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In re Mario S.

Family Court, Queens County

November 21, 2012

In the Matter of Mario S. A Person Alleged to be a Juvenile Delinquent, Respondent.

Michael A. Cardozo, Corporation Counsel (Aimee L. Sklar-Calogero, of counsel), New York City, for Presentment Agency.

Robin Stone Einbinder, Jamaica, and The Door's Legal Services Center (Helen Pundurs and Travis M. Johnson, of counsel), New York, NY, for Mario S.

JOHN M. HUNT, Judge.


Mario S., the respondent in this juvenile delinquency proceeding commenced under article 3 of the Family Court Act, has requested that this Court issue an order pursuant to 8 USC §1101 (a) (27) (J) finding him eligible for "special immigrant juvenile" ("SIJ") status. For the reasons which follow, the Court finds that Mario S. satisfies the statutory criteria for a determination that he is eligible for SIJ status, and this order constitutes an "eligibility order" for any application which he may file for SIJ status with federal immigration authorities. [1]


By petition filed pursuant to Family Court Act §310.1 (1) on December 16, 2009, it was alleged that Mario S. (born March 1, 1994), is a juvenile delinquent within the meaning of Family Court Act §301.2. [2] The juvenile delinquency petition alleged that respondent committed acts which, were he an adult, would constitute the crimes of Criminal Mischief, Defacement of Property, and Possession of Graffiti Instruments. The petition further alleged that respondent was born on March 1, 1994, that he resides in Astoria, New York, and that he resides with his mother, Irma V.

Following preliminary proceedings upon the petition, the respondent entered an admission that he committed an act which would constitute the misdemeanor of Possession of Graffiti Instruments (Penal Law §145.65), in satisfaction of the entire petition (Fam. Ct. Act §321.2 [3]). The Court then proceeded to a dispositional hearing at the conclusion of which, respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act §352.1 [1]), and he was placed on probation for a period of 12 months upon specific conditions which included his participation with Esperanza, a community-based supervision program, his regular attendance at school, the completion of 80 hours of community service, random screening and negative test results for alcohol, marijuana, and controlled substances, adherence to a daily curfew, and no further arrests for criminal or delinquent behavior (Fam. Ct. Act §§352.2 [1] [b]; 353.2).

A petition alleging that respondent violated the conditions of the order of probation was filed by the Department of Probation on August 4, 2010 (Fam. Ct. Act §360.2). Respondent denied the allegations in the petition and a hearing was conducted in accordance with Family Court Act §360.3. At the conclusion of the hearing the Court found that the evidence established that respondent had violated the conditions of his probation by failing to report to meetings with his probation officer, that he failed to cooperate with the Esperanza program, he failed to attend school regularly and was truant, and that he failed to obey his mother's lawful commands and had been away from home without her permission. A further dispositional hearing was conducted and at the conclusion thereof, the Court revoked the prior order of probation and entered a new order of disposition (Fam. Ct. Act §360.3 [6]). The new order of disposition placed respondent in the custody of the New York State Office of Children and Family Services ("OCFS") for a period of 12 months with the further directive that OCFS place respondent in the physical custody of Lincoln Hall, an authorized agency, for confinement and treatment (Fam. Ct. Act §§360.3 [6]; 352.2 [1] [c]; 353.3 [4]; see Matter of Robert J., 2 N.Y.3d 339, 343 [2004]; Matter of Vito G.L., 27 A.D.3d 471 [2006]).


Respondent through his court appointed attorney (Fam. Ct. Act §249 [a]), in conjunction with counsel from The Door's Legal Services Center, who are assisting him with immigration issues, requests that this Court make "special findings" of fact which will "enable him to petition the United States Customs and Immigration Services (USCIS) for Special Immigrant Juvenile Status pursuant to Immigration and Nationality Act 8 U.S.C. §1101 (a) (27) (J) (2010), as amended by Pub. L. No. 110-457, 122 Stat. 5044 (effective March 23, 2009) and 8 C.F.R. §204.11 (2008)".

More specifically, Mario S. requests that the Court find that he is an unmarried person less than 21 years of age; that he is dependent upon the Family Court by virtue of the juvenile delinquency proceeding which resulted in his placement in state custody; that reunification with at least one of his parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and that it is not in his best interests to return to Mexico, his country of birth.

In support of the application for the requested "special findings", counsel for the respondent assert that he was born in Mexico to Irma V. and Mario S., Sr. on March 1, 1994, [3] and that "[w]hen Mario [Jr.] was about six months old, his mother brought him to the United States to live with his father, who had come to the U.S. in early 1993. Mario's parents separated in 2004, after which Mario and his siblings remained with their mother in Astoria, Queens."

Respondent further asserts that his father has not supported him or his siblings since his parents separated in 2004, and that his father has made no substantial effort to maintain a relationship with him. In addition, "[i]n 2008... Mario went to live with his father in Corona, Queens. After Mario had lived there for about three months, his father was arrested on charges related to domestic violence for slapping his girlfriend. Mario's father was subsequently deported" and Mario, Jr. ...

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