People v. Isr. O. (In re Isr. O.)

• Decision Date: 16 January 2015
• Docket Number: A142080
• Citation: 233 Cal.App.4th 279,182 Cal.Rptr.3d 548
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE ISRAEL O., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Israel O., Defendant and Appellant.

233 Cal.App.4th 279

182 Cal.Rptr.3d 548

IN RE ISRAEL O., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent

v.Israel O., Defendant and Appellant.

A142080

Court of Appeal, First District, Division 5, California.

Filed January 16, 2015

Brendon D. Woods, Public Defender, for Alameda County and Raha Jorjani, Immigration Defense Attorney, for Defendant and Appellant.

Paul Hastings and C. Yewleh Chee, San Francisco, for Legal Services for Children and Immigrant Legal Resource Center as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Eric D. Share and Jeffrey M. Bryant, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

BRUINIERS, J.

Israel O. was born in Mexico and is not a United States citizen. He was adjudged a ward of the juvenile court as a result of admitting a misdemeanor violation of Penal Code section 496, subdivision (a) . Israel requested that the court make the factual findings that would qualify him for special immigrant juvenile (SIJ) status under federal law (8 U.S.C. § 1101(a)(27)(J) ; hereafter section 1101(a)(27)(J) or the SIJ statute). Such findings are a prerequisite for filing an SIJ status application with the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (see 8 C.F.R. § 204.11(d) (2014) ), which would allow Israel an opportunity to pursue regularization of his immigration status in the United States. The juvenile court declined to make the requested SIJ status findings. The sole issue on appeal is whether the juvenile court erred in its interpretation of the SIJ statute.¹ We find that it did and remand for further proceedings.

I. Background

A. The SIJ Statute

“The Immigration Act of 1990, codified at [title 8 United States Code] section 1101 , sets forth a procedure for classification of certain aliens as special immigrants who have been declared dependent ‘on a juvenile court.’ ” (B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 626 [143 Cal.Rptr.3d 730] .) “Congress created this classification to protect abused, neglected, and abandoned unaccompanied minors through a process that allows them to become permanent legal residents. [Citation.] ... A minor who obtains SIJ status may become a naturalized United States citizen after five years. [Citation.]” (In re Y.M. (2012) 207 Cal.App.4th 892, 915 [144 Cal.Rptr.3d 54] ; see 8 U.S.C. § 1427(a) .)

In 1997, as a result of a concern “that visiting students were abusing the SIJ process [Congress] amended the SIJ statute to ‘limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children....’ [Citation.]” (Perez–Olano v. Gonzalez (C.D.Cal.2008) 248 F.R.D. 248, 265, fn. 10 .) That amendment required a state court determine whether a minor seeking SIJ status was (1) eligible for long-term foster care due to abuse, neglect, or abandonment and (2) a dependent of a juvenile court or committed or placed with a state agency. (See Eddie E. v. Superior Court (2013) 223 Cal.App.4th 622, 626–627 [167 Cal.Rptr.3d 435] .) At issue here is an amendment to the SIJ statute under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) (Pub.L. No. 110–457, § 235(d)(1) (Dec. 23, 2008) 122 Stat. 5044, 5079). TVPRA replaced the requirement of long-term foster care eligibility with a requirement that reunification with “1 or both” parents not be viable due to abuse, neglect, abandonment. TVPRA also made minors who had been placed in the custody of an individual or entity appointed by a state court eligible for SIJ status. (Eddie E., at p. 627 , 167 Cal.Rptr.3d 435.)² “ ‘As a result of the removal of the foster care requirement, state courts may now make SIJ [status] findings whenever jurisdiction can be exercised under state law to make care and custody determinations, and are no longer confined to child protection proceedings alone.’ [Citation.]” (Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340, 349 [168 Cal.Rptr.3d 729] (Leslie H. ).)

“ ‘While the federal government has exclusive jurisdiction with respect to immigration [citations] ..., state juvenile courts play an important and indispensable role in the SIJ application process.’ [Citation.] Under section 1101(a)(27)(J) and its implementing regulations codified at 8 Code of Federal Regulations part 204.11 ..., ‘state juvenile courts are charged with making a preliminary determination of the child's dependency and his or her best interests, which is a prerequisite to an application to adjust status as a special immigrant juvenile. “The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child's best interests” [citations].’ [Citation.]” (Leslie H., supra, 224 Cal.App.4th at p. 348 , 168 Cal.Rptr.3d 729, quoting In re Mario S. (N.Y.Fam.Ct.2012) 38 Misc.3d 444, (Mario S. ).)

The predicate state trial court findings now required under the SIJ statute, as revised by TVPRA, are that (1) the minor is “dependent” upon a juvenile court or “committed to, or placed under the custody of,” a state entity or other court-appointed individual or entity; (2) the minor cannot be reunified with one or both parents “due to abuse, neglect, abandonment, or a similar basis found under State law,” and (3) it is not in the minor's “best interest” to be “returned” to his or her country of origin. (§ 1101(a)(27)(J) ; see 8 C.F.R. § 204.11(c) (2014) .) A superior court with jurisdiction to make child custody determinations under California law “has the authority and duty to make [SIJ status] findings” if the evidence before it supports those findings. (B.F. v. Superior Court, supra, 207 Cal.App.4th at p. 630 , 143 Cal.Rptr.3d 730 ; Code Civ. Proc., § 155, subds. (a), (b)(1) .)³ After a state court makes SIJ status findings, the minor must include that order in his or her SIJ petition to the Department of Homeland Security. (See 8 U.S.C. § 1101(a)(27)(J)(iii) ; 8 C.F.R. § 204.11(d) (2014) .)

B. Procedural History

1. In the Trial Court

Pursuant to a plea agreement, Israel admitted a misdemeanor violation of receiving stolen property (Pen. Code, § 496, subd. (a) ). The underlying facts are not relevant to the narrow issue of law before us.⁴ At the February 14, 2014 disposition hearing, the court declared wardship and returned Israel to his mother's home, subject to conditions of probation. At the time of disposition, Israel requested that the court make SIJ status findings. In a declaration submitted with his request, Israel stated that he was born in Mexico in 1999, came to the United States in 2005 with his older brother, and lived in Alameda County with his mother. He also asserted that he had no memory of his father, who continued to live in Mexico; he had only very limited telephone contact with his father; his family had not received any physical or emotional support from his father; and his care in Mexico before coming to the United States had been provided by a grandmother who passed away in January 2014. Israel said he would have no place to live if he were returned to Mexico and his father would not provide for him. The court requested additional briefing, focused on questions not at issue here.

At a hearing on May 12, 2014, the trial court considered the briefing submitted and the argument of counsel.⁵ The court found that Israel's father, who remained in Mexico, had abandoned him. However, relying largely on a decision of the Nebraska Supreme Court (In re Erick M. (2012) 284 Neb. 340, (Erick M. )), the trial court interpreted the “1 or both” language of section 1101(a)(27)(J) as prohibiting SIJ status findings if return to a custodial parent remained feasible.

2. On Appeal

Israel and amici curiae argue that section 1101(a)(27)(J) provides for SIJ status findings if reunification with either parent is not viable due to abuse, neglect or abandonment. The parties agree that no reported California decision has yet addressed this issue.

The People initially argued in support of the trial court's statutory interpretation, contending that section 1101(a)(27)(J) was ambiguous (as the Neb. Supreme Court found in Erick M. ), and that the legislative history failed to support Israel's contention that inability to reunify with either parent would trigger SIJ status eligibility. However, by letter to this court, dated December 22, 2014, the People withdrew their argument, citing, among other things, materials posted on the USCIS Web site stating that residence in the United States with a nonabusive parent would not disqualify a minor from SIJ status consideration. The People now take the position that it would be inappropriate for “a state attorney general to urge an interpretation of federal immigration policy in a manner that would contradict with information provided by the federal agency tasked with enforcing such policy.”

In response to the People's letter, Israel moved on December 23, 2014, for summary reversal. Although this court has the power to entertain a motion for reversal in an appropriate case (People v. Browning (1978) 79 Cal.App.3d 320, 323–324 [145 Cal.Rptr. 45] ), we did not find this to be such a case and denied the motion. As discussed post, the trial court's interpretation of the SIJ statute was not patently unreasonable in the first instance and summary reversal would have abdicated our responsibility to provide de novo analysis of what appears to be a potentially significant and recurring issue of first impression.⁶

II. Discussion

We deal only with a question of proper interpretation of the current SIJ statute, specifically the meaning of the statute's “1 or both” language. Where the question presented is one of statutory interpretation on undisputed facts, our review is de novo. (Shirey v. Los Angeles County Civil Service...