Edy Canales v. Marvin Alejandro Torres Orellana

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Humphreys, Beales, Alston, Chafin, Decker, O’Brien, Russell,
PUBLISHED

AtLee and Malveaux
Argued at Richmond, Virginia

EDY CANALES
OPINION BY
v. Record No. 1073-16-4 JUDGE ROBERT J. HUMPHREYS
JUNE 20, 2017
MARVIN ALEJANDRO TORRES ORELLANA

UPON A HEARING EN BANC

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Jeanette A. Irby, Judge

Tanishka Cruz (Angela Ciolfi; Rebecca Wolozin; Simon Sandoval
Moshenburg; Laura Jacobson; Legal Aid Justice Center; L & L
Immigration Law, PLLC, on briefs), for appellant.

William H. Hurd (Laura Anne Kuykendall; Troutman Sanders LLP,
on brief), for appellee.

Amici Curiae: Trevor S. Cox, Deputy Solicitor General (Mark R.
Herring, Attorney General; Stuart A. Raphael, Solicitor General;
Matthew R. McGuire, Assistant Solicitor General, on brief); Kids
in Need of Defense (Jessica Leal; Kevin P. Broughel, on brief);
Detained Children’s Program, Capital Area Immigrants’ Rights
Coalition (Mari Dorn-Lopez; Elizabeth Nehrling Sotiriou; Kevin P.
Broughel, on briefs); Virginia Bar Association Commission on the
Needs of Children (Robert M. Rolfe; Geri M. Greenspan; Hunton
& Williams LLP; Margaret Ivey Bacigal, on brief), for appellant.

Edy Canales (“Canales”) appeals the May 31, 2016 judgment of the Circuit Court of

Loudoun County (the “circuit court”) holding that it did not have jurisdiction to make the

predicate findings of fact required for her child (“M.C.”) to acquire Special Immigrant status for

federal immigration purposes. Specifically, Canales’ two assignments of error assert that the

circuit court erred in finding that it lacked subject matter jurisdiction to make the specific
findings of fact required by federal law to receive special immigrant status and further erred in

declining to make the specific findings of fact she requested for that purpose.

I. BACKGROUND

A. Statutory Background

Federal immigration law provides that an immigrant child living in the United States may

become a lawful permanent resident by obtaining Special Immigrant Juvenile (“SIJ”) 1 status,

which was intended to provide protection to abandoned, abused, and neglected non-native

children through permanent residency status in the United States. 8 U.S.C. § 1101(a)(27)(J).

The Supreme Judicial Court of Massachusetts recently authored an opinion with a

succinct explanation of the statutory background of the federal SIJ statute:

In 1990, Congress amended the Immigration and Nationality Act
(INA) to include the SIJ classification to create a pathway to
citizenship for immigrant children. Pub. L. 101-649, § 153, 101st
Cong., 2d Sess. (1990). When the SIJ classification was first
included, the statute required a State court to issue an order finding
that (1) the child was dependent on a juvenile court and was
eligible for long-term foster care, and (2) it was not in the child’s
best interests to return to his or her country of origin. Id. Since
then, the provision of the INA concerning SIJs has been amended
several times. See Matter of Marcelina M.-G. v. Israel S., 112
A.D.3d 100, 107-108, 973 N.Y.S.2d 714 (N.Y. 2013) (Marcelina
M.-G.) (explaining various amendments to the INA concerning SIJ
status). In 1997, Congress modified the definition of SIJ to include
a child who was “legally committed to, or placed under the custody
of, an agency or department of a State” and added the requirement
that eligibility for long-term foster care be “due to abuse, neglect,
or abandonment.” Pub. L. 105-119, § 113, 111 Stat. 2440 (1997).
In 2008, the William Wilberforce Trafficking Victims Protection
Reauthorization Act (TVPRA) further amended the INA to expand
eligibility for SIJ status to include immigrant children who were
placed in the custody of an “individual or entity appointed by a
State or juvenile court” and eliminated the requirement of

1
“Special Immigrant Juvenile” or “SIJ” is a term and acronym used by United States
Citizenship and Immigration Services (USCIS), the parties, amici curiae, and by some of the
courts of our sister states as a shorthand reference to the definition of the term “special
immigrant” that is applicable to certain juveniles that meet the requirements of 8 U.S.C.
§ 1101(a)(27)(J).
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 long-term foster care eligibility. Pub. L. 110-457, § 235(d)(1), 122
Stat. 5044 (2008). The amendment added the requirement that the
reunification with one or both parents is not viable due to abuse,
neglect, abandonment, or a similar basis found under State law. Id.

Recinos v. Escobar, 473 Mass. 734, 737 (2016).

The current statutory definition of a Special Immigrant as it relates to a juvenile alien

(SIJ) is as follows:

The term “special immigrant” means-- . . .

(J) an immigrant 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.

8 U.S.C. § 1101(a)(27)(J). In addition to the above statutory factors, the juvenile immigrant

must also be under the age of twenty-one and unmarried. 8 C.F.R. 204.11(c). Further, pursuant

to 8 C.F.R. § 204.11(d)(2), an application for SIJ status must include at least one document

evidencing that a state juvenile court has made the requisite SIJ findings of fact. Thus, before a

child may obtain SIJ status, a petitioner must first obtain a judgment from a state juvenile court

that satisfies the criteria set out by Congress in subsection (i) of 8 U.S.C. § 1101(a)(27)(J);

second, a determination must be made in administrative or judicial proceedings that it would not

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be in the child’s best interests to be returned to their native country; and finally, the Secretary of

Homeland Security or his designee must actually grant the status of Special Immigrant Juvenile.

B. Background of the Case

M.C. is the child of Canales and Marvin Alejandro Torres Orellana (“Father”). Canales

is a native of Honduras who emigrated to the United States in 2006, leaving M.C., who was

approximately two years old at the time, in the custody of Canales’ mother in Honduras. On

June 16, 2015, Canales petitioned the Loudoun County Juvenile and Domestic Relations District

Court (the “JDR court”) for sole custody of M.C., whom she had retrieved from her mother’s

home in Honduras, and further that the court make what are collectively and generically referred

to in the pleadings and briefs of the parties and amici curiae as “SIJ findings of fact.”

Specifically, Canales asked the JDR court to award her sole custody of M.C. and make specific

factual findings that M.C. had been “abused” and “abandoned” by Father and that it was not in

M.C.’s “best interest to be returned to [Honduras,] his native country,” as those terms are used in

8 U.S.C. § 1101(a)(27)(J). Because Father resides in Honduras, with his exact whereabouts

unknown, he was served notice of the petition and hearing by publication; he did not appear and

was unrepresented at the hearings in the lower courts.2 The JDR court granted Canales sole

custody of M.C., but declined to make the additional specific SIJ findings of fact she requested.

Canales timely appealed to the circuit court.

At the circuit court hearing, Canales testified regarding information received from others

in Honduras that Father drank heavily, had little contact with M.C., and repeatedly threatened to

take M.C. from his grandmother unless the grandmother paid him money. Following the

2
Due to the significance of the issues in the assignments of error, this Court appointed
counsel to represent Father in this appeal, and the Attorney General was invited to submit a brief
and argue as amicus curiae. Appointed counsel attempted to contact Father to make him aware
of the proceedings, but his attempts were unsuccessful.
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hearing, the circuit court also granted Canales sole custody of M.C., finding that Canales “has

taken sole responsibility for the upbringing and care of the child.” However, like the JDR court,

the circuit court denied Canales’ request for additional specific SIJ findings, reasoning that it did

not have jurisdiction to do so. The circuit court entered two separate orders. The first, a custody

order in Case No. CJ15-127 (the “custody order”); the second, an order regarding SIJ findings of

fact in Case No. CJ15-128 (the “SIJ order”).3 Both orders were originally drafted by counsel for

Canales and submitted to the circuit court at the hearing; however, prior to entering the orders,

the circuit court altered the orders to reflect both the findings the circuit court made and, just as

significantly, those it declined to make.

In the custody order, the circuit court made findings based on the best interests of the

child factors delineated in Code § 20-124.3. The circuit court’s factual findings included that

Father “has not maintained a relationship with [M.C.] nor had positive involvement with the

child’s life” and that “mother has taken sole responsibility for the upbringing and care of the

child.” The court further found that “there is no indication that [M.C.’s F]ather intends to play a

role in the minor child’s upbringing and care in the future, as the [F]ather [has] not been made

aware of [M.C.]’s location.” The circuit court noted that it was unable to make any finding as to

either Canales’ or Father’s “willingness and ability to maintain a close and continuing

relationship” with M.C. Although the custody order as submitted by Canales contained language

indicating that the circuit court had made the SIJ findings sought by Canales, the circuit court

crossed out those portions before entering the order.4 In place of the stricken language, the

3
The record does not reflect the reason why there are two case numbers assigned to this
case by the circuit court or why two final orders were prepared.
4
The crossed-out portions of the custody order included language to the effect that Father
abandoned M.C., that “reunification of [M.C.] with his [F]ather is not viable at this time,” and
that “it is not in [M.C.]’s best interests to return to his native Honduras at this time.” Thus, these
findings on the SIJ factors were expressly not made by the circuit court in the custody order.
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circuit court inserted language indicating that Father “has not been informed of the whereabouts

of the minor child,” and thus the circuit court “[could] make no finding” with respect to whether

Father wishes to maintain a “close and continuing relationship with the child.”

In the SIJ order, the circuit court found that it did “not have jurisdiction to make findings

as to [SIJ] petitions[,] as such authority is not set forth in the Code of Virginia.” The circuit

court also found that M.C.’s reunification with Father “is not viable due to the fact that [M.C.]

lives in Virginia,” declining to conclude that abandonment prevented the reunification. The

circuit court further found that “[M.C.] lived in Honduras with his grandmother [and F]ather

would visit the home until [M.C.] left for the United States.” Further, the circuit court found that

“[M]other has not notified . . . [F]ather or his family of the location of [M.C.]” and that “the

testimony as presented as [second] and [third] party hearsay is not sufficiently reliable to find

that the Father has abandoned the child.” Finally, the circuit court recorded “[f]urther findings”

that “[M.C.] wanted to come to [the] U.S. because his Grandmother had other children to care

for[,] so he wanted to live with Mother” and that “Father did attempt to gain custody/visitation

[with M.C.] while in Honduras.”

At the hearing, the circuit court stated that it declined to make the specific findings

relating to the SIJ factors both because it lacked jurisdiction to do so and because, “[W]e’re

talking about essentially terminating someone’s parental rights here when we go through these

petitions, and I’m very reluctant to do that based on the type of evidence that you all are

[presenting].” The circuit court further told counsel for Canales, “I’ve discussed with you many

times, as soon as the General Assembly gives us the authority and the jurisdiction to hear these

matters, I’d be happy to do so. I believe I’m restrained by the Code of Virginia with respect to

these matters. So, I think this is the best I can do.”

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 II. ANALYSIS

A. Preservation of Error

i. Specificity of Objections

Father argues that Canales has not sufficiently preserved these issues for appeal, among

other reasons, because she has not appealed the SIJ order and only endorsed the custody order as

“Seen and objected to.” With respect to the specificity of her objections to the custody order,

Canales asserts that the circuit court did not give her a chance to state with specificity her

objections to its final ruling, therefore the “good cause” exception of Rule 5A:18 permits our

consideration of her specific objections. Furthermore, Canales contends that her assignments of

error are nonetheless preserved for appeal because the issue was “narrow enough so that the

basis for the objection [was] obvious.” Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d

923, 927 (2000).

Rule 5A:18 states that “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or to enable the Court of Appeals to attain the ends of justice.”

Ordinarily, endorsement of an order “[s]een and objected to” is not
specific enough to meet the requirements of Rule 5A:18 because it
does not sufficiently alert the trial court to the claimed error. Such
an endorsement is sufficient to satisfy Rule 5A:18 only if “the
ruling made by the trial court was narrow enough to make obvious
the basis of appellant’s objection.”

Herring, 33 Va. App. at 286, 532 S.E.2d at 927 (quoting Mackie v. Hill, 16 Va. App. 229, 231,

429 S.E.2d 37, 38 (1993)). Additionally, “[I]f a trial court is aware of a litigant’s legal position

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and the litigant did not expressly waive such arguments, the arguments remain preserved for

appeal.” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010).5

In this case, Canales’ only objection to the circuit court’s orders came in the form of the

phrase “Seen and objected to” written on the final orders. However, Canales was petitioning the

court for only two things: custody of M.C. and SIJ findings of fact. Because the circuit court

granted custody to Canales, there was only one issue left to which Canales could object: the

circuit court’s refusal to make the SIJ findings of fact. That refusal is apparent on both the SIJ

order, where the circuit court specifically stated in the order that it did not have jurisdiction to

make the requested SIJ findings of fact under Virginia law, as well as in the custody order, where

the circuit court stated on the record that it believed it lacked the jurisdiction to do so and

specifically declined to make the SIJ findings of fact by crossing out those portions of the

custody order drafted by Canales that specifically found them to exist. Thus, by writing “Seen

and objected to” on both orders, the only issue Canales could possibly be contesting is the circuit

court’s refusal to make the requested SIJ findings of fact. Canales’ assignments of error on

appeal are that the circuit court erred in finding it lacked jurisdiction to make SIJ findings in the

custody order and therefore erred by declining to make such findings. Based on the record, we

conclude that the circuit court’s ruling was narrow enough to make Canales’ objection obvious in

this case. See Herring, 33 Va. App. at 286, 532 S.E.2d at 927. Further, because counsel for

5
See also Code § 8.01-384(A):

No party shall be deemed to have agreed to, or acquiesced in,
any written order of a trial court so as to forfeit his right to
contest such order on appeal except by express written
agreement in his endorsement of the order. Arguments made at
trial via written pleading, memorandum, recital of objections in
a final order, oral argument reduced to transcript, or agreed
written statements of facts shall, unless expressly withdrawn or
waived, be deemed preserved therein for assertion on appeal.

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Canales drafted the proposed orders, and the circuit court crossed out the portions relating to SIJ

findings of fact, it is clear that the circuit court was aware of Canales’ legal position, and Canales

did nothing to waive her arguments. See Brown, 279 Va. at 217, 688 S.E.2d at 189; Code

§ 8.01-384(A). For these reasons, we conclude that the issues relating to the requested SIJ

findings of fact are properly preserved and before us on appeal.6

ii. Potential Default of Jurisdictional Issue

Father emphasizes that Canales only noted an appeal of the custody order in Case No.

CJ15-127, and did not note an appeal of the SIJ order in Case No. CJ15-128. Indeed, Canales

concedes that point in her brief. Unlike the SIJ order, which has not been appealed, the custody

order she now appeals does not specifically address Canales’ first assignment of error regarding

whether the circuit court had jurisdiction to make the SIJ findings. However, that does not end

the analysis.

Although Canales only appealed the custody order, and not the SIJ order in which the

circuit court specifically concluded it lacked jurisdiction to make SIJ findings of fact contained

in that order, the circuit court also stated on the record that a lack of subject matter jurisdiction

was a reason it crossed out some of the factual determinations in the custody order. In short, all

the issues raised by Canales on appeal were both presented to the circuit court and effectively

ruled upon by the circuit court in the custody order in Case No. CJ15-127. So, while the SIJ

order is not directly before us, we conclude that we can nonetheless reach the merits of whether a

6
Moreover, the record reflects that the circuit court interrupted counsel for Canales when
she tried to object with specificity and ordered Canales’ counsel to “put ‘seen and objected to,’”
on the order, rather than allowing counsel to make specific objections on the record. This
constitutes “good cause” under Rule 5A:18 such that this Court could review the assignments of
error to “attain the ends of justice.” Perry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d
765, 771 (2011) (“The Court may only invoke the ‘good cause’ exception where an appellant did
not have the opportunity to object to a ruling in the trial court.”).
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JDR court, and a circuit court on appeal, has the jurisdiction and authority to make specific

findings of fact on the SIJ factors of 8 U.S.C. § 1101(a)(27)(J)(i) in the context of the custody

order appealed and the record that is actually before us.

B. Standard of Review

“This Court reviews a trial court’s statutory interpretation de novo, as a question of law.”

Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, 289 Va. 34, 51, 768

S.E.2d 79, 87 (2014). Jurisdictional issues are also questions of law reviewed de novo. Harvey

v. Flockhart, 65 Va. App. 131, 138, 775 S.E.2d 427, 430 (2015). Further, this Court “will not

disturb the factual findings of the trial court unless plainly wrong or unsupported by the

evidence.” Commonwealth v. Anderson, 278 Va. 419, 425, 683 S.E.2d 536, 539 (2009) (quoting

Commonwealth v. Jackson, 276 Va. 184, 192, 661 S.E.2d 810, 813-14 (2008)).

C. Jurisdiction to Make SIJ Findings

In the context of this appeal, jurisdiction refers to the power of a court to entertain certain

issues and render a decision. Determining whether a Virginia court has the power to decide

particular cases or specific issues within those cases implicates both the Virginia Constitution

and its statutes governing the operation of the judicial system. In this case, we must also

consider the impact of 8 U.S.C. § 1101(a)(27)(J), if any, on that operation. As the Supreme

Court of Virginia has noted,

The general powers of the judiciary in Virginia are
conferred by Article VI, Section 1 of the Constitution of Virginia.
This section by itself confers jurisdiction upon the Supreme Court
of Virginia in certain matters and further states: “Subject to the
foregoing limitations, the General Assembly shall have the power
to determine the original and appellate jurisdiction of the courts of
the Commonwealth.” The concept of jurisdiction defines power.
With regard to the Court of Appeals of Virginia, the Circuit Courts
and the General District and Juvenile and Domestic Relations

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 District Courts, the powers of such courts are entirely prescribed
by statute.

Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013).

Addressing the merits of Canales’ first assignment of error, the issue of whether the JDR

courts, and circuit courts on appeal, have jurisdiction to make the SIJ findings of fact described

in 8 U.S.C. § 1101(a)(27)(J) is one of first impression in Virginia’s appellate courts.7

“The primary goal of the Court in interpreting statutes is to determine the [legislature’s]

intent. To do this, we examine the language contained in the statute itself, if unambiguous, and

apply its plain meaning.” Windsor Plaza Condo. Ass’n, 289 Va. at 51, 768 S.E.2d at 87.

i. The Authority of Virginia Courts to Entertain Independent SIJ Petitions

Unlike a few of our sister states, the General Assembly has not enacted any statute

specifically authorizing JDR or circuit courts to make the SIJ findings of fact described in

8 U.S.C. § 1101(a)(27)(J).8 Nothing in Code § 16.1-241, the jurisdictional statute for the JDR

courts, authorizes a JDR court to conduct a proceeding whose sole purpose is to render SIJ

7
Although we review the decision of the circuit court, the ultimate issue is whether the
JDR court had jurisdiction to make the SIJ findings because the circuit court’s jurisdiction in this
matter derives wholly from the JDR court. See Parrish v. Fannie Mae, 292 Va. 44, 49, 787
S.E.2d 116, 120 (2016) (“It is well-settled that when exercising its appellate jurisdiction in a de
novo appeal, the circuit court’s subject matter jurisdiction is derivative of the court not of record
from which that appeal is taken. Therefore, when exercising its de novo appellate jurisdiction,
the circuit court has no more subject matter jurisdiction than the general district court had in that
court’s original proceeding. Thus, the scope of the general district court’s subject matter
jurisdiction is the dispositive issue here.”).
8
For example, the State of Florida enacted Fla. Stat. Ann. § 39.5075(4), which states, “If
the child may be eligible for special immigrant juvenile status, the department or community-
based care provider shall petition the court for an order finding that the child meets the criteria
for special immigrant juvenile status. The ruling of the court on this petition must include
findings as to the express wishes of the child, if the child is able to express such wishes, and any
other circumstances that would affect whether the best interests of the child would be served by
applying for special immigrant juvenile status.”

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findings. In other states, some state appellate courts have held that their juvenile courts have a

duty to make the SIJ findings described in the federal statute, despite the lack of any state law

explicitly permitting or requiring them to do so.9

There is growing pressure upon federal and state courts alike to “discover” jurisdiction,

where none was thought to exist, to allow judges to advance preferred public policy goals that

have not been successfully achieved through action by the other branches of government.

However, unelected judges make poor substitutes for legislators who are directly accountable to

the citizens of the Commonwealth.

As noted above, the powers of the “Juvenile and Domestic Relations District Courts . . .

are entirely prescribed by statute.” Kelley, 285 Va. at 75, 737 S.E.2d at 221. Thus, although

Article VI, Section 1 of the Virginia Constitution vests “[t]he judicial power of the

Commonwealth” in the courts, setting the jurisdiction for those courts rests with the General

Assembly.

Both Article 1, Section 5 and Article 3, Section 1 of the Constitution of Virginia

expressly mandate the separation of power between the legislative, executive, and judicial

departments of the Commonwealth.10 The application of this principle prevents the courts of the

9
See, e.g., Recinos, 473 Mass. at 737, 739 (“In its present form, the Federal statute
requires a juvenile court to issue an order finding [on each of the SIJ factors]. . . . We conclude
that the Probate and Family Court has jurisdiction, . . . [to make] the special findings necessary
to apply for SIJ status pursuant to the I[mmigration and] N[ationality] A[ct].”); H.S.P. v. J.K.,
223 N.J. 196, 200 (2015) (“Family Part courts faced with a request for an SIJ predicate order
should make factual findings with regard to each of the requirements listed in 8 C.F.R.
§ 204.11.”); In the Interest of J. J. X. C., 318 Ga. App. 420, 426 (2012) (“[T]he [juvenile] court
had a duty to consider the SIJ factors and make findings.”).
10
The fact that the framers of the Virginia Constitution included two provisions in the
Virginia Constitution commanding that no branch of government take actions properly belonging
to another leaves no doubt as to the principle’s importance as a bedrock pillar of our government.
Indeed, the concept of separation of powers in Virginia government first appears as § 5 of the
Virginia Declaration of Rights of 1776. It has continued in every Virginia Constitution since
then. See Va. Const. of 1830 art. I, § 5 & art. II; Va. Const. of 1851 art. I, § 5 & art. II; Va.

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Commonwealth from conveying jurisdiction upon themselves where the General Assembly has

not done so. The General Assembly has not authorized the courts of the Commonwealth to hear

petitions for SIJ findings as an independent matter, and thus, no such power exists.

ii. Effect of 8 U.S.C. § 1101(a)(27(J) on the Authority of Virginia Courts

The above conclusion is entirely consistent with federal law. Nothing in the relevant

federal statutory scheme can fairly be read as an attempt by Congress to convey jurisdiction to

state courts to actively participate in immigration and naturalization decisions. 8 U.S.C.

§ 1101(a)(27)(J) is simply one of thirteen separate definitions of the term “special immigrant.”11

Indeed, 8 U.S.C. § 1101 is plainly labeled “Definitions” and it would strain basic principles of

statutory construction to infer a grant of jurisdiction from the definition of a term of art.

The definition of a Special Immigrant Juvenile finds its origin in the Immigration and

Nationality Act (the “INA”), which was first enacted in 1990 but has been amended multiple

times since. Compare Pub. L. 101-649, § 153, 101st Cong., 2d Sess. (1990), with Pub. L. 105-

119, § 113, 111 Stat. 2440 (1997), and Pub. L. 110-457, § 235(d)(1), 122 Stat. 5044 (2008); see

also Recinos, 473 Mass. at 737; Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 107-08

(N.Y. 2013).

As a preliminary matter, because the SIJ statute is within the definitions portion of Title

8, it is clear that 8 U.S.C. § 1101(a)(27)(J) only defines a special immigrant for the purpose of

Const. of 1864 art. I, § 5 & art. II; Va. Const. of 1870 art. I, § 7 & art. II; and Va. Const. of 1902
§§ 5 & 39.” 2014 Va. AG LEXIS 1, *10 n.27; 2014 Va. AG LEXIS 5, *5 n.11; 2014 Va. AG
LEXIS 17, *3 n.6. Succinctly put in less legalistic terms, our Constitution’s framers have clearly
underscored this constitutional imperative thereby reminding us that, when it comes to separating
and limiting the power and authority of government, they really mean it!
11
For example, among others, the definition of “special immigrant” also includes a
former citizen who seeks to reacquire American citizenship, see 8 U.S.C. § 1101(a)(27)(B), or an
immigrant who has served honorably in the armed forces of the United States, see 8 U.S.C.
§ 1101(a)(27)(K).
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interpreting and enforcing the entirety of Title 8, and nothing more. There is no language in any

federal statute mandating that state juvenile courts make the SIJ findings. Further, the SIJ statute

does not request, much less order, state courts to make specific, separate SIJ findings; rather, it

allows the appropriate federal entities to consider a state court’s findings of fact, as recorded in a

judgment order rendered under state law, when determining whether an immigrant meets the SIJ

criteria. In other words, the SIJ definition only lists certain factors which, if established in state

court proceedings, permit a juvenile immigrant to petition the United States Citizenship and

Immigration Services (“USCIS”) of the Department of Homeland Security for SIJ status—8

U.S.C. § 1101(a)(27)(J) does not require that the state court make such findings or convey

jurisdiction upon them to do so.

This conclusion is supported by the relevant federal agency’s interpretation of the SIJ

process. The USCIS Policy Manual, the guidance document for application of the statutory

scheme by the relevant federal officials, provides that “[t]here is nothing in the Immigration and

Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or

otherwise deviate from reliance upon state law and procedure in issuing state court orders.” 6

U.S. Citizenship & Immigr. Servs., Dep’t of Homeland Sec., Policy Manual pt. J, ch. 1(A), at n.1

(Jan. 5, 2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartJ-

Chapter1.html#S-A [hereinafter USCIS Policy Manual].12 Further, “There is nothing in USCIS

guidance that should be construed as instructing juvenile courts on how to apply their own state

law,” USCIS Policy Manual, ch. 2(D)(4), and the guidance document recognizes that state

“[j]uvenile courts should follow their state laws on issues such as when to exercise their

12
Both Canales and the Attorney General have cited the USCIS Policy Manual as
pertinent authority in this case.
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authority, evidentiary standards, and due process,” USCIS Policy Manual, ch. 3(A)(2) (emphasis

added).

The conclusion that the federal statutory scheme does not even attempt to impose an

obligation on state courts to make SIJ findings independent of their normal processes also finds

support in the USCIS requirement that the request for SIJ status be bona fide. In determining

whether the request is bona fide for the purposes of awarding SIJ status,

USCIS must review the juvenile court order to conclude that the
request for SIJ classification is bona fide, which means that the
juvenile court order was sought to obtain relief from abuse,
neglect, abandonment, or a similar basis under state law, and not
primarily or solely to obtain an immigration benefit. The court
ordered dependency or custodial placement of the child is the
relief being sought from the juvenile court.

USCIS Policy Manual, ch. (2)(D)(5) (emphasis added) (footnote omitted).

Finally, USCIS guidance is that “[A] best interests determination generally involves the

deliberation that courts undertake under state law when deciding what types of services, actions,

and orders will best serve a child, as well as a deliberation regarding who is best suited to take

care of a child.” USCIS Policy Manual, ch. 2(D)(3) (emphasis added). In short, nothing in the

federal statutory scheme mandates or requires that a state court take any action regarding SIJ

findings. Although an SIJ applicant is required to provide federal officials with an order or

orders from a state court in support of his or her eligibility for SIJ status, the statutory scheme

and relevant federal guidance make clear that such orders should have been generated by state

courts applying state law in the normal course of their responsibilities under the laws of the

respective states.13 Nothing in the INA directs a state court to do anything more than carry out

its adjudicatory responsibilities under state law.

13
Conversely, state courts have no power to award SIJ status to an applicant; that
decision is reserved to federal officials applying federal as opposed to state law.
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 iii. SIJ Findings as an Ancillary Matter

In apparent recognition of the foregoing, both Canales and the Attorney General

conceded at oral argument that the statutory scheme does not create an independent cause of

action in Virginia courts for those seeking SIJ status.14 Rather, they argue that, in the course of

exercising their jurisdiction granted by the General Assembly, Virginia courts can and, in fact,

must make SIJ findings if such findings are requested and might confer a benefit upon a potential

SIJ applicant.

Specifically, they argue that the General Assembly granted JDR courts (and hence circuit

courts on appeal) jurisdiction to resolve custody disputes pursuant to Code § 16.1-241(A)(3)15

and that the factors that Virginia courts routinely consider when resolving such disputes

significantly overlap with the SIJ factors. They reason that, because Virginia courts will

consider at least some SIJ factors in resolving normal custody disputes, Virginia courts have an

obligation to make the specific SIJ findings to allow the child to obtain all potential benefits

available to him or her, including permanent residency status.

To address this argument, we must analyze subsections (i) and (ii) of 8 U.S.C.

§ 1101(a)(27)(J)16 and compare those subsections to the provisions of Virginia law that JDR

courts routinely apply in the resolution of custody disputes.

14
Although we are “not bound by concessions of law by the parties,” Epps v.
Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), aff’d on other
grounds, 273 Va. 410, 641 S.E.2d 77 (2007), we appreciate the credible candor displayed by
both Canales and the Attorney General.
15
Although the issues in the case before us arise from a custody case brought pursuant to
Code § 16.1-241(A)(3), the argument would apply with equal force to cases where the child “is
alleged to be abused, neglected, in need of services, [or] in need of supervision” pursuant to
Code § 16.1-241(A)(1) or “is [alleged to be] abandoned by his parent or other custodian”
pursuant to Code § 16.1-241(A)(2).
16
Subsection (iii) of the SIJ statute implicates neither state action nor the assignments of
error in this case and thus, we need not consider it.
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 a. Subsection (i) of the SIJ Statute

In the first subsection of the SIJ statute, Congress has expressly contemplated that a state

court should apply State law regarding whether a child is “declared dependent” on a juvenile

court and whether a child has been abandoned, abused, or neglected, such that “reunification

with [one] or both . . . parents is not viable.” 8 U.S.C. § 1101(a)(27)(J)(i). The requirement that

such findings be made “under State law” was added in 2008 by the William Wilberforce

Trafficking Victims Protection Reauthorization Act. Pub. L. 110-457, § 235(d)(1), 122 Stat.

5044 (2008).

Subsection (i) of the SIJ statute requires a finding that the immigrant child at issue is

declared dependent on a state juvenile court or is appointed to the custody of another by a

juvenile court. 8 U.S.C. § 1101(a)(27)(J)(i). This finding is inherent in many JDR court

judgments applying the provisions of the Code of Virginia, as child custody is one of the primary

determinations made daily by the JDR courts across the Commonwealth. See Code

§ 16.1-241(A)(3). Thus, once a JDR court has decided the issue of custody, it has also made a

finding of fact that could potentially be used during SIJ proceedings to show that the immigrant

child is dependent upon a state juvenile court or is appointed to the custody of another.17

17
Noting that M.C. was in Canales’ custody when the underlying action in this case was
filed and remained in her custody at the conclusion of the proceedings below, Father urges this
Court to hold that, for SIJ purposes, a child is only “declared dependent” on a juvenile court if
there is an actual change in his or her custody. This is not a question to be resolved by Virginia
courts; rather, the question of whether a custody determination leaving M.C. in the custody of
Canales is sufficient to meet SIJ requirements is for federal immigration officials, and not
Virginia courts, to make.

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 Subsection (i) also requires a showing by the SIJ applicant 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.” 8 U.S.C. § 1101(a)(27)(J)(i).18

Whether a child has been subject to “abuse, neglect, [or] abandonment” so that

reunification with his parent or parents is not viable, 8 U.S.C. § 1101(a)(27)(J)(i), may, and all

too often does, arise in the course of a Virginia court’s determination of child custody. To the

extent that such questions surface in Virginia custody proceedings, a Virginia court would turn to

the best interests of the child factors found in Code § 20-124.3, which are used by JDR courts—

and circuit courts on appeal—when making a decision regarding the custody of a child. Factors

the courts “shall consider” include:

(3) The relationship existing between each parent and each child,
giving due consideration to the positive involvement with the
child’s life, the ability to accurately assess and meet the emotional,
intellectual and physical needs of the child;

(5) The role that each parent has played and will play in the future,
in the upbringing and care of the child;

(7) The relative willingness and demonstrated ability of each
parent to maintain a close and continuing relationship with the
child;

(9) Any history of family abuse19 as that term is defined in
§ 16.1-228; and

18
Father contends that the “one or both . . . parents” phrase should be construed to mean
that reunification with both parents is not viable—in other words, that neither parent can take or
retain custody of the child, and therefore, the SIJ statute does not apply to M.C., who remains in
the custody of Canales. Once again, this misconstrues the role of Virginia courts in the statutory
scheme. A Virginia court applying the laws of the Commonwealth hears evidence and then
decides who should be awarded custody based upon the evidence presented regarding the
circumstances of the parents and the best interests of the child. Whether the Virginia court’s
determination in this regard is sufficient to satisfy the SIJ criteria is a question reserved for
federal immigration officials.
19
“‘Family abuse’ means any act involving violence, force, or threat that results in bodily
injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that

- 18 -
 (10) Such other factors as the court deems necessary and proper to
the determination.

Code § 20-124.3(3), (5), (7), (9), (10).

The above best interests factors are the closest Virginia analogs to the SIJ findings of fact

specified by Congress. Although the language in the SIJ statute and Code § 20-124.3 is not

identical, the factors are comparable, and again, by its express terms, 8 U.S.C.

§ 1101(a)(27)(J)(i) contemplates that state courts apply state law and render judgments

accordingly. The statute clearly leaves to federal officials the ultimate determination whether

that judgment regarding the child’s best interests aligns with SIJ requirements. It is certainly

conceivable that a JDR court judgment rendering factual findings pursuant to the best interests

considerations of Code § 20-124.3 could be found to satisfy 8 U.S.C. § 1101(a)(27)(J)(i), but that

determination must be made by federal authorities, not state judges.

Similarly, a judgment rendered pursuant to Code § 20-124.3(5) regarding “[t]he role that

each parent has played and will play in the future, in the upbringing and care of the child,” could,

depending on the underlying facts found by the court in support of its judgment, certainly be

considered by federal authorities to satisfy a finding that one (or both) parents has engaged in

abuse, neglect, or abandonment under Virginia law, thereby also satisfying the relevant portion

of the SIJ statute. Also, Code § 20-124.3(9), regarding any history of family abuse,20 explicitly

requires a finding on the issue of abuse when appropriate. Finally, Code § 20-124.3(10), which

allows a JDR court to consider any other factors the court deems necessary, allows a court to

consider the grand scheme of the child’s circumstances. Again, depending upon the facts found

is committed by a person against such person’s family or household member.” Code § 16.1-228
(emphasis added).
20
The Virginia statutory language considers any family abuse—not just abuse of the
child—as grounds for a finding of abuse for the purposes of the best interests of the child.
- 19 -
by the court to support its judgment under state law, this could arguably also support a

determination by federal authorities regarding “abuse, neglect, abandonment, or a similar basis.”

Thus, we agree with Canales and the Attorney General that there may be circumstances

when a Virginia court, by rendering a custody determination in the normal course, will deliver a

judgment and resulting order that may satisfy the SIJ requirements. So long as a Virginia court’s

judgment and subsequent order are the product of a proceeding that was authorized by the

General Assembly to conduct and result from the court’s application of Virginia law in the

normal course, the Virginia court has not exceeded its authority as granted by the General

Assembly.

We disagree, however, with the assertion of both Canales and the Attorney General that

Virginia courts are required to make such findings or tailor their orders to increase the likelihood

that federal immigration officials will find them acceptable. Virginia courts are obligated to

resolve the disputes before them and enter judgments consistent with the law of the

Commonwealth.21 This requires a Virginia court to apply Virginia law in the same manner it

does in every other custody case that does not involve a juvenile immigrant. Whether the

resulting order will assist the juvenile immigrant to achieve SIJ status is not an inquiry to be

resolved by the courts of the Commonwealth; the power to make such a determination resides

exclusively with the relevant federal officials.

21
There are many reasons that a court, while having the ability to address specific issues,
might decline to do so. For example, Virginia courts “strive to decide cases on the ‘best and
narrowest grounds available,’” Alexandria Redevelopment & Hous. Auth. v. Walker, 290 Va.
150, 156, 772 S.E.2d 297, 300 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626
n.4, 701 S.E.2d 58, 61 n.4 (2010)), leaving unanswered questions that the litigants have raised
that are unnecessary to resolve the matter before the court.
- 20 -
 b. Subsection (ii) of the SIJ Statute

Subsection (ii) of the SIJ statute states that a special immigrant is, in part, someone “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.” 8 U.S.C. § 1101(a)(27)(J)(ii). Canales and some of the amici

argue that this subsection is part of the SIJ findings of fact and therefore is a determination made

by state courts. Once again, however, a Virginia court has no authority to answer this specific

question.

We reject the premise for this argument for several reasons. As noted above, the federal

statute does not direct state courts or officials to take any particular actions, but rather, counsels

state courts to simply follow their normal procedures interpreting state law and leave federal

officials with the decision as to whether the end product is sufficient to meet the federal statutory

criteria. We recognize that a Virginia court focused solely on the dispute properly before it, may

render a judgment that federal officials deem insufficient to meet the SIJ requirements, leaving

the applicant ineligible for SIJ status. Although some may characterize such a result as

unfortunate, harsh, or simply flawed, the flaw, if any, lies with the federal statute.

In fact, as noted above, both the SIJ statute and the federal guidance regarding it make

clear that state courts should focus on the state court issues before them, and not on the

immigration consequences that may result. The USCIS specifically notes that an SIJ request

may not be deemed bona fide if “the juvenile court order was sought . . . primarily or solely to

obtain an immigration benefit.” USCIS Policy Manual, ch. (2)(D)(5). Further, the USCIS

instructs federal officials, who are charged with reviewing state court orders, that qualifying state

court orders “should use language establishing that the specific findings (conclusions of law)

were made under state law. The order (or orders) should not just mirror or cite to immigration

- 21 -
law and regulations.” USCIS Policy Manual, ch. (3)(A) (emphasis added). Ultimately, the SIJ

statute directs federal officials to review state court orders, produced in the normal course of

state court proceedings, to determine whether those orders satisfy the federal criteria. It does not

add to or alter the responsibilities of Virginia courts in adjudicating custody or other matters. 22

Therefore, we hold that the jurisdiction and authority of a JDR or circuit court regarding a

juvenile immigrant seeking SIJ status is only that jurisdiction and authority to render judgments

as granted to the courts by the General Assembly. Whether such a judgment and supporting

factual findings satisfy the definition of a special immigrant as contemplated by 8 U.S.C.

§ 1101(a)(27)(J) is solely a matter for determination by officials of the Department of Homeland

Security.

22
Taken in context, the phrase “administrative or judicial proceedings” in subsection (ii)
of the SIJ statute would seem to refer to federal administrative or judicial proceedings for several
reasons. First, because the SIJ statute is a federal law, any language that does not explicitly
indicate that proceedings are to be adjudicated in a state forum should presumptively refer to
federal proceedings. Before the enactment of the SIJ statute in 1990, the Senate Committee on
the Judiciary submitted a Report detailing the nature of the entire INA. That Report sheds light
specifically on subsection (ii) of the SIJ statute because it discusses “administrative and judicial
proceedings” generally in the context of naturalization. The Report states, “Under current law,
naturalization is awarded only in judicial proceedings. . . . The committee bill permits
naturalization to be conducted under administrative, rather than judicial, process as a way of
relieving courts of the naturalization burden. The committee bill makes no changes to the
naturalization requirements.” 1 Igor I. Kavass, Bernard D. Reams, Jr., The Immigration Act of
1990: A Legislative History of Pub. L. No. 101-649 1 (1997); Immigration Act of 1989; S. Rept.
101-55 on S. 358 (June 19, 1989) at 3 [hereinafter 1989 S. Rept.]. The Report also notes that the
INA is meant to permit those “with naturalization petitions already filed to chose [sic] between
judicial and administrative naturalization.” 1989 S. Rept. at 5. Further evidence that the phrase
refers to federal judicial and administrative proceedings is evidenced by 8 U.S.C. § 1446, where
the administrative and judicial proceedings referenced expressly refer to immigration officers
and United States District Courts, respectively.
In any event, it is clear that the only “best interests” analysis involving a state court is the
one it would undertake through the application of state law pursuant to subsection (i) of the SIJ
statute and whether or not the determination made by a state court satisfies subsection (ii) is
beyond our purview; that question is reserved for the federal officials charged with the
administration of the SIJ program.
- 22 -
 d. Application in this Case

We now apply our holding above to Canales’ second assignment of error that the circuit

court “erred in declining to rule that [M.C.]’s Father had abandoned [M.C.], that reunification

with [M.C.]’s Father was not viable, and that it was not in [M.C.]’s best interests to return to

Honduras.”

In Canales’ case, the circuit court did consider and make findings on the best interest

factors contained in Code § 20-124.3 pursuant to state law, and granted her request for sole

custody of M.C. after doing so. In support of its judgment awarding sole custody of M.C. to

Canales, the circuit court made specific findings of fact that Father “has not maintained a

relationship with [M.C.] nor had positive involvement with the child’s life” and that the Father

“has played no role in the upbringing and care of the minor child throughout his life, and there is

no indication that [Father] intends to play a role in [M.C.]’s upbringing and care in the future.”

As we have already noted, it is the proper role of federal authorities, not state courts, to

determine whether state court judgments are sufficient to satisfy SIJ criteria. Nevertheless,

Canales argues that the evidence submitted to the circuit court in this case satisfied each of the

necessary best interests factors that would satisfy SIJ status, but that the circuit court erred in

crossing out the findings that had the specific SIJ statutory language. For instance, although the

circuit court found that Father had neither maintained a relationship with M.C. nor had positive

involvement in M.C.’s life, pursuant to Code § 20-124.3(3), the circuit court crossed out the next

sentence regarding a finding of abandonment under Virginia law, as would be required for an SIJ

finding. The circuit court also crossed-out phrases regarding whether reunification of M.C. with

Father is viable and whether it is in M.C.’s best interests to return to his home country. Canales

argues that the SIJ determinations as to whether M.C. should be returned to his native country

and whether reunification with Father is viable due to abandonment are “necessary and proper”

- 23 -
to the custody decision made below, and thus, the circuit court erred in failing to make those

findings. Canales asserts that the circuit court simply refused to make such determinations,

however, that is clearly not the case. Rather, the circuit court specifically held that the testimony

given at the hearing was insufficiently credible to support a finding of abandonment.

In the SIJ order, which is not appealed here, the circuit court held that much of the

testimony was hearsay and was “not sufficiently reliable to find that the Father has abandoned

the child.” Because Canales did not appeal the SIJ order, those factual findings are binding on

appeal and this Court cannot make a holding that would conflict with those findings. Maine v.

Adams, 277 Va. 230, 242, 672 S.E.2d 862, 869 (2009). Although Canales assigns error to the

crossing-out of SIJ findings in the custody order, this Court cannot re-weigh the evidence or alter

the circuit court’s credibility determinations. Wright v. Wright, 61 Va. App. 432, 460, 737

S.E.2d 519, 533 (2013) (“[W]e will not disturb the trial court’s credibility determinations.”).

The determination by a fact-finder in a trial court that a party has failed to sustain its burden of

proof or persuasion is not subject to appellate review. See Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (“In determining whether credible evidence exists,

the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make

its own determination of the credibility of the witnesses.”). Therefore, we find no error in the

circuit court’s factual conclusion that Canales’ evidence was largely based upon unreliable

hearsay and therefore that the evidence was insufficient to support a finding of abandonment of

M.C by Father. 23

23
Additionally, we note that Canales candidly conceded that, as the moving party, she
bore the burden of proof regarding any requested findings. As such, the failure of Father to
appear or put on evidence to counter the evidence offered by Canales was not dispositive if the
circuit court was not convinced by the evidence offered by Canales. SunTrust Bank v. PS Bus.
Parks, L.P., 292 Va. 644, 652, 791 S.E.2d 571, 575 (2016) (“The phrase ‘burden of proof’ refers
to two related but distinct concepts: (1) The ‘burden of production,’ which is the obligation to

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 III. CONCLUSION

For the foregoing reasons, we hold that the circuit court did not err when it found that it

lacked jurisdiction to make separate SIJ findings of fact. The Code of Virginia does not provide

such authority and 8 U.S.C. § 1101(a)(27)(J) does not in any way alter the jurisdiction of

Virginia courts. Rather, it simply allows immigrant juveniles to use certain state court judgments

and supporting factual findings—such as those made under the best interests analysis of Code

§ 20-124.3—to support a petition for SIJ status with the Department of Homeland Security.

Federal authorities then determine whether the state court findings are sufficient to meet the

requirements of the SIJ statute. Further, the circuit court did not err when it crossed out the

specific SIJ findings in the custody order, both because the circuit court was permitted to apply

only the provisions of the Code of Virginia to the custody determination and because the

unappealed factual finding that there was insufficient evidence to prove Father’s abandonment is

binding on this Court in this appeal. Accordingly, we affirm the judgment of the circuit court.

Affirmed.

come forward with evidence to make a prima facie case . . ., and (2) the ‘burden of persuasion,’
which is the obligation to introduce evidence that actually persuades the fact finder to the
requisite degree of belief that a particular proposition of fact is true.” (quoting Charles E. Friend
& Kent Sinclair, The Law of Evidence in Virginia § 5-1[a], at 298 (7th ed. 2012)) (emphasis
added).

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