Canales v. Torres Orellana

• Decision Date: 20 June 2017
• Docket Number: Record No. 1073-16-4
• Citation: 67 Va.App. 759,800 S.E.2d 208
• Parties: Edy CANALES v. Marvin Alejandro TORRES ORELLANA
• Court: Virginia Court of Appeals

67 Va.App. 759

800 S.E.2d 208

Edy CANALES

v.Marvin Alejandro TORRES ORELLANA

Record No. 1073-16-4

Court of Appeals of Virginia, Richmond.

JUNE 20, 2017

Tanishka Cruz (Angela Ciolfi; Rebecca Wolozin; Simon Sandoval Moshenburg; Laura Jacobson; Legal Aid Justice Center, Falls Church; L & L Immigration Law, PLLC, on briefs), for appellant.

William H. Hurd (Laura Anne Kuykendall ; Troutman Sanders LLP, on brief), Richmond, for appellee.

Amici Curiae: Trevor S. Cox, Deputy Solicitor General (Mark R. Herring, Attorney General; Stuart A. Raphael, Solicitor General; Matthew R. McGuire, Assistant Solicitor General, on brief); Kids in Need of Defense (Jessica Leal ; Kevin P. Broughel, on brief); Detained Children's Program, Capital Area Immigrants' Rights Coalition (Mari Dorn–Lopez; Elizabeth Nehrling Sotiriou; Kevin P. Broughel, on briefs); Virginia Bar Association Commission on the Needs of Children (Robert M. Rolfe ; Geri M. Greenspan ; Hunton & Williams LLP; Margaret Ivey Bacigal, on brief), Richmond, for appellant.

Present: Chief Judge Huff, Judges Humphreys, Beales, Alston, Chafin, Decker, O'Brien, Russell, AtLee and Malveaux

UPON A HEARING EN BANC

OPINION BY JUDGE ROBERT J. HUMPHREYS

Edy Canales ("Canales") appeals the May 31, 2016 judgment of the Circuit Court of Loudoun County (the "circuit court") holding that it did not have jurisdiction to make the predicate findings of fact required for her child ("M.C.") to acquire Special Immigrant status for federal immigration purposes. Specifically, Canales' two assignments of error assert that the circuit court erred in finding that it lacked subject matter jurisdiction to make the specific findings of fact required by federal law to receive special immigrant status and further erred in declining to make the specific findings of fact she requested for that purpose.

I. BACKGROUND

A. Statutory Background

Federal immigration law provides that an immigrant child living in the United States may become a lawful permanent resident by obtaining Special Immigrant Juvenile ("SIJ")¹ status, which was intended to provide protection to abandoned, abused, and neglected non-native children through permanent residency status in the United States. 8 U.S.C. § 1101(a)(27)(J).

The Supreme Judicial Court of Massachusetts recently authored an opinion with a succinct explanation of the statutory background of the federal SIJ statute:

In 1990, Congress amended the Immigration and Nationality Act (INA) to include the SIJ classification to create a pathway to citizenship for immigrant children. Pub. L. 101–649, § 153, 101st Cong., 2d Sess. (1990). When the SIJ classification was first included, the statute required a State court to issue an order finding that (1) the child was dependent on a juvenile court and was eligible for long-term foster care, and (2) it was not in the child's best interests to return to his or her country of origin. Id. Since then, the provision of the INA concerning SIJs has been amended several times. See Matter of Marcelina M.–G. v. Israel S. , 112 A.D.3d 100, 107–108, 973 N.Y.S.2d 714 (N.Y. 2013) (Marcelina M.–G. ) (explaining various amendments to the INA concerning SIJ status). In 1997, Congress modified the definition of SIJ to include a child who was "legally committed to, or placed under the custody of, an agency or department of a State" and added the requirement that eligibility for long-term foster care be "due to abuse, neglect, or abandonment." Pub. L. 105–119, § 113, 111 Stat. 2440 (1997). In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) further amended the INA to expand eligibility for SIJ status to include immigrant children who were placed in the custody of an "individual or entity appointed by a State or juvenile court" and eliminated the requirement of long-term foster care eligibility. Pub. L. 110–457, § 235(d)(1), 122 Stat. 5044 (2008). The amendment added the requirement that the reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. Id.

Recinos v. Escobar , 473 Mass. 734, 737, 46 N.E.3d 60 (2016).

The current statutory definition of a Special Immigrant as it relates to a juvenile alien (SIJ) is as follows:

The term "special immigrant" means—...

(J) an immigrant present in the United States—

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status.

8 U.S.C. § 1101(a)(27)(J). In addition to the above statutory factors, the juvenile immigrant must also be under the age of twenty-one and unmarried. 8 C.F.R. 204.11(c). Further, pursuant to 8 C.F.R. § 204.11(d)(2), an application for SIJ status must include at least one document evidencing that a state juvenile court has made the requisite SIJ findings of fact. Thus, before a child may obtain SIJ status, a petitioner must first obtain a judgment from a state juvenile court that satisfies the criteria set out by Congress in subsection (i) of 8 U.S.C. § 1101(a)(27)(J) ; second, a determination must be made in administrative or judicial proceedings that it would not be in the child's best interests to be returned to their native country; and finally, the Secretary of Homeland Security or his designee must actually grant the status of Special Immigrant Juvenile.

B. Background of the Case

M.C. is the child of Canales and Marvin Alejandro Torres Orellana ("Father"). Canales is a native of Honduras who emigrated to the United States in 2006, leaving M.C., who was approximately two years old at the time, in the custody of Canales' mother in Honduras. On June 16, 2015, Canales petitioned the Loudoun County Juvenile and Domestic Relations District Court (the "JDR court") for sole custody of M.C., whom she had retrieved from her mother's home in Honduras, and further that the court make what are collectively and generically referred to in the pleadings and briefs of the parties and amici curiae as "SIJ findings of fact." Specifically, Canales asked the JDR court to award her sole custody of M.C. and make specific factual findings that M.C. had been "abused" and "abandoned" by Father and that it was not in M.C.'s "best interest to be returned to [Honduras,] his native country," as those terms are used in 8 U.S.C. § 1101(a)(27)(J). Because Father resides in Honduras, with his exact whereabouts unknown, he was served notice of the petition and hearing by publication; he did not appear and was unrepresented at the hearings in the lower courts.² The JDR court granted Canales sole custody of M.C., but declined to make the additional specific SIJ findings of fact she requested. Canales timely appealed to the circuit court.

At the circuit court hearing, Canales testified regarding information received from others in Honduras that Father drank heavily, had little contact with M.C., and repeatedly threatened to take M.C. from his grandmother unless the grandmother paid him money. Following the hearing, the circuit court also granted Canales sole custody of M.C., finding that Canales "has taken sole responsibility for the upbringing and care of the child." However, like the JDR court, the circuit court denied Canales' request for additional specific SIJ findings, reasoning that it did not have jurisdiction to do so. The circuit court entered two separate orders. The first, a custody order in Case No. CJ15–127 (the "custody order"); the second, an order regarding SIJ findings of fact in Case No. CJ15–128 (the "SIJ order").³ Both orders were originally drafted by counsel for Canales and submitted to the circuit court at the hearing; however, prior to entering the orders, the circuit court altered the orders to reflect both the findings the circuit court made and, just as significantly, those it declined to make.

In the custody order, the circuit court made findings based on the best interests of the child factors delineated in Code § 20–124.3. The circuit court's factual findings included that Father "has not maintained a relationship with [M.C.] nor had positive involvement with the child's life" and that "mother has taken sole responsibility for the upbringing and care of the child." The court further found that "there is no indication that [M.C.'s F]ather intends to play a role in the minor child's upbringing and care in the future, as the [F]ather [has] not been made aware of [M.C.]'s location." The circuit court noted that it was unable to make any finding as to either Canales' or Father's "willingness and ability to maintain a close and continuing relationship" with M.C. Although the custody order as submitted by Canales contained language indicating that the circuit court had made the SIJ findings sought by Canales, the circuit court crossed out those portions before entering the order.⁴ In place of the stricken language, the circuit court inserted language indicating that Father "has not been informed of the whereabouts of the minor child," and thus the circuit court "[could] make no finding" with respect to whether Father wishes to maintain a "close and continuing relationship with the child."

In the SIJ order, the circuit court found that it did "not have jurisdiction to make findings as to [SIJ] petitions[,] as such authority is not set forth in the Code of Virginia." The circuit...