Leslie H. v. Superior Court

Filed 2/28/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LESLIE H.,

Petitioner,

v. G049127

THE SUPERIOR COURT OF ORANGE (Super. Ct. No. DL042745)
COUNTY,
OPINION
Respondent,

THE PEOPLE,

Real Party in Interest.

Original proceedings; petition for a writ of mandate to challenge an order of

the Superior Court of Orange County, Gregory W. Jones, Judge. Petition granted.

University of California, Irvine School of Law Immigrant Rights Clinic and

Sameer M. Ashar; Public Counsel and Kristen Jackson for Petitioner.

No appearance for respondent.
Rachel Prandini for Catholic Charities of Los Angeles, Inc., Esperanza

Immigrant Rights Project; Jennifer Nagda and Maria Woltjen, pro hac vice, for Young

Center for Immigrant Children’s Rights at the University of Chicago, as Amici Curiae on

behalf of Petitioner.
 Sixteen-year-old Leslie H. petitions for unopposed writ relief after the

juvenile court denied her request to make the necessary factual findings to enable her to

apply to federal officials for classification as an abused, neglected, or abandoned special

immigrant juvenile (SIJ) under title 8 United States Code section 1101(a)(27)(J) (SIJ

statute or section 1101(a)(27)(J)) of the Immigration and Nationality Act. The juvenile

court concluded Leslie’s delinquency adjudication as a ward of the court (Welf. & Inst.,

§ 602), commitment for 120 days to juvenile hall, and eventual release on supervised

probation did not suffice under the SIJ statute to identify her as a child in dependent,

committed, or custodial care. The juvenile court similarly found her delinquency status

disqualifying on an unrelated SIJ factual question — the viability of parental

reunification — and rejected Leslie’s claim she could not return to her abusive mother

and absent father. On a third SIJ factor, whether the minor’s best interests include

repatriation, the juvenile court again found Leslie’s delinquency status disqualifying.

Although Leslie had no one to return to in Mexico other than her abusive mother or her

father who abandoned her, the court based its best interests conclusion on its observation

that immigrant parents sometimes “send their children back to Mexico to get them out of

the negative environment that has placed them in the juvenile court.”
In 1990, Congress enacted the SIJ statute to open a path for abused,

neglected, and abandoned undocumented minors to become lawful permanent residents.

(In re Y.M. (2012) 207 Cal.App.4th 892, 910.) “Rather than being deported along with

abusive or neglectful parents, or deported to parents who had abandoned them once in the

United States, such children may seek special status to remain in the United States.”

(Yeboah v. Department of Justice (3d Cir. 2003) 345 F.3d 216, 221.) “SIJ status allows a

juvenile immigrant to remain in the United States and seek lawful permanent resident

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status if federal authorities conclude that [certain] statutory conditions are met.” (In re

Interest of Erick M. (Neb. Supreme Ct. 2012) 820 N.W.2d 639, 641.) A minor who

obtains SIJ status may apply after five years to become a naturalized citizen. (Zheng v.

Pogash (S.D. Texas 2006) 416 F.Supp.2d 550, 554 [citing federal SIJ status petition

guidelines].)

As we explain, the juvenile court’s policy conclusions about the general

unsuitability of juvenile wards for potential immigration status adjustments were

misplaced under the SIJ statute. The statute commits to a juvenile court only the limited,

factfinding role of identifying abused, neglected, or abandoned alien children under its

jurisdiction who cannot reunify with a parent or be safely returned to their home country.

The evidence does not support the juvenile court’s conclusions on these questions. To

the contrary, the evidence overwhelmingly supports Leslie’s request for the necessary

findings to enable her to file her SIJ application with the appropriate federal authorities.

The juvenile court could not reasonably deny her request, and we therefore grant her writ

relief to vacate the juvenile court’s order and substitute a new and different order

sustaining the relevant SIJ factual findings.

I
FACTUAL AND PROCEDURAL BACKGROUND

Garden Grove police officers arrested Leslie in April 2013 after she and

two teenage girlfriends attempted to steal two alcoholic beverages and some cigars from

a liquor store. The store clerk confronted the girls, who knocked him to the ground, and

assaulted him. In the ensuing melee outside the store, Leslie reportedly grabbed a shoe

from a neighboring store display and struck the clerk in the face. At her juvenile court

adjudication in May 2013, Leslie entered a plea admitting guilt to assault with force

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likely to produce bodily injury and second degree commercial burglary, and the juvenile

court declared her a ward of the court and committed her to juvenile hall for 120 days,

with probation terms and supervision upon her release.

In July 2013, Leslie’s public defender objected on grounds of

confidentiality in juvenile proceedings to the release of any information concerning

Leslie to United States Immigration and Customs Enforcement (ICE) officials. When the

juvenile court overruled the objection, Leslie filed a request for the court to make the

findings necessary under section 1101(a)(27)(J) for her to apply to federal authorities for

SIJ status. The court scheduled a hearing in August 2013. Leslie and her grandmother,

Sonia V., with whom Leslie lived in Orange County for the last 10 years, submitted

declarations and testified.

Grandmother explained Leslie first lived with her as an infant when her

mother brought her to the United States when she was nine months old. Mother was

unemployed, irresponsible, and a heavy drinker who did not care for Leslie properly. She

left Leslie home alone without feeding her, and Leslie’s father was largely absent, using

drugs and carousing all night. Leslie returned to Mexico when she was about four or five

years old. Grandmother received disturbing telephone calls from Leslie that mother
continued drinking, leaving her alone at night, sometimes tied to a chair, and that mother

hit Leslie often. Leslie begged for her grandmother to rescue her. When Leslie was

seven years old, mother returned Leslie to grandmother’s care because grandmother

threatened to stop sending money to mother. Upon Leslie’s return, grandmother

immediately noticed Leslie’s gaunt, malnourished features. She was no longer happy or

energetic, and she suffered nightmares, ate little, cried easily, and was afraid to leave

grandmother’s side.

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 Leslie testified she did not hear from her mother again after mother

deposited her at grandmother’s home. Mother never sent any money for her care, nor

attempted to communicate with her in any form. In Mexico, mother had abused and

neglected her, punching her, slapping her, and hitting her with cables. Mother sometimes

terrorized her by striking her with scalding metal spoons, which she boiled to inflict

greater pain. Mother was an alcoholic and a drug addict, and Leslie frequently saw her

smoke out of a can. Mother gave Leslie alcohol to make her stop crying, frequently left

Leslie alone in the apartment at night, and left her with strangers for weeks at a time.

Leslie only recalled meeting her father once, when she was about five years

old, and she never lived with him in Mexico or the United States. He never attempted to

contact her or send money for her care, and Leslie believed he was incarcerated

somewhere in Mexico. Leslie’s older brother had lived with grandmother temporarily,

but was deported following his arrest for domestic violence and violation of his bail

conditions. He made no effort to contact Leslie or send money for her care, and neither

Leslie nor grandmother knew his whereabouts.

At the August hearing on Leslie’s petition for SIJ findings, the juvenile

court reiterated, “She broke the law. She is in custody because she broke the law.” The
court concluded that if it found Leslie met the factual criteria under

section 1101(a)(27)(J) for federal officials to consider adjusting her immigration status,

“every time we have a minor detained in juvenile hall they then become eligible for this

statute. And that cannot be the law. If that were the law then every minor who is here

illegally would have an incentive to commit a crime so they go into custody and then they

can state ‘I am now a dependent’ or ‘I am now dependent upon the juvenile court.’”

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 Leslie’s attorney objected that other criteria had to be met, pointing out SIJ

applicants must present evidence they were abused, neglected, or abandoned and cannot

safely reunify with their parents. Another factor requires evidence repatriation would not

be in the child’s best interest. The attorney also expressed confidence federal authorities

could weed out applications submitted with improper “motivation . . . to create

[immigration] eligibility,” and she observed, “no ethical immigration attorney could file a

case with [the] immigration service if the whole purpose . . . was to make someone

eligible for immigration benefits.” The juvenile court, however, was not persuaded,

labeling potential SIJ eligibility for a juvenile ward “an absurd result, . . . inconsistent

with Congress’ intent . . . .”

The juvenile court similarly rejected Leslie’s other requested SIJ findings.

“The second criter[ion], whether or not reunification is viable or not, I am not prepared to

make a finding that reunification is not viable. I don’t believe I have sufficient credible

evidence to make a determination in regards to that particular fact. I have got the

testimony of Leslie, who has admitted three theft allegations, one of them a felony. I

don’t place a lot of weight on her credibility, quite frankly. I am not prepared to find that

reunification is not viable.” The court did not address grandmother’s testimony and made
no finding she was not credible.

The juvenile court continued: “The third criter[ion is] whether or not it

would be in her best interest to return to the country of her nationality. She has been in

the United States for some period of time. She has not gone to school. . . . She has

suffered a juvenile conviction for what would constitute a serious or violent felony. [¶]

If she continues with the same type of behavior that she has engaged in the last year, year

and a half, she is going to find herself in state prison. . . . [¶] I am hard-pressed to find

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that staying in the United States would further serve her interests. If she were attending

school, if she was leading a law abiding productive life, if she was taking advantage of

the opportunities that she has, it would be a lot easier to make a finding that returning her

to Mexico would be contrary to her welfare. [A]nd not in her best interest.”

The court concluded: “Frankly, at this point I think going back to Mexico

would be in her best interest because the path that she is on right now is one that is going

to lead to self-destruction. It has been this court’s experience that on a number of

occasions parents who have minors who have encountered difficulty with the law, who

have roots in Mexico, send their children back to Mexico to get them out of the negative

environment that has placed them in the juvenile court. . . . [¶] . . . [¶] So taking into

consideration all three of these criteria, I am declining to make the findings requested by

the moving party.”

Leslie now files this writ petition to overturn the juvenile court order

denying her requested SIJ findings. The district attorney filed an informal letter in which

he declined to file a traverse because the People do not oppose Leslie’s requested relief.

II

DISCUSSION
Leslie contends the juvenile court erred in failing to find she met the factual

requirements for SIJ classification under federal law. We review a trial court’s factual

findings for substantial evidence (Winograd v. American Broadcasting Co. (1998)

68 Cal.App.4th 624, 632), and the applicable law de novo. (Eddie E. v. Superior Court

(2013) 223 Cal.App.4th 622 (Eddie E.) “In construing a federal statute, ‘“we look first to

the plain language of the statue, construing the provisions of the entire law, including its

object and policy, to ascertain the intent of Congress.”’” (Shirey v. Los Angeles County

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Civil Service Com. (2013) 216 Cal.App.4th 1, 20.) “If the intent of Congress is clear, that

is the end of the matter . . . .” (Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc. (1984) 467 U.S. 837, 842-843 (Chevron).)

“While the federal government has exclusive jurisdiction with respect to

immigration [citations], state juvenile courts play an important and indispensable role in

the SIJ application process.” (In re Mario S. (N.Y.Fam.Ct. 2012) 954 N.Y.S.2d 843, 849

(Mario S.).) Under section 1101(a)(27)(J) and its implementing regulations codified at

8 Code of Federal Regulations part 204.11, “state juvenile courts are charged with

making a preliminary determination of the child’s dependency and his or her best

interests, which is a prerequisite to an application to adjust status as a special immigrant

juvenile. ‘The SIJ statute affirms the institutional competence of state courts as the

appropriate forum for child welfare determinations regarding abuse, neglect, or

abandonment, and a child’s best interests’ [citations].” (Mario S., at p. 849.)

Federal regulations currently provide that an alien child subject to

deportation is eligible to apply for reclassification by the United States Customs and

Immigration Services (USCIS), the federal agency charged with enforcing immigration

laws, as a “special immigrant” instead of an alien if a state juvenile court first makes
certain findings. Those findings include that the child: “(1) Is under twenty-one years of

age; [¶] (2) Is unmarried; [¶] (3) Has been declared dependent upon a juvenile court

located in the United States in accordance with state law governing such declarations of

dependency, while the alien was in the United States and under the jurisdiction of the

court; [¶] (4) Has been deemed eligible by the juvenile court for long-term foster care; [¶]

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster

care, such declaration, dependency or eligibility not having been vacated, terminated, or

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otherwise ended; and [¶] (6) Has been the subject of judicial proceedings or

administrative proceedings authorized or recognized by the juvenile court in which it has

been determined that it would not be in the alien’s best interest to be returned to the

country of nationality or last habitual residence of the beneficiary or his or her parent or

parents . . . .” (8 C.F.R. § 204.11(c) (2014).)

Apart from nonsubstantive changes in 2009 (see 74 Fed.Reg. 26937

(June 5, 2009)), these regulations were last updated in 1993 and therefore have not “kept

pace” with intervening Congressional amendments. (In re Minor Children of J.E. (N.J.

Super.Ct. 2013) 74 A.3d 1013, 1017, fn. 5 (Minor Children of J.E.).) “Accordingly,

those portions of the regulation that conflict with the current statute are no longer valid.”

(Ibid., citing Chevron, supra, 467 U.S. 837, 842-844 [agency regulations are generally

controlling unless contrary to statute].)

Under Congress’s latest amendment in 2008, for example, “‘the eligibility

requirements . . . hinge primarily on a reunification determination. The amendment

expanded eligibility to include juvenile immigrants whom a court has committed to or

placed in the custody of an individual or a state-appointed entity. . . . Finally, Congress

removed the requirement that a state juvenile court find that a juvenile is eligible for
long-term foster care because of abuse, neglect, or abandonment. Instead, a court must

find that reunification is not possible because of abuse, neglect, or abandonment.’

[Citation.]” (Mario S., supra, 954 N.Y.S.2d at pp. 848-849.)

Specifically, the SIJ statute now provides in pertinent part: “The term

‘special immigrant’ means—[¶] . . . [¶] (J) 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

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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, . . . [with certain inapplicable exceptions].” (8 U.S.C.

§ 1101(a)(27)(J), italics added.)

Congress’s expansion of SIJ status eligibility beyond notions of

dependency restricted to long-term foster care or similar arrangements is reflected in

proposed regulation changes that specify: “The use of the term ‘dependency’ throughout

this proposed rule encompasses dependency, commitment, or custody as provided in

amended section 101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i).” (76 Fed. Reg.

54980 (Sept. 6, 2011), italics added.) While the proposed regulations have not yet taken

effect, the statutory changes are themselves the best indicators of Congress’s intent. As

one court has explained, “As a result of the removal of the foster care requirement, state
courts may now make SIJ [status] findings whenever jurisdiction can be exercised under

state law to make care and custody determinations, and are no longer confined to child

protection proceedings alone.” (Minor Children of J.E., supra, 74 A.3d at p. 1018.)

More precisely, as another panel of this court observed in Eddie E., under

the 2008 amendment to section 1101(a)(27)(J), “The first part of [subsection] (i) is

phrased in the disjunctive. [Citation.] Thus, a court must find either that an immigrant

has been (a) ‘declared dependent on a juvenile court’ or (b) ‘legally committed to, or

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placed under the custody of’ a state agency or department or ‘an individual or entity

appointed by a State or juvenile court located in the United States.’ [Citation.] Once

either of those findings are made, the court must then ‘“ma[k]e two additional findings:

(1) that reunification with one or both of the immigrant’s parents is not viable due to

abuse, neglect, abandonment, or a similar basis found under State law; and (2) 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.”’ [Citation.]” (Eddie E.,

supra, 223 Cal.App.4th at pp. 627-628, original italics and bracket.)

In Eddie E., the juvenile court failed to reach the second and third SIJ

criteria concerning, respectively, the viability of reunification due to abuse and whether

the child’s best interests included returning to his or her home country. The juvenile

court did not consider these “‘two additional’” criteria under the mistaken impression the

first criterion in subsection (i) of section 1101(a)(27)(J) is met only by a dependency

determination under Welfare and Institutions Code section 300, and not a delinquent

ward finding under Welfare and Institutions Code section 602. We explained to the

contrary under the express terms of the SIJ statute that as “an alternative basis” to

dependency, an “alien in petitioner’s position may also demonstrate he had been ‘legally
committed to, or placed in 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.’

[Citation.]” (Eddie E., supra, 223 Cal.App.4th at pp. 627-628, quoting 8 U.S.C.

§ 1101(a)(27(J)(i).) We therefore issued a writ of mandate for the juvenile court to

conduct a new hearing to “consider[] and mak[e] findings on this alternative basis” and

“on the remaining requested findings of fact necessary for SIJ status . . . .” (Eddie E.,

supra, 223 Cal.App.4th at pp. 628-629.)

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 Here, the juvenile court considered each of the SIJ criteria, but declined on

misplaced policy considerations to make the necessary factual findings, despite ample,

uncontroverted evidence supporting the findings. Specifically, the court concluded

Congress could not have intended juvenile wards may qualify for SIJ status because

Leslie “broke the law,” and “rewarding” her illegal conduct might motivate other

undocumented alien children to commit offenses to gain eligibility for SIJ status and

eventual nationalization.

The juvenile court erred. A state court’s role in the SIJ process is not to

determine worthy candidates for citizenship, but simply to identify abused, neglected, or

abandoned alien children under its jurisdiction who cannot reunify with a parent or be

safely returned in their best interests to their home country. As Mario S. aptly observed,

the SIJ statute and accompanying regulations “commit . . . specific and limited issues to

state juvenile courts. The juvenile court need not determine any other issues, such as

what the motivation of the juvenile in making application for the required findings might

be [citations]; whether allowing a particular child to remain in the United States might

someday pose some unknown threat to public safety [citation]; and whether the USCIS,

the federal administrative agency charged with enforcing the immigration laws, may or
may not grant a particular application for adjustment of status as a SIJ.” (Mario S.,

supra, 954 N.Y.S.2d at pp. 852-853.)

Mario S. further explained that if “the USCIS denies a juvenile alien’s

application for legal permanent residence as a special immigrant juvenile,” the juvenile’s

remedy lies not in state court, but instead “to seek review of the agency’s decision in

federal court [citations].” (Id. at fn. 7.) State courts play no role in the final

determination of SIJ status or, ultimately, permanent residency or citizenship, which are

12
federal questions. Indeed, far from incentivizing illegal conduct as the juvenile court

speculated, an alien minor’s chance for a permanent home in the United States may

inspire his or her reform, but these are matters for immigration authorities to evaluate.

In sum, immigration policy considerations and their final adjudication in a

particular case are “beyond the scope of what a state juvenile court is required to decide

upon a motion for special findings which are a prerequisite to the filing of an application

to adjust the juvenile alien’s immigration status. Nothing in 8 USC § 1101(a)(27)(J) or

the regulation[s] indicates that the Congress intended that state juvenile courts pre-screen

potential SIJ applications for possible abuse on behalf of the USCIS.” (Mario S., supra,

954 N.Y.S.2d at p. 853.) Rather, “[t]he juvenile court is simply called upon to

determine” discrete factual issues, including “whether, under state law, the juvenile is

under the age of 21, unmarried, dependent upon the court through an order of placement

or other court order, whether reunification with one or both of the juvenile’s parents is

not possible due to abuse, neglect, or abandonment of the child, and whether it would be

contrary to the juvenile's best interest to be returned to his or her previous country of

nationality.” (Id. at p. 852.)

In Mario S., the court determined a minor alien adjudicated a delinquent,
placed in juvenile hall, and committed upon release to ongoing child welfare agency

supervision qualified under section 1101(a)(27)(J)(i) as a child in dependent, committed,

or custodial care. (Mario S., supra, 954 N.Y.S.2d at pp. 850-851.) The same is true here.

Leslie filed her petition for the juvenile court to make the requisite SIJ findings while in

juvenile custody, and she remained in custody through the hearing. She also remained

subject to continued juvenile court jurisdiction and supervision on probation terms upon

her eventual release.

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 Leslie argues that in addition to her ongoing commitment status, she

established the other factors comprising state court SIJ findings, and the juvenile court

erred in concluding otherwise. We agree. The juvenile court concluded it was “not

prepared to make a finding that reunification is not viable.” The court couched its

conclusion in terms of Leslie’s credibility, but the court made no such finding concerning

grandmother’s uncontradicted account of mother’s lifelong abuse and father’s

abandonment. The juvenile court’s misplaced policy conclusions may have improperly

colored its reunification finding. In any event, the facts overwhelmingly establish

Leslie’s reunification with one or both her parents was not viable due to abuse, neglect,

and abandonment.

Similarly, nothing in the record supported the juvenile court’s conclusion

that repatriation to Mexico was in Leslie’s best interests. The court based its finding on

anecdotal impressions, untethered to any evidence in this case, that parents of troubled

immigrant children may sometimes “send their children back to Mexico to get them of

out of the negative environment that has placed them in the juvenile court.” But the

juvenile court ignored that Leslie as an unaccompanied minor had no one to return to

safely in Mexico. Her father had abandoned her, her mother neglected her while an
infant and abused her upon her return to Mexico, and her older brother had been deported

after violating bail terms following an arrest for domestic violence; he maintained no

contact with his sister, disappearing entirely from her life. By all accounts, Leslie’s

grandmother was her only refuge. On this record, the juvenile court could not reasonably

conclude it was in Leslie’s best interests to be sent back to Mexico alone and with no one

to care for her.

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 III

DISPOSITION

Let a writ of mandate issue commanding respondent Superior Court of

Orange County to vacate its order of August 14, 2013, denying petitioner’s application

for SIJ status findings. The juvenile court is directed to enter a new and different order

sustaining as of August 14, 2013, the requisite state court findings to enable petitioner to

file her SIJ application with the appropriate federal authorities. Each party shall bear its

own costs of this writ proceeding.

___________________________
ARONSON, J.

WE CONCUR:

___________________________
RYLAARSDAM, ACTING P. J.

___________________________
FYBEL, J.

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