The Court of Appeals in Benitez v. John Doe, decided on September 6, 2018, reversed the trial court decision in denying an Special Immigration Status for a juvenile (“J.V.B”) subject of this appeal.
The “SIJ” statute provides, in relevant part:[A special immigrant juvenile is] an immigrant who is present in the United States:
- (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
- (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
- (iii)in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]
8 U.S.C. §§ 1101 (a)(27)(J)(i)-(iii).
At trial, the court had granted the mother sole physical and legal custody of J.V.B. As to SIJ status findings, the trial court had concluded that J.V.B. had satisfied some of the conditions imposed by the statute, including:
- That J.V.B. was under the age of twenty-one years and unmarried at the time of her SIJ status petition;
- J.V.B. was placed, pursuant to an order of the juvenile court, in the sole legal and physical custody of her mother; and
- It was not in J.V.B.’s best interest to be returned to El Salvador because J.V.B. “resides with her mother, the only parent she knows, who is able to provide” for her.
However the trial court concluded that J.V.B. had failed to meet the final condition required for SIJ status eligibility: that although reunification with J.V.B.’s father “is not possible, there is no evidence that the lack of viability is due to abandonment.”
The trial court applied the termination of parental rights standard in defining abandonment –- a very high standard. That is “in order to abandon a child, a parent must know he is a father.”
The Court of Appeals disagreed and established that an unknown father, which was the case here for J.V.B., can be considered under the statute to have abandoned the child under the “SIJ” Statute.
The appellate court held that the trial court had applied too demanding of a standard of for abandonment that knowledge of parentage is a prerequisite to abandonment. Here as the father was unknown such was sufficient legal basis to meet the abandonment under the Statute.
Moreover, the Court had never endorsed the view that an abandonment finding can be is linked to paternity.
Thus, the Court concluded that the reunification of J.V.B. with her father — who has never been involved in her life — is not viable, i.e., “practicable; workable” due to abandonment even though the father was unknown and the Special Immigration Juvenile status does confer on J.V.B.
Refer to our DC Family Lawyer page for more information on this topic.