In the Matter
of a Proceeding for the Appointment of a Guardian of the Person of Amandeep S. A
Person Under 21 Years of Age.
|
G-1310/14
Donalda Leveille, Brooklyn, for petitioner.
Jennifer Arditi, Maspeth, Attorney for Child.
John M. Hunt, J.
In this uncontested guardianship proceeding commenced under article 6 of the
Family
Court Act, the petitioner Jaspal S., seeks an order appointing him as the
guardian of the person of
Amandeep S., a person under the age of 21 years who was born in India on
May 22, 1993.[FN1]
The
attorney for the prospective ward has also filed a motion for the issuance of
"special findings"
which will allow Amandeep to file a petition with the United States Customs
and Immigration
Service ("USCIS") for classification as a Special Immigrant Juvenile in
accordance with 8 USC
§1101 (a) (27) (J) (see generally, Matter of Sing W.C., 83 AD3d
84, 86 [2011]).
Jaspal S. filed the petition seeking to be appointed as the guardian of the person
of
Amandeep S. on January 21, 2014. In support of the guardianship
application, Jaspal S. alleges,
in pertinent part, that he resides at xxx-xx 95th Avenue, Richmond Hill,
New York, and that he is
the "uncle" of Amandeep S., who is alleged to reside at the same address;
that Amandeep S. was
born on May 22, 1993 and that Amandeep S.'s religion is "Sikh"; that
Amandeep S.'s parents are
Balwinder K. and Malkit S. It is further alleged that Amandeep S.'s mother,
Balwinder K.,
resides in "India", and that his father, Malkit S., resides at xxx-xx101st
Avenue, Richmond Hill,
New York. The proposed guardian also alleges that he "ha[s] never been the
subject of an
indicated report, as such term is defined in Social Services Law §412,
that has been filed with the
statewide register of child abuse and maltreatment pursuant to Social
Services Law §422".
Jaspal S.'s petition further states that he should be appointed as guardian of the
person
of Amandeep S. because it "would be in Amandeep S.'s best interests and
would preserve his
legal rights because I have been taking good care of him since he has been
living with me and
I will assume full legal responsibility for him;" that Amandeep's biological
parents, "although
living, should not be appointed guardian of the person of the child because:
they have abandoned
him and have not been in contact with him, failing to provide any stability in
his life"; and lastly
the petition states that Amandeep S. consents to the appointment of Jaspal S.
as his guardian.
As a person over the age of fourteen, Amandeep S. simultaneously filed a petition
on
his own behalf pursuant to Family Court Act §661 and Surrogate's
Court Procedure Act §1703,[FN2]
requesting that the Court appoint Jaspal S. to be the guardian of his person.
Amandeep S. has
also submitted his written consent to the appointment of Jaspal S. as
guardian of his person, which is applicable to both guardianship petitions.[FN3]
The guardianship petitions were initially assigned to Judge Nicolette Pach, sitting as
a
Judicial Hearing Officer Judge Pach entered an order directing that the New
York City
Administration for Children's Services ("ACS") conduct and investigation
into the allegations of
the guardianship petitions and file a written report with the court
(see, Fam. Ct. Act §662; 22
NYCRR §205.56 [a] [2]; Sing W.C., 83 AD3d at
88-90).[FN4]
The ACS report was a part of the
record of these proceedings at the time that the case was referred to this
Court.
The report submitted by ACS states, in pertinent part, that Amandeep S. is
residing
in the home of Jaspal S., who was 57 years old at the time of these
proceedings. Also residing
in the home are Jaspal's wife, Baljit K., 45 years old, and their sons, Gurpreet
S., 15 years
old, Bhawanpreet S., 12 years old, and their daughter, Kawanjit S., 12 years
old. ACS further
reported that "Amandeep has been living with the family for approximately
three years after his
father moved and no longer wanted to support him."
ACS indicated that Amandeep informed them that "he lived with his father after
they
both came from India, however he is not aware of his father's current
whereabouts." Amandeep
also told the investigator that "he is very happy living with the family . . .
[h]e stated that his
parents are aware that he is with Jaspal's family, but he has no contact with
them." ACS reports
that it was unable to make contact with Amandeep's parents due to an
asserted lack of contact
information, although Amandeep's father apparently resides in Queens
County.
The remaining useful portion of the report states that Amandeep has developed a
close
relationship with Jaspal S. and his family over the past three years, that
Jaspal S. is employed as a
taxi driver and that Jaspal will be willing to provide health insurance for
Amandeep should he be
granted guardianship. ACS lastly reported that Amandeep attends John
Adams High School
where he is in the 12th grade. Amandeep intends to finish high school and
then wishes to continue
his education. The investigator reported that there is no history of domestic
violence or indicated
reports concerning the family of Jaspal S. on file with the state central
register, and that except
for Jaspal S.'s 2001 conviction for driving under the influence for which a
fine was paid, the
members of the family of Jaspal S. have not been involved with the criminal
justice system.[FN5]
A
The Court proceeded to conduct a hearing in order to determine the facts underlying
the
guardianship petition and to ascertain whether the best interests of
Amandeep S. would be
served by the appointment of Jaspal S. as his guardian (Surrogate's Court
Procedure Act §1707
[1]). In proceeding upon the guardianship petition, the Court was mindful
that Amandeep's
attorney had filed a motion for specific "special findings" which would
allow him to seek Special
Immigrant Juvenile status under 8 USC §1101 (a) (27) (J), and that
were the Court to appoint Jaspal S. guardian, that would constitute a sufficient
declaration of dependency upon the Family
Court which would enable Amandeep to file a petition for SIJ status with the
USCIS (see, Matter
of Antowa McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan
W., 73 AD3d 793, 795-
796 [2010]; Matter
of Jisun L. v. Young Sun P., 75 AD3d 510, 512 [2010]; Matter of
Mohamed
B., 83 AD3d 829, 831 [2011]).
Jaspal S. testified in support of his application to be appointed guardian of
Amandeep S.
Jaspal explained that he is not the uncle of Amandeep either by blood or by
marriage, but that the
term "uncle" is a term of endearment and respect used by a younger person
towards an older man
with whom he has a close or quasi-family relationship. Jaspal S. testified that
Amandeep has
lived with him and his family at their home in Richmond Hill for the past
three years, and that
Amandeep refers to him as "uncle."
Jaspal S., who owns a "green cab" met Amandeep at a Sikh temple or "Gurdwara"
in
Richmond Hill which they both belong to and both attend. He first became
aware of Amandeep
through the Gurdwara and through a friendship which developed between
then-17-year-old
Amandeep and then-13-year-old Gurpreet S., who is Jaspal's eldest son.
According to Jaspal,
his son and Amandeep would play soccer and other games in a park near
their home and
apparently both Gurpreet and Jaspal took a liking to Amandeep, given their
common background
and their membership in the Gurdwara in Richmond Hill. Apparently, at
Gurpreet's invitation,
Amandeep visited the family residence and met Gurpreet's family
members.
According to Jaspal S., during the second week of November 2011 he met
Amandeep
at the Gurdwara in Richmond Hill for the first time. Amandeep informed
Jaspal that his father,
Malkit S., had kicked him out of his apartment and he was without any
resources or a place to
live, which was about five blocks away from Jaspal's own house. As
Amandeep needed
a place to live and his father was apparently not providing for him, Jaspal
spoke with leaders at
the Gurdwara, and he and his family took Amandeep into their home in
November 2011.
Amandeep has remained a member of Jaspal's household since then while he
attends John
Adams High School.
As far as Jaspal knows, Amandeep has no phone number for his own father and he
has
never had any contact with Malkit S. since Amandeep came to live with his
family in 2011.
Jaspal S. was not asked whether he was aware of any meetings or other
contact between
Amandeep and Malkit S. since the time that Amandeep came to live in his
household. According
to Jaspal, he and his wife take care of all of Amandeep's needs, and his wife
takes Amandeep to
medical appointments either at a doctor's office or at Jamaica Hospital.
Jaspal testified that he
attended a parent-teacher evening at Amandeep's school in 2013 and he met
with Amandeep's
teacher. As far as he knows, Amandeep is at school every day that he is
scheduled to be there.
According to Jaspal S., he decided to file this guardianship petition for Amandeep
after
his friend and fellow taxi driver, Kalinder S., told him that since Amandeep
was living with him,
he should file for guardianship of Amandeep, although that was apparently
not something which
Jaspal ever considered doing during the first three years that Amandeep
resided with him and his
family.
Jaspal stated that while he knows of Malkit S., he has never met Amandeep's
father.
Although he has been caring for Malkit's son for three years as though a
member of his own
family, Jaspal never sought out Malkit S., although Amandeep had told him
the address where he
used to live with his father. Apparently, as far as Jaspal S. was concerned, he
had taken Amandeep into his home as a member of his own family, and it was his
responsibility to provide
for Amandeep's needs. As he testified, he told his wife that Amandeep "is
my son and I'll take
care of it", apparently referring to the abandonment of Amandeep by his own
father, Malkit S.
Beyond bringing the issue to the attention of leaders at the Gurdwara, there
is no indication that
Jaspal took any further action.[FN6]
Baljit K., the wife of Jaspal S., testified at the hearing upon the guardianship
petition.
Ms. K. resides at xxx-xx 95th Avenue in Richmond Hill with Jaspal S., their
three children and
Amandeep S. According to Ms. K., even though they are four years apart in
age, Amandeep "was
a friend of my son, [and] they used to play together".[FN7]
Ms. K. had met Amandeep at the
Gurdwara "a couple of times" and he visited her home on a few occasions
prior to coming to live
there in November of 2011.
Ms. K. testified that Amandeep told her that Malkit S. is his father and that he has
no
other relatives in New York. Ms. K. is aware that Amandeep says that his
father threw him out
of the home and that is the reason that Amandeep came to live with her
family. Apparently
Amandeep had been sleeping at the Gurdwara in Richmond Hill since his
father ordered him out
of his apartment, and her husband, Jaspal felt that they should take
Amandeep in and provide him
with a home. After arriving in her home, it appears that Amandeep lost
contact with his father
and did not know where he was living, but Amandeep did not speak much
about such things with
Ms. K. She knew that Amandeep crossed the border into the United States
sometime in 2010,
but he never told Ms. K. who had arranged for him to come to New York.
Ms. K. knew that
Amandeep first lived with his father and that he was very upset when his
father threw him out.
Amandeep has not spoken about his mother much nor did he mention when
he last saw her in
India.
As far as Ms. K. was aware, her husband had obtained some type of direction or
permission from leaders of his Gurdwara which authorized him to provide a
home and care
for Amandeep. He has apparently blended into Jaspal's household as her has
now been there over
2 ½ years. According to Ms. K., Amandeep is "a very nice boy [and]
well behaved". He attends
the Gurdwara in Richmond Hill and is a student at John Adams High
School. Ms. K. took
Amandeep for a physical at Jamaica Hospital after he came to live in her
home in 2011, and she
has not taken him to the doctor since. To her knowledge, Amandeep has no
medical insurance
and he also has not received a dental check up since 2011.
Gagandeep (No Last Name), who served the summons and guardianship petition
upon
Amandeep's parents testified at the hearing. Gagandeep is an Indian national
of Punjab ancestry
and an adherent of the Sikh faith. Gagandeep was born in 1995 and he
presently resides in New
York where he attends John Adams High School and is a classmate of
Amandeep S.
Gagandeep resides with his parents at xxx-xx101st Avenue in Richmond Hill and he
has
attended school with Amandeep S. for the past two or three years. According
to Gagandeep,
he was asked by Amandeep to serve the summons and petition for the
guardianship case on his
parents. Amandeep's father was supposedly in Queens while his mother was
in India, and
Amandeep was aware that his friend would be returning to India in order to
attend the funeral of
his grandmother and he could locate Amandeep's mother and effect service
upon her. Gagandeep
arrived in India on April 7, 2014 and he departed India to return to the
United States on April 24,
2014, arriving on April 25, 2014.[FN8]
During his visit to India, Gagandeep traveled across Punjab state to Salempur, the
village
where he was told Amandeep's mother, Balwinder K., resided. Gagandeep
traveled by hired car
and the journey took several hours. Gagandeep located Balwinder K. in a
village named Tanda,
in the same district, Hoshiarpur, that Amandeep said that she resided in.
Gagandeep learned from
neighbors in the first village, Salempur, that Amandeep's mother had moved
to another village.
After locating Balwinder K. at her home, Gagandeep introduced himself and
explained that he
was a friend of Amandeep's from New York and that he had papers to give
to her. According to
Gagandeep, Ms. K. asked him where the papers were from, but no other
questions, and she
signed for them.
Gagandeep subsequently served the papers on Malkit S., the father of Amandeep at
his
residence in Queens County on April 28, 2014. According to Gagandeep, he
met Malkit S. at the
address given to him by Amandeep Singh, which was an apartment located
at xxx-xx 101st
Avenue, Richmond Hill, on April 28th and delivered the summons and
petition to him which
Malkit S. signed for.
Gagandeep testified that he attends the Gurdwara Makhan Shah Lobana Sikh
Centre
or the Sikh Cultural Society Gurdwara, both of which are located in
Richmond Hill. On
occasion he sometimes sees Amandeep S. and Jaspal S. at prayer which on a
Sunday might be
attended by 300 to 400 Sikhs. Gagandeep testified that he knows another
young man also named
Amandeep S. who resides with his family at xxx-xx 132nd Street, Richmond
Hill. That other
Amandeep S. is "my cousin" and court records reflect that Swaran S., the
father of Gagandeep,
has filed a petition seeking guardianship of the other Amandeep S. with the
Family Court.[FN9]
Gagandeep also testified about his meeting with Amandeep's father and the service
of
process upon him. According to Gagandeep, he met Malkit S. at an
apartment located at xxx-xx
101st Avenue, Richmond Hill on April 28, 2014. This address was provided
by Amendeep S.
Gagandeep arrived at the building which had a brick front and iron bars on
the windows.
Gagandeep knocked on the front door, he got inside and then went up a
flight of stairs to the
second floor hallway measuring approximately 4 feet by 10 feet, and he went
into an apartment
apparently was occupied by Malkit S.
Gagandeep introduced himself to Malkit S., whom he had never met previously,
and
told him that he was a friend of his son, Amandeep. Malkit welcomed
Gagandeep into the
apartment and he offered Gagandeep a chair. Gagandeep gave the court
papers which were in
an envelope to Malkit S. and he signed for them. Gagandeep did not state
what the papers were
about and Malkit asked no questions about the papers. According to
Gangandeep, the only person
present at the apartment while he was there was Malkit S. and as far as
Gagandeep could
ascertain, only Malkit lived at the apartment as there was no indication that
Gagandeep ever met
or knew of Malkit S.'s girlfriend.
Amandeep S. testified in support of the petitions for guardianship. Amandeep is 20
years
old and he crossed the border between Mexico and the United States at
Texas apparently in 2011.
Amandeep testified that he had no contact with nor any support from his
mother, Balwinder K.,
in the last 12 years, and he had been living with his paternal grandmother
and his two older
sisters in India prior to coming to the United States after the grandmother
became ill. Amandeep
stated that he did not know exactly who made arrangements for him to come
to the United States
or who might have financed his trip. He knows that "my grandmother and
some relatives"
arranged for him to leave India and he knew that his father, whom he had
last seen many years
ago when Amandeep was six years old, lived somewhere in New York City
and that he was told
that he would be sent to the United States and to seek out his father, Malkit
S.
Amandeep described a lengthy, harrowing and arduous trip of six to seven months
from
India through various countries and across oceans and continents in the
company of strangers he
did not know and whose language he did not speak. Sometimes Amandeep
was alone with these
strangers, who are clearly "human smugglers" who orchestrate the illegal
entry of people into the
United States for significant fees, and on other occasions during his journey,
he was with other
people who were being smuggled across national borders. Amandeep
testified that he has never
been on an airplane, but he also stated that he thought that he crossed an
entire ocean in "one
day" and he did not know the names of that ocean.
The description provided by Amandeep is of a well-organized organization with
multiple
participants having experience in moving undocumented travelers across
borders, using safe
houses to hide the smuggled, all without arousing suspicion or being
detected by authorities (e.g.,
Lei Chen v. Holder, ___ FedAppx___, 2014 WL 1424503 at *2 [6th
Cir 2014] [describing
methods employed by human smugglers known as snakeheads]).[FN10]
Amandeep testified that after six or seven months of travel during which he was
apparently told that he had passed through Guatemala and Mexico, he
crossed the border
between Mexico and the United States on foot in September 2010. Once in
the United States,
Amandeep was accompanied by one or two guides or smugglers who handed
him off to other
smugglers and he moved from place to place and city to city by various
modes of transportation
such as cars, trucks and busses. He also told of traveling on foot and of
sleeping or resting in
what appear to be safe houses used by the smuggling operation. On
occasion, Amandeep was
sent on a leg of his journey alone and he was met by different smugglers to
escort him on the
next part of his journey once he arrived at a destination along the way.
According to Amandeep, he left India with a small amount of Indian rupees in his
pocket
and some personal effects and clothing which fit into his backpack. He also
indicated that he had
no communication with any members of his family during his journey and
they had no way of
knowing how he was or where he was at any given moment. While
Amandeep did not testify to
any deprivation or physical mistreatment by his escorts during his journey,
there was obviously
no way to ensure his safety as he traveled through strange lands in the
company of people he did
not know and with whom he could not communicate as they spoke different
languages. The only
guarantee was that the safe delivery of Amandeep and the thousands of other
young people from
Punjab State in his position who are willing to undertake the risky journey to
the United States,
would enhance the standing of the smugglers which would in turn generate
more business and
income for the smuggling operation.[FN11]
After 25 days in the United States, passing through states he claims not to
remember,
Amandeep arrived by car in New York City and he was dropped off on the
street in the vicinity
of one of the Gurdwaras in Richmond Hill. As Amandeep explained, the
escorts he was last with
let him out of the car they were in where there were "Punjabi-looking"
people on the streets.[FN12]
Amandeep testified that he had absolutely "no idea" where he was and he
approached someone
he believed to be a fellow Sikh, as they wear distinctive dress, and he was
able to communicate
in his native Punjabi with this individual. Amandeep received directions to
the nearby Gurdwara
where he knew he could find food, shelter and hopefully assistance in
locating his father who he
had been told was in New York City by his relatives in India.
Apparently within a few days of Amandeep's arrival at the Gurdwara, word got to
Malkit
S. that his son Amandeep, whom he had not seen for many years, had arrived
from India and that
he was staying at the Gurdwara in Richmond Hill. Five or six days after
Amandeep arrived at the
Gurdwara in Richmond Hill, his father Malkit S. came to the Gurdwara and
he brought
Amandeep home with him to his apartment at 119-13 101st Avenue in
Richmond Hill. According
to Amandeep, his father was living with "his girlfriend" at the apartment,
although his testimony
revealed little about this girlfriend and his interaction with her. Indeed,
Amandeep testified that
he could not remember the name of the girlfriend who was living with his
father in the two
bedroom apartment they all shared.
According to Amandeep, his father wanted him to get a job and earn money,
although
Amandeep had no legal status in the United States and no right to work.
Amandeep testified that
after three months his father told him to leave his apartment and to not
return. Amandeep
testified that he and his father would have regular "arguments" and that his
father would tell him
to "leave" and to "go". Amandeep recalled that at about this time his father
"was having
problems with his girlfriend", and so Amandeep decided to heed his father's
requests and he
left the apartment going off on his own in a city he barely knew, without any
support from his
father, the only relative he had in New York.
Amandeep's father provided him with no support and Amandeep first spent about 6
or 7
months living with the "Singh brothers", two friends he had made through
the Gurdwara. When
he could no longer reside with these friends, Amandeep returned to stay at
Gurdwara Makhan
Shah Lobana Sikh Center where he could obtain shelter and sustenance. A
few days after he
returned to the Gurdwara, he went to live with Jaspal S. and his family, with
whom he was
familiar from playing with Jaspal's older son and from interacting at the
Gurdwara. This
arrangement was apparently sanctioned by of leaders of the Gurdwara. Since
then Amandeep
claims that he has had no contact with his father and he has lived as a
member of the household
of his "uncle" Jaspal S.
Although the Court had requested that Malkit S. be located and produced in court
in
order to provide details about his knowledge of how Amandeep came to the
United States from
India and Amandeep's early days in New York, it was impossible for Jaspal
S. or Amandeep's
attorneys to locate Malkit S., even with the assistance of a licensed process
server. By the time
the Court heard the case, it appeared that Malkit S. had moved from the
apartment at xxx-xx
101st Avenue, as a pile of unclaimed mail addressed to him was observed in
the hallway near that
apartment.[FN13]
Amandeep testified that he is a half-time student at John Adams High School, and
he
spends time in the school library studying when he does not have to attend
class.[FN14]
When he is
not in school, Amandeep spends his time in the park or at the Gurdwara. He
is not employed and
he has not graduated from high school, despite having been a student at John
Adams High
School since November 4, 2010 according to his pupil registration card.
Amandeep and Jaspal S. decided that Jaspal would file the petition to be named
Amandeep's guardian in November of 2011. He testified that the idea to file
the guardianship
petition was Jaspal's and Jaspal previously testified that he had been advised
to file for guardian-
ship by someone at the Gurdwara that both he and Amandeep attended.
As Amandeep recalled, his mother moved away from the grandmother's house in
India
many years ago when he was 12, leaving him with his grandmother, and she
did not have much
communication with him, nor did she support him, after she had moved
away. Amandeep stated
that he remained in contact with his grandmother in India by telephone after
he arrived in New
York. His grandmother passed away sometime in 2011, after he had been
thrown out of the
apartment by his father and prior to when he went to reside with Jaspal.
Amandeep testified that
he received a telephone call from someone in India to tell him of his
grandmother's death while
he was living at the home of the Singh brothers, which was prior to his going
to live with Jaspal.
Amandeep could not say with certainty who called him, he thought it might
have been a neighbor
of his grandmother. Amandeep was also unable to explain how this person
was able to track him down at the friend's home in Queens as this was after he was
allegedly told to leave the
apartment by his father and he had not been in contact with him.
Amandeep testified that he has no relatives who could support him were he to return
to
India at this time. He has not had contact with his mother for several years,
and she previously
left him with his grandmother without making any arrangements for his
support. Amandeep's
father, Malkit S., was also not a resource as he had allegedly excluded him
from his apartment in
Richmond Hill and had not remained in contact with him nor provided him
any guidance and
support since that time. According to Amandeep, he last saw his father 2 to 2
½ years ago when
he left the father's apartment. No testimony concerning Amandeep's older
sisters and their
present family or living circumstances was adduced at the hearing.
Presumably they are still
living in India.
II
The Court first proceeded to adjudicate the petitions for guardianship. Although
the
guardianship petition serves as a basis for addressing the additional, and
undoubtedly more
significant, motion for special findings which would permit Amandeep to
file an application for
Special Immigrant Juvenile status with the USCIS, the guardianship
proceeding is the actual
judicial proceeding through which the Family Court exercises jurisdiction in
the case.[FN15]
In accordance with Surrogate's Court Procedure Act §1707 (1), "[w]hen
considering
guardianship appointments, the infant's best interests are paramount"
(Matter of Denys O.H. v.
Vilma A.G., 108 AD3d 711, 712 [2013]; Matter of Alamgir A., 81
AD3d 937, 938 [2011]; Matter
of Diego F., 84 AD3d 1373 [2011]; Matter of Ashley W., 85 AD3d 807, 809 [2011]; Matter
of
Bianca B., 97 AD3d 742 [2012]; Matter of Deven Meza F., 108 AD3d 701, 702 [2013];
Matter
of Maura A.R.-R., 114 AD3d 687, 688 [2014]; Matter of Marisol N.H., 115
AD3d 185, 190
[2014]).
Here, the unchallenged evidence in this uncontested proceeding conducted in the
absence
of the parents of the subject child, establishes that Amandeep is under 21
years of age,[FN16]
that he
last saw his mother when he was 12 years old and living in his native India,
that he has not seen
his mother since he was 12 years old, that his mother has provided him with
no guidance or
support and she has effectively abandoned him. Additionally, Amandeep's
father at the very least
encouraged him to leave his apartment, knowing that had Amandeep
recently arrived from India,
he entered the United States illegally, no visa having been issued to him, he
is not fluent in
English (he testified through an official Punjabi interpreter at the hearing),
and he has no means
of providing for himself as he is not legally able to work in the United
States. Moreover,
Amandeep testified that he has had no contact with his father, Malkit S.,
since he left his father's
apartment over two years ago. Thus, the evidence in the record establishes
that Amandeep has
been physically, financially and emotionally abandoned by his father.
After leaving the apartment of his father, Amandeep relied on the kindness of
his
acquaintances, the "Singh" brothers, for six or seven months, and when he
could no longer reside
there, he took up residence with his "uncle"Jaspal S., with the apparent
approval of the leaders of
the Gurdwara where they both worship. Jaspal S. has taken Amandeep into
his home and treated
him as a member of his own family, thereby providing Amandeep with the
guidance, stability
and care which his own parents are apparently unable or unwilling to
provide to him.
Accordingly, based upon the evidence in this record, the Court is compelled to
conclude
that Amandeep's best interests are served by the appointment of Jaspal S. as
his guardian in
accordance with Family Court Act §661.
A
With respect to the motion filed by Amandeep S. for "special" or specific findings
in
accordance with 8 USC §1101 (a) (27) (J) which would permit him to
file an application for
with USCIS for adjustment of his status, the Court grants the motion and
enters the requested
findings for the reasons set forth herein.
"In 1990, Congress enacted the SIJ statute to open a path for abused, neglected,
and
abandoned undocumented minors to become lawful permanent residents"
(Leslie H. v. Superior
Court, 224 CalApp4th 340, 343, 168 CalRptr3d 729, 732 [Ct App
2014]; see, Pub L 101-649,
104 US Stat 4978 [Nov. 29, 1990]). "SIJS is a form of immigration relief
that affords
undocumented children a pathway to lawful permanent residency and
citizenship" (Marisol N.H.,
115 AD3d at 188; see also, Sing W.C., 83 AD3d at 86;
Matter of Nirmal S. v. Rajinder K., 101
AD3d 1130, 1131 [2012]; Yeboah v. U.S. Department of Justice,
345 F3d 216, 221 [3rd Cir
2003]; In re Y.M., 207 CalApp4th 892, 915, 144 CalRprt3d 54,
67-68 [Ct App 2012]; In re
J.J.X.C., 318 GaApp 420, 424, 734 SE2d 120, 123 [Ct App 2012];
E.C.D. v. P.D.R.D., 114 So3d
33, 35 [Ala Civ App 2012]; In re Erick M., 284 Neb 340, 341, 820
NW2d 639, 641 [Sup Ct
2012]; Eddie E. v. Superior Court, 223 CalApp4th 622, 626, 167
CalRptr3d 435, 438 [Ct App
2013]).
By providing "a gateway for undocumented children who have been abused,
neglected,
or abandoned to obtain lawful permanent residency in the United States"
(Matter of Marcelina
M.-G. v. Israel
S., 112 AD3d 100, 101-102 [2013]; see also, Alamgir A., 81
AD3d at 939; Matter
of Mohamed B., 83 AD3d 829, 831 [2011]; Hei Ting C., 109
AD3d at 101-102; Note,
Unaccompanied Should Not Mean Unprotected: The Inadequacies of Relief
for Unaccompanied
Immigrant Minors, 25 Geo Immigr L J 883, 889 [2011]), Congress has
expressed an "intent to
assist a limited group of abused children to remain safely in the country with
a means to apply for
[legal permanent resident] status" (Garcia v. Holder, 659 F3d 1261,
1271 [9th Cir 2011]; see
also, Erick M., 284 Neb at 341; Sing W.C., 83 AD3d
at 86; In re Y.M., 207 CalApp4th at 915,
144 CalRptr3d at 72).
The law was amended in 1997 (Pub L 105-119, 111 US Stat 2440, 2460) to
address
perceived abuses of the SIJS process (see, Yeboah, 345 F3d
at 221-222; Marcelina M.-G., 112
AD3d at 107-108; H.S.P. v. J.K., 435 NJSuper 147, 166, 87 A3d
255, 266 [App Div 2014]),
which need not be detailed here.[FN17]
In 2008 the William Wilberforce Trafficking Victims
Protection Reauthorization Act or "TVPRA" (Pub L 110-457, 122 US Stat
5044 [Dec. 23,
2008]), enacted significant changes in the law and it "expanded the
definition of who qualifies
as a special immigrant juvenile' enabling more children to qualify for the
status" (Hei Ting C.,
109 AD3d at 103 [emphasis added]; see also, Marcelina
M.-G., 112 AD3d at 108; Leslie H., 224
CalApp4th at 349, 168 CalRptr3d at 737; Erick M., 284 Neb at 346,
820 NW2d at 645 [TVPRA
expanded the pool of eligible juvenile aliens]).
Most significantly, the TVPRA of 2008 expanded SIJS eligibility "to include
those
immigrant children who had been placed in the custody of an individual or
entity appointed by
a state or juvenile court [and] Congress also removed the requirement that
the immigrant child
had to be deemed eligible for long-term foster care due to abuse, neglect, or
abandonment, and
replaced it with a requirement that the juvenile court find that reunification
with 1 or both of the
[child's] parents is not viable due to abuse, neglect, abandonment, or similar
basis found under
State law" (Marcelina M.-G., 112 AD3d at 108; see also,
Hei Ting C., 109 AD3d at 104; Karen
C., 111 AD3d at 623; Gabriel H.M., 116 AD3d at 856-857;
Matter of Mario S., 38 Misc
3d 444,
449 [2012]; Eddie E., 223 CalApp4th at 627-628, 167 CalRptr3d at
439; Leslie H., 224
CalApp4th at 349, 168 CalRptr3d at 736).
B
In creating SIJS as "an alternative to deportation" (Yeboah, 345 F3d at 221)
Congress
clearly acted with a "protective purpose" (Sing W.C., 83 AD3d at 90)
in order to assist "the often
desperate immigrant children who are seeking refuge" (Sobie, Practice
Commentaries,
McKinney's Cons Laws of NY, Book 29A, Fam Ct Act §661 at 98
[West 2009]), from
"maltreatment in their [own] families" (Hei Ting C., 109 AD3d at
104; see also, In re J.J.X.C.,
318 GaApp at 424, 734 SE2d at 123).
SIJS was enacted to protect those children who had been mistreated or abandoned by
their
parent or parents by allowing "a limited group of abused children to remain
safely in the [United
States] with a means to apply for LPR status" (Garcia, 659 F3d at
1271). SIJS is a special
provision in the immigration statute that permits a discretionary adjustment
of status for the
"narrow class of juvenile aliens who must meet heightened eligibility
requirements to apply to be
classified as a Special Immigrant Juvenile" (Garcia, 659 F3d at
1270). Nothing suggests that
SIJS was intended to provide an alternate means of immigration for children
under the age of 21,
or that the SIJS has a purpose other than "the protection of those abused,
neglected, or abandoned
juveniles whose compelled repatriation would place them in danger from a
parent who abused,
neglected, or abandoned them" (H.S..P., 435 NJSuper at 170, 87 A3d
at 268).[FN18]
In order to ensure that the SIJS provisions are being utilized for their intended
purpose-
providing undocumented alien children with relief from parental abuse,
neglect or abandonment-
and to prevent SIJS from being used as a device to obtain lawful permanent
residence in the
United States (see, Erick M., 284 Neb at 347, 820 NW2d at
645; In re J.J.X.C., 318 GaApp at
424, 734 SE2d at 123; Yeboah, 345 F3d at 224-225; H.S.P.,
435 NJSuper at 168-169, 87 A3d at
267-268), the statute requires that prior to seeking an adjustment of status
from USCIS, juveniles
must obtain specific findings from a state juvenile court which must
accompany the adjustment
application.
These "special findings" must determine that the child is under 21 years of age, that
he or
she is unmarried, and dependent on a juvenile court located in the United
States or legally
committed to, or placed under the custody of, and agency or department of a
State, or an
individual or entity appointed by a State of juvenile court located in the
United States, and
further, that reunification with "1 or both" of the child's parents is not viable
due to parental
abuse, neglect, abandonment, or a similar basis under state law. Lastly, the
state court must find
that it would not be in the child's best interests to be returned to his or her
home country (8 USC
§1101 [a] [27] [J]; Hei Ting C., 109 AD3d at 103-104; Matter of Karen C., 111 AD3d
622, 623
[2013]; Matter of
Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620 [2013]; Matter of
Kamaljit
S. v. Jasvinder K., 114 AD3d 949, 949-950 [2014]; Matter of Gabriel H.M., 116
AD3d 855, 856-
857 [2014]).
C
The procedural protocol for SIJS "employs a unique hybrid procedure that directs
the
collaboration of state and federal systems, recognizing that juvenile courts
have particularized
training and expertise in the area of child welfare and abuse,' which places
them in the best
position to make determinations on the best interests of the child and
potential for family
reunification" (Hei Ting C., 109 AD3d at 104 [citation omitted];
see also, Gao v. Jenifer, 185
F3d 548, 555 [6th Cir 1999]; B.F. v. Superior Court, 207 CalApp4th
621, 627, 143 CalRptr3d
730, 734 [Ct App 2012]; Eddie E., 223 CalApp4th at 626, 167
CalRptr3d at 438; Erick M., 284
Neb at 341, 820 NW2d at 641-642; In re J.L.E.O., 2011 WL 664642
at *1 [Tex Ct App 2011];
Marcelina M.-G., 112 AD3d at 107; Marisol N.H., 115 AD3d
at 188).
Applications for an adjustment of status as a special immigrant juvenile are
ultimately
decided by the USCIS, but the established procedural protocol makes clear
that the federal
agency is relying upon the special findings and best interests determinations
of state courts (Gao,
185 F3d at 555; In re Juvenile 2002-098, 148 NH 743, 748, 813 A2d
1197, 1201 [Sup Ct 2002]).
While the reliance upon state juvenile courts is based upon arguably valid
assumptions
concerning the special expertise of juvenile courts in matters touching upon
the welfare of
children (Hei Ting C., 109 AD3d at 104; J.J.X.C., 318
GaApp at 425, 734 SE2d at 124; In re
Y.M., 207 CalApp4th at 908, 144 CalRptr3d at 66; Mario S.,
38 Misc 3d at 451),[FN19]
these courts
have limited resources at their disposal with which to obtain information
concerning a child's
family history and his or her present circumstances. Juvenile courts must
often rely upon a report
prepared by a child welfare agency having no particular interest in the
outcome of the case,
especially where the juvenile is presently in the care of an appropriate parent
or guardian or is
over 18 years of age and beyond the scope of state child protection statutes
under which the
juvenile's parents may be civilly charged with abuse or neglect of the child
(Fam. Ct. Act §1012
[e], [f]; Sing W.C., 83 AD3d at 88-93).
Ultimately, the ability of a juvenile court to make sound factual determinations
depends
upon the intensiveness of the hearing conducted, but this case in which the
hearing occurred
over two days, and reported SIJS cases suggest, court proceedings involving
SIJS children are
often cursory and minimally adversarial. Where the proceedings are
unopposed, as was the case
here, and where persons having intimate knowledge about the child and his
or her family history
and circumstances cannot be located, are out of the country, or otherwise
unavailable to testify, a
juvenile court can do little more than mechanically rubber stamp findings of
fact and conclusions
of law based upon the petitioner's self-serving evidence.
While an application for special findings may be denied for procedural irregularity or
for
clear factual insufficiency (e.g., Hei Ting C., 109 AD3d at
108; Nirmal S., 101 AD3d at 1131),
a judge is neither an advocate nor an inquisitor and judges must always
remain impartial
(Republican Party of Minnesota v. White, 536 US 765, 775-776
[2002]; Matter of Watson, 100
NY2d 290, 302 [2002]). Notably, even where a court believes that there is a
basis to deny an
application for the issuance of special findings, judges may be reluctant to
do given that appellate
courts are empowered to substitute judgment and issue the findings on
behalf of the juvenile
(see, Antowa McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan
W., 73 AD3d 793,
795-796 [2010]; Alamgir A., 81 AD3d at 937-938; Matter of Emma M., 74 AD3d
968, 970
[2010]; Jisun L., 75 AD3d at 511-512 [2010]; Matter of Mohamed B., 83
AD3d 829, 831-832
[2011]; Maura A.R.-R., 114 AD3d at 688-689; Kamaljit S.,
114 AD3d at 949-950; Gabriel H.M.,
116 AD3d at 857; Matter of Saul A.F.H. v. Ivan L.M., ____ AD3d
____, 2014 NY Slip Op
04486; Matter of Cristal M.R.M., ____ AD3d ___, 2014 NY Slip Op
04496; Leslie H., 224
CalApp4th at 351, 168 CalRptr3d at 737).
D
Current news reports indicate that parents have been encouraged to dispatch
their young
on perilous journeys to the United States in the company of paid smugglers
who are part of
organized criminal enterprises. The children arrive in the United States with
the hope that they
will be not be deported and that they will be granted sanctuary in the form of
legal permission to
remain permanently.
Although SIJS was enacted to protect children who have been abused, neglected,
or
abandoned, it may perversely expose those children to maltreatment. The
smuggling of children
across international borders is inimical to their safety and well-being.
Smuggled "[c]hildren
embarking on the journey to the United States face considerable risks, not
only from exposure to
the elements and the dangers of riding atop trains, but also from gangs,
smugglers, and police,
who frequently rob, extort, brutally attack, rape, and even sometimes kill
them, and who may
also attempt to force them into trafficking or gangs" (Note,
Unaccompanied Should Not Mean
Unprotected: The Inadequacies of Relief for Unaccompanied
Minors, 25 Geo Immigr L J at
885).
Thus, an immigration status created to protect undocumented children who have
been
maltreated or abused by their parents or guardians, may be unintentionally
exposing some of
these children to further maltreatment because of the dangers and physical
deprivations
associated with human smuggling. Further, the permanent immigration
benefits which flow to a
child who obtains SIJ status may have the cobra effect of increasing the
number of children who
are illegally smuggled into the United States by highly structured criminal
organizations.
As the evidence in this case establishes, Amandeep was sent off on a treacherous six
to
seven month journey around the world during which he crossed oceans and
multiple continents
in the company of strangers who were paid to smuggle him safely from India
to his father in New
York City. During his lengthy journey from India to New York, Amandeep
traveled with people
he did not know and who did not speak his native language. Amandeep
testified that he had
almost no money with him and one can only conclude that his trip, including
food and lodging,
such as it was, had been paid for in advance by his family.
Had Amandeep fallen ill during the journey or had his smugglers run into
immigration
of law enforcement authorities during the journey, there is no telling what
his fate might have
been. Luckily for Amandeep his smugglers successfully transported him
from his village in India
to a new life in New York. Amandeep's story is not unique. The goal of
lawful permanent
residence combined with the profit to be gained from human smuggling
more than likely ensures
that the SIJS juveniles who will appear on court dockets in the near future
have already begun
their perilous journeys to the United States.
Based upon the evidence adduced at the hearing, Amandeep's motion for special
findings
is granted. Short form order incorporating findings issued.
This constitutes the decision and opinion of the Court.
E N T E R:
s//
________________________________
JOHN M. HUNT
Judge of the Family Court
Dated: Jamaica, New York
June 19, 2014
Footnotes
Footnote 1:Surrogate's Court
Procedure Act §1707 (2) was amended in 2006 to permit the appointment of a
guardian for a person between the ages of 18 and 21 provided that the child consents to
such appointment (Matter of
Vanessa D., 51 AD3d 790, 791 [2008]), and Family Court Act §661 (a)
was similarly amended in 2008 "in response to the federal law and regulations creating
special immigrant juvenile status and making it available to immigrants under the age of
21" (Sing W.C., at 87).
Footnote 2:The guardianship
provisions of the Family Court Act are surprisingly brief. As Family Court is granted
concurrent jurisdiction with the Surrogates Courts to hear proceedings "concerning . . .
guardianship of the person as set forth in part four of article six of this act and article
seventeen of the surrogate's court procedure act" (Fam. Ct. Act §115 [c]; see
also, NY Const, art VI, §13 [b] [7]; Fam. Ct. Act §§115 [c]; 661), the
provisions of the Surrogate's Court Procedure Act apply except to the extent that they
may conflict with a specific provision of the Family Court Act (Matter of Maura A.R.-R., 114
AD3d 687, 688 [2014]).
Footnote 3:Because both petitions
seek identical relief and involve the identical parties, the petitions
for all purposes into a single docket (Civil Practice
Law and Rules §602 [a]).
Footnote 4:In a guardianship
proceeding the Family Court is authorized to request that the Depart- ment of Probation
or an authorized agency "interview such persons and obtain such data as will aid the
court in exercising its power"to appoint a guardian for a minor (Fam. Ct. Act §662;
22 NYCRR§205.56). The term "authorized agency" has been construed to include a
local Department of Social Services (Sing W.C., 83 AD3d at 93-94; see
also, Social Services Law §371 [10] [b]).
Footnote 5:These facts were
corroborated by reports provided directly by the Division of Criminal
Justice Services ("DCJS") and the Statewide Central Register of Child
Abuse and Maltreatment (see, Surrogate's Court Procedure Act §1706 [2]).
The DCJS report indicates that Jaspal S. was convicted of a misdemeanor under the
Vehicle and Traffic Law (VTL §1192 [2]), was granted a Conditional Discharge
and sentenced to a fine of $600 or five days' incarceration. His license was also revoked
for a period of time.
Footnote 6:A Gurdwara or "Sikh
temple" is a not-for-profit religious institution (see, Matter of Singh v. Baba Makhan
Shah Lobana Sikh Center, Inc., 115 AD3d 962 [2014]). A Gurdwara is led by
an elected or a designated Management Committee and a Board of Trustees, from which
a president is designated (see, Matter of Baba Makhan Shah Lobana Sikh Center, Inc. v.
Singh, 115 AD3d 948, 949 [2014]; Shri Guru Ravidas Sabha of New York,
Inc. v. Paul, 40 Misc 3d 1237[A], 2013 NY Slip Op 51326[U]).
Footnote 7:It seems somewhat
unusual, but not impossible, that a 17 year old young man would spend time associating
with an unrelated chid of 13. Amandeep appears to be his stated age and he appears to
suffer from no developmental disabilities, but his relationship with Jaspal S.'s eldest son
was not thoroughly explained, even when questions were posed by the Court.
Footnote 8:The endorsements on the
copy of Gagandeep's Indian passport confirm his dates of
travel.
Footnote 9:A review of the Family
Court's records reflects that Swaran S. has filed a petition seeking to be appointed as the
guardian of his great nephew named Amandeep S. The petition for the case docketed as
G-5874/14, which was filed on April 1, 2014, states that Swaran S. resides at xxx-xx
132nd Street, Richmond Hill, that Amandeep S. was born in 1994, that the child's parents
are Jasbir S. and Balwinder S., who allegedly reside in Jamrary, Haryana, India. The
petition states that Gagandeep resides in the home. The Court's cursory review
unexpectedly uncovered that between September 19, 2012 and April 1, 2014, a total of
ten (10) guardianship petitions have been filed with the Family Court, Queens County,
seeking guardianship of a child named "Amandeep S.". Most of the subjects of these
guardianship petitions are 19 or 20 year old males who appear to be adherents of the Sikh
faith and natives of Punjab State, India.
Footnote 10:Human smuggling is
distinguishable from trafficking in illegal aliens. "Generally, human smuggling involves
the illegal movements of migrants across international borders. Human trafficking is
normally defined as smuggling plus coercion or exploitation" (Report,
Transatlantic Workshop on Human Smuggling, 15 Geo
Immigration Law J 167 [2000]; see also,
United States v. Moran-Vazquez, 547 FedAppx 793, 795-796
[7th Cir 2013]). "All human smuggling involves (1) the exchange of money, (2) a
voluntary journey, and (3) a facilitator that arranges an illegal passage across an
international border" (Note, Removing the Venom from the Snakehead: Japan's
Newest Attempt to Control Chinese Human Smuggling, 31 Vand J of Transnat'l L
1041, 1042 [1998]; see also, Developments in the Law— Jobs and
Borders, The
Trafficking Victims Protection Act, 118 Harv L Rev 2180,
2184-2185 [2005] [smuggling involves autonomous decision to buy illegal entry into
foreign country]).
Footnote 11:One need not engage
in extensive research to learn that a staggering number of children from all parts of the
world enter the United States illegally each year. Reuters reports that "[t]he
Obama administration estimates that about 60,000 unaccompanied
minors'- children under 18-
will enter the United States illegally this year [and] [i]t projects that
number to grow to nearly
130,000 next year" (Richard Cowan, Obama Creates Task Force on
Children Who Enter U.S. Illegally,
www.reuters.com/article/2014/06/02/us-usa-immigration-children-idUSKBN0ED213,
June 2, 2014 [last accessed June 5, 2014]). According to The New
York Times "a record 47,017
unaccompanied children were apprehended at the southwest United
States border" between October 1, 2013 and June 2014 (Frances Robles, Wave of
Minors on their Own Rush to Cross
Southwest Border, New York Times, June 4, 2014 at A1, col.
1).
Footnote 12:Queens County has
long had a large Sikh population situated in and around the Richmond Hill and Ozone
Park neighborhoods (Neha Singh Gohil, Politics, Spoken in Punjabi, New York
Times, October 15, 2006,www.nytimes.com/2006/10/15/nyregion/thecity/15sikh.html
[last accessed June 6, 2014]).
Footnote 13:A photograph of the
pile of mail reportedly taken outside of Malkit's apartment shows that letters from
Citibank, Primerica Bank, American Express, North Shore LIJ Medical Center, and the
Internal Revenue Service were unclaimed outside of the apartment.
Footnote 14:Although Amandeep
claims that his father has abandoned him, it is noted that Malkit S. is listed as his parent
on his pupil registration on file at John Adams High School. The school lists Amandeep's
address as xxx-xx 124th Street, South Ozone Park, New York, but no
connection between Amandeep and that address has been provided to
the Court during these proceedings.
Footnote 15:"Family Court is a
court of limited jurisdiction that cannot exercise powers beyond those granted to it by
statute" (Matter of Johna M.S.
v. Russell E.S., 10 NY3d 364, 366 [2008];
see also, Matter of H.M. v. E.T., 14 NY3d 521, 526 [2010]). There
is no independent legal proceeding to obtain special findings for purposes of SIJS
(see, NY Const, art VI, §13; Fam Ct Act §115; Matter of Tung W.C. v. Sau
Y.C., 34 Misc 3d 869, 783 [2011], aff'd sub nom. Matter of Hei Ting C.,
109 AD3d 100, 102 [2013]). Instead, the Court's jurisdiction to make the requested
findings must be anchored to another qualifying proceeding within the jurisdiction of the
Family Court (Matter of Antowa
McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793,
795-796 [2010]; Matter of
Emma M., 74 AD3d 968, 970 [2010]; Hei Ting C., 100 AD3d at
106-107; In re C.G.H., 75 A3d 166, 174 [DC App 2013]; B.F. v. Superior
Court, 207
CalApp4th 621, 629, 143 CalRptr3d 730, 735-736 [Ct App 2012]).
Footnote 16:"Previously, Family
Court Act §661 was deemed applicable only to individuals under 18 years of age.
Pursuant to a 2008 amendment, however, Family Court Act §661 (a) now
explicitly authorizes the appointment of a guardian for a person who is
less than twenty-one
years old who consents to the appointment of a guardian or
continuation of a guardian after the
age of eighteen'" (Trudy-Ann W., 73 AD3d at 794 [internal
citation omitted]; see also, Sing W.C., 83 AD3d at 87; cf., Matter of Vanessa D., 51
AD3d 790 [2008] [amendment of SCPA not applicable to guardianship proceedings
in Family Court]). It has been observed that the 2008 amendment to the statute was
intended, in part, to conform to the SIJS provisions of federal law (Sing W.C., 83
AD3d at 90-91; Sobie, Practice Commentaries, McKinney's Laws of NY, Book 29A,
2014 Cum Ann Pocket Part, Fam Ct Act §661, at 99-100 [West 2014]).
Footnote 17:One writer attributes
the 1997 amendments to the SIJ statute to former Senator Domenici of New Mexico
"who believed he had identified a few cases of abuse of the SIJ statute
in his state" (Note, In the Best Interest of the INS: An Analysis of
the 1997 Amendment to the Special Immigrant Juvenile Law, 27 J Legislation 441,
448 [2001] [hereinafter "Note, 1997 SIJS Amendment"]; see also,
Yeboah, 345 F3d at 221 [referencing Senator Domenici statement]).
Footnote 18:"Even some
immigration advocates concede that occasional instances of abuse of the SIJ provision
occurred. These situations often took the form of a family setting up what appeared to be
abusive or neglectful situations for the purpose of enabling their child to obtain SIJ status
and a green card" (Note, 1997 SIJ Amendment, 27 J Legislation at 448).
Footnote 19:As one writer has
commented, "the INS has no experience in determining the best interests of children and
. . . federal authority in family law matters is quite limited" (Note, 1997
SIJS Amendment, 27 J Legislation at 442).