John Wheat Gibson 2016-04-25 04:22:18
Immigrant juveniles in Texas face special problems. Unaccompanied children who have entered the United States and who face harm in their home countries from which their parents cannot or will not protect them may apply under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 for special immigrant juvenile status and, upon receiving it, can apply for green cards.1 A juvenile or family court must have continuing jurisdiction of the child, so the first step is to obtain a judgment with specific findings, appointing a “managing conservator” of the child until he or she ceases to be a “child.” Complications arise in Texas when applicants are older than 17 because, for most purposes, Texas law defines a “child” as someone younger than 18 years old. The federal act, however, applies to children under 21. Some Texas courts have denied court protection to children older than 17 but under 21, reasoning that the courts lack jurisdiction of a child older than 17.2 But all sorts of exceptions can follow if the child is in school. The Texas Family Code says that “‘[c]hild’ or ‘minor’ means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes,” and “‘[m]anaging conservatorship’ means the relationship between a child and a managing conservator appointed by court order.”3 So some judges have disclaimed jurisdiction of children who are eligible under federal law. The Family Code also says, “In the context of child support, ‘child’ includes a person over 18 years of age for whom a person may be obligated to pay child support.” There is nothing in between—the subject is either a child or an adult, for purposes of Texas family law and “‘[a]dult’ means a person who is not a child.” To be entitled to child support after turning 18, the child must be “fully enrolled in a secondary school in a program leading toward a high school diploma and compl[y] with attendance requirements. ...”4 The court therefore has jurisdiction to appoint a managing conservator for, at a minimum, the purpose of collecting child support from one or both of the child’s biological parents. Nothing in the Family Code limits the appointment of a managing conservator for a “child” for any purpose that is in the best interest of the child. And the court has the authority to confer on the managing conservator fewer rights than are listed in the standard possession order. The managing conservator can be anyone who is “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.” The court can order the parents of the child to pay child support, even if the managing conservator has no prospect of collecting it, because the Family Code does not qualify their duty to support the child. The immigration status of the managing conservator is irrelevant; the appointment of the managing conservator is sufficient to bring the child under the continuing protection of the family court. Finally, for the order of a family court to meet the federal requirements to serve as the basis of a SIJ petition, the court that appoints a “managing conservator” must explicitly find that it is not in the child’s best interest to return to the home country, and that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”5 Felicitously, the Texas Family Code decrees that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”6 The child would likely not be in the United States in the first place if it were in his or her best interest to return home, and he or she would be with parents if they could protect and provide for the child. But as is usual in matters of immigration law, copious evidence is necessary. Best interest of the child. Since deporting children would end their education, this would not be in their best interest. Texas courts consistently affirm that education is in the best interest of the child. For example, in naming grandparents managing conservators under the Texas Family Code, the 10th Court of Appeals in Waco took into account that the mother was late in taking the child to school and neither parent helped him with his homework.7 The child’s missing school was one of the reasons the 4th Court of Appeals in San Antonio approved modification of conservatorship. 8 Failure to home school as promised and to encourage the child to achieve his academic potential was among the reasons the 6th Court of Appeals in Texarkana gave for finding rebutted the presumption that a parent should be appointed managing conservator.9 On account of. Federal adjudicating officers and the Administrative Appeals Office have required that the child again prove to the federal officer assigned to review the petition the very facts that the state court has found. Giving no faith or credit to the finding by the state judge that repatriation was not in the child’s best interest and reunification with parents unfeasible because of abuse, neglect, or abandonment, officers have denied SIJ petitions on the ground that they were filed to obtain legal resident status, rather than to escape persecution by an unfit parent. No law requires children to prove that they seek status to escape parental persecution or allows adjudicating officers to second-guess the state court; however, because granting or denying status is within the discretion of the AAO, the ultra vires requirement has escaped judicial review. The Department of Homeland Security must “consent” to the grant of SIJ status. The AAO dismissed the appeal of a 17-year-old Egyptian student whose parents could not protect him from the violence of the Egyptian revolution and abandoned him to U.S. relatives, concluding that “the petitioner sought SIJ classification primarily for immigration purposes.”10 On the other hand, in a decision consisting of four pages of boilerplate identical to the Egyptian child decision, the AAO sustained a boy’s appeal, finding that the mother of a 19-year-old Mexican boy had abandoned him by sending him to the United States because she could not support him.11 Counsel would be well advised to incorporate in the family court order detailed descriptions of abuse, neglect, or abandonment that make reunification with a parent unviable and to vilify the unviable parent or parents as much as possible. One or both parents. Because the law makes the child eligible for SIJ status “whose reunification with one or both of the immigrant’s parents is not viable,” the child whose reunification with one parent is viable but not with the other on account of abuse, neglect, or abandonment may apply for SIJ status, and the parent with whom reunification remains viable may be named the managing conservator. The AAO granted the SIJ application of a 16-year-old Honduran girl whose mother was awarded custody by a New Jersey family court but whose father, the family court found, had abused and abandoned her. The mother had fled the father’s abuse in Honduras, and he had followed her to the United States. The AAO granted the petition because “the petitioner has shown by a preponderance of the evidence that her request for SIJ classification is bona fide because she sought the juvenile court order primarily to obtain relief from her father’s abuse and abandonment.”12 Again, the AAO was not content to accept the findings of the state court, but, instead, conducted its own fact-intensive review of the record. Conclusion. Demonstrating to the Texas family court that the child for whom counsel seeks a managing conservatorship is the subject of a child support order should overcome the reluctance of the state court to execute the order because the applicant is older than 17. If the applicant meets the federal definition of “child”—one who is younger than 21—and the family court order explicitly says that it is not in the best interest of the child to be repatriated and that reunification with one or both parents is not viable on account of abuse, neglect, abandonment, or a similar reason in state law, then the adjudicating officer or the AAO should grant the petition for SIJ status. Counsel should take care, however, to incorporate in the family court order a detailed, factual explanation of the abuse, neglect, abandonment, or similar basis in state law on account of which reunification with one or both parents is not viable. NOTES 8 U.S.C. 1232. In the Interest of J.L.E.O., a child, LEXIS 1342 (Tex. App.—Houston 2011, no writ). See, generally, Texas Family Code § 101. § 154.002, Crocker v. Att’y Gen. of Texas, 3 SW3d 650, 652 (Tex. App.—Austin, no writ). 8 U.S.C. § 1101(a)(27)(J). Texas Family Code § 153.002 (emphasis added). In the Matter of the Marriage of Preston, LEXIS 9356 (Tex. App.—Waco 2008, no writ). In the Interest of H.R.H. and K.L.H., Minor Children, LEXIS 2560 (Tex. App.—San Antonio 2009, no writ). In the Interest of B.G.M., a child, LEXIS 6040 (Tex. App.—Texarkana 2011, pet. denied, LEXIS 922 2011). In Re: Self Petitioner, 2013 Immig. Rptr. LEXIS 2692 (Administrative Appeals Unit 2013). In Re: Self Petitioner, 2013 Immig. Rptr. LEXIS 7820 (Administrative Appeals Unit 2013). In Re: Self Petitioner, 2013 Immig. Rptr. LEXIS 7823 (Administrative Appeals Unit 2013). JOHN WHEAT GIBSON, a graduate of Baylor Law School, has practiced immigration litigation in Dallas for 29 years. He operates as John Wheat Gibson, P.C. His practice is limited to immigration litigation.
Published by State Bar of Texas. View All Articles.
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