Articles Posted in Nebraska Supreme Court

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The Supreme Court held that the county court erred when it declined to make special factual findings for Juvenile to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. 1101(a)(27)(J) on the grounds that it was not a “juvenile court” for purposes of the statute. Juvenile’s grandfather (Grandfather) sought to be appointed as Juvenile’s guardian and requested that the county court make special findings of fact contemplated in section 1101(a)(27)(J) to potentially become eligible for SIJ status. The county court appointed Grandfather as Juvenile’s legal guardian but declined to make the requested special findings of fact that Juvenile could use in his immigration petition based on its conclusion that it did not constitute a “juvenile court” for SIJ findings purposes. The Supreme Court reversed, holding (1) a county court with a jurisdictional basis under Neb. Rev. Stat. 43-1238(a) and which has made a child custody determination, such as appointing a guardian, has authority to make factual findings consistent with 8 U.S.C. 1101(a)(27)(J)(i) and (ii); and (2) the county court erred when it made a custody determination under section 43-1238(a) but then refused to make special findings under 8 U.S.C. 1101(a)(27)(J)(i). View "In re Guardianship of Luis J." on Justia Law

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The Supreme Court held that the county court erred when it concluded that the appointed guardian (Guardian) of her juvenile nephew (Juvenile) had not satisfied 8 U.S.C. 1101(a)(27)(J) and therefore denied Guardian’s motion to make special factual findings that are necessary to apply for SIJ status under the statute. In denying Guardian’s request to make special findings to be used in immigration proceedings, the county court stated that Juvenile was “not dependent on this court” and that Guardian had not satisfied the dependency or custody component of section 1101(a)(27)(J). During the pendency of this appeal, the Nebraska Legislature amended Neb. Rev. Stat. 43-1238(b) to clarify that courts with jurisdiction over initial child custody determinations under section 43-1238(a) also have jurisdiction and authority to make special findings of fact similar to the findings of fact contemplated by section 1101(a)(27)(J). The Supreme Court reversed and remanded the case, holding that because the county court made a custody determination under section 43-1238(a), it erred when it concluded that it had not made a custody determination for purposes of section 1101(a)(27)(J)(i). View "In re Guardianship of Carlos D." on Justia Law

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Defendant moved to vacate his conviction for one count of assault in the first degree and withdraw his plea of no contest to the charge, arguing that the district court erred by failing to properly advise him of the immigration consequences of conviction before accepting his plea. The district court overruled Defendant’s motion to withdraw his plea of no contest, concluding that that Defendant was advised of an immigration consequence of his plea during the plea colloquy. The Supreme Court affirmed, holding (1) under State v. Yos-Chiguil, 772 N.W.2d 574 (Neb. 2009), Defendant proved that instead of reciting the advisement set out in Neb. Rev. Stat. 29-1819.02(1), the district court improvised an advisement, and therefore, Defendant established the first Yos-Chiguil factor; but (2) Defendant failed to establish the second Yos-Chiguil factor entitling him to relief, that he was facing an immigration consequence that was not included in the advisement actually given. Therefore, the district court did not abuse its discretion in overruling Defendant’s motion to withdraw his plea. View "State v. Gach" on Justia Law