J.U. v. J.C.P.C.

• Decision Date: 04 January 2018
• Docket Number: No. 16–FM–1153,16–FM–1153
• Citation: 176 A.3d 136
• Parties: J.U., Appellant, v. J.C.P.C., Appellee.
• Court: D.C. Court of Appeals

176 A.3d 136

J.U., Appellant,

v.J.C.P.C., Appellee.

No. 16–FM–1153

District of Columbia Court of Appeals.

Submitted November 20, 2017

Decided January 4, 2018

Evgenia V. Sorokina was on the brief for appellant.

Before Fisher and Beckwith, Associate Judges, and Steadman, Senior Judge.

Steadman, Senior Judge:

C.J.P.U., the minor at the heart of this appeal, illegally entered this country in 2015 as an unaccompanied fourteen-year-old teenager from El Salvador to join his mother ("J.U." or "appellant"), who has been living here since 2005.¹ He seeks to remain in this country as a juvenile qualified for "special immigrant juvenile" status ("SIJ"). Among other requirements, to achieve this status a juvenile court must find that "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." 8 U.S.C. § 1101 (a)(27)(J) (2009 Supp. II). The issue before us is whether the trial court erred in refusing to make such a finding with respect to C.J.P.U.'s father ("J.C.P.C." or "appellee"), who remains in El Salvador. We agree with the mother that, on the record before us, such a finding is mandated.

I. The SIJ Status Statute²

Under the immigration laws of the United States, an immigrant juvenile, or someone acting on their behalf, may petition for SIJ status. As originally enacted in 1990, the statute required a finding that a juvenile applicant was "eligible for long-term foster care," 8 U.S.C. § 1101 (a)(27)(J) (1998 Supp. III), thus effectively limiting the status to juveniles who had no parent to care for them.

In 2008, the provision was revised and expanded and now reads as follows:

[a special immigrant juvenile is] 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[.]

8 U.S.C. § 1101 (a)(27)(J)(i)-(iii). The current law also requires the applicant be under twenty-one years of age and unmarried. See 8 C.F.R. § 204.11 (c)(1), (2).³ Notably for present purposes, "long-term foster care" was replaced with the requirement that reunification not be viable with "[one] or both" parents due to abuse, neglect, or abandonment, significantly broadening eligibility for SIJ status. Now, an SIJ applicant need not be in foster care or the child welfare system to be eligible. A finding is sufficient for SIJ status if reunification with only one parent is not viable due to abuse, neglect, or abandonment, at least where, as here, the parent in question is located in the home country to which the minor would otherwise be deported.⁴

Such an interpretation is consistent not only with our reading of the statute, but also with the legislative history and, importantly, the interpretation of the United States Citizenship and Immigration Service ("USCIS"), the agency tasked with administering SIJ status approvals. The USCIS Policy Manual notes that "USCIS interprets the TVPRA changes as a clarification that petitioners do not need to be eligible for or placed in foster care and that they may be reunified with one parent or other family members." USCIS Policy Manual , Vol. 6, Part J, Ch. 2, § D2 n.9 (current as of Aug. 23, 2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartJ-Chapter2.html. The states of New York and California have similarly interpreted the statutory language. See In re Israel O. , 233 Cal.App.4th 279, 182 Cal.Rptr.3d 548, 555 (2015) (holding that although the "one or both" language is ambiguous, the intent of the statute and USCIS's unofficial guidance makes clear that "SIJ eligible children ... may be living in this country with ... the non-abusive parent") (internal quotation marks and citation omitted) (emphasis omitted); In reMarcelina M.–G. v. Israel S. , 112 A.D.3d 100,973 N.Y.S.2d 714, 722 (2013) (finding that the "one or both" parent language "signifies that the child need not be separated from both parents to be eligible for [SIJ status]") (citation omitted).⁵

These requisite state court findings, however, are not determinative of SIJ status. Rather, once a state juvenile court makes the requisite SIJ status findings, the minor must file a Petition for Special Immigrant Status with USCIS under the Department of Homeland Security ("DHS") that includes a copy of the juvenile court's findings. In addition to the petition and requisite findings, the minor must obtain the consent of USCIS. See 8 U.S.C. § 1101 (a)(27)(iii). For the SIJ applicant to obtain USCIS's consent, USCIS must review the juvenile court order, conclude that the SIJ status request is bona fide, and approve the petition. Id. Accordingly, the ultimate decision as to a minor's SIJ status lies with the federal government, not with the juvenile court.⁶ Once SIJ status is approved, the minor can apply for legal permanent residence.

II. The Current Litigation

The case before us began when the mother filed a verified complaint for custody in the Superior Court seeking sole legal and physical custody of C.J.P.U., as well as a Motion for Special Immigrant Juvenile Status Predicate Order. In the mother's request for findings of C.J.P.U.'s SIJ status eligibility, she alleged reunification with the father was not viable because he had abandoned C.J.P.U. The father filed a Consent Answer to both the Complaint for Custody and Motion for SIJ status findings under penalty of perjury. In his answer, the father agreed with all the allegations made by the mother in her complaint and SIJ status motion. He also agreed with both the mother's and C.J.P.U.'s sworn statements in support of the SIJ status motion.

After a hearing at which both the mother and C.J.P.U. testified, the trial court granted the mother sole physical and legal custody of C.J.P.U. With respect to the request for SIJ status findings, the trial court determined that C.J.P.U. satisfied the following conditions imposed by the statute: (1) C.J.P.U. was under the age of twenty-one years and unmarried; (2) C.J.P.U. was placed, pursuant to an order of the juvenile court, in the custody of his mother when the court granted her sole legal and physical custody; and (3) it was not in C.J.P.U.'s best interest to be returned to El Salvador.⁷ The trial court, however, found C.J.P.U. failed to meet the final condition required for SIJ status eligibility: that reunification with his father was not viable due to abandonment or neglect. Challenging this conclusion, the mother brought the appeal now before us.

In addressing this finding, it is important to focus on exactly what is to be determined in the context of the case before us. It is not the abstract question whether the minor has been neglected or abandoned by the father. Rather, it is whether reunification with the father in El Salvador is "viable" due to "abandonment." It calls for a realistic look at the facts on the ground in the country of origin and a consideration of the entire history of the relationship between the minor and the parent in the foreign country.

Apart from its primary meaning of capacity for life, the word "viable," as it applies to the situation here, has been defined in various ways, but all of them carry the connotation of common-sense practical workability. See e.g. , Merriam–Webster New International Dictionary (3d ed. 2002) ("capable of being put into practice: workable); American Heritage Dictionary of the English Language (3d ed. 1992) ("capable of success or continuing effectiveness; practicable"); Random House Dictionary of the English Language (21st ed. 1987) ("practicable; workable").

In its turn, the word "abandonment" in our law is found in several definitions, depending on the context in which the determination is being made. Thus, where a petition alleges abandonment as grounds for a neglect finding, D.C. Code § 16–2316 (d)(1)(C) (2012 Repl.) provides that an inference of neglect may be drawn if the child's parent "is known but has abandoned the child in that he or she has made no reasonable effort to maintain a parental relationship with the child for a period of at least four (4) months." On the other hand, in a termination/adoption proceeding, the statute prescribes that when a parent "has abandoned the prospective adoptee and voluntarily failed to contribute to his support for a period of at least six months," his or her parental rights may be terminated without the required consent. D.C. Code § 16–304 (d) (2012 Repl.).⁸ And for purposes of uniform child-custody jurisdiction and enforcement, abandonment is defined simply as "left without provision for reasonable and necessary care or supervision." D.C. Code § 16–4601.01 (1) (2012 Repl.). Here, the concept of abandonment is being considered not to deprive a parent of custody or to terminate parental rights but rather to assess the impact of the history of the parent's past conduct on the viability, i.e. , the workability or practicability of a forced reunification of parent with minor, if the minor were to be returned to the home country.

We turn to consider the record in this appeal in light of the SIJ status statute and the above legal principles relating to the specific inquiry before us.⁹

III. "Viable Reunification" and "Abandonment"

C.J.P.U. was born on September 22, 2000, in El...