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Children Win Precedent-Setting Appeal on Availability of Special Immigrant Juvenile Status

Paul, Weiss achieved a precedent-setting appellate victory for two pro bono clients. In the first such appellate decision nationwide, the Second Department of the New York Supreme Court, Appellate Division held that a person’s lack of lawful immigration status is “immaterial” to his or her eligibility to serve as a child’s guardian.

Paul, Weiss’s clients are two half-brothers from Mexico who were abandoned by their respective fathers, came to the U.S. as unaccompanied minors, and were then reunited with their mother in New York. Working with counsel from Make the Road New York, the brothers had petitioned the Family Court to appoint their mother as their legal guardian. The appointment of a guardian or custodian is typically a prerequisite for a child to apply for special immigrant juvenile status (“SIJS”) under federal law. SIJS is a form of immigration relief available to certain children, including children who have crossed the border as unaccompanied minors, who have been found by a state juvenile court to have been abused, abandoned or neglected by one or both parents. New York Family Courts can make the required special findings” required for SIJS in the context of guardianship or custody proceedings.

The Family Court had denied the children’s petitions for guardianship and special findings on the grounds that the mother had not taken legal steps to obtain lawful immigration status for herself, and that she therefore could not establish that she was a “domiciliary” of New York as required by New York’s guardianship statute. That decision effectively blocked the brothers from applying for SIJS. If followed by other courts, the Family Court’s holding could have dramatically shrunk the pool of available guardians for undocumented children in New York, thereby restricting the availability of SIJS for such children.

In light of an impending statutory deadline, Paul, Weiss successfully moved the Second Department to hear the appeal on an expedited basis. Two weeks after the appeal brief was filed, the Second Department held that the mother was neither required to demonstrate her legal status in this country, nor that she had “taken steps to obtain such status,” in order to qualify as a guardian. More broadly, the Court held that a lack of lawful immigration status is “immaterial” to the issue of a person’s domicile and, therefore, to a person’s “eligibility to receive letters [of guardianship].” The Court also found that the children had established the facts supporting the special findings required for SIJS, which will now permit them to apply to USCIS for immigration relief.

The Paul, Weiss team was supervised by litigation partner Jacqueline Rubin and included litigation associates Ross Wilson, who argued the appeal, Stephen Popernik, Mary Spooner, Eunice Leong and Bolutito Adewunmi. Pro bono associate BJ Jensen provided advice and guidance. Make the Road New York was co-counsel on the appeal.

April 13, 2018

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