N.Y. Family Court Appoints Guardian and Renders Special Immigrant Juvenile Status Findings for Transgender Honduran Girl

Judge Vargas, an esteemed judicial member of LeGaL provides a compelling and horrifying account of the life story of Monica C.U..

New York Family Court Judge Javier E. Vargas issued an opinion on May 17, 2018, explaining the rulings he had made on April 20 in response to petitions filed on behalf of a transgender girl from Honduras who is currently being held by U.S. Immigration & Customs Enforcement (ICE) in the transgender section of a detention center in New Mexico. Judge Vargas provides a compelling and horrifying account of the life story of Monica C.U., who is being represented by Hector R. Rojas of Catholic Migration Services, Brooklyn, N.Y.

This is the story of a person identified male at birth who asserted a female gender identity from “an early age,” earning the enmity and scorn of her parents in Honduras. She was “abandoned” in a Honduran orphanage at age 3, but was “rescued by her Paternal Grandmother, who took her in, nurtured and provided for her schooling throughout her childhood.” However, her parents continued to “abuse and mistreat Monica with brutal beatings, which once resulted in broken ribs requiring medical attention, as well as by inflicting cigarette burns and scars.” She was also repeatedly raped and sexually abused by an older brother, who continued the assaults even after Monica complained to her Grandmother. “On one occasion, Monica’s Father saw her dressed in a manner consistent with her gender identity, and he beat her up to the point that she was taken to the hospital and the Honduran child protective authorities were called and investigated, yet nothing was done civilly or criminally against the Father to subvert the abuse.” Actually, the Father continued to abuse Monica. “Everything came to a head upon the passing of her Grandmother in 2013, when Monica was 16 years of age and left all her little property to her.” Monica fled Honduras in 2014 and crossed the U.S. border illegally, was seized by law enforcement and returned to Honduras. She fled again in 2017, but “was captured” by ICE after entering the U.S. illegally and was sent to the detention center in New Mexico. At that point, Catholic Migration Services took over her defense. CMS has her personal property, “consisting of her backpack with clothing, a purse, a wallet, medication and other items.”

CMS filed petitions on her behalf on April 17, 2018, “just days before her 21st birthday.” This is significant because once she turned 21 she would no longer be eligible for consideration for Special Immigrant Juvenile Status (SIJS), under which she might find refuge in the U.S. based on a series of factors that, given her story, she would clearly meet. The petitions seek appointment as her guardian of Alisha W., described as “her friend and mentor” by Judge Vargas, and that the court to make the factual findings necessary to support SIJS status.

In order to do this, of course, the court must have jurisdiction over her, even though she is currently “residing” in the detention center in New Mexico. The court found that jurisdiction could be premised on the presence in Brooklyn of Monica’s property, such as it is, through a liberal reading of the Family Court Act and the Surrogate’s Court Procedure Act. “Courts have long recognized a Surrogate’s jurisdiction to appoint a guardian of a minor who resides outside the state, but has property in the county in question,” wrote Judge Vargas. “Applying these principles to the matter at bar, the Court finds that the Family Court has the same jurisdiction over Monica’s Guardianship proceeding as the Surrogate’s Court would. It is undisputed that Monica is currently detained by USCIS in New Mexico and, as such, is a ‘non-domiciliary of the state.’ But, as the statute provides, Monica ‘has property situated in [the] county,’ consisting of her personal property located in Kings County. It does not consist of real estate property, substantial assets or any significant monetary property, but merely Monica’s own personal property items, including her backpack, clothing, purse, wallet and medicines. Nevertheless, those items are Monica’s only ‘property’ in the world! Unlike the Civil and Supreme Court which have monetary minimums for their jurisdiction, the Family Court is the real ‘People’s Court’ which welcomes all parties with open arms regardless of their gender, sexual orientation, gender identity, race, national origin, financial or citizenship status. That Monica’s property is de minimus should not stymie her jurisdictional right to pursue her Guardianship proceeding here.” After all, in such cases “the infant’s best interests are paramount.” Thus, Judge Vargas found that the court has subject matter jurisdiction and appointed Alisha W. as guardian.

Next, the court made the SIJS findings. Judge Vargas explained that under federal law, “Congress provided a pathway for abused, neglected or abandoned non-citizen children to obtain Lawful Permanent Residence in the U.S. through SIJS, if they are under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. It must also be establish that reunification with one or both parents is not viable due to their prior misconduct, and that it would not be in the child’s best interests to be returned to his or her previous country of nationality or country of last habitual residence.” Although the ultimate status determination is to be made by USCIS and the Department of Homeland Security, the court’s factual findings may carry weight with those agencies.

In this case, the findings were easy to make. Based on Monica’s story, it was clear that reunification with her parents would be a terrible idea and not viable in any event, as the parents could not even be located and had previously abandoned her and provided nothing towards her support when she was living with her Grandmother, that Honduras is no place to send this young transgender girl, and that she should be allowed to stay in the United States. “Monica’s harrowing life cries for her to be permitted to remain, restart and enjoy her new life on these shores of New York City,” wrote Judge Vargas, quoting from the famous verses by Emma Lazarus “emblazoned on our Statue of Liberty.” The court thus granted Monica’s motion for SIJS findings in her favor.

As she is still detained in New Mexico, it is now up to her representatives from Catholic Migration Services to initiate proceedings with the Department of Homeland to secure her release to her Brooklyn Guardian, Alisha W., who was not separately represented by counsel in this proceeding.

Judge Vargas as an esteemed judicial member of LeGaL.

By Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here!