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U.S. Citizenship and Immigration Services MATTER OF J-S- Non-Precedent Decision of the Administrative Appeals Office DATE: MAR. 5, 2018 APPEAL OF NEW YORK DISTRICT OFFICE DECISION PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT The Petitioner was born in India and entered the United States when he was 17 years old. When he was 19 years old, a family court in New York issued an order appointing the Petitioner's aunt as his guardian (guardianship order). When the Petitioner was 20 years old, the family court issued an order regarding his eligibility for special immigrant juvenile (SIJ) classification (SIJ order). In that order, the family court found that the Petitioner's father abused him, reunification with one or both parents was not viable, and it was not in the Petitioner's best interest to return to India. Based on these orders, the Petitioner seeks classification as an SIJ. See Immigration and Nationality Act (the Act) sections 101(a)(27)(J) and 204(a)(1)(G), 8 U.S.C. §§ 1101(a)(27)(J) and 1154(a)(1)(G). SIJ classification protects foreign-born children in the United States who cannot reunify with one or both of their parents because of abuse, neglect, abandonment, or a similar basis under state law. The Director of the New York District Office denied the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition). The Director withheld U.S. Citizenship and Immigration Services' (USCIS)' consent to the Petitioner's SIJ classification based on a finding that he sought the family court orders primarily to gain an immigration benefit, and his request therefore was not bonafide. On appeal, the Petitioner submits a brief and asserts that the Director improperly questioned the factual basis for the family court's SIJ order. Upon de novo review, we will dismiss the appeal. I. LAW To establish eligibility for SIJ classification, a petitioner must show that he or she is unmarried, under 21 years of age, and has been subject to a state juvenile court order determining that the petitioner cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis under state law. Section 101 (a)(27)(J) of the Act; 8 C.F.R. § 204.11 (c). A petitioner must have been declared dependent upon the juvenile court, or the juvenile court must have placed the petitioner in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section 101(a)(27)(J)(i) of the Act. The record must also contain a judicial or administrative

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Page 1: U.S. Citizenship Non-Precedent Decision of the and ... - Dependent of... · The record must also contain a judicial or ... evidence including the Petitioner's affidavit to the court

U.S. Citizenship and Immigration Services

MATTER OF J-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 5, 2018

APPEAL OF NEW YORK DISTRICT OFFICE DECISION

PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner was born in India and entered the United States when he was 17 years old. When he was 19 years old, a family court in New York issued an order appointing the Petitioner's aunt as his guardian (guardianship order). When the Petitioner was 20 years old, the family court issued an order regarding his eligibility for special immigrant juvenile (SIJ) classification (SIJ order). In that order, the family court found that the Petitioner's father abused him, reunification with one or both parents was not viable, and it was not in the Petitioner's best interest to return to India. Based on these orders, the Petitioner seeks classification as an SIJ. See Immigration and Nationality Act (the Act) sections 101(a)(27)(J) and 204(a)(1)(G), 8 U.S.C. §§ 1101(a)(27)(J) and 1154(a)(1)(G). SIJ classification protects foreign-born children in the United States who cannot reunify with one or both of their parents because of abuse, neglect, abandonment, or a similar basis under state law.

The Director of the New York District Office denied the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition). The Director withheld U.S. Citizenship and Immigration Services' (USCIS)' consent to the Petitioner's SIJ classification based on a finding that he sought the family court orders primarily to gain an immigration benefit, and his request therefore was not bonafide.

On appeal, the Petitioner submits a brief and asserts that the Director improperly questioned the factual basis for the family court's SIJ order.

Upon de novo review, we will dismiss the appeal.

I. LAW

To establish eligibility for SIJ classification, a petitioner must show that he or she is unmarried, under 21 years of age, and has been subject to a state juvenile court order determining that the petitioner cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis under state law. Section 101 (a)(27)(J) of the Act; 8 C.F.R. § 204.11 (c). A petitioner must have been declared dependent upon the juvenile court, or the juvenile court must have placed the petitioner in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section 101(a)(27)(J)(i) of the Act. The record must also contain a judicial or administrative

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determination that it is not in the petitioner's best interest to return to his or her or his or her parents' country ofnationality or last habitual residence. !d. at section IOI(a)(27)(J)(ii).

STJ classification may only be granted upon the consent of the Department of Homeland Security, through USCIS, when a petitioner meets all other eligibility criteria. Id. at section 101 (a)(27)(J)(i)­(iii). USCIS' consent is an acknowledgment that the request for SIJ classification is bona fide, which means that the juvenile court order and best-interest determination were sought to gain relief from abuse, abandonment, neglect, or a similar basis under state law and not primarily or solely to obtain an immigration benefit. 6 USCIS Policy Manual 1.2(0)(5), https://"\\-ww.uscis.gov/policymanual. Petitioners bear the burden of proof to demonstrate their eligibility by a preponderance of the evidence. lvfatter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010).

II. ANALYSIS

The Petitioner was born in India in 1994 and entered the United States without inspection, admission, or parole in 2012. In 2013, when the Petitioner was 19 years old, a family court m New York, issued an order appointing the Petitioner's aunt as his guardian. In

2015, when the Petitioner was 20 years old, the family court issued an SIJ order finding that the Petitioner' s father abused him, reunjfication with one or both parents was not viable, and it was not in his best interest to return to India.

A. US CIS' Consent

The Director concluded that the Petitioner's request for SIJ classification was not bona fide because the evidence did not show that he obtained the family court's orders for the purpose of gaining protection from abuse, neglect, abandonment, or a similar basis under state law, rather than primarily for immigration purposes. Accordingly, the Director witlili.eld USCIS ' consent to the Petitioner's SIJ classification. The Petitioner has not overcome this ground on appeal.

SIJ classification may only be granted upon the consent of the Department of Homeland Security, through USCIS, when a petitioner meets all other eligibility criteria. !d. at section 101(a)(27)(J)(i)­(iii). In order to exercise our consent function, we must determine that the juvenile court order or supporting evidence provides a reasonable factual basis for the court's findings. 6 USCIS Policy Manual, supra, at J.2(0)(5). We generally defer to juvenile courts on matters of state child welfare law and we do not reweigh the evidence to determine whether a child was subjected to abuse, neglect, abandonment, or a similar basis under state law. !d. at J.2(A), J.2(0)(5). While template orders that merely recite the Act and regulations will not suffice, juvenile court orders that contain or are supplemented by judicial findings of fact are generally sufficient to establish a reasonable basis for the court's order and the judicial or administrative best-interest determination. Jd at J.3(A). Where there is significant contradictory information of which the juvenile court was unaware, or which could affect whether a reasonable factual basis exists for the juvenile court's determinations,

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USCIS may request additional evidence to establish a reasonable factual basis for the juvenile court's findings. Jd. at JJ(B).

In its SIJ order, the family court indicated that, per the evidence presented, the Petitioner's father subjected him to emotional and physical abuse, his parents did not pay for his education and "did not care for him," and sent him from India to Canada alone. The family court also noted that "(i]n response to a leading question the [Petitioner} agreed that his parents kicked him out of his home." Further, the family court mentioned a report of a home study by the administration of children's services (ACS), which indicated that the Petitioner reported leaving India "due to his 'family financial struggle"' and a desire to "be independent and able to help out his parents financially as they continue to live in India." The family court also discussed testimony and a written evaluation by Ph.D., a clinical psychologist who evaluated the Petitioner. According to the family court, it was "forced to rely on the descriptions of abuse and neglect offered by the [Petitioner] to the therapist in lieu of any direct testimony on those incidents and accepts them as establishing the findings by a preponderance of evidence."

The Director concluded that the evidence did not show that the Petitioner sought the family court's orders to gain relief from abuse, abandonment, neglect, or a similar basis under state law and not primarily or solely to obtain an immigration benefit. 6 USCIS Policy Manual, supra, at 1.2(0)(5). The Director explained that the evidence that the Petitioner' s parents abused, neglected, or abandoned him and kicked him out of the house conflicted with the evidence in the family court' s SIJ order that the Petitioner left India due to his family ' s financial difficulties and a desire to support his parents financially . Additionally, the Director noted that during an interview with LTSCIS in August 2016, when asked why he came to the United States, the Petitioner testified, "In India I had no life and no hope. I came for my future." After considering the Petitioner's response to a notice of intent to deny 0JOID), the Director determined that the Petitioner had not resolved the inconsistencies in the record regarding his reasons for leaving India and therefore did not demonstrate that his request for STJ classification is bona fide.

On appeal, the Petitioner argues that the family court's SIJ order demonstrates a reasonable factual basis for its findings and shows that the family court considered the conflicting information regarding the Petitioner's reasons for leaving India. He notes that the family court referenced evidence including the Petitioner's affidavit to the court and testimony and psychological evaluation regarding the Petitioner' s reports of abuse. The Petitioner emphasizes that the family court explicitly considered his testimony to ACS that he left India for financial reasons and a desire to support his parents, but still found that he could not reunify with his parents due to abuse, neglect, abandonment, or a similar basis under state law. He asserts that USCIS should accept the conclusions of the family court, which were based on sufficient evidence.

Although the Petitioner correctly notes that the family court's SJJ order contains a reasonable factual basis for its findings and acknowledges his testimony to ACS, the record still does not show that the family court made a fully informed decision. In his interview with USCIS in August 2016, after the family court issued its SJJ order in 2015, the Petitioner testified that he came to the United

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States "for [his] future," that it was his uncle's idea for him to travel to the United States, and his uncle hired a travel agent to take him from India to Canada, after which he crossed 1nto the United States. This information conflicts with the ev1dence before the famlly court, including the Petitioner's affidavit, his guardian' s affidavit, the underlying motion for special findings and petition for guardianship, and the psychological evaluations from all of which indicate that the Petitioner's parents kicked him out of their home and sent him to the United States without his consent because they were unable or unwilling to care for him. The Petitioner has not sufficiently explained this contradictory information. Contrary to the Petitioner' s claim in his appeal brief that the family court "acknowledges the statements made at the time he was briefly interviewed by border authorities," the family court did not address statements by the Petitioner to immigration authorities upon apprehension, nor does the record show that the family court was aware of the facts reflected in the Petitioner's later testimony to USClS in August 2016.

Furthermore, documentation from the U.S. Office of Refugee Resettlement (ORR), which took custody of the Petitioner following his apprehension by authorities after crossing the border into the United States, also contains infonnation that contradicts the evidence before the family court. In April 2012 paperwork regarding arrangements for the Petitioner to be released into the custody of a sponsor, an _ORR caseworker summarized an interview in which the Petitioner reported his "family wanted him to have a better future and wanted [the Petitioner] to pursue higher education. . . . [The Petitioner] agreed to come to the U.S. to go to school and live with his uncle in New York." Additionally, the caseworker noted that the Petitioner' s "mother prefers the [Petitioner] going to the sponsor because she believes sponsor's home is a good place for [the Petitioner] to live." The evidence does not indicate that the family court was aware of this information at the time it issued its SIJ order. Upon review of the Petitioner's appeal, we issued a NOlO notifying him of this additional derogatory information. In response, the Petitioner asserts that we erred 1n relying on his statements to ORR because "statements made at an interview at the border by a minor should be afforded minimal to no weight," and "a child ... who is speaking to government officials for the first time in a foreign language do not possess the understanding of what should or should not be revealed during a border interview .... "

The Petitioner is correct that CSCIS exercises careful judgment when considering statements made by children at the time of initial apprehension by immigration or law enforcement officers to question a juvenile court's findings. 6 USCIS Policy Manual, supra, at J .3(8). Children often will not divulge personal facts of their family lives to unknown adults and in determining a child 's best interests and custodial placement, a juvenile court may make determinations that differ from the child's stated intentions at the time of apprehension. ld. Nevertheless, contrary to the Petitioner' s assertion, his interview w1th ORR was not a first-time interview with immigration or law enforcement officers at the border. Instead, the interview was conducted by a caseworker at a children's shelter where the Petitioner had resided for at least a month following his apprehension.1

Additionally, the interview also included corroborating statements from the Petitioner's mother and

1 The ORR release paperwork was completed in April 2012. Interviews with the Petitioner appear to have been conducted in February and March 2012.

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the sponsor in the United States to whom he was being released. Although we noted in our NOID that the Petitioner's mother informed the ORR caseworker that she wanted the Petitioner to live with the sponsor because she felt it was a good place for him to be, the Petitioner does not address that issue in his response.

indicated in her 2015 psychological evaluation of the Petitioner that he has "deficiencies in his ability to accurately describe events in India and . . . deficits in communication and self­expression." She explained that the Petitioner attributed " inconsistent courtroom testimony" to '" confusion' and extreme nervousness," and that her assessments indicated poor language skills and impaired verbal fluency . evaluation of the Petitioner's difficulty testifying in court does not explain the discrepancies between the evidence before the family court and the Petitioner's testimony to USCIS and ORR officials regarding his reasons for leaving India. In response to our NOTD, the Petitioner also submits a new personal statement in which he claims that he did not want to "speak badly of [his] parents" during his ORR interview because he was afraid he would be sent back to them. He states that he continued to be afraid during his November 2012 interview with ACS during the home study, and that he did not "open[] up about how [he] was treated and neglected by [his] parents" until he began meeting with in January 2013. However, this explanation does not clarify why the Petitioner told a US CIS interviewer in August 2016, more than a year after his final counseling session with in January 2015, that his uncJe helped him plan his trip to the United States "for his future." The Petitioner's testimony during his 2016 CSCIS interview was consistent with his 2012 ORR interview, but not with evidence he provided the family court in the interim. The evidence does not establish that the family court was fully informed of the Petitioner's cont1icting statements on his reasons for coming to the United States, and the Petitioner did not adequately explain the discrepancies in response to the Director's NOID or in his submissions on appeal. The record does not show that the Petitioner sought the family court order to gain relief from abuse, abandonment, neglect, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit. 6 USCIS Policy Manual J.2(D)(S) . Accordingly, he has not demonstrated that his request for STJ classification is bonafide and USCIS' consent, as required by section 10 I (a)(27)(J)(iii) of the Act, is not warranted.

B. No Qualifying Determination that Parental Reunification is Not Viable

Additionally, although the Director did not raise this issue, the family court's orders lack a qualifying determination that the Petitioner's "reunification with 1 or both of [his] parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law," as section lO I (a)(27)(J)(i) of the Act requires. The determination regarding parental reunification must be made under state child welfare laws. 6 USCIS Policy Manual, supra, at J.2(D)(4), J.3(A)(2). The court order itself should establish that the determination was made under state law, and state court orders that only cite or paraphrase immigration law and regulations will not suffice. !d. at J.3(A)(2). Also, the court order should specify with which parent(s) the Petitioner cannot reunify, and which ground applies: abuse, neglect, abandonment, or a similar basis under state law. 6 USCIS Policy Manual, supra, at J.3(A)(4).

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The family court did not indicate in its guardianship order that the Petitioner's parents subjected him to abuse, neglect, abandonment, or a similar basis under state law, or that his reunification with them would not be viable. In its SIJ order, the family court stated that the Petitioner's father emotionally and physically abused him, his parents did not pay for his schooling in India, and they kicked him out of the house and sent him to Canada. The family court did not specify whether the Petitioner could not reunify with his father, his mother, or both parents, and the family court's intention on that matter is not clear from the order. Despite stating that the Petitioner's father abused him, the family court did not specify that reunification with his father was not viable, but instead stated generally that "[r]eunification with one or both of his/her parents is not viable .... " Also, although the family court discussed mistreatment of the Petitioner by both of his parents, it did not state that the Petitioner's mother subjected him to abuse, neglect, abandonment, or a similar basis under state law or that he could not reunify with her as a result. Even when read as a whole, the SIJ order does not clearly establish whether the family court found that the Petitioner could not reunify with his father, mother, or both parents.

Furthermore, the family court's SIJ order does not establish that its finding was based in state law. In its SIJ order, the family court did not cite to any ~ew York law on abuse, neglect, abandonment, or a similar basis under state law, to establish the basis for its findings. !d. at J.3(A)(2) (stating that the court order should establish that the determination was made under state law). The underlying motion for special findings regarding the Petitioner's SIJ eligibility also does not cite any relevant ~ew York law on child welfare to form the basis in state law for the family court's findings, but instead references only federal immigration law. Consequently, the orders lack a qualifying determination that parental reunification is not viable, as section 101 (a)(27)(J)(i) of the Act requires.

C. The Family Court Was Not a Juvenile Court for SIJ Purposes

Furthermore, although not raised by the Director, the family court's orders were not issued by a juvenile court, as section 101(a)(27)(J)(i) of the Act requires. Section 10l(a)(27)(J)(i) of the Act requires a juvenile court to determine that reunification with one or both parents "is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." The required finding on parental reunification is a determination, in accordance with the relevant state child welfare law, that the petitioner cannot reunify with one or both parents prior to aging out of the court's jurisdiction. See 6 USCIS Policy ManuaL supra, at 1.2(0)(2). The finding must be made by a 'juvenile court," which is defined as one "having jurisdiction under State law to make determinations about the custody and care of juveniles." 8 C.F.R. § 204.11 (a). Consequently, when making the reunification finding, a juvenile court must have jurisdiction to determine whether a parent will be able to regain custody of the child. See 6 CSCIS Policy Manual, supra, at J .2(D)(2), (4).

The record lacks evidence that the family court had jurisdiction under state law to determine the Petitioner's parents' ability to regain custody over him as a child because he was over 18 years of age when it issued its guardianship and SIJ orders. The guardianship order was issued under section 661 of the ~ew York Family Court Act and section 1707 of the New York Surrogate's Court

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Procedures Act, which provide that the appointment of a guardian to an "infant" or "minor" includes a person who is less than 21 years old if that person consents to the appointment of a guardian after the age of 18. N.Y. Fam. Ct. Act§ 66l(a), N.Y. Surr. Ct. Proc. Act§§ 103(27), 1707(2). However, in New York, guardianship by the consent of an individual between the ages of 18 and 21 is not equivalent to custody of a child. New York family courts have jurisdiction to determine the "custody or visitation of minors," but in the context of custody proceedings "[t]he term 'infant' or 'minor' means a person who has not attained the age of eighteen years." N.Y. Fam. Ct. Act § § 119( c), 651. Once a person attains the age of 18, family courts lack jurisdiction over the person's custody. Troy SS. v. July UU, 140 A.D.3d 1348, 1350 (N.Y. App. Div. 3d Dept. 2016); see also Matter ofTyonna W., 149 A.D.3d 969, 970 (N.Y. App. Div. 2d Dept. 2017) (dismissing as academic parent's appeal of custody order because child had reached the age of 18); DelGaudio v. DelGaudio, 126 A.D.3d 848, 849 (N.Y. App. Div. 2d Dept. 2015) (same); Hershko v. Hershko, 103 A.D.3d 635 (N.Y. App. Div. 2d Dept. 2013) (same).

In this case, the Petitioner was over 18 years of age at the time the family court issued its guardianship and SIJ orders. Because the Petitioner was over the age of 18 at the time the family court issued its orders, the evidence does not establish that the family court had jurisdiction to determine whether or not his parents could regain custody over him under New York child welfare law. Consequently, while the New York family court orders in this case show that the court had jurisdiction to appoint a guardian for the Petitioner pursuant to his consent, the record does not show that the court had jurisdiction over his custody as a juvenile. For SIJ purposes, a state court must have jurisdiction under state law over both "the custody and care" of the SIJ petitioner as a juvenile to be considered a juvenile court. 8 C.F.R. § 204.11 (a).

III. CONCLUSION

USCIS' consent to the Petitioner's SIJ classification is not warranted. Also, the family court's orders do not contain a qualifying determination that parental reunification is not viable, and were not issued by a juvenile court. Consequently, the Petitioner is ineligible for SIJ classification.

ORDER: The appeal is dismissed.

Cite as Matter ofJ-S-, ID# 641213 (AAO Mar. 5, 2018)