The California Court of Appeals recently granted the immigration petition of a 12-year-old undocumented immigrant from Honduras, who entered the United States as a child and is now seeking to “special immigrant juvenile” (SIJ) status.
The petitioner, one Alex R., entered the country as a young child, settling in Los Angeles with his mother. It should be noted that Alex R. has never shared a home with Alex B., the man seen as his presumptive father.
Alex R. looked to receive “special immigrant juvenile” (SIJ) status, a special classification created by Congress as a way to provide special immigration protection to unaccompanied and undocumented immigrant children who crossed into the United States and were subjected to neglect, abandonment, parental abuse, and other forms of improper treatment on a child.
To apply for SIJ status, an undocumented child must supply a state court order that contains the following 3 factual findings:
- First, the child is under the custody of an agency, guardian, or any other adult specifically appointed by a state court
- Second, the child is unable to return to the custody of one or both parents due to the danger of abuse, abandonment, neglect, or any other basis found by the court under the laws of the state
- Third, the court finds it is NOT in the best interest of the child to “return to his or her home country or his or her parents’‟ home country
In the State of California, any superior court placed in charge of a case involving child welfare or custody receives jurisdiction to make the necessary findings allowing a child to seek SIJ status. And so, Alex R. began the process of acquiring the documents and evidence to qualify for an SIJ application, among these, filing a parentage action in a California family court. As Family Code law requires, Alex R.’s attorney requested the court to appoint a guardian ad litem as a means of protecting his interest in the litigation process.
The court, however, refused to appoint a guardian ad litem. They would only do so on the condition that Alex R. gave his presumptive father, Alex B. notice of his application to seek a court-appointed guardian ad litem.
This forced Alex R. to appeal the family court’s decision. The California Court of Appeals ruled that the family court made the mistake of requiring Alex R. to seek parental notice before appointing a guardian ad litem, because neither statutory requirement nor procedure actually exists that requires this action from applicants of a guardian ad litem.
The court pointed out that decisional law does not mandate parental notice before a family court can appoint a guardian ad litem, neither does due process require applicants to give notice to parents before being appointed a new guardian.
As such, the court of appeals concluded the family court had erred in their decision, granting Alex R. his petition.
Cases involving child custody are complex enough, but add in the issue of immigration protection, and you may have a very difficult case in your hands. These scenarios require the help of a skilled attorney. Talk to the legal team of the Lyttle Law Firm to discuss your rights and options to resolve this case. Contact us at (512) 215.5225.