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U.S. Citizenship and Immigration Services

MATTER OF E-M-

Non-Precedent Decision of the Administrative Appeals Office

OATE: SEPT.8,2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

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

The Petitioner, who was born in Israel, was admitted to the United States in October 2010 as a nonimmigrant visitor. In 2011, when he was 1 7 years old, a New Jersey court found that the Petitioner's parents constructively abandoned him and appointed his aunt and uncle as his guardians. The Petitioner departed the United States shortly thereafter, returning two years later on a new nonimmigrant visa. Based on the 2011 state court order, 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. §§ 1101(a)(27)(J) and 1154(a)(l)(G). The SI.l 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 Mount Laurel, New Jersey, Field Office denied the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition), concluding that the Petitioner had not established that he was the subject of a qualifying juvenile court order. The Director further concluded the Petitioner had not demonstrated that his request for SIJ classification was bona fide and warranted U.S. Citizenship and Immigration Services' (USCIS) consent. We dismissed the appeal and denied two subsequent motions to reopen and reconsider.

On his third motion to reopen and reconsider, the Petitioner submits a supplemental statement and asserts that we erred in withholding USCIS' consent because the record demonstrated the factual basis for the best-interest determination in the juvenile court order. Additionally, the Petitioner contends that because the juvenile court never modified or vacated its order and the Petitioner had not been emancipated under state law, he continued to be subject to a valid juvenile court order at the time of filing, notwithstanding his intervening departure from the United States.

Upon review, we will deny the motion.

I. LAW

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

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basis under state law. Section 101(a)(27)(J) of the Act; 8 C.F.R. § 204.1l(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) ofthe Act. The record must also contain a judicial or administrative detennination that

·it is not in the petitioners' best interest to return to their or their parents' country of nationality or last habitual residence. !d. at section 101(a)(27)(J)(ii).

USCIS must also consent to the grant of SIJ classification. !d. at section 10l(a)(27)(J)(iii). USCIS' consent is an acknowledgment that the request for SIJ classification is bonafide, 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).

A motion to reopen is based on evidence of new facts. 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 USCIS 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). On motion, the Petitioner does not submit any new evidence or new facts to support a motion to reopen. Although he asserts legal errors in our prior decision, he has not established his eligibility as discussed below.

II. ANALYSIS

In our prior decisions on appeal and motions, we concluded that the Petitioner did not establish eligibility for SIJ classification because the record did not demonstrate the continuing validity of the juvenile court order after his departure from the United States to Israel, where he resided for two years before filing the instant petition. We further found that the Petitioner's request for SIJ classification did not merit consent by USCIS on this basis and because the juvenile court's best-interest determination was contradicted by the Petitioner's subsequent return and lengthy residence in Israel. Upon a full review of the record, as supplemented on motion, the Petitioner has not overcome the grounds for denial.

A. Continuing Validity of the Juvenile Court Order Not Established

In order to establish eligibility for SIJ classification at the time of filing, a petitioner must be the subject of a juvenile court order containing a juvenile dependency or child custody determination. Section 101(a)(27)(J)(i) ofthe Act. The SIJ regulations similarly provide that an SIJ petitioner must continue to be subject to a valid juvenile court order that has not been vacated, terminated, or otherwise ended. 8 C.F.R. § 204.1l(c)(5); 6 USCIS Policy Manual, supra, at J.2(D)(4) (an SIJ petitioner must continue to be under the jurisdiction of the juvenile court at the time of filing and adjudication of his or her petition). A petitioner who is no longer under the jurisdiction of the juvenile court will not be eligible for SIJ classification under section 101(a)(27)(J)(i), with some

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exceptions. 1 6 USCIS Policy Manual, supra, at J.2(D)( 4). In those instances where a petitioner has relocated to another juvenile court's jurisdiction and is not living in the court ordered placement or with the court ordered custodian, the petitioner must submit evidence that he or she is still within the jurisdiction of the juvenile court that issued the original order or submit another order issued by a juvenile court in the new jurisdiction. !d.

Here, after the New Jersey juvenile court appointed the Petitioner's aunt and uncle as his guardians in 2011, the Petitioner departed the United States and relocated to Israel in September 2011 for a

period of two years, returning in October 2013 when he was 20 years old. He did not reside with his court appointed guardians during his time abroad. The Petitioner did not file the instant petition until February 2014 after his return. As we stated in our prior decisions, the record lacked evidence that the Petitioner continued to be subject to the juvenile court order after his departure from the United States and outside the jurisdiction of the juvenile court.

On motion, the Petitioner asserts that he continued to be supported and influenced by his court appointed guardians, his aunt and uncle, even after he returned to Israel. Citing a New Jersey case, Quinn v. Johnson, he contends that New Jersey courts may consider the facts of a case and the best interests of a child to continue to exercise jurisdiction in juvenile custody proceedings even after the child attains majority at 18 years of age. 247 N.J. Super. 572 (N.J. Super. Ct. Ch. Div. 1991). Accordingly, the Petitioner asserts that he continued to be under the jurisdiction of the juvenile court here during his two-year residence in Israel and until the filing of the instant petition, because only a finding of his emancipation under state law would have rendered him no longer subject to the court custody order in his case. However, the Petitioner is mistaken as to the applicability of Quinn, as we are not questioning the state court's continuing authority over the Petitioner after he attained the age of majority.2 Rather, as we previously discussed, the issue is whether the record demonstrates the court's continuing jurisdiction over the Petitioner after he departed the United States and the jurisdiction of the state court to reside separately from his court appointed custodians. The Petitioner has not produced any evidence from the New Jersey court of its continuing jurisdiction over him after his relocation outside of the court's jurisdiction. Accordingly, the Petitioner has not demonstrated that he was the subject of a valid juvenile court order when he filed his SIJ petition, as required by section 101(a)(27)(J)(i) of the Act and· the implementing regulation at 8 C.F.R. § 204.ll(c)(5).

1 For instance, where a juvenile court order is no longer valid or was terminated based on age before the SIJ petition is filed, the petition will not be denied on that basis so long as the petitioner was under 21 years of age at the time of tiling. Stipulation, Perez-Olano v. Holder, No. CV 05-3604 (C. D. Cal. 2005); USCIS Policy Memorandum PM-602-0 117, Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement 4 (June 25, 20 15), https://www.uscis.gov/laws/policy-memoranda. This is not applicable here because the Petitioner's age is not the grounds on which validity of the juvenile court order is being questioned, but rather, his two-year relocation to Israel, outside the jurisdiction of the juvenile court. 2 See USCIS Policy Memorandum PM-602-0 117, supra note I. Further, insofar as the Petitioner is asserting that the only circumstances under which a juvenile court loses jurisdiction over a child is upon reaching majority or emancipation, Quinn does not support, and the Petitioner has not cited to any other authority for, such an assertion.

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B. USCIS' Consent

The Petitioner has also not overcome our prior determination that his request for SIJ classification does not merit USCIS' consent under section 101(a)(27)(J)(iii) of the Act. As stated, this consent determination acknowledges that the SIJ classification request is bona fide, meaning that the petitioner sought the juvenile court order and the best-interest determination to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law, and not primarily to gain permanent residence. 6 USCIS Policy Manual, supra, at J.2(D)(5).

When determining whether USCIS' consent is warranted, USCIS generally defers to the expertise of the juvenile court on matters of child welfare under state laws. 6 USCIS Policy Manual, supra, at J.2(D)(5). USCIS does not reweigh the evidence to determine parental abuse, neglect, abandonment, or any similar basis under state law. Id. Rather, the agency reviews 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. Id. at J.3(A)(3). While template orders that merely recite the Act and regulations will not suffice, juvenile court orders that contain, or are supplemented by judicial findings of fact, are generally sufficient to establish a reasonable basis for the juvenile court's order and the judicial or administrative best-interest determination. !d. Although the evidence required need not be overly detailed, it must confirm that the juvenile court made an informed decision. !d. at J.2(D)(5). Where the juvenile court order does not contain any findings of fact, USCIS may consider, for example, the underlying petition for dependency or custody, any supporting documents submitted to the juvenile court, affidavits summarizing such evidence, or affidavits and records consistent with the court's findings. !d. at J.3(A)(3).

On motion, the Petitioner again asserts that we erred in withholding USCIS' consent to his request for SIJ classification, because the record established the factual basis upon which the juvenile court made its best-interest determination. He maintains that the juvenile court relied on the findings of the social services agency in Israel and the court's own findings under New Jersey law as to the Petitioner's best interests in making the required SIJ determination. The court's findings were based on assertions that there was no one to take care of the Petitioner if he returned to Israel and that he and his brother would become wards of the state. However, as we previously discussed in our May 2016 decision, the facts on which the juvenile court relied in making the best-interest determination were directly contradicted by the Petitioner's subsequent return to Israel where he resided separately from his court appointed guardians with the support of other family members for two years before returning to the United States and filing the instant petition. The record also does not contain any subsequent orders or evidence of additional findings by the court indicating that it was informed of the Petitioner's intentions to return to Israel and of his residence and employment there for two years.

Accordingly, the record does not establish that the Petitioner sought the juvenile court order and the best-interest determination primarily to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law, and not primarily to obtain lawful immigrant status. Additionally, USCIS' consent is not warranted given our determination that the record does not establish that the

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Petitioner continued to be subject to the juvenile court order after his lengthy departure from the United States, as section 10l(a)(27)(J)(i) ofthe Act requires.

III. CONCLUSION

The Petitioner has not overcome the grounds for dismissal of his appeal. He has not established the continuing validity of the juvenile court order over him after his departure from the United States for a period of two years. The Petitioner has also not shown that his request for SIJ classification warrants USCIS' consent. Consequently, the Petitioner is not eligible for SIJ classification.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter of E-M-, ID# 00519623 (AAO Sept. 8, 20 17)

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