Matter of Jose YY. (Ericza K.)

Matter of Jose YY. (Ericza K.) (2018 NY Slip Op 00375) Matter of Jose YY. (Ericza K.) 2018 NY Slip Op 00375 Decided on January 18, 2018 Appellate Division, Third Department Lynch, J., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 18, 2018 525486 [*1]In the Matter of the Guardianship of JOSE YY., an Infant. ERICZA K., Petitioner. JOSE YY., Appellant. Calendar Date: January 8, 2018 Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ. Wilson Elser Moskowitz Edelman & Decker LLP, New York City (Judy C. Selmeci of counsel) and James Tourangeau, Safe Passage Project, New York City, for appellant. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Jacqueline P. Rubin of counsel), for Kids in Need of Defense, amicus curiae. Lynch, J. Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered November 14, 2016, which, in a proceeding pursuant to Family Ct Act article 6, denied Jose YY.'s motion for a special findings order pursuant to 8 USC § 1101 (a) (27) (J). In November 2015, Family Court granted the petition of Ericza K. and appointed her as the permanent guardian of her brother, Jose YY., born in 2000 (hereinafter the child). In April 2016, the child moved for a threshold order that would enable him to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) which, in turn, would enable him to obtain lawful permanent residency in the United States (see 8 USC §§ 1101 [a] [27] [J]; 1153 [b] [4]; 8 CFR 204.11). A child seeking SIJS from USCIS must first obtain a special findings order from a state court with jurisdiction over the juvenile, which must determine that (1) the child is under 21 years of age, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law, and (5) it would not be in the child's best interests to be returned to his or her native country (see 8 USC § 1101 [a] [27] [J] [i] [ii]). Upon such an application, the role of Family Court is to render specific findings as to the above criteria, with the ultimate determination as to [*2]whether to grant SIJS to a child to be made by USCIS and its parent agency, the Department of Homeland Security (see Matter of Castellanos v Recarte, 142 AD3d 552, 553-554 [2016]). Correspondingly, it is not Family Court's role to render an immigration determination (see id.). Following a brief hearing, Family Court denied the child's motion. The child appeals [FN1]. We reverse. There is no dispute that the child was under the age of 21 and ...

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