New Jersey Supreme Court Addresses Limited Role of Family Court in Immigration Matters

The Presidential election is about a month away, and one of the major issues of this election has been immigration.   Immigration is regulated under federal law, chiefly under the Immigration and

Nationality Act (INA), enacted by the U.S. Congress in 1952, and the Immigration Reform and Control Act (IRCA), which was passed by the U.S. Congress in 1986 in an effort to curb illegal immigration.   The U.S. Supreme Court has has almost universally overruled any state’s efforts to regulate immigration, not only based upon the Supremacy Clause of the U.S. Constitution, but also to ensure a national standard on immigration rather than various patchwork laws by the individual states.  Family law, however, is an area that falls into the control of the individual state’s authority to legislate and govern.

It may surprise you then to learn that there are situations in which immigration issues intersect with family law.   Last year, for example, the Supreme Court of New Jersey in the opinion of H.S.P. v. J.K., 23 N.J. 196 (2015) discussed one of the ways in which a family court judge in New Jersey may be called upon to make a decision that affects immigration.  In this matter, the Supreme Court examined two state family court decisions regarding applications for Special Immigrant Juvenile Status (SIJ) and what the role of the New Jersey courts are.

The first SIJ application addressed in the decision was made on behalf of a juvenile, “MS”.  MS was born in India.  His father abandoned the family, so MS and his siblings were raised in India by their mother, “JK”.  In India, MS’s siblings died of malnutrition  and JK became ill herself.  MS quit school in order to work a construction job in India.   He came to the U.S. in 2011 without proper documentation to live with his uncle, “HSP” in Passaic County.   MS’s mother in India and the uncle in New Jersey together decided that HSP would petition the New Jersey family court for custody of MS and to ask the state family court judge to make the factual findings needed to classify MS as a “Special Immigrant Juvenile” as required by the Code of Federal Regulations (8 C.F.R. §204.11).  The family court granted HSP temporary custody of MS.   In making factual findings related to Special Immigration Juvenile status, the family court judge found that MS had not been abandoned by his parents in India and, therefore, the judge did not need to make any further findings about whether it was in the juvenile’s best interest to either return to India or to remain in the United States.  The family court judge also indicated that MS did not show that he was abused or neglected in India as he did not demonstrate that leaving school and working at a construction job there did not violate child welfare laws in India.   Also the court found that HSP’s request for custody was made not to protect MS from abuse or neglect by his parents in India, but to obtain legal residence in the U.S., which was not the intent of Congress in passing the immigration legislation.

The second SIJ application that the New Jersey Supreme Court addressed were two juveniles, “JSG” and “KSG”, who were born in El Salvador.  In 2008 their mother, “KG”, moved to the United States.  KG spoke daily with JSG and KSG and sent money to her husband, “MS”, in El Salvador, where he was raising the children.   In 2012, one of the children, JSG, was raped by a gang member, after which she attempted suicide.  In 2013, the gang murdered MS, after which the children were cared for their grandmother, who was physically abusive to the children.  After the gang threatened the children’s grandmother, JSG and KSG fled El Salvador, and they crossed into the U.S. at the Mexican border, where they were apprehended by immigration enforcement agents, who instituted removal proceedings.  While the removal proceedings were pending, the children’s mother, “KG”, who was living in Union County, New Jersey, petitioned the family court for custody of her daughters, and she asked the New Jersey family court judge to make necessary findings pursuant to the Code of Federal Regulations for her children to have Special Immigration Juvenile status.  KG was granted custody of JSG and KSG, but the family court denied them Special Immigration Juvenile status.  The family court judge found that the children could not reunify with their deceased father in El Salvador, that there were no family members in El Salvador to care for them, and that it was not in the children’s best interest to return to El Salvador. However, the judge denied the children SIJ status because she was not able to demonstrate that she could not reunify with their mother.

The Supreme Court of New Jersey reversed the decision of those two family court judges and in so doing, clarified the role of the New Jersey state court when confronted with having to make findings pursuant to federal regulations and a federal immigration statute.   The Supreme Court pointed out that in 1990 it was Congress who enacted the Immigration and Nationality Act to protect abused, neglected or abandoned children who entered the United States illegally.   “Special Immigration Juvenile” is an immigration status allowing the children to obtain lawful residence in the U.S.

The Supreme Court reversed the decisions of the trial courts and clarified the role of New Jersey state courts when confronted with the obligation to make SIJ findings pursuant to the federal regulation and federal immigration statute.  The Court first pointed out that the Immigration and Nationality Act was amended in 1990 by Congress to protect abuse, neglected or abandoned children so that they could obtain lawful residence in the U.S., and eventually citizenship here.   The Supreme Court stressed that state courts must work in coordination with the federal government as to SIJ status, but that New Jersey courts are only to play a limited and specific role.

The Code of Federal Regulations requires a juvenile seeking Special Immigration Status to undergo a two step process.  First, the juvenile must apply to a state court to obtain an order that the juvenile meets statutory requirements.  Then the juvenile has to submit a petition to the United States Citizenship and Immigration Services (USCIS).   Among the requirements that the juvenile must demonstrate is that it is not possible to reunify with one or both parents due to abuse, neglect or abandonment.   The family court also decides if it is in the juvenile’s bet interest to return to his/her home country.

The Supreme Court was clear, however, that the state court must not either grant or deny applications for immigration, nor must it grant or deny SIJ status.  The state court must not interpret federal immigration statutes.  The role of the state family court is only to apply New Jersey law, and to apply the family court’s expertise in family and child welfare and make factual findings  so that the federal agency, USCIS, will have enough information for the federal government to grant or deny Special Immigration Juvenile status to the petitioner.   The Supreme Court disagreed with the family court’s views that the state court had jurisdiction to approve or deny a juvenile’s application for SIJ status.  The state court simply make findings as to the factors in the federal code, 8 C.F.R. §204.11, and the USCIS makes the broader inquiry.

The Supreme Court did review the findings of the state family courts in these two cases.  The Supreme Court disagreed with the Passaic family court’s finding that MS did not show abuse or neglect based on the application of child welfare laws of another country.   The Supreme Court found that the family court should examined whether MS was abused, neglected or abandoned under New Jersey law, not Indian law.   Additionally, when making the necessary findings under the federal code, the family court has to make separate findings as to whether the mother and/or the father abused, neglected the juvenile in order for the USCIS to have enough information to consider the juvenile’s petition for SIJ status.  The role of the family court is to make sure the federal agency has enough information to make its conclusions.  The Supreme Court denied the ability of a state court to interpret the phrase “one or both” in a federal statute.   The Supreme Court agreed with the family court’s conclusion that HSP’s petition for custody of MS was not to protect him from abuse from one or both parents in India but to obtain permanent residency for the juvenile.  However, the Supreme Court explained that it is not the role of the state court to interpret the intent of a federal statute, nor to screen applications for for immigration status to look for abuse.

As to KG’s application for custody of her daughters, the Supreme Court did not disturb the findings of the Union County family court that the juveniles could not be reunified with their deceased father, nor the finding that the juveniles were not abused by their mother, KG.   The Supreme Court found that the family court erred in denying the juveniles SIJ status based on the conclusion that it was not impossible for the juveniles to be reunified with KG.   The Supreme Court remanded the matter for a new hearing for the family court to make findings as to each element of the Code of Regulations,  8 C.F.R. §204.11, including whether it was in the best interest of the juveniles to return to El Salvador.