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Our Request to Chief Judge Lippman: Stop Partisan Politics Against Vulnerable Immigrant Children

Below is our request to Chief Judge of New York, Jonathan Lippman, demanding that the New York Court System cease its partisan efforts to weaken the federal law known as Special Immigrant Juvenile Status, which is designed to protect vulnerable immigrant children from being deported to harm in their native countries.

Instead of maintaining the best interests of the children that come before its courts, the New York Court System is currently focusing on how to make it more difficult for children with little resources to obtain desperately needed protection in the United States.

The best interests of children–not politics–should be the focus of New York State Family Courts.

RE: Request to Cease Partisan Political Activities To Weaken Federal Statutory Protections for Vulnerable Children Seeking Special Immigrant Juvenile Status

Dear Honorable Chief Judge Lippman:

We are attorneys who represent over 200 unaccompanied minors. We write to express our deep concern over the New York State Court System’s involvement in partisan politics by seeking to severely restrict or eliminate Special Immigrant Juvenile Status.

Pursuant to the Judicial Code of Conduct Section 100.5(A)(c), a sitting judge shall not directly or indirectly engage in any political activity, except for “measures to improve the law, the legal system or the administration of justice.” Prohibited political activity includes “engaging in any partisan political activity.” Recently, the court system has on numerous occasions engaged in partisan politics.

On March 4, 2015, NBC released an article detailing concerns that members of the Punjabi immigrant community brought fraudulent cases in the Queens County Family Court and abused a remedy called “Special Immigrant Juvenile Status,” which was designed for immigrant children who cannot be reunited with one or both of their parents due to abandonment, neglect, abuse or a similar basis.[1]

Despite no allegations of fraud outside of the Punjabi community, the Department of Homeland Security (“DHS”) began an investigation into the Queens, Nassau, and Suffolk Family Courts.  Incredulously, the New York State Court system has called for SIJS to be severely limited and/or eliminated, a political call-to-arms which threatens the best interests of hundreds of immigrant children who would be left without protection.

Specifically, on March 5, 2015, David Bookstaver, speaking on behalf of the Chief Judge of New York State, Jonathan Lippman, reached out directly to federal Congressional officials to modify the federal law regarding special immigrant juveniles by stating to NBC News Reporter Melissa Russo that “We’re looking to the federal government to help us out and to see if there is a way to close the loophole,” referring to SIJS as a “loophole” rather than a law designed to protect children victims of abuse, abandonment and neglect.[2]

On March 14, 2015, the New York Court System’s request was answered: Chairman of the House Judiciary Committee, Representative Bob Goodlatte, told NBC News that he would explore options of investigating the alleged conspiracy to commit fraud to obtain special immigrant juvenile status. Mr. Goodlatte stated that it was apparent that word had spread that it was easy to game the system.[3]

On March 19, 2015, Mr. Goodlatte directed Jeh Johnson, Secretary of the U.S. Department of Homeland Security (“DHS”) to “immediately direct the Fraud Detection and National Security Directorate at USCIS to conduct a Benefit Fraud Assessment of the current SIJ program and to determine what steps can be taken to prevent fraud in the program.”[4]

Mr. Goodlatte also asked DHS Secretary Johnson “What, if any, statutory changes do you suggest to give you additional tools to ensure that fraudulent SIJS petitions are not approved by USCIS adjudicators.”

On July 17, 2014, Congressman Goodlatte introduced H.R. 5137, the “Asylum Reform and Border Protection Act.” HR 5137 would gut the current SIJS status in place requiring that a child demonstrate that reunification with both parents is not viable to abuse, abandonment, neglect, or a similar basis under State law.  This would lead to mass deportations of children given the federal government’s prioritization of the juvenile docket.[5]

Family Court Judge John Hunt spoke on camera to NBC News reporter Melissa Russo and made several comments that demonstrate he wants a change in federal legislation to make it harder for children to obtain special immigrant juvenile status.

Judge Hunt said that the SIJS process is “faulty” because “It’s a one sided proceeding. There is no way to investigate it yourself. It makes us take what they say at face value.”  Judge Hunt went on to express concern that the SIJS statute “could result in children flocking here to get the benefit of it and at the same time expose themselves to danger and expose themselves to criminal elements.”[6]

Judge Hunt’s dehumanization of immigrant children, by comparing them to birds, and resort to the political “floodgates argument” is improper.  His statement shows that he is against the underlying policy of SIJS, not allegations of specific children or attorneys exploiting the existing SIJS statute.

In all cases in Family Court, the judge must rely heavily on sworn testimony of parties and witnesses.  Judge Hunt’s complaint against the one-sided proceeding, because the cases are often uncontested by the abandoning and/or abusive parents, would seem to prefer that there be an advocate against the children in Family Court.  This runs counter to the Family Court’s supreme duty to act in the best interests of the children.

Clearly, fraud is a very serious concern.  Judges in Family Court, like all judges, have the challenging tasks of assessing the credibility of litigants, through their testimony and demeanor.  In the Family Court context involving children, it is particularly difficult because children often cannot provide any documentary proof that they were abandoned or abused.  For that reason, an attorney for the child is often appointed, at times to perform a home investigation, look into the veracity of the case, and confer privately with the child.

Mr. Bookstaver, the New York Court Spokesperson, stated that Hunt “hit the nail on the head, we are not equipped to deal with this,” referring to special immigrant juvenile cases.  Bookstaver went on to state that the “additional caseload” caused by SIJS cases “does not belong in family court.”

The process of SIJS is currently in place precisely because the Family Court is best equipped to determine the best interests of a child, whether a child should be placed in a guardianship or custody situation, and to make findings of abuse, abandonment or neglect.  It is precisely because DHS is not the proper adjudicator of such issues, that it relies on determination of Family Court Judges who are specialized in dealing with such issues.  The federal government has no institutional expertise on child welfare issues.  There is no federal family court, or federal child protective services.  The Family Court’s caseloads, which increased due to the increase of children coming to the United States in 2014, do not eliminate their obligation to the children.

The New York State Family Court System has already concretely acted to weaken the due process protections for children with undocumented individuals in the household based on no evidence but hearsay to back its decision.

In a March 19, 2015 report from NBC News, the New York Court Spokesperson responded to allegations that the some guardians and household members were not providing sufficient identification to be fingerprinted. Instead of clarifying that the fingerprint process is not required, by law, for Letters of Guardianship to be issued, the New York Court System stated that although “we hoped to avoid turning away people who needed the court’s help. Now we are aware that there may be a scam and we need to raise the bar.”

As you may know, Section 205.56 of the administrative rules for New York Family Court authorizes—but does not mandate—family court judges to order the probation service or other disinterested person to conduct investigations to aid the Court in determining custody of minors and appointing guardians of minors.[7]

The fingerprinting procedure is part of the investigation as permitted by Section 205.56. As most Family Court judges affirmatively order investigations that include fingerprinting of household members.  The refusal of the Family Court to fingerprint members therein without sufficient identification would act as an absolute bar for that child from access to the court and would raise serious constitutional issues of due process and lack of access to justice based on national origin and race.

Chief Judge Lippman and Family Court Judge Hunt have asked for and received significant changes in the adjudication of special immigrant juvenile-based guardianship and custody petitions.  Without any evidence of fraud, the court system is now actively cooperating with DHS to allegedly investigate children committing fraud to obtain the protection of SIJS.

The Court system has not expressed any concern on whether its myopic focus on alleged fraud could result in the exclusion of children who do in fact qualify for SIJS and do in fact desperately need it.  We are unconditionally dedicated to maintaining the ethics of our profession and have obtained SIJS for hundreds of immigrant children, all of whom were neglected, abused or abandoned and who desperately needed the protection of an adult caregiver.

We respectfully request that the New York State Court System cease its involvement in partisan politics.  The official statements made by representatives of the NYS Court System have severely jeopardized SIJS, the purpose of which is to protect vulnerable children in the United States.  Such activity is prohibited under the New York Rule of Judicial Conduct Section 100.5, which is not designed to improve a law, but to move the government to repeal or several limit a statute that benefits children.

Thank you for your attention to this important and urgent request.

Very Truly Yours,

Bryan S. Johnson, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Bryan@amjolaw.com

Ala Amoachi, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Ala@amjolaw.com

 

CC:

The Honorable Andrew M. Cuomo                NY State Commission on Judicial Conduct
Governor of New York State                         61 Broadway, Suite 1200
NYS State Capitol Building                           New York, NY 10006
Albany, NY 12224

The Honorable Eric T. Schneiderman

Office of the Attorney General

The Capitol

Albany, NY 12224

 

[1] See Family Court Exploited in Queens, Insiders Charge,  NBC News New York, March 4, 2015,

http://www.nbcnewyork.com/news/local/family-court-queens-immigration-cases-human-smuggling-green-card-295050931.html

[2] See Family Court Asks Feds for help after I-team Uncovers Immigration Exploitation, NBC News New York, March 5, 2015, http://www.nbcnewyork.com/video/#!/investigations/Family-Court-Asks-Feds-for-Help-After-I-Team-Uncovers-Immigration-Exploitation/295259431

[3] See Congressman Promises Fix After I-team Uncovers Family Court Immigration Scheme, NBC News New York, March 14, 2015, http://www.nbcnewyork.com/investigations/immigration-scheme-queens-family-court-green-cards.html

[4] See, Goodlatte to Secretary: Changes Needed To Reduce Fraud In  Immigration System, March 19, 2015, http://goodlatte.house.gov/press_releases/686

[5] See, Chaffetz And Goodlatte Introduce Bill To Stop Border Crisis, July 17, 2014 http://goodlatte.house.gov/press_releases/568

[6] See Footnote 1, supra.

[7] See Section 205.56 of the New York Family Court Administrative Rules, Investigation by disinterested person; custody; guardianship https://www.nycourts.gov/rules/trialcourts/205.shtml#56

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