Non-Precedent Decision of the Administrative Appeals Office

MATTER OF D-S- DATE: JAN. 30,2018

APPEAL OF NEW YORK, NEW YORK DISTRICT OFFICE DECISION

PETITION: FORM I-360, PETITION FOR AMERASIAN. WIDOW(ER). OR SPECIAL IMMIGRANT

The Petitioner claims that she was born in the Ivory Coast and entered the United States when she was 16 years old. The Petitioner also claims that she was 19 years old when a family court in New York found that the Petitioner had been neglected by her father. and granted the Petitioner a guardian. Based on the state court orders, the Petitioner seeks classilication as a special immigrant juvenile (SIJ). See Immigration and Nationality Act (the Act) sections I 0 I (a)(27)(.1) and 204(a)(I)(G), 8 U.S.C. §§ IIOI(a)(27)(J) and 1154(a)(I)(G). SIJ classification protects foreign-born children in the United States who cannot reunify with one or both parents because of abuse. neglect. abandonment, or a similar basis under state law.

The Director of the New York, New York District Oflice revoked the SIJ petition after initial approval in August 2014. In the revocation decision, the Director determined that the Petitioner did not demonstrate that she was unmarried and less than 21 years old at the time of her SIJ petition liling, as required. The Director also determined that the Petitioner had not met the guardianship requirements, and had not been declared a dependent of the court or placed under the custody of an individual.

On appeal, the Petitioner submits additional evidence and asserts that she has met her burden of demonstrating her identity, marital status, age. and place of descent. The Petitioner also asserts that her court-ordered guardianship order is sufficient to meet the SIJ guardianship requirements.

Upon de novo review, we will dismiss the appeal.

I. LAW

To establish eligibility for SIJ classification, petitioners must show that they are unmarried, under 21 years of age, and have been subject to a state juvenile court order determining that the petitioners cannot reunify with one or both of their parents due to abuse. neglect. abandonment. or a similar basis under state law. Section I 01 (a)(27)(J) of the Act: 8 C.F.R. § 204.ll(c). Petitioners must have been declared dependent upon a juvenile court or the juvenile court must have placed the petitioners in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section 10l(a)(27)(J)(i) of the Act. The record must also contain a judicial or administrative determination that .

Maller (d'D-S- it is not in petitioners' best interest to return to their or their parents' country of nationality or last habitual residence. /d. at section 10l(a)(27)(J)(ii). Petitioners bear the burden of proof to demonstrate their eligibility by a preponderance of the evidence. Matter (~l Chawathe, 25 I&N Dec. 369, 375 (AAO 2010).

United States and Immigration Service (USCIS) must also consent to the grant of SIJ classification. Section 101(a)(27)(J)(iii) of the Act. USCIS' consent is an acknowledgment that the request for SIJ classification is bona fide, which means that the juvenile court order and best-interest determination were sought to gain relief from abuse, abandonment, neglect, or a similar basis under state law and not primarily or solely to obtain an immigration benefit. 6 USCIS Policy Manual J .2(0)( 5), https://www. uscis.gov/policymanual.

II. ANALYSTS

The Petitioner claims that she was born in 1993 and entered the United States with a B-2 visa in January 2010. In 2013, the Family Court of the State of New York, issued an Order Appointing Guardian ql the Person, awarding the Petitioner a guardian. In 2013, the court issued an Order-Special Immigrant Juvenile Status (SIJ order), containing specific findings related to the Petitioner's eligibility for SIJ classification; including a determination that reunification with the Petitioner's parents was not viable, as her mother is deceased and her father neglected her.

A. The Petitioner Has Not Established her Age or Marital Status at the Time of SIJ Petition Filing

The record contains differing biographic information relating to the Petitioner. The Petitioner asserts 1 that her name is D- S- , her date of birth is 1993. and she was born in the Ivory Coast to B-0- and K-0-. The Petitioner also contends that she was forced into a polygamous marriage, but that the marriage is not relevant for immigration purposes, as polygamous marriages are not legally recognized in the United States.

In support of her assertions concerning her identity, the Petitioner submitted a copy of an Ivory Coast issued to the Petitioner in November 2016; a copy of a certificate of Ivorian citizenship dated July 2011; an identity certificate from the Ivory Coast, Ministry of the Interior, dated October 20 12; copies of birth certificates from the Ivory Coast from August 2010 and January 2015, both certifying conformation to May 2010 registry details; a from the Ivory Coast consulate in New York finding the Petitioner an lvorian citizen based on two of the documents mentioned above, a copy of the front of a school identity card from the Ivory Coast t()r 2009-2010, and various documents issued to the Petitioner bearing her claimed biographic data after she entered the United States.

1 lnitials are used to protect the identity of the individuals.

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Matter ofD-S-

However, the record also contains a Form DS-156, Nonimmigrant Visa Application, submitted by the Petitioner to the U.S. embassy in in May 2010, stating that the Petitioner's name is D- D-, a citizen of Mali, born on 1983.2 The record further contains the Petitioner's original Mali passport, containing biographic information consistent with the information in her nonimmigrant visa application, which the Petitioner used to depart Mali and enter the United States in January 2010. The Petitioner also stated on her nonimmigrant visa application that she was married to B- S-. born on 1980, that he would with her, prepared her application, and would be paying for her trip. At their visa interview, the Petitioner indicated that she would be visiting New York with her husband and that her son would remain behind with her mother-in-law.

The Petitioner asserts that she obtained a Mali passport bearing false biographic information in order to escape from a forced polygamous marriage. The Petitioner contends that a friend of her mother helped her to obtain the fraudulent passport, and arranged for B- S- to accompany her and pose as her husband at her visa interview. The Petitioner claims that she never saw B- S- again after the visa interview.

On appeal, the Petitioner contends that she has met her burden of demonstrating her true identity as D- S-, as she submitted supporting documents for her true identity, only used this identity following her entry to the United States, and that the evidence relating to her alias is not credible. Specifically, the Petitioner notes that her nonimmigrant visa application does not contain a Malian national identity number, includes only a vague Malian address tor the Petitioner, and that the individual listed as her husband's uncle submitted a letter stating that he is not familiar with B- S-. The Petitioner claims that the high level of fraud in the Malian embassy allowed her to obtain a Mali passport to which she was not entitled. However, as stated, the record contains the Petitioner's original Mali passport identifying her as a Malian citizen, which she used to travel to the United States. In contrast, the Petitioner submitted only a copy of several pages of her Ivory Coast passport identifying her as an Ivory Coast citizen. The Petitioner's original Ivory Coast passport, date of issue November 2016. has not been submitted. The Petitioner's other Ivory Coast governmental documents, apart from a copy of her student ID, are also copies and issued after the Petitioner's arrival in the United States. The Petitioner's certificate of identity from the Ivory Coast consulate in New York states that the certificate issuance was based on two documents issued in the Ivory Coast after the Petitioner's departure. The certificate does not contain any indication that the Petitioner's identity was independently verified by the consulate, nor does it identify on which two documents

2 The Petitioner asserts that it is a breach of fundamental fairness that she has not been provided consular notes from her visa interview of her nonimmigrant visa application, and cites to the regulations at 8 C.F.R. ~ I 03.2(b)( 16)(i) in suppot1 ofthis contention. However, 8 C.F.R. *103.2(b)(I6){i) states, in pertinent part: ''If the decision will be adverse ... and is based on derogatory information considered by the Service and of which the applicant ... is unaware. he/she will be advised of this fact and offered an opportunity to rebut the information and present information in his/her behalf before the decision is rendered." The regulation does not require USCIS to provide the Petitioner with the documents containing the derogatory information. Rather, the regulation requires USCIS to advise the petitioner of the derogatory information and to offer the petitioner an opportunity to rebut the information and present information on his or her own behalf. The Petitioner was advised of such derogatory information in the Director"s notice of intent to revoke and has had opportunities to rebut the information. both below and on appeal.

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Mauer (~f D-S- they relied or how they verified them. Overall, the Petitioner has not demonstrated that the evidence submitted in support of her claimed Ivory Coast citizenship is more probative and reliable than the evidence in the record identifying her as a citizen of Mali.

As stated, the Petitioner contends that she was never married to 8- S-, and that she pretended to be married to him only to obtain a visa for the United States. However, the record contains a certificate of divorce from a Malian court of appeal forD- D-, born on 1983, and 8- S-. born on 1980, issued on 2011. It is not clear why and how a divorce certificate could be obtained for a marriage the Petitioner claims never existed. Further, in the affidavit the Petitioner submitted with her asylum application, she states that the man with whom she attended her visa interview travelled with her to the United States. and that he was asked to watch over her on their . However, on appeal, as stated, the Petitioner submitted an affidavit stating that she never saw her claimed husband after their visa interview. The Petitioner's two written statements indicating her last contact with her claimed husband contain contradictory information. And, one of her statements contradicts governmental records indicating that did not travel to the United States with the Petitioner.

The Petitioner contends that, due to a language barrier, she was not familiar with the false information in her nonimmigrant visa application and, in the alternative, that misrepresentation is not a bar to SIJ classification. Though the Petitioner's nonimmigrant visa application was prepared by the individual she identified as her husband, the application contains her signature, attesting to the veracity of the information provided. Further, the Petitioner used the Malian passport containing the same name and date of birth as listed on her nonimmigrant visa application to travel to the United States, and does not claim ignorance of the contents of her .

Though misrepresentation is not a bar to SIJ classification, based upon the inconsistencies in the record, the Petitioner has not satisfied her burden of demonstrating her identity, including whether her date of birth is in 1983 or 1993.3 As such, for SIJ purposes, the Petitioner has not established that she was under 21 years old, as required, when she tiled her SIJ petition in August 2013. The Petitioner has also not sufficiently demonstrated her marital status at the time of filing, as the record indicates a marriage to an individual residing in Mali. Though the record also contains a subsequent divorce certificate, the Petitioner claims that she was never married to this individual and does not address the authenticity of the statements contained within the divorce certificate. Accordingly, the Petitioner has also not established that she was unmarried at the time of SIJ petition filing, as required.

B. No Qualifying Dependency or Custody Placement Order

The Petitioner contends that any misrepresentations she made to gain entry to the United States were the misrepresentations of a minor and should not be accorded the same weight as the statements of an adult. The Petitioner's date of birth is not clear based upon the record before us, and it is not clear that she was a minor at the time of her claimed misrepresentations.

4 Mauer ofD-S-

The Director determined that the Petitioner's guardianship order was not sufficient for SIJ eligibility, finding it was not clear that the Petitioner consented to such guardianship, as required for individuals between the ages of 18 and 21 in New York. See NY Family Court Act (FCA) § 661(a) (as amended in 2008). The Petitioner's guardianship order does state that the Petitioner consented to such guardianship appointment until she reached the age of 21. However, in New York, guardianship by the consent of an individual between the ages of 18 and 21 is not equivalent to custody of a child.

New York family courts have jurisdiction to determine the "custody or visitation of minors,., but in the context of custody proceedings "[t]he term 'infant' or 'minor· means a person who has not attained the age of eighteen years:· FCA §§ 119(c), 651. Once a person attains the age of 18, family courts lack jurisdiction over the person's custody. Troy SS. V July UU., 140 A.D.3d 1348, 1350 (N.Y. App. Div. 3d Dept. 2016). See Matter rJ(Tyonna W.. 149 A.D.3d 969, 970 (N.Y. App. Div. 2d Dept. 20 17) (dismissing as academic parent's appeal of custody order because child had reached the age of 18); DelGaudio v. DelGaudio, 126 A.D.3d 848. 849 (N.Y. App. Div. 2d Dept. 2015) (same); Hershko v. Hershko, 103 A.D.3d 635 (N.Y. App. Div. 2d Dept. 2013) (same).

Consequently, while the New York family court orders in this case show that the court had jurisdiction to appoint a guardian for the Petitioner pursuant to her consent. the record does not show that the court had jurisdiction over the Petitioner's custody as a juvenile. For SIJ purposes, a state court must have jurisdiction under state law over both "the custody and care" of the SIJ petitioner as a juvenile to be considered a juvenile court. 8 C.F.R. § 204.ll(a).

C. No State Law for Parental Reunification Determination

The Petitioner is also ineligible for SIJ classification because the juvenile court order lacks a qualifying finding that reunification with the Petitioner's father is not viable due to neglect. The Act requires that an SJJ petitioner demonstrate that "reunification with I or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.'' Section I 01 (a)(27)(J)(i) of the Act. The plain language of the statute indicates that state law governs the determination that parental reunification is not viable. Accordingly. the juvenile court order itself should establish that the determination was made under state law, and orders that only cite or paraphrase and regulations will not suflice. 6 USCIS Policy Manual. supra. at J.2(D)( 4), .1.3(A)(2).

The family court's SIJ order states that reunification with one or both of the Petitioner's parents is not viable due to neglect and/or a similar basis under state law. However, the SI.J order does not cite to the state statutes under which the parental reunification determination was made. The record also does not contain any other documents underlying the SJJ order that reference the applicable state law. As the record does not contain the state law under which the parental reunification determination was made, the SIJ order is deficient under section IOI(a)(27)(J)(i) ofthe Act.

5 Matter of D-S-

D. No Reasonable Factual Basis for Best Interest Determination and SIJ Request Not Bona Fide

In order to be eligible for SIJ status, USCIS must consent to a grant of SI.I classification. In determining whether consent is warranted. USCIS reviews SIJ orders and the relevant record to determine whether the court's best interest determination findings are supported by a reasonable factual basis. See section 101 (a)(27)(J)(iii) of the Act; 6 USCrS Policy Manual at J.2(D)(5). As stated, in consenting to a grant of SIJ classification. USC IS also acknowledges that the request for SIJ classification is bona fide. /d.

The Petitioner's SIJ order states that "it is not in the [Petitioner's] best interest to be removed from the United States and returned to the Ivory Coast, her country of nationality." However. the record does not contain a reasonable factual basis to support a finding that the court engaged in a determination concerning whether a placement in the Petitioner's country of nationality would be feasible or in her best interest. The SIJ order does not contain any facts concerning the court's best interest determination. The Petitioner asserts that she faced a forced marriage and female genital mutilation in the Ivory Coast, due to the neglect of her father, and made assertions related to her cutTent life in the United States. However, even "a court's finding that a particular custodial placement is the best alternative available to the petitioner in the United States does not necessarily establish that a placement in the petitioner's country of nationality would not be in the child's best interest." users Policy Manual at J.2(D)(3). Accordingly, the record does not contain a reasonable factual basis to support a finding that the court engaged in a determination concerning whether placement in the Petitioner's country of nationality would be available or in the Petitioner's best interest. See id.

Also, as stated above, the record contains contradictions concerning the Petitioner's identity, including her country of citizenship. As the record contains inconsistencies relating to the best interest determination. and there is no evidence that the family court was aware of these inconsistencies at the time of SIJ order issuance, we also cannot find that the family court made an informed determination on this issue. See 6 USCIS Policy Manual 1.2(0)(5). Overall, USCIS' consent is not warranted on this basis, in addition to the lack of a reasonable factual basis for the court's best interest determination in the record. See 6 USers Policy Manual J.2(D)(3). J.2(D)(5).

III. CONCLUSION

The Petitioner has not overcome the basis of the Director's denial and established that she is eligible for SIJ classification. The Petitioner has not demonstrated that she was under 21 years of age upon SIJ petition tiling. that her SIJ order establishes the state law under which the parental reunification determination was made, or that the Petitioner warrants USCIS' consent, as the record does not contain a reasonable factual basis for the court's best interest determination or indicate that the court made an informed best interest determination. Matter of D-S-

ORDER: The appeal is dismissed.

Cite as Matter ofD-S-, 10# 787582 (AAO Jan. 30. 2018)