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U.S. Citizenship and Immigration Services

MATTER OF G-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 5, 2017

APPEAL OF HOLTSVILLE, NEW YORK FI ELD OFFICE DECISION

PETITION: FORM l-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 one or both of the Petitioner's parents had abandoned and neglected him and, in a separate order, granted his uncle guardianship over the Petitioner. Based on this state court order, the Petitioner seeks classification as a special immigrant juvenile (SIJ). See Immigration and Nationality Act (the Act) sections 10l(a)(27)(J) and 204(a)(l)(G), 8 U.S.C. §§ 1101(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 petition, concluding that the Petitioner sought SIJ status primarily for immigration purposes and U.S. Citizenship and Immigration Services (USCIS)' consent to his SIJ classification was not warranted.

On appeal, the Petitioner submits a brief and copies of previously submitted evidence, and asserts that USCIS' consent is warranted and he is eligible tor SIJ classification.

Upon de novo review, we will dismiss the appeal.

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 basis under state law. Section 101(a)(27)(J) ofthe Act; 8 C.F.R. § 204. ll(c). Ajuvenile court must have declared the petitioner dependent upon the comt or placed the petitioner in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section I Ol(a)(27)(J)(i) of the Act. The record must also contain a judicial or administrative determination that it is not in the petitioner' s best interest to return to his or her or his or her parents ' country of nationality or last habitual residence. !d. at section 101(a)(27)(J)(ii).

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Matter of G-S-

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 tor SJJ classification is bona tide. 6 USCIS Policy Manual 1.2(0)(5), https://www.uscis.gov/policymanual. Petitioners bear the burden of proof to demonstrate their eligibility by a preponderance of the evidence. Matter ol Chawathe, 25 I&N Dec. 369, 375 (AAO 2010).

II. ANALYSIS

The Petitioner was born in India in and entered the United States without inspection in 2013. In 2015, the Family Court of the State ofNew York, (juvenile court) entered an order Guvenile court order), finding that "[r]eunitication with one or both of his/her parents is not viable due to ... neglect; abandonment" and that it was not in the Petitioner's "best interest to be removed from the United States and returned to ... India." In a separate order, the juvenile court also appointed the Petitioner's uncle, S-S-, 1 as his guardian.

A. USCIS' Consent

USCIS' consent is not warranted in the Petitioner's case. To merit consent, SI.J petitioners must show that they sought the juvenile court order and best-interest determination primarily to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit. See 6 USCIS Policy Manual, supra. at 1.2(0)(5). When determining whether consent is warranted, users relies upon the expertise of the juvenile court in regards to issues of child welfare under state laws. !d. USCIS does not reweigh the evidence to determine parental abuse, neglect, abandonment or any similar basis under state law. !d. 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 tor the order. !d. at J.3(A)(3). 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. The evidence must confirm that the juvenile court made an informed decision. Jd at .1.2(0)(5).

In the Petitioner's case, although there is some factual basis for the court's best interest finding, the juvenile court was unaware of relevant, but inconsistent information that may have altered its

. determination. users may request additional evidence if there is significant contradictory information in the file of which the juvenile court was unaware, or which could atTect whether a reasonable factual basis exists for the court's determinations. 6 USCIS Policy Manual, supra, at J.3(B). As the Director noted, there is a significant discrepancy between the Petitioner's testimony to the juvenile court and statements made in conjunction with other immigration proceedings. During an interview with an asylum officer to determine whether the Petitioner had a credible fear of returning to India, the Petitioner indicated that another uncle in India had his passport and was the

1 Initials are used throughout this decision to protect the identities of the individuals.

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Matter of G-S-

person who sent him to the United States? Similarly, in his affidavit submitted with his asylum application, the Petitioner stated that he was able to escape India to come to the United States with the help of his uncle in India. At his adjustment of status interview, the Petitioner again stated that his uncle, K-S-, in India paid for and arranged his travel to the United States. He also indicated that he lived with his uncle in India before coming to the United States, that his uncle paid for him to attend private school there, and that his uncle works as a smuggler sending people all over the world. He further stated that he had been in contact with his uncle, K-S-, since his arrival in the United States. However, in his petitions and testimony to the juvenile court, the Petitioner indicated that after he moved out of his parents' house in India, he went to live with a "travel agent" who eventually arranged for him to travel to the United States, but did not disclose that the agent was his uncle.3 Petitioner's Affidavit submitted with his Motion for Special Findings; Transcript ofjuvenile court hearing ("Transcript") at 22. When the juvenile court judge asked him directly if he had any family other than his parents in India, the Petitioner stated that his only other family member there was his sister. Transcript at 29.4

The Petitioner's misrepresentations to the juvenile court led the court to make an incomplete best­interest determination. The juvenile court's best interest determination generally requires deliberation regarding the SIJ's placement and who is best suited to take care of the child. 6 USC IS Policy Manual, supra, at J.2(D)(3). Here, the juvenile court judge indicated during the hearing that her best-interest determinatio'n was, at least in part, based on the fact that besides his parents and sister in India, the Petitioner had "no other relatives there to take care of him ... and this court would not want him to return to a child trafficking agent." Transcript at 32. However, in other immigration proceedings, the Petitioner stated several times, at least two during which he was under oath, that his uncle in India arranged for him to come to the United States. He also testified that he lived with his uncle and that his uncle paid for him to attend school. These inconsistencies indicate that the juvenile court did not make an informed best-interest determination and the record lacks a reasonable factual basis for that finding. 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) ofthe Act reqmres.

1 USC IS exercises careful judgment when considering statements made by children at the time of initial apprehension to question a juvenile court's order. 6 USCIS Policy Manual, supra, at J.3(B). However, the credible fear interview was conducted by an asylum officer three weeks after the Petitioner's initial apprehension, and we are considering it only as one piece of evidence in conjunction with the other evidence discussed. . 3 In his adjustment interview, the Petitioner indicated that K-S- was his uncle on his father's side. However, the Petitioner told the juvenile court judge that the "agent'' did not know his parents. Transcript of juvenile court hearing ("Transcript") at 25. 4 The Petitioner also indicated to the juvenile court judge that he stopped going to school because his parents refused to pay for his education. Transcript at 22. This statement is inconsistent with his testimony at his adjustment interview in which he indicated that his uncle paid for him to attend private school.

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B. No Qualifying Finding that Parental Reunification is Not Viable

In addition, the Petitioner is ineligible for SIJ classification because the juvenile com1 order lacks a sufficient determination regarding parental reunification under section 10l(a)(27)(J)(i) of the 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 10l(a)(27)(J)(i) of the Act. The plain language of the statute indicates that state law governs the determination that parental reunification is not viable. Accordingly, the juvenile court order itself should establish that the determination was made under state law, and orders that only cite or paraphrase immigration law and regulations will not suffice. 6 USCIS Policy Manual, supra, at J.2(D)( 4), J .3(A)(2). Here, the juvenile court found that the Petitioner could not reunify with "one or both" of his parents due to neglect or abandonment, but the court cited no state law under which that determination was made. Additionally, neither the court order nor the supporting evidence indicates which parent neglected or abandoned the Petitioner. See id. at J.3(A)( 4) (The order or supporting evidence should clearly indicate which of the specific grounds applies to which of the parent or parents.). Consequently, the SIJ order lacks a qualifying determination that parental reunification with the Petitioner's parents is not viable.

III. CONCLUSION

USCIS' consent to the Petitioner's SIJ classification is not warranted as the record lacks a reasonable factual basis for the juvenile court's best-interest determination. The juvenile court order also does not contain the requisite determination that reunification with one or both of the Petitioner's parents is not viable. Consequently, the Petitioner is ineligible for SIJ classification and the appeal will be dismissed.

ORDER: The appeal is dismissed.

Cite as Matter ofG-S-, ID# 132757 (AAO Apr. 5, 2017)

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