Filed 6/11/21 Guardianship of Hernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
Guardianship of ANTONIO B305649
ABRAHAM PAXTOR
HERNANDEZ Los Angeles County
Super. Ct. No.
ANTONIO ABRAHAM PAXTOR 20STPB02372
HERNANDEZ,
Plaintiff and Appellant,
v.
JULIAN PAXTOR VELASQUEZ
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Juarez, Judge. Affirmed.
Antonio Abraham Paxtor Hernandez, in pro. per.;
Lefkowitz Law Group, Jamie Lefkowitz for Plaintiff and
Appellant.
No appearance for Defendants and Respondents.
_________________________
Probate Code section 1510.1 authorizes the superior court,
with the consent of a proposed ward, to “appoint a guardian of
the person for an unmarried individual who is 18 years of age
or older, but who has not yet attained 21 years of age, in
connection with a petition to make the necessary findings
regarding special immigrant juvenile [(SIJ)] status pursuant
to subdivision (b) of Section 155 of the Code of Civil Procedure.”1
(Prob. Code, § 1510.1, subd. (a)(1).) On March 22, 2020, appellant
Antonio Abraham Paxtor Hernandez turned 21 years old.2 On
March 24, 2020, Antonio applied for an ex parte order extending
the superior court’s jurisdiction past his 21st birthday to allow
the court to consider his pending petitions for the appointment
of a guardian and for SIJ findings. The trial court denied the
application. Antonio appeals the ruling. He argues the court
1 Congress first established the SIJ classification in 1990
to provide relief to immigrant children who were declared wards
or dependents under state law and whose interests would not
be served by returning to their country of origin. (Bianka M. v.
Superior Court (2018) 5 Cal.5th 1004, 1012 (Bianka M.), citing
Immigration Act of 1990, Pub. L. No. 101–649 (Nov. 29, 1990)
104 Stat. 4978.) “To provide a basis for SIJ-eligible children
to secure the necessary state court findings, the California
Legislature in 2014 enacted Code of Civil Procedure section 155
(Stats. 2014, ch. 685, § 1). Section 155 confers jurisdiction on
every superior court—including its juvenile, probate, and family
court divisions—to issue orders concerning the findings relevant
to SIJ status.” (Bianka M., at p. 1013, citing Code Civ. Proc.,
§ 155, subd. (a).)
2 Antonio shares a last name with his aunt and proposed
guardian, Catarina Hernandez. For clarity we refer to Antonio
and Catarina by their first names.
2
improperly rendered his guardianship petition moot by declining
to extend its jurisdiction. The trial court had no discretion to
grant the requested relief. We affirm.3
FACTS AND PROCEDURAL HISTORY
Antonio was born in Guatemala on March 22, 1999.
On December 6, 2016, border patrol agents detained Antonio
near Hidalgo, Texas and charged him with being present in
the United States without admission or parole. (See 8 U.S.C.
§ 1182(a)(6)(A)(i).) On January 12, 2017, the Office of Refugee
Resettlement released Antonio to the custody of his aunt,
Catarina Hernandez, under a sponsor care agreement.
On March 10, 2020, Antonio filed petitions to have
Catarina appointed as his guardian and for SIJ findings. In his
supporting declaration, Antonio said he “left Guatemala because
of the threats and assaults I suffered from teachers, students and
other Guatemalan citizens who discriminate against indigenous
groups.” He said he could not “return to Guatemala, as I fear
that I will continue to be threatened, harassed, discriminated
against or physically beaten to death.”
According to Antonio, he first suffered discrimination and
physical abuse at the hands of his third grade teacher when he
was eight years old. The teacher beat Antonio “at least once a
week” and threatened him with “worse things” if he told anyone.
The abuse continued in the fourth grade, where Antonio’s teacher
regularly hit him on the palms of his hands with a ruler when
he was late for class. During his fourth, fifth, and sixth years of
school, an older student frequently harassed Antonio and stole
his money. Despite the abuse, Antonio said he was “too afraid
3 For purposes of this opinion we will assume without
deciding that the March 24, 2020 order is an appealable order.
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to say something to my parents about my teachers and this
classmate because I didn’t want these situations to get worse.”
Antonio recounted that, in December 2012, an earthquake
hit Guatemala and destroyed his family’s home. Two weeks after
the earthquake, he went to a city in his region to look for work.
However, the manager of the city’s commercial center refused
to let Antonio enter because he “did not have a degree” and he
was not “fluent in Spanish.”
Antonio declared that, “[a]fter all these difficult situations,
I decided that I could no longer stay in Guatemala because of
all the abuses and discrimination I faced.” He said, “I could
not stand the mental and physical torture and, after being
discriminated against in the commercial center, I realized that
I would never be able to get a job because I was indigenous,
not flu[ent] in Spanish and hav[e] dark skin.” Antonio left
Guatemala on November 9, 2016. He was 17 years old.
Antonio’s aunt Catarina—his proposed guardian—also
offered a declaration in support of Antonio’s petitions. Catarina
said she decided to take custody of Antonio after his father told
her about the problems Antonio had at his school. Since Antonio
arrived in the United States, Catarina has provided for all his
necessities without receiving financial help from his parents.
She said Antonio was forced to leave Guatemala in part because
his father could not provide for him.
Antonio’s petitions were set for an adjudication hearing
on May 20, 2020.
On March 13, 2020, Antonio filed an ex parte application
to adjudicate his petitions for appointment of a guardian and
for SIJ findings. He made the application on the ground that
he would turn 21 years old on March 22, 2020, at which time
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the superior court would lose jurisdiction to rule on the petitions.
Antonio argued dismissal of the case would cause irreparable
harm because, without a guardianship order and SIJ findings,
his deportation was imminent.
On March 16, 2020, the trial court denied the ex parte
application.4
On March 20, 2020, Antonio filed an ex parte application
for an order extending the court’s jurisdiction past March 22,
2020—the date of his 21st birthday. The application noticed a
hearing date of March 24, 2020. Regarding the need for ex parte
relief, Antonio argued a March 17, 2020 court closure to arrest
the spread of COVID-19 had prevented him from taking other
emergency action.5 Because he could not present the application
before his 21st birthday, Antonio asked the court to “invoke its
authority to act in these types of emergency circumstances and
extend jurisdiction in this case beyond [his] 21st birthday.”
On March 24, 2020, the trial court denied the ex parte
application.
On April 9, 2020, Antonio filed a notice of appeal from
the March 24, 2020 order.
4 The order does not state the court’s reason for denying the
application. According to Antonio, the court denied it because
the Probate Investigator’s Office had not yet conducted its
investigatory meeting or prepared a report on Antonio’s petitions.
5 According to Antonio’s application, on the date of the
court closure, his attorneys attempted to file a second ex parte
application to compel the Probate Investigator’s Office to conduct
its meeting. (See ante, fn. 4.) Due to the court closure, Antonio
did not have an opportunity to present the application to the
court.
5
DISCUSSION
SIJ status permits an immigrant child to seek lawful
permanent residence in the United States, which, in turn,
permits the recipient of SIJ status to seek citizenship after
five years. (Bianka M., supra, 5 Cal.5th at p. 1013, citing
8 U.S.C. §§ 1255, 1427.)
Under federal immigration law, an immigrant child is
eligible for SIJ status if: “(1) the child is a dependent of a
juvenile court, in the custody of a state agency by court order, or
in the custody of an individual or entity appointed by the court;
(2) the child cannot reunify with one or both parents due to
abuse, neglect, abandonment, or a similar basis found under
state law; and (3) it is not in the child’s best interest to return
to his or her home country or the home country of his or her
parents.” (Bianka M., supra, 5 Cal.5th at p. 1013, citing 8 U.S.C.
§ 1101(a)(27)(J)(i)–(ii), fn. omitted.)
Under the immigration law’s implementing regulations,
SIJ status is available to unmarried immigrants under 21 years
of age if a state court has made the predicate SIJ findings.
(8 C.F.R. § 204.11(c)(1)–(2) (2009); see Stats. 2015, ch. 694,
§ 1(a)(2); Bianka M., supra, 5 Cal.5th at p. 1013.) An immigrant
child cannot apply to the responsible federal agency for SIJ
status without first obtaining a state court order (or orders)
that makes the factual findings described above. (8 C.F.R.
§ 204.11(d)(2)(i)–(iii) (2009) [order(s) evidencing court’s findings
of SIJ eligibility must be submitted with petition].)6 Code of Civil
6 “SIJ applications are reviewed by the United States
Citizenship and Immigration Service (USCIS), an agency within
Department of Homeland Security (DHS).” (Bianka M., supra,
6
Procedure section 155 (section 155), subdivision (a)(1) confers
jurisdiction on the superior courts of California “to make the
factual findings necessary to enable a child to petition [USCIS]
for classification as a [SIJ].” The statute requires the superior
court to issue an order including “the necessary findings
regarding [SIJ] status” if “there is evidence to support those
findings.” (Code Civ. Proc., § 155, subd. (b)(1); Bianka M.,
at p. 1013.)
Before 2016, immigrants between 18 and 21 years of age in
California were unable to obtain the necessary findings “because
probate courts [could not] take jurisdiction of individuals 18 years
of age or older by establishing a guardianship of the person.”
(Stats. 2015, ch. 694, § 1(a)(5); see Code Civ. Proc., § 155, subd.
(b)(1)(A).) To enable immigrants who had reached the age of 18
to obtain the requisite SIJ findings, the Legislature enacted
Probate Code section 1510.1 (section 1510.1). The statute
authorizes the court to appoint, with the individual’s consent,
a guardian of the person for an unmarried individual who is
between 18 and 21 years old “in connection with a petition
to make the necessary findings regarding” SIJ status under
section 155, subdivision (b). (Prob. Code, § 1510.1, subd. (a)(1).)
For purposes of guardianship proceedings, the statute deems “the
terms ‘child,’ ‘minor,’ and ‘ward’ ” to include those individuals
under 21 years old who consent to the appointment of a guardian.
(Id., subd. (d).) In enacting section 1510.1, the Legislature
declared its intent “to provide an avenue for a person between
18 and 21 years of age to have a guardian of the person appointed
beyond 18 years of age in conjunction with a request for the
5 Cal.5th at p. 1013, citing 8 U.S.C. § 1101(a)(27)(J)(iii), 8 C.F.R.
§ 100.1 (2009), 8 C.F.R. § 103.2(a)(7)(i) (2016).)
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findings necessary to enable the person to petition [USCIS] for
classification as a [SIJ].” (Stats. 2015, ch. 694, § 1(b).)
Antonio appeals the trial court’s order denying his ex parte
application to extend the court’s jurisdiction beyond his 21st
birthday. It is settled that a court need “not grant ex parte relief
‘in any but the plainest and most certain of cases.’ [Citations.]
For this reason, the rules governing ex parte applications in civil
cases require that ‘[a]n applicant . . . make an affirmative factual
showing . . . of irreparable harm, immediate danger, or any other
statutory basis for granting relief ex parte.’ [Citations.] A trial
court should deny an ex parte application absent the requisite
showing. [Citations.] We review a trial court’s ruling on an
ex parte application for abuse of discretion.” (People ex rel.
Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257.)
The trial court had no discretion under section 1510.1
to appoint a guardian for Antonio or otherwise to extend its
jurisdiction over him after Antonio attained 21 years of age.
(Prob. Code, § 1510.1, subd. (a)(1) [“[T]he court may appoint
a guardian of the person for an unmarried individual who is
18 years of age or older, but who has not yet attained 21 years
of age.” (Italics added.)].) In requesting this relief, Antonio cited
no statutory or common law authority that would permit the
court to enter such an order, and we have been unable to find
any applicable source of authority in our own research. (Cf.
Welf. & Inst. Code, § 607 [authorizing court to retain jurisdiction
over a person who is found to be a ward or dependent child of
the juvenile court until the person attains 21 years of age, except
when the person has committed a qualifying offense, in which
case the court may retain jurisdiction until the person attains
23 or 25 years of age].)
8
Indeed, it was the fact that the superior court lacked
jurisdiction to appoint a guardian for individuals 18 years of age
or older that compelled the Legislature to enact section 1510.1.
(See Stats. 2015, ch. 694, § 1(a)(5).) In doing so, the Legislature
authorized the appointment of a guardian for a person under 21
years old to align California state law with the applicable federal
regulations, which restrict eligibility for SIJ classification to
unmarried persons “under twenty-one years of age.” (8 C.F.R.
§ 204.11(c)(1).) Even if the trial court had discretion under
our state law to appoint a guardian and make SIJ findings for
Antonio after his 21st birthday, it had no authority to set aside
the federal regulations barring his application to USCIS for
SIJ status. (See 8 U.S.C. § 1101(b)(1) [“The term ‘child’ means
an unmarried person under twenty-one years of age.”]; cf.
8 U.S.C. § 1232(d)(6) [An immigrant child “may not be denied
special immigrant status under [federal immigration law] . . .
based on age if the alien was a child on the date on which the
alien applied for such status.” (Italics added.)].) Thus, the trial
court had neither discretion nor jurisdiction to remedy the harm
Antonio’s ex parte application sought to address. The court did
not err in denying the application.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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