S.H.R. v. Rivas (In re S.H.R.)

• Decision Date: 02 September 2021
• Docket Number: B308440
• Citation: 283 Cal.Rptr.3d 805,68 Cal.App.5th 563
• Court: California Court of Appeals Court of Appeals
• Parties: GUARDIANSHIP OF S.H.R. S.H.R., Petitioner and Appellant, v. Jesus Rivas et al., Real Parties in Interest.

68 Cal.App.5th 563

283 Cal.Rptr.3d 805

GUARDIANSHIP OF S.H.R.S.H.R., Petitioner and Appellant,

v.Jesus Rivas et al., Real Parties in Interest.

B308440

Court of Appeal, Second District, Division 1, California.

Filed September 2, 2021

As Modified on Denial of Rehearing September 28, 2021

Horvitz & Levy, Jason R. Litt, David S. Ettinger, Burbank, Anna J. Goodman; Immigrant Defenders Law Center, Bhairavi Asher and Abigail Ward Lloyd, Irvine, for Petitioner and Appellant.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Jessica M. Weisel, and Joshua D. Tate, Los Angeles, for Public Counsel as Amicus Curiae on behalf of Petitioner and Appellant.

No appearance for Real Parties in Interest.

ROTHSCHILD, P. J.

S.H.R. filed petitions in the superior court for the appointment of a guardian of his person (the guardianship petition; Prob. Code, § 1510.1 ) and for judicial findings that would enable him to petition the United States Citizenship and Immigration Services (USCIS) to classify him as a special immigrant juvenile (SIJ) under federal immigration law (the SIJ petition; Code Civ. Proc.,¹ § 155 ). The court denied the SIJ petition and denied the guardianship petition as moot.

As we explain below, S.H.R. had the burden of proving by a preponderance of the evidence the facts supporting SIJ status. Because the trial court found his evidence did not support the requested findings, S.H.R. has the burden on appeal of showing that he is entitled to the SIJ findings as a matter of law. For the reasons discussed below, he has not met his burden. We therefore affirm the order denying the SIJ petition. Because the denial of the SIJ petition rendered the guardianship petition moot, we also affirm the order denying that petition.

SPECIAL IMMIGRANT JUVENILE STATUS

In the Immigration Act of 1990 and subsequent amendments, Congress established the SIJ classification of immigrants and a path "to protect abused, neglected, and abandoned unaccompanied minors through a process that allows them to become permanent legal residents." ( In re Y.M. (2012) 207 Cal.App.4th 892, 915, 144 Cal.Rptr.3d 54 ; see 8 U.S.C. §§ 1101(a)(27)(J), 1153(b)(4), 1255(a) & (h) ; Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1012-1013, 236 Cal.Rptr.3d 610, 423 P.3d 334.) The USCIS may consent to grant SIJ status to an unmarried immigrant under 21 years of age if the immigrant is in the custody of an individual appointed by a state court with jurisdiction to determine the custody and care of juveniles, and that court makes two findings: (1) reunification with one or both of the immigrant's parents "is not viable due to abuse, neglect, abandonment, or a similar basis found under [s]tate law"; and (2) it is not in the immigrant's best interest to return to his or her home country or the home country of his or her parents. ( 8 U.S.C. § 1101(a)(27)(J) & (b)(1) ; see 8 C.F.R. § 204.11(a) (2021) ; Eddie E. v. Superior Court (2013) 223 Cal.App.4th 622, 627-628, 167 Cal.Rptr.3d 435.)

In 2014, the California Legislature enacted section 155 (Stats. 2014, ch. 685, § 1, pp. 4485-4486), which confers jurisdiction on every California superior court—including its juvenile, probate, and family court divisions—to make the findings necessary to petition the USCIS for SIJ status. ( § 155, subd. (a) ; Bianka M. , supra , 5 Cal.5th at p. 1013, 236 Cal.Rptr.3d 610, 423 P.3d 334.) The statute further provides that "[i]f an order is requested from the superior court making the necessary findings regarding special immigrant juvenile status ..., and there is evidence to support those findings, which may consist solely of, but is not limited to, a declaration by the child who is the subject of the petition, the court shall issue the order." ( § 155, subd. (b)(1).)

The following year, the Legislature enacted Probate Code section 1510.1, which grants courts the power to "appoint a guardian of the person for an unmarried individual who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a petition to make the necessary findings regarding [SIJ] status." ( Prob. Code, § 1510.1, subd. (a) ; Stats. 2015, ch. 694, § 3, p. 5330.) The appointment of a guardian under this statute may satisfy the requirement under the SIJ law that the immigrant be "placed under the custody of ... an individual ... appointed by a [s]tate or juvenile court." ( 8 U.S.C.A. § 1101(a)(27)(J)(i) ; J.L. v. Cissna (N.D.Cal. 2019) 374 F.Supp.3d 855, 867 ; Matter of A-O-C- , USCIS Adopted Decision 2019-03 (AAO, Oct. 11, 2019) 2019 WL 5260453, pp. *4-*5.)²

FACTUAL AND PROCEDURAL SUMMARY

S.H.R. was born in El Salvador in December 2001. He left El Salvador in June 2018 and arrived in the United States in August 2018. In January 2019, he moved in with his maternal cousin's husband, Jesus Rivas, in Palmdale.

In September 2019, S.H.R.—then 17 years old—filed a petition in the superior court for appointment of Rivas as guardian of his person (the guardianship petition). S.H.R. stated in the petition that Rivas has been caring for him "since he arrived [in] the United States" and has provided him with "shelter, food, and other vital necessities." The guardianship, he asserted, "will promote stability for [him] as he adjusts to life in the United States." Rivas consented to be S.H.R.’s guardian and S.H.R.’s parents consented to Rivas's appointment as guardian.

On December 3, 2019, S.H.R.—then 18 years old—filed a petition for special immigrant juvenile findings (the SIJ petition) in the superior court. The SIJ petition states that reunification with S.H.R.’s "parents is not viable under California law because of ... [¶] ... [¶] neglect [and] [¶] abandonment," and that it is not in his best interest to be returned to El Salvador.

S.H.R. supported the petition with his declaration setting forth the following facts.

Prior to coming to the United States, S.H.R. lived in El Salvador with his parents, two younger brothers, a younger sister, and his maternal grandfather. His two older sisters had left for the United States a few months before him and are living in San Francisco. His mother and grandfather do not work, and his father had been unable to find work for "a couple of years." The family depends mostly on S.H.R. and his older sisters for money.

Beginning at the age of 10 and continuing until he was 15, S.H.R. helped his grandfather by "working in the fields" during the summer, collecting fruit and vegetables "under the sun for six to seven hours every day." After work, he "would be completely exhausted." He used the money his grandfather paid him to buy necessities, such as food, clothing, and shoes.

One day, when S.H.R. was in ninth grade, two gang members approached him outside of school. They told him he needed to join the gang, but S.H.R. refused. The men told S.H.R. that if he did not join the gang, they would kill him or his family. This made S.H.R. "very afraid," and he told his parents about the incident. His father reported the incident to the police. S.H.R. did not hear from the police again and his parents did not follow up with them.

A few weeks later, the two gang members met S.H.R. after school again and threatened to kill him and his family if he refused to join their gang. He reported the incident to his parents, who informed the police. As with the first incident, the police did nothing and his parents did not follow up. S.H.R. believes that the "police are afraid of the gang members, who will go after them or their family members if they investigate the incidents."

S.H.R. feared that gang members would wait for him again after school. His parents then "made [him] stop going to school and start working." This meant that he would not graduate from high school.

S.H.R. began working at a car wash every day from 8:00 a.m. to 6:00 p.m. He used half the money he earned "to buy food for [his] parents, grandfather, and younger siblings," and saved the rest.

After a few months of working at the car wash, a gang member approached S.H.R. and asked him to pay a "gang tax." The man threatened that S.H.R. would "disappear" if he did not cooperate.

S.H.R. was afraid of the gang member and told his parents he wanted to leave the country. His parents told him "it would be too dangerous for [him] to go" and "insisted [he] stay." He felt that his parents could not protect him, yet would not let him leave.

S.H.R. knew of three people in his neighborhood who had been killed by gang members and he "lived in constant fear that the gang members would return to [his] work and kidnap or kill [him]."

S.H.R. saved money to pay for a trip to the United States and, in June 2018, he left El Salvador without telling his parents.

S.H.R. is afraid that if he returned to El Salvador, the "gang members will come after [him] again with threats of violence, or even kill [him]," and his "parents are not able to protect [him]."

At a hearing held on June 25, 2020, the court indicated that the SIJ petition provided no basis for granting the petition. The court, however, granted S.H.R.’s request to submit a brief and granted the guardianship petition.

S.H.R. thereafter submitted a brief in which he argued that his "parents neglected him under California law when they failed to provide for his support resulting in harm to [his] health and welfare." In particular, his "parents consented to him spending his summers working in the fields when he was ten years old, doing difficult, exhausting work." His parents also "forced him to stop attending school and to instead spend his childhood days working tirelessly," including "working full-time at a car wash."³

S.H.R. also submitted proposed SIJ findings that include the finding, among others, that his "parents neglected and abandoned him by failing to provide him with adequate care and protection" and that he "was forced to work starting from a young age using dangerous equipment."⁴

On August 25, 2020, the probate court denied the SIJ petition. In its statement of decision, the court...