Clinical Law Faculty Advocate for Immigrant Children Before NJ Supreme Court

 

TRENTON – The New Jersey Supreme Court issued a unanimous decision today, Aug. 26, 2015,  that protects vulnerable immigrant children who have been abused and/or neglected and who appear before New Jersey’s family courts seeking safety.  The decision, which covers two cases, H.S.P. v. J.K. and M.S. v. J.K, addressed questions about the role of family court judges, the application of federal immigration law to New Jersey family court proceedings, and the necessity to use state law, as opposed to the law of a foreign country, when deciding whether a child has been abused or neglected. 

Under federal law, the U.S. Department of Homeland Security (DHS) may grant Special Immigrant Juvenile Status (SIJS) to qualifying children whose reunification with “one or both” parents is not viable because of abuse, neglect, abandonment or a similar basis under state law. The purpose of the statute is to protect children from deportation back to an unfit parent or parents.  In determining whether a child qualifies, DHS relies on state courts to make factual findings about abuse, neglect, and abandonment. In H.S.P. v. J.K., the Appellate Division incorrectly read the federal statute to require such findings against both parents, a misinterpretation that created serious risks for children who had been reunited with a fit parent in the United States but who faced deportation to an unfit parent or to no caregiver at all in their home country.

In the decisions issued today, the Supreme Court declined to interpret the federal statute, but made clear that trial court judges are to make separate findings as to whether it would be safe to return the child to each parent, and whether it would be in the child’s best interest to return to his or her country of origin.  The Court specifically instructed “courts of the Family Part to make separate findings as to abuse, neglect, and abandonment with regard to both parents. . .”  (page 23 of Decision).  Federal immigration authorities have issued policy which explicitly states that it is sufficient if reunification is not viable with only one parent; and that in fact the child can be living with a fit parent in this country.  The decision also clarified the role of family court judges in these proceedings and instructed state family court judges not to rely on foreign law, as opposed to New Jersey law, when determining if a child has been abused or neglected by a parent.  In fact, the Court concluded “that the Family Part is required to apply New Jersey law, and not that of a foreign nation.” (page 22 of decision). 

Rutgers Law School Professors Randi Mandelbaum, director of the Rutgers Child Advocacy Clinic in Newark, Joanne Gottesman, director of the Rutgers Immigrant Justice Clinic in Camden, and Meredith Schalick, director of the Rutgers Child and Family Advocacy Clinic in Camden appeared on behalf of an amicus curiae group of law professors (from all of New Jersey’s Law Schools) who specialize in family law and immigration law.  Mandelbaum, who argued both cases before the Supreme Court, also represented the Plaintiff in K.G. v. M.S.

The Rutgers’ professors’ work on these cases dovetails with the work they do on a daily basis in the clinics which they direct, where they represent immigrant children who are in danger of being deported.  In fact, Sarah Regina, current Director of Academic Support in Newark, worked extensively on these two cases as clinical law fellow in the Child Advocacy Clinic. “The two cases decided today will have widespread implications for immigrant children residing in New Jersey who are in danger of being deported,” Mandelbaum explains.  She continues:  “It clarifies the role of the state court and state court judges and provides specific instructs as to how state court judges should be making determinations of whether a child is abused or neglected.” 

Gottesman concurred, remarking that that “we were quite concerned when the Appellate Division decided the H.S.P. case because it was inconsistent with federal law and precluded many immigrant children from receiving the relief to which they were entitled.” 

“The law is now clear that state court judges must make complete factual findings as to whether a child has been abused, neglected, or abandoned, and whether it would be safe to return the child to his or her country of origin.” 

Schalick notes that “as law professors teaching students how to handle these difficult cases, we are pleased the Court clarified how the law should be applied in our Family Courts across New Jersey.” She adds, “the decision also is consistent with how other states like New York, California, and Maryland have interpreted the federal statute.”