As thousands of children – many unaccompanied by adults – cross America’s southern border to flee danger in countries such as El Salvador, Guatemala and Honduras, a recent appellate case originating out of a family court in Nassau County, New York illustrates the plight facing some of the youngsters in the region. The appeal involves whether the mother of children who fled violence in El Salvador can be appointed guardian under a statute which could eventually qualify the children for more permanent legal status in this country.
The facts of this case are particularly gruesome. Three children (now aged 19, 18 and 16 respectively) were born in El Salvador. The father drank often, and he verbally and physically abused the mother. When the kids were much younger, the mother left the dad and took the children with her to her mother’s home. The father never played any further role in their lives. Members of gangs in their small neighborhood demanded the oldest son join a violent gang or they would hurt him. They also threatened his mother with rape if she did not permit him to join. Eventually, after more threats, she left for the United States to find stable employment and prepare an eventual home for her kids whom she left with their grandmother. The oldest son, continually being threatened by gang members, was sent to live with his mother in the United States as he was too fearful to attend school in his town in El Salvador. Then one day the grandmother was killed walking back to her home after which the other two children were also sent to live with their mother.
Now the children live with their uncle, himself orphaned by the death of their grandmother, in Nassau County while their mother works sixty hours per week to support them. The children petitioned the Family Court for the appointment of the mother as their guardian so that they could pursue special immigrant juvenile status (hereinafter SIJS) as a means to obtaining lawful residency status in the United States, and be freed from the fear of being returned to El Salvador, where they would have no parent to support and protect them. The court denied their request for a “best interests hearing on the grounds they could already live with their mother here.
The appellate court, in Matter of Marisol NH, 2014 NY Slip Op 664 (NY: Appellate Div., 2nd Dept. 2014) rejected that view. First, it confronted the issue of whether a natural parent could be deemed a guardian for purposes of qualifying for SIJ status. It concluded that the controlling statute (Family Court Act § 661) confirmed such a parent could. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils identified in El Salvador. Accordingly, in view of the history of these children the Family Court should have granted her such status with respect to the two kids who are still minors.
Whether the two minor children can receive SIJS, which would provide a path to permanent residency is not fully answered by this case as the approval of the Attorney General, presumably through his designees, is required for such eligibility. Nevertheless the facts of this case illustrate the horrific circumstances young children face in some of these Central American countries.
The Shulman Law Group endeavors to ensure its clients be kept abreast of all significant developments relating to the process of naturalization to the United States. Edward Shulman, Esq, founder of The Shulman Law Group, LLC is a national speaker for the American Immigration Lawyers Association (AILA). AILA is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, and to advance the quality of immigration and nationality law and practice. In the course of Mr. Shulman’s involvement with AILA, he has been dedicated to educating other immigration attorneys about the import of helping intending immigrants to navigate a new cultural system. He meticulously follows all of the developments occurring in the battle over immigration reform so that he will be prepared to effectively assist his clients obtain residency if a new system is enacted.