“The NJ Supreme Court issued a unanimous ruling that removes certain obstacles that children in NJ sometimes faced when seeking special findings orders in Special Immigrant Juvenile Status (SIJS) cases.”
On August 26, 2015, the NJ Supreme Court ruled in H.S.P. v. J.K. that a NJ court does not have the power to decide whether a child who meets various factual requirements legally qualifies for SIJS protection. The role of the NJ court is instead to determine whether specific factual findings are appropriate. For example, a NJ court should decide whether the child’s best interest is to be returned to his or her country of nationality. That ruling is a factual finding. However, the NJ court does not have the power to make a legal interpretation of federal law about whether a child who proves that reunification with one parent is not viable meets the legal requirements for SIJS. The legal issue of whether a child must prove that reunification is not viable with one parent or is not viable with both parents should be left to the federal government.
Therefore, where there was factual proof that under NJ law a father abandoned a child, the NJ court must enter that factual finding. The NJ court may not refuse to make the factual finding based on concerns that the NJ court’s interpretation of SIJS suggested the child would not ultimately be able to meet all of the legal requirements for SIJS. There, the issue was how the child could show that reunification was not viable with one parent, but could not show that it was not viable with both parents.
In 2008, Congress passed the TVPRA and inserted language that a child may qualify for SIJS if he or she is not able to reunify with “one or both” parents due to abuse, neglect, abandonment, or a similar basis under state law. The NJ Supreme Court said the federal government should be the one to make the legal interpretation of whether the statute allows SIJS where reunification is not viable with one out of two parents.
On a different topic, the NJ Supreme Court also ruled that when deciding whether a parent’s conduct overseas constitutes abuse or neglect under NJ law, the court should not require proof that the conduct in question violated the laws where the conduct took place. Specifically, an allegation that under NJ law a father abused or neglected a child by forcing the child to work in dangerous circumstances in India does not require proof that the action violated labor laws in India.
The Full Opinion is available here.