The U.S. Constitution gives the federal government exclusive authority over immigration law and policy. State and local governments have no direct authority to enforce immigration law, and the federal government generally cannot compel state or local agencies to do so. See Printz v. United States, 521 U.S. 898 (1997). In certain cases, however, federal immigration enforcement requires local government input. The New Jersey Supreme Court recently ruled on two consolidated cases from the Family Division that involved children seeking Special Immigrant Juvenile (SIJ) status. H.S.P. v. J.K., et al., Nos. 074241, 074527, A-114 Sept. Term 2013, A-117 Sept. Term 2013, slip op. (N.J., Aug. 26, 2015). The court found that New Jersey family courts lack jurisdiction to rule on actual immigration benefits, but they play a limited role in the immigration process because of their expertise in family law and child welfare.
Federal immigration law allows “special immigrant” status for unmarried children under the age of 21, for whom a return to their country of origin “would not be in [their] best interest.” 8 U.S.C. § 1101(a)(27)(J). U.S. Citizenship and Immigration Services (USCIS) makes a determination as to whether a child qualifies for SIJ status. It must find that the child has been declared a dependent of a state-level juvenile court, that this court has ruled that reunification with the child’s parents is not viable, that it would not be in the child’s best interests to be removed from the U.S., and that this situation is likely to continue until the child reaches the age of majority. 8 C.F.R. § 204.11. This requires certain specific findings from a state juvenile court. Once a child receives SIJ status, they may be able to obtain permanent residency and naturalization.
The two cases consolidated in the H.S.P. ruling involve child custody proceedings. In the first case, the child came to the U.S. from India without documentation in 2011 at the age of 16. When he was 15, he took a construction job working 75 hours per week to support his mother, who was too sick to work. When he also became sick, his mother sent him to the U.S. to live with her brother, H.S.P. In 2012, H.S.P. petitioned for legal custody of the child and requested the findings needed to obtain SIJ status. The family court declined to make those findings, holding that neither parent had “abandoned” the child.
The second case involved two children from El Salvador. In 2008, their mother moved to New Jersey, while they remained in El Salvador with their father. The mother remained in close contact with her children, and by 2012 she believed that they were in danger from local gang violence. After their father was murdered by gang members, the children left El Salvador and were apprehended at the U.S.-Mexico border in June 2013. They applied for SIJ status, and the mother filed a custody proceeding in a New Jersey family court. The court denied the SIJ application, finding that reunification of the children with their mother was viable.
The New Jersey Supreme Court reversed both rulings. It held that state family courts play a very limited role in SIJ cases by providing findings of fact to USCIS. The family courts and the Appellate Division erred, the court held, by making substantive rulings on the SIJ applications themselves. It reversed and remanded both cases with instructions “to make findings regarding each element of 8 C.F.R. § 204.11,” with the “sole purpose” of “mak[ing] the factual findings listed in that regulation.”
Immigration attorney Samuel C. Berger represents immigrants and prospective immigrants to the New York City and Northern New Jersey areas, as well as their families and their employers. Contact us online or at (212) 380-8117 today to schedule a confidential consultation with an experienced and knowledgeable advocate for immigrants’ rights.
More Blog Posts:
Federal Judge Harshly Rebukes Government’s Treatment of Immigrant Children Held in Detention, New York & New Jersey Immigration Lawyer Blog, September 10, 2015
The Right of Asylum for Immigrants in New Jersey and New York, New York & New Jersey Immigration Lawyer Blog, August 27, 2015
U.S. Supreme Court Rules that State Department Does Not Have to Tell U.S. Citizen Why It Denied Visa Petition for Her Husband, New York & New Jersey Immigration Lawyer Blog, August 13, 2015