In re Keanu S.

167 A.D.3d 27

86 N.Y.S.3d 522

In the MATTER OF KEANU S. (Anonymous), appellant.

2017–07313

Docket Nos. D-15224-15/16A, D-10564-16

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 12, 2017

October 17, 2018

The Legal Aid Society, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), for appellant.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, BETSY BARROS, JJ.

OPINION & ORDER

RIVERA, J.P.

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child's contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. For the reasons that follow, we agree with the Family Court's determination and conclude that such a placement does not satisfy the requirement of dependency under the statute.

I. The Juvenile Delinquency Acts

On April 22, 2015, the child, while a high school student, punched another student in the face, causing serious injuries, which included two jaw fractures. For these acts, on July 28, 2015, the presentment agency filed a juvenile delinquency petition, charging the child with committing acts which, if committed by an adult, would constitute the crimes of assault in the second and third degrees. In an order of disposition dated November 2, 2015, the Family Court adjudicated the child a juvenile delinquent and placed him on probation for a period of 12 months.

On January 29, 2016, while under probation supervision, the child and three others punched and kicked another victim, causing serious injuries to the victim, including a laceration on his forehead, and took that victim's jacket, which contained his cell phone. The child was charged, inter alia, with committing acts, which if committed by an adult, would constitute the crimes of assault in the second degree and robbery in the second degree.

On May 19, 2016, the Department of Probation filed a petition alleging that based on the incident on January 29, 2016, and his failure to attend school regularly, the child willfully violated the terms of his probation.

In June 2016, the Family Court remanded the child to the Administration for Children's Services of the City of New York for detention pending further proceedings.

In an order dated July 13, 2016, the Family Court vacated the order of disposition dated November 2, 2015, and placed the child in the custody of the Commissioner of Social Services of the City of New York for a period of 12 months in "non-secure placement."

II. Motion for Order of Specific Findings

On March 10, 2017, the child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J).

In a supporting affidavit, the child averred that he was born in Jamaica in May 2000. The child stated that he was 16 years old and unmarried. The child indicated that he lived with his father in Jamaica after the mother "left the home when I was a baby," and was raised by his aunts and his father. According to the child, the father was murdered when the child was 11 years old. The child stated that "[t]he people that cause[d] my father's death also threatened to hurt me." The child came to the United States when he was 12 years old. In addition, he stated that he had no contact with the mother since she left the family and he did not know where she lived.

The child indicated that, at the time of his motion, he lived in a facility run by Sheltering Arms Child and Family Services, "an organization contracted to provide services by the New York City Administration for Children's Services," due to his adjudication as a juvenile delinquent. Further, he stated that his placement was to continue until December 2, 2017. The child contended that "[t]he only family that has taken care of me lives in the United States," and that he believed he would be "in danger" if he returned to Jamaica.

In a supporting affirmation, the attorney for the child argued that the dependency requirement of 8 UCS § 1101(a)(27)(J)(i) should be deemed satisfied by the child's placement in the custody of the Commissioner of Social Services of the City of New York.

In an order dated March 20, 2017, the Family Court denied the motion, with leave to renew, upon the submission of additional papers. Thereafter, the child made a renewed motion.

III. The Order Appealed From

In an order dated June 7, 2017, the Family Court denied the child's renewed motion, stating, in pertinent part:

"This court declines to adopt [the child's] position, and finds that a placement in a juvenile delinquency matter does not satisfy the dependency requirement necessary for a SIJS finding....

"First, there exists no Appellate authority in this State to support a finding that a juvenile delinquency proceeding constitutes a dependency upon the Family Court for [specific] findings in a SIJS matter. Second, such determination would circumvent the legislative intent behind the SIJS statute, and would not further the underlying policies or legislative intent of the SIJS statute. Expanding SIJS status to include juvenile delinquency matters would put this court in the untenable position of rewarding immigrant children for committing acts, which if done by an adult, would constitute a crime under the Penal Law. A reward not available to a law abiding immigrant child, and an intent this court is not willing to ascribe to Congress.

"Significantly, under the Illegal Immigration Reform and Immigrant Responsibility Act an adult who is not a U.S. citizen and pleads guilty to certain criminal offenses may be subject to mandatory deportation. Moreover, Criminal Procedure Law § 220.50(7) mandates that a court advise non-citizen defendants of the deportation consequences of his or her plea to a felony offense. It is inconceivable that Congress would seek to deport an adult criminal, yet give special immigrant status to a juvenile delinquent. This court finds that to grant [the child's] request, simply because he is under this court's placement order, would disparage the very laudable intent of 8 [USC §] 1101(a)(27) ( [J] ). Clearly, the facts and circumstances of [the child's] history do not fit within the legislative scheme of the SIJS statute, which is concerned with providing special protection to immigrant children who have experienced maltreatment in their families. [The child's] placement in a non-secure facility stemmed from his admission to an assault in the second degree. Granting a SIJS finding to [the child] is not only contrary to the intent of the SIJS statute, but also does not promote the legislative intent behind Article 3 of the Family Court which did not envision respondents deriving a benefit from their bad acts. For these reasons, this court declines to expand the definition of dependency upon the court for a SIJS finding to include juvenile delinquency placements" (citations omitted).

IV. Legal Analysis

The legislative history of SIJS was set forth by this Court in Matter of Hei Ting C., 109 A.D.3d 100, 102–103, 969 N.Y.S.2d 150. Briefly, in 1990, Congress created SIJS to address the issue of undocumented and unaccompanied children (see id. at 102, 969 N.Y.S.2d 150 ). "As originally enacted, this legislation defined an eligible immigrant as being one who has been declared dependent on a juvenile court located in the United States and has been deemed eligible by that court for long-term foster-care" ( id. at 102–103, 969 N.Y.S.2d 150 [internal quotation marks omitted] ). The legislation also required a determination by the court that it would not be in the immigrant's best interests to return to his or her native country (see id. at 103, 969 N.Y.S.2d 150 ). In 1997, Congress added the further requirement that the juvenile court find the child dependent upon the court "due to abuse, neglect, or abandonment," which limited the beneficiaries of the provision "to those juveniles for whom it was created" ( id. [internal quotation marks omitted] ).

In 2008, Congress again amended the SIJS provisions by removing the requirement that the child be deemed eligible for long-term foster care due to abuse, neglect, or abandonment, and replacing it with a requirement that the juvenile court find that "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" ( id. [internal quotation marks omitted] ). Following the 2008 amendments, the United States Department of Homeland Security issued a memorandum explaining, inter alia, that the new language added to the definition of "Special Immigrant Juvenile" meant that "a petition filed by an alien on whose behalf a juvenile court appointed a guardian may now be eligible" ( id. , citing Memorandum by Donald Neufeld and Pearl Chang, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions [Mar. 24, 2009] ).

Accordingly, pursuant to 8 USC § 1101(a)(27)(J), as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( Pub. L. 110–457, 122 U.S. Stat. 5044 ), and 8 CFR 204.11, a "special immigrant" is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to...