SUMMARY: The court did not err in finding a youth not eligible for Special Immigrant Juvenile Status (SIJS) based on abandonment by “one or both parents” because reunification with his mother was feasible.
Erick M. was committed to OJS (Office of Juvenile Services) in December 2010 due to two charges of being a minor in possession of alcohol. He was originally placed in a residential treatment center but threatened staff, used drugs and alcohol, committed law violations and disappeared from the center, and was therefore transferred to the YRTC in Kearney. In September 2011, a hearing was held on Erick’s motion for Special Immigrant Juvenile Status (SIJS). Testimony established that information on Erick’s father was unknown, and there were no known abuse or neglect reports regarding Erick. After the hearing, the court overruled Erick’s motion on the basis that there was no showing that reunification with Erick’s mother was not possible due to abuse, neglect or abandonment. Specifically, the court noted that Erick was never removed from the home due to abuse or neglect, that Erick’s mother was present at almost every hearing, that Erick live with her prior to commitment and that no evidence showed Erick would not be returned to his mother’s home after discharge. The court also concluded that no evidence established Erick’s father abused or neglected him and was silent on the finding of abandonment. Erick appealed.
The Nebraska Supreme Court affirmed the court’s denial to issue SIJS findings. Finding ambiguity in the SIJS statutory language that could not be resolved through a reading of statute or regulation, the Supreme Court discussed the 2008 statutory amendments where the language was changed from findings of abuse and neglect and long-term foster care to a finding that reunification was not feasible due to abuse, neglect or abandonment. In assessing the amended language, the Supreme Court noted the original intent of adding “long-term foster care” was to ensure that the youth would seek status to get relief from abuse or neglect, and not to simply obtain permanent resident status. It also noted that in administrative appeals, USCIS (U.S. Citizenship and Immigration Services) considers whether reunification with the known parent is possible even if the other parent is absent or abandoned the child. The Supreme Court rejected the notion that failure to prove paternity or failure to find a parent would prevent a child from conclusively proving the likelihood of reunification with that unknown parent, but that the absence of one parent does not satisfy the reunification component and that both parents likelihood of reunification must be considered. The child must show that reunification with the present parent is also not feasible. Finally, it distinguished and disagreed with a New York unpublished court opinion finding that a youth whose father living in the US had neglected him and mother living in Guatemala who thought the youth would have a better life in the U.S. qualified for SIJS after disregarding feasibility of reunification with the absent parent.