In the Matter of the Guardianship of JOSE YY., an Infant. ERICZA K., Petitioner. JOSE YY., Appellant.
Calendar Date: January 8, 2018
Elser Moskowitz Edelman & Decker LLP, New York City (Judy
C. Selmeci of counsel) and James Tourangeau, Safe Passage
Project, New York City, for appellant.
Weiss, Rifkind, Wharton & Garrison LLP, New York City
(Jacqueline P. Rubin of counsel), for Kids in Need of
Defense, amicus curiae.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.
from an order of the Family Court of Sullivan County
(McGuire, J.), entered November 14, 2016, which, in a
proceeding pursuant to Family Ct Act article 6, denied Jose
YY.'s motion for a special findings order pursuant to 8
USC § 1101 (a) (27) (J).
November 2015, Family Court granted the petition of Ericza K.
and appointed her as the permanent guardian of her brother,
Jose YY., born in 2000 (hereinafter the child). In April
2016, the child moved for a threshold order that would enable
him to petition the United States Citizenship and Immigration
Services (hereinafter USCIS) for special immigrant juvenile
status (hereinafter SIJS) which, in turn, would enable him to
obtain lawful permanent residency in the United States
(see 8 USC §§ 1101 [a]  [J]; 1153 [b]
; 8 CFR 204.11). A child seeking SIJS from USCIS must
first obtain a special findings order from a state court with
jurisdiction over the juvenile, which must determine that (1)
the child is under 21 years of age, (2) the child is
unmarried, (3) the child is dependent upon a juvenile court
or legally committed to an individual appointed by that
court, (4) reunification with one or both parents is not
viable due to abuse, neglect, abandonment or a similar basis
under state law, and (5) it would not be in the child's
best interests to be returned to his or her native country
(see 8 USC § 1101 [a]  [J] [i] [ii]). Upon
such an application, the role of Family Court is to render
specific findings as to the above criteria, with the ultimate
determination as to whether to grant SIJS to a child to be
made by USCIS and its parent agency, the Department of
Homeland Security (see Matter of Castellanos v
Recarte, 142 A.D.3d 552, 553-554 ).
Correspondingly, it is not Family Court's role to render
an immigration determination (see id.). Following a
brief hearing, Family Court denied the child's motion.
The child appeals .
reverse. There is no dispute that the child was under the age
of 21 and unmarried when he filed the motion at issue. Family
Court denied the application upon finding that he failed to
meet the third, fourth and fifth factors. The court erred on
each count. The third factor of dependency was established by
virtue of the court having already appointed a permanent
guardian for the child (see Matter of Fifo v Fifo,
127 A.D.3d 748, 749 ; Matter of Trudy-Ann W. v Joan
W., 73 A.D.3d 793, 794-795 ). The record further
establishes that both parents are deceased making
reunification impossible. This orphan status, effectively
leaving the child abandoned and/or a destitute child, falls
within the "similar basis" category of factor four
Ct Act §§ 1012 [e], [f]; 1092 [a] ; Matter
of Carlos A.M. v Maria T.M., 141 A.D.3d 526, 528 ;
Matter of Victor C.-G. v Santos C.-T., 140 A.D.3d
951, 953 ; Matter of Luis R. v Maria Elena G.,
120 A.D.3d 581, 582 ). As for the fifth factor, we
conclude, upon our independent review of the record, that
returning the child to Honduras would not be in his best
interests (see Matter of Luis R. v Maria Elena G.,
120 A.D.3d at 582-583). The child testified that his father
died in 2003 and his mother in 2012, and their death
certificates are consistent with such testimony. After his
mother's death, he lived with an older sister who
operated a billiards business, where the child was fearful
and exposed to people smoking, drinking and using cocaine in
his presence. That sister has since relocated to Virginia,
and the child no longer has family residing in Honduras. In
sharp contrast, his guardian has provided a stable home for
the child where he feels safe and is attending school. Given
the above, the child's motion for a special findings
order should have been granted.
Jr., J.P., Clark, Mulvey and Rumsey, JJ., concur.
that the order is reversed, on the law, without costs, motion
granted, and it is hereby declared, in accordance with 8 USC
§ 1101 (a) (27) (J), that: (1) the child is under 21
years of age; (2) the child is unmarried; (3) the child is
dependent upon Family Court due to the November 2015
guardianship order issued pursuant to Family Ct Act §
661; (4) reunification of the child with his parents is
impossible since both parents are deceased, which, under
state law, leaves the child abandoned or in the alternative,
makes him a destitute child, a state basis similar to
abandonment; and (5) it is not in the child's best
interests to be returned to Honduras.
 This Court granted permission to Kids in
Need of Defense to file an ...