Another Special Immigration Juvenile petition arrives at the Court of Appeals
The September 2018 Term could become known as the “SIJ Term” for the Maryland Court of Appeals. “SIJ” stands for Special Immigrant Juvenile status under a federal statute, 8 U.S.C. § 1101(a)(27)(J). As the U.S. Citizenship and Immigration Services website says, “you may qualify for lawful permanent residency (also known as getting a Green Card)” if “you are in the United States and need the protection of a juvenile court because you have been abused, abandoned, or neglected by a parent.”
Although the Court of Appeals has been granting certiorari in fewer cases than usual so far this term, it has given close attention to petitions in SIJ cases. Three of its 62 grants have involved SIJ status.
Requests for SIJ status involve state law, because the SIJ statute has an interesting federalism component. It requires the applicant to obtain an order from a state court. As the USCIS website further explains, the immigrant must:
The General Assembly gave equity courts express authorization to entertain SIJ petitions in 2014. It amended Family Law § 1-201 as follows:
(a) For the purposes of subsection (b)(10) of this section, “child” means an unmarried individual under the age of 21 years.
(a)(b) An equity court has jurisdiction over:
(1) adoption of a child, except for a child who is under the jurisdiction of any juvenile court and who previously has been adjudicated to be a child in need of assistance;
(3) annulment of a marriage;
(5) custody or guardianship of a child except for a child who is under the jurisdiction of any juvenile court and who previously has been adjudicated to be a child in need of assistance;
(6) visitation of a child;
(7) legitimation of a child;
(8) paternity; and
(9) support of a child; and
(10) custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile factual findings requesting a determination that the child was abused, neglected, or abandoned before the age of 18 years for purposes of § 101(a)(27)(j) of the federal Immigration and Nationality Act.
This past July, the Court of Appeals granted certiorari in two SIJ cases. In Garcia v. Panameno—addressing continuing jurisdiction if no order issues before the minor’s 21st birthday—the petitioner dismissed the appeal before argument. In the other case, Romero v. Perez, the Court entered a post-argument order (opinion to follow) reversing the denial of SIJ status and remanding for entry of an “amended order that includes the requisite [SIJ Status] finding that [the minor’s] reunification with his mother is not viable due to the unrefuted evidence of neglect presented to the Circuit Court.” Then, on an emergency petition that I filed December 19, the Court on January 4 entered a summary order, In re Lopez Perez, requiring the circuit court to issue a new order making SIJ status findings.
A January 10 petition, No. COA-PET-471-2018, could become the Court’s fourth SIJ grant of the term. In an unreported opinion last month, In re W. E-R, the Court of Special Appeals affirmed an order of the Frederick County Circuit Court denying a guardianship petition brought by the minor immigrant’s brother. It agreed with the circuit court that, under In re Guardianship of Zealand W., 220 Md. App. 66 (2014), guardianship proceedings were inappropriate because the minor’s mother was still alive. The Court of Special Appeals noted that its “holding has no effect on a child’s ability to seek SIJ status through a custody proceeding.”
I hope that the Court of Appeals grants the In re W. E-R. petition, which raises an important recurring question. I am aware of at least one other case (in which motion for reconsideration is pending) where the Frederick County Circuit Court, citing exactly the same reasons, denied a guardianship seeking SIJ status. More generally, a circuit judge from another county told me last week that SIJ petitions, often filed pro se, have become a serious challenge.
The In re W. E-R petition asks the Court of Appeals to abrogate Zealand W. entirely, to allow case-by-case determinations of whether guardianship is appropriate if one or both parents are alive. I’m curious, however, if the Court might consider a narrower approach.
Zealand W. addressed an ordinary request for “custody or guardianship of a child” under Family Law § 1-201(b)(5). It was not a proceeding for “custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile factual findings” under subsection (b)(10). Even if the Court of Appeals is not prepared to overrule Zealand W. at this time, it could hold that Zealand W. does not control (b)(10) guardianships.
When adding statutory provisions for SIJ findings, the General Assembly did not modify the rules for an ordinary custody or guardianship proceeding brought under § 1-201(b)(5). Instead, it created an independent jurisdictional basis for SIJ findings at subsection (b)(10). And, although the federal statute requires that the minor be “placed under the custody of … an individual or entity appointed by a State or juvenile court,” there does not appear to be any requirement that a state define guardianship or custody identically within and without the SIJ context.[*]
Assuming Zealand W. was correct that (b)(5) guardianship is impossible when at least one parent is alive, that interpretation need not carry over to (b)(10) guardianships. Under subsection (b)(10) and federal law, the central question is whether the minor “was abused, neglected, or abandoned,” not whether the minor is an orphan.
The In re W. E-R opinion left open the possibility that a custody petition, instead of a guardianship petition, may be appropriate. But the implication is that, on a subsequent custody petition, the (b)(5) standard for custody would control. Custody for non-parents is itself a complex question, with its own set of restrictions.
The Court of Appeals could instead hold that (b)(10) guardianship or custody will generally be appropriate if abuse, neglect, or abandonment has occurred—and that limitations on ordinary guardianship and custody should apply only to the extent consistent with the nature and purpose of SIJ status.