Perez v. Cuccinelli

• Decision Date: 10 February 2020
• Docket Number: No. 18-1330,18-1330
• Parties: Felipe Perez PEREZ, Plaintiff – Appellant, v. Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

949 F.3d 865

Felipe Perez PEREZ, Plaintiff – Appellant,

v.Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services, Defendant – Appellee.

No. 18-1330

United States Court of Appeals, Fourth Circuit.

Argued: September 19, 2019

Decided: February 10, 2020

ARGUED: Bradley Bruce Banias, BARNWELL WHALEY PATTERSON & HELMS, LLC, Charleston, South Carolina, for Appellant. Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Chad A. Readler, Acting Assistant Attorney General, William C. Peachey, Director, Brian Ward, Senior Litigation Counsel, Sheetul S. Wall, District Court Section, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge King wrote the majority opinion, in which Chief Judge Gregory and Judges Motz, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris joined. Judge Quattlebaum wrote a dissenting opinion, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.

KING, Circuit Judge:

In late 2013, at the age of sixteen, plaintiff Felipe Perez Perez fled his home country of Guatemala. Upon his arrival in the United States in early 2014, Felipe was apprehended by U.S. Customs and Border Protection and eventually released to his older brother, Mateo Perez Perez, who resided in North Carolina. In January 2015, Mateo sought legal custody of Felipe in a North Carolina court, alleging that Felipe had been abused, neglected, and abandoned by their biological parents. It was not until June 2015 that the court acted on Mateo’s custody petition. At that point, the court conducted an ex parte hearing, granted Mateo emergency temporary custody of Felipe, and scheduled a hearing to consider permanent custody. Shortly thereafter, Felipe turned eighteen (North Carolina’s age of majority), and the court thus cancelled the second hearing and never entered a permanent custody order.

In July 2015, Felipe applied for special immigrant juvenile ("SIJ") status with U.S. Citizenship and Immigration Services ("USCIS," or the "Agency"). SIJ status is a classification under the Immigration and Nationality Act (the "INA") that permits an immigrant to pursue lawful permanent residence and, potentially, United States citizenship. As codified at 8 U.S.C. § 1101(a)(27)(J) (the "SIJ provision"), the INA specifies that an immigrant may qualify for SIJ status if, inter alia, "a juvenile court located in the United States" has "placed [him] under the custody of" "an individual" and "reunification with 1 or both of [his] parents is not viable." See 8 U.S.C. § 1101(a)(27)(J)(i). Notwithstanding the absence of any express permanency requirement in the SIJ provision, USCIS has interpreted clause (i) to require a permanent custody order. On that basis, the Agency denied Felipe’s SIJ application in September 2015 and dismissed his administrative appeal of that denial in May 2016.

Felipe sought judicial review of the Agency’s rejection of his SIJ application, initiating these proceedings in October 2016 in the Western District of North Carolina against the Director of USCIS.¹ In March 2018, the federal district court denied Felipe’s motion to set aside the Agency’s final action and granted the summary judgment motion of USCIS. Felipe then timely noted this appeal from the judgment of the district court. Unlike that court, we conclude that the Agency’s interpretation of the SIJ provision — that clause (i) requires a permanent custody order — is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Consequently, we reverse the judgment and remand with instructions to grant Felipe’s motion to set aside the Agency’s final action denying him SIJ status.

I.

Pursuant to the SIJ provision of the INA, an SIJ 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[.]

See 8 U.S.C. § 1101(a)(27)(J). These proceedings focus on what clause (i) means in defining an SIJ as an immigrant "whom [a juvenile court located in the United States] has ... placed under the custody of[ ] ... an individual ... 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." See id. § 1101(a)(27)(J)(i). As USCIS has interpreted it, clause (i) requires a finding of the permanent non-viability of an SIJ applicant’s reunification with one or both parents and, hence, a permanent custody order.

II.

A.

On January 20, 2015, Mateo Perez Perez filed a verified complaint in the District Court of Mecklenburg County, North Carolina, seeking both temporary and permanent custody of his brother Felipe Perez Perez on the ground that Felipe had been abused, neglected, and abandoned by their biological parents. See N.C. Gen. Stat. § 7A-244 (specifying that state district courts possess jurisdiction over child-custody proceedings). In his complaint, Mateo also requested that the state court make findings necessary to Felipe’s application for SIJ status. See 8 C.F.R. § 204.11(d)(2) (requiring SIJ applicant to submit juvenile court order containing such findings). Within the ensuing five months, the court having not acted upon the complaint, Mateo filed a motion for emergency temporary custody of Felipe.

By its Order Granting Ex Parte Temporary Custody of June 29, 2015, the state court awarded custody of Felipe to Mateo pursuant to section 50A-204 of the General Statutes of North Carolina. See Perez v. Perez , No. 15-CVD-1127 (N.C. Dist. Ct. June 29, 2015) (the "Custody Order"); see also N.C. Gen. Stat. § 50A-204(a) (conferring "temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse"). In so doing, the court outlined findings of fact and conclusions of law supporting the custody award. See Custody Order 1-3.

As reflected in the state court’s findings of fact, Felipe was born on July 6, 1997, to Guatemalan parents. See Custody Order 1. The court further determined that, between 2005 and 2013 — from age eight to sixteen — Felipe was "abandoned, neglected, and abused" by his biological parents, who failed "to provide safety, shelter, and food for him." Id. at 2. More specifically, the court found the following:

Upon information from the minor child, Felipe was told that school was not an option as it would not feed him, and he was therefore not allowed to go to school. He did not learn Spanish. Instead he learned a language spoken in the mountains known as "Chu." Since Felipe’s parents did not work, all of the minor children were obligated to work. His younger sisters worked selling food and at the age of 8, Felipe began to work at his father’s terrain in the mountains doing all types of field work. Despite the weather conditions in the mountains, Felipe would get sick at times since he only had one change of clothes, which he had to wash by hand. The clothes were not adequate for cold or wet weather. Felipe was obligated to walk to and from work which was about 1 hour away. He worked from 5am-6pm, 6 days a week, with only half a day off on Sundays and was allowed only 1 meal a day. After Felipe’s younger sister brought Felipe his daily meal, Felipe would walk his sibling back to her work and return to his. He was constantly punished for not finishing his work ... on time. Drunk or sober, his father was vulgar and verbally abusive by telling Felipe that he was worthless. He pulled on Felipe’s ears[ ] and hair and also beat him with cables. The young child could not fight back, in fear of worsening the situation. The father hit [Felipe] with a belt over his face and left him a scar. The abuse occurred about 2-3 times a week. The mother never did anything to stop the abuse from occurring. When the family held parties, the adults would drink heavily so Felipe would spend the night at his uncle’s house to prevent any more beatings.

Id. According to the court, the abandonment, abuse, and neglect by his parents "forced [Felipe] to migrate to the United States to seek refuge with [his older brother Mateo]," in whose care Felipe "has been safe," "attend[ing] school," and "learning English." Id. By contrast, "[i]f forced to return to Guatemala, [Felipe] would be completely on his own and without the proper family support system." Id.

Among its corresponding conclusions of law, the state court ruled that "[a]n emergency situation exists that affects the welfare of [Felipe]" and that "it is in the best interest of [Felipe] that his care, custody, and control be awarded to [Mateo]." See Custody Order 3. Relevant to the requirements set forth in clauses (i) and (ii) of the SIJ provision, the court specified that "it is [in...