March 01, 2015

No Special Pleading or Petition Required for Special Immigrant Juvenile Status Findings

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Simbaina v. Bunay, 2015 WL 426835 (Md. Ct. Spec. App.).

Trial court erred in failing to address Special Immigrant Juvenile Status (SIJS) predicate findings when requested by mother in divorce and custody proceedings. State and federal law broadly define ‘juvenile court’ and lack any specific case requirement that predicate findings be made.

A private custody petition was filed in the context of divorce proceedings. Both parents lived in Maryland. One of their three children was born in Ecuador, where she lived with her grandparents for 10 years. As such, she was a citizen of Ecuador. Her father had not had a consistent relationship with her.

In the mother’s amended petition she sought SIJS findings. The mother alleged that it was not in her daughter’s best interests to return to Ecuador and that she was abused, neglected, or abandoned by her father.
In the custody hearing, the father agreed to the mother having sole custody of the child, but wanted joint custody of the other two children.
The trial court declined to address immigration issues because they were not properly pled. It suggested that the SIJS findings be attached to a guardianship petition. The court entered a divorce decree but did not address SIJS. The mother appealed.

The Maryland Court of Special Appeals reversed, finding the circuit court erred in not addressing the SIJS claim.

First, the Court of Special Appeals noted the Immigration and Nationality Act of 1990 established SIJS to protect undocumented children who were abused, neglected, or abandoned. The statute requires a state court make a “SIJ-predicate order.” The petitioner then completes forms through the U.S. Citizenship & Immigration Services (CIS) to seek to obtain lawful permanent residency status.

It noted that 2008 amendments removed the requirement that the child have a goal of long-term foster care, replacing it with the requirement that reunification was not viable with one or both parents due to abuse, neglect, or abandonment. The amendments also removed the requirement that a child be in foster care, allowing for SIJS findings where the court places the child in the custody of an entity or person.

Next the court examined whether the statute created separation of powers issues, specifically whether the statute imposes a nonjudicial duty on the court and whether it attempts to create an impermissible state regulation of federal immigration duties.

The court found they did not violate these laws. While the federal government has exclusive jurisdiction over immigration, the Supremacy Clause delegates specific duties to the states. Since state juvenile courts have expertise in making judgments about child welfare matters, granting them authority to do so was justified. Further, the statute does not lead to state courts making an immigration determination per se. Rather, the actual determination of immigration eligibility remains with CIS.

Next the appellate court examined whether the trial court had jurisdiction in a divorce and custody case. While the statute does not define ‘juvenile court,’ federal regulations define them to include any courts that make decisions about “custody” or “care” of children. Federal law does not limit what type of proceeding the prerequisite findings be requested in.

The court cited cases in several states where SIJS findings were found to be appropriately made by probate courts in adoption cases, or in guardianship or custody cases. The crucial factor is that they are made by courts making decisions about a child’s care, custody, and best interests. Under Maryland Code, trial courts are empowered to hear custody and guardianship cases, and thus would be considered ‘juvenile courts’ for the purposes of SIJS.

Further, there are no specific pleading requirements under federal or state law. Under Maryland law, pleadings must be “simple, concise, and direct.” While the mother did not file a separate motion for SIJS findings, her amended divorce and custody complaint contained items that clearly reflected the SIJS statute. Oral requests also clarified that was the intent. Thus, a request for SIJS predicate findings was clearly before the court.

The appellate court reversed and remanded the case with instructions to take evidence and testimony regarding the SIJS elements.