Dep't of Revenue v. Lopez (In re Penate), SJC-12138

• Citation: 76 N.E.3d 960,477 Mass. 268
• Decision Date: 06 January 2017
• Docket Number: SJC-12138,SJC-12184
• Parties: GUARDIANSHIP OF Yosselin Guadalupe PENATE. Department of Revenue v. Manuel Morales Lopez& another.
• Court: United States State Supreme Judicial Court of Massachusetts

477 Mass. 268
76 N.E.3d 960

GUARDIANSHIP OF Yosselin Guadalupe PENATE.

Department of Revenue¹
v.
Manuel Morales Lopez& another.²

SJC-12138
SJC-12184

Supreme Judicial Court of Massachusetts, Suffolk..

January 6, 2017
June 9, 2017

Valquiria C. Ribeiro for Marvin H. Penate.

Jennifer B. Luz ( Joshua M. Daniels also present) for E.G.

Elizabeth Badger for Kids in Need of Defense & others, amici curiae.

The following submitted briefs for amici curiae: Benjamin C. Mizer , Principal Deputy Assistant Attorney General, William C. Peachey, Erez Reuveni, & Joseph A. Darrow , of the District of Columbia, for the United States.

Mary K. Ryan & Meghan S. Stubblebine for American Immigration Lawyers Association, New England Chapter, & others.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

HINES, J.

477 Mass. 269

In these appeals brought by E.G., an eight year old undocumented immigrant from Guatemala, and Yosselin Guadalupe Penate, a nineteen year old undocumented immigrant from El Salvador, we consider for the second time³ the statutorily mandated role of the Probate and Family Court (and the Juvenile Court) in a juvenile's application for special immigrant juvenile

477 Mass. 270

status (SIJ) under 8 U.S.C. § 1101(a)(27)(J) (2012). Congress established the SIJ status classification "to create a pathway to citizenship for immigrant children," Recinos v. Escobar , 473 Mass. 734, 737, 46 N.E.3d 60 (2016), who have been abused, neglected, or abandoned by one or both parents. The issue presented in these appeals is whether a judge may decline to make special findings based on an assessment of the likely merits of the movant's application for SIJ status or on

76 N.E.3d 963

the movant's motivation for seeking SIJ status. The judge implicitly determined that neither child would be entitled to SIJ status based on her interpretation of the statute and declined to make special findings. This was error.

We now clarify the role of the judge with respect to a juvenile's motion for special findings necessary to apply for SIJ status under 8 U.S.C. § 1101(a)(27)(J). Because immigration status is a matter solely within Federal jurisdiction, the merits of a juvenile's application for SIJ status will be determined in immigration proceedings in accordance with Federal law. See Recinos , 473 Mass. at 738, 46 N.E.3d 60. Under the statute, the judge's sole function is to make the special findings, and to do so in a fashion that does not limit Federal authorities in determining the merits of the juvenile's application for SIJ status. Therefore, we conclude that on a motion for special findings, the judge shall make such findings without regard to the ultimate merits or purpose of the juvenile's application. To avoid any unnecessary entanglement in interpreting whether SIJ status requires a showing of neglect or abandonment by one or both parents, we also conclude that the judge shall make special findings only as to the parent named in the motion.⁴

Background .⁵ 1. Yosselin Penate . Yosselin⁶ was born in 1997 in El Salvador to Marleny D. Penate-Velasquez. The father abandoned Marleny before Yosselin was born, and is not listed on her

477 Mass. 271

birth certificate. Yosselin has never had any contact with her father and does not know his identity. Until her teenage years, Yosselin lived in a small house with her mother, grandfather, uncle, three brothers, and two cousins. Of the adults living in the household, only Yosselin's uncle was employed. Having his own children to provide for, the uncle's income was rarely sufficient to cover food and clothing for Yosselin and her siblings.

Because her mother was unemployed, Yosselin did not have access to medical treatment. At age fourteen, Yosselin took a job to help with family expenses. While working, Yosselin continued to attend school, but her job responsibilities frequently prevented her from completing her homework. Although she added to the family's income, Yosselin's living conditions remained poor. In 2013, when Yosselin was fifteen years of age, she began receiving death threats from a local gang. The gang demanded that she either join the gang or be killed. Because Marleny was unable to properly provide financial resources for Yosselin or protect her from the gang, Marleny determined that it would be best for the family if Yosselin left for the United States to live with her uncle, Marleny's brother, Marvin H. Penate, who lives in Massachusetts. In accordance with her mother's wishes, Yosselin traveled to the United States and has lived with Marvin in

76 N.E.3d 964

Revere since that time. Since her arrival in the United States, Yosselin has had access to proper medical care, is enrolled in school, and has adequate food and clothing. Although Yosselin remains in contact with her mother in El Salvador, she wishes to continue living with Marvin in the United States.

In September, 2015, when Yosselin was seventeen years of age, Marvin filed a petition in the Probate and Family Court seeking guardianship of her, and she then filed a motion seeking the requisite special findings for SIJ status. In her motion for special findings, Yosselin asserted that she was dependent on the Probate and Family Court, that reunification with her mother was not viable due to neglect, and that return to El Salvador was not in her best interests.⁷ Following a short hearing, the Probate and Family Court judge issued a written decision, dismissing the guardianship petition and declining to make special findings as to the first and third prongs. With respect to the second prong, the judge stated, "The sole problem here is that [Yosselin] must find a legal way to re-enter this country if in fact she is deported. This [c]ourt

477 Mass. 272

does not find that ‘reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law’ 8 U.S.C. § 1101(a)(27)(J )." Marvin appealed from this decision, and we transferred the case to this court on our own motion.

2. E.G . E.G. was born in Guatemala in 2008 to Norma Cecilia Mauricio Guzman. After finding out that Guzman was pregnant, E.G.'s father, Manual Morales Lopez, abandoned Guzman, and he moved to the United States before E.G. was born. Following his move to the United States, Lopez made no effort to contact or take care of E.G. and offered Guzman negligible financial support. After E.G.'s birth, Lopez stopped providing financial support altogether. Because Lopez ignored Guzman's efforts to inform him of E.G.'s birth and had no relationship with E.G., Guzman did not list Lopez on E.G.'s birth certificate.

During the early years of E.G.'s life, she and her half-brother were raised by their mother in Guatemala. As a single mother, Guzman was unable to earn enough money to support her two children. She left for the United States without her children when E.G. was three years old and her half-brother was ten years old. Once in the United States, Guzman remained in contact with her children and attempted unsuccessfully to secure reliable care from members of E.G.'s extended family and a woman whom Guzman paid for child care services. Neither proved reliable. Consequently, E.G. was looked after by her half-brother or, when he was at school, left completely alone. Although initially E.G. attended kindergarten in Guatemala, after three months she had to stop going because the walk to school was far and too dangerous for E.G. to walk alone. On one occasion, E.G. suffered a head injury and was hospitalized after falling into a large hole. On another occasion, she was attacked by a stray dog when she was out on the street alone.

In 2014, with no possibility of a safe or secure life in Guatemala, E.G. and her brother left Guatemala for the United States. The two children were captured while attempting to cross into the United States from Mexico. Following their capture in Texas, the Office of Refugee Resettlement contacted Guzman, who by then lived in Massachusetts, and released the children to her custody. Since that time,

76 N.E.3d 965

both children have lived with their mother and other members of their family in Massachusetts. Unlike in Guatemala, in the United States, E.G. lives with responsible adults who care for her, and she attends school.

After moving to the United States, Lopez made no effort to contact E.G. E.G. met Lopez for the first time when he appeared

477 Mass. 273

for a court-ordered paternity test, which the Department of Revenue had sought on E.G.'s behalf. Since that time, Lopez has not been in contact with E.G. and has provided little meaningful financial support. Although Lopez is aware that E.G. now lives in Massachusetts, the State where he also resides, he has expressed no interest in establishing a relationship with her.

Appearing as an interested party to the paternity suit, E.G. filed a motion...