In re L.F.O.C.

• Decision Date: 04 May 2017
• Docket Number: No. 334870.,334870.
• Citation: 901 N.W.2d 906,319 Mich.App. 476
• Parties: IN RE L.F.O.C., Minor.
• Court: Court of Appeal of Michigan — District of US

319 Mich.App. 476

901 N.W.2d 906

IN RE L.F.O.C., Minor.

No. 334870.

Court of Appeals of Michigan.

Submitted April 5, 2017, at Detroit

Decided May 4, 2017, 9:00 a.m.

Michigan Immigrant Rights Center (by Darren L. Miller) for AEO and JAS.

Amici Curiae:

Elinor Jordan for Samaritas and Bethany Christian Services of Michigan.

Before: Sawyer, P.J., and Saad and Riordan, JJ.

Per Curiam.

Petitioners, JAS and AEO, appeal as of right an order denying their motion for special findings on the issue of "special immigrant juvenile" (SIJ) status for the minor child, LFOC, in this stepparent adoption case. We reverse the trial court's determination that it lacked authority to make those findings and remand for consideration of petitioners' motion on the merits.

LFOC is an undocumented juvenile immigrant from Honduras. AEO, the mother of LFOC, is married to JAS; they live in Michigan. LFOC's biological father is CCO. JAS and AEO filed a petition for stepparent adoption of LFOC by JAS. Following a hearing, the trial court terminated CCO's parental rights to LFOC, granted the request for a stepparent adoption, and placed LFOC in petitioners' home. Petitioners then filed a motion for special findings on the issue of LFOC's SIJ status. In particular, petitioners asked the trial court to make the following findings:

1. That [LFOC] has been declared dependent upon a juvenile court;

2. That reunification with one or both of [LFOC's] parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

3. That it is not in [LFOC's] best interest to be returned to his country of origin; and

4. Any other relief this Court deems just and proper.

Petitioners sought these findings so that LFOC could then submit a request to the United States Citizenship and Immigration Services (USCIS), a division of the United States Department of Homeland Security (USDHS), for SIJ status pursuant to 8 U.S.C. 1101(a)(27)(J). The trial court denied the request, stating, in relevant part, that it lacked authority to issue the requested findings.

On appeal, petitioners argue that the trial court erred by concluding that it lacked authority to make the requested factual findings pertinent to the issue of SIJ status. We agree.

"Questions of law, including statutory interpretation, are reviewed de novo on appeal."

Gorman v. American Honda Motor Co., Inc. , 302 Mich.App. 113, 116, 839 N.W.2d 223 (2013). This standard of review applies to the interpretation of federal statutes and regulations:

Statutory interpretation is a question of law we review de novo, as is the interpretation of administrative regulations. This standard applies to the interpretation of federal statutes and regulations, though reasonable administrative interpretations of regulations operating as statutory gap-fillers are entitled to deference. Clear and unambiguous statutory language is given its plain meaning, and is enforced as written. [ In re Petition of Attorney General for Investigative Subpoenas , 274 Mich.App. 696, 698, 736 N.W.2d 594 (2007) (quotation marks and citations omitted).]

Jurisdictional issues are also reviewed de novo. Pontiac Food Ctr. v. Dep't of Community Health , 282 Mich.App. 331, 335, 766 N.W.2d 42 (2009). A trial court's factual findings are reviewed for clear error. See MCR 2.613(C) ; In re A.L.Z. , 247 Mich.App. 264, 271, 636 N.W.2d 284 (2001). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake was made." In re A.L.Z. , 247 Mich.App. at 271–272, 636 N.W.2d 284.

At the hearing on the motion for special findings on the issue of SIJ status, the trial court initially noted that "classification based upon alienage is reserved solely for the federal government, so I'm not supposed to pay attention to that." The trial court went on to recognize that "[h]ere the request I have asks me to do something that's at least slightly different from that." The trial court then described the findings it was being asked to make and concluded that it had difficulty making those findings with what had been presented to the court. The trial court entered an order finding that the criteria for SIJ status had not been satisfied. At the hearing on petitioners' motion for reconsideration, the trial court again stated that only the federal government may classify on the basis of alienage and stated that the court lacked the "power" or "authority" to make the requested decisions. Given that the trial court stated that it lacked authority to make findings on the issue of SIJ status, we agree with petitioners that it is necessary to address whether a trial court has such authority.

"The Immigration and Nationality Act of 1990 (Act) first established SIJ status as a path for resident immigrant children to achieve permanent residency in the United States." In re Estate of Nina L. , 2015 Ill. App. (1st) 152223, ¶ 15,397 Ill.Dec. 279, 41 N.E.3d 930 (2015).¹ 8 U.S.C. 1101(a)(27)(J) defines a "special immigrant" to include:

an immigrant who is 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, except that—

(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter[.]

"Juvenile court means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles." 8 C.F.R. 204.11(a) (2017). Following the issuance of special, or predicate, findings by a juvenile court, a juvenile may file a petition with the USCIS for SIJ classification. See 8 C.F.R. 204.11(b) (2017) ; Recinos v. Escobar , 473 Mass. 734, 735, 46 N.E.3d 60 (2016) ; In re Diaz v. Munoz , 118 A.D.3d 989, 989 N.Y.S.2d 52 (2014). 8 C.F.R. 204.11(c) (2017) provides:

Eligibility. An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court;

(4) Has been deemed eligible by the juvenile court for long-term foster care;

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed on Form I–360 before June 1, 1994.

Also, as explained in 8 C.F.R. 204.11(a) :

Eligible for long-term foster care means that a determination has been made by the juvenile court that family reunification is no longer a viable option. A child who is eligible for long-term foster care will normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in [a] guardianship situation after having been found dependent upon a juvenile court in the United States will continue to be considered to be eligible for long-term foster care.

As stated in Estate of Nina L. , 2015 Ill.App. 152223, ¶ 16:

The requirement of eligibility for long-term foster care was modified in 2008 and, as presently formulated, the statute now requires that a state or juvenile court place the minor in the custody of either (i) a state agency or department or (ii) an individual or entity appointed by the court and that the dependency determination be due to a finding that reunification with one or both parents is not viable due to abuse, neglect or abandonment. Separately, the court must also find that return to the minor's country of nationality is not in the minor's best interest. [Citations omitted.]

See also H.S.P. v. J.K. , 223 N.J. 196, 209, 121 A.3d 849 (2015) (noting that the 2008 amendment of the federal statute "liberalized the requirements for SIJ status by eliminating the requirement that the child be eligible for long-term foster care.").

Also, the "USCIS, the agency charged with administering the Act, including applications for SIJ status, has taken the position that abuse,...