In re Dany G.

• Decision Date: 06 July 2015
• Docket Number: No. 1096, Sept. Term, 2014.,1096, Sept. Term, 2014.
• Citation: 223 Md.App. 707,117 A.3d 650
• Parties: In re DANY G.
• Court: Court of Special Appeals of Maryland

223 Md.App. 707

117 A.3d 650

In re DANY G.

No. 1096, Sept. Term, 2014.

Court of Special Appeals of Maryland.

July 6, 2015.

Michelle J. Moodispaw, Gambrills, MD, for Appellant.

No brief submitted by appellees.

Panel: KRAUSER, C.J., WRIGHT and FRIEDMAN, JJ.

Opinion

FRIEDMAN, J.

This case raises the question of what standards a circuit court should use in determining whether a child has demonstrated eligibility for Special Immigrant Juvenile status. The Appellant, Charlene M., raises two questions for our review:

(1) Did the trial court err in determining that the child had not been neglected under Maryland law.

(2) Did the trial court err in declining to find it would be in the child's best interest not to return to Guatemala.

We conclude that the circuit court applied the wrong legal standard when refusing to make a finding that reunification is not viable due to neglect. We also conclude that the circuit court abused its discretion by not applying the correct legal standard as to neglectful conditions. We, therefore, vacate and remand.¹

FACTUAL AND PROCEDURAL HISTORY

Charlene M. (“Charlene”) was appointed guardian of her cousin, Dany G. (“Dany”), a native of Guatemala, on November 20, 2013, by the Circuit Court for Montgomery County. Charlene also filed an unopposed motion seeking certain specific findings that would make Dany eligible for the federal government to award him Special Immigrant Juvenile status. On June 26, 2014, the circuit court held a hearing and received testimony in support of these specific findings. Charlene and Dany were the only two witnesses who testified at this hearing.

Charlene testified that “starting from the age of 12 [Dany] was no longer able to study because he had to work to support his parents.” Dany also testified that he left school at age 12 because he had to help his parents who were sick and that he never returned to school while in Guatemala. When he quit school, Dany testified that he went to work in the fields, working with herbicides. Dany explained that this “was very risky work because a lot of people got sick over that.” Dany testified that he would work from 6:00 in the morning to 1:00 or 2:00 in the afternoon, Monday through Saturday, and that the money he earned went to help his parents who were disabled and have not worked since Dany was 12 years old.

Dany testified that he came to the United States at the age of 17 because he “had to help [his] parents, because [he] didn't have a future [in Guatemala], and ... to have a better future.” Dany's father took out a loan to help Dany make the trip to the United States. Once Dany was detained by U.S. immigration authorities, his father took out a second loan to help Dany travel from a detention center in Arizona to Maryland.

Dany testified that he attends Albert Einstein High School in Kensington, Maryland. At the time of the hearing, he had just finished ninth grade and was scheduled to begin 10th grade. Dany testified that he liked attending school and was “learning quite a bit.” Charlene testified that her mother and brother currently provide financial support for Dany, and that Dany's parents do not send any monetary support for him. Charlene testified that if Dany was forced to return to Guatemala “he would lose the opportunity to study, as he's doing now.” She testified to her belief that if he went back “he would go back and work to help support his parents and siblings.” Dany echoed the prediction that if he were forced to return to Guatemala he would be unable “to make something of [himself] at school. And [he] would have to go back to work” due to his parent's continuing and advancing illness.

Despite this testimony, the trial court determined that it could not find that Dany was abused, abandoned, or neglected under Maryland law. The trial court also refused to find that it was in Dany's best interest to not return to Guatemala. This appeal followed.

DISCUSSION

I. Special Immigrant Juvenile Status

Special Immigrant Juvenile (“SIJ”) status was created by the United States Congress to provide undocumented children who lack immigration status with a defense against deportation proceedings.

Some children present in the United States without legal immigration status may be in need of humanitarian protection because they have been abused, abandoned, or neglected by a parent. Special Immigrant Juvenile (SIJ) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status (“LPR” status or a “Green Card”).

“Special Immigrant Juvenile Status: Information for Juvenile Courts,” U.S. Citizen and Immigration Services (“USCIS”), (hereinafter “Info. for Juvenile Courts”) available at http://perma.cc/W5W3–MGGC (last visited March 9, 2015); see also Perez–Olano v. Gonzalez, 248 F.R.D. 248, 252 (2008) (noting that SIJ provisions create a method for abused, neglected, and abandoned children to become lawful permanent residents). Children eligible for SIJ status may be in the United States with only one parent, or they may have fled to the United States without either parent.

Obtaining SIJ status requires a specific finding from a state juvenile court. Thus, “[t]he [Immigration and Nationality Act of 1990] creates a special circumstance where a State juvenile court is charged with addressing an issue relevant only to federal immigration law.” Simbaina v. Bunay, 221 Md.App. 440, 449, 109 A.3d 191 (2015) (internal citations omitted).

[State] juvenile courts issue orders that help determine a child's eligibility for SIJ status. A child cannot apply to USCIS for SIJ status without an order from a juvenile court. However, juvenile judges should note that providing an order does not grant SIJ status or a “Green Card”—only [the U.S. Customs and Immigration Services] can grant or deny these benefits. The role of the court is to make factual findings based on state law about the abuse, neglect or abandonment; family reunification; and best interest of the child.

Info. for Juvenile Courts.

The process for applying for SIJ status consists of several steps. First, there must be a filing in state court, which is often in the form of a guardianship or custody complaint, see Simbaina, 221 Md.App. at 453–54, 109 A.3d 191, but which can also come through filings in orphans, probate, and delinquency courts, among others. Info. for Juvenile Courts. In conjunction with the state court proceedings there must be a request for specific findings. These findings can be requested at the same time as the initial guardianship or custody complaint, or, as in Dany's case, the motion for findings can come separately, after the guardianship or custody has been granted.

Once the state court has made the specific findings (which we will explain in detail below), application is made to USCIS for SIJ status. If SIJ status is granted by USCIS, there is a third step of applying to adjust status to Legal Permanent Resident (green card application). As the last two steps are solely under the jurisdiction of USCIS, our analysis focuses on the first step, the filing in the state court and the related request for specific findings.

Federal law defines a “Special Immigrant” as:

(J) an immigrant who is present in the United States—(i) who has been declared dependent on a 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 ...

8 U.S.C.A. § 1101(a)(27)(J) (emphasis added). The state juvenile court referenced in 8 U.S.C. § 1101(a)(27)(J) is defined in 8 C.F.R. § 204.11(a) as “a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles.” Which courts qualify as “juvenile courts” varies from state to state. Simbaina, 221 Md.App. at 453, 109 A.3d 191.

The state juvenile court must make specific findings of fact regarding the child's eligibility for SIJ status. While the state juvenile cases often arise through guardianship or custody proceedings, “[t]he federal statute places no restriction on what is an appropriate proceeding or how these SIJ factual findings should be made.” Id. at 455, 109 A.3d 191. It is important to remember that the juvenile court is not granting SIJ status. Info. for Juvenile Courts. Rather, the juvenile court is making factual findings that the child meets certain eligibility requirements. Id. The required findings are:

(1) The juvenile is under the age of 21 and is unmarried; 8 C.F.R. § 204.11(c)(1)-(2) ;(2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court; 8 C.F.R. § 204.11(c)(3) ;

(3) The “juvenile court” has jurisdiction under state law to make judicial determinations about the custody and care of juveniles; 8 U.S.C.A. § 1101(a)(27)(J)(i) ; 8 C.F.R. § 204.11(a), (c) [amended by the Trafficking Victims Protection Reauthorization Act (“TVPRA”) 2008];

(4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; 8 U.S.C.A. § 1101(a)(27)(J) [amended by TVPRA 2008]; and

(5) It is not in the “best interest” of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C.A. § 1101(a)(27)(J)(ii) ; 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by TVPRA 2008].

8 C.F.R. § 204.11(a), (c) & (d) ; 8 U.S.C.A. § 1101(a)(27)(J) [amended by TVPRA 2008].

These findings of fact by the state juvenile court are issued in a “predicate order.” The predicate order must be included with the application for SIJ status submitted to USCIS. Marcelina...