ELSA PATRICIA ORELLANA v. SERVELIO ANTONIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0263-15T4

ELSA PATRICIA ORELLANA,

Plaintiff-Appellant,

v.

SERVELIO ANTONIO ALAS MANCILLA,

Defendant-Respondent.

_______________________________

ELSA PATRICIA ORELLANA,

Plaintiff-Appellant,

v.

VICTOR MANUEL ALEMAN,

Defendant-Respondent.

_______________________________

September 13, 2016

Submitted September 7, 2016 Decided

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FD-20-2098-15 and FD-20-2100-15.

Drinker Biddle & Reath, LLP, attorneys for appellant (Brian P. Morgan, on the briefs).

Respondents have not filed briefs.

PER CURIAM

In these back-to-back matters, which we consolidate for the purposes of this opinion, plaintiff Elsa Patricia Orellana appeals from two July 28, 2015 Family Part orders, which awarded her sole legal and residential custody of her three non-citizen children. On appeal, plaintiff contends that the court failed to incorporate into the orders the predicate findings necessary for a non-citizen child to apply for "special immigrant juvenile" (SIJ) status pursuant to 8 U.S.C.A. 1101(a)(27)(J) and its implementing regulation, 8 C.F.R. 204.11. For the following reasons, we vacate the orders, and remand for further proceedings.

SIJ status is a form of immigration relief permitting an undocumented minor immigrant to obtain lawful permanent residency and, eventually, citizenship. 8 U.S.C.A. 1101(a)(27)(J). To obtain SIJ status the juvenile must first petition a state juvenile court for a predicate order making findings that the juvenile meets the requirements contained in 8 U.S.C.A. 1101(a)(27)(J) and 8 C.F.R. 204.11. H.S.P. v. J.K., 223 N.J. 196, 200, 210 (2015). The juvenile must then submit a petition to United States Citizenship and Immigration Services (USCIS) demonstrating his or her statutory eligibility. Ibid.

The juvenile court's sole task is to apply New Jersey law in order to make the findings required by 8 C.F.R. 204.11. Id. at 200. The court must make the following findings

(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[.]

[Id. at 210.]

When determining whether reunification with one or both parents is not viable under prong four, the court must make independent findings as to each parent. Id. at 201.

The court "does not have jurisdiction to grant or deny applications for immigration relief . . . or interpret federal immigrations statutes." Id. at 200. The court's "role in the SIJ process is solely to apply its expertise in family and child welfare matters to the issues raised in 8 C.F.R. 204.11, regardless of its view as to the position likely to be taken by the federal agency or whether the minor has met the requirements for SIJ status." Id. at 200-01. "New Jersey state courts are not charged with undertaking a determination of whether an immigrant's purpose in applying for SIJ status matches with Congress's intent in creating that avenue of relief." Id.at 214.

Plaintiff is the biological mother of W.O., born in 1997; J.O., born in 2002; and B.O., born in 2004. All three children were born in El Salvador and entered the United States without proper documentation. Defendant Victor Manuel Aleman, the biological father of W.O., is deceased. According to plaintiff, Servelio Antonio Alas Mancilla, who resides in El Salvador, is the biological father of J.O. and B.O., but he has denied paternity and has never supported the children.

The children have been residing with plaintiff in New Jersey since 2014. In 2015, plaintiff filed petitions in the Family Part requesting that she be granted custody of all three children, and that the court find under 8 U.S.C.A. 1101(a)(27)(J) and 8 C.F.R. 204.11 that the children are unable to reunify with one or both parents because of neglect or abandonment, and it would not be in the children's best interest to be returned to El Salvador.

Following a hearing, the judge made findings as to all three children, but failed to incorporate those findings in the July 28, 2015 orders. In order to enable plaintiff to apply for SIJ, an appropriate order reflecting these findings is necessary. See H.S.P., supra, 223 N.J. at 200 ("the juvenile must apply to a state court for a predicate order") (emphasis added). Accordingly, we vacate the July 28, 2015 orders, and remand for entry of orders containing the predicate findings required by 8 C.F.R. 204.11.