Happy ending for boy caught in legal web
PAWTUCKET, R.I. — Marco Moniz, 13, will have an amazing story to tell his children one day on how he came to live in the United States.
The tale, spanning several years, involves the Portuguese and U.S. legal systems, a couple of tenacious relatives, a few individuals who went the extra mile and two determined lawyers.
After Marco was placed under the care of the Portuguese Department of Family and Protective Services in the Azores, his paternal grandmother and an aunt, who live in Pawtucket, R.I., made their mission to bring him to America and give him a stable, loving home.
Caught in an international legal web for several years, the boy was finally granted permanent resident status to live in the United States on Aug. 21, 2013.
“This is great… I am happy. It means that I can stay here. I was afraid I would have to go back,” said Marco with a smile, while showing off his brand new green card.
For his aunt, Maria Moniz, and grandmother, Hirondina Moniz, the new document is not only a source of joy but also reassurance.
“We feel relief… it’s been a very long journey,” said Maria Moniz.
Marco was born to two local legal permanent U.S. residents who were deported to Portugal and developed a relationship there. Since neither one or the other was able to overcome old habits related to substance abuse, Marco was eventually put under the care of Child Protective Services. His parents also lived in different group homes.
“Every year, during my vacation, I would go visit my son and grandson,” said Marco’s grandmother. “Eventually, the group would let me take my grandson out for a little while… but what I really wanted was to bring him here.”
So, the two relatives filed for guardianship with the Portuguese courts about five years ago.
“I had to go before a judge,” said the grandmother. “I had to provide all my records, everything about my house, my job, and how many children I had.”
In April of 2010, Marco was allowed to come to the United States, accompanied by a social worker. He stayed with his grandmother and aunt for about a week.
“She would check on us every day,” said Hirondina Moniz. “She would visit and observe us.”
A few months later, the Portuguese courts awarded permanent guardianship to his aunt.
“Perhaps, because I was a U.S. citizen. I don’t know,” said Maria Moniz.
Sadly, Marco’s father passed away around that time.
“It was my son’s dying wish for me to bring his son to America,” said Hirondina Moniz crying.
The boy arrived in the United States in December of 2010, entering the country under the auspices of the Visa Waiver Program, which allows citizens of specific countries, including Portugal, to travel to the United States for up to 90 days.
His grandmother and aunt had successfully won an important battle, but in reality their fight was just beginning.
Although the Portuguese Courts required him to live with his U.S. relatives, that judicial decision had no validity in this country.
“No one thought about what would be the correct way to bring him to legally live here, according to U.S. immigration laws,” said Attorney Nina Froes, who ended up representing Marco’s case along with Immigration Attorney Val Ribeiro of Fall River.
“Portugal had the good intentions, and they were looking at the child’s interests… but what do you do with an order from another country?,” asked Atty. Ribeiro. “We had to look at it and see how we were going to make this work. There were two countries to abide by the law.”
With a very complex case at hand, the two lawyers had little time to strategize as the 90th day was fast approaching.
Atty. Froes, who is licensed in Rhode Island, took over the aspects dealing with the Probate and Family Court, while Atty. Ribeiro handled the immigration component.
“Family court is one thing, but immigration court is another. And they don’t always meet in the middle,” said Atty. Froes.
One option they had was to defend Marco’s case using the Hague Convention, an international agreement that safeguards inter-country child custody cases.
“Had we used the Hague Convention, this case could have taken years. All the while, this boy would not have the benefits he has now,” said Atty. Ribeiro.
The attorneys also had to consider if it would be in Marco’s best interest to return to Portugal while his case was being decided in the U.S. courts.
“We had to sit back and analyze the case, and that’s where it gets very tricky. Had they [his relatives] gone to another organization, like a notario, this could have gone really, really wrong. It took us a lot of time because we were trying something so complex and so new,” said Atty. Ribeiro.
It was decided that Marco would stay here and attend school.
The attorneys then determined that the first step would be to attempt to have Portugal’s guardianship decision recognized by the state of Rhode Island, making the argument that Marco had been neglected, abandoned or abused.
“We can’t send a Portuguese decision to Immigration. You have to have a judge here recognize it and then do a whole evidentiary hearing about the abandonment by his parents,” said Atty. Froes.
The attorneys were assisted by the Portuguese Consulate in Providence, whose staff provided English translation for Portuguese legal documents and acted as a liaison with entities in Portugal.
When Froes took Marco’s case to the R.I. Probate Court, as she would generally do under “normal” circumstances, she was instructed by the judge to go to Family Court instead.
To state her case at the Family Court, she resorted to the Uniform Child Custody Jurisdiction And Enforcement Act, which is generally used to determine which state has proper jurisdiction to make an “initial determination” of child custody.
“It was very unusual and from what the judge indicated this was the first time that this particular treaty [UCCJEN] had been used for an immigration based case of a juvenile in Rhode Island,” said Atty. Froes.
Once the attorneys had the needed certified documents from the R.I. Court system, they filed the proper documentation for Marco to apply for Special Immigrant Juvenile Status (SIJS) with the U.S. Citizenship and Immigration Services. Undocumented children involved in adoption or guardianship proceedings who have been abandoned, abused or neglected may be able to obtain this special status based on that and apply to become a Lawful Permanent Resident of the United States.
“Because it was done the right way, it [his application] was approved and it was fast,” said Atty. Ribeiro.
The attorneys believe Marco’s case set a precedent.
“These sort of cross-boarder custody issues are just popping up more and more frequently and they are extremely difficult to deal with,” said Atty. Froes. “This might make it a lot easier in the future, for example, in a case involving a divorce or the custody of a child.”
“This was definitely a learning experience for me,” added Atty. Ribeiro. “We hope that others can read about this and learn from it, so that if they are faced by a situation like this, they know how to approach it.”
Marco is currently a 7th grader at the Samuel Slater Junior High School in Pawtucket and he adjusting very well to his new country. In five years, he will be eligible to apply for U.S. citizenship.
“Now, my son can finally rest in peace,” concluded Hirondina Moniz with tears in her eyes.