FELIPE PEREZ PEREZ, Plaintiff – Appellant, v. KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services, Defendant – Appellee.
No. 18-1330
United States Court of Appeals for the Fourth Circuit
Argued: September 19, 2019 Decided: February 10, 2020
ON REHEARING EN BANC
PUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad Jr., District Judge. (3:16-cv-00748-RJC-DSC)
Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Reversed and remanded by published opinion. Judge King wrote the majority opinion, in which Chief Judge Gregory and Judges Motz, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris joined. Judge Quattlebaum wrote a dissenting opinion, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.
ARGUED: Bradley Bruce Banias, BARNWELL WHALEY PATTERSON & HELMS, LLC, Charleston, South Carolina, for Appellant. Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Chad A. Readler, Acting Assistant Attorney General, William C. Peachey, Director, Brian Ward, Senior Litigation Counsel, Sheetul S. Wall, District Court Section, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
In late 2013, at the age of sixteen, plaintiff Felipe Perez Perez fled his home country of Guatemala. Upon his arrival in the United States in early 2014, Felipe was apprehended by U.S. Customs and Border Protection and eventually released to his older brother, Mateo Perez Perez, who resided in North Carolina. In January 2015, Mateo sought legal custody of Felipe in a North Carolina court, alleging that Felipe had been abused, neglected, and abandoned by their biological parents. It was not until June 2015 that the court acted on Mateo‘s custody petition. At that point, the court conducted an ex parte hearing, granted Mateo emergency temporary custody of Felipe, and scheduled a hearing to consider permanent custody. Shortly thereafter, Felipe turned eighteen (North Carolina‘s age of majority), and the court thus cancelled the second hearing and never entered a permanent custody order.
In July 2015, Felipe applied for special immigrant juvenile (“SIJ“) status with U.S. Citizenship and Immigration Services (“USCIS,” or the “Agency“). SIJ status is a classification under the Immigration and Nationality Act (the “INA“) that permits an immigrant to pursue lawful permanent residence and, potentially, United States citizenship. As codified at
Felipe sought judicial review of the Agency‘s rejection of his SIJ application, initiating these proceedings in October
I.
Pursuant to the SIJ provision of the INA, an SIJ is “an immigrant who is present in the United States“:
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant‘s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien‘s best interest to be returned to the alien‘s or parent‘s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]
See
II.
A.
On January 20, 2015, Mateo Perez Perez filed a verified complaint in the District Court of Mecklenburg County, North Carolina, seeking both temporary and permanent custody of his brother Felipe Perez Perez on the ground that Felipe had been abused, neglected, and abandoned by their biological parents. See
As reflected in the state court‘s findings of fact, Felipe was born on July 6, 1997, to Guatemalan parents. See Custody Order 1. The court further determined that, between 2005 and 2013 — from age eight to sixteen — Felipe was “abandoned, neglected, and abused” by his biological parents, who failed “to provide safety, shelter, and food for him.” Id. at 2. More specifically, the court found the following:
Upon information from the minor child, Felipe was told that school was not an option as it would not feed him, and he was therefore not allowed to go to school. He did not learn Spanish. Instead he learned a language spoken in the mountains known as “Chu.” Since Felipe‘s parents did not work, all of the minor children were obligated to work. His younger sisters worked selling food and at the age of 8, Felipe began to work at his father‘s terrain in the mountains doing all types of field work. Despite the weather conditions in the mountains, Felipe would get sick at times since he only had one change of clothes, which he had to wash by hand. The clothes were not adequate for cold or wet weather. Felipe was obligated to walk to and from work which was about 1 hour away. He worked from 5am-6pm, 6 days a
week, with only half a day off on Sundays and was allowed only 1 meal a day. After Felipe‘s younger sister brought Felipe his daily meal, Felipe would walk his sibling back to her work and return to his. He was constantly punished for not finishing his work . . . on time. Drunk or sober, his father was vulgar and verbally abusive by telling Felipe that he was worthless. He pulled on Felipe‘s ears[] and hair and also beat him with cables. The young child could not fight back, in fear of worsening the situation. The father hit [Felipe] with a belt over his face and left him a scar. The abuse occurred about 2-3 times a week. The mother never did anything to stop the abuse from occurring. When the family held parties, the adults would drink heavily so Felipe would spend the night at his uncle‘s house to prevent any more beatings.
Id. According to the court, the abandonment, abuse, and neglect by his parents “forced [Felipe] to migrate to the United States to seek refuge with [his older brother Mateo],” in whose care Felipe “has been safe,” “attend[ing] school,” and “learning English.” Id. By contrast, “[i]f forced to return to Guatemala, [Felipe] would be completely on his own and without the proper family support system.” Id.
Among its corresponding conclusions of law, the state court ruled that “[a]n emergency situation exists that affects the welfare of [Felipe]” and that “it is in the best interest of [Felipe] that his care, custody, and control be awarded to [Mateo].” See Custody Order 3. Relevant to the requirements set forth in clauses (i) and (ii) of the SIJ provision, the court specified that “it is [in Felipe‘s] best interest for temporary and permanent custody to be awarded to [Mateo]“; that “[r]eunification with the biological parents is not viable due to abuse,
The Custody Order announced that a hearing regarding permanent custody would be held on July 22, 2015, and directed that notice be provided to Felipe‘s biological parents, as required by North Carolina law prior to the termination of parental rights. See
B.
In the meantime, on or shortly before his eighteenth birthday, Felipe applied for SIJ status. See
On July 31, 2015, USCIS issued Felipe a Notice of Intent to Deny his SIJ application (the “USCIS Notice“). Therein, the Agency identified various deficiencies it linked to clauses (i), (ii), and (iii), and it accorded Felipe thirty-three days to submit rebuttal evidence. With respect to clause (i), the USCIS Notice deemed the Custody Order defective because it “is expressly temporary in nature and does not make a finding that reunification with one or both parents is permanently not viable.” See USCIS Notice 2. The Agency failed to identify any authority in support of its view that clause (i) requires a finding of the permanent non-viability of reunification and a permanent custody order.
C.
After receiving the USCIS Notice, Felipe and Mateo returned to the North Carolina district court and obtained an Order for Judgment Nunc Pro Tunc of August 28, 2015. See Perez v. Perez, No. 15-CVD-1127 (N.C. Dist. Ct. Aug. 28, 2015) (the “Nunc Pro Tunc Order“). The Nunc Pro Tunc Order explained that, “[b]ecause [Felipe] turned 18 years old . . . after the signing of the [Custody] Order, [that] Order granting temporary custody to [Mateo] was as permanent as possible under North Carolina Law.” Id. at 1. Felipe submitted the Nunc Pro Tunc Order to USCIS as rebuttal evidence.
Nevertheless, by its Decision of September 23, 2015 (the “USCIS Decision“), USCIS denied Felipe‘s SIJ application. Although the USCIS Decision included some discussion of clauses (ii) and (iii), the Agency premised the denial on clause (i) alone. Like the USCIS Notice, the USCIS Decision interpreted clause (i) — without citation to any authority — as requiring a finding of the permanent non-viability of an SIJ applicant‘s reunification with one or both of his parents and a permanent custody order. In that regard, the USCIS Decision echoed the USCIS Notice by deeming the Custody Order defective because it “is expressly temporary in nature and does not make a finding that reunification with one or both parents is permanently not viable.” See USCIS Decision 2. Then, the USCIS Decision declared the Nunc Pro
Felipe thereafter sought a de novo review of the USCIS Decision by the Agency‘s Administrative Appeals Office (the “AAO“). By its Decision of May 9, 2016 (the “AAO Decision“), the AAO upheld the denial of Felipe‘s SIJ application and dismissed his appeal. The AAO Decision characterized the USCIS Decision as resting on the conclusion, connected to clause (i), that Felipe “was not eligible for SIJ classification because the [Custody Order] was temporary and, therefore, did not make a permanent finding of non-viability-of-reunification with one or both of [Felipe‘s] parents.” See AAO Decision 1. The AAO Decision endorsed that conclusion, subscribing to the view that clause (i) requires a finding of the permanent non-viability of reunification and, hence, a permanent custody order. As before, the Agency cited no authority to support its interpretation of clause (i), and it made clear that the fundamental defect in the Custody Order is simply that the order is not a permanent one. See id. at 3 (explaining that the Custody Order “was not a qualifying juvenile court order under [clause (i)] at the time it was issued because there was no finality to the proceedings“); id. at 4 (elaborating that the Nunc Pro Tunc Order, which deemed the temporary Custody Order “as permanent as possible,” is insufficient to “cure [the Custody Order‘s] lack of qualification [under clause (i)]“).2
D.
On October 28, 2016, Felipe initiated these proceedings against USCIS in the Western District of North Carolina. Felipe‘s Complaint seeks a court order setting aside the Agency‘s denial of his SIJ application and declaring unlawful the Agency‘s interpretation of clause (i) of the SIJ provision as requiring a permanent custody order. The Complaint includes claims under the Administrative Procedure Act (the “APA“) and the Full Faith and Credit Clause of the Constitution. On April 4, 2017, Felipe filed his motion to set aside the Agency‘s final action, and on May 5,
By its Order of March 7, 2018, the federal district court resolved to award judgment to USCIS. See Perez v. Rodriguez, No. 3:16-cv-00748 (W.D.N.C. Mar. 7, 2018), ECF No. 21 (the “District Court Order“). In assessing Felipe‘s APA claim, the court accorded deference to the Agency‘s interpretation of clause (i) and characterized it as “well supported.” Id. at 8-9. As the court put it, clause (i) “requires a proper final declaration from a state juvenile court” and disallows “temporary orders established through emergency ex parte hearings.” Id. Additionally, the court rejected Felipe‘s alternative theory of his APA claim — that, accepting the Agency‘s interpretation of clause (i), the Agency yet acted arbitrarily and capriciously by failing to deem the Custody Order permanent. Id. at 9-10. The court also rejected Felipe‘s separate claim under the Full Faith and Credit Clause. Id. at 10-11. Accordingly, the court denied Felipe‘s motion to set aside the Agency‘s final action, granted USCIS‘s summary judgment motion, and directed that this case be closed. Id. at 12. The judgment was entered that same day. See Perez v. Rodriguez, No. 3:16-cv-00748 (W.D.N.C. Mar. 7, 2018), ECF No. 22.
Argument in this appeal was initially heard by a three-judge panel that affirmed the district court‘s judgment by a split decision. See Perez v. Cissna, 914 F.3d 846 (4th Cir. 2019). Felipe sought rehearing en banc, however, and a majority of this Court‘s judges in active service voted to grant Felipe‘s petition. The panel‘s decision was thereby vacated, and our en banc Court now reviews anew the judgment of the district court. See 4th Cir. R. 35(c).
III.
Our focus is on Felipe Perez Perez‘s APA claim — particularly his challenge to USCIS‘s dispositive interpretation of clause (i) of the SIJ provision as requiring a permanent custody order. We review the district court‘s resolution of the APA claim de novo. See Defs. of Wildlife v. N.C. Dep‘t of Transp., 762 F.3d 374, 393 (4th Cir. 2014). Relevant here, the APA authorizes a court to set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See
As part of our inquiry, however, we must consider whether USCIS‘s clause (i) interpretation merits any deference. See Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 109-10 (2015). Needless to say, if statutory language is clear and unambiguous, an agency‘s interpretation thereof is not entitled to deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.“). But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843.
As explained below, we are satisfied that USCIS‘s interpretation of clause (i) is not entitled to deference and is not in
A.
The precise question before us is whether USCIS correctly concluded that Congress intended to impose a requirement for a permanent custody order when it defined an SIJ as an immigrant “whom [a juvenile court located in the United States] has . . . placed under the custody of[] . . . an individual . . . 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.” See
Utilizing ordinary rules of statutory construction, we conclude that the language of clause (i) is clear and unambiguous that neither a finding of the permanent non-viability of reunification nor a permanent custody order is required. Thus, we accord USCIS‘s contrary interpretation no deference and recognize that, by defying the plain statutory language, that interpretation is not in accordance with law. See Prudencio v. Holder, 669 F.3d 472, 480 (4th Cir. 2012) (“If, using traditional tools of statutory construction, we determine that Congress manifested an intention on the precise question [at issue], such intention must be given effect and the analysis concludes.” (citing Chevron, 467 U.S. at 842-43 & n.9)).
1.
With respect to the finding of non-viability of reunification required by the SIJ provision‘s clause (i), we apply the “fundamental canon of statutory construction . . . that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” See United States v. Mills, 850 F.3d 693, 697 (4th Cir. 2017) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). Clause (i)
Our confidence that Congress did not intend for clause (i) to demand a finding of the permanent non-viability of reunification is bolstered by the fact that, if Congress had intended such a requirement, it easily could have said so. Indeed, the very paragraph of the INA containing the SIJ provision explicitly states a permanency requirement in another context. See
2.
By concluding that clause (i) of the SIJ provision does not require a finding of the permanent non-viability of an SIJ applicant‘s reunification with one or both of his parents, we reject the foundation of USCIS‘s theory that only a permanent custody order will satisfy clause (i). Nevertheless, we also consider whether clause (i) otherwise requires a permanent custody order. That inquiry entails ascertaining the meaning of the clause (i) phrase “placed under the custody of,” and particularly the term “custody” — an inquiry in which we are guided by our decision in Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016).
In Ojo, we reviewed an interpretation by the Board of Immigration Appeals of the term “adopted” found in another INA provision. See id. at 539-41 (determining what it means to be “adopted while under the age of sixteen years,” as required by
The Ojo decision proceeded to explain that our interpretation was confirmed by viewing the INA provision “in the broader context within which Congress legislates.” See 813 F.3d at 540. As we outlined, “[a]lthough the Constitution commits to the federal legislature the power ‘[t]o establish an uniform Rule of Naturalization,’ it has long been a hallmark of our federalism principles that full authority over domestic-relations matters resides not in the national government, but in the several States.” Id. (quoting
Adhering to the Ojo approach here, we are satisfied that the term “custody,” as used in the SIJ provision‘s clause (i), retains its ordinary meaning. Therefore, “custody” refers to the “care, control, and maintenance of a child awarded by a court to a responsible adult.” See Custody, Black‘s Law Dictionary (10th ed. 2014). It “involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody [usually] grants both rights.” Id. The accepted definition of “custody” contains no temporal requirements, so that custody may be granted for a period of days, months, or years, on a temporary or permanent basis. Moreover, custody determinations are traditionally rendered by state courts applying state law. See Thompson v. Thompson, 484 U.S. 174, 186 (1988) (observing that custody orders involve “traditional state-law questions that [federal courts] have little expertise to resolve“). There is no indication anywhere in the INA, including the SIJ provision and clause (i) itself, that Congress intended to displace the common understanding of the term “custody.” As that term is commonly understood, custody may be granted by a temporary or permanent order, according to the law of the pertinent State. Consequently, clause (i) clearly and unambiguously does not require a permanent custody order.4
We underscore that, in defying the plain language of the SIJ provision, USCIS‘s interpretation of clause (i) impermissibly intrudes into issues of state domestic relations law. Most prominently, the Agency‘s interpretation demands rulings — namely, a permanent custody order and a finding of the permanent non-viability of an SIJ applicant‘s reunification with one or both of his parents — that state juvenile courts may be unwilling or unable to render. Even where such a court sees no prospect that an immigrant juvenile and his parents will ever reunite, the court may be reluctant to foreclose reunification or, in any event, may not be authorized by law to enter a permanent custody order or find that reunification is permanently non-viable. But under USCIS‘s clause (i) interpretation, a state juvenile court may have to choose between, on the one hand, exercising its full discretion and authority in child-custody matters and, on the other hand, unduly disqualifying an immigrant juvenile from SIJ status.
Of particular relevance here, North Carolina‘s Uniform Child-Custody Jurisdiction and Enforcement Act expressly includes permanent and temporary orders in its definition of a “child-custody determination.” See
As such, it does not appear that a North Carolina court could ever make a proper finding of the permanent non-viability of reunification between an immigrant juvenile and his parents, even in a permanent custody order. It certainly is not the place of USCIS to
intrude into issues of North Carolina law and tell the court that it must find the permanent non-viability of reunification and issue a permanent custody order, lest it render the immigrant juvenile ineligible for SIJ status.5
Finally, we emphasize that — even if the pertinent statutory language were ambiguous — USCIS‘s interpretation of clause (i) of the SIJ provision would not be eligible for deference. Cf. Romero v. Barr, 937 F.3d 282, 295 (4th Cir. 2019) (explaining that, “even if we were to assume that the regulations [at issue] were ambiguous, . . . the Attorney General‘s reading of the regulations does not warrant deference“).
1.
Pursuant to the Supreme Court‘s decision in Chevron, a federal court may defer to an agency‘s “reasonable interpretation” of an ambiguous statutory provision. See 467 U.S. at 844. It is only appropriate for a court to confer the considerable deference available under the Chevron doctrine, however, if the agency possesses congressionally delegated authority “to make rules carrying the force of law” and if “the agency interpretation claiming deference was promulgated in the exercise of that authority.” See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Such congressionally delegated authority is typified by the agency‘s power to engage in notice-and-comment rulemaking or formal adjudications. See id. at 230 & n.12 (listing decisions involving rulemaking and adjudications that qualified for Chevron deference).
Significantly, USCIS did not arrive at its understanding of clause (i) of the SIJ provision through either notice-and-comment rule-making, a formal adjudication, or some other means evincing an application of congressionally delegated authority to make rules carrying the force of law. The Agency merely pronounced its clause (i) interpretation in the USCIS Decision and AAO Decision denying Felipe‘s SIJ application (together, the “Agency Decisions“). It is thus clear that USCIS‘s clause (i) interpretation would not qualify for the significant deference offered under the Chevron doctrine. See Mead, 533 U.S. at 226-27.6
2.
Absent eligibility for Chevron deference, agency interpretations are only “given a level of respect commensurate with their persuasiveness.” See Ramirez v. Sessions, 887 F.3d 693, 701 (4th Cir. 2018). Under the doctrine announced by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 (1944), an agency‘s “‘specialized experience‘” may justify granting its statutory interpretation a degree of deference “proportional to its ‘power to persuade.‘” See Mead, 533 U.S. at 234-35 (quoting Skidmore, 323 U.S. at 139-40). In applying Skidmore deference, “courts have looked to the degree of the agency‘s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency‘s
The markers of persuasiveness established by Skidmore and its progeny simply do not urge any deference to USCIS‘s interpretation of clause (i). Nothing about the Agency Decisions indicates that USCIS arrived at its clause (i) interpretation by way of a careful analysis or a reliance on expertise. The Agency Decisions neither explained USCIS‘s reasoning nor identified any supporting authority, including any consistent ruling from the Agency.
Furthermore, the narrow and restrictive interpretation of clause (i) in the Agency Decisions is generally incongruous with Congress‘s efforts to expand eligibility for SIJ status and increase protections for vulnerable immigrant children. As first enacted in 1990, the SIJ provision limited eligibility for SIJ status to children who have “been declared dependent on a juvenile court located in the United States” and have “been deemed eligible by that court for long-term foster care.” See
Pertinent here, in clause (i) of the SIJ provision, the 2008 TVPRA expanded eligibility for SIJ status to include children who had been placed by a court under the custody of an individual. It also eliminated the requirement that an SIJ applicant be deemed eligible for long-term foster care and instead more generously conditioned eligibility on the non-viability of the applicant‘s reunification with one or both parents. USCIS has sought to frustrate the 2008 TVPRA‘s aim of qualifying more immigrant children for SIJ status, however, by pronouncing in the Agency Decisions that an SIJ applicant placed under the custody of an individual must present a permanent custody order and a finding of the permanent non-viability of reunification.7
* * *
In sum, the clause (i) interpretation in the Agency Decisions would not be entitled to Chevron deference, having not been derived through notice-and-comment rulemaking, a formal adjudication, or some other means evincing the exercise of congressionally delegated authority to make rules carrying the force of law. Nor would that interpretation merit Skidmore deference, in that the Agency has not
IV.
Although several of our good colleagues join in a dissenting opinion today, they do not defend USCIS‘s interpretation of clause (i) of the SIJ provision as requiring a permanent custody order. Instead, the dissent denies the reality that the Agency rejected Felipe Perez Perez‘s SIJ application on the bare premise that he was obliged, but failed, to present a permanent custody order and a corresponding finding of the permanent non-viability of reunification with one or both of his parents. Strikingly, even the portions of the Agency Decisions quoted in the dissent make clear that USCIS imposed a categorical requirement for a permanent custody order. See, e.g., post 37 (acknowledging that the Agency pronounced the Custody Order deficient because it “is expressly temporary in nature and therefore does not make the finding that reunification with one or both parents is permanently not viable” (quoting USCIS Decision 3)). Yet the dissent insists that the Agency conducted an individualized assessment of Felipe‘s SIJ application.
As the dissent has reshaped them, the Agency Decisions deemed Felipe‘s Custody Order insufficient under clause (i) not simply because it is temporary, but specifically because it was awarded in emergency ex parte proceedings. Of course, the Agency Decisions did not state such a rationale or otherwise articulate that a temporary custody order could ever be sufficient. So, the dissent is left to rely on inferences it draws from the Agency Decisions “read in their totality” that those Decisions turned on the fact that the Custody Order resulted from an ex parte hearing. See post 40. The dissent also treats as significant USCIS‘s feeble assertion, when prodded at oral argument before our en banc Court, that it is possible some other temporary custody order may somehow and someday satisfy clause (i). At bottom, the dissent rests on a house of cards and reviews not what the Agency Decisions actually said, but what our dissenting colleagues suggest those Decisions could have and should have said.
Concomitantly, the dissent rewrites our majority opinion in order to criticize it — in quite dramatic terms — as an assault on both the authority of USCIS and the rights of foreign parents. According to the dissent, we require USCIS to “bury its head in the sand” and “ignore [a custody] order‘s terms and the circumstances under which it was obtained” whenever the “order contain[s] certain magic words.” See post 31 (footnote omitted). The dissent further proclaims that we “sanction” Felipe‘s use of “courts in the United States to terminate the custodial rights of his parents living in another country with a motion they did not even know about.” See id. at 32-33 (asserting that “[i]f another country did this to American parents, there would be universal and justifiable outrage“).
Contrary to the dissent, our opinion narrowly and straightforwardly rejects USCIS‘s interpretation of clause (i) as requiring a permanent custody order, and we thus remand for further consideration of Felipe‘s SIJ application. We do not identify any “magic words” that guarantee SIJ status, and we do not command that such status be awarded to Felipe or anyone else. Moreover, we do not — and cannot — endorse the termination of Felipe‘s parents’
Perhaps the most egregious aspect of the dissent is that it accuses us of “plac[ing] this Court‘s stamp of approval on a brazen scheme to game our federal immigration system.” See post 32. That is, despite the lack of any determination from the North Carolina district court or even from USCIS that Felipe has acted dishonestly or corruptly, the dissent boldly declares that Felipe engaged in an “obvious manipulation of the state juvenile court to circumvent federal immigration laws.” See id. The dissent specifically finds that Felipe “used, at best, dubious claims of an emergency to obtain an ex parte order at a time close enough to his eighteenth birthday that the order would never receive a proper review.” See id. And, as if it demonstrates bad intent, the dissent points to the request in Mateo Perez Perez‘s complaint for custody of his brother Felipe “that the North Carolina court make the precise findings that would permit [Felipe] to apply for SIJ status and then apply for a permanent visa to remain in the United States.” See id. at 34 (commenting that the “benefits [of obtaining SIJ status] were far from lost on [Felipe]“).
The dissent‘s endeavor to demonize Felipe is wholly inappropriate, unfair, and dispiriting. First of all, the principle “that appellate courts do not make factual findings” is an “axiomatic” one. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 419 (4th Cir. 2010) (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) (“It is a basic tenet of our legal system that, although appellate courts often review facts found by a judge or jury . . . , they do not make such findings in the first instance.“)). The dissent‘s fact finding is particularly objectionable here because it tramples upon the exclusive authority of the North Carolina district court to adjudicate Felipe‘s custody. See Adoptive Couple v. Baby Girl, 570 U.S. 637, 656 (2013) (Thomas, J., concurring) (emphasizing that “domestic relations is an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)); cf. Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (explaining that “it is well understood that, in the United States, our various state courts exercise full authority over the judicial act of adoption“).
Furthermore, the dissent‘s theory that Felipe acted dishonestly and corruptly is in no way compelled by the record. Indeed, many of the adverse inferences that the dissent draws against Felipe are patently unreasonable. For example, without acknowledging that Mateo filed his complaint for custody of Felipe nearly six months before Felipe turned eighteen, the dissent finds that Felipe plotted to obtain an unreviewable emergency custody order from the North Carolina district court within days of his eighteenth birthday. And although Felipe was required by federal regulation to submit to USCIS a state juvenile court order containing findings necessary to his SIJ application, see
There is no justification for the dissent‘s dismal portrait of Felipe. The North Carolina district court certainly did not indicate that it thought itself manipulated in the custody proceedings, and USCIS did not attribute its rejection of Felipe‘s SIJ application to any chicanery. Rather, the state court gave every indication it believed that Felipe was the victim of abuse, neglect, and abandonment by his biological parents in Guatemala and that placing him in the custody of Mateo was in Felipe‘s best interests. Thereafter, USCIS denied Felipe SIJ status solely because he lacked the type of custody order — a permanent one — that the Agency has interpreted clause (i) of the SIJ provision to require. All we say today is that, because USCIS‘s clause (i) interpretation is not in accordance with law, the Agency must take another look at Felipe‘s SIJ application.8
V.
Pursuant to the foregoing, we reverse the judgment of the district court and remand with instructions to grant Felipe Perez Perez‘s motion to set aside the Agency‘s final action. The court may conduct such other and further proceedings as are appropriate.
REVERSED AND REMANDED
QUATTLEBAUM, Circuit Judge, with whom Judges WILKINSON, NIEMEYER, AGEE, RICHARDSON, and RUSHING join, dissenting:
This should be a simple case. In accordance with
But we, in adopting Perez‘s arguments, have cast aside the applicable standard of review under the Administrative Procedure Act (“APA“) and substituted our judgment for that of the Agency. Under our reasoning, if a SIJ petitioner presents the Agency with an order containing certain magic words, it must—like the proverbial ostrich—bury its head in the sand1 and ignore the order‘s terms and the circumstances under which it was obtained.
Our justification for this deviation from our standard of review is a false premise—that the Agency imposed a blanket requirement that SIJ predicate custody orders must be permanent. However, try as one might, one will not be able to find any such sweeping requirement in either the Agency‘s decision or that of the Administrative Appeals Office (“AAO“). In fact, a review of those decisions reveals that the temporary nature of the state court order was just one of several factors upon which the Agency relied in concluding that the order did not satisfy the SIJ requirements under the INA. And without Perez‘s false premise, his argument should fail.
What‘s more, our decision places this Court‘s stamp of approval on a brazen scheme to game our federal immigration system. As explained below, Perez used, at best, dubious claims of an emergency to obtain an ex parte order at a time close enough to his eighteenth birthday that the order would never receive a proper review. This obvious manipulation of the state juvenile court to circumvent federal immigration laws should be condemned. Instead, we reward it in a way that will regrettably encourage others to do the same.
Making matters worse, this scheme not only manipulates the immigration laws passed by Congress, but it also has real victims—Perez‘s parents. Perez used courts in the United States to terminate the custodial rights of his parents living in another country with a motion they did not even know about. If another country did this to American parents, there would be universal and justifiable outrage. Yet today, we sanction just such a scenario.
For these reasons, I dissent.
I.
Perez was born in Guatemala on July 6, 1997. He left his home in 2013. In January 2014, at the age of sixteen, he entered the United States illegally. The border authorities apprehended Perez and, in February 2014, transferred him to live with his brother in North Carolina pending his removal hearing.
In January 2015, about a year later, his brother filed a complaint in North Carolina state court seeking temporary and permanent custody over Perez and the termination of Perez‘s parents’ custodial rights. In June 2015, just before Perez turned eighteen, his brother filed an ex parte motion seeking an order for temporary emergency custody asserting Perez faced actual abuse and neglect. In an affidavit filed with this motion, Perez or his brother (the record does not tell us) swore the emergency Perez faced was abuse and neglect by his parents. Significantly, however, at the time the motion was filed, Perez had been in the custody of his brother in the United States, approximately 2,700 miles away from his Guatemalan parents, for over a year and a half. On June 29, 2015, based on the affidavit asserting an emergency, the North Carolina state court granted Perez‘s brother emergency temporary custody over Perez. The state court‘s findings were based solely on the ex parte affidavit without any
As far as we know, neither Perez nor his brother provided such notice. And the July 22, 2015 hearing, which was scheduled to actually determine custody of the minor child, never happened. On July 6, 2015, just one week after the ex parte emergency order, Perez turned eighteen. Reaching the age of majority deprived the North Carolina juvenile court of jurisdiction over Perez. On the very day he turned eighteen, Perez took the emergency order, which he obtained without ever notifying his parents, to the Agency and petitioned for SIJ status.
The benefits of obtaining SIJ status can be substantial. For Perez, SIJ status makes him eligible for lawful permanent status, waiving potentially disqualifying facts such as his unlawful entry. In the initial complaint for child custody, in fact, Perez‘s brother made the specific request that the North Carolina court make the precise findings that would permit Perez to apply for SIJ status and then apply for a permanent visa to remain in the United States. These benefits were far from lost on Perez.
But before a petitioner like Perez can obtain SIJ status, he must submit a petition that is approved by the Agency for compliance with the SIJ requirements. The requirements are found in the statutory definition of a SIJ. Under
(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[.]2
The SIJ definition can be broken down into two components. First, a petitioner must submit a predicate order that satisfies subsections (i) and (ii). The Agency is charged with reviewing the petition and the order for statutory compliance. Second, under subsection (iii), the Agency must consent to the petition. In exercising its statutory consent function, the Agency
In response to Perez‘s petition for SIJ status, on or around July 31, 2015, the Agency issued its Notice of Intent to Deny. It pointed out that the Agency must consent to the petition and noted concerns about the ex parte, emergency order. It explained:
The Order Granting Ex Parte Temporary Custody is expressly temporary in nature and does not make a finding that reunification with one or both parents is permanently not viable. The order submitted specifically states that the terms of the order remain in effect until the next court date of July 22, 2015. The petitioner did not submit any subsequent court orders or any other evidence of additional custody determinations made by the juvenile court as evidence that the order is a permanent finding. Additionally, the court order does not make specific factual findings to support the statement that it is not in the best interest of the petitioner to be returned to Guatemala.
J.A. 85.
Attempting to salvage his petition, Perez returned to the North Carolina state court seeking another ex parte order. On August 28, 2015, the North Carolina juvenile court issued a second ex parte order, this time for judgment nunc pro tunc. That order found: (1) an action for ex parte temporary emergency child custody was instituted by Perez‘s brother; (2) an order granting ex parte temporary emergency child custody was granted on June 29, 2015; and (3) “[b]ecause the child turned 18 years old four days after the signing of the Order, the Order granting temporary custody to Plaintiff was as permanent as possible under North Carolina Law.” J.A. 88. Perez supplemented his SIJ petition with this nunc pro tunc order. On September 23, 2015, the Agency denied Perez‘s petition for SIJ status. The Agency repeated the concerns set forth in its Notice of Intent to Deny, but also explained the nunc pro tunc order “does not overcome the fact that the custody order submitted is expressly temporary in nature and therefore does not make the finding that reunification with one or both parents is permanently not viable.” J.A. 27. It also held that “[t]he record is not sufficient to support USCIS‘s consent to SIJ status.” J.A. 27.
After Perez appealed, the AAO reviewed the Agency‘s decision de novo and dismissed the appeal. In its decision, the AAO noted that the Act requires the Agency‘s consent. It then evaluated the orders submitted by Perez in the context of North Carolina appellate decisions on ex parte, emergency orders. Based on those decisions, it held “the nunc pro tunc order does not cure the underlying deficiency of the ex parte emergency order, which is that the ex parte emergency order was obtained through a proceeding that allows a juvenile court to take temporary jurisdiction over a child when necessary in an emergency to protect the child and defers custody determinations to a subsequent hearing.” J.A. 22. It explained “[o]nly in the hearing scheduled for July 22, 2015, could the juvenile court have determined the viability of the Petitioner‘s reunification with one or both parents and the resulting custody issues.” J.A. 22. Last, the AAO concluded, “[t]he Petitioner is ineligible for SIJ classification because the
Perez later filed a complaint in the Western District of North Carolina against the Director of the Agency, seeking declaratory relief and review of the AAO‘s decision under the APA. Perez moved to set aside final agency action claiming the Agency and the AAO imposed an ultra vires requirement that the predicate custody order required by the SIJ application process be permanent. Alternatively, Perez argued the Agency and AAO acted arbitrarily or capriciously in differentiating between temporary emergency custody orders and permanent custody orders. The Agency moved for judgment on the record affirming the denial of the SIJ application.
The district court rejected Perez‘s claims. In concluding that the ex parte, emergency custody order did not satisfy the SIJ statute, the district court found that the Agency and AAO did not act arbitrarily and capriciously. Instead, the district court held they simply gave the ex parte, emergency order the same effect it would have been given in North Carolina. The district court thus denied Perez‘s motion to set aside final agency action and granted the Agency‘s motion for judgment on the record.
II.
Perez‘s initial argument before this Court rises and falls on single faulty premise. He mistakenly contends the Agency imposed a requirement that a custody order be permanent. He then argues that such a requirement is ultra vires and unlawful. His second argument is related to the first. For basically the same reasons, Perez also argues that the Agency‘s decision that the ex parte, emergency order did not comply with the SIJ statute was arbitrary and capricious. Both mischaracterize the decisions of the Agency and the AAO and are at odds with our required standard of review.
A.
Although this should be a straightforward case about a federal administrative agency performing its statutory duties, Perez incorrectly claims the Agency imposed an ultra vires “permanency” requirement on custody orders submitted with SIJ petitions. He argues that neither the text, structure nor history of the SIJ statute requires a qualifying custody order to be permanent. Perez argues the INA does not include temporal language pertaining to the required order, and claims the Agency, in requiring an order to be permanent, has gone beyond its delegated authority.
But we must keep in mind that the Court‘s review under the ultra vires standard is “necessarily narrow.” Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., 698 F.3d 171, 179 (4th Cir. 2012). This Court should not “dictate how government goes about its business. . . . ” Id. Instead, this Court‘s role is only to determine whether an agency “has acted within the bounds of its authority or overstepped them.” Id. (internal citations and quotation marks omitted). Government action is ultra vires if an agency or other government entity “is not doing the business which the sovereign has empowered [it] to do or [it] is doing it in a way which the sovereign has forbidden.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949). We have no such conduct by the Agency here.
First, the foundation of Perez‘s argument—that the Agency and the AAO imposed
Thus, when read in their totality, the decisions of the Agency and the AAO do not, as Perez insists, impose a sweeping permanency requirement binding across the board. Instead, they merely reviewed Perez‘s particular order and found that it did not meet the statutory SIJ requirements. In fact, as the Agency acknowledged at oral argument, it is possible an order that by its terms is temporary, but was issued after notice to all parties
and a hearing where all parties had the right to present their positions, would qualify under the SIJ statute. Certainly nothing in the decisions of the Agency nor the AAO would preclude such a result.
Second, determining whether an order meets the federal statutory requirements does not exceed or conflict with the Agency‘s authority. To the contrary, such a determination is exactly what the Agency has been tasked to do. Perez contends the INA‘s silence as to whether an order like the one he submitted qualifies under the SIJ statute somehow means the Agency cannot conclude that his order fails to satisfy the SIJ requirements. But administrative agencies must discharge their legislatively delegated duties, and we routinely defer to them in that work. Our holding puts a straitjacket on the Agency—and other agencies if we apply this same approach consistently—in reviewing state court orders submitted with SIJ petitions under
Indeed, the Agency was required to analyze whether the order complied with the SIJ requirements by the INA and the accompanying regulations. Under
Perez‘s ultra vires argument is based on a false premise and is misguided. We should reject it because it would unnecessarily restrict the Agency from doing one of the very jobs Congress, in the INA, empowered it to do.
B.
Perez‘s alternative argument is related to his first. He contends that if the Agency‘s determination that the ex parte, emergency order failed to satisfy the requirements of the SIJ statute was not ultra vires, it was arbitrary and capricious. To support his argument, Perez points out the ex parte, emergency order found that “(1) it has jurisdiction over Felipe Perez Perez and that he is dependent on this Court; (2) Reunification with the biological parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; (3) it is not in Felipe Perez Perez‘s best interest to return to Guatemala; and (4) it is Felipe Perez Perez‘s best interest for temporary and permanent custody to be awarded to the Plaintiff.” J.A. 129. Perez argues that language satisfies the SIJ statute, establishes that his order was “permanent enough,” and demonstrates that the Agency‘s decision to the contrary constitutes arbitrary and capricious second guessing of the state court by the Agency.
As an initial matter, as with the ultra vires issue, we must employ a deferential standard of review here. The Supreme Court has indicated that the “scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. . . .” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983) (internal citation omitted). Following the Supreme Court, we have held that if the agency has followed proper procedures and has presented a rational basis for its decision, we will not disturb the agency‘s judgment. Webster v. U.S. Dep‘t of Agric., 685 F.3d 411, 422 (4th Cir. 2012). As long as the Agency “provide[s] an explanation of its decision that includes a rational connection between the facts found and the choice made,” its decision should be sustained. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (internal citations and quotation marks omitted). As described below, the Agency‘s decision shows the clear, rational path for its decision.
First, Perez‘s suggestion that the Agency‘s decision second guesses the North Carolina state court finds no support—not even a little—in the record. Neither the Agency nor the AAO criticized the state
Next, in making its determination, the Agency appropriately explained its rationale. Its decision, and the AAO‘s, when read in their entirety, explain that the Agency‘s determination was based on the emergency, ex parte characteristics of the state court order. The state court order plainly indicates it was to maintain the status quo based on the alleged emergency. The order was only to last from June 29, 2015, until July 22, 2015, a mere three weeks. The order was issued without notice to Perez‘s parents and based on information provided only by Perez‘s brother without an opportunity for those allegations to be challenged, contested or opposed by Perez‘s parents before an outcome that altered their parental rights.
Moreover, the Agency‘s determination that the order did not qualify as a SIJ predicate order because of those emergency, ex parte characteristics was consistent with applicable North Carolina law. The North Carolina legislature provides the statutory basis for temporary emergency jurisdiction. “A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”
Further, although a North Carolina court has jurisdiction to terminate the parental right of any parent irrespective of the state of residence of the parent, before exercising jurisdiction over the parental rights of a nonresident parent, “the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201 or G.S. 50A-203, without regard to G.S. 50A-204 and that process was served on the nonresident parent pursuant to G.S. 7B-1106.”
The import of these provisions and the North Carolina case law is clear. An order issued pursuant to the North Carolina court‘s temporary emergency jurisdiction is issued to address the alleged emergency until a hearing with notice to all parties can be held. But “[b]efore a child-custody determination is made under this Article, notice and opportunity to be heard. . . must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”
Yet Perez ignores these failings and, unfortunately, we do the same. According
And our decision in Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016) does not justify this departure from the deferential standard of review. That case involved an across-the-board administrative interpretation of the effective date of an adoption and the Board of Immigration Appeals‘s associated policy of summarily disregarding nunc pro tunc orders relating to adoptions issued by various state courts. Ojo, 813 F.3d at 538. The applicable federal regulations in Ojo provided that adoptions that became effective after a child turned sixteen were ineffective for federal immigration purposes. In the face of that limitation, the state domestic court specifically held that the effective date of the adoption at issue occurred before the child turned sixteen. Id. at 536. In response, the federal agency contradicted the state court by determining the effective date of the adoption was the date the order was entered, which was after the child turned sixteen. It did so based upon a widespread BIA “rule” and interpretation of
Last, in reviewing the Agency‘s decision, it is critical to remember that our question is not whether we would have made the same decision as the Agency if we were sitting in its shoes. The question is whether the Agency‘s decision was arbitrary or capricious. Far from that, the Agency‘s decision was reasonable. It was based on the terms of the order and consistent with North Carolina appellate decisions on the legal effect of such orders. Further, both the Agency and the AAO explained their reasoning in the decisions. Under these circumstances, based on the applicable standard of review, we should affirm. In my view, our contrary conclusion fails to apply the appropriate standard of review and substitutes our judgment for that of the Agency.
III.
Finally, in addition to suffering from the legal deficiencies described above, I fear our decision will have serious and far reaching ramifications. First, in adopting Perez‘s arguments, we sanction a scheme to game United States immigration laws. As noted above, Perez‘s brother alleged to a court of law and either Perez or his brother swore in an affidavit that temporary emergency custody of Perez was needed to protect Perez from imminent, serious physical harm from Perez‘s parents. But at the time the motion containing this allegation and the supporting affidavit were filed, his parents were still in Guatemala. In other words, Perez had been in the United States, over 2,700 miles from his parents, for over a year. When asked by the panel at oral argument the basis of the purported emergency, counsel for Perez was unable to provide any explanation. He likewise provided none before the entire court sitting en banc. No one, at any
If there was an actual emergency, one would expect Perez‘s brother to have filed the motion for an emergency order at the time the complaint was filed, or even sooner. But he did not do so. Instead, he waited until June 2015, just weeks before Perez turned eighteen, to file the motion.4 By doing so, Perez was able to obtain the ex parte, emergency order without any meaningful examination of the allegations since the parents had no way to know the motion was even filed. And since Perez was about to turn eighteen on July 6, Perez and his brother knew the July 22, 2015 hearing the state court ordered would never happen. Perez‘s scheme makes a mockery of the immigration laws passed by Congress. What‘s more, by sanctioning this scheme, we are sending the clear message: Gaming the federal laws is fine with us. Keep doing it.
In insisting the record does not support my characterization of Perez‘s conduct, the majority invokes John Adams’ famous reminder that “facts are stubborn things.” Indeed they are. The fact here is that the purported emergency on which Perez‘s motion was based involves events that occurred years ago and thousands of miles away. J.A. 116-117. The fact here is that Perez‘s brother waited until just before Perez turned eighteen to seek emergency relief. J.A. 88, 127. The fact here is that Perez‘s brother sought emergency custody of Perez without providing any notice to their parents in Guatemala. J.A. 88-89, 129-130. The fact here is that the order on which Perez‘s SIJ petition was based only preserved the status quo until a hearing with due process rights could be held. J.A. 130. All these facts are plainly in the record, and my good colleagues in the majority do not suggest otherwise. They simply come to a different, and in my view implausible, conclusion about them.5
Third, beyond the damage to our immigration laws, this scheme and our approval of it marginalizes the importance of parents having custody over their children. Our decision approves a scheme that terminated the custodial rights of Perez‘s parents without a scintilla of due process. Here, although North Carolina law requires notice and a hearing for a custody determination, Perez made an end run around that requirement with his dubious claim of emergency. And although an emergency order normally only holds the status quo in place until a hearing of which all parties receive notice and are given an opportunity to be heard, Perez‘s strategic timing of the emergency motion in relation to his eighteenth birthday assured that hearing would not take place. Then, the INA and its accompanying regulations, which assume that the state court order would have been carried out with due process protections, do not require the parents to be notified of the SIJ petition. Perez‘s scheme, like a thief in the night, terminates his parents’ custodial rights without the parents even knowing.
Last, these results would be bad enough if they affected American citizens. But here, courts in the United States are being used to eviscerate the rights of citizens of Guatemala whose parental rights should be governed by the laws of that country. Imagine the outrage we would rightly feel if another country‘s courts terminated the custodial rights of American citizen parents over an American child. International comity means nothing if schemes like this are endorsed.
For these reasons, I dissent.6