LINCOLN, Neb. – The American Civil Liberties Union (ACLU) of Nebraska and the Center for Immigrant and Refugee Advancement (CIRA) added their support recently to an appeal of a lower court decision that denied a Nebraska man’s request to be appointed guardian of his teenage brother — a decision that could jeopardize the younger brother’s ability to seek legal permanent residence in the U.S.
The organizations have filed friend-of-the-court briefs with the Nebraska Supreme Court in support of an appeal asking the justices to reverse the Hall County Court decision.
The briefs address the standard a judge erroneously applied in rejecting the guardianship request, and the effect it has on the teenager’s right to seek immigration relief. Judge Arthur Wetzel denied the guardianship at issue because he wrongfully concluded that a guardianship was not the “least restrictive” alternative for providing care to the minor. The briefs clarify that, under state law, the least restrictive standard only applies in guardianships based on incapacitation, not guardianships over a minor child. The ACLU of Nebraska and CIRA argue that Nebraska law requires that guardianship decisions for minors be guided by a different standard: the best interest standard.
The outcome of the appeal could determine whether the teenager at the center of the case is able to apply for Special Immigrant Juvenile Status (SIJS), a form of immigration relief available to young people who are abused, neglected or abandoned by one or both of their parents. To apply, a young person must be under 21 and placed in the custody of a court or a court-appointed agency, department or individual. They must also be the subject of state court findings of abuse, abandonment or neglect, along with findings that parental reunification is not viable and that it is not in the youth’s best interests to be returned to their home country. The ACLU of Nebraska and CIRA were strong supporters of the Nebraska bill - now law - which clarified and affirmed a child’s right to seek these findings in Nebraska.
The brothers seeking guardianship have been living on their own in the U.S. for six years. They began seeking guardianship earlier this year, and the younger brother has since turned 19. The briefs urge the Nebraska Supreme Court to still consider and grant their appeal, arguing that a decision that the case is now moot would be inconsistent with the legislative intent behind the Nebraska law and would deprive the teenager of the opportunity to apply for the protected immigration status for which he is otherwise eligible.
Roxana Cortés-Mills, CIRA associate legal director, made this statement:
“Nebraska law clearly outlines distinct standards for guardianship cases involving children as opposed to those concerning incapacitated individuals,” Cortés-Mills said. “In our Brief, we urge the Nebraska Supreme Court to uphold the letter and intent of this law, ensuring that the standard for children in need of guardianship is not raised arbitrarily, which would harm access to justice. A just decision will ensure that unaccompanied children are held only to the standard set forth by Nebraska law, safeguarding equitable treatment and consistency in our legal system.”
Dylan Severino, ACLU of Nebraska legal fellow, made this statement:
“This is both an immigrants’ rights issue and a clear-cut matter of family law,” Severino said. “The best interests of the teen should have guided the judge’s guardianship. In this case, the wrong standard was considered, and a Nebraskan who has taken care of his younger brother for years was denied guardian status as a result. Beyond that, there is now no path in Nebraska for the teen to seek the findings he needs to apply for SIJS. State senators tried to prevent situations like this when they passed the factual findings law. We hope the Nebraska Supreme Court steps in to make things right.”
The appeal is currently under consideration. Opinions are typically released on Friday mornings, although justices can issue a decision at any time.