FILED
Nov 01 2019, 8:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Alexander E. Budzenski
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the November 1, 2019
Guardianship of: Court of Appeals Case No.
Irma Elisabeth Avila Luis, 19A-GU-1276
Ramiro Velasquez Avila, Appeal from the Jackson Circuit
Court
Appellant-Petitioner
The Honorable Richard W.
Poynter, Judge
Trial Court Cause No.
36C01-1803-GU-9
Baker, Judge.
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 1 of 13
[1] Irma Elisabeth Avila Luis (“Irma”) used to live with her mother in Guatemala.
Irma’s mother did not have enough money to feed or provide healthcare for her
daughter. When Irma was sixteen, Irma’s mother put her on a bus, alone, to
travel to the United States. Eventually, Irma was placed in the care of her
brother, Ramiro Velasquez Avila (“Avila”), who lives in Seymour, Indiana. He
filed a petition to become her guardian, which the trial court granted, but it
refused to make required findings as to her immigration status.
[2] This case has been here before, after Avila appealed the first order. This Court
ordered the trial court to make the required findings. Now, the case is here
again, after the trial court refused to abide by this Court’s instructions in the
first appeal. We now reverse in part and remand with instructions that the trial
court enter an order, instanter, bearing the language contained at the end of this
opinion.
Facts
[3] The underlying facts were summarized by this Court as follows:
Irma, born on May 20, 2000, in Chisec, Guatemala, is a native
and citizen of Guatemala. Irma’s father, Hilario Velasquez de la
Cruz, died when she was three years old. Until 2016, Irma lived
with her mother, Julia Avila Luis (Mother), in Guatemala. In
2016, Mother became unable to provide care for Irma. She no
longer could afford to feed Irma, send her to school, and provide
her with medical care. Mother put Irma on a bus to the United
States.
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After several weeks of travelling alone to the Mexican-American
border, Irma entered the United States and was detained by
immigration officials and taken into federal custody. Eventually,
the federal government released Irma into the custody of her
brother, Avila, who resides in Seymour, Indiana. Since her
release from federal custody, Irma has lived with her brother in
Indiana. She is studying English and attending Seymour High
School in the tenth grade. Avila meets Irma’s basic needs and
supports her financially and emotionally.
On March 2, 2018, Avila petitioned the trial court to appoint him
as guardian of his sister and requested the trial court to make
certain findings necessary for Irma to seek classification as a
special immigrant juvenile before the United States Citizenship
and Immigration Services (USCIS) in accordance with 8 U.S.C. §
1101(a)(27)(J). On May 11, 2018, the trial court conducted a
hearing on Avila’s petition. During the hearing, the trial court
felt “very uncomfortable making those kinds of findings.”
(Transcript p. 17). The court stated that it had “a real problem”
because the federal government “[t]hrowing it on me to make
factual findings for them [is] irritat[ing].” (Tr. p. 20). “It should
be made by [f]ederal officials. They’re the one that makes the
decision of who comes in the United States, who leave the
United States, not me. And that’s why I have a problem with
this . . . . Immigration [j]udges are [i]mmigration [j]udges for a
reason. That’s their decision.” (Tr. pp. 21-22). On May 17,
2018, the trial court issued its findings of facts and Order,
appointing Avila as guardian of Irma . . . .
In re Guardianship of Luis, 114 N.E.3d 855, 856-57 (Ind. Ct. App. 2018). The
trial court entered findings, but it did not make the requested findings as to
whether Irma qualified for Special Immigrant Juvenile (SIJ) status. Avila
appealed.
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 3 of 13
[4] This Court explained the underpinnings of the requirement that SIJ findings be
made:
Federal law provides a path to lawful permanent residency in the
United States to resident alien children who qualify for “special
immigrant juvenile” (SIJ) status. 8 U.S.C. § 1101(a)(27)(J); 8
C.F.R. § 204.11. “Congress created the SIJ classification to
protect abused, neglected, and abandoned immigrant youth
through a process allowing them to become legal permanent
citizens.” In the Interest of J.J.X.C., a Child, 318 Ga. App. 420,
424, 734 S.E.2d 120 (Ga. Ct. App. 2012).
To be eligible to petition the federal government for SIJ status,
the resident alien must be under the age of 21 and unmarried. 8
C.F.R. § 204.11(c). The child must have been declared
dependent upon a state juvenile court “or whom the court . . .
has legally . . . placed under the custody of . . . an individual[.]” 8
U.S.C. § 1101(a)(27)(J). In addition, the juvenile court must
make two additional findings: (1) “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) “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.” 8 U.S.C. § 1101(a)(27)(J)(i), (ii). The
language of the first finding is designed to “prevent youths from
using this remedy for the purpose of obtaining legal permanent
resident status, rather than for the purpose of obtaining relief
from abuse or neglect.” In re Erick M., 284 Neb. 340, 820
N.W.2d 639, 645 (2012). Although the juvenile court determines
whether the evidence supports the findings, the final decision
regarding SIJ status rests with the federal government. 8 U.S.C.
§ 1101(a)(27(J)(iii).
Accordingly, the process for obtaining SIJ status is “‘a unique
hybrid procedure that directs the collaboration of state and
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 4 of 13
federal systems.’” In re Marisol N.H., 115 A.D. 3d 185, 188, 979
N.Y.S.2d 643 (N.Y. App. Div. 2014). In this hybrid proceeding,
the state juvenile court is charged with making the factual inquiry
relevant to SIJ status when an unmarried, resident alien child is
found to be dependent on the court. “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.” In re J.J.X.C., 318
Ga. App. at 425, 734 S.E.2d 120. Therefore, courts in other
states have held that a juvenile court errs by failing to consider a
request for SIJ findings. “By making these preliminary factual
findings, the juvenile court is not rendering an immigration
determination.” H.S.P. v. J.K., 223 N.J. 196, 121 A.3d 849, 858
(2015). The predicate order issued by a state court is merely a
prerequisite that must be fulfilled before a juvenile can submit his
or her application for SIJ status to USCIS in the form of an I-360
petition. Id. If USCIS approves the juvenile’s I-360, he or she
will be granted SIJ status. Id.
Thus, 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.
Id. at 857-58 (some internal citations omitted). We reversed in part,
emphasizing that “a minor seeking SIJ status is dependent upon a state court to
make the prerequisite findings in a predicate order for the minor to qualify for
such status under the scheme established by federal immigration law.” Id. at
859. We remanded with instructions that the trial court consider the SIJ
factors, noting that “the trial court is authorized to conclude that the petitioner
failed to present evidence to support the SIJ factors or that the presented
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 5 of 13
evidence was not credible, [but] the court nevertheless has a duty to consider
the SIJ factors and to make findings.” Id.
[5] On remand following certification of the first appeal, on January 2, 2019, Avila
filed a motion with the trial court to set a hearing. Initially, the trial court
granted the motion and scheduled a hearing for February 15, 2019. On
February 13, 2019, the trial court cancelled that hearing; the reason given for
the cancellation was “Judicial Action.” Appellant’s App. Vol. II p. 5. The trial
court then took no action on the case for three months, despite the urgency of
the situation, given Irma’s age and tenuous immigration status. On May 14,
2019, finally, the trial court entered an order that reads, in pertinent part, as
follows:
10. It does appear to this Court that reunification with the
child’s mother is possible. While the Court previously
found the mother “abandoned” and “neglected” the child
by allowing her to travel from Guatemala to the United
States at the age of 16 alone, it does not appear to this
Court that the child was physically removed from her
residence and there has been no evidence presented to the
Court that the child cannot return home to Guatemala if
the child wanted to be reunited with her mother.
11. Whether the child, who is now 19[1] years-old [sic], can
financially support herself in Guatemala if the child’s
1
One might question whether this case is moot, inasmuch as Irma has reached the age of majority. We
decline to find it to be moot, both because it relates to issues of great public importance that are likely to
reoccur and because it may have significant implications for Irma’s immigration status, even now that she is
a legal adult.
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 6 of 13
mother refused to provide financial support to the child
and/or could not provide financial support, there has been
no evidence presented to this Court on whether or not that
is possible. This Court is not an expert on the state of
affairs in Guatemala. Whether it is in the child’s best
interests for the child to remain in the United States is
impossible for this court to decide. If the standard for
determining whether or not it is in the child’s best interest
to remain in the United States is based solely on financial
considerations, then it would appear the child’s best
interests would be to remain in the United States. This
Court is sure the child’s life in the United States is better in
many ways than when the child resided in Guatemala.
Whether the child’s desire to be with her brother and for a
better life financially is a basis for the child to remain in
the United States is for the United States Government to
decide.
Appealed Order p. 2-3. In other words, the trial court failed to make a finding
as to whether reunification between Irma and her parents is viable and refused
to make a finding regarding whether it is in Irma’s best interests to remain in
the United States. Avila now appeals.
Discussion and Decision
[6] As noted above, trial courts in this situation are required to consider and make
findings on two statutory elements: (1) is reunification with one or both parents
viable due to abuse, neglect, abandonment, or a similar basis found under State
law; and (2) would it be in the special immigrant’s best interest to be returned to
her previous country of nationality or country of last habitual residence? See
8 U.S.C. § 1101(a)(27)(J)(i)-(ii).
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Viability of Reunification
[7] While the trial court here found that it is possible for reunification between Irma
and her mother to occur, it failed to consider whether that reunification is
viable.2 This is not a meaningless distinction, as these two words have very
different meanings.
• “Possible” means, among other things, “being within the limits of ability,
capacity, or realization,” or “being something that may or may not
occur . . . .” Merriam-Webster Dictionary, at https://www.merriam-
webster.com/dictionary/possible.
• “Viable” means, in pertinent part, “having a reasonable chance of
succeeding . . . .” Merriam-Webster Dictionary, at
https://www.merriam-webster.com/dictionary/viable.
In other words, to refuse to make this finding, a trial court must have evidence
showing that there is a reasonable chance that reunification will succeed.
[8] Here, in the order that was the subject of the first appeal, the trial court made
the following relevant findings:
5. . . . Irma’s parents are unable and unwilling to care for or
supervise Irma.
6. . . . According to IC 31-21-2-2, “abandoned” means left
without provision for reasonable and necessary care or
supervision. Accordingly, Irma’s mother neglected and
2
It also failed to consider the viability of reunification between Irma and her father. It is undisputed that he
is deceased, meaning that reunification with him is not viable.
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abandoned Irma by allowing her to travel across several
countries alone.
***
11. For the foregoing reasons, the Court further finds that:
a. Irma has been abandoned and neglected by both of
her parents in that her father abandoned her before
birth and died, and her mother allowed her [to]
make a dangerous journey across several countries
alone . . . .
Appellant’s App. p. 34. And in the order at issue in this appeal, the trial court
made the following additional findings:
3. Sometime around November, 2016, the biological mother,
according to the sworn testimony of [Avila] and the child,
decided she could not financially support the child and the
mother wanted the child to travel to the United States to
be with [Avila].
4. While the child was living in Guatemala, the child resided
with her mother, grandparents and uncles and sometimes
they had nothing to eat as the mother was not employed
but the child did have shelter and did go to school until the
age of 16.
5. According to the sworn testimony of the child, on
November 15, 2016, the child left Guatemala alone on a
bus to travel from Guatemala to the border of the United
States . . . .
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 9 of 13
Appealed Order p. 1-2.
[9] We can only conclude that the trial court’s own findings support a conclusion
that reunification between Irma and her mother is not viable—not likely to
succeed. When Irma lived with her mother, she did not have enough to eat,
and her mother, being unable to provide for or take care of her daughter, put
sixteen-year-old Irma on a bus, alone, to travel illegally to another country.
Nothing in the record suggests that circumstances have changed for Irma’s
mother. The trial court focused on whether there was evidence that Irma was
physically removed from her residence, but this straw man of an analysis is not
part of the statutory consideration of viability. Both the evidence in the record
and the trial court’s own findings of fact lead to one inescapable conclusion:
reunification with one or both parents is not viable due to abandonment and/or
neglect.
[10] Next, we must consider whether it would be in Irma’s best interest to be
returned to Guatemala or to remain in the United States. Here, again, we turn
to the trial court’s findings in the order at issue in this appeal. In addition to the
above findings related to Irma’s living conditions in Guatemala, the trial court
found that “[s]ince January 2017, the child has been residing with [Avila] at his
home in Jackson County, Indiana and has been providing the child her
nutritional needs, educational needs and other appropriate needs.” Appealed
Order p. 2.
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[11] The evidence in the record is undisputed3 that Irma’s needs were not being met
in Guatemala, and that they are being met in the United States. The trial court
concluded that “[w]hether it is in the child’s best interests for the child to
remain in the United States is impossible for this Court to decide.” Id. at 2-3.
We are, frankly, perplexed by this statement. Trial courts make determinations
regarding the best interests of children every day in this State, and they do so
based on the evidence in the record before them. Nothing in an SIJ
determination is any different than any other best interests determination,
meaning that the determination “should be based on the totality of the
circumstances” before the trial court. M.H. v. Ind. Dep’t of Child Servs., 981
N.E.2d 75, 82 (Ind. Ct. App. 2012).
[12] Therefore, in considering what is in Irma’s best interests, the trial court should
have considered financial matters—which is the only thing it focused on—as
well as, for example, education, housing, nutrition, and healthcare. While Irma
did attend school and have housing in Guatemala, the record reveals that her
nutritional needs were not being met and that her mother could not afford to
send her to a doctor when needed. In the United States, however, all these
needs are being met. At the time of the guardianship hearing, Irma was
attending high school, had a comfortable home and a place to sleep, had
3
We note that the trial court did not find that the testimony of Irma or Avila was not credible or that they
failed to present evidence to support the SIJ factors. Instead, it focused on the possibility—rather than
viability—of reunification and declared it impossible to make a best interests determination.
Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019 Page 11 of 13
enough food to eat, and had financial and emotional support from Avila, her
brother.
[13] While it is ultimately for the federal government to determine whether Irma
may remain in the United States, it was incumbent upon the trial court to make
SIJ findings, including a best interests determination. Here, it refused to do so,
which was erroneous. We can only conclude, based on the evidence in the
record, that it would not be in her best interest to return to Guatemala.
[14] Normally, we would remand to the trial court to make the appropriate findings.
But we have already done that once and the trial court refused to comply with
our instructions on remand. There is a clock that is ticking for Irma, in that she
must provide the federal government with an order containing the SIJ findings
by December 28, 2019. Given that the trial court took an inordinate amount of
time to issue its order following the first appeal and that it refused to make the
required findings a second time, we will exercise our authority pursuant to
Indiana Appellate Rule 66(C)(10) allowing us to grant any appropriate relief.
[15] Based on the evidence in the record and the trial court’s findings of fact, we
order the trial court to enter an order with the following findings:
1. Irma Elisabeth Avila Luis has been abandoned and
neglected by both of her parents in that her father
abandoned her before birth and died, and her mother
allowed her to make a dangerous journey across several
countries alone and was unable or unwilling to provide for
her basic needs, including food and healthcare;
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2. Reuniting Irma Elisabeth Avila Luis with either her
mother or her father is not viable;
3. It is not in Irma Elisabeth Avila Luis’s best interest to be
returned to Guatemala; and
4. It is in Irma Elisabeth Avila Luis’s best interest to remain
in the United States and under the guardianship of her
brother, Ramiro Velasquez Avila.
The trial court is ordered to include these findings, verbatim, and to enter this
order within one business day of the certification of this appeal.
[16] The judgment of the trial court is reversed and remanded with instructions.
Kirsch, J., and Crone, J., concur.
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