NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0334-14T1
O.Y.P.C.,
Petitioner-Appellant, APPROVED FOR PUBLICATION
November 2, 2015
v.
APPELLATE DIVISION
J.C.P.,
Respondent-Respondent.
Submitted October 14, 2015 – Decided November 2, 2015
Before Judges Reisner, Hoffman and Leone.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, FD-02-504-14.
Cesar Martin Estela, attorney for appellant.
Respondent J.C.P. has not filed a brief.1
The opinion of the court was delivered by
REISNER, P.J.A.D.
Petitioner O.Y.P.C. appeals from a July 30, 2014 order of
the Family Part denying reconsideration of a December 20, 2013
order denying her immigration-related petition for custody of
1
In the trial court, petitioner filed proof of service on J.C.P.
However, J.C.P. did not appear in the action.
her brother, E.A.C.P., who had just turned eighteen.2 Filing
such an application is a necessary first step in the process of
seeking special immigrant juvenile (SIJ) status from the federal
government, under the auspices of the Immigration Act of 1990,
as amended by the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-
457, 122 Stat. 5044 (2008).3
In pertinent part, the statute provides that SIJ status can
be granted to an alien present in the United States
who has been declared dependent on a
juvenile court located in the United States
or whom such a court has legally committed
to, or placed under the custody of, an
agency or department of a State, or an
individual or entity appointed by a State or
juvenile court located in the United States,
and whose reunification with 1 or both of
the immigrant's parents is not viable due to
abuse, neglect, abandonment, or a similar
basis found under State law[.]
[8 U.S.C.A. § 1101(a)(27)(J)(i).]
2
Although the notice of appeal only listed the July 2014 order,
petitioner's brief addressed the merits of the December 2013
order as well. In the interests of justice we will consider
both orders. It is clear that both orders must be reversed to
comply with recent Supreme Court precedent.
3
For clarity we refer to these applications as SIJ petitions.
2 A-0334-14T1
Federal implementing regulations provide that an alien is
eligible for SIJ classification if the alien is "under twenty-
one years of age." 8 C.F.R. § 204.11(c)(1).4
According to petitioner's Family Part filing, the brother
was born in Guatemala. His father's name is not on his birth
certificate and the father has had no involvement in his life.
The boy's biological mother, J.C.P., concealed his parentage
from the child, and at his birth she handed him over to
petitioner, his then seventeen-year-old sister. Petitioner, at
seventeen, was expected to raise the child as her own, as well
as support both the child and the mother. The mother pretended
to be the boy's grandmother and provided him with no support.
According to petitioner's filing, she eventually moved to
the United States, entering without legal documentation, in
order to support her brother and her mother financially. She
left the brother with the "grandmother." While in Guatemala,
the boy was menaced by local gang members but the grandmother
did nothing to protect him, telling him that was just how life
4
The regulations also require that the juvenile "has been deemed
eligible by the juvenile court for long-term foster care." 8
C.F.R. § 204.11(c)(4). However, "the TVPRA liberalized the
requirements for SIJ status by eliminating the requirement that
the child be eligible for long-term foster care." H.S.P.,
supra, slip op. at 16. Thus, we view the regulations in light of
the TVPRA's amendment of the statute. H.S.P. v. J.K., 435 N.J.
Super. 147, 154-55 n.2 (App. Div. 2014), rev'd on other grounds,
__ N.J. __ (2015).
3 A-0334-14T1
was in Guatemala. Fearing for her brother's safety and well-
being, petitioner revealed to him that she was his sister, and
arranged for him to travel to the United States, where he lived
with her and enrolled in the local high school. The boy, who
speaks limited English, was still in high school when the
petition was filed, and he was completely dependent on
petitioner, financially and otherwise.
The TVPRA, as interpreted by the federal agency responsible
for its implementation, applies to "juveniles" under age twenty-
one. See 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R. 204.11(c)(1).
However, the trial court declined to entertain the SIJ petition
because the brother had just turned age eighteen. Relying on
the definition of "juvenile" found in the Code of Juvenile
Justice, N.J.S.A. 2A:4A-22(a), the court reasoned that under New
Jersey law the brother was no longer subject to the jurisdiction
of the Family Part.
After the trial court rendered its decision, our Supreme
Court decided H.S.P. v. J.K., ___ N.J. ___ (2015), which
clarified the Family Part's obligations in deciding SIJ
petitions. H.S.P. explained the unusual and important role that
these state court petitions play in the federal immigration
scheme. The Court also made clear that Family Part judges
hearing these cases have no obligation to apply or interpret
4 A-0334-14T1
federal immigration law, but they are obligated to make the
factual findings set forth in the federal SIJ regulations.
The opinion summarizes those concepts as follows:
The Family Part plays a critical role in a
minor immigrant's attempt to obtain SIJ
status but that role is closely
circumscribed. The Family Part's sole task
is to apply New Jersey law in order to make
the child welfare findings required by 8
C.F.R. § 204.11. The Family Part does not
have jurisdiction to grant or deny
applications for immigration relief. That
responsibility remains squarely in the hands
of the federal government. Nor does it have
the jurisdiction to interpret federal
immigration statutes. The Family Part's
role in the SIJ process is solely to apply
its expertise in family and child welfare
matters to the issues raised in 8 C.F.R. §
204.11, regardless of its view as to the
position likely to be taken by the federal
agency or whether the minor has met the
requirements for SIJ status. To that end,
Family Part courts faced with a request for
an SIJ predicate order should make factual
findings with regard to each of the
requirements listed in 8 C.F.R. § 204.11.
When analyzing whether reunification with "1
or both" parents is not viable due to abuse,
neglect, or abandonment, the Family Part
shall make separate findings as to each
parent, and that determination shall be made
by applying the law of this state. This
approach will provide USCIS with sufficient
information to enable it to determine
whether SIJ status should be granted or
denied, in accordance with the statutory
interpretation of the SIJ provision applied
by that agency.
[H.S.P., supra, ___ N.J. at ___ (slip op. at
3-4).]
5 A-0334-14T1
The Court recognized that "[t]he process for obtaining SIJ
status is 'a unique hybrid procedure that directs the
collaboration of state and federal systems.'" Id. at 17
(citations omitted). Later in the opinion, the Court referred
to "the role Congress envisioned for the juvenile courts of the
fifty states." Id. at 24. Informed by the Court's guidance, we
conclude that it would defeat the purpose of the hybrid federal-
state scheme Congress created if state family courts decline to
hear these cases solely because a juvenile is over the age of
eighteen, so long as the juvenile is still under the age of
twenty-one.
Significantly, the Court provided that the Family Part
"must make the following findings," based on the federal statute
and the regulations as modified by the TVPRA, namely whether:
(1) The juvenile is under the age of 21 and
is unmarried;
(2) The juvenile is dependent on the court
or has been placed under the custody of an
agency or an individual appointed by the
court;
(3) The "juvenile court" has jurisdiction
under state law to make judicial
determinations about the custody and care of
juveniles;
(4) That reunification with one or both of
the juvenile's parents is not viable due to
abuse, neglect, or abandonment or a similar
basis under State law; and
6 A-0334-14T1
(5) It is not in the "best interest" of the
juvenile to be returned to his parents'
previous country of nationality or country
of last habitual residence[.]
[H.S.P., supra, __ N.J. at __ (slip op. at
18) (quoting In re Dany G., __ A.3d __, __
(Md. Ct. Spec. App. 2015)).]
Thus, we understand H.S.P. as requiring Family Part judges
hearing these cases to make all of the federally-required
findings, regardless of whether they believe that the juvenile
should be declared dependent on the court or placed under the
custody of an entity or individual.5 Because the brother was
under the age of twenty-one, the trial court should have made
the federally-required SIJ findings. Accordingly, H.S.P.
requires that we remand the case so that the trial court can
hear the applicant's evidence concerning the pertinent SIJ
issues, and make the required SIJ findings.
In deciding the petition, the trial court should address
any state-law based relief petitioner seeks. When making that
5
For example, if the trial judge believes that, under New Jersey
law, the court cannot declare the juvenile "dependent on the
court" or place the juvenile "under the custody of an entity or
individual" solely because the juvenile is over the age of
eighteen, the court should state that conclusion. However, the
court must still proceed to make all the other SIJ-required
findings, using the same standards the court would use if the
child were under eighteen. It will be up to the federal
authorities hearing the juvenile's federal SIJ application to
determine the significance of the state court's state-law legal
conclusions and factual findings. See H.S.P., supra, __ N.J.
at __ (slip op. at 21).
7 A-0334-14T1
determination, the court should apply New Jersey law as it would
in any other case of that type. For example, if on remand
petitioner pursues custody of her younger brother, the trial
court should apply New Jersey law to that application, as though
it were an ordinary custody case.
We make the following observations for the trial court's
guidance. As the Court held in H.S.P., the SIJ evidence must be
viewed through the lens of New Jersey law, not the law of the
juvenile's country of origin. For example, in H.S.P., the
petition included evidence that, while living in India, the
juvenile went to work at age fifteen in a construction job that
was dangerous to his health. The Court held it was error to
view those facts in light of Indian child labor laws, but
rather, the trial court should have applied New Jersey law
concerning child abuse and neglect. H.S.P., supra, ___ N.J. at
___ (slip op. at 26-27).
The trial court should not concern itself with whether the
applicant filed the petition primarily to obtain legal
immigration status for the juvenile, or whether the federal
immigration authorities should or should not grant SIJ status.
"New Jersey state courts are not charged with undertaking a
determination of whether an immigrant's purpose in applying for
SIJ status matches with Congress's intent in creating that
8 A-0334-14T1
avenue of relief. That determination is properly left to the
federal government." H.S.P., supra, ___ N.J. at ___ (slip op.
at 25). The state court's role in the SIJ process "is to make
factual findings based on state law about the abuse, neglect, or
abandonment, family reunification, and best interests of the
child." H.S.P., supra, ___ N.J. at ___ (slip op. at 25)
(quoting USCIS, Immigration Relief for Abused Children (2014),
available at http://www.uscis.gov/sites/default/files/USCIS/
Green%20Card/Green%20Card%20Through%20a%20Job/Immigration_Relief
_for_Abused_Children-FINAL.pdf).
Finally, in determining any request for custody or
dependency petitioner may make, the court must determine if
there is a basis for custody or dependency under New Jersey law.
Generally, New Jersey statutes provide for the granting of
custody for juveniles under eighteen years old. See N.J. Div.
of Youth and Family Servs. v. W.F., 434 N.J. Super. 288, 295-96
(App. Div.), certif. denied, 218 N.J. 275 (2014). However, we
note that the Family Part does have some sources of jurisdiction
over persons between the ages of eighteen and twenty-one.
For example, "the Resource Family Parent Licensing Act
authorizes DYFS to place an individual between eighteen and
twenty-one years of age in a resource family home, a group home,
or another institution, when that individual is 'enrolled in a
9 A-0334-14T1
school or training program below college level.'" State ex rel.
J.S., 202 N.J. 465, 479 (2010) (citing N.J.S.A. 30:4C-26(a));
see N.J.S.A. 30:4C-27.5. The Age of Majority Act contains an
exception for "persons between 18 and 21 years of age who seek
to avail themselves of such services and who are enrolled in a
school or training program below college level." N.J.S.A.
9:17B-3. See also N.J.S.A. 9:17B-2(f) (declaring that the
Legislature did not intend to "[a]lter the provision of services
pursuant to the laws relating to dependent and neglected
children [under N.J.S.A. 30:4C-1 to -44] to persons between 18
and 21 years of age who seek to avail themselves of such
services and who are enrolled in a school . . . below college
level").
The same statute excepts from its definition of adulthood-
at-age-eighteen "the right of a court to take any action it
deems appropriate and in the interest of a person under 21 years
of age." N.J.S.A. 9:17B-3. Additionally, under Title 9, a
"placement may be made or continued [emphasis added]" under
N.J.S.A. 9:6-8.54 "beyond the child's eighteenth birthday" with
the child's consent. N.J.S.A. 9:6-8.54(c). See also N.J.S.A.
30:4C-11 (detailing the procedures for an application for care
and custody); N.J.S.A. 3B:12A-4(a)(6) (addressing kinship legal
10 A-0334-14T1
guardianship of a juvenile over eighteen who is enrolled in high
school).6
However, we need not address the issue further in this
opinion. As previously noted, if petitioner seeks custody of her
brother pursuant to state law, the court shall apply New Jersey
law in adjudicating that application. Due to the passage of time
since the petition was filed, petitioner should be permitted to
promptly update her application on remand should she choose to
do so.
We reverse the orders dated December 20, 2013 and July 30,
2014, and we remand the case to the Family Part for further
proceedings consistent with this opinion. Because the SIJ
portion of the petition is time sensitive, petitioner's
application must be heard and the requisite findings must be
issued within ninety days of the date of this opinion. We do
not retain jurisdiction.
Reversed and remanded.
6
The trial court's reliance on the definition of "juvenile" in
the Code of Juvenile Justice, N.J.S.A. 2A:4A-22(a), was
inapposite, because juvenile delinquency is not at issue here.
11 A-0334-14T1