New Jersey’s Highest Court Affirms Protections for Abused, Abandoned, and Neglected Immigrant and Refugee Children, Sends Clear Message Nationwide

In the cases, HSP v. JK and KG v. MS, the court unanimously found that courts that hear child welfare cases must make a child welfare determination related to Special Immigrant Juvenile Status (SIJS), when requested, in the cases of abused, abandoned and neglected immigrant and refugee children brought before them. With a State court determination related to SIJS, these children can petition to immigration authorities for protection against deportation to further harm. The decision also found that determinations as to eligibility for SIJS are the sole province of federal immigration authorities.

The decisions reverse a disturbing trend throughout New Jersey denying access to justice to this uniquely vulnerable population of children based on misplaced concerns that NJ state courts were making immigration determinations. The decisions also send a message to state courts across the U.S. that the protection of immigrant children’s welfare is paramount.

The opinions resulted from a year-long effort led by the American Friends Service Committee, KIND, Lowenstein Sandler LLP, private counsel, Rutgers School of Law – Newark, Rutgers School of Law – Camden, Seton Hall Law School, and the Young Center for Immigrant Children’s Rights. KIND expresses deep gratitude to pro bono counsel Lowenstein Sander LLP for its representation of KIND as amicus curiae on questions of federal law.

KIND President Wendy Young states, “Throughout the year and a half of litigation leading to today’s opinion, pro bono attorneys at Lowenstein Sandler have demonstrated their commitment to protecting uniquely vulnerable immigrant children, supporting KIND, and restoring access to justice for SIJS-eligible children. KIND also commends the New Jersey Supreme Court for intervening to assure the proper application of the law and the protection of abused, abandoned and neglected immigrant children throughout New Jersey.”

SIJS is a form of immigration relief designed to protect abused and abandoned children. The process to apply involves two steps: first, the child must obtain a “predicate order” from a state juvenile court, and second, the child must petition federal immigration authorities to be qualified as a Special Immigrant Juvenile and obtain Lawful Permanent Residency (a “green card”).

In the predicate order process, the state court makes factual findings regarding the child’s welfare, such as whether the child was abused or neglected by a parent and whether it is in her best interests to return to her home country. State court judges make these findings in the context of traditional proceedings before them, including custody or guardianship. The state courts, and not immigration authorities, have the sole power to make the predicate findings for SIJS, and the child cannot apply for SIJS without a predicate order. Once the state court issues the order, the child then submits it to immigration authorities who determine whether, based on the facts contained therein, the child qualifies for SIJS. Immigration authorities then engage in a separate inquiry to determine whether the child qualifies for Lawful Permanent Resident status.

The court in its opinions considered the cases of three young abused and abandoned children from India and El Salvador, who each had requested an SIJS predicate order in the context of proceedings related to their custody. Collectively these children had experienced the death of siblings from malnutrition, rape by powerful transnational gang members, the murder of a parent by gangs, abandonment from a young age, deprivations of education, unstable homes and caretakers, and dangerous manual labor-causing injury. Even so, the New Jersey lower courts failed to honor their mandate to issue appropriate predicate findings to these children to enable them to petition to immigration authorities for Special Immigrant Juvenile Status. The Supreme Court’s decision today rejected the notion that the state courts may act as immigration gate-keepers and decide the fates of these vulnerable children—a task that Congress exclusively afforded to federal immigration authorities.

The decisions will no doubt restore access to protection for countless children in New Jersey. Indeed, the impact cannot be understated; without access to Special Immigrant Juvenile States, thousands of children in New Jersey risk deportation to countries where they face further child abuse and neglect, trafficking, and sexual and gender-based violence. KIND serves over 200 such children in New Jersey.

We commend the court for its careful consideration of the children’s well-being and its nuanced analysis upholding their rights. The decision stands for the principle that, without regard to citizenship or national origin, children are children and we must stand together to assure their protection, permanency, and best interests.

The decision is available at: https://www.judiciary.state.nj.us/opinions/supreme/A114A117HSPvJK.pdf

Following is Lowenstein Sandler’s announcement regarding the decision:

LOWENSTEIN SANDLER

N.J. Supreme Court Ruling Helps Immigrant Children Avoid Deportation Back to Homes Where They Have No Fit Caretaker

Trenton, N.J., August 26, 2015 –In a unanimous opinion by Judge Cuff, the New Jersey Supreme Court today issued a decision that will help immigrant children who have been abused, abandoned, or neglected by their parents avoid deportation back to their home country. In the case, H.S.P. v. J.K., the Court reversed an earlier decision by the Appellate Division, which had purported to give a limiting interpretation of the federal law governing Special Immigrant Juvenile Status (“SIJS”). The SIJS statute is designed to protect children from deportation back to unfit parents or homes where they lack any caretaker. In 2013, the federal Department of Homeland Security approved approximately 3,400 SIJS petitions nationwide.

The Supreme Court made clear that it is not the role of the state courts to interpret federal immigration statutes or to make decisions about whether a child qualifies for SIJS or any other form of immigration relief. Instead, state courts are to make complete factual findings about whether a child has been abused, neglected, or abandoned by each of the child’s parents and whether it would be in the child’s best interest to return to his or her country of origin. Such findings are within the core competence of our child welfare courts, and are to be based, the Supreme Court emphasized, on state law standards and not on the law of the child’s country of origin. Based on the state court’s factual findings, federal immigration officials will decide whether the child qualifies for SIJS.

Lowenstein Sandler appeared in the case before the Supreme Court on behalf of three organizations that assist children who have suffered maltreatment and face involuntary return to harmful conditions in their home countries: the American Friends Service Committee, Kids In Need of Defense (“KIND”), and the Young Center for Immigrant Children’s Rights. The Court granted these organizations permission to submit a brief and participate in argument as amici curiae.

“The Supreme Court ruling clarifies the distinct roles of state courts and federal immigration officials,” said Matthew Boxer, the Lowenstein Sandler partner who argued for the amici. “In doing so, the Court created a roadmap for the fair and efficient operation of the two-step process that requires an immigrant child to prove abuse, neglect, or abandonment in state court and then to present the state court findings to federal immigration officials as the basis upon which the child seeks to remain in this country in safety,” he added.

“By eschewing a limiting interpretation of federal law, the New Jersey Supreme Court not only protected the welfare of unaccompanied immigrant children but also avoided unworkable and unfair geographic contradictions in how these children are treated across the nation,” added Wendy Young, President of KIND.

“Week after week, the American Friends Service Committee represents children who fled their home countries to escape beatings, sexual abuse, and other forms of family violence or who were left to forage for food and find their own shelter because of a parent’s inability to care for them,” said Amy Gottlieb, Associate Regional Director, Northeast Region, American Friends Service Committee. “This decision will enable such children to seek protection from deportation and an opportunity to build a better life here.”

“This is a common sense ruling that enables U.S. officials to protect children from return to an abusive parent or no parent at all,” added Maria Woltjen of the Young Center for Immigrant Children’s Rights. “Children need and deserve protection from forced return to countries where there is no fit parent to care for them.”

Contact: Catherine Weiss or Matt Boxer, Lowenstein Sandler, (973) 597-5000, cweiss@lowenstein.com; mboxer@lowenstein.com

Megan McKenna, KIND, 202-631-9990; mmckenna@supportkind.org

Amy Gottlieb, American Friends Service Committee, 917-494-6415, agottlieb@afsc.org

Maria Woltjen, Young Center for Immigrant Children’s Rights, 773-702-9560, mwoltjen@uchicago.edu

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