.S.G. remained in El Salvador under the
care of their father and his mother. After K.G.’s departure,
she and her daughters remained in near-daily contact through
telephone and video-conference calls. K.G. frequently sent
money to M.S. for the care and support of J.S.G. and K.S.G.
M.S. was murdered by members of a local gang on April 13,
2013. His family believes that he was killed because he refused
to pay a fee demanded by the gang. After his death, the
children remained in the care of M.S.’s mother. At some point,
during a video-conference with J.S.G. and K.S.G., K.G. observed
8
bruises on K.S.G.’s face. This caused K.G. to believe that
M.S.’s mother was physically abusing the girls. M.S.’s death
was not the family’s first interaction with gang violence. In
summer 2012, when J.S.G. was twelve years old, she was raped by
an acquaintance. She identified him as a member of the “18”2
gang based on his piercings, tattoos, and hairstyle. At some
point after the rape -- which she did not reveal to her mother
until after arriving in the United States -- J.S.G. attempted
suicide.
Shortly after M.S.’s death, his mother received a telephone
call, wherein the caller threatened to kill her, J.S.G., and
K.S.G. if they did not leave their home. K.G. arranged for
J.S.G. and K.S.G. to stay with her sister until she could save
enough money to bring them to the United States. Their
grandmother went to a son’s house. The girls remained with
their maternal aunt for approximately twenty days, after which
they began the journey to the United States.
J.S.G. and K.S.G. entered the United States in June 2013 by
crossing the United States-Mexico border. At that time, they
were apprehended by immigration enforcement agents and removal
2 This is apparently a shorthand reference to a group known as M-
18, a transnational criminal organization considered a major
threat to public security in El Salvador. U.S. Dept. of State,
Bureau of Diplomatic Security, El Salvador 2013 Crime and Safety
Report 9 (2013).
9
proceedings were initiated. J.S.G. and K.S.G. were transferred
to a shelter in Chicago, Illinois run by the Office of Refugee
Resettlement (ORR). On July 27, 2013, ORR released both girls
to K.G.’s care. They continue to reside at her home in
Elizabeth. While in removal proceedings, both girls applied for
SIJ status.
On March 18, 2014, K.G. filed a complaint in the Family
Part seeking custody of J.S.G. and K.S.G. and requesting that
the court make the predicate findings to permit them to apply
for SIJ status. The Family Part conducted a hearing on April
28, 2014. After hearing testimony from K.G., J.S.G., and
K.S.G., the court granted K.G.’s application for custody of her
daughters.
The trial court then addressed the predicate findings for
SIJ status. The court determined that both girls were less than
twenty-one years of age, unmarried, and dependent on the court.
The court found that reunification with M.S. was not viable
because he was deceased, and that it was not in the children’s
best interests to return to El Salvador because their
grandmother was incapable of caring for them and there were no
other family members able to assume that role. The trial court
found no basis under state law to suggest that K.G. had abused,
neglected, or abandoned the children. Instead, the court
concluded that she had provided for them financially and
10
remained involved in their lives after moving to the United
States. The court determined that reunification with K.G. was
viable, noting that the children were living with her at the
time of the hearing. Based on that determination, and in
reliance on the Appellate Division’s decision in H.S.P., the
court denied the children’s application for SIJ status.
K.G. filed a notice of appeal with the Appellate Division
and, subsequently, a motion for direct certification pursuant to
Rule 2:12-2. This Court granted certification. K.G. v. M.S.,
220 N.J. 493 (2014).
II.
A.
H.S.P. contends that the Appellate Division misapplied the
SIJ standard when it applied the law of India, and not that of
New Jersey, in determining that M.S. had not been abused.
H.S.P. reasons that the relevant inquiry was whether M.S.’s
treatment constituted abuse as defined by New Jersey law. He
contends that, measured by the proper standard, M.S. suffered
abuse when he was forced to leave school at age fifteen to work
long hours at a construction site, which caused him to develop
back pain and a skin condition. He asserts that the improper
reliance on foreign law led the Appellate Division to the
erroneous conclusion that M.S. was not abused, and created a
“dangerous precedent” requiring New Jersey courts to undertake
11
the “unrealistic task” of researching and applying the laws of a
child’s home country when making findings under 8 U.S.C.A. §
1101(a)(27)(J).
H.S.P. also argues that the Appellate Division erroneously
evaluated the “neglect” prong of the SIJ statute by focusing
“almost exclusively” on whether the neglect was “intentional.”
In reliance on this Court’s decision in G.S. v. Department of
Human Services, 157 N.J. 161 (1999), H.S.P. asserts that the
proper inquiry is whether the guardian’s conduct was grossly
negligent. Here, J.K.’s conduct in permitting M.S. to work long
hours in a construction job and failing to provide basic care
and medical attention constituted gross negligence, even in the
absence of any intent to harm him. H.S.P. further contends that
J.K.’s conduct in sending a sick child to make a perilous
journey overseas without supervision constitutes abandonment
under N.J.S.A. 9:6-1(b).
Next, H.S.P. argues that the Appellate Division
misinterpreted the “1 or both” language of 8 U.S.C.A. §
1101(a)(27)(J)(i). H.S.P. reasons that the panel disregarded
Congress’s specific requirement that “reunification with 1 or
both [parents] is not viable,” 8 U.S.C.A. § 1101(a)(27)(J)(i),
and substituted its own, more onerous requirement that
reunification with “neither” parent be viable. H.S.P. asserts
that this result improperly renders the “1 or both” language a
12
nullity and ignores the fundamental legislative purpose of the
SIJ statute. Finally, H.S.P. notes that the Appellate
Division’s interpretation conflicts with the interpretation
relied upon by USCIS, which routinely grants petitions based on
a family court’s determination that reunification with only one
parent is not viable.
Respondent J.K. did not file a brief.
Amici curiae New Jersey Law School Professors Specializing
in Family Law and Immigration Law, in their individual
capacities, assert that the Appellate Division improperly relied
on Indian law, instead of New Jersey law, in determining that
M.S. had not been abused or neglected by his mother. Amici also
assert that the Appellate Division erroneously applied an
“intent” standard in concluding that J.K. had not neglected M.S.
Amici argue that, had the panel properly applied the wanton or
reckless standard, it would have concluded that J.K.’s action in
sending M.S. to work long days in a dangerous job created a
substantial risk of harm and therefore constituted neglect.
Amici AFSC, KIND, and YCICR argue that, in performing what
should have been a straightforward review of the trial court’s
factual findings, the Appellate Division erred in interpreting
the “1 or both” language in a manner contradictory to its plain
language. Amici argue that, in limiting SIJ eligibility to
cases where “reunification with neither parent is viable,” the
13
Appellate Division decision effectively strikes “1 or both” from
the statute in derogation of the canon against “‘interpreting
any statutory provision in a manner that would render another
provision superfluous.’” (Quoting Bilski v. Kappos, 561 U.S.
593, 608, 130 S. Ct. 3218, 3228, 177 L. Ed. 2d 792, 805 (2010)).
Amici contend that nothing in the legislative history supports
the Appellate Division’s interpretation of the “1 or both”
language, and that the plain language of the statute comports
with Congress’s intent to protect immigrant children who have
been abused, neglected, or abandoned. They argue that the
Appellate Division’s interpretation is further undermined by
that of USCIS, the federal agency charged with applying the SIJ
statute, which routinely grants SIJ petitions based on a state
court’s determination that reunification with only one parent is
not viable due to abuse, neglect, or abandonment.
K.G. asserts that the Family Part confused its role and
overstepped its jurisdictional authority by interpreting her
request for an SIJ predicate order as an invitation to
adjudicate her daughters’ application for SIJ status. K.G.
reasons that Congress inserted state courts into the SIJ process
because of their experience and proficiency in adjudicating
child welfare matters; however, the state court enjoys no
corresponding expertise with regard to federal immigration law.
In K.G.’s view, the state court’s role in an SIJ case is
14
strictly limited to identifying abused, neglected, or abandoned
children, and USCIS, the agency charged with overseeing lawful
immigration to the United States, is the sole body charged with
adjudicating applications for SIJ status.
Next, K.G. asserts that the trial court erred by relying on
the appellate panel’s determination in H.S.P. that SIJ status is
limited to children who cannot be reunited with either parent.
K.G. asserts that, contrary to that ruling, Congress intended
SIJ status to be available to children who could not be reunited
with both biological parents; children who can be reunited with
only one fit parent are therefore eligible for SIJ status.
Accordingly, the trial court’s inquiry should have ended when it
determined that reunification with the children’s father, who is
deceased, was not viable. K.G. asserts that this interpretation
is supported by the plain language of the statute, Congress’s
purpose in enacting it, and the weight of authority from other
jurisdictions. Importantly, K.G. argues this interpretation is
also supported by USCIS -- the agency charged with administering
the statute -- which consistently permits children living in the
custody of one fit parent to obtain SIJ status.
Finally, K.G. asserts that this case must be distinguished
from H.S.P. for three reasons: first, J.S.G. and K.S.G. face a
specific and direct threat of harm if returned to El Salvador;
second, they do not have a safe or appropriate caregiver in
15
their home country; and third, they are presently in removal
proceedings.
III.
The 1952 Immigration and Nationality Act (INA), 8 U.S.C.A.
§§ 1101–1537, remains the cornerstone of United States
immigration law. In 1990, Congress amended the INA to include
protections for “abused, neglected, or abandoned children who,
with their families, illegally entered the United States.”
Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir.
2003). In accordance with 8 U.S.C.A. § 1101(a)(27)(J), as added
by Pub. L. 101-649, § 153, an undocumented minor immigrant is
eligible for classification as a “special immigrant juvenile,”
which would afford him or her relief from deportation and the
opportunity to apply for lawful permanent residency. Yeboah,
supra, 345 F.3d at 221.
The SIJ scheme has since been amended several times. The
most recent amendment occurred in 2008, when Congress enacted
the TVPRA. The SIJ amendments implemented by the TVPRA were
intended to expand SIJ classification to include protections for
minor victims of human trafficking. Notably, the TVPRA
liberalized the requirements for SIJ status by eliminating the
requirement that the child be eligible for long-term foster
care. See 8 U.S.C.A. § 1101(a)(27)(J)(i). The TVPRA inserted
language requiring that the child not be able to reunify with “1
16
or both” parents because of “abuse, neglect, abandonment, or a
similar basis” under state law. See ibid. Thus, the present
iteration of the statute defines a “special immigrant juvenile”
as a juvenile
(i) who has been declared dependent on a
juvenile court located in the United States or
whom such a court has legally committed to, or
placed under the custody of, an agency or
department of a State, or an individual or
entity appointed by a State or juvenile court
located in the United States, and whose
reunification with 1 or both of the
immigrant’s parents is not viable due to
abuse, neglect, abandonment, or a similar
basis found under State law[.]
(ii) for whom it has been determined in
administrative or judicial proceedings that it
would not be in the alien’s best interest to
be returned to the alien’s or parent’s
previous country of nationality or country of
last habitual residence[.]
[8 U.S.C.A. § 1101(a)(27)(J).]
The process for obtaining SIJ status is “‘a unique hybrid
procedure that directs the collaboration of state and federal
systems.’” In re Marisol N.H., 115 A.D.3d 185, 188 (N.Y. App.
Div. 2014) (quoting In re Hei Ting C., 109 A.D.3d 100, 104 (N.Y.
2013)); E.C.D. v. P.D.R.D. 114 So. 3d 33, 36 (Ala. Civ. App.
2012) (explaining that SIJ statute creates “a special
circumstance ‘where a state juvenile court is charged with
addressing an issue relevant only to federal immigration law.’”
(quoting In re J.J.X.C., 734 S.E.2d 120, 124 (Ga. 2012)). The
17
child -- or another individual acting on his or her behalf --
must first petition for “‘an order from a state juvenile court
making findings that the juvenile satisfies certain criteria.’”
Simbaina v. Bunay, 109 A.3d 191, 197-98 (Md. Ct. Spec. App.
2015) (quoting In re Marcelina M.-G. v. Israel S., 112 A.D.3d
100, 107 (N.Y. App. Div. 2013)). The juvenile court must make
the following findings:
(1) The juvenile is under the age of 21 and is
unmarried;
(2) The juvenile is dependent on the court or
has been placed under the custody of an agency
or an individual appointed by the court;
(3) The “juvenile court” has jurisdiction
under state law to make judicial
determinations about the custody and care of
juveniles;
(4) That reunification with one or both of the
juvenile’s parents is not viable due to abuse,
neglect, or abandonment or a similar basis
under State law; and
(5) It is not in the “best interest” of the
juvenile to be returned to his parents’
previous country of nationality or country of
last habitual residence within the meaning of
8 U.S.C.A. § 1101(a)(27)(J)(ii); 8 C.F.R. §
204.11(a), (d)(2)(iii) [amended by TVPRA
2008].
[In re Dany G., ___ A.3d ___, ___ (Md. Ct.
Spec. App. 2015) (slip op. at 7) (internal
citations omitted) (citing 8 C.F.R. §
204.11(a), (c) & (d); 8 U.S.C.A. §
1101(a)(27)(J)).]
18
“By making these preliminary factual findings, the juvenile
court is not rendering an immigration determination.” Marcelina
M.-G., supra, 112 A.D.3d at 109 (citation omitted); J.J.X.C.,
supra, 734 S.E.2d at 123; 3-35 Immigration Law and Procedure §
35.09(3)(a) (Matthew Bender 2013)). The aptly named state court
“predicate” order is merely a prerequisite that must be
fulfilled before a juvenile can submit his or her application
for SIJ status to USCIS in the form of an I-360 petition. If
USCIS approves the juvenile’s I-360, he or she will be granted
SIJ status. Perez-Olano v. Gonzalez, 248 F.R.D. 248, 254 (C.D.
Cal. 2008) (citing 8 C.F.R. § 204.11; Application, 8 C.F.R. §
1245.2(a)(1)(i) (2014)).
After obtaining SIJ status, a child is permitted to apply
for adjustment of status under 8 U.S.C.A. § 1255, in an effort
to obtain legal permanent residency, and, eventually, U.S.
citizenship. 8 U.S.C.A. § 1255 permits SIJs to circumvent
various admissibility requirements that might otherwise prevent
them from obtaining permanent residency. For example, an SIJ is
not required to demonstrate that he or she is unlikely to become
a public charge or that he or she did not come to the United
States for the purpose of performing unskilled labor. 8
U.S.C.A. § 1255(h)(2)(A). Likewise, minors classified as
special immigrant juveniles are not prevented from obtaining
legal permanent resident status because they entered the country
19
without inspection, do not hold an unexpired immigrant visa or
other valid entry document, or have accrued more than 180 days
of unlawful presence in the United States. Ibid.IV.
We take this opportunity to comment on and clarify the
limited role played by New Jersey State courts in the SIJ
application process. Our review of the legislative scheme
relating to SIJ status demonstrates that the determination of
whether a child should be classified as a special immigrant
juvenile rests squarely with the federal government. “Congress
chose to rely on state courts to make [initial factual findings]
because of their special expertise in making determinations as
to abuse and neglect issues, evaluating the best interest
factors, and ensuring safe and appropriate custodial
arrangements.” Meghan Johnson & Kele Stewart, Unequal Access to
Special Immigrant Juvenile Status: State Court Adjudication of
One-Parent Cases, American Bar Association (July 14, 2014),
http://apps.americanbar.org/litigation/committees/childrights/co
ntent/articles/summer2014-0714-unequal-access-special-immigrant-
juvenile-status-state-court-adjudication-one-parent-cases.html.
“The SIJ statute affirms the institutional competence of
state courts as the appropriate forum for child welfare
determinations regarding abuse, neglect, or abandonment, and a
child’s best interests.” In re Y.M., 144 Cal. Rptr. 3d 54, 68
20
(Cal. App. Div. 2012) (citing Perez-Olano, supra, 248 F.R.D. at
265).
However, there can be no legitimate argument that, as
suggested by the trial court in K.G., a New Jersey family court
has jurisdiction to approve or deny a child’s application for
SIJ status. That fact is clear from a review of the SIJ
statute, which implements a two-step process in which a state
court makes predicate factual findings -- soundly within its
traditional concern for child welfare -- relative to a
juvenile’s eligibility. The juvenile then presents the family
court’s factual findings to USCIS, “which engages in a much
broader inquiry than state courts,” Eddie E. v. Superior Court,
183 Cal. Rptr. 3d 773, 780 (Cal. App. Div. 2015), and makes the
ultimate decision as to whether or not the juvenile’s
application for SIJ status should be granted. Thus, the
findings made by the state court only relate to matters of child
welfare, a subject traditionally left to the jurisdiction of the
states. All immigration decisions remain in the hands of USCIS,
the agency charged with administering the INA. Lucaj v.
Dedvukai, 749 F. Supp. 2d 601, 607 (E.D. Mich. 2010) (noting
that USCIS, one of three immigration-related agencies falling
under Department of Homeland Security, is charged with
“administer[ing] immigration benefits”). This arrangement
comports with the well-established rule that the “[p]ower to
21
regulate immigration is unquestionably exclusively a federal
power,” De Canas v. Bica, 424 U.S. 351, 354, 96 S. Ct. 933, 936,
47 L. Ed. 2d 43, 48 (1976), a concept that has imbued our law
and policy since 1889, see Chae Chan Ping v. United States, 130
U.S. 581, 604, 9 S. Ct. 623, 629, 32 L. Ed. 2d 1068, 1075 (1889)
(explaining that “[t]he power[] to . . . admit subjects of other
nations to citizenship [is a] sovereign power[], restricted in
[its] exercise only by the Constitution itself and
considerations of public policy and justice which control, more
or less, the conduct of all civilized nations”).
In performing its closely circumscribed task of making
specified predicate factual findings, we conclude that the
Family Part is required to apply New Jersey law, and not that of
a foreign nation. 8 U.S.C.A. § 1101(a)(27)(J)(i) requires a
petitioner to show that “reunification with 1 or both of the
immigrant’s parents is not viable due to abuse, neglect,
abandonment, or a similar basis under State law[.]” (Emphasis
added). As recently reiterated by the United States Supreme
Court, “[i]f the statutory language is plain, we must enforce it
according to its terms.” King v. Burwell, __ U.S. __, __, 135
S. Ct. 2480, 2489, 192 L. Ed. 2d 483, 494 (2015). The plain
language of 8 U.S.C.A. § 1101(a)(27)(J)(i) requires New Jersey
courts to apply New Jersey law, and not that of an alien’s home
22
country, when determining whether a juvenile has been abused,
neglected, or abandoned.
Our reflection on the limited role played by the New Jersey
Family Part in SIJ proceedings leads us to two additional
conclusions. First, we decline petitioners’ invitation to
interpret the “1 or both” language of the statute. Such a task
is exclusively the province of the federal government, which has
provided copious guidance as to the application process and
eligibility. See, e.g., USCIS, SIJ Petition Process (2011);
USCIS, Eligibility Status for SIJ (2011).
We state only the following regarding the nature of the
findings to be made by the Family Part. In an effort to ensure
that factual findings issued by New Jersey courts provide USCIS
with the necessary information to determine whether a given
alien satisfies the eligibility criteria for SIJ status, we
instruct courts of the Family Part to make separate findings as
to abuse, neglect, and abandonment with regard to both legal
parents of an alien juvenile. For example, the Family Part
should first determine whether reunification with one of the
child’s parents is not viable due to abuse, neglect, or
abandonment. Regardless of the outcome of that analysis, the
court should next conduct the same analysis with regard to the
child’s other legal parent. By requiring the Family Part to
make independent findings as to both of the juvenile’s parents,
23
we ensure that USCIS will have sufficient information to apply 8
U.S.C.A. § 1101(a)(J)(27) as it sees fit when a juvenile
subsequently submits the Family Part’s order to USCIS in support
of an application for SIJ status. That is the role Congress
envisioned for the juvenile courts of the fifty states, and that
is the process that should be followed by the Family Part.
Second, we note that, throughout its decision in H.S.P.,
the Appellate Division expressed concern that H.S.P.’s petition
for custody of M.S. was filed “‘primarily for the purpose of
obtaining the status of an alien lawfully admitted for permanent
residence, rather than for the purpose of obtaining relief from
abuse or neglect or abandonment.’” H.S.P., supra, 435 N.J.
Super. at 167 (citing State v. Erick M., 820 N.W.2d 639, 646 &
n.25 (Neb. 2012)). It is true that, as noted by the Appellate
Division, “the legislative and administrative history of
Subparagraph J shows two competing goals. Congress wanted to
permit use of the SIJ procedure when necessary to prevent the
return of juveniles to unsafe parents. Where such protection is
unnecessary, however, Congress wanted to prevent misuse of the
SIJ statute for immigration advantage.” Id. at 169; see In re
Israel O., 182 Cal. Rptr. 3d 548, 553 (Cal. Ct. App. 2015);
Erick M., supra, 820 N.W. 2d at 647. The panel relied on that
rationale in support of its decision to uphold the Family Part’s
determination that it was not necessary to make a best interest
24
finding under 8 U.S.C.A. § 1101(a)(27)(J)(ii). The panel’s
attempt to divine and support Congress’s intent is laudable.
However, New Jersey state courts are not charged with
undertaking a determination of whether an immigrant’s purpose in
applying for SIJ status matches with Congress’s intent in
creating that avenue of relief. That determination is properly
left to the federal government. “Nothing in 8 U.S.C.A. §
1101(a)(27)(J) or the regulation indicates that the Congress
intended that state juvenile courts pre-screen potential SIJ
applications for possible abuse on behalf of USCIS.” In re
Mario S., 954 N.Y.S. 2d 843, 851 (N.Y. Fam. Ct. 2012). As
stated by USCIS,
[j]uvenile court judges issue juvenile court
orders that help determine a child’s
eligibility for SIJ status. A child cannot
apply to USCIS for SIJ classification without
a court order from a juvenile court. However,
juvenile judges should note that providing a
qualifying order does not grant SIJ status or
a Green Card -- only USCIS can grant or deny
these benefits. The role of the court is to
make factual findings based on state law about
the abuse, neglect, or abandonment, family
reunification, and best interests of the
child.
[USCIS, Immigration Relief for Abused Children
(2014), available at http://www.uscis.gov/sit
es/default/files/USCIS/Green%20Card/Green%20
Card%20Through%20a%20Job/Immigration_Relief_
for_Abused_Children-FINAL.pdf.]
V.
25
In reviewing a decision made by a trial court in a non-jury
trial, an appellate court must “give deference to the trial
court that heard the witnesses, sifted the competing evidence,
and made reasoned conclusions.” Griepenburg v. Twp. of Ocean,
220 N.J. 239, 254 (2015) (citing Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). Reviewing
courts “should ‘not disturb the factual findings and legal
conclusions of the trial judge’ unless convinced that those
findings and conclusions were ‘so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.’”
Ibid. (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484).
However, legal issues are subject to de novo review; the
appellate court owes no deference to legal conclusions drawn by
the trial court. M.S. v. Milburn Police Dep’t, 197 N.J. 236,
246 n.10 (2008).
We now turn to the specific facts of the two cases before
us.
A.
In H.S.P., supra, the Appellate Division determined that
M.S.’s employment did not constitute abuse or neglect because
H.S.P. failed to demonstrate that his employment was contrary to
the laws of India. 435 N.J. Super. at 160. We reverse that
aspect of the Appellate Division judgment and remand. The
26
Family Part is obliged to determine whether M.S. cannot be
reunited with either or both of his parents due to abuse,
neglect, or abandonment under New Jersey law. At that hearing,
the Family Part is required to conduct an analysis of whether
reunification with each of M.S.’s legal parents is viable due to
abuse, neglect or abandonment, in addition to making the other
required findings under 8 C.F.R. § 204.11.
B.
In K.G., the trial court determined that there was no basis
under state law to find that K.G. had abused, neglected, or
abandoned her daughters, K.S.G. and J.S.G. In support of that
conclusion, the court cited to the fact that K.G. remained
involved in the children’s lives after leaving them in their
father’s care to come to the United States. She sent M.S. money
for their support and remained in near-daily contact with them
via telephone calls and video conference. When M.S. died and
the children fled the home they shared with his mother, K.G.
arranged for the children to stay with her sister until she
could arrange for them to join her in the United States. Those
facts make clear that she remained an involved parent even while
living apart from her children, a conclusion supported by the
fact that the children have remained in K.G.’s care since being
released from the custody of Office of Refugee Resettlement.
27
The record is devoid of any suggestion that K.G. abused
K.S.G. and J.S.G. It is equally clear that reunification with
M.S., who is deceased, is not viable. Therefore, we conclude
that the trial court’s factual determinations were supported by
competent, credible evidence. However, the trial court erred in
purporting to deny K.S.G.’s and J.S.G.’s applications for SIJ
status based on its conclusion that reunification with K.G. was
viable. We reverse that determination and remand for a new
hearing, at which the Family Part is instructed to make findings
regarding each element of 8 C.F.R. § 204.11, including whether
it would not be in the best interest of the juvenile alien to be
returned to his or her country of origin, mindful that its sole
purpose is to make the factual findings listed in that
regulation and not to adjudicate the children’s applications for
SIJ status.
VI.
The judgment of the Appellate Division in H.S.P. is
reversed and the matter remanded to the Family Part for a new
hearing conducted in accordance with this decision. The
judgment of the trial court in K.G. is likewise reversed and
remanded.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and
SOLOMON join in JUDGE CUFF’s opinion. CHIEF JUSTICE RABNER did
not participate.
28
SUPREME COURT OF NEW JERSEY
NO. A-114 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
H.S.P.,
Plaintiff-Appellant,
v.
J.K.,
Defendant.
DECIDED August 26, 2015
Justice LaVecchia PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER -------------------- --------------------
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6
SUPREME COURT OF NEW JERSEY
NO. A-117 SEPTEMBER TERM 2013
ON APPEAL FROM Superior Court, Chancery Division, Union County
K.G.,
Plaintiff-Appellant,
v.
M.S. (DECEASED),
Defendant.
----------------------------------------
IN THE MATTER OF J.S.G.
AND K.S.G. (MINORS)
DECIDED August 26, 2015
Justice LaVecchia PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER -------------------- --------------------
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6