Gomez v. Sibrian

Appeal from an order of the Family Court, Nassau County (Christopher Pizzolo, Ct. Atty. Ref.), dated March 31, 2015. The order, without a hearing, in effect, denied the mother’s motions for the issuance of an order, inter alia, making special findings so as to enable the subject child, Jose Fredy Garcia Sibrian, to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101 (a) (27) (J).

Ordered that the order is reversed, on the law and the facts, without costs or disbursements, the mother’s motions for the issuance of an order, inter alia, making special findings so as to enable the subject child, Jose Fredy Garcia Sibrian, to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101 (a) (27) (J) are granted, it is declared that Jose Fredy Garcia Sibrian has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court, and it is found that Jose Fredy Garcia Sibrian is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to Honduras, his previous country of nationality or last habitual residence.

In January 2014, the mother commenced this proceeding for custody of the subject child, Jose Fredy Garcia Sibrian, who was born in Honduras. In March 2014, the father, who also lived in Honduras, executed a document consenting, inter alia, to an award of custody of the child to the mother, to “waive [ ] the issuance of service of process in this matter,” and to “waive [ ] the right to notice of any future hearings on this matter in the Family Court of Nassau County.” In May 2014, the mother moved for the issuance of an order, inter alia, making special findings so as to enable the child to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101 (a) (27) (J). In an order dated August 20, 2014,

Under the circumstances of this case, the mother was not required to personally serve the father with the motion papers. The father consented to “waive [ ] the issuance of service of process in this matter,” and to “waive [ ] the right to notice of any future hearings on this matter in the Family Court of Nassau County,” which would include a hearing on'the subject motions. Further, since no substantial right of any party was prejudiced by the mistake in the mother’s notices of motion, the court should have disregarded the mistake and determined the motions on the merits (see CPLR 2001).

Pursuant to 8 USC § 1101 (a) (27) (J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for SUS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101 [a] [27] [J] [i]; Matter of Marcelina M.-G. v Israel S., 112 AD3d 100 [2013]; Matter of Trudy-Ann W. v Joan W., 73 AD3d 793 , 795 [2010]), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101 [a] [27] [J] [ii]; 8 CFR 204.11 [c] [6]; Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795 ).

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual appointed by a State or juvenile court” within the meaning of 8 USC § 1101 (a) (27) (J) (I) (see Matter of Pineda v Diaz, 127 AD3d 1203 , 1204 [2015]). Furthermore, based upon our independent factual review, we find that the record fully supports a finding that reunification of the child

In light of our determination, we need not reach the mother’s remaining contentions. Hall, J.P., Roman, Sgroi and Hinds-Radix, JJ., concur.