PRACTICE POINTERS FOR ONE PARENT SIJS MATTERS IN NEW JERSEY POST HSP

The recent wave of Central and South American unaccompanied minors illegally crossing our southern border is heartbreaking. Many of us are aware that these are not opportunists, as some would suggest, but mere children running for their lives and trying to escape what is truly the greatest humanitarian crisis the western hemisphere has seen in ages. Only a few of us are aware, however, that due to a recent New Jersey Appellate Court decision, on its way to review by the New Jersey Supreme Court, HSP v. JK, 435 N.J. Super. 147 (App. Div. Mar. 27, 2014), cert. granted (July 28, 2014), New Jersey is among the most difficult venues in the United States for unaccompanied minors who have been placed here and are seeking Special Immigrant Juvenile Status (SIJS) based on abuse, neglect or abandonment by one parent.

I recently represented one of these children in New Jersey and was able to obtain the required predicate order with a best interests finding from the family court. In this article, I would like to briefly share with you some practice tips for overcoming the obstacles created by HSP in one parent SIJS matters so that you too may be successful in representing a child in need.

Be prepared, the family law judge will appreciate it. All of us need education in this area right now. The immigration laws are very complex and the SIJS statute is a very unique intersection between family law and immigration law. Most family court judges will not be familiar enough with all the nuances of the SIJS statute, relevant case law and agency positions to make educated decisions. A clear and thorough presentation of the critical, but limited, role of the family courts and relevant case law will make it easier for the family court judge to distinguish and understand the issues and decide the matter.

Be thoroughly familiar with your client’s facts. There should have been a record created from the day your client was first apprehended. Review the Office of Refugee Resettlement materials, immigration court documents and personally interview your client. Be very mindful that they are children and perceive things very differently from adults. Veracity and consistency throughout the proceedings will help you prevail.

Study HSP. This cannot be overstated. Read it over and over again. Understand exactly what it is saying and how it should be viewed by as a narrow holding. For example, the HSP decision was based on a specific set of facts that may well be very distinguishable from your case. Distinguishing the facts in HSP to the facts in your matter is critical in providing the family court with the basis to reach a different outcome than the HSP court.

Thoroughly research all legal issues surrounding your particular matter. Start with the cases and statutes cited in HSP and expand your research from there. Review what is being submitted to the Supreme Court on HSP and use those arguments as well. They are very cogent and include plain language, legislative intent, federal agency interpretation and weight of authority arguments.

Brief your positions for the court. Unless you are some kind of extraordinary orator/litigator, HSP and the interplay between the family laws and immigrations laws at issue are way too complicated to explain verbally in a courtroom. Start with a concise but detailed written outline of all the legal issues in your matter (making this your table of contents) and expand from there in a written brief for the court to deliberate on outside the hustle and bustle of the courtroom. Offer it to the court, following your initial submission, at your first hearing or, better yet, consolidate all of your HSP-distinguishing arguments into your initial motion for custody and special findings, if you can.

Prepare a rock solid proposed order for the family court judge to sign. List all of the statutory requirements but avoid using the controversial “one or both” language at issue in HSP. If it is a one parent SIJS, state it loud and clear in your order. Inform the court that you are not asking it to interpret the meaning of “one or both” but simply to issue an order stating that one parent has abused, abandoned or neglected your client. Explain to the court also that HSP does not prohibit issuance of a best interests finding in any circumstance. In HSP, the Appellate Division merely held that the trial court did not err in not issuing best interests findings in that matter and nothing more.

If you are thinking about handling SIJS cases in New Jersey, I strongly suggest that you do so, as the work can be very personally rewarding from a humanitarian perspective.

If you have questions, please contact me at 732-946-2497 or email me at teresa@grawesq.com.

© Teresa M. Graw, LLC