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MATTER OF A-P-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JUNE 2, 2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-360, 'PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner was born in India and entered the United States when he was years old. When he was ·years old, a family court in New York found that the Petitioner's parents had abused, abandoned; or neglected him and issued a temporary guardianship order over tlie Petitioner. Two days prior to the Petitioner's birthday, the court issued a final guardianship order. Based on these state court orders, the Petitioner seeks classification as a special immigrant juvenile (SIJ). See Immigration and Nationality Act (the Act) sections 101(a)(27)(J) and 204(a)(l)(G), 8 U.S.C. §§ 110l(a)(27)(J) and 1154(a)(l)(G). The SIJ classification protects foreign children in the United States who cannot reunify with one or both of their parents because of abuse, neglect, abandonment, or a similar basis under state law.

The Director of the New York, New York, District Office denied the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition), concluding that U.S. Citizenship and Immigration Services (USCIS)' consent to the Petitioner's SIJ classification was not warranted. We dismissed the Petitioner's subsequent appeal, finding that discrepancies in the Petitioner's statements before the state court and USCIS precluded a determination that his request for SIJ classification was bonafide.

On a motion to reopen and reconsider, the Petitioner submits a brief and a personal statement, and asserts that we abused our discretionary authority by looking behind the state court determinations and the court's factual findings to reassess the underlying facts.

Upon review, we will deny the motion.

I. LAW

A motion to reopen must state the new facts to be proved and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by a pertinent precedent or adopted

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Matter of A-P-S-

decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy. The Petitioner's submissions on motion do not establish the Petitioner's eligibility.

To establish eligibility for SIJ .classification, petitioners must show that they are unmarried, under 21 years of age, and have been subject to a state juvenile court order determining that the petitioners cannot reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar basis under state law. Section 101(a)(27)(J) of the Act; 8 C.F.R. § 204.11(c). Petitioners must have been declared dependent upon a juvenile court or the juvenile court must have placed the petitioners in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section 101(a)(27)(J)(i) of the Act. The record must also contain a judicial or administrative determination that it is not in the petitioners' best interest to return to their or their parents' country of nationality or last habitual residence. ld at section 101(a)(27)(J)(ii)~

USCIS must also consent to the grant of SIJ classification. !d. at section 101(a)(27)(J)(iii). USCIS' consent is an acknowledgment that the request for SIJ classification is bona fide, which means that the juvenile court order and best-interest determination were sought to gain relief from parental abuse, neglect, abandonment or a similar basis under state law, and not primarily to obtain an immigration benefit. 6 USCIS Policy Manual J.2(D)(5), https://www.uscis.gov/policymanual. Petitioners bear the burden of proof to demonstrate their eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010).

II. ANALYSIS

The Petitioner was born in India in In 2015, the Family Court of the State ofNew York, entered an order temporarily awarding guardianship of the Petitioner to his aunt, B-K-.' In a second separate order (SIJ order) issued on the same date, the court made additional findings related to the Petitioner's eligibility for SIJ classification, including determinations that reunification with one or both of the Petitioner's parents was not viable due to abuse, abandonment, and neglect and that it was not in the Petitioner's best interest to be removed from the United States to India. Later that same month, the state court issued a final guardianship order.

A. USCIS' Consent Is Not Warranted

In our previous decision, we determined that USCIS' consent to the Petitioner's SIJ classification was not warranted due to material inconsistencies in the record regarding his family composition and his reasons for leaving India. Specifically, the record contained inconsistent testimony regarding the composition ofthe Petitioner's immediate family of which the state court was not fully informed and was relevant to the state court's determinations that the Petitioner could not reunify with his father due to his father's abuse and whether there was any suitable guardian for the Petitioner in India such that it was not in his best interest to return there. In addition, the record contained inconsistent

1 Names withheld to protect the individual's identity.

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Matter of A-P-S-

information regarding the Petitioner's stated reasons for leaving India and the date of his departure, which indicated that his request for SIJ classification was not bona fide, as the record did not show that he sought the state court order primarily to gain protection from parental abuse, abandonment or neglect.

On motion, the Applicant submits a statement addressing the inconsistencies we previously identified. He asserts that he testified truthfully in his state court proceedings regarding his family composition and maintains that the errors in the state court petition and documents, including in his own affidavit, were made inadvertently by his guardian and were unintentionally overlooked by the Petitioner in reviewing the documents. The Petitioner also explains the inconsistencies regarding the date of his departure from India and his reasons for coming to the United States.

The Petitioner's explanations on motion resolve the inconsistencies regarding his reasons for leaving and date of departure from India, but his statements are not sufficient to overcome the other discrepancies in the record. The Petitioner executed his affidavit to the state court under oath and he was years old2 at the time he signed both the affidavit and his petition to the state court. On motion, the Petitioner does not explain why he and his guardian first attested, for example, that he had three older brothers all of whom could not protect or care for him in India, but he later testified before the state court that he had only one elder brother who lived with other relatives and then stated at this adjustment of status interview that his elder brother lived with him and his parents in India. Further, in our previous decision we noted the absence of the home study report required in the Petitioner's state court proceedings, but the Petitioner did not submit the report on motion to clarify the inconsistencies or explain why he could not obtain the report.

The Petitioner contends on motion that USC IS' role is limited to an examination of the evidence to ensure there is a reasonable factual basis for the juvenile court order, and that we abused our discretion and acted contrary to the law, USCIS policy, and congressional intent, by looking beyond the state court's non-viability and best-interest determinations to reassess the underlying facts and make our independent determinations. He maintains that we are required to defer to the state court's expertise on issues of child welfare, and should assume that the court here recognized the referenced inconsistencies in the record and weighed them against his detailed testimony of abuse and neglect before rendering the requisite judicial determinations.

The Petitioner is correct that when determining whether USC IS' consent is warranted, we generally defer to the expertise of the juvenile court on matters of child welfare under state laws and do not reweigh the evidence to determine parental abuse, neglect, abandonment, or any similar basis under

2 Relying on 2009 USCJS asylum officer training materials relating to children's asylum claims, the Petitioner also contends that he was a child and that his minor age and his status as a victim of abuse should have been considered in determining the materiality of his inconsistent statements. However, USCJS guidelines on children's asylum claims relate to claims filed by principal applicants under the age of 18. Here, the Petitioner was years old at the time he made the statements to the state court and before USCJS. See Memorandum from Jeff Weiss, Acting Director for Office of International Affairs, USCIS, HQ OIA 120111.26, Guidelines For Children's Asylum Claims 1 (Dec. 10, 1998), https://www.uscis.gov/archive/archive-laws/archive-memos.

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Matter of A-P-S-

state law. See 6 USCIS Policy Manual, supra, at J.2(D)(5). Instead, we review the juvenile court order to ensure it contains the requisite dependency or custodial placement and includes or is supplemented by the factual basis for the order. !d. at J.3(A)(3). Juvenile court orders containing, or supplemented by, judicial findings of fact will typically be sufficient to establish a reasonable factual basis for the order and the required judicial findings. !d. However, as we previously stated, the evidence must still confirm that the juvenile court made an informed decision. !d. at J.2(D)(5).

Here, our prior examination of the record on appeal was properly limited to an examination of whether it established a reasonable factual basis for the court order, and we did not reassess the underlying facts in the case as the Petitioner maintains. Rather, our inquiry disclosed that the state court's factual findings regarding parental abuse by the Petitioner's father and its best-interest determinations were premised on the Petitioner's inconsistent statements (written and verbal) before the court and before USCIS. The Petitioner's statement on motion does not establish that the state court was aware of and resolved the cited inconsistencies in rendering its non-viability and best-interest determinations. The court's findings by themselves are therefore not sufficient to overcome the discrepancies and show that the court made an informed decision. Although the Petitioner asserts that we abused discretion in requiring further evidence beyond the guardianship petition and supporting affidavits already in the record to establish that his request for SIJ classification was bona fide, where, as here, there is significant contradictory information of which the state court was unaware, or which could affect whether a reasonable factual basis exists for the court's determinations, we may properly request additional evidence to establish a reasonable basis for the court findings. !d. at J.3(B).

Additionally, upon further review, the record contains another significant discrepancy which further shows that USCIS' consent to the Petitioner's SIJ classification is not warranted. The guardianship order references section 661 of the New York Family Court Act, which allows the appointment of a guardian for a person over 18, but less than 21, years of age. However, section 1012 of the New York Family Court Act defines abused or neglected children as children less than 18 years of age. Although the transcript of the state court proceedings indicates that the state court judge specifically requested testimony on the issue of abuse, neglect, or abandonment that occurred when the Petitioner was under years of age, the Petitioner only testified to incidents of physical abuse by his father in

and 2012, after he had already turned years old in As the Petitioner incorrectly testified that he was years old at the time of the incidents, the record does not show that the court recognized that the Petitioner was not under years of age when the abuse occurred or that the error was brought to the court's attention. This discrepancy further indicates that the state court was not aware of all the relevant facts when determining that the Petitioner could not reunify with his father due to his father's abuse under New York law.

Given the discrepancies identified in the record, which have not been overcome on motion, the record does not show that the state court was fully informed of facts relevant to its determinations that the Petitioner could not reunify with his parents due to his father's abuse and that it was not in his best interest to return to India. Consequently, the Petitioner has not shown that his request for SIJ classification is bona fide and warrants USCIS' consent as section 101(a)(27)(J)(iii) of the Act reqmres.

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Matter of A-P-S-

B. The Order Lacks Qualifying Non-Viability and Best-Interest Determinations

Although not addressed by the Director or in our prior decision on appeal, the state court order also does not establish that the requisite SIJ determinations were made under state law as required by subsections 101(a)(27)(J)(i), (ii) ofthe Act.

The Act requires that the juvenile court determine that an SIJ\petitioner's "reunification with one or both/ ... parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." Section 101(a)(27)(J)(i) ofthe Act. Thus, the plain language ofthe statute indicates that state law governs the determination that parental reunification is not viable. See 6 USCIS Policy Manual, supra, at J.2(D), (D)(2),(4), J.3(A)(2) (stating that non-viability determinations must be made under state child welfare laws). Similarly, a juvenile court's best-interest determination also "generally involves the deliberation that courts undertake under state law" in deciding actions to serve the best interests of the child. ld. at J.2(D)(3). The juvenile court order itself should establish that these requisite findings were made under state law, and orders that only cite or paraphrase immigration law and regulations will not suffice. Id. at J.2(D)(4), J.3(A)(2).

Here, the SIJ order states that it was issued "in accordance with 8 U.S.C. § 1101(A)(27)(J)" and that "reunification with one or both of the . . . child's parents . . . is not viable due to parental abuse, neglect, or abandonment under New York State law and it would not be in the child's best interest to be returned to ... India." The court cited no specific provision of New York state law under which its determinations were made, and the underlying guardianship petition and documents submitted to the state court also do not reference any applicable state child welfare laws. In addition, in the court transcript, the judge stated that the Petitioner's "[r]eunification with his parents is not viable, he was physically abused by his father." Although the Petitioner also testified to his mother's behavior, the transcript and the SIJ order do not establish if or on what basis the state court determined that the Petitioner also could not reunify with his mother due to her abuse, neglect or abandonment under any applicable provision ofNew York child welfare law. See id. at J.3(A)(4) (the juvenile court order should specifically indicate which ground applies to which parent(s)).

Accordingly, as the record does not establish the state law under which the non-viability and best­interest determinations were made, the SIJ order is deficient for purposes of SIJ classification under section 101(a)(27)(J)(i)-(ii) ofthe Act.

III. CONCLUSION

The Petitioner has not overcome the grounds for dismissal of his appeal set forth in our prior decision. He has not shown that USCIS' consent to his SIJ classification is warranted because unresolved inconsistencies in the record show that the state court was not fully informed when making its determinations regarding parental reunification and the Petitioner's best interest. Additionally, the record does not establish the state law under which the court's non-viability and best-interest determinations were made, as the Act and USCIS policy require. Consequently, the Petitioner is ineligible for SIJ classification.

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ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to rec;onsider is denied.

Cite as Matter of A-P-S-, ID# 298799 (AAO June 2, 2017)

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