U.S.
Citizenship
and Immigration
Services
In Re: 03027570
Appeal
of
Long Island, New York Field Office Decision
Form 1-360, Petition for Special Immigrant Juvenile
Non-Precedent Decision
of
the
Administrative Appeals Office
Date:
NOV
. 28, 2022
The Petitioner seeks classification as a special immigrant juvenile (SIJ) under sections
101
( a)(27)(J)
and 204(a)(l)(G)
of
the Immigration and Nationality Act (the Act), 8 U.S.C.
§§
1101(a)(27)(J) and
1154(a)(l)(G). The Director
of
the Long Island Field Office (Director) denied the Petitioner's Form
1-360, Petition for Special Immigrant Juvenile (SIJ petition), and the matter is before us on appeal.
Subsequent to the filing
of
the appeal, the District Court for the Southern District
of
New York issued
ajudgment
inR.F.M
v.
Nielsen, No.
18
Civ. 5068 (S.D.N.Y. April
8,
2019, amended May 31, 2019).
On appeal, the Petitioner asserts that she has demonstrated her eligibility for SIJ classification.
We
review the questions in this matter de nova. Matter
of
Christo
's
Inc., 26 I&N Dec.
537,537
n.2 (AAO
2015). Upon de nova review, we will sustain the appeal.
I.
LAW
To establish eligibility for SIJ classification, petitioners must show that they are unmarried, under
21
years old, and have been subject to a state juvenile court order determining that they cannot reunify
with one or both parents due to abuse, neglect, abandonment, or a similar basis under state law. Section
101(a)(27)(J)(i)
of
the Act; 8 C.F.R. § 204.
ll(b)
.
1
To establish that they are under
21
years old, SIJ
petitioners must submit, as initial evidence, documentary evidence
of
their age, "in the form
of
a valid
birth certificate, official government-issued identification, or other document that in USCIS' discretion
establishes the petitioner's age." 8 C.F.R. § 204.
ll(d)(2).
Petitioners must have been declared
dependent upon the juvenile court, or the juvenile court must have placed them
in
the custody
of
a
state agency or an individual or entity appointed by the state
or
the juvenile court. Section
101(a)(27)(J)(i)
of
the Act; 8 C.F.R. §
204.ll(c)(l).
The record must also contain a judicial or
administrative determination that it is not in the petitioners' best interest to return to their or their
parents' country
of
nationality or last habitual residence.
Id.
at section
101
( a)(27)(J)(ii); 8 C.F.R. §
204.1 l(c)(2).
1
The Department
of
Homeland Security issued a final rule, effective April 7, 2022, amending its regulations governing
the requirements and procedures for petitioners who seek SIJ classification. See Special Immigrant Juvenile Petitions, 87
Fed. Reg. 13066 (Mar. 8, 2022) (revising 8 C.F.R.
§§
204, 205, 245).
U.S. Citizenship and Immigration Services (USCIS) has sole authority to implement the SIJ provisions
of
the Act and regulation. Homeland Security Act
of
2002, Pub. L. No. 107-296,
§§
471(a), 451(b),
462(c), 116 Stat. 2135 (2002). SIJ classification
may
only
be
granted upon the consent
of
the Secretary
of
the Department
of
Homeland Security (DHS), through USCIS,
when
the petitioner meets all other
eligibility criteria and establishes that the request for SIJ classification is
bona
fide, which requires the
petitioner to establish that a primary reason the required juvenile court determinations were sought
was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law.
Section 101(a)(27)(J)(i)-(iii)
of
the Act; 8 C.F.R. § 204.1 l(b)(5). USCIS
may
also withhold consent
if
evidence materially conflicts with the eligibility requirements such that the record reflects that the
request for SIJ classification was not bona fide. 8 C.F .R. § 204.11 (b )( 5). Petitioners bear the burden
of
proof
to demonstrate their eligibility
by
a preponderance
of
the evidence. Matter
of
Chawathe, 25
I&N Dec. 369, 375 (AAO 2010).
II. ANALYSIS
A. Relevant Evidence and Procedural History
In 2015,
the
New
York
Family Court for I (Family Court) appointed guardianship
of
the Petitioner to her sister, finding that the guardianship appointment
of
the Petitioner, who was 20
years old, "shall last until [her] 21st birthday
....
"
On
the same day, the Family Court issued an
ORDER-Special Immigrant Juvenile Status (initial SIJ order), determining among other findings
necessary for SIJ eligibility under section 101(a)(27)(J)
of
the Act, that the Petitioner was "dependent
upon the Family Court, or has been committed to
or
placed in the custody
of
a state agency or
department,
or
an individual or entity appointed
by
the state
or
Family Court." The Family Court
further declared that the Petitioner's reunification with her father was not viable due to abuse and
neglect, and that it was not in her best interest to
be
removed from the United States and returned to
Nicaragua, her country
of
nationality.
On
May
11, 2015, based upon the Family
Court's
orders, the
Petitioner filed her SIJ petition.
The Director denied the petition, determining that the Family Court was not acting as a juvenile court,
which is defined in 8 C.F .R. § 204.11 (
a)
as a court with
'jurisdiction
under state law to make judicial
determinations about the dependency and/or custody and care
of
juveniles." The Director concluded
that as the Petitioner was 20 years old and
had
attained the age
of
majority
in
New
York
when
the
orders were granted, the Family Court did not have jurisdiction under
New
York law over the
Petitioner's custody as a juvenile and the guardianship issued upon her consent was not equivalent to
a qualifying custodial placement. The Director further determined that the record did not contain
qualifying determinations regarding parental reunification and her best interest, and that she
had
not
demonstrated that
USCIS'
consent to her SIJ classification was warranted. The Petitioner timely
appealed the Director's decision.
On
appeal, the Petitioner submits an amended SIJ order (amended SIJ order) issued nunc pro tune to
the date
of
the initial SIJ order. The amended SIJ order states that the Family Court made its findings
"after examining the motion papers, supporting affidavits, pleadings and prior proceedings
...
and/or
hearing testimony, [and in] accordance
with§
661
of
Family Court
Act
[FCA]
and§
1701
of
Social
Services
Law
[SSL]." The amended SIJ order cites to
New
York
state law on abuse, neglect, and
abandonment, as defined in sections 371(4-b)(i) and 384(b)(5)
of
the SSL and section 1012
of
the
2
FCA, respectively. The amended SIJ order additionally states, in its best interest determination, that
"there are no family members [in Nicaragua] who are willing or able to provide [the Petitioner] with
a safe home, rendering [her] destitute and homeless," and cites to New York case law regarding the
best interest
of
the child.
In August 2021, we issued a notice
of
intent to dismiss (NOID) explaining that in light
of
discrepancies
in the record, the Petitioner had not provided sufficient evidence to satisfy the requirement that she be
under
21
years
of
age at the time
of
filing. The record indicates that when the Petitioner was
apprehended
by
U.S. immi ration authorities in 2013, she was carrying a Nicaraguan
Passport bearing the
name
and listing her date
of
birth
as
I 1993. Based
on this date
of
birth, the Petitioner would have been 22 years
of
age when she filed her SIJ petition on
May 11, 2015, rendering her ineligible for the benefit. The Petitioner submitted a response to our
NOID in October 2021, including copies
of
her updated Nicaraguan passport and sole birth certificate,
both reflecting the date
of
birth of 1994. She also submitted a statement from an attorney in
Nicaragua, detailing efforts to rectify the birth certificate, and an order from the Nicaraguan Civil
Registry that indicates the attached birth certificate is the only one recognized by the Nicaraguan
government.
B.
S.D.N.Y. Judgment and Applicability to the Petitioner
In
R.F.M
v.
Nielsen, the district court determined that USCIS erroneously denied plaintiffs' SIJ
petitions based on USCIS' determination that New York Family Courts lack jurisdiction over the
custody
of
individuals who were over
18
years
of
age. 365
F.
Supp. 3d 350, 377-80 (S.D.N.Y. Mar.
15, 2019). Because the plain language
of
the Act requires either a dependency declaration or a
custodial placement and the New York Family Court guardianship orders rendered the plaintiffs
dependent upon the Family Court, the district court held that USCIS exceeded its statutory authority
in requiring New York Family Courts to nonetheless have jurisdiction over a juvenile's custody in
order to qualify as juvenile courts under the SIJ provisions
of
section 10l(a)(27)(J)
of
the Act. Id.
The district court also found that guardianships issued under the FCA §
661
were judicial
determinations about the custody and care
of
juveniles, pursuant to the definition
of
juvenile court at
8 C.F.R.
§
204.ll(a).
Id.
at 378.
The district court granted the plaintiffs' motion for summary judgment and for class certification. The
court's judgment certified a class including SIJ petitioners, like the Petitioner in this case, whose SIJ
orders were "issued by the New York family court between the petitioners' 18th and 21st birthdays"
and whose SIJ petitions were denied on the ground that the Family Court "lacks the jurisdiction and
authority to enter SFOs [Special Findings Orders] for juvenile immigrants between their 18th and 21st
birthdays."
R.F.M
v.
Nielsen, Amended Order, No.
18
Civ. 5068 (S.D.N.Y. May 31, 2019).
The record before us establishes that the Petitioner is a member
of
the
R.F.M
v.
Nielsen class. In
accordance with the district court's orders in that case, the Family Court was acting
as
a juvenile court
when it appointed a guardian for the Petitioner and declared her dependent on the Family Court. As
such, we withdraw the Director's decision to the contrary.
3
C.
Parental Reunification Determination
The Act requires a juvenile court's determination that an SIJ petitioner cannot reunify with one or both
of
their parents due to abuse, neglect, abandonment, or a similar basis under state law. Section
10l(a)(27)(J)(i)
of
the Act. Because the Act references this finding
as
made under state law, the record
must contain evidence
of
a judicial determination that the juvenile was subjected to such maltreatment
by one or both parents under state law. 8 C.F.R.
§ 204.1 l(c)(l)(ii). The Petitioner bears the burden
of
proof to establish the state law the juvenile court applied in making this determination.
The Director determined that the Family Court did not make a qualifying parental reunification
determination because the SIJ order did not cite to the state law under which the reunification finding
was made. On appeal, however, the amended SIJ order cites to New York state law on abuse and
neglect under section 371(4-b)(i)
of
the SSL and section 1012
of
the FCA
as
the basis for the Family
Court's determination that the Petitioner's father abused and neglected her and that she could not be
reunified with him under New York state law.
2
Accordingly, the record establishes that the Family
Court made a qualifying parental reunification determination. Therefore, we withdraw the Director's
decision to the contrary.
D.
Best Interest Determination
The Act requires a judicial or administrative determination that it is not in the best interest
of
the SIJ
petitioner to be returned to their (or their parents') country
of
nationality or last habitual residence.
Section 10l(a)(27)(J)(ii)
of
the Act. As we have explained in policy guidance, in making its best
interest determination, the family court must "make an individualized assessment and consider the
factors that it normally takes into account when making best interest determinations."
See 6 USCIS
Policy Manual
J.2(C)(3), http://www.uscis.gov/policy-manual (explaining that "[t]he child's safety
and well-being are typically the paramount concern" and that "USCIS defers to the juvenile court in
making this determination
....
").
Id.
Here, the Director determined that the record lacked a qualifying
best interest determination because language in the record suggested that the Family Court intended
to make a decision about the Petitioner's removal rather than whether placement in Nicaragua was in
her best interest, and the record failed to indicate that the Family Court considered any other possible
custodial placement for her in Nicaragua.
Upon
de novo review, however, the record establishes that the Family Court made a qualifying best
interest determination. The initial SIJ order describes the abuse
of
the Petitioner by her father,
including beating her and throwing her out
of
the house. In an affidavit before the Family Court, the
Petitioner described her mother's mental health issues, noting that she heard her aunts say that her
mother was "never quite right" after her birth. The amended SIJ order states that the Petitioner's
mother suffered a breakdown and then left her in the care
of
her abusive father, who abandoned her.
The amended SIJ order also states that "there are no family members [in Nicaragua] who are willing
or able to provide [the Petitioner] with a safe home, rending [her] destitute and homeless," and cites
to New York case law regarding the factors to consider in determining a child's best interest. The
2
The amended SU order additionally declares that the Petitioner's reunification with her mother is not viable due to
abandonment and neglect and that her reunification with her father is not viable due to abandonment. However, as the
Petitioner has otherwise established that the SIJ orders contain a qualifying parental reunification determination, we need
not address these additional findings.
4
record reflects that the Family Court made an "individualized assessment" under New York law that
took into account the Petitioner's "safety and well-being" in determining that it was not in her best
interest to return to Nicaragua. See 6 USCIS Policy Manual J.2(C(3). As such, we withdraw the
Director's decision to the contrary.
E.
The Petitioner's Age at the Time
of
Filing
An SIJ petitioner must establish that they were under
21
years
of
age
at
the time
of
filing the SIJ petition.
Section 10l(a)(27)(J)
of
Act; 8 C.F.R. §
204.ll(b)(l).
To meet this requirement, petitioners must
submit, as initial evidence, documentary evidence
of
their age, "in the form
of
a valid birth certificate,
official government-issued identification, or other document that in USCIS' discretion establishes the
petitioner's age." 8 C.F.R.
§ 204.1 l(d)(2).
The record shows that when the Petitioner was apprehended by U.S. immigration authorities in
I
2013,
she was in possession
of
a Nicaraguan Passport indicating thatl I 1993, was
her date
of
birth. Notwithstanding this information, the Petitioner has maintained that her correct date
of
birth
isl
I 1994, and that she was 20 years old when she filed the SIJ petition. In the record
before the Director, she provided a birth certificate that she claimed referred to her with the name
listing
I I 1994, as the date
of
birth, and containing the name
of
the
Petitioner's mother
as
the only parent. The Petitioner also submitted a baptismal certificate containing
the namel
I which listed both
of
her parents and stated thatl I 1994,
was her date
of
birth. She further provided a Certificate
of
No Record, dated March 2002, from the
Registry
of
Civil Status
of
Persons
of
Managua stating that no birth certificate existed for her in 2002
when her parents attempted to register her birth, and that they claimed that her date
of
birth
wasD
D1994.
The Petitioner additionally provided affidavits from herself, her aunt, and her sister that she
submitted to the Family Court explaining her mother's use
of
the name
_______
for
her, that her mother had registered her birth three different times under different names, that the
Petitioner had used an incorrect birth certificate to obtain a passport
so
that she could flee Nicaragua,
and that she lacked a proper and accurate birth certificate.
Based on this evidence, we informed the Petitioner in the NOID that the record contained insufficient
evidence establishing that she was the same person as
_______
and
it lacked sufficient
documentation such
as
a national ID, school records, and other credible evidence to establish! I
1994,
as
her date
of
birth rather than thel 993, date
of
birth that appeared in her passport.
In response to the NOID, the Petitioner provides a Nicaraguan birth certificate with Apostille obtained
in September 2021 from the Central Registry
of
Civil Status
of
People, Supreme Electoral Council.
The birth certificate contains the name
I I and states that I 1994,
is the date
of
birth. She additionally provides a copy
of
the biographical page
of
her passport
containing the same name and date
of
birth as the birth certificate. In addition, she provides a
Certificate from the General Directorate
of
the Central Registry
of
the Civil Status
of
the People
of
Nicaragua, also consistent with the birth certificate and passport, which states that the nullity
of
I I is duly registered. Finally, the Petitioner provides an affidavit from an
attorney in Nicaragua explaining her investigation into the Petitioner's correct name and date
of
birth
and the process
of
working with the appropriate government authorities to correct her official
documents.
5
As previously stated, petitioners must submit documentary evidence
of
their age "in the form
of
a
valid birth certificate, official government-issued identification, or other document that in users'
discretion establishes the petitioner's age." 8 C.F.R. § 204.1 l(d)(2). Upon de nova review, the
corrected birth certificate and passport, nullity ofl
las
a name and
identity
of
the
Petitioner, and explanation from her attorney satisfy this evidentiary requirement, establish
1994, as the Petitioner's date
of
birth, and demonstrate that she was under
21
years
of
age when she
filed her SIJ petition.
F.
USCIS' Consent
SIJ classification may only be granted upon the consent
of
DHS, through USCIS, where a juvenile
meets all other eligibility criteria. Section 10l(a)(27)(J)(iii)
of
the Act; 8 C.F.R. § 204.1 l(b)(5). To
warrant
users' consent, juveniles must establish that the request for SIJ classification was bona fide,
such that a primary reason the requisite juvenile court or administrative determinations were sought
was to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law. See
8 C.F.R.
§ 204.l l(b)(5). For USCIS to consent, petitioners must establish the juvenile court order or
supplemental evidence includes the factual bases for the parental reunification and best interest
determinations and the relief from parental maltreatment that the court ordered or recognized. 8 C.F.R.
§ 204.11 ( d)( 5)(i). Furthermore, USCIS may withhold consent
if
evidence materially conflicts with
the eligibility requirements such that the record reflects that the request for SIJ classification was not
bona fide. 8 C.F.R.
§ 204.ll(b)(5).
The Director concluded that USCIS' consent to the Petitioner's SIJ classification was not warranted
because the initial SIJ order lacked a reasonable factual basis for the Family Court's findings. We
withdraw this determination,
as
the Petitioner's affidavit to the Family Court and SIJ orders describe
abusive behavior toward the Petitioner by her father, including beatings,
as
well as her mother's mental
breakdown and inability to care for her. A Court Ordered Investigation by the New York City
Administration for Children's Services, also in the record, provides further detail regarding the abuse
and neglect by the Petitioner's father. The amended SIJ order further states that after reviewing
evidence and hearing testimony, the Family Court determined that due to a lack
of
family members to
care for her, the Petitioner would be left destitute and homeless upon return to Nicaragua.
In addition, the Petitioner has submitted evidence establishing her correct date
of
birth and explaining
the reasons for the discrepancies concerning her age. Multiple affidavits explain the discrepancy
between the dates
of
birth; specifically, an aunt who was present shortly after the Petitioner's birth
attested to the correct date, and the Petitioner and her sister described the mental health concerns
regarding their mother that contributed to the failure to correctly register the Petitioner's birth. The
Petitioner has provided an order from the Nicaraguan Civil Registry, identifying her birth certificate
with the 1994 date
of
birth as the only birth certificate recognized by the Nicaraguan government. She
also submitted a copy
of
her Nicaraguan passport with the 1994 date
of
birth. Finally, the Petitioner
provided a Family Court order issued nunc pro tune, finding the court had jurisdiction over her
as
a
person under the age
of
21
at the time. Notably, this order was issued after considering evidence
of
the discrepancies in dates
of
birth-thus,
the Family Court found that the evidence supported a finding
that the 1994 date
of
birth was correct.
6
The evidence on the record establishes that the Petitioner obtained the SIJ orders in proceedings
granting relief from parental maltreatment and includes the factual basis for the Family Court's
findings. The record also demonstrates that the Petitioner has satisfied the remaining eligibility
requirements for SIJ classification. Consequently, the Petitioner has established that she is eligible for
and merits USCIS' consent to her SIJ classification.
ORDER: The appeal is sustained.
7
