SPECIAL PROBLEMS IN SPECIAL IMMIGRANT JUVENILE STATUS IN TEXAS

Transcription

1 Page 1 of 8 SPECIAL PROBLEMS IN SPECIAL IMMIGRANT JUVENILE STATUS IN TEXAS Alien children in the United States, who face harm in their home countries from which their parents cannot or will not protect them, may apply under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, as amended, for status as special immigrant juveniles, and thereby become legal permanent residents of the United States. 8 U.S.C The first step for such a child is to obtain a judgment of a family court placing the child under the protection of the court, which, in Texas, means the court appoints an adult to be managing conservator of the child until the child ceases to be a child. 1 The second step is to file a petition for the special immigrant juvenile (SIJ) status, form I-360, and the final step is a petition for adjustment, form I-485. Complications arise when applicants are older than 17 years, and also when their attorney is unaware of ultra vires requirements that the Administrative Appeals Unit (AAU) 2 of the United States Department of Homeland Security has invented. This treatise identifies the complications, and discusses how to overcome them. The federal act that creates SIJ status, applies to children under 21 years old. 8 U.S.C. 1101(a)(27)(J). Some Texas courts have denied court protection to children older than 17 years, however, in the belief that they lack jurisdiction to appoint a managing conservator, because Texas Family Code says, (a) Child or minor means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, and Managing conservatorship means the relationship between a child and a managing conservator appointed by court order. Texas Family Code But the inquiry must not stop there, because an applicant older than 17 also is a child if he is the object of a child support order. For the order of a family court to serve as the basis of a SIJ petition, the court that appoints a managing conservator must find specifically that it is not in the child s best interest to return him to his home country, and that reunification with one or both of the immigrant s 1 Other Texas laws that affect guardianship make no exceptions for children older than 17 years. See, for example, Texas Estates Code, , Texas Estates Code : Minor means a person younger than 18 years of age who: (1) has never been married; and (2) has not had the disabilities of minority removed for general purposes. But note that the family court may extend its jurisdiction of a minor who is younger than 21, and who was in foster care before his 18th birthday. Texas Family Code, and Texas Family Code The Administrative Appeals Unit, AAU, also calls itself the Administrative Appeals Office, AAO. Here, for the sake of consistency, it is referred to as AAU.

2 Page 2 of 8 parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. 8 U.S.C. 1101(a)(27)(J). Felicitously, The Texas Family Code decrees that The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Texas Family Code (emphasis supplied). The child would not be in the U.S. in the first place if it were in his best interest to return him to his home country, so, assuming that an adult wants to be appointed managing conservator, the problem becomes how to define the applicant as a child under Texas family law. The key is to make sure the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with attendance requirements described by Section (a)(2). That is because the court may order the payment of child support so long as the child is in school. Texas Family Code , 3 Crocker v. Att y Gen. of Texas, 3 SW3d 650, 652 (Tex. App. Austin no writ) (The request for a support order may be filed before or after the child s 18th birthday.) The court may grant the request even if the grounds for the 3 Child Support Through High School Graduation (a) The court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child is: (1) enrolled: (A) under Chapter 25, Education Code, in an accredited secondary school in a program leading toward a high school diploma; (B) under Section , Education Code, in courses for joint high school and junior college credit; or (C) on a full-time basis in a private secondary school in a program leading toward a high school diploma; and (2) complying with: (A) the minimum attendance requirements of Subchapter C, Chapter 25, Education Code; or (B) the minimum attendance requirements imposed by the school in which the child is enrolled, if the child is enrolled in a private secondary school. (b) The request for a support order through high school graduation may be filed before or after the child's 18th birthday. (c) The order for periodic support may provide that payments continue through the end of the month in which the child graduates.

3 Page 3 of 8 support obligation arose after the child s 18th birthday. Lowe v. Roberts, Lexis 155, Tex. App. Houston, 14th Dist no writ). And so long as the child is the subject of an order for child support, he is a child under the Family Code, regardless of his age. In the context of child support, child includes a person over 18 years of age for whom a person may be obligated to pay child support. Texas Family Code Moreover, there is nothing in between: the subject is either a child or he is an adult, for purposes of Texas family law. Adult means a person who is not a child. 5 Thus, the Family Code clearly defines the beneficiary of a child support order as a child regardless of age. The court therefore has jurisdiction to appoint a managing conservator for, at a minimum, the purpose of collecting child support from one or both of the child s biological parents. Managing conservatorship means the relationship between a child and a managing conservator appointed by court order. Texas Family Code Nothing in the Family Code limits the appointment of a managing conservator for a child, as defined by the Family Code for any purpose that is in the best interest of the child. Furthermore, the court has the authority to confer on the managing conservator fewer rights than are listed in the standard possession order. 6 The Family Code also permits the court to take into account the relationship between the child s immigration status and his need to complete his education in its order appointing the managing conservator. Texas Family Code The managing conservator can be anyone who is a Child or Minor; Adult (a) Child or "minor" means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. (b) In the context of child support, child includes a person over 18 years of age for whom a person may be obligated to pay child support. (c) Adult means a person who is not a child. 5 Idem. 6 Texas Family Code Rights and Duties of Nonparent Appointed As Sole Managing Conservator Unless limited by court order or other provisions of this chapter, a nonparent, licensed child-placing agency, or authorized agency appointed as a managing conservator of the child has the following rights and duties: (emphasis supplied) See, also, Texas Family Code , authorizing modification of standard order. 7 Factors for Court to Consider In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider:

4 Page 4 of 8 person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. Texas Family Code The court can order the parents of the child to pay child support, even if the managing conservator has no prospect of collecting it, because their duty to support the child is unqualified. Texas Family Code (a)(3), (b), (c), 9 Texas Family Code , 10 Texas Family Code (5). 11 The obvious intent of the legislature is to require parents to aid in the support of their child, even if that child is over 18 years of age, as long as the child is participating in studies leading toward a high school diploma. In re J.A.B., 13 SW 3d 813, 816 (Tex. App., Fort (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor General Standing to File Suit (a) An original suit may be filed at any time by: 9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition; Rights and Duties of Parent (a) A parent of a child has the following rights and duties: (3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education; (b) The duty of a parent to support his or her child exists while the child is an unemancipated minor and continues as long as the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with attendance requirements described by Section (a)(2). (c) A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed. 10 Duties of Parent Not Appointed Conservator The court may order a parent not appointed as a managing or a possessory conservator to perform other parental duties, including paying child support. 11 Supra.

5 Page 5 of 8 Worth 2000 no writ). Thus the Family Code confers jurisdiction on the Texas district court to appoint a managing conservator to collect child support for a child older than 17 who is in school. 1 In the only conceivably contrary published Texas appellate case, a court refused a charitable organization s petition for declaratory judgment that an 18-year-old could not be returned to his parents in Honduras. The only reason the court gave for the denial was that the young man was 18 years old. The applicant was not enrolled in school, however, and did not seek an order of child support. Therefore he was not a child as Texas family law defines the term. In the Interest of J.L.E.O., a child, Lexis 1342 (Tex. App., 14th Dist. Houston 2011 no writ). Best interest of the child Since deporting the child would end his education, repatriating the child would not be in his best interest. Texas Courts consistently affirm that education is in the best interest of the child. For example, in naming grandparents managing conservators under Texas Family Code, , the court took into account that the mother was late in taking the child to school and neither parent helped him with his homework. In re Marriage of Preston, Lexis 9356 (Tex. App. Waco 2008 no writ). The child s missing school was one of the reasons the family court modified conservatorship under Texas Family Code In re H.R.H., Lexis 2560 (Tex. App. San Antonio 2009 no writ). Failure to home school as promised and to encourage the child to achieve her academic potential was among the reasons the court found the presumption that a parent should be appointed managing conservator was rebutted. In the Interest of B.G.M., Lexis 6040 (Tex. App. Texarkana 2011 Pet denied, Lexis ). To date, the bureaucrats who adjudicate SIJ petitions, likewise, have not taken issue with the finding by a state court that repatriating the child is not in his best interest. On Account Of Adjudicating officers and the AAU have invented a hybrid marriage fraud- and asylumlike obstacle to SIJ status, akin to the requirements of petitioners that a marriage not have been entered for immigration purposes 12 and that refugees prove the persecution they fear would be on account of race, religion, nationality, political opinion, or social group membership. 13 Giving no faith or credit to the finding by the state judge that repatriation was not in the child s best interest and reunification with parents unfeasible because of abuse, neglect, or abandonment, officers have denied SIJ petitions on the ground that they were filed to obtain legal resident status, rather than to escape persecution by an unfit parent. 14 No law requires the child to prove he seeks 12 8 U.S.C. 1154(c) U.S.C. 1101(a)(42). 14 See, for example, In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 7816 (Administrative Appeals Unit 2013).

6 Page 6 of 8 status to escape parental persecution or adjudicating officers to second guess the state court, but, because granting or denying status is within the discretion of an AAU bureaucrat, the ultra vires requirement has escaped judicial review. The Department of Homeland Security must consent to the grant of SIJ status. 8 U.S.C. 1101(a)(27)(J)(iii). AAU Chief Ron Rosenberg dismissed the appeal of a 17-year-old Egyptian student, whose parents abandoned him to U.S. relatives because they could not protect him from the pervasive violence of the Egyptian revolution, concluding, the petitioner sought SIJ classification primarily for immigration purposes. In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 2692 (Administrative Appeals Unit 2013). Immigration purposes, however, are the only purposes for which anyone files a petition for immigration status. The AAU, nevertheless demanded that the state court elaborate to the satisfaction of the bureaucrat its reasons for finding that the parents had abandoned the child. In a decision consisting of four pages of boilerplate, identical to the Egyptian child decision, on the other hand, finding that the mother of a 19-yearold Mexican boy had abandoned him by sending him to the U.S. because she could not support him, Rosenberg sustained the boy s appeal. In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 7820 (Administrative Appeals Unit 2013). Considering how capriciously the AAU adjudicates SIJ petitions, counsel would be well advised to incorporate in the family court order detailed descriptions of the abuse, neglect, or abandonment which the court finds make reunification with a parent unviable, and to vilify the unviable parent or parents as much as possible. One or Both Parents Because the law makes the child eligible for SIJ status whose reunification with one or both of the immigrant s parents is not viable, the child whose reunification with one parent is viable but not with the other on account of abuse, neglect or abandonment may apply for SIJ status, and the parent with whom reunification remains viable may be named the managing conservator. The AAO granted the SIJ application of a 16-year-old Honduran girl to whose mother a New Jersey family court awarded her custody, but whose father the family court found had abused and abandoned her. The mother had fled the father s abuse in Honduras, and he had followed her to the U.S. The AAU granted the petition because, the petitioner has shown by a preponderance of the evidence that her request for SIJ classification is bona fide because she sought the juvenile court order primarily to obtain relief from her father s abuse and abandonment. In Re: Self-Petitioner, Immig. Rptr. LEXIS 7823, Administrative Appeals Unit Again, the AAU was not content to accept the findings of the state court, but, instead, conducted its own fact-intensive review of the record. Conclusion Demonstrating to the Texas family court that the child for whom counsel seeks a managing conservatorship is eligible for an order of child support should overcome the reluctance of the court to execute the order because the applicant is older than 17. If the applicant meets the federal definition of child, one who is younger than 21, and the family

7 Page 7 of 8 court makes the two required findings, that it is not in the best interest of the child to repatriate him and that reunification with one or both parents is not viable on account of abuse, neglect, abandonment, or a similar reason in state law, then the adjudicating officer or the AAU should grant the petition for SIJ status. Counsel should take care, however, to incorporate in the family court order a detailed, factual explanation of the abuse, neglect, abandonment, or similar basis in state law on account of which reunification with one or both parents is not viable. Cases Crocker v. Att y Gen. of Texas, 3 SW3d 650, 652 (Tex. App. Austin no writ)... 2 In re H.R.H., Lexis 2560 (Tex. App. San Antonio 2009 no writ)... 5 In re J.A.B., 13 SW 3d 813, 816 (Tex. App., Fort Worth 2000 no writ)... 4 In re Marriage of Preston, Lexis 9356 (Tex. App. Waco 2008 no writ)... 5 In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 2692 (Administrative Appeals Unit 2013).. 5 In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 7816 (Administrative Appeals Unit 2013)... 5 In Re: Self Petitioner, 2013 Immig. Rptr. Lexis 7820 (Administrative Appeals Unit 2013).. 6 In Re: Self-Petitioner, Immig. Rptr. LEXIS 7823, Administrative Appeals Unit In the Interest of B.G.M., Lexis 6040 (Tex. App. Texarkana 2011 Pet denied, Lexis ) 5 In the Interest of J.L.E.O., a child, Lexis 1342 (Tex. App., 14th Dist. Houston 2011 no writ).. 4 Lowe v. Roberts, Lexis 155, Tex. App. Houston, 14th Dist no writ)... 2 Statutes 8 U.S.C. 1101(a)(27)(J)... 1, 2, 5 8 U.S.C. 1101(a)(42) U.S.C. 1154(c) U.S.C Texas Estates Code Texas Estates Code, Texas Family Code , 2 Texas Family Code , 3 Texas Family Code Texas Family Code (a)(3), (b), (c)... 4 Texas Family Code , 5 Texas Family Code Texas Family Code Texas Family Code Texas Family Code Texas Family Code (5)... 4

8 Page 8 of 8 Texas Family Code Texas Family Code Texas Family Code, Texas Family Code, End