New Jersey Supreme Court Defines Family Part's Role in Applications for 'Special Immigrant Juvenile' Status

In the consolidated appeals of H.S.P. v. MJ.K. and K.G. v. M.S. (Deceased) , the New Jersey Supreme Court examined the role of the Family Part of our state court with regard to the factual findings necessary for a non-citizen child to apply to the federal government for "special immigrant juvenile" (SIJ) status.

Process for Obtaining SIJ Status

Obtaining SIJ status is a two-step process. The first step requires, the juvenile, or an individual acting on his or her behalf, to petition a state juvenile court for an SIJ predicate order. The juvenile court must then make various findings, pursuant to 8 U.S.C.A. §1101 (a)(27)(J) and 8 C.F.R. §204.11, including whether the juvenile's reunification with one or both parents is not viable due to abuse, neglect, or abandonment or other similar basis under state law and that it is not in the child's best interest to return to his or her previous country of nationality or country of last habitual residence, among other things.

Once a predicate order has been issued by the juvenile court, the second step is for the juvenile, or an individual acting on his or her behalf, to submit a petition to the United States Citizenship and Immigration Services (USCIS) for an SIJ status (I-360 petition). If this petition is approved, the juvenile will be granted SIJ status, and is then permitted to apply for adjustment of this status in order to obtain legal permanent residency, and eventually, United States citizenship.

In its opinion, the New Jersey Supreme Court made it clear that the Family Part's role in SIJ proceedings is strictly limited to making predicate findings of fact regarding abuse, neglect, abandonment and a child's best interests, based upon New Jersey law, not that of a foreign nation. The Family Part's role in making these factual findings is regardless of the Family Part's opinion as to the ultimate decision likely to be taken by USCIS in determining a petition for SIJ status (i.e. whether the minor has met the requirements for SIJ status). Once the Family Part issues a predicate order pertaining to the child's welfare and best interest, the Family Part's jurisdiction over the matter is effectively ended. All decisions pertaining to immigration remain in the hands of the federal agency, USCIS.

Using these guiding principles, the Supreme Court reversed the holdings in both H.S.P. v. J.K. and K.G. v. M.S.

H.S.P. v. J.K.

In H.S.P. v. J.K., M.S. was born in India in 1994. M.S.'s father abandoned the...