A5372

An Act concerning State-issued orders related to Special Immigrant Juvenile Status, and supplementing Title 3B of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares:

a. Federal law, 8 U.S.C. s.1101(a)(27)(J), creates Special Immigrant Juvenile Status (SIJS) to provide a pathway to lawful permanent residency for certain vulnerable immigrant children.

b. To qualify for SIJS, a young immigrant seeking the protection of a state court must request special findings related to SIJS.

c. Federal preliminary eligibility requirements, set forth in subsection (b) of 8 C.F.R. s.204.11, require a youth to be under 21 years old, unmarried, and physically present in the United States.

d. Federal law enlists state juvenile courts to make the following additional factual findings to establish eligibility:

(1) the court has jurisdiction to make judicial determinations about the dependency, and custody and care of juveniles;

(2) the youth is dependent on the court or has been placed under the custody or guardianship of a person or entity appointed by the court;

(3) the youth’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law; and

(4) it is not in the best interest of the youth to be returned to their country of origin.

f. In New Jersey, the State court with appropriate jurisdiction is the Family Part of the Chancery Division of the Superior Court in the county in which the youth resides.

g. The United States Citizenship and Immigration Services may approve a youth’s SIJS petition only if the petition includes a state juvenile court order that makes the findings required by federal law.

h. Current procedures related to SIJS may create barriers that delay or prevent some youth who might otherwise qualify for SIJS from seeking the special findings they require from the Family Part. These barriers include, but are not limited to:

(1) preventing youths from seeking SIJS findings in certain Family Part dockets where they may have assigned counsel, and, instead, requiring them to initiate proceedings in another docket in which the youth may lack legal representation;

(2) prohibiting a youth, or the youth’s caregiver, from reopening a case in any Family Part docket in order to make a motion for SIJS findings; and

(3) requiring separate complaints or motions to be filed for each youth, including siblings, which results in requiring additional time to prepare applications; duplicative papers being filed in each separate matter; and, for represented parties, the court requiring separate notices of appearance by counsel, with separate fees.

i. It is the intent of the Legislature to protect noncitizen youths who are seeking lawful immigration status by removing barriers to those seeking SIJS.

2. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Court” means the Superior Court, Chancery Division, Family Part.

“Sibling” means a person with whom a youth shares both parents.

“Special Immigrant Juvenile Status” means a federal immigration classification that creates a pathway for undocumented immigrant children, who have suffered parental abuse, neglect, or abandonment, and whose best interests would not be served by return to their country of origin, to acquire lawful permanent residency status in the United States.

“Unemancipated” means that the court has found that a youth remains emotionally or materially dependent, or both, on the youth’s caregiver, a State agency or department, or a person appointed by the court.

“Youth” means a person who is under the age of 21 years.

3. a. When a youth is involved in any proceeding before the court, the youth or the youth’s caregiver may file a complaint or motion to seek findings related to Special Immigrant Juvenile Status in any docket in which the proceedings are pending.

b. If a youth has previously been involved in a proceeding in any docket of the court, the court shall permit the docket to be reopened for the purpose of filing a complaint or motion to seek findings related to Special Immigrant Juvenile Status.

c. Unless required pursuant to federal or State law, no evidentiary requirements shall be imposed by the court as a condition for filing, docketing, or scheduling any matter in which the youth, or the youth’s caregiver, is seeking findings related to Special Immigrant Juvenile Status.

d. Two or more youths who are siblings may be the subject of a joint complaint or joint motion to seek findings related to Special Immigrant Juvenile Status under the same docket. The court shall enter a separate order for each sibling.

4. a. An order entered pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall address the following factual findings, as determined by the court:

(1) that the court has jurisdiction to make judicial determinations about the dependence, and custody and care of youths;

(2) that the youth is dependent on the court or has been placed under the custody or guardianship of a person or entity appointed by the court;

(3) that the youth’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law;

(4) that it is not in the best interest of the youth to be returned to the youth’s country of origin; and

(5) if the youth is at least 18 years of age but under the age of 21, that the youth is unemancipated.

b. For an order entered pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), the court shall state on the record the reasons and statutory basis for each factual finding related to each determination.

c. An order entered pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall contain the following statement:

This order is a confidential document. Nevertheless, the court authorizes its disclosure to federal immigration officials in connection with the person’s application for immigration relief.

5. In determining whether to enter an order with findings related to Special Immigrant Juvenile Status:

a. evidence related to adverse conditions in the youth’s country of origin shall not be required for every application. Such evidence shall only be required if the court has made an individualized assessment that the evidence is necessary to make the factual findings related to Special Immigrant Juvenile Status.

b. In order to determine whether a youth who is at least 18 years of age but under the age of 21 is unemancipated, the court may consider any evidence that demonstrates that the youth is dependent for emotional or material support on a caregiver, a State agency or department, or a person appointed by the court.

c. The court shall not, however, require as a matter of course in every case any particular evidence of non-emancipation including, but not limited to, evidence that the youth is enrolled in school or that the youth is not subject to any obligation for service in the Armed Forces of the United States. Such evidence shall only be required when the court has made an individualized assessment that the evidence is necessary to make the factual determinations for Special Immigrant Juvenile Status.

d. Nothing in this section shall be construed to prevent the court from requiring the production of any evidence it deems relevant based on the particular facts and circumstances of any case in which a party seeks factual determinations for Special Immigrant Juvenile Status.

6. This act shall take effect on the first date of the second month next following the date of enactment.

STATEMENT

This bill concerns State court motions related to Special Immigrant Juvenile Status.

Process for Seeking Special Immigrant Juvenile Status

Federal law, 8 U.S.C. s.1101(a)(27)(J), creates Special Immigrant Juvenile Status (SIJS) to provide a pathway to lawful permanent residency for certain vulnerable immigrant children. To qualify for SIJS, a young immigrant seeking the protection of a state court must request special findings related to SIJS.

Under federal law, pursuant to subsection (b) of 8 C.F.R. § 204.11, in order to request such findings, a youth is required to be under the age of 21, unmarried, and physically present in the United States. Federal law, pursuant to subsection (c) of 8 C.F.R. § 204.11, enlists the state juvenile courts to make the following additional factual findings to establish eligibility:

(1) that the court has jurisdiction to make judicial determinations about the dependency and custody and care of juveniles;

(2) that the youth is dependent on the court or has been placed under the custody or guardianship of a person or entity appointed by the court;

(3) that the youth’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law;

(4) that it is not in the best interest of the youth to be returned to their country of origin; and

(5) if the youth is at least 18 years old but under the age of 21, that the youth is unemancipated.

Barriers Created by Current Procedures Related to SIJS

Current procedures related to SIJS are set forth in Directive #04-25 of the New Jersey Administrative Office of the Courts. In the sponsor’s view, these procedures have created barriers that delay or prevent youth who might otherwise qualify for SIJS from seeking the special findings they require from the Family Part. These barriers include, but are not limited to:

(1) preventing some youths from seeking SIJS findings in certain Family Part dockets where they may have assigned counsel, and requiring them instead to initiate proceedings in an entirely different docket where they may lack legal representation;

(2) prohibiting a youth, or the youth’s caregiver, from reopening a case in a prior Family Part docket in order to make a motion for SIJS findings; and

(3) requiring separate complaints to be filed for each youth, including siblings, resulting in requiring additional time to prepare applications, duplicative papers being filed in each separate matter; and, for represented parties, the court requiring separate notices of appearance by counsel, with separate fees.

Procedures Established Under the Bill

Under the bill, a youth, or the youth’s caregiver may file a motion to seek findings related to SIJS in any docket in which the proceedings are pending. A youth who has previously been involved in a proceeding in any docket of the court is permitted to reopen the docket for the purpose of filing a motion to seek findings related to SIJS.

Unless required pursuant to federal or State law, no evidentiary requirements may be imposed by the court as a condition for filing, docketing, or scheduling any matter in which the youth is seeking findings related to SIJS. Two or more youths, who are siblings that share both parents, may file, or be the subject of, a joint application for an order under the same docket. The court is required to enter a separate order for each sibling.

In determining whether to enter an order with findings related to SIJS, the court may require and consider evidence it deems relevant, based on the facts and circumstances of the youth’s application. However, the bill provides that:

(1) evidence related to adverse conditions in the youth’s country of origin is not required for every application for SIJS findings; such evidence shall only be required when the court has made an individualized assessment that the evidence is necessary to make the factual determinations for SIJS; and

(2) in order to establish that a youth who is at least 18 years old, but is under the age of 21, is unemancipated, the court may consider any evidence that demonstrates that the person is dependent for emotional or material support on a caregiver, a State agency or department, or a person appointed by the court; the court may not, however, require evidence of non-emancipation in every case, such as whether the youth is enrolled in school or is subject to any obligation for service in the Armed Forces of the United States. Such evidence may only be required when the court has made an individualized assessment that such evidence is necessary to make the factual determinations for SIJS.

An order entered under the bill is required to include the following factual findings as to whether:

(1) the court has jurisdiction to make judicial determinations about the dependence, and custody and care of a youth;

(2) the youth is dependent on the court or has been placed under the custody or guardianship of a person or entity appointed by the court;

(3) the youth’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law;

(4) it is not in the best interest of the youth to be returned to their country of origin; and

(5) if the youth is at least 18 years old, but under the age of 21, the youth is unemancipated.

The court shall state on the record the reasons and statutory basis for each factual finding related to each determination.