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Romero v. Perez

Court of Appeals of Maryland

April 1, 2019

CELSO MONTERROSO ROMERO
v.
JOSEFA PEREZ

          Argued: Friday, November 30, 2018

          Circuit Court for Baltimore City Case No. 24-D-15-002928

          Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.

          OPINION

          Barbera, C.J.

         Children are a vulnerable cohort, uniquely susceptible to various forms of mistreatment. Their protection is of the utmost importance to all involved in governance and the administration of justice. Consequently, numerous policies at both the federal and state level have been implemented to protect the safety and well-being of children in this country.

         One such policy, the application of which is at issue here, is an immigration classification titled "Special Immigrant Juvenile ("SIJ") Status," which protects undocumented immigrant children residing in the United States from being reunified with an abusive parent in the child's home country. See Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J). This policy allows such children to become lawful permanent residents of the United States if they satisfy certain eligibility criteria. One criterion requires the child to obtain an order from a state juvenile court that includes certain factual findings about the child's circumstances, including, among others, that "reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, or abandonment" and that "it would not be in the [child's] best interest to be returned to the [child's] or parent's previous country of nationality or country of last habitual residence." 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).

         The present case was initiated in the Circuit Court for Baltimore City. In a proceeding before that court, Celso Monterroso Romero, Petitioner, sought sole custody of his then seventeen-year-old son, R.M.P, an undocumented minor and Guatemalan native.[1], [2] Petitioner further requested that the circuit court issue an order containing factual findings illustrating R.M.P.'s eligibility for SIJ status, namely that reunification with R.M.P.'s mother, Josefa Perez Carreto ("Perez"), was not viable due to neglect and that it was not in R.M.P.'s best interest to return to Guatemala, where Perez resides.[3] The circuit court granted Petitioner custody of R.M.P. but declined to find that reunification with Perez was not viable due to neglect. The circuit court was unclear about which "standard of proof" should apply to establish such a finding-"clear and convincing evidence" or merely "preponderance of the evidence." Nevertheless, the court ultimately determined that, under either standard, the undisputed evidence offered by Petitioner fell short of establishing that reunification with Perez was not viable due to neglect.

         Petitioner noted a timely appeal to the Court of Special Appeals. In a reported opinion, the intermediate appellate court determined preliminarily that the proper standard of proof in SIJ cases is not "clear and convincing evidence" but rather the lower "preponderance of the evidence" standard. Romero v. Perez, 236 Md.App. 503, 509 (2018). Then, applying that standard to the record before it, the court concluded that, even under the lower standard, Petitioner had not provided sufficient evidence to support a finding of neglect. Id. at 510.

         Petitioner sought, and we granted, further review in this Court. On December 7, 2018, following oral argument, we issued a per curiam order reversing the judgment of the Court of Special Appeals and remanding the case to that court with instructions to vacate the circuit court's order and remand the case to that court to enter an amended order that includes the requisite SIJ status findings. Romero v. Perez, 462 Md. 60, 61 (2018). Both courts have complied with the order, rendering Petitioner's son eligible, as of January 28, 2019, the date of the circuit court's amended order, to apply for SIJ immigration status.[4] We explain here our reasons underlying this Court's December 7, 2018 order.[5]

         I.

         The SIJ Status Process

         We begin with an overview of the SIJ status process.[6] Congress created SIJ status to "provide humanitarian protection for abused, neglected, or abandoned child immigrants" who lack immigration status.[7] U.S. Citizenship and Immigration Services ("USCIS"), Policy Manual, Vol. 6, Part J, Ch. 1, § A (current as of Jan. 23, 2019) (hereinafter, "USCIS Policy Manual"), https://perma.cc/2VMS-YTJD. SIJ status "is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status." USCIS, Immigration Relief for Abused Children: Information for Juvenile Court Judges, Child Welfare Workers, and Others Working with Abused Children (2014) (hereinafter, "USCIS Info for Juvenile Courts"), https://perma.cc/5CXB-85H7.

         The application process for SIJ status is set forth in the Federal Immigration and Nationality Act and involves two primary steps. First, the child, or, as here, someone acting on the child's behalf, must obtain a predicate order from a state juvenile court that includes certain factual findings regarding the "child's eligibility for SIJ status." Id. Without that order, "a child cannot apply . . . for SIJ classification." Id.; see also 8 C.F.R. § 204.11(d) & (d)(2) (classifying the juvenile court order as a "document[] which must be submitted in support of the petition" for SIJ status) (emphasis added). Second, the child, or "any person acting on the [child's] behalf," 8 C.F.R. § 204.11(b), must submit a petition, along with the predicate order and other supporting documents, to USCIS for review and approval. USCIS Policy Manual, Vol. 6, Part J, Ch. 2, § A. If USCIS approves the petition, [8] the child is then eligible to apply for adjustment of status to a lawful permanent resident under 8 U.S.C. § 1255.[9] See id. at Vol. 7, Part F, Ch. 7, § A.

         Judge Zarnoch, writing for the Court of Special Appeals in Simbaina v. Bunay, 221 Md.App. 440 (2015), aptly noted that the process for attaining SIJ status is atypical in that "a State juvenile court is charged with addressing an issue relevant only to federal immigration law."[10]221 Md.App. at 449 (citation omitted). The State court's role is limited, however, to rendering findings about SIJ status eligibility; the findings do not confer any immigration benefits. See USCIS Info for Juvenile Courts. Only USCIS has authority to approve SIJ petitions. See USCIS Policy Manual, Vol. 6, Part J, Ch. 4, § A.

         Federal regulations define "juvenile courts" as "court[s] . . . having jurisdiction under State law to make judicial determinations about the custody and care of juveniles." 8 C.F.R. § 204.11(a).[11] Maryland law designates circuit courts as having such jurisdiction and, consequently, authority to preside over SIJ status proceedings.[12] See Md. Code (1984, 2012 Repl. Vol., 2018 Supp.), § 1-201(b)(10) of the Family Law ("FL") Article (stating that "equity courts" have power over "custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile factual findings");[13] see also In re Dany G., 223 Md.App. 707, 716 (2015).

         The Court of Special Appeals has held, and we agree, that when a party requests SIJ status findings in his or her pleadings, the circuit court must undertake the fact-finding process (hear testimony and receive evidence) and issue "independent factual findings regarding" the minor's eligibility for SIJ status.[14] Simbaina, 221 Md.App. at 458-59 ("The Federal Immigration and Nationality Act . . . 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 In re Dany G., 223 Md.App. at 713-14. No separate motion is required, but a party's filings must put "the court . . . on notice" that such findings have been requested. Simbaina, 221 Md.App. at 458.

         Under federal law, a minor is eligible 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.

Id. at 450-51 (quoting 8 U.S.C. § 1101(a)(27)(J)). The In re Dany G. court extracted the following "plain English" framework from § 1101(a)(27)(J) and the applicable regulations, which circuit courts should follow when assessing the requisite SIJ status factors:

(1) The minor is presently in the U.S., unmarried, and under the age of 21;[15]
(2) The minor is dependent on the court or has been placed under the custody of a state agency/department or individual/entity appointed by the court;
(3) The presiding court has jurisdiction under Maryland law to make determinations about the minor's custody and care;
(4) Reunification with one or both of the minor's parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law;[16] and
(5) It is not in the minor's best interest to return to his or her country of nationality or last habitual residence.

See 223 Md.App. at 714-15 (internal citations omitted) (extrapolating these requirements from 8 U.S.C. § 1101(a)(27)(J), amended by the Trafficking Victims Protection Reauthorization Act ("TVPRA"), and 8 C.F.R. § 204.11). When assessing these factors, circuit courts should be mindful that "USCIS relies on the expertise of the juvenile court," USCIS Policy Manual, Vol. 6, Part J, Ch. 2, § D.5, and "does not go behind the juvenile court order to reweigh evidence," id. at Vol. 6, Part J, Ch. 2, § A. Accordingly, "it is imperative that the predicate order be worded very precisely and contain all necessary language." In re Dany G., 223 Md.App. at 716. The orders must provide USCIS with a "reasonable factual basis" for confirming "that the juvenile court made an informed decision . . . for all of the required findings."[17] USCIS Policy Manual, Vol. 6, Part J, Ch. 2, § D.5.

         II.

         The Present Case

         A. Circuit ...


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