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SJC-12138
SJC-12184
GUARDIANSHIP OF YOSSELIN GUADALUPE PENATE.
DEPARTMENT OF REVENUE1 vs. MANUEL MORALES LOPEZ & another.2
Suffolk. January 6, 2017. - June 9, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Alien. Probate Court, Jurisdiction. Jurisdiction, Probate
Court.
Petition for appointment of a guardian filed in the Suffolk
Division of the Probate and Family Court Department on September
14, 2015.
A motion for special findings of fact was heard by Virginia
M. Ward, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Complaint to establish paternity filed in the Suffolk
Division of the Probate and Family Court Department on November
25, 2014.
A motion for special findings of fact was heard by Virginia
M. Ward, J.
1
On behalf of Norma Cecilia Mauricio Guzman.
2
E.G. (a pseudonym), interested party.
2
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Valquiria C. Ribeiro for Marvin H. Penate.
Jennifer B. Luz (Joshua M. Daniels also present) for E.G.
Elizabeth Badger for Kids in Need of Defense & others,
amici curiae.
The following submitted briefs for amici curiae:
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, William C. Peachey, Erez Reuveni, & Joseph A. Darrow,
of the District of Columbia, for the United States.
Mary K. Ryan & Meghan S. Stubblebine for American
Immigration Lawyers Association, New England Chapter, & others.
HINES, J. In these appeals brought by E.G., an eight year
old undocumented immigrant from Guatemala, and Yosselin
Guadalupe Penate, a nineteen year old undocumented immigrant
from El Salvador, we consider for the second time3 the
statutorily mandated role of the Probate and Family Court (and
the Juvenile Court) in a juvenile's application for special
immigrant juvenile status (SIJ) under 8 U.S.C. § 1101(a)(27)(J)
(2012). Congress established the SIJ status classification "to
create a pathway to citizenship for immigrant children," Recinos
v. Escobar, 473 Mass. 734, 737 (2016), who have been abused,
neglected, or abandoned by one or both parents. The issue
presented in these appeals is whether a judge may decline to
3
See Recinos v. Escobar, 473 Mass. 734, 739-743 (2016)
(recognizing Probate and Family Court jurisdiction to make
special findings under 8 U.S.C. § 1101[a][27][J] [2012], in
cases involving persons between eighteen and twenty-one years of
age).
3
make special findings based on an assessment of the likely
merits of the movant's application for SIJ status or on the
movant's motivation for seeking SIJ status. The judge
implicitly determined that neither child would be entitled to
SIJ status based on her interpretation of the statute and
declined to make special findings. This was error.
We now clarify the role of the judge with respect to a
juvenile's motion for special findings necessary to apply for
SIJ status under 8 U.S.C. § 1101(a)(27)(J). Because immigration
status is a matter solely within Federal jurisdiction, the
merits of a juvenile's application for SIJ status will be
determined in immigration proceedings in accordance with Federal
law. See Recinos, 473 Mass. at 738. Under the statute, the
judge's sole function is to make the special findings, and to do
so in a fashion that does not limit Federal authorities in
determining the merits of the juvenile's application for SIJ
status. Therefore, we conclude that on a motion for special
findings, the judge shall make such findings without regard to
the ultimate merits or purpose of the juvenile's application.
To avoid any unnecessary entanglement in interpreting whether
SIJ status requires a showing of neglect or abandonment by one
4
or both parents, we also conclude that the judge shall make
special findings only as to the parent named in the motion.4
Background.5 1. Yosselin Penate. Yosselin6 was born in
1997 in El Salvador to Marleny D. Penate-Velasquez. The father
abandoned Marleny before Yosselin was born, and is not listed on
her birth certificate. Yosselin has never had any contact with
her father and does not know his identity. Until her teenage
years, Yosselin lived in a small house with her mother,
grandfather, uncle, three brothers, and two cousins. Of the
adults living in the household, only Yosselin's uncle was
employed. Having his own children to provide for, the uncle's
income was rarely sufficient to cover food and clothing for
Yosselin and her siblings.
4
We acknowledge the amicus brief submitted by the United
States in E.G.'s case in support of neither party; and the
amicus briefs submitted in each case in support of the
appellants by the American Immigration Lawyers Association, New
England Chapter; the Boston College Immigration Clinic; the
Catholic Charitable Bureau of the Archdiocese of Boston, Inc.;
the Central West Justice Center; the Children's Law Center of
Massachusetts; Community Legal Services and Counseling Center;
Greater Boston Legal Services; the Immigration Legal Assistance
Program of Ascentria Care Alliance; Justice Center of Southeast
Massachusetts; Kids in Need of Defense; Massachusetts Law Reform
Institute; MetroWest Legal Services; and the Political
Asylum/Immigration Representation Project.
5
We recite the facts as drawn from the limited record
before us.
6
Because Yosselin and her uncle Marvin share a last name,
and her mother's last name is similar, we refer to the family
members by their first names.
5
Because her mother was unemployed, Yosselin did not have
access to medical treatment. At age fourteen, Yosselin took a
job to help with family expenses. While working, Yosselin
continued to attend school, but her job responsibilities
frequently prevented her from completing her homework. Although
she added to the family's income, Yosselin's living conditions
remained poor. In 2013, when Yosselin was fifteen years of age,
she began receiving death threats from a local gang. The gang
demanded that she either join the gang or be killed. Because
Marleny was unable to properly provide financial resources for
Yosselin or protect her from the gang, Marleny determined that
it would be best for the family if Yosselin left for the United
States to live with her uncle, Marleny's brother, Marvin H.
Penate, who lives in Massachusetts. In accordance with her
mother's wishes, Yosselin traveled to the United States and has
lived with Marvin in Revere since that time. Since her arrival
in the United States, Yosselin has had access to proper medical
care, is enrolled in school, and has adequate food and clothing.
Although Yosselin remains in contact with her mother in El
Salvador, she wishes to continue living with Marvin in the
United States.
In September, 2015, when Yosselin was seventeen years of
age, Marvin filed a petition in the Probate and Family Court
seeking guardianship of her, and she then filed a motion seeking
6
the requisite special findings for SIJ status. In her motion
for special findings, Yosselin asserted that she was dependent
on the Probate and Family Court, that reunification with her
mother was not viable due to neglect, and that return to El
Salvador was not in her best interests.7 Following a short
hearing, the Probate and Family Court judge issued a written
decision, dismissing the guardianship petition and declining to
make special findings as to the first and third prongs. With
respect to the second prong, the judge stated, "The sole problem
here is that [Yosselin] must find a legal way to re-enter this
country if in fact she is deported. This [c]ourt does not find
that 'reunification with one or both of the immigrant's parents
is not viable due to abuse, neglect, abandonment, or similar
basis found under State law' 8 U.S.C. § 1101(a)(27)(J)." Marvin
appealed from this decision, and we transferred the case to this
court on our own motion.
2. E.G. E.G. was born in Guatemala in 2008 to Norma
Cecilia Mauricio Guzman. After finding out that Guzman was
pregnant, E.G.'s father, Manual Morales Lopez, abandoned Guzman,
and he moved to the United States before E.G. was born.
Following his move to the United States, Lopez made no effort to
contact or take care of E.G. and offered Guzman negligible
7
Yosselin filed a second motion for special findings in
December, 2016, asserting neglect and abandonment by her father.
That motion is pending in the Probate and Family Court.
7
financial support. After E.G.'s birth, Lopez stopped providing
financial support altogether. Because Lopez ignored Guzman's
efforts to inform him of E.G.'s birth and had no relationship
with E.G., Guzman did not list Lopez on E.G.'s birth
certificate.
During the early years of E.G.'s life, she and her half-
brother were raised by their mother in Guatemala. As a single
mother, Guzman was unable to earn enough money to support her
two children. She left for the United States without her
children when E.G. was three years old and her half-brother was
ten years old. Once in the United States, Guzman remained in
contact with her children and attempted unsuccessfully to secure
reliable care from members of E.G.'s extended family and a woman
whom Guzman paid for child care services. Neither proved
reliable. Consequently, E.G. was looked after by her half-
brother or, when he was at school, left completely alone.
Although initially E.G. attended kindergarten in Guatemala,
after three months she had to stop going because the walk to
school was far and too dangerous for E.G. to walk alone. On one
occasion, E.G. suffered a head injury and was hospitalized after
falling into a large hole. On another occasion, she was
attacked by a stray dog when she was out on the street alone.
In 2014, with no possibility of a safe or secure life in
Guatemala, E.G. and her brother left Guatemala for the United
8
States. The two children were captured while attempting to
cross into the United States from Mexico. Following their
capture in Texas, the Office of Refugee Resettlement contacted
Guzman, who by then lived in Massachusetts, and released the
children to her custody. Since that time, both children have
lived with their mother and other members of their family in
Massachusetts. Unlike in Guatemala, in the United States, E.G.
lives with responsible adults who care for her, and she attends
school.
After moving to the United States, Lopez made no effort to
contact E.G. E.G. met Lopez for the first time when he appeared
for a court-ordered paternity test, which the Department of
Revenue had sought on E.G.'s behalf. Since that time, Lopez has
not been in contact with E.G. and has provided little meaningful
financial support. Although Lopez is aware that E.G. now lives
in Massachusetts, the State where he also resides, he has
expressed no interest in establishing a relationship with her.
Appearing as an interested party to the paternity suit,
E.G. filed a motion for special findings pursuant to 8 U.S.C.
§ 1101(a)(27)(J),8 as well as an affidavit from her mother. In
8
The State court must find (1) that the minor is "dependent
on a juvenile court"; (2) that his or her "reunification with
[one] or both . . . parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law"; and (3)
that "it would not be in [his or her] best interest to be
9
her motion, E.G. stated her intent to petition for SIJ status
and argued that she was dependent on the Probate and Family
Court, that reunification with her father was not viable due to
neglect and abandonment, and that it was not in her best
interest to return to Guatemala. During the hearing on the
paternity issue, the Probate and Family Court judge denied
E.G.'s motion for special findings. While the judge did not
explicitly articulate a reason for denying E.G.'s motion, she
noted, "[E.G.] is in the custody of her mother, so I'm not doing
special findings." E.G. appealed from this decision, and we
transferred the case to this court on our own motion.
Discussion. 1. Statutory overview. We begin by providing
an overview of the SIJ status provision. In 1990, Congress
created the SIJ provisions of the Immigration and Nationality
Act to enable immigrant children who have been subject to abuse,
neglect, or abandonment by one or both of their parents to
remain in the United States and apply for lawful permanent
residence. Recinos, 473 Mass. at 734, 737, citing 8 U.S.C.
§ 1101(a)(27)(J) and 8 C.F.R. § 204.11 (2016). Applying for SIJ
status entails a multistep process involving both State courts
and Federal agencies. 8 U.S.C. § 1101(a)(27)(J). To apply to
returned" to his or her home country. 8 U.S.C.
§ 1101(a)(27)(J).
10
the United States Citizenship and Immigration Services (USCIS)9
for SIJ status, the "immigrant child"10 must first obtain the
following special findings from a "juvenile court":11 (1) the
child is dependent on a juvenile court or, under the custody of
an agency or department of a State, or an individual or entity
appointed by the court or State; (2) reunification with one or
both parents is not viable due to abuse, neglect, or
abandonment; and (3) returning the child to his or her country
of origin would not be in the child's best interest. 8 U.S.C.
§ 1101(a)(27)(J).
After obtaining special findings, the immigrant child must
file a petition, including the special findings, with USCIS. 8
C.F.R. § 204.11. Once submitted, USCIS conducts a plenary
review of the petition. Id. See USCIS Policy Manual, vol. 6,
9
The United States Citizenship and Immigration Services
(USCIS) bears responsibility for lawful immigration to the
United States. See Recinos, 473 Mass. at 735 n.2.
10
For purposes of special immigrant juvenile (SIJ) status,
"child" is defined as a person under twenty-one years of age who
is unmarried. 8 U.S.C. § 1101(b)(1).
11
For the purposes of 8 U.S.C. § 1101(a)(27)(J), a
"[j]uvenile court" is defined broadly as "a court located in the
United States having jurisdiction under State law to make
judicial determinations about the custody and care of
juveniles." 8 C.F.R. § 204.11(a). In Massachusetts,
determinations regarding the care and custody of juveniles fall
within the jurisdiction of both the Juvenile Court and the
Probate and Family Court, and thus both courts may make the
requisite special findings under § 1101(a)(27)(J). Recinos, 473
Mass. at 738.
11
pt. J(4) (2016). As the United States notes in its amicus
brief, during this review, USCIS generally defers to the
juvenile court's determinations, and does not reweigh the
evidence insofar as it relates to matters of State law. See
USCIS Policy Manual, vol. 6, pt. J(3). Ultimately, USCIS, on
behalf of the Secretary of Homeland Security, makes the final
determination whether to grant SIJ status. See 8 U.S.C.
§ 1101(a)(27)(J)(iii); USCIS Policy Manual, vol. 6, pt.
J(4)(E)(1) (noting that Department of Homeland Security
delegates authority to consent to grant of SIJ classification to
USCIS).
2. The role of the Probate and Family Court. Although
"[t]he process for obtaining SIJ status is 'a unique hybrid
procedure that directs the collaboration of [S]tate and
[F]ederal systems," Recinos, 473 Mass. at 738, quoting H.S.P. v.
J.K., 223 N.J. 196, 209 (2015), a person's immigration status
remains a matter governed solely by Federal law. Thus, whether
a child qualifies for SIJ status and whether to grant or deny an
immigrant child's application for SIJ status is beyond the
jurisdiction of the Probate and Family Court. The State court's
role is solely to make the special findings of fact necessary to
the USCIS's legal determination of the immigrant child's
entitlement to SIJ status. 8 U.S.C. § 1101(a)(27)(J)(iii).
Congress delegated this task to State courts because it
12
recognized "the distinct expertise State courts possess in the
area of child welfare and abuse," which makes them best equipped
to shoulder "the responsibility to perform a best interest
analysis and to make factual determinations about child welfare
for purposes of SIJ eligibility." Recinos, supra.
Because this fact-finding role is integral to the SIJ
process, the Probate and Family Court judge may not decline to
make special findings if requested by an immigrant child under
§ 1101(a)(27)(J). Acting within the limits of this fact-finding
role, the judge must make the special findings even if he or she
suspects that the immigrant child seeks SIJ status for a reason
other than relief from neglect, abuse, or abandonment. The
immigrant child's motivation for seeking the special findings,
if relevant to the child's entitlement to SIJ status, ultimately
will be considered by USCIS in its review of the application.
The immigrant child's motivation is irrelevant to the judge's
special findings.
The judge's obligation to make the special findings also
applies regardless of whether the child presents sufficient
evidence to support a favorable finding under each of the
criteria set forth in § 1101(a)(27)(J). See Howlett v. Rose,
496 U.S. 356, 373 (1990), quoting Mondou v. New York, New Haven,
& Hartford R.R., 223 U.S. 1, 57-58 (1912) ("'The existence of
the jurisdiction creat[ed] an implication of duty to exercise
13
it,' . . . which could not be overcome by disagreement with the
policy of the [F]ederal Act"). To conclude otherwise would
upset the balance struck between the State and Federal roles in
the SIJ status determination, and intrude in the area of
immigration that lies exclusively within the purview of the
Federal government. See Recinos, 473 Mass. at 738.
As further guidance for the judge to whom a motion for
special findings has been presented, we direct that the findings
be limited to the parent with whom the child claims
reunification is not viable due to abuse, neglect, or
abandonment. Thus, where an immigrant child asserts in her or
his motion for special findings that reunification is not viable
with only one parent, the Probate and Family Court shall limit
its findings to that parent. In the event that the child
asserts that reunification is not viable with both parents, the
court shall make findings as to both parents. In our view, no
more and no less is required of the Probate and Family Court to
meet its statutorily mandated role.
We recognize the disparate approaches among State courts to
this prong of the special findings required under the statute.
Some State courts have interpreted the statute to mean that the
immigrant child must establish that reunification is not viable
as to both parents, while others have proceeded on the
assumption that reunification is not viable if only one parent
14
has been shown to have abused, neglected, or abandoned the
immigrant child. See, e.g., In re Israel O., 233 Cal. App. 4th
279, 288-289 (2015); In re Estate of Nina L., 2015 IL App (1st)
152223, & 27; In re Interest of Erick M., 284 Neb. 340, 345-346
(2012); Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100,
110-111 (N.Y. 2013). We doubt the wisdom in joining the debate
among State courts over whether the immigrant child must
demonstrate that reunification is not viable with only one or
with both parents. We have considered and are persuaded by the
reasoning in the United States's amicus brief and by the Supreme
Court of New Jersey in H.S.P., 223 N.J. at 213, that
interpretation of the "[one] or both" statutory language is not
necessary. The State court's duty to make special findings is
not dependent on the resolution of the ambiguous language, and
thus we decline to endeavor to do so. See id. (declining to
construe "[one] or both" language as used in § 1101[a][27][J]
because "[s]uch a task is exclusively the province of the
[F]ederal government").
3. Special findings for Yosselin. In the Probate and
Family Court judge's written judgment of dismissal on the
petition for appointment of guardianship, the judge addressed
Yosselin's motion for special findings, but only as to the
viability of the parental reunification prong. After concluding
that Yosselin's mother did not intend to abandon her, the judge
15
posited that the sole reason for the guardianship petition was
to allow Yosselin to request special findings and ultimately
"take advantage of the [SIJ] [s]tatus program." The judge went
on to note,
"While it appears from her affidavit that she may have good
reasons for leaving El Salvador, as an emancipated eighteen
year old adult, Yosselin may now choose herself where she
wishes to live. She is in a voluntary living arrangement
with her uncle. The sole problem here is that she must
find a legal way to re-enter this country if in fact she is
deported. This [c]ourt does not find that 'reunification
with one or both of the immigrant's parents is not viable
due to abuse, neglect, abandonment, or similar basis found
under State law.'"
Here again, the judge's special findings determination
crossed into territory reserved to the Federal authorities.
Instead of determining whether Yosselin's mother abandoned or
neglected her under Massachusetts law, the judge focused on the
alleged motive behind the petition for guardianship and the
motion for special findings. This was error, as was the judge's
failure to make findings as to the dependence on the Probate and
Family Court and best interests prongs of the special findings
as required by § 1101(a)(27)(J)(i)-(ii). The Probate and Family
Court judge must make factual findings as to all three prongs of
the special findings analysis, under all circumstances.
Therefore, we reverse and remand Yosselin's case to the Probate
and Family Court for further fact finding consistent with this
opinion.
16
Moreover, although Yosselin asserted in her motion for
special findings that reunification is not viable due to abuse
and neglect by her mother, the record establishes that Yosselin
also filed a motion for special findings as to her father.
Yosselin is entitled to special findings on this motion as well,
regardless of whether reunification with the mother is viable.
To ensure that Yosselin, who is approaching her twenty-first
birthday, may timely exercise her right to seek SIJ status, the
Probate and Family Court shall conduct a hearing forthwith on
both motions for special findings. While we express no view as
to the substance of the special findings as to the mother, we
note the judge's acknowledgement that Yosselin has never known
her father and that, in fact, he is "unknown." In these
circumstances, a finding that reunification with the father is
not viable due to neglect or abandonment is difficult to avoid.
4. Special findings for E.G. In E.G.'s case, the Probate
and Family Court judge failed to make any factual findings with
respect to E.G.'s motion for special findings. Based on the
record, the judge's reason for declining to make the special
findings was due, at least in part, to the fact that E.G. is in
her mother's custody. As we have said here, such a rationale
for declining to make special findings is inconsistent with the
role of the Probate and Family Court under § 1101(a)(27)(J).
Therefore, we reverse and remand E.G.'s case to the Probate and
17
Family Court for further fact finding consistent with this
opinion.
Because the Probate and Family Court judge declined to make
special findings based on her review of documentary evidence, we
"stand[] in the same position as did the [motion] judge" with
respect to evaluating the written evidence and reaching a
conclusion as to the special findings determination. See
Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Berry
v. Kyes, 304 Mass. 56, 57 (1939). Accordingly, we direct the
Probate and Family Court judge to make the following findings:
(1) E.G. is dependent on the Probate and Family Court; (2)
E.G.'s reunification with her father is not viable due to abuse,
neglect, or abandonment; and (3) it is not in E.G.'s best
interest to return to Guatemala.
Based on the record before us, it is clear that E.G.'s
father, the parent on whom the allegation of neglect and
abandonment is predicated, has at the very least neglected, if
not also abandoned the child. The Massachusetts Code of
Regulations defines "[n]eglect" as
"failure by a caretaker, either deliberately or through
negligence or inability, to take those actions necessary to
provide a child with minimally adequate food, clothing,
shelter, medical care, supervision, emotional stability and
growth, or other essential care; provided, however, that
such inability is not due solely to inadequate economic
resources or solely to the existence of a handicapping
condition" (emphasis in original).
18
110 Code Mass. Regs. § 2.00 (2008). Since E.G.'s birth, Lopez
has made no attempt to establish a parental relationship with
E.G. or materially support her in a meaningful way. Prior to
appearing for a court-ordered paternity test, Lopez made no
effort to even meet E.G., despite her presence in Massachusetts.
Because it is clear from the record that Lopez has, at the
very least, neglected E.G., she is, as a matter of law,
"dependent on the Probate and Family Court for the opportunity
to obtain relief." Recinos, 473 Mass. at 743. With respect to
the second inquiry -- whether E.G.'s reunification with "[one]
or both" of her parents is not viable due to abuse, neglect, or
abandonment -- we reiterate that the court's findings will be
limited to E.G.'s father. Thus, the fact that E.G. lives in the
United States with her mother has no bearing on the judge's duty
to make the special findings, or the substance of the finding.
Accordingly, E.G. meets the criteria for the second prong of the
special findings analysis.
Last, the record clearly establishes that E.G.'s interests
are not best served by returning to Guatemala, the country of
origin. If returned to Guatemala, E.G. would, once again, live
with little if any adult supervision. In fact, her
circumstances if forced to return to Guatemala would be even
more dire considering that her adolescent brother, who looked
19
after her when the two were living in Guatemala, also lives in
the United States.
5. Guardianship. Marvin also urges this court to find
error in the Probate and Family Court judge's dismissal on the
petition for appointment of a guardian. Because the outcome of
the guardianship petition has no bearing on the outcome of this
case, we decline to reach the issue.12 First, any guardianship
would have terminated on Yosselin's eighteenth birthday.
Second, under Recinos, 473 Mass. at 743, if Yosselin can
establish that reunification with her mother or father is not
viable due to abuse, neglect, or abandonment, she as a matter of
law is dependent on the Probate and Family Court for the
opportunity to obtain SIJ status relief.
Conclusion. For the foregoing reasons, we reverse the
judgments of the Probate and Family Court as to E.G.'s and
Yosselin's motions for special findings, and remand the matters
for proceedings consistent with this opinion.
So ordered.
12
We also decline to issue a stay sua sponte, as amici
urge, for two reasons. First, although Marvin moved for a stay
below, he has not moved for a reconsideration of the denial of
the motion, nor has he raised the issue in his brief on appeal.
Second, amici's arguments fail to justify a stay sua sponte.