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A.E.C. v. P.S.C.

Superior Court of New Jersey, Appellate Division

January 17, 2018

A.E.C., Plaintiff-Appellant,
v.
P.S.C., Defendant-Respondent. IN THE MATTER OF J.S.E.

          Submitted November 28, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-0394-17.

          Natalia Teper, attorney for appellant.

          Respondent has not filed a brief.

          Before Judges Reisner, Hoffman and Gilson.

          REISNER, P.J.A.D.

         In O.Y.C.P. v. J.C.P., 442 N.J.Super. 635 (App. Div. 2015), we addressed the Family Part's jurisdiction over persons between the ages of eighteen and twenty-one who apply to the Family Part for predicate findings in special immigrant juvenile (SIJ) cases. In this case, we consider the Family Part's jurisdiction to grant an application for child custody, made in connection with an SlJ-related application. In the factual circumstances presented here, we hold that, pursuant to N.J.S.A. 9:17B-3, the Family Part has jurisdiction to grant a parent custody of an unemancipated child who is over eighteen, but under twenty-one, and to issue a declaratory ruling that the child is dependent on the parent and is not emancipated.

         I

         As context, we briefly review the pertinent immigration legislation as it relates to this case. Plaintiff A.E.C. (Ana)[1]filed a complaint in the Family Part as a predicate to obtaining SIJ status for her son J.S.E., pursuant to the Immigration Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 122 Stat. 5044 (2008). The SIJ application is a two-step process, requiring participation by the state courts and the United States Citizenship and Immigration Services (USCIS). H.S.P. v. J.K., 223 N.J. 196, 209-11 (2015).

         First, the child, or an individual acting on the child's behalf, must "petition for an order from a state juvenile court making findings that the juvenile satisfies certain criteria." Id. at 210 (citation omitted). Pursuant to 8 U.S.C. § 1101(a) (27) (J) and 8 C.F.R. § 204.11(c), the Family Part must make findings on the following factors:

(1) The juvenile is under the age of 21 and is unmarried;
(2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;
(3) The "juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;
(4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and
(5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by TVPRA 2008].
[H.S.P., 223 N.J. at 210 (quoting In re Dany G., 117 A.3d 650, 655-56 (Md. Ct. Spec. App. 2015)).]

         Once the state family court makes the necessary preliminary findings, the "juvenile can submit his or her application for SIJ status to USCIS in the form of an I-360 petition. If USCIS approves the ...


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