HEADNOTE: Oscar Orlando Martinez v. Silvia Trujillo Sanchez, No. 61,
September Term, 2017
SPECIAL IMMIGRANT JUVENILE STATUS—8 U.S.C. § 1101(a)(27)(J)—
STATE COURT PREDICATE ORDER—FIRST-LEVEL FACTUAL FINDINGS.
Father filed petition for custody of Daughter and for declaration that she is eligible
for Special Immigrant Juvenile (“SIJ”) status. Mother was served but did not participate
in proceedings. Daughter was born in El Salvador in 2000 and was abandoned by Mother
when she was three. Father later moved to the United States for employment and to
escape gang activity. Daughter crossed into the United States in Texas in 2015 and was
taken into custody by border patrol and released to Father. She has been living with
Father and Stepmother in Hyattsville and attending school. At close of evidentiary
hearing, court granted custody to Father and granted Daughter SIJ status. Father
submitted order that included first-level factual findings. Court crossed out proposed
factual findings but signed order containing conclusions that Daughter had been
abandoned by Mother and that it was not in Daughter’s best interest to return to El
Salvador.
Father noted appeal, contending that the court’s order was deficient in that,
notwithstanding that it stated conclusions necessary for a finding of eligibility for SIJ
status, it did not set forth specific first-level factual findings to support those conclusions,
and therefore could be rejected by the USCIS when Daughter applies for SIJ status.
Held: Order vacated and case remanded for court to make specific factual
findings in predicate order. The state court’s role in a SIJ matter is to make factual
findings in a predicate order that the juvenile then submits to the USCIS in petitioning the
federal government for SIJ status. The USCIS may reject a petition if the predicate order
is a mere template that gives conclusions but does not make factual findings on which the
conclusions are based. All indications in this case are that the trial court credited the
testimony by Father and Daughter, but failed to include specific factual findings in its
predicate order on the mistaken belief that that was not necessary. Case remanded for the
court to issue an adequate predicate order and, if it deems necessary, hold an additional
hearing.
Circuit Court for Prince George’s County
Case No. CAD16-17018
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 61
September Term, 2017
______________________________________
OSCAR ORLANDO MARTINEZ
v.
SILVIA TRUJILLO SANCHEZ
______________________________________
Eyler, Deborah S.,
Kehoe,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: March 1, 2018
Oscar Orlando Martinez, the appellant, noted this appeal from an order of the
Circuit Court for Prince George’s County granting him custody of his daughter, Jenniffer
Elizabeth Martinez-Trujillo (“Jenniffer”), and declaring her eligible for Special
Immigrant Juvenile (“SIJ”) status, under 8 U.S.C. § 1101(a)(27)(J).1 Silvia Trujillo
Sanchez, Jenniffer’s mother, the appellee, has not participated in any of the proceedings
in this case.
Martinez presents one question for review, which we have reworded slightly:
1
8 U.S.C. section 1101(a)(27)(J) states:
(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 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, except that--
(I) no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary of
Health and Human Services unless the Secretary of Health and
Human Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien
provided special immigrant status under this subparagraph shall
thereafter, by virtue of such parentage, be accorded any right,
privilege, or status under this chapter[.]
Did the trial court err by failing to make the necessary predicate factual
findings supporting its determination that Jenniffer was eligible for SIJ
status?
For the following reasons we shall vacate the court’s order and remand with instructions.
FACTS AND PROCEEDINGS
Jenniffer was born on July 9, 2000, in Santa Ana, El Salvador, to Martinez and
Sanchez. At first, she lived with both her parents in Santa Ana. In 2003, Sanchez left
Martinez and moved away to live with another man. Jenniffer remained with Martinez.
Since then, with the exception of one conversation, Sanchez has had no contact with
Jenniffer.
In 2006, Martinez moved to the United States to find work and escape gang
activity. He arranged for Jenniffer to live with his mother in El Salvador. Martinez
settled in Silver Spring, Maryland, with his brother, Ronald Reagan Martinez. He
obtained steady employment. Throughout his time in the United States he maintained
regular contact with Jenniffer by telephone and sent money to El Salvador for her
support. Martinez remarried and now lives with his wife, who also is from El Salvador,
in an apartment in Hyattsville, Maryland.
On March 28, 2015, when she was 14 years old, Jenniffer left El Salvador,
traveling north into Mexico with Martinez’s stepson, Cesar. They crossed the border into
Texas on April 17, 2015, and were apprehended by the United States Border Patrol.
They were released into Martinez’s custody. Jenniffer has lived in Hyattsville with
Martinez, Cesar, and her stepmother since then.
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On April 12, 2016, in the Circuit Court for Prince George’s County, Martinez filed
a complaint for custody of Jenniffer and a motion for findings that would make her
eligible for SIJ status under 8 U.S.C. section 1101(a)(27)(J). In addition to the facts
recited above, he alleged that before Jenniffer left El Salvador, a girl she knew tried to
recruit her on behalf of a gang. Jenniffer refused but was likely to be recruited again. He
further alleged that Jenniffer’s mother had abandoned her and that his own mother was
“getting old” and was “dealing with some medical issues” that made it difficult for her to
continue to care for Jenniffer.
Sanchez was served with the complaint in El Salvador but did not file an answer.
On January 17, 2017, the court entered an order of default against her.
On February 6, 2017, the court held a hearing on Martinez’s complaint. Jenniffer,
then age 16, testified that she was in the tenth grade and was attending a local public
school. She planned to go to college to study industrial engineering. Her father and
stepmother were supporting her, and she was happy living with them. She had left El
Salvador because she “wanted to do better in [her] life” and to be with her father. She
had no relationship with her mother. Her only contact with her mother, which happened
when she was 14, was a telephone conversation in which her mother asked forgiveness
for abandoning her.2
2
In her testimony, Jenniffer said her mother “called” her, but in a Declaration
attached to her motion for findings making her eligible for SIJ status, she averred that it
was an in-person meeting. This discrepancy may have arisen from translation issues at
the hearing.
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According to Jenniffer, in El Salvador she had a “problem with a girl [who]
belonged to a gang and she told [Jenniffer] that she was always going to be waiting for
[Jenniffer] after . . . school.” Shortly before Jenniffer left El Salvador, she saw this girl
outside her school staring at her from a distance. Jenniffer testified that there were a “lot
of problems with gangs in El Salvador[.]”
Martinez testified that Sanchez left him in 2003 for another man and “abandoned”
Jenniffer at that time. He stated that he and his wife were willing and able to support
Jenniffer.
At the conclusion of the hearing, the court ruled from the bench as follows:
All right. Through the testimony and evidence [in this] case, the
Court’s had an opportunity to assess the credibility of the witnesses, review
the testimony and the evidence. The Court finds that [Martinez] is the
biological father of the minor child; that this Court sits as a juvenile court
and has authority to render decisions regarding a juvenile’s custody; that
the child is under the age of 21 years old and unmarried and in school; that
the Court finds as a result of the abuse, abandonment and neglect that
reunification with [Sanchez] in [El Salvador] is not in her best interests.
The Court will grant . . . sole legal and physical custody to [Martinez] and
grant [SIJ] status.
On February 28, 2017, the court entered an “Order Regarding Minor’s Eligibility
For [SIJ] Status.” It used a proposed order submitted by counsel for Martinez, but
modified it by crossing out many of the proposed factual findings. The court found that
Jenniffer was born in El Salvador, was under age 21, and was unmarried; and that the
court had jurisdiction to make determinations about her care and custody. Including the
stricken portions, the order reads as follows:
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The Court has placed Jenniffer . . . in the Custody of . . . Martinez[] because
she was abandoned by her mother, [Sanchez], and because [Martinez] is
willing and able to act in the best interest of Jenniffer . . . .
THE COURT FURTHER FINDS that reunification with one or
both of Jenniffer[’s] . . . parents is not viable due to abuse, neglect, or
abandonment or similar basis under state law under 8 U.S.C. §
1101(a)(27)(J). Here, Jenniffer[’s] . . . mother abandoned her when she was
three years old and Jenniffer . . . has had no meaningful contact with her
mother ever since.
THE COURT FURTHER FINDS that it is not in Jenniffer[’s] . . .
best interest to be returned to her parents’ previous country of nationality or
country of last habitual residence of El Salvador within the meaning of
Section 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(27)(J)(ii) and 8 C.F.R. § 204.11(a), (d)(2)(iii). Jenniffer . . . cannot
return to her parents’ home country of El Salvador because her mother
abandoned her when he [sic] was three years old and she has had no
meaningful contact with her mother ever since. Jenniffer . . ., without the
daily threat of gang violence, is thriving here in the United States under the
care and guidance of her father, the Plaintiff. Jenniffer . . . is attending at
high school [sic] and one day hopes to become an industrial engineer.
Therefore, it is in Jenniffer[’s] . . . best interest to remain in the United
States.
This timely appeal followed.
DISCUSSION
“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.’”
Simbaina v. Bunay, 221 Md. App. 440, 448–49 (2015) (quoting Yeboah v. U.S. Dep’t of
Justice, 345 F.3d 216, 221 (3d Cir. 2003)). With respect to SIJ status, the Act “creates ‘a
special circumstance where a State juvenile court is charged with addressing an issue
relevant only to federal immigration law.’” Id. at 449 (quoting H.S.P. v. J.K., 87 A.3d
255, 259 (N.J. Super. Ct. App. Div. 2014)). The decision whether to grant SIJ status
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rests with the United States Citizenship and Immigration Services bureau (“USCIS”).
Before a child may apply to the USCIS for SIJ status, she first must obtain a “predicate
order” from a state court. Id. at 449–50. The court must make certain findings in the
predicate order, including:
1) that the juvenile is under the age of 21 and is unmarried;
2) that the juvenile is either dependent upon the juvenile court[3], or has
been placed in the custody of a state agency or an individual or entity by
the court;
3) that the state court has jurisdiction over the custody and care of the
juvenile;
4) that reunification of the juvenile with one or both of his or her
parents is not viable due to abuse, neglect, abandonment, or similar bases
under state law; and
5) that it is not in the best interest of the juvenile to be returned to his or
her parents’ previous country of nationality.
See 8 C.F.R. §204.11(a),(c) & (d). The child attaches the predicate order to her petition
to the USCIS and that agency adjudicates the petition using the findings in the order. See
Simbaina, 221 Md. App. at 452 (explaining that the state court does not make an
immigration status determination; it merely makes factual findings that may form the
predicate for that determination by federal authorities). If the child is granted SIJ status
by the USCIS, she may apply for an “adjustment to lawful permanent resident status[.]”
Id. at 450.
Martinez contends the trial court erred by not including in its order specific factual
findings to support its conclusions that Jenniffer was abandoned by her mother in El
3
The term “juvenile court” as defined under the regulations to the federal statute
includes any court “having jurisdiction under State law to make judicial determinations
about the custody and care of juveniles.” 8 C.F.R. § 204.11(a).
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Salvador and that it is not in her best interest to return to El Salvador. He emphasizes
that the USCIS may reject a SIJ visa petition if the predicate order is a mere “template
order.” He relies upon this Court’s decisions in Simbaina, supra, and In re Dany G., 223
Md. App. 707 (2015), concerning the court’s obligations in SIJ cases.
In Simbaina, the trial court refused to consider a request to make SIJ findings in
the course of a custody hearing, misapprehending that it only could do so in a separate
guardianship proceeding. We reversed, holding that the court had the authority to do so
and explaining, in the context of separation of powers, the limited role that state courts
play in the SIJ immigrant process. Specifically, under 8 U.S.C. section 1101(a)(27)(J),
the state court must “make specific factual findings before a minor can petition the
[USCIS] for SIJ status.” Simbaina, 221 Md. App. at 450. “The federal statute directs the
[state court] to enter factual findings that are advisory to a federal agency determination”
of SIJ status. Id. at 451. The ultimate decision on immigration is made by the federal
agency, however. It is incumbent upon the state court “to make its own independent
factual findings regarding whether [the child] fulfills the requirements of §
1101(a)(27)(J),” and that is the extent of its role. Id. at 459.
In Dany G., we held that a state court assessing whether a child has been abused,
neglected, or abandoned and assessing the child’s best interests for purposes of the SIJ
statute must apply the “state law definitions of [those terms]” without regard to the
prevailing standards in the child’s home country. 223 Md. App. at 717. We emphasized
that it is “imperative that [a] predicate order [issued by a state court] be worded very
precisely and contain all necessary language.” Id. at 716. “[W]hile [a] predicate order
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does not have to recount every detail of the case, the federal government requires that it
‘must show the factual basis for the court’s findings.’” Id. (quoting “Special Immigrant
Juvenile Status Information for Juvenile Courts,” USCIS available at
https://perma.cc/LS3R-T3LN (last visited Feb. 12, 2018)).
The federal regulatory scheme governing the SIJ status process supports a
conclusion that the state court predicate order must include specific factual findings and
not just general conclusory statements. For example, the approval of a petition to the
USCIS seeking SIJ status may be revoked, with notice, upon “good and sufficient cause,”
see 8 U.S.C. section 1155, which the USCIS Policy Manual warns can be “if the record
contains evidence or information that directly and substantively conflicts with the
evidence or information that was the basis for the petitioner’s eligibility for SIJ
classification.” USCIS Policy Manual, Vol. 7, Part F, Ch. 7 (C)(2) available at
https://perma.cc/KD8D-CKR6 (last visited Feb. 12, 2018). The state court’s order is part
of the “evidence or information” on which the USCIS makes its SIJ status decision,
including eligibility. The fact that a revocation decision could be made based on a
finding that information in the state’s order conflicts with other information before the
USCIS implies that the information in the order must be specific, not general, to begin
with.
We return to the case at bar. The circuit court’s general conclusions in its order
that Jenniffer was abandoned and that it is not in her best interest to return to El Salvador
make it clear that the court credited her and Martinez’s testimony. The order does not
include any first-level factual findings, however. It concludes that Sanchez abandoned
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Jenniffer but does not specify when and in what circumstances Jenniffer was abandoned
and whether the abandonment has been ongoing so that no mother-daughter relationship
was formed or exists. Likewise, the order concludes that it is not in Jenniffer’s best
interest to return to El Salvador but does not provide any first-level factual findings in
support. The proposed order submitted to the court included particular supporting factual
findings, but the court crossed most of them out, leaving only conclusions. As signed and
entered by the court, the order is effectively a “template order” that, as we explained in
Dany G., USCIS guidance indicates is not sufficient for its use.
We doubt the trial court crossed out the proposed factual findings because it was
rejecting them. It seems much more likely that it was operating under the misconception
that specific factual findings were not necessary. They are necessary, and therefore we
shall vacate the court’s order and remand the matter for the court to enter a new order that
sets forth first-level factual findings. The revised order should be entered nunc pro tunc
to the date of the original order.4
ORDER OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
VACATED. CASE REMANDED
WITH INSTRUCTIONS TO ENTER
A REVISED ORDER THAT
INCLUDES SPECIFIC FACTUAL
FINDINGS. COSTS TO BE PAID BY
THE APPELLEE.
4
On remand, the court may hold an additional hearing if it deems that necessary.
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