Simbaina v. Bunay

• Decision Date: 03 February 2015
• Docket Number: No. 01092, Sept. Term, 2014.,01092, Sept. Term, 2014.
• Citation: 109 A.3d 191,221 Md.App. 440
• Parties: Maria SIMBAINA v. Segundo BUNAY.
• Court: Court of Special Appeals of Maryland

221 Md.App. 440

109 A.3d 191

Maria SIMBAINA

v.Segundo BUNAY.

No. 01092, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Feb. 3, 2015.

Jonathan S. Greene (Lauren K. Benko, The Greene Law Firm, LLC, on the brief), Columbia, MD, for Appellant.

No brief on behalf of the appellee.

Panel: ZARNOCH, ARTHUR, and ANDREW L. SONNER (Retired, Specially Assigned), JJ.

Opinion

ZARNOCH, J.

This case raises the question of whether, in an ordinary custody proceeding, a circuit court must enter factual findings under 8 U.S.C. § 1101(a)(27)(J) regarding a child's potential status as a “special immigrant juvenile” (SIJ), if the issue is properly before the court. We answer this question in the affirmative and remand this case to the Circuit Court for Baltimore City to make the required findings under federal law.

FACTS AND LEGAL PROCEEDINGS ¹

Appellant, Maria Simbaina and Appellee, Segundo Bunay were married in a civil ceremony in Washington D.C. on March 24, 2010, after being together since 1998. Both Simbaina and Bunay are residents of Baltimore, Maryland. The parties have three children, Nathaly, Ingrid and Jocelyn. Nathaly was born on June 1, 2000 and is a citizen of Ecuador, where she resided with her maternal grandparents until 2010. She first came to the United States in May 2010 and has resided with Simbaina since that time. Nathaly is presently an undocumented alien. Bunay came to the United States when Nathaly was three months old and has not had a consistent relationship with her. Since Nathaly arrived in the United States, Simbaina has been her sole caretaker.

Simbaina and Bunay separated on April 17, 2012. On February 13, 2013, Bunay filed a Complaint for Custody. In response, Simbaina filed an Answer and Counter–Complaint for Divorce and Custody or, in the Alternative, Limited Divorce on March 21, 2013. Simbaina then amended her complaint on November 7, 2013, and Bunay answered on January 7, 2014. In both her original and amended complaints, Simbaina requested that the court “enter an Order finding that it is not in Nathaly's best interest to return to her home country and reunification with [Bunay] is not viable due to abuse[,] neglect[,] or abandonment.”

A hearing was held in the Circuit Court for Baltimore City on April 22, 2014. During the hearing, the court heard from both Simbaina and a corroborating witness, Maria Loja, who testified that Simbaina and Bunay had been separated for two years and that there was no hope of reconciliation between the pair. At the hearing, the custody of the couple's three minor children was addressed. Bunay agreed that Simbaina could have full legal and physical custody of Nathaly, but requested joint custody of Ingrid and Jocelyn. During this hearing, Simbaina presented a consent draft custody order to the court, which “included Special Immigrant Juvenile findings and awarded [Simbaina] physical and legal custody of Nathaly.” Simbaina wanted the court to make factual findings so that Nathaly could remain in the United States as a permanent resident under SIJ status, which requires an order from the circuit court.² The circuit court explained that any immigration issues would not be discussed because they were not properly pled. Additionally, no testimony was heard on Simbaina's request because, as the court said, “there is a pleading that needs to be filed with the court concerning any immigration issues.” The circuit judge suggested that this pleading was a “petition for some type of guardianship.”

On April 24, 2014, the circuit court entered a judgment granting an absolute divorce, but did not include any factual findings on the SIJ status of Nathaly. On May 2, 2014, Simbaina filed a Motion to Alter or Amend and a Motion for New Trial, requesting that the circuit court amend its judgment of absolute divorce to include the requested SIJ factual findings. On July 2, 2014, both of these motions were denied without a hearing. Simbaina timely noted her appeal.

QUESTIONS PRESENTED ³

Appellant presents three questions for our review, which we have consolidated into the following question:

Did the circuit court err when it failed to make Special Immigrant Juvenile factual findings during the divorce and custody proceedings?

Our answer is yes. Thus, we reverse and remand for a hearing and for the entry of factual findings related to Nathaly's SIJ status.

STANDARD OF REVIEW

Typically, we review a circuit court's decision to deny a motion for a new trial under an abuse of discretion standard. See Mason v. Lynch, 151 Md.App. 17, 28, 822 A.2d 1281 (2003), aff'd, 388 Md. 37, 878 A.2d 588 (2005) (“It is our job to review a trial court's denial of a motion for new trial using an abuse of discretion standard.”). However, while the circuit court “is granted broad discretion in granting or denying equitable relief, where an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court's conclusions are ‘legally correct’ under a de novo standard of review.” Schisler v. State, 394 Md. 519, 535, 907 A.2d 175 (2006) (Citations omitted). This case primarily involves an interpretation of State law and a federal statute and regulations, so we must decide if the circuit court's decision denying the request for SIJ factual findings was “legally correct.” See Nesbit v. Gov't Emps. Ins. Co., 382 Md. 65, 72, 854 A.2d 879 (2004).

DISCUSSION

I. History and Interpretation of SIJ Statute

The Immigration and Nationality Act of 1990, which established the initial eligibility requirements for SIJ status, was enacted “to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States.” Yeboah v. U.S. Dep't of Justice, 345 F.3d 216, 221 (3d Cir.2003). The law “provided an alternative to deportation for these children” by allowing them to seek SIJ status. Id. The statute creates “a special circumstance where a State juvenile court is charged with addressing an issue relevant only to federal immigration law.” H.S.P. v. J.K., 435 N.J.Super. 147, 87 A.3d 255, 259 (Ct.App.Div.2014) (Citations and quotations omitted). To “be eligible for SIJ classification, 8 U.S.C. § 1101 (a)(27)(J) requires that a State court make an SIJ-predicate order.” Perez–Olano v. Gonzalez, 248 F.R.D. 248, 253 (C.D.Cal.2008).

The initial provisions were amended in 1997 to curb abuse “by juveniles entering the United States as visiting students.” Yeboah, 345 F.3d at 221. The 1997 amendments “modified the [SIJ] definition to include an immigrant whom a juvenile court⁴ had legally committed to, or placed under the custody of, an agency or department of a State, and added the requirement that the finding of eligibility for long-term foster care be due to abuse, neglect, or abandonment.” Marcelina M.–G. v. Israel S., 112 A.D.3d 100, 107, 973 N.Y.S.2d 714 (N.Y.App.Div.2013) (Quotations omitted).

The requirements were further amended in 2008 to expand “eligibility to include those immigrant children who had been placed in the custody of an individual or entity appointed by a state or juvenile court.” Id. at 108, 973 N.Y.S.2d 714. (Citations omitted). A precondition of long-term foster care was removed and replaced with the “requirement that the juvenile court 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.” Id. (Quotations omitted).

The current law still requires that the immigrant child obtain “an order from a state juvenile court making findings that the juvenile satisfies certain criteria.” Id. at 107, 973 N.Y.S.2d 714 (Citations omitted). Once a “state court makes an SIJ-predicate order, a child may file with CIS [U.S. Citizenship & Immigration Services] for SIJ-status using an I–360 petition. A child ... granted SIJ status may then apply for adjustment to lawful permanent resident status under 8 U.S.C. § 1255.” Perez–Olano, 248 F.R.D. at 253.

II. Separation of Powers/State Regulation of Immigration Concerns

Because the SIJ statute imposes a rather extraordinary duty on a State court, we pause to consider two possible objections to such authority: 1) whether the statute imposes a nonjudicial duty on a Maryland court in violation of Separation of Powers? and 2) whether a Maryland court engages in impermissible State regulation of immigration by making actual findings about a child's SIJ status?

The Federal Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J), requires that a State “juvenile court” make specific factual findings before a minor can petition the United States Citizenship and Immigration Services for SIJ status. See also 8 C.F.R. § 204.11(b) (“An alien may not be classified as a SIJ unless the alien is the beneficiary of an approved petition to classify an alien as a special immigrant.”). For purposes of § 1101(a)(27)(J), a minor child may be considered for SIJ status if he or she is present in the United States, unmarried, under the age of 21, and

(i) ... 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 [and]

(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.

Arguably, the federal statute directs our State courts to perform a “nonjudicial function” by issuing advisory factual findings with regard to a child's SIJ status. If a Maryland statute required such a duty of a State court, it would violate Article 8 of the Declaration of...