Published on December 17, 2008 | by LawNews
Prof. Theo Liebmann in New York Law Journal
Professor Theo Liebmann was quoted in the following New York Law Journal article.
By Vesselin Mitev
New York Law Journal
December 16, 2008
Concluding that a 20-year-old immigrant is an adult who could not be described as “abandon- ed or neglected,” a state judge has refused to issue the special findings that would clear the way for him to remain in this country.
Although the judge issued an order of guardianship for the man, identified only as D.F., Family Court Judge John Kelly of Suffolk County (See Profile) declined in Guardianship of D.F., Docket G-19673-08, to determine that the man was eligible for long-term foster case.
The Family Court decision appears on page 27 of the print edition of today’s Law Journal.
“[T]his Court finds no precedent in statute or case law for the issuance [of the order] . . . for the specific purpose of utilizing said findings in pending or future immigration proceedings,” Judge Kelly wrote.
In February 2006, Mr. F.’s current guardian, identified in the decision only as “petitioner,” moved to be appointed as temporary guardian. Judge Kelly granted the motion and found that Mr. F., who was 17 at the time, was eligible for long-term foster care due to being abandoned and neglected by his parents.
In March of this year, Judge Kelly found that the temporary order of guardianship had expired when Mr. F. had turned 18, meaning he was “no longer subject to the jurisdiction of the Family Court Act.”
Last month, the guardian moved to be reappointed and sought a “special findings order” through his attorney, James M. Stillwaggon of White & Case. According to the decision, Mr. Stillwaggon argued that the order was “necessary to enable D.F. to complete his application for Special Immigrant Status.”
Under 8 U.S.C. §1101(a)(27)(j), a special immigrant juvenile has been declared dependent on a juvenile court, or been committed to or deemed eligible for long-term foster care “due to abuse, neglect or abandonment.”
The special findings order, which can only be obtained in Family Court, is an “essential and necessary pre-cursor” to being granted special immigrant juvenile status, said Theodor Liebmann, who heads the child advocacy clinic at Hofstra School of Law.
“An attorney typically makes a motion for special findings when he is representing a youth who has a case in Family Court, and who does not have legal immigration status,” said Mr. Liebmann, who is not involved in the case