Serving Absent Parents Outside the United States
Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification. In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.
In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away. Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.
The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.
Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected. In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 699 (1988).
Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible. That does not, however, allow a court to simply deem a respondent served. It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.
Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10. This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City. This process takes several months—in many cases up to a year (no, that is not a typo).
In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk. But, again, that does not relieve counsel of the duty to take reasonable steps to serve.
And therein lies the key idea: reasonable steps. [Shameless plug: Not only does Viking Advocates provide assistance in serving process, we also help counsel to demonstrate why traditional attempts to serve would be unreasonable—due to cost, lack of information, or extreme risk.]
Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:
- A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
- If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
- If no address is available, there are other options, but every case is—like every jurisdiction—different.
In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel. Above all else… do it the right way.
[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]