August 26, 2015 - In a unanimous opinion by Judge Cuff, the New Jersey Supreme Court today issued a decision that will help immigrant children who have been abused, abandoned, or neglected by their parents avoid deportation back to their home country. In the case, H.S.P. v. J.K., the Court reversed an earlier decision by the Appellate Division, which had purported to give a limiting interpretation of the federal law governing Special Immigrant Juvenile Status ("SIJS"). The SIJS statute is designed to protect children from deportation back to unfit parents or homes where they lack any caretaker. In 2013, the federal Department of Homeland Security approved approximately 3,400 SIJS petitions nationwide.

The Supreme Court made clear that it is not the role of the state courts to interpret federal immigration statutes or to make decisions about whether a child qualifies for SIJS or any other form of immigration relief. Instead, state courts are to make complete factual findings about whether a child has been abused, neglected, or abandoned by each of the child's parents and whether it would be in the child's best interest to return to his or her country of origin. Such findings are within the core competence of our child welfare courts, and are to be based, the Supreme Court emphasized, on state law standards and not on the law of the child's country of origin. Based on the state court's factual findings, federal immigration officials will decide whether the child qualifies for SIJS.

Lowenstein Sandler appeared in the case before the Supreme Court on behalf of three organizations that assist children who have suffered maltreatment and face involuntary return to harmful conditions in their home countries: the American Friends Service Committee, Kids In Need of Defense ("KIND"), and the Young Center for Immigrant Children's Rights. The Court granted these organizations permission to submit a brief and participate in argument as amici curiae.

"The Supreme Court ruling clarifies the distinct roles of state courts and federal immigration officials," said Matthew Boxer, the Lowenstein Sandler partner who argued for the amici. "In doing so, the Court created a roadmap for the fair and efficient operation of the two-step process that requires an immigrant child to prove abuse, neglect, or abandonment in state court and then to present the state court findings to federal immigration officials as the basis upon which the child seeks to remain in this country in safety," he added.

"By eschewing a limiting interpretation of federal law, the New Jersey Supreme Court not only protected the welfare of unaccompanied immigrant children but also avoided unworkable and unfair geographic contradictions in how these children are treated across the nation," added Wendy Young, President of KIND.

"Week after week, the American Friends Service Committee represents children who fled their home countries to escape beatings, sexual abuse, and other forms of family violence or who were left to forage for food and find their own shelter because of a parent's inability to care for them," said Amy Gottlieb, Associate Regional Director, Northeast Region, American Friends Service Committee. "This decision will enable such children to seek protection from deportation and an opportunity to build a better life here."

"This is a common sense ruling that enables U.S. officials to protect children from return to an abusive parent or no parent at all," added Maria Woltjen of the Young Center for Immigrant Children's Rights. "Children need and deserve protection from forced return to countries where there is no fit parent to care for them."

Contacts

Lowenstein Sandler 
Catherine Weiss or Matt Boxer
973-597-5000
cweiss@lowenstein.com; mboxer@lowenstein.com  

KIND
Wendy Young
202-824-8685
WYoung@supportkind.org  

American Friends Service Committee
Amy Gottlieb
917-494-6415
agottlieb@afsc.org  

Young Center for Immigrant Children's Rights
Maria Woltjen
773-702-9560
mwoltjen@uchicago.edu

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