Matter of Amandeep S.
2014 NY Slip Op 50945(U) [44 Misc 3d 1201(A)]
Decided on June 19, 2014
Family Court, Queens County
Hunt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 19, 2014
Family Court, Queens County

In the Matter of a Proceeding for the Appointment of a Guardian of the Person of Amandeep S. A Person Under 21 Years of Age.


Donalda Leveille, Brooklyn, for petitioner.

Jennifer Arditi, Maspeth, Attorney for Child.

John M. Hunt, J.

In this uncontested guardianship proceeding commenced under article 6 of the Family

Court Act, the petitioner Jaspal S., seeks an order appointing him as the guardian of the person of

Amandeep S., a person under the age of 21 years who was born in India on May 22, 1993.[FN1] The

attorney for the prospective ward has also filed a motion for the issuance of "special findings"

which will allow Amandeep to file a petition with the United States Customs and Immigration

Service ("USCIS") for classification as a Special Immigrant Juvenile in accordance with 8 USC

§1101 (a) (27) (J) (see generally, Matter of Sing W.C., 83 AD3d 84, 86 [2011]).

Jaspal S. filed the petition seeking to be appointed as the guardian of the person of

Amandeep S. on January 21, 2014. In support of the guardianship application, Jaspal S. alleges,

in pertinent part, that he resides at xxx-xx 95th Avenue, Richmond Hill, New York, and that he is

the "uncle" of Amandeep S., who is alleged to reside at the same address; that Amandeep S. was

born on May 22, 1993 and that Amandeep S.'s religion is "Sikh"; that Amandeep S.'s parents are

Balwinder K. and Malkit S. It is further alleged that Amandeep S.'s mother, Balwinder K.,

resides in "India", and that his father, Malkit S., resides at xxx-xx101st Avenue, Richmond Hill,

New York. The proposed guardian also alleges that he "ha[s] never been the subject of an

indicated report, as such term is defined in Social Services Law §412, that has been filed with the

statewide register of child abuse and maltreatment pursuant to Social Services Law §422".

Jaspal S.'s petition further states that he should be appointed as guardian of the person

of Amandeep S. because it "would be in Amandeep S.'s best interests and would preserve his

legal rights because I have been taking good care of him since he has been living with me and

I will assume full legal responsibility for him;" that Amandeep's biological parents, "although

living, should not be appointed guardian of the person of the child because: they have abandoned

him and have not been in contact with him, failing to provide any stability in his life"; and lastly

the petition states that Amandeep S. consents to the appointment of Jaspal S. as his guardian.

As a person over the age of fourteen, Amandeep S. simultaneously filed a petition on

his own behalf pursuant to Family Court Act §661 and Surrogate's Court Procedure Act §1703,[FN2]

requesting that the Court appoint Jaspal S. to be the guardian of his person. Amandeep S. has

also submitted his written consent to the appointment of Jaspal S. as guardian of his person, which is applicable to both guardianship petitions.[FN3]

The guardianship petitions were initially assigned to Judge Nicolette Pach, sitting as a

Judicial Hearing Officer Judge Pach entered an order directing that the New York City

Administration for Children's Services ("ACS") conduct and investigation into the allegations of

the guardianship petitions and file a written report with the court (see, Fam. Ct. Act §662; 22

NYCRR §205.56 [a] [2]; Sing W.C., 83 AD3d at 88-90).[FN4] The ACS report was a part of the

record of these proceedings at the time that the case was referred to this Court.

The report submitted by ACS states, in pertinent part, that Amandeep S. is residing

in the home of Jaspal S., who was 57 years old at the time of these proceedings. Also residing

in the home are Jaspal's wife, Baljit K., 45 years old, and their sons, Gurpreet S., 15 years

old, Bhawanpreet S., 12 years old, and their daughter, Kawanjit S., 12 years old. ACS further

reported that "Amandeep has been living with the family for approximately three years after his

father moved and no longer wanted to support him."

ACS indicated that Amandeep informed them that "he lived with his father after they

both came from India, however he is not aware of his father's current whereabouts." Amandeep

also told the investigator that "he is very happy living with the family . . . [h]e stated that his

parents are aware that he is with Jaspal's family, but he has no contact with them." ACS reports

that it was unable to make contact with Amandeep's parents due to an asserted lack of contact

information, although Amandeep's father apparently resides in Queens County.

The remaining useful portion of the report states that Amandeep has developed a close

relationship with Jaspal S. and his family over the past three years, that Jaspal S. is employed as a

taxi driver and that Jaspal will be willing to provide health insurance for Amandeep should he be

granted guardianship. ACS lastly reported that Amandeep attends John Adams High School

where he is in the 12th grade. Amandeep intends to finish high school and then wishes to continue

his education. The investigator reported that there is no history of domestic violence or indicated

reports concerning the family of Jaspal S. on file with the state central register, and that except

for Jaspal S.'s 2001 conviction for driving under the influence for which a fine was paid, the

members of the family of Jaspal S. have not been involved with the criminal justice system.[FN5]


The Court proceeded to conduct a hearing in order to determine the facts underlying the

guardianship petition and to ascertain whether the best interests of Amandeep S. would be

served by the appointment of Jaspal S. as his guardian (Surrogate's Court Procedure Act §1707

[1]). In proceeding upon the guardianship petition, the Court was mindful that Amandeep's

attorney had filed a motion for specific "special findings" which would allow him to seek Special

Immigrant Juvenile status under 8 USC §1101 (a) (27) (J), and that were the Court to appoint Jaspal S. guardian, that would constitute a sufficient declaration of dependency upon the Family

Court which would enable Amandeep to file a petition for SIJ status with the USCIS (see, Matter

of Antowa McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795-

796 [2010]; Matter of Jisun L. v. Young Sun P., 75 AD3d 510, 512 [2010]; Matter of Mohamed

B., 83 AD3d 829, 831 [2011]).

Jaspal S. testified in support of his application to be appointed guardian of Amandeep S.

Jaspal explained that he is not the uncle of Amandeep either by blood or by marriage, but that the

term "uncle" is a term of endearment and respect used by a younger person towards an older man

with whom he has a close or quasi-family relationship. Jaspal S. testified that Amandeep has

lived with him and his family at their home in Richmond Hill for the past three years, and that

Amandeep refers to him as "uncle."

Jaspal S., who owns a "green cab" met Amandeep at a Sikh temple or "Gurdwara" in

Richmond Hill which they both belong to and both attend. He first became aware of Amandeep

through the Gurdwara and through a friendship which developed between then-17-year-old

Amandeep and then-13-year-old Gurpreet S., who is Jaspal's eldest son. According to Jaspal,

his son and Amandeep would play soccer and other games in a park near their home and

apparently both Gurpreet and Jaspal took a liking to Amandeep, given their common background

and their membership in the Gurdwara in Richmond Hill. Apparently, at Gurpreet's invitation,

Amandeep visited the family residence and met Gurpreet's family members.

According to Jaspal S., during the second week of November 2011 he met Amandeep

at the Gurdwara in Richmond Hill for the first time. Amandeep informed Jaspal that his father,

Malkit S., had kicked him out of his apartment and he was without any resources or a place to

live, which was about five blocks away from Jaspal's own house. As Amandeep needed

a place to live and his father was apparently not providing for him, Jaspal spoke with leaders at

the Gurdwara, and he and his family took Amandeep into their home in November 2011.

Amandeep has remained a member of Jaspal's household since then while he attends John

Adams High School.

As far as Jaspal knows, Amandeep has no phone number for his own father and he has

never had any contact with Malkit S. since Amandeep came to live with his family in 2011.

Jaspal S. was not asked whether he was aware of any meetings or other contact between

Amandeep and Malkit S. since the time that Amandeep came to live in his household. According

to Jaspal, he and his wife take care of all of Amandeep's needs, and his wife takes Amandeep to

medical appointments either at a doctor's office or at Jamaica Hospital. Jaspal testified that he

attended a parent-teacher evening at Amandeep's school in 2013 and he met with Amandeep's

teacher. As far as he knows, Amandeep is at school every day that he is scheduled to be there.

According to Jaspal S., he decided to file this guardianship petition for Amandeep after

his friend and fellow taxi driver, Kalinder S., told him that since Amandeep was living with him,

he should file for guardianship of Amandeep, although that was apparently not something which

Jaspal ever considered doing during the first three years that Amandeep resided with him and his


Jaspal stated that while he knows of Malkit S., he has never met Amandeep's father.

Although he has been caring for Malkit's son for three years as though a member of his own

family, Jaspal never sought out Malkit S., although Amandeep had told him the address where he

used to live with his father. Apparently, as far as Jaspal S. was concerned, he had taken Amandeep into his home as a member of his own family, and it was his responsibility to provide

for Amandeep's needs. As he testified, he told his wife that Amandeep "is my son and I'll take

care of it", apparently referring to the abandonment of Amandeep by his own father, Malkit S.

Beyond bringing the issue to the attention of leaders at the Gurdwara, there is no indication that

Jaspal took any further action.[FN6]

Baljit K., the wife of Jaspal S., testified at the hearing upon the guardianship petition.

Ms. K. resides at xxx-xx 95th Avenue in Richmond Hill with Jaspal S., their three children and

Amandeep S. According to Ms. K., even though they are four years apart in age, Amandeep "was

a friend of my son, [and] they used to play together".[FN7] Ms. K. had met Amandeep at the

Gurdwara "a couple of times" and he visited her home on a few occasions prior to coming to live

there in November of 2011.

Ms. K. testified that Amandeep told her that Malkit S. is his father and that he has no

other relatives in New York. Ms. K. is aware that Amandeep says that his father threw him out

of the home and that is the reason that Amandeep came to live with her family. Apparently

Amandeep had been sleeping at the Gurdwara in Richmond Hill since his father ordered him out

of his apartment, and her husband, Jaspal felt that they should take Amandeep in and provide him

with a home. After arriving in her home, it appears that Amandeep lost contact with his father

and did not know where he was living, but Amandeep did not speak much about such things with

Ms. K. She knew that Amandeep crossed the border into the United States sometime in 2010,

but he never told Ms. K. who had arranged for him to come to New York. Ms. K. knew that

Amandeep first lived with his father and that he was very upset when his father threw him out.

Amandeep has not spoken about his mother much nor did he mention when he last saw her in


As far as Ms. K. was aware, her husband had obtained some type of direction or

permission from leaders of his Gurdwara which authorized him to provide a home and care

for Amandeep. He has apparently blended into Jaspal's household as her has now been there over

2 ½ years. According to Ms. K., Amandeep is "a very nice boy [and] well behaved". He attends

the Gurdwara in Richmond Hill and is a student at John Adams High School. Ms. K. took

Amandeep for a physical at Jamaica Hospital after he came to live in her home in 2011, and she

has not taken him to the doctor since. To her knowledge, Amandeep has no medical insurance

and he also has not received a dental check up since 2011.

Gagandeep (No Last Name), who served the summons and guardianship petition upon

Amandeep's parents testified at the hearing. Gagandeep is an Indian national of Punjab ancestry

and an adherent of the Sikh faith. Gagandeep was born in 1995 and he presently resides in New

York where he attends John Adams High School and is a classmate of Amandeep S.

Gagandeep resides with his parents at xxx-xx101st Avenue in Richmond Hill and he has

attended school with Amandeep S. for the past two or three years. According to Gagandeep,

he was asked by Amandeep to serve the summons and petition for the guardianship case on his

parents. Amandeep's father was supposedly in Queens while his mother was in India, and

Amandeep was aware that his friend would be returning to India in order to attend the funeral of

his grandmother and he could locate Amandeep's mother and effect service upon her. Gagandeep

arrived in India on April 7, 2014 and he departed India to return to the United States on April 24,

2014, arriving on April 25, 2014.[FN8]

During his visit to India, Gagandeep traveled across Punjab state to Salempur, the village

where he was told Amandeep's mother, Balwinder K., resided. Gagandeep traveled by hired car

and the journey took several hours. Gagandeep located Balwinder K. in a village named Tanda,

in the same district, Hoshiarpur, that Amandeep said that she resided in. Gagandeep learned from

neighbors in the first village, Salempur, that Amandeep's mother had moved to another village.

After locating Balwinder K. at her home, Gagandeep introduced himself and explained that he

was a friend of Amandeep's from New York and that he had papers to give to her. According to

Gagandeep, Ms. K. asked him where the papers were from, but no other questions, and she

signed for them.

Gagandeep subsequently served the papers on Malkit S., the father of Amandeep at his

residence in Queens County on April 28, 2014. According to Gagandeep, he met Malkit S. at the

address given to him by Amandeep Singh, which was an apartment located at xxx-xx 101st

Avenue, Richmond Hill, on April 28th and delivered the summons and petition to him which

Malkit S. signed for.

Gagandeep testified that he attends the Gurdwara Makhan Shah Lobana Sikh Centre

or the Sikh Cultural Society Gurdwara, both of which are located in Richmond Hill. On

occasion he sometimes sees Amandeep S. and Jaspal S. at prayer which on a Sunday might be

attended by 300 to 400 Sikhs. Gagandeep testified that he knows another young man also named

Amandeep S. who resides with his family at xxx-xx 132nd Street, Richmond Hill. That other

Amandeep S. is "my cousin" and court records reflect that Swaran S., the father of Gagandeep,

has filed a petition seeking guardianship of the other Amandeep S. with the Family Court.[FN9]

Gagandeep also testified about his meeting with Amandeep's father and the service of

process upon him. According to Gagandeep, he met Malkit S. at an apartment located at xxx-xx

101st Avenue, Richmond Hill on April 28, 2014. This address was provided by Amendeep S.

Gagandeep arrived at the building which had a brick front and iron bars on the windows.

Gagandeep knocked on the front door, he got inside and then went up a flight of stairs to the

second floor hallway measuring approximately 4 feet by 10 feet, and he went into an apartment

apparently was occupied by Malkit S.

Gagandeep introduced himself to Malkit S., whom he had never met previously, and

told him that he was a friend of his son, Amandeep. Malkit welcomed Gagandeep into the

apartment and he offered Gagandeep a chair. Gagandeep gave the court papers which were in

an envelope to Malkit S. and he signed for them. Gagandeep did not state what the papers were

about and Malkit asked no questions about the papers. According to Gangandeep, the only person

present at the apartment while he was there was Malkit S. and as far as Gagandeep could

ascertain, only Malkit lived at the apartment as there was no indication that Gagandeep ever met

or knew of Malkit S.'s girlfriend.

Amandeep S. testified in support of the petitions for guardianship. Amandeep is 20 years

old and he crossed the border between Mexico and the United States at Texas apparently in 2011.

Amandeep testified that he had no contact with nor any support from his mother, Balwinder K.,

in the last 12 years, and he had been living with his paternal grandmother and his two older

sisters in India prior to coming to the United States after the grandmother became ill. Amandeep

stated that he did not know exactly who made arrangements for him to come to the United States

or who might have financed his trip. He knows that "my grandmother and some relatives"

arranged for him to leave India and he knew that his father, whom he had last seen many years

ago when Amandeep was six years old, lived somewhere in New York City and that he was told

that he would be sent to the United States and to seek out his father, Malkit S.

Amandeep described a lengthy, harrowing and arduous trip of six to seven months from

India through various countries and across oceans and continents in the company of strangers he

did not know and whose language he did not speak. Sometimes Amandeep was alone with these

strangers, who are clearly "human smugglers" who orchestrate the illegal entry of people into the

United States for significant fees, and on other occasions during his journey, he was with other

people who were being smuggled across national borders. Amandeep testified that he has never

been on an airplane, but he also stated that he thought that he crossed an entire ocean in "one

day" and he did not know the names of that ocean.

The description provided by Amandeep is of a well-organized organization with multiple

participants having experience in moving undocumented travelers across borders, using safe

houses to hide the smuggled, all without arousing suspicion or being detected by authorities (e.g.,

Lei Chen v. Holder, ___ FedAppx___, 2014 WL 1424503 at *2 [6th Cir 2014] [describing

methods employed by human smugglers known as snakeheads]).[FN10]

Amandeep testified that after six or seven months of travel during which he was

apparently told that he had passed through Guatemala and Mexico, he crossed the border

between Mexico and the United States on foot in September 2010. Once in the United States,

Amandeep was accompanied by one or two guides or smugglers who handed him off to other

smugglers and he moved from place to place and city to city by various modes of transportation

such as cars, trucks and busses. He also told of traveling on foot and of sleeping or resting in

what appear to be safe houses used by the smuggling operation. On occasion, Amandeep was

sent on a leg of his journey alone and he was met by different smugglers to escort him on the

next part of his journey once he arrived at a destination along the way.

According to Amandeep, he left India with a small amount of Indian rupees in his pocket

and some personal effects and clothing which fit into his backpack. He also indicated that he had

no communication with any members of his family during his journey and they had no way of

knowing how he was or where he was at any given moment. While Amandeep did not testify to

any deprivation or physical mistreatment by his escorts during his journey, there was obviously

no way to ensure his safety as he traveled through strange lands in the company of people he did

not know and with whom he could not communicate as they spoke different languages. The only

guarantee was that the safe delivery of Amandeep and the thousands of other young people from

Punjab State in his position who are willing to undertake the risky journey to the United States,

would enhance the standing of the smugglers which would in turn generate more business and

income for the smuggling operation.[FN11]

After 25 days in the United States, passing through states he claims not to remember,

Amandeep arrived by car in New York City and he was dropped off on the street in the vicinity

of one of the Gurdwaras in Richmond Hill. As Amandeep explained, the escorts he was last with

let him out of the car they were in where there were "Punjabi-looking" people on the streets.[FN12]

Amandeep testified that he had absolutely "no idea" where he was and he approached someone

he believed to be a fellow Sikh, as they wear distinctive dress, and he was able to communicate

in his native Punjabi with this individual. Amandeep received directions to the nearby Gurdwara

where he knew he could find food, shelter and hopefully assistance in locating his father who he

had been told was in New York City by his relatives in India.

Apparently within a few days of Amandeep's arrival at the Gurdwara, word got to Malkit

S. that his son Amandeep, whom he had not seen for many years, had arrived from India and that

he was staying at the Gurdwara in Richmond Hill. Five or six days after Amandeep arrived at the

Gurdwara in Richmond Hill, his father Malkit S. came to the Gurdwara and he brought

Amandeep home with him to his apartment at 119-13 101st Avenue in Richmond Hill. According

to Amandeep, his father was living with "his girlfriend" at the apartment, although his testimony

revealed little about this girlfriend and his interaction with her. Indeed, Amandeep testified that

he could not remember the name of the girlfriend who was living with his father in the two

bedroom apartment they all shared.

According to Amandeep, his father wanted him to get a job and earn money, although

Amandeep had no legal status in the United States and no right to work. Amandeep testified that

after three months his father told him to leave his apartment and to not return. Amandeep

testified that he and his father would have regular "arguments" and that his father would tell him

to "leave" and to "go". Amandeep recalled that at about this time his father "was having

problems with his girlfriend", and so Amandeep decided to heed his father's requests and he

left the apartment going off on his own in a city he barely knew, without any support from his

father, the only relative he had in New York.

Amandeep's father provided him with no support and Amandeep first spent about 6 or 7

months living with the "Singh brothers", two friends he had made through the Gurdwara. When

he could no longer reside with these friends, Amandeep returned to stay at Gurdwara Makhan

Shah Lobana Sikh Center where he could obtain shelter and sustenance. A few days after he

returned to the Gurdwara, he went to live with Jaspal S. and his family, with whom he was

familiar from playing with Jaspal's older son and from interacting at the Gurdwara. This

arrangement was apparently sanctioned by of leaders of the Gurdwara. Since then Amandeep

claims that he has had no contact with his father and he has lived as a member of the household

of his "uncle" Jaspal S.

Although the Court had requested that Malkit S. be located and produced in court in

order to provide details about his knowledge of how Amandeep came to the United States from

India and Amandeep's early days in New York, it was impossible for Jaspal S. or Amandeep's

attorneys to locate Malkit S., even with the assistance of a licensed process server. By the time

the Court heard the case, it appeared that Malkit S. had moved from the apartment at xxx-xx

101st Avenue, as a pile of unclaimed mail addressed to him was observed in the hallway near that


Amandeep testified that he is a half-time student at John Adams High School, and he

spends time in the school library studying when he does not have to attend class.[FN14] When he is

not in school, Amandeep spends his time in the park or at the Gurdwara. He is not employed and

he has not graduated from high school, despite having been a student at John Adams High

School since November 4, 2010 according to his pupil registration card.

Amandeep and Jaspal S. decided that Jaspal would file the petition to be named

Amandeep's guardian in November of 2011. He testified that the idea to file the guardianship

petition was Jaspal's and Jaspal previously testified that he had been advised to file for guardian-

ship by someone at the Gurdwara that both he and Amandeep attended.

As Amandeep recalled, his mother moved away from the grandmother's house in India

many years ago when he was 12, leaving him with his grandmother, and she did not have much

communication with him, nor did she support him, after she had moved away. Amandeep stated

that he remained in contact with his grandmother in India by telephone after he arrived in New

York. His grandmother passed away sometime in 2011, after he had been thrown out of the

apartment by his father and prior to when he went to reside with Jaspal. Amandeep testified that

he received a telephone call from someone in India to tell him of his grandmother's death while

he was living at the home of the Singh brothers, which was prior to his going to live with Jaspal.

Amandeep could not say with certainty who called him, he thought it might have been a neighbor

of his grandmother. Amandeep was also unable to explain how this person was able to track him down at the friend's home in Queens as this was after he was allegedly told to leave the

apartment by his father and he had not been in contact with him.

Amandeep testified that he has no relatives who could support him were he to return to

India at this time. He has not had contact with his mother for several years, and she previously

left him with his grandmother without making any arrangements for his support. Amandeep's

father, Malkit S., was also not a resource as he had allegedly excluded him from his apartment in

Richmond Hill and had not remained in contact with him nor provided him any guidance and

support since that time. According to Amandeep, he last saw his father 2 to 2 ½ years ago when

he left the father's apartment. No testimony concerning Amandeep's older sisters and their

present family or living circumstances was adduced at the hearing. Presumably they are still

living in India.


The Court first proceeded to adjudicate the petitions for guardianship. Although the

guardianship petition serves as a basis for addressing the additional, and undoubtedly more

significant, motion for special findings which would permit Amandeep to file an application for

Special Immigrant Juvenile status with the USCIS, the guardianship proceeding is the actual

judicial proceeding through which the Family Court exercises jurisdiction in the case.[FN15]

In accordance with Surrogate's Court Procedure Act §1707 (1), "[w]hen considering

guardianship appointments, the infant's best interests are paramount" (Matter of Denys O.H. v.

Vilma A.G., 108 AD3d 711, 712 [2013]; Matter of Alamgir A., 81 AD3d 937, 938 [2011]; Matter

of Diego F., 84 AD3d 1373 [2011]; Matter of Ashley W., 85 AD3d 807, 809 [2011]; Matter of

Bianca B., 97 AD3d 742 [2012]; Matter of Deven Meza F., 108 AD3d 701, 702 [2013]; Matter

of Maura A.R.-R., 114 AD3d 687, 688 [2014]; Matter of Marisol N.H., 115 AD3d 185, 190


Here, the unchallenged evidence in this uncontested proceeding conducted in the absence

of the parents of the subject child, establishes that Amandeep is under 21 years of age,[FN16] that he

last saw his mother when he was 12 years old and living in his native India, that he has not seen

his mother since he was 12 years old, that his mother has provided him with no guidance or

support and she has effectively abandoned him. Additionally, Amandeep's father at the very least

encouraged him to leave his apartment, knowing that had Amandeep recently arrived from India,

he entered the United States illegally, no visa having been issued to him, he is not fluent in

English (he testified through an official Punjabi interpreter at the hearing), and he has no means

of providing for himself as he is not legally able to work in the United States. Moreover,

Amandeep testified that he has had no contact with his father, Malkit S., since he left his father's

apartment over two years ago. Thus, the evidence in the record establishes that Amandeep has

been physically, financially and emotionally abandoned by his father.

After leaving the apartment of his father, Amandeep relied on the kindness of his

acquaintances, the "Singh" brothers, for six or seven months, and when he could no longer reside

there, he took up residence with his "uncle"Jaspal S., with the apparent approval of the leaders of

the Gurdwara where they both worship. Jaspal S. has taken Amandeep into his home and treated

him as a member of his own family, thereby providing Amandeep with the guidance, stability

and care which his own parents are apparently unable or unwilling to provide to him.

Accordingly, based upon the evidence in this record, the Court is compelled to conclude

that Amandeep's best interests are served by the appointment of Jaspal S. as his guardian in

accordance with Family Court Act §661.


With respect to the motion filed by Amandeep S. for "special" or specific findings in

accordance with 8 USC §1101 (a) (27) (J) which would permit him to file an application for

with USCIS for adjustment of his status, the Court grants the motion and enters the requested

findings for the reasons set forth herein.

"In 1990, Congress enacted the SIJ statute to open a path for abused, neglected, and

abandoned undocumented minors to become lawful permanent residents" (Leslie H. v. Superior

Court, 224 CalApp4th 340, 343, 168 CalRptr3d 729, 732 [Ct App 2014]; see, Pub L 101-649,

104 US Stat 4978 [Nov. 29, 1990]). "SIJS is a form of immigration relief that affords

undocumented children a pathway to lawful permanent residency and citizenship" (Marisol N.H.,

115 AD3d at 188; see also, Sing W.C., 83 AD3d at 86; Matter of Nirmal S. v. Rajinder K., 101

AD3d 1130, 1131 [2012]; Yeboah v. U.S. Department of Justice, 345 F3d 216, 221 [3rd Cir

2003]; In re Y.M., 207 CalApp4th 892, 915, 144 CalRprt3d 54, 67-68 [Ct App 2012]; In re

J.J.X.C., 318 GaApp 420, 424, 734 SE2d 120, 123 [Ct App 2012]; E.C.D. v. P.D.R.D., 114 So3d

33, 35 [Ala Civ App 2012]; In re Erick M., 284 Neb 340, 341, 820 NW2d 639, 641 [Sup Ct

2012]; Eddie E. v. Superior Court, 223 CalApp4th 622, 626, 167 CalRptr3d 435, 438 [Ct App


By providing "a gateway for undocumented children who have been abused, neglected,

or abandoned to obtain lawful permanent residency in the United States" (Matter of Marcelina

M.-G. v. Israel S., 112 AD3d 100, 101-102 [2013]; see also, Alamgir A., 81 AD3d at 939; Matter

of Mohamed B., 83 AD3d 829, 831 [2011]; Hei Ting C., 109 AD3d at 101-102; Note,

Unaccompanied Should Not Mean Unprotected: The Inadequacies of Relief for Unaccompanied

Immigrant Minors, 25 Geo Immigr L J 883, 889 [2011]), Congress has expressed an "intent to

assist a limited group of abused children to remain safely in the country with a means to apply for

[legal permanent resident] status" (Garcia v. Holder, 659 F3d 1261, 1271 [9th Cir 2011]; see

also, Erick M., 284 Neb at 341; Sing W.C., 83 AD3d at 86; In re Y.M., 207 CalApp4th at 915,

144 CalRptr3d at 72).

The law was amended in 1997 (Pub L 105-119, 111 US Stat 2440, 2460) to address

perceived abuses of the SIJS process (see, Yeboah, 345 F3d at 221-222; Marcelina M.-G., 112

AD3d at 107-108; H.S.P. v. J.K., 435 NJSuper 147, 166, 87 A3d 255, 266 [App Div 2014]),

which need not be detailed here.[FN17] In 2008 the William Wilberforce Trafficking Victims

Protection Reauthorization Act or "TVPRA" (Pub L 110-457, 122 US Stat 5044 [Dec. 23,

2008]), enacted significant changes in the law and it "expanded the definition of who qualifies

as a special immigrant juvenile' enabling more children to qualify for the status" (Hei Ting C.,

109 AD3d at 103 [emphasis added]; see also, Marcelina M.-G., 112 AD3d at 108; Leslie H., 224

CalApp4th at 349, 168 CalRptr3d at 737; Erick M., 284 Neb at 346, 820 NW2d at 645 [TVPRA

expanded the pool of eligible juvenile aliens]).

Most significantly, the TVPRA of 2008 expanded SIJS eligibility "to include those

immigrant children who had been placed in the custody of an individual or entity appointed by

a state or juvenile court [and] Congress also removed the requirement that the immigrant child

had to be deemed eligible for long-term foster care due to abuse, neglect, or abandonment, and

replaced it with a requirement that the juvenile court find that reunification with 1 or both of the

[child's] parents is not viable due to abuse, neglect, abandonment, or similar basis found under

State law" (Marcelina M.-G., 112 AD3d at 108; see also, Hei Ting C., 109 AD3d at 104; Karen

C., 111 AD3d at 623; Gabriel H.M., 116 AD3d at 856-857; Matter of Mario S., 38 Misc 3d 444,

449 [2012]; Eddie E., 223 CalApp4th at 627-628, 167 CalRptr3d at 439; Leslie H., 224

CalApp4th at 349, 168 CalRptr3d at 736).


In creating SIJS as "an alternative to deportation" (Yeboah, 345 F3d at 221) Congress

clearly acted with a "protective purpose" (Sing W.C., 83 AD3d at 90) in order to assist "the often

desperate immigrant children who are seeking refuge" (Sobie, Practice Commentaries,

McKinney's Cons Laws of NY, Book 29A, Fam Ct Act §661 at 98 [West 2009]), from

"maltreatment in their [own] families" (Hei Ting C., 109 AD3d at 104; see also, In re J.J.X.C.,

318 GaApp at 424, 734 SE2d at 123).

SIJS was enacted to protect those children who had been mistreated or abandoned by their

parent or parents by allowing "a limited group of abused children to remain safely in the [United

States] with a means to apply for LPR status" (Garcia, 659 F3d at 1271). SIJS is a special

provision in the immigration statute that permits a discretionary adjustment of status for the

"narrow class of juvenile aliens who must meet heightened eligibility requirements to apply to be

classified as a Special Immigrant Juvenile" (Garcia, 659 F3d at 1270). Nothing suggests that

SIJS was intended to provide an alternate means of immigration for children under the age of 21,

or that the SIJS has a purpose other than "the protection of those abused, neglected, or abandoned

juveniles whose compelled repatriation would place them in danger from a parent who abused,

neglected, or abandoned them" (H.S..P., 435 NJSuper at 170, 87 A3d at 268).[FN18]

In order to ensure that the SIJS provisions are being utilized for their intended purpose-

providing undocumented alien children with relief from parental abuse, neglect or abandonment-

and to prevent SIJS from being used as a device to obtain lawful permanent residence in the

United States (see, Erick M., 284 Neb at 347, 820 NW2d at 645; In re J.J.X.C., 318 GaApp at

424, 734 SE2d at 123; Yeboah, 345 F3d at 224-225; H.S.P., 435 NJSuper at 168-169, 87 A3d at

267-268), the statute requires that prior to seeking an adjustment of status from USCIS, juveniles

must obtain specific findings from a state juvenile court which must accompany the adjustment


These "special findings" must determine that the child is under 21 years of age, that he or

she is unmarried, and dependent on a juvenile court located in the United States or legally

committed to, or placed under the custody of, and agency or department of a State, or an

individual or entity appointed by a State of juvenile court located in the United States, and

further, that reunification with "1 or both" of the child's parents is not viable due to parental

abuse, neglect, abandonment, or a similar basis under state law. Lastly, the state court must find

that it would not be in the child's best interests to be returned to his or her home country (8 USC

§1101 [a] [27] [J]; Hei Ting C., 109 AD3d at 103-104; Matter of Karen C., 111 AD3d 622, 623

[2013]; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620 [2013]; Matter of Kamaljit

S. v. Jasvinder K., 114 AD3d 949, 949-950 [2014]; Matter of Gabriel H.M., 116 AD3d 855, 856-

857 [2014]).


The procedural protocol for SIJS "employs a unique hybrid procedure that directs the

collaboration of state and federal systems, recognizing that juvenile courts have particularized

training and expertise in the area of child welfare and abuse,' which places them in the best

position to make determinations on the best interests of the child and potential for family

reunification" (Hei Ting C., 109 AD3d at 104 [citation omitted]; see also, Gao v. Jenifer, 185

F3d 548, 555 [6th Cir 1999]; B.F. v. Superior Court, 207 CalApp4th 621, 627, 143 CalRptr3d

730, 734 [Ct App 2012]; Eddie E., 223 CalApp4th at 626, 167 CalRptr3d at 438; Erick M., 284

Neb at 341, 820 NW2d at 641-642; In re J.L.E.O., 2011 WL 664642 at *1 [Tex Ct App 2011];

Marcelina M.-G., 112 AD3d at 107; Marisol N.H., 115 AD3d at 188).

Applications for an adjustment of status as a special immigrant juvenile are ultimately

decided by the USCIS, but the established procedural protocol makes clear that the federal

agency is relying upon the special findings and best interests determinations of state courts (Gao,

185 F3d at 555; In re Juvenile 2002-098, 148 NH 743, 748, 813 A2d 1197, 1201 [Sup Ct 2002]).

While the reliance upon state juvenile courts is based upon arguably valid assumptions

concerning the special expertise of juvenile courts in matters touching upon the welfare of

children (Hei Ting C., 109 AD3d at 104; J.J.X.C., 318 GaApp at 425, 734 SE2d at 124; In re

Y.M., 207 CalApp4th at 908, 144 CalRptr3d at 66; Mario S., 38 Misc 3d at 451),[FN19] these courts

have limited resources at their disposal with which to obtain information concerning a child's

family history and his or her present circumstances. Juvenile courts must often rely upon a report

prepared by a child welfare agency having no particular interest in the outcome of the case,

especially where the juvenile is presently in the care of an appropriate parent or guardian or is

over 18 years of age and beyond the scope of state child protection statutes under which the

juvenile's parents may be civilly charged with abuse or neglect of the child (Fam. Ct. Act §1012

[e], [f]; Sing W.C., 83 AD3d at 88-93).

Ultimately, the ability of a juvenile court to make sound factual determinations depends

upon the intensiveness of the hearing conducted, but this case in which the hearing occurred

over two days, and reported SIJS cases suggest, court proceedings involving SIJS children are

often cursory and minimally adversarial. Where the proceedings are unopposed, as was the case

here, and where persons having intimate knowledge about the child and his or her family history

and circumstances cannot be located, are out of the country, or otherwise unavailable to testify, a

juvenile court can do little more than mechanically rubber stamp findings of fact and conclusions

of law based upon the petitioner's self-serving evidence.

While an application for special findings may be denied for procedural irregularity or for

clear factual insufficiency (e.g., Hei Ting C., 109 AD3d at 108; Nirmal S., 101 AD3d at 1131),

a judge is neither an advocate nor an inquisitor and judges must always remain impartial

(Republican Party of Minnesota v. White, 536 US 765, 775-776 [2002]; Matter of Watson, 100

NY2d 290, 302 [2002]). Notably, even where a court believes that there is a basis to deny an

application for the issuance of special findings, judges may be reluctant to do given that appellate

courts are empowered to substitute judgment and issue the findings on behalf of the juvenile

(see, Antowa McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793,

795-796 [2010]; Alamgir A., 81 AD3d at 937-938; Matter of Emma M., 74 AD3d 968, 970

[2010]; Jisun L., 75 AD3d at 511-512 [2010]; Matter of Mohamed B., 83 AD3d 829, 831-832

[2011]; Maura A.R.-R., 114 AD3d at 688-689; Kamaljit S., 114 AD3d at 949-950; Gabriel H.M.,

116 AD3d at 857; Matter of Saul A.F.H. v. Ivan L.M., ____ AD3d ____, 2014 NY Slip Op

04486; Matter of Cristal M.R.M., ____ AD3d ___, 2014 NY Slip Op 04496; Leslie H., 224

CalApp4th at 351, 168 CalRptr3d at 737).


Current news reports indicate that parents have been encouraged to dispatch their young

on perilous journeys to the United States in the company of paid smugglers who are part of

organized criminal enterprises. The children arrive in the United States with the hope that they

will be not be deported and that they will be granted sanctuary in the form of legal permission to

remain permanently.

Although SIJS was enacted to protect children who have been abused, neglected, or

abandoned, it may perversely expose those children to maltreatment. The smuggling of children

across international borders is inimical to their safety and well-being. Smuggled "[c]hildren

embarking on the journey to the United States face considerable risks, not only from exposure to

the elements and the dangers of riding atop trains, but also from gangs, smugglers, and police,

who frequently rob, extort, brutally attack, rape, and even sometimes kill them, and who may

also attempt to force them into trafficking or gangs" (Note, Unaccompanied Should Not Mean

Unprotected: The Inadequacies of Relief for Unaccompanied Minors, 25 Geo Immigr L J at


Thus, an immigration status created to protect undocumented children who have been

maltreated or abused by their parents or guardians, may be unintentionally exposing some of

these children to further maltreatment because of the dangers and physical deprivations

associated with human smuggling. Further, the permanent immigration benefits which flow to a

child who obtains SIJ status may have the cobra effect of increasing the number of children who

are illegally smuggled into the United States by highly structured criminal organizations.

As the evidence in this case establishes, Amandeep was sent off on a treacherous six to

seven month journey around the world during which he crossed oceans and multiple continents

in the company of strangers who were paid to smuggle him safely from India to his father in New

York City. During his lengthy journey from India to New York, Amandeep traveled with people

he did not know and who did not speak his native language. Amandeep testified that he had

almost no money with him and one can only conclude that his trip, including food and lodging,

such as it was, had been paid for in advance by his family.

Had Amandeep fallen ill during the journey or had his smugglers run into immigration

of law enforcement authorities during the journey, there is no telling what his fate might have

been. Luckily for Amandeep his smugglers successfully transported him from his village in India

to a new life in New York. Amandeep's story is not unique. The goal of lawful permanent

residence combined with the profit to be gained from human smuggling more than likely ensures

that the SIJS juveniles who will appear on court dockets in the near future have already begun

their perilous journeys to the United States.

Based upon the evidence adduced at the hearing, Amandeep's motion for special findings

is granted. Short form order incorporating findings issued.

This constitutes the decision and opinion of the Court.

E N T E R:




Judge of the Family Court

Dated: Jamaica, New York

June 19, 2014


Footnote 1:Surrogate's Court Procedure Act §1707 (2) was amended in 2006 to permit the appointment of a guardian for a person between the ages of 18 and 21 provided that the child consents to such appointment (Matter of Vanessa D., 51 AD3d 790, 791 [2008]), and Family Court Act §661 (a) was similarly amended in 2008 "in response to the federal law and regulations creating special immigrant juvenile status and making it available to immigrants under the age of 21" (Sing W.C., at 87).

Footnote 2:The guardianship provisions of the Family Court Act are surprisingly brief. As Family Court is granted concurrent jurisdiction with the Surrogates Courts to hear proceedings "concerning . . . guardianship of the person as set forth in part four of article six of this act and article seventeen of the surrogate's court procedure act" (Fam. Ct. Act §115 [c]; see also, NY Const, art VI, §13 [b] [7]; Fam. Ct. Act §§115 [c]; 661), the provisions of the Surrogate's Court Procedure Act apply except to the extent that they may conflict with a specific provision of the Family Court Act (Matter of Maura A.R.-R., 114 AD3d 687, 688 [2014]).

Footnote 3:Because both petitions seek identical relief and involve the identical parties, the petitions

for all purposes into a single docket (Civil Practice Law and Rules §602 [a]).

Footnote 4:In a guardianship proceeding the Family Court is authorized to request that the Depart- ment of Probation or an authorized agency "interview such persons and obtain such data as will aid the court in exercising its power"to appoint a guardian for a minor (Fam. Ct. Act §662; 22 NYCRR§205.56). The term "authorized agency" has been construed to include a local Department of Social Services (Sing W.C., 83 AD3d at 93-94; see also, Social Services Law §371 [10] [b]).

Footnote 5:These facts were corroborated by reports provided directly by the Division of Criminal

Justice Services ("DCJS") and the Statewide Central Register of Child Abuse and Maltreatment (see, Surrogate's Court Procedure Act §1706 [2]). The DCJS report indicates that Jaspal S. was convicted of a misdemeanor under the Vehicle and Traffic Law (VTL §1192 [2]), was granted a Conditional Discharge and sentenced to a fine of $600 or five days' incarceration. His license was also revoked for a period of time.

Footnote 6:A Gurdwara or "Sikh temple" is a not-for-profit religious institution (see, Matter of Singh v. Baba Makhan Shah Lobana Sikh Center, Inc., 115 AD3d 962 [2014]). A Gurdwara is led by an elected or a designated Management Committee and a Board of Trustees, from which a president is designated (see, Matter of Baba Makhan Shah Lobana Sikh Center, Inc. v. Singh, 115 AD3d 948, 949 [2014]; Shri Guru Ravidas Sabha of New York, Inc. v. Paul, 40 Misc 3d 1237[A], 2013 NY Slip Op 51326[U]).

Footnote 7:It seems somewhat unusual, but not impossible, that a 17 year old young man would spend time associating with an unrelated chid of 13. Amandeep appears to be his stated age and he appears to suffer from no developmental disabilities, but his relationship with Jaspal S.'s eldest son was not thoroughly explained, even when questions were posed by the Court.

Footnote 8:The endorsements on the copy of Gagandeep's Indian passport confirm his dates of


Footnote 9:A review of the Family Court's records reflects that Swaran S. has filed a petition seeking to be appointed as the guardian of his great nephew named Amandeep S. The petition for the case docketed as G-5874/14, which was filed on April 1, 2014, states that Swaran S. resides at xxx-xx 132nd Street, Richmond Hill, that Amandeep S. was born in 1994, that the child's parents are Jasbir S. and Balwinder S., who allegedly reside in Jamrary, Haryana, India. The petition states that Gagandeep resides in the home. The Court's cursory review unexpectedly uncovered that between September 19, 2012 and April 1, 2014, a total of ten (10) guardianship petitions have been filed with the Family Court, Queens County, seeking guardianship of a child named "Amandeep S.". Most of the subjects of these guardianship petitions are 19 or 20 year old males who appear to be adherents of the Sikh faith and natives of Punjab State, India.

Footnote 10:Human smuggling is distinguishable from trafficking in illegal aliens. "Generally, human smuggling involves the illegal movements of migrants across international borders. Human trafficking is normally defined as smuggling plus coercion or exploitation" (Report,

Transatlantic Workshop on Human Smuggling, 15 Geo Immigration Law J 167 [2000]; see also,

United States v. Moran-Vazquez, 547 FedAppx 793, 795-796 [7th Cir 2013]). "All human smuggling involves (1) the exchange of money, (2) a voluntary journey, and (3) a facilitator that arranges an illegal passage across an international border" (Note, Removing the Venom from the Snakehead: Japan's Newest Attempt to Control Chinese Human Smuggling, 31 Vand J of Transnat'l L 1041, 1042 [1998]; see also, Developments in the Law— Jobs and Borders, The

Trafficking Victims Protection Act, 118 Harv L Rev 2180, 2184-2185 [2005] [smuggling involves autonomous decision to buy illegal entry into foreign country]).

Footnote 11:One need not engage in extensive research to learn that a staggering number of children from all parts of the world enter the United States illegally each year. Reuters reports that "[t]he

Obama administration estimates that about 60,000 unaccompanied minors'- children under 18-

will enter the United States illegally this year [and] [i]t projects that number to grow to nearly

130,000 next year" (Richard Cowan, Obama Creates Task Force on Children Who Enter U.S. Illegally, www.reuters.com/article/2014/06/02/us-usa-immigration-children-idUSKBN0ED213, June 2, 2014 [last accessed June 5, 2014]). According to The New York Times "a record 47,017

unaccompanied children were apprehended at the southwest United States border" between October 1, 2013 and June 2014 (Frances Robles, Wave of Minors on their Own Rush to Cross

Southwest Border, New York Times, June 4, 2014 at A1, col. 1).

Footnote 12:Queens County has long had a large Sikh population situated in and around the Richmond Hill and Ozone Park neighborhoods (Neha Singh Gohil, Politics, Spoken in Punjabi, New York Times, October 15, 2006,www.nytimes.com/2006/10/15/nyregion/thecity/15sikh.html [last accessed June 6, 2014]).

Footnote 13:A photograph of the pile of mail reportedly taken outside of Malkit's apartment shows that letters from Citibank, Primerica Bank, American Express, North Shore LIJ Medical Center, and the Internal Revenue Service were unclaimed outside of the apartment.

Footnote 14:Although Amandeep claims that his father has abandoned him, it is noted that Malkit S. is listed as his parent on his pupil registration on file at John Adams High School. The school lists Amandeep's address as xxx-xx 124th Street, South Ozone Park, New York, but no

connection between Amandeep and that address has been provided to the Court during these proceedings.

Footnote 15:"Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366 [2008];

see also, Matter of H.M. v. E.T., 14 NY3d 521, 526 [2010]). There is no independent legal proceeding to obtain special findings for purposes of SIJS (see, NY Const, art VI, §13; Fam Ct Act §115; Matter of Tung W.C. v. Sau Y.C., 34 Misc 3d 869, 783 [2011], aff'd sub nom. Matter of Hei Ting C., 109 AD3d 100, 102 [2013]). Instead, the Court's jurisdiction to make the requested findings must be anchored to another qualifying proceeding within the jurisdiction of the Family Court (Matter of Antowa McD., 50 AD3d 507 [2008]; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795-796 [2010]; Matter of Emma M., 74 AD3d 968, 970 [2010]; Hei Ting C., 100 AD3d at 106-107; In re C.G.H., 75 A3d 166, 174 [DC App 2013]; B.F. v. Superior Court, 207

CalApp4th 621, 629, 143 CalRptr3d 730, 735-736 [Ct App 2012]).

Footnote 16:"Previously, Family Court Act §661 was deemed applicable only to individuals under 18 years of age. Pursuant to a 2008 amendment, however, Family Court Act §661 (a) now

explicitly authorizes the appointment of a guardian for a person who is less than twenty-one

years old who consents to the appointment of a guardian or continuation of a guardian after the

age of eighteen'" (Trudy-Ann W., 73 AD3d at 794 [internal citation omitted]; see also, Sing W.C., 83 AD3d at 87; cf., Matter of Vanessa D., 51 AD3d 790 [2008] [amendment of SCPA not applicable to guardianship proceedings in Family Court]). It has been observed that the 2008 amendment to the statute was intended, in part, to conform to the SIJS provisions of federal law (Sing W.C., 83 AD3d at 90-91; Sobie, Practice Commentaries, McKinney's Laws of NY, Book 29A, 2014 Cum Ann Pocket Part, Fam Ct Act §661, at 99-100 [West 2014]).

Footnote 17:One writer attributes the 1997 amendments to the SIJ statute to former Senator Domenici of New Mexico "who believed he had identified a few cases of abuse of the SIJ statute

in his state" (Note, In the Best Interest of the INS: An Analysis of the 1997 Amendment to the Special Immigrant Juvenile Law, 27 J Legislation 441, 448 [2001] [hereinafter "Note, 1997 SIJS Amendment"]; see also, Yeboah, 345 F3d at 221 [referencing Senator Domenici statement]).

Footnote 18:"Even some immigration advocates concede that occasional instances of abuse of the SIJ provision occurred. These situations often took the form of a family setting up what appeared to be abusive or neglectful situations for the purpose of enabling their child to obtain SIJ status and a green card" (Note, 1997 SIJ Amendment, 27 J Legislation at 448).

Footnote 19:As one writer has commented, "the INS has no experience in determining the best interests of children and . . . federal authority in family law matters is quite limited" (Note, 1997

SIJS Amendment, 27 J Legislation at 442).