Celso Monterroso Romero v. Josefa Perez
No. 27
IN THE COURT OF APPEALS OF MARYLAND
April 1, 2019
Opinion by Barbera, C.J.
Circuit Court for Baltimore City, Case No. 24-D-15-002928. Argued: Friday, November 30, 2018. September Term, 2018.
IMMIGRATION — SPECIAL IMMIGRANT JUVENILE STATUS — BURDEN OF PROOF — The burden of proof in Special Immigrant Juvenile (“SIJ”) status proceedings is the preponderance of the evidence standard, the standard generally applicable in civil cases in Maryland. Accordingly, SIJ petitioners must prove that they satisfy the requisite SIJ status eligibility criteria, enumerated under federal law, by a preponderance of the evidence.
IMMIGRATION — SPECIAL IMMIGRANT JUVENILE STATUS — LEGAL STANDARD — VIABILITY OF REUNIFICATION — ABUSE, NEGLECT, OR ABANDONMENT — The circuit court must apply a broad legal standard in SIJ status proceedings to determine if a child immigrant’s reunification with a parent is not viable due to abuse, neglect, or abandonment. Specifically, the court must evaluate the totality of the circumstances—which may include the lifelong history of the child with the parent, the effect reunification might have on the child, and the realistic facts on the ground in the child’s home country—to decide whether reunification is viable. In doing so, the circuit court should be mindful that it is not a gatekeeper tasked with approving SIJ petitions; it is merely a fact finder. The circuit court is not tasked with engaging in an exacting inquiry regarding whether abuse, neglect, or abandonment occurred in a technical sense; rather, the court must determine whether, broadly speaking, prior parental mistreatment precludes a workable reunification.
Case No. 24-D-15-002928
Argued: Friday, November 30, 2018
IN THE COURT OF APPEALS OF MARYLAND
No. 27
September Term, 2018
CELSO MONTERROSO ROMERO
v.
JOSEFA PEREZ
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Adkins, Sally D., (Senior Judge, Specially Assigned)
JJ.
Opinion by Barbera, C.J.
Filed: April 1, 2019
One such policy, the application of which is at issue here, is an immigration classification titled “Special Immigrant Juvenile (“SIJ”) Status,” which protects undocumented immigrant children residing in the United States from being reunified with an abusive parent in the child’s home country. See Immigration and Nationality Act,
The present case was initiated in the Circuit Court for Baltimore City. In a proceeding before that court, Celso Monterroso Romero, Petitioner, sought sole custody of his then seventeen-year-old son, R.M.P., an undocumented minor and Guatemalan native.12 Petitioner
Petitioner noted a timely appeal to the Court of Special Appeals. In a reported opinion, the intermediate appellate court determined preliminarily that the proper standard of proof in SIJ cases is not “clear and convincing evidence” but rather the lower “preponderance of the evidence” standard. Romero v. Perez, 236 Md. App. 503, 509 (2018). Then, applying that standard to the record before it, the court concluded that, even under the lower standard, Petitioner had not provided sufficient evidence to support a finding of neglect. Id. at 510.
Petitioner sought, and we granted, further review in this Court. On December 7, 2018, following oral argument, we issued a per curiam order reversing the judgment of the Court of Special Appeals and remanding the case to that court with instructions to vacate the circuit
I.
The SIJ Status Process
We begin with an overview of the SIJ status process.6 Congress created SIJ status to “provide humanitarian protection for abused, neglected, or abandoned child immigrants” who lack immigration status.7 U.S. Citizenship and Immigration Services (“USCIS”), Policy
The application process for SIJ status is set forth in the Federal Immigration and Nationality Act and involves two primary steps. First, the child, or, as here, someone acting on the child’s behalf, must obtain a predicate order from a state juvenile court that includes certain factual findings regarding the “child’s eligibility for SIJ status.” Id. Without that order, “a child cannot apply . . . for SIJ classification.” Id.; see also
Judge Zarnoch, writing for the Court of Special Appeals in Simbaina v. Bunay, 221 Md. App. 440 (2015), aptly noted that the process for attaining SIJ status is atypical in that “a State juvenile court is charged with addressing an issue relevant only to federal immigration law.”10 221 Md. App. at 449 (citation omitted). The State court’s role is limited, however, to rendering findings about SIJ status eligibility; the findings do not confer any immigration benefits. See USCIS Info for Juvenile Courts. Only USCIS has authority to approve SIJ petitions. See USCIS Policy Manual, Vol. 6, Part J, Ch. 4, § A.
Federal regulations define “juvenile courts” as “court[s] . . . having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.”
The Court of Special Appeals has held, and we agree, that when a party requests SIJ status findings in his or her pleadings, the circuit court must undertake the fact-finding process
Under federal law, a minor is eligible for SIJ status “if he or she is present in the United States, unmarried, under the age of 21,” and
- . . . 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 [and]
- 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.
Id. at 450-51 (quoting
- The minor is presently in the U.S., unmarried, and under the age of 21;15
- The minor is dependent on the court or has been placed under the custody of a state agency/department or individual/entity appointed by the court;
- The presiding court has jurisdiction under Maryland law to make determinations about the minor’s custody and care;
- Reunification with one or both of the minor’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law;16 and
It is not in the minor’s best interest to return to his or her country of nationality or last habitual residence.
See 223 Md. App. at 714-15 (internal citations omitted) (extrapolating these requirements from
II.
The Present Case
A. Circuit Court Proceedings.
This case began in September 2015 when Petitioner, a Baltimore City resident, filed a complaint in the Circuit Court for Baltimore City seeking sole legal and physical custody of his son, R.M.P. Petitioner simultaneously filed a separate motion requesting the court to
Petitioner and R.M.P. testified at the October 2016 hearing. Their testimony was uncontroverted. The testimony revealed that R.M.P. was born to Petitioner and Perez in San Juan Ostuncalco, Quetzaltenango, Guatemala, in 1998. The parties separated in 2000, and Petitioner immigrated to the United States around 2004. R.M.P. lived with Perez after Petitioner left Guatemala, but Petitioner remained in weekly contact with R.M.P. and attempted to support him financially, though Perez misappropriated those funds.
In 2008, when R.M.P. was ten years old, Perez began forcing R.M.P. to work in dangerous conditions. In addition to mandating farm labor (planting potatoes and “moving earth”), Perez also required R.M.P. to journey barefoot into the mountains, unsupervised and surrounded by venomous snakes, to gather heavy loads of firewood. Perez would punish R.M.P. if he did not haul enough wood. In 2012, R.M.P. fell and injured his wrist. Perez did not seek medical attention for her son and the injury persisted.
The forced labor occurred daily for seven years and ceased only when R.M.P. fled to the United States in 2015. R.M.P.’s education suffered; he was unable to complete his
In response to this testimony, the circuit court found that Petitioner was “fit and proper to have custody of his son and that . . . [it is] in [R.M.P.’s] best interest” to remain with Petitioner. The court therefore granted Petitioner’s request for sole legal and physical custody of R.M.P.
The court next considered Petitioner’s motion for the requisite SIJ status findings. The court easily found that “the child is 18, under 21. The child’s not married [and is] [p]resently living in the United States.” The court also found that “it’s not in [the child’s] best interest to return to Guatemala.” The court, however, was confused about whether to apply the “preponderance of the evidence” or “clear and convincing” burden of proof to “make a finding against reunification with” Perez. The court noted that there was no set burden of proof for establishing such a finding and that the court believed the “clear and convincing” standard applied. The court ultimately determined that, regardless of which burden of proof it applied, the court was “50/50” on the issue of neglect, and “at that level of evidence,” the court “can’t make a finding” that R.M.P.’s reunification with Perez was not viable due to neglect. Consequently, the court denied Petitioner’s motion for an order that included all requisite SIJ status findings.
B. The Appeal.
The Court of Special Appeals affirmed the circuit court’s decision. Romero, 236 Md. App. at 505. The court held that the proper burden of proof for SIJ status cases is the preponderance of the evidence standard because that standard is “generally applicable in civil and administrative proceedings” in Maryland. Id. at 507 (citation omitted). The Court of Special Appeals then held that, although the circuit court “expressed confusion about the applicable standard,” id. at 509, that court correctly applied the preponderance of the evidence standard, id. at 510. The intermediate appellate court concluded, in the end, that, based on the evidence presented, the circuit court’s finding that Petitioner “had not adduced credible evidence sufficient for the court to make a finding of neglect” was not clearly erroneous. Id.
Petitioner subsequently filed a petition for writ of certiorari, which we granted on July 12, 2018, Romero v. Perez, 460 Md. 2 (2018), to resolve two issues: (1) whether the burden of proof in SIJ status proceedings should be the preponderance of the evidence standard or the clear and convincing standard; and (2) whether the legal framework for evaluating mistreatment in SIJ status cases should be broad, looking at the totality of the circumstances, or narrow, involving an exacting inquiry of the evidence presented.19
Standard of Review
Maryland Rule 8-131(c) provides that “[w]hen an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.” It is well-established that we review the trial court’s factual findings for clear error and its legal conclusions de novo. Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 (2004) (citation omitted). We are tasked here with interpreting Maryland and federal law to decide whether the circuit court’s order was legally correct. Simbaina, 221 Md. App. at 448 (stating that SIJ status cases require appellate courts to interpret state and federal law to decide if the circuit court order was legally correct). We do so de novo. Nesbit, 382 Md. at 72 (quoting Walter v. Gunter, 367 Md. 386, 392 (2002)) (“When the trial court’s order ‘involves interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.’”).
Discussion
A. The Burden of Proof in SIJ Status Proceedings.
We first address a novel issue for this Court, that is, the appropriate burden of proof in SIJ status cases. The Court of Special Appeals held that the preponderance of the evidence standard is the appropriate burden of proof. Romero, 236 Md. App. at 507. Petitioner and Amicus agree with that holding. For the following reasons, so do we.
To start, we commend the Romero court’s insightful analysis on this issue. The court reached the correct result despite operating “on a blank slate,” as “neither federal law nor existing Maryland law” dictates what burden of proof should apply. Id.
It is well established that “preponderance of the evidence [is] the standard of proof generally applicable in civil actions” in Maryland.20 Shurupoff v. Vockroth, 372 Md. 639, 659 (2003); see also Coleman v. Anne Arundel Cty. Police Dep’t, 369 Md. 108, 134 (2002); Calvert Cty. Planning Comm’n v. Howlin Realty Mgmt., Inc., 364 Md. 301, 327 (2001). The standard applies in various juvenile matters, including custody disputes between a parent and a third party, see Shurupoff, 372 Md. at 640-41, 660; Child in Need of Assistance (“CINA”) cases,
The heightened clear and convincing standard of proof only applies in “certain limited circumstances.” See Coleman, 369 Md. at 143. Such “limited circumstances” arise “when the government seeks to take unusual coercive action—action more dramatic than entering an award of money damages or other conventional relief—against an individual.” Id. (citation omitted). “Unusual coercive action” can include, for example, terminating parental rights, Santosky v. Kramer, 455 U.S. 745, 747-48 (1982), or involuntary civil commitment, Addington v. Texas, 441 U.S. 418, 432-33 (1979).
No “unusual coercive action” occurs in SIJ status cases. That is because those proceedings do not involve any termination of parental rights; they merely entail judicial fact finding about the viability of a forced reunification between a parent and a child. See J.U. v. J.C.P.C., 176 A.3d 136, 141 (D.C. 2018) (“Here, the concept of abandonment is being considered not to deprive a parent of custody or to terminate parental rights but rather to assess . . . the workability . . . of a forced reunification”); see also USCIS Policy Manual,
B. The Legal Standard for Abuse, Neglect, and Abandonment in SIJ Status Cases.
Our holding above does not resolve the present matter. Instead, we are left to address the proper legal standard for identifying mistreatment in SIJ status cases, or, stated differently, what an SIJ petitioner must establish by a preponderance of the evidence to merit the requisite findings. For guidance, amicus refers us to two recent decisions from the District of Columbia Court of Appeals. We summarize those decisions in turn and adopt the approach set forth therein. In doing so, we incorporate much of what the Court of Special Appeals held in In re Dany G.
1. Recent D.C. Court of Appeals SIJ Status Decisions.
The D.C. appellate court’s principal SIJ status case is J.U. v. J.C.P.C., 176 A.3d 136 (D.C. 2018). In J.U., a child, C.J.P.U., entered the United States as an unaccompanied and undocumented minor to join his mother in D.C. Id. at 138. The mother filed a complaint for sole legal and physical custody of C.J.P.U. in D.C. Superior Court. Id. at 140. She also filed a motion requesting that the trial court render the requisite SIJ status findings. Id. The mother
Despite uncontested evidence illustrating that the father abandoned C.J.P.U. (e.g., he never provided clothes, food, shelter, care, or financial support), the trial court determined that the mother and child had “minimized” the father’s role in C.J.P.U.’s life. Id. at 142. The court “discredited” parts of C.J.P.U.’s testimony and found that although the father “may ‘not have been perfect . . . he was not . . . neglectful.’” Id. Consequently, even though the Superior Court granted the mother custody of C.J.P.U. and determined that it was not in C.J.P.U.’s best interest to return to El Salvador, the court denied the mother’s SIJ status motion. Id. at 140. The mother appealed, and the D.C. Court of Appeals reversed the trial court’s decision. Id. at 144.
In its opinion, the D.C. Court of Appeals emphasized that “the trial court applied too demanding a standard of both ‘viability’ and ‘abandonment.’” Id. at 142. The appellate court explained that the proper inquiry in SIJ status cases is:
not the abstract question [of] whether the minor has been neglected or abandoned by the [parent]. Rather, it is whether reunification with [the parent] in [the country of origin] is “viable” due to “abandonment[,]” [abuse, or neglect]. It calls for a realistic look at the facts on the ground in the country of origin and a consideration of the entire history of the relationship between the minor and the parent in the foreign country.
Id. at 140. The court, relying on the dictionary, defined “viable” as “common-sense practical workability” and instructed trial courts to determine whether “forced reunification” between a parent and a child was workable given “the impact of . . . the parent’s past conduct.” Id. at 140-41. Applying this standard to the facts before it, the appellate court concluded that
Months later, the District of Columbia Court of Appeals reaffirmed the standard it had established in J.U., in Benitez v. Doe, 193 A.3d 134 (D.C. 2018). In Benitez, a mother filed a custody case against a man, John Doe, she believed was the biological father of her daughter, J.V.B., an undocumented minor who came to the United States to join her mother.22 Id. at 135-36. The mother also sought the requisite SIJ status findings for J.V.B. Id. at 136. The Superior Court awarded custody to the mother and made all the relevant SIJ status findings, except one: the court found that although reunification with J.V.B.’s father was impossible, because his identity was unknown, “‘no evidence [suggested] that the lack of viability [was] due to abandonment.’” Id. at 137. The mother appealed, and the D.C. Court of Appeals reversed. Id. at 137, 138-39.
The appellate court again emphasized that the trial court had applied “‘too demanding a standard of . . . abandonment.’”23 Id. at 138 (quoting J.U., 176 A.3d at 142). The appellate court
2. The SIJ Status Standard in Maryland and the Role of Trial Courts in these Proceedings.
We find the cases from the D.C. Court of Appeals persuasive and hold that in SIJ status cases in Maryland, the terms “abuse,” “neglect,” and “abandonment” should be interpreted broadly when evaluating whether the totality of the circumstances indicates that the minor’s reunification with a parent is not viable, i.e., workable or practical, due to prior mistreatment.24 See B.R.L.F. v. Sarceno Zuniga, 200 A.3d 770, 777 (D.C. 2019) (stating that “all the relevant factors must be understood in the light most favorable to determinations of neglect and abandonment”). Such a holding furthers Congress’s intent in creating SIJ status, see Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003), and is consistent with Maryland’s public policy of protecting children, see Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 325-26 (2001) (noting that “it is well established” that Maryland statutory and common law are designed “to protect and promote the welfare of children”).
In so holding, we reiterate what our colleagues on the Court of Special Appeals have observed: trial judges are not gatekeepers tasked with determining the legitimacy of SIJ petitions; that is exclusively the job of USCIS. See Simbaina, 221 Md. App. at 458-59 (citation omitted) (noting that state courts are “‘not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent’”); see also Benitez, 193 A.3d at 139 (“[I]t is not the trial court’s duty . . . to determine whether a petitioner for SIJ status is ‘bona fide.’”). Trial judges should not step in for, or act on behalf of, an unrepresented party. Nor should they impose insurmountable evidentiary burdens on SIJ petitioners. Benitez, 193 A.3d at 139; see also In re Dany G., 223 Md. App. at 715 (“Congress established the requirements for SIJ status knowing that those seeking the status would have limited abilities to corroborate testimony with additional evidence.”).
3. Application to the Present Case.
We now turn to how this standard applies in the present matter. In doing so, we express our agreement with the Supreme Court of New Jersey that, in SIJ status cases, Maryland courts are to apply Maryland law, and not the law of the child’s home country. H.S.P. v. J.K., 121 A.3d 849, 859 (N.J. 2015) (“The plain language of [the SIJ statute] requires New Jersey courts to apply New Jersey law, and not that of an alien’s home country, when determining whether a juvenile has been abused, neglected, or abandoned.”). We reach this conclusion based on the plain language of the SIJ statute and the federal government’s interpretations of its provisions. See Canales v. Torres Orellana, 800 S.E.2d 208, 220 (Va. Ct. App. 2017) (“[B]y its express terms,
In rendering SIJ status findings, therefore, “trial judges are to determine whether the child would be considered abused, neglected, or abandoned under Maryland law without regard to where the child lived” when the mistreatment occurred. In re Dany G., 223 Md. App. at 718. This holding—that state courts should not apply “a hybrid of the law of a single American state superimposed on the living conditions of another country,” id. at 717—appears to be consistent with the position of other jurisdictions and experts in this area of the law. See In re Domingo C.L., No. M2016-02383-COA-R3-JV, slip. op. at 4, 8-9 (Tenn. Ct. App. Aug. 30, 2017) (adopting the standard articulated in In re Dany G.); see also Guardianship of Penate, 76 N.E.3d 960, 968-69 (Mass. 2017) (applying Massachusetts law without considering the child’s living conditions in Guatemala); Benitez, 193 A.3d at 138 & n.4 (applying D.C. law without discussing the conditions in El Salvador); Rafaela Rodrigues & Leslye E. Orloff, Abuse, Abandonment, or Neglect: The Role of State Law Definitions in Special Immigrant Juvenile
The ultimate inquiry here, therefore, is whether R.M.P.’s reunification with Perez is not viable because Perez’s prior conduct constituted neglect under Maryland law. Id. at 720; see also J.U., 176 A.3d at 141 (stating that neglect is “being considered . . . to assess the impact of the . . . parent’s past conduct on the viability . . . of a forced reunification of parent with minor.”). Under Maryland law, “neglect” is defined as “leaving . . . a child unattended or other failure to give proper care and attention to a child by any parent . . . under circumstances that indicate . . . that the child’s health or welfare is harmed or placed at substantial risk of harm.”
In reaching the opposite conclusion, the circuit court applied a far too demanding and rigid standard. See id. at 142. Rather than broadly assessing whether Perez’s behavior rendered reunification with R.M.P. unworkable, the circuit court conducted a narrow analysis of whether Perez was neglectful in a technical sense. The court questioned, for example, whether Perez’s failure to obtain medical care for R.M.P. was a valid parental “judgment call.” The court challenged the veracity of R.M.P.’s testimony about his injury because he was able to continue working afterward, even though the uncontroverted evidence indicated that Perez forced him to do so. The court also concluded that because R.M.P. worked for his mother and still managed to attend school, no “Maryland standards” were violated. While such an exacting inquiry is appropriate in a Termination of Parental Rights hearing, it has no place in an uncontested SIJ status proceeding. The circuit court’s order—and consequently, the Court of Special Appeals’ decision affirming that order—was therefore legally incorrect. Accordingly, we vacated both decisions in our December 7, 2018, order and required the circuit court to issue an amended order with the requisite SIJ status findings.
Notes
- Did the Court of Special Appeals err in finding no error and upholding the Circuit Court’s denial of SIJ Status, even though the lower court stated that it was applying the incorrect ‘clear and convincing evidence’ standard of proof regarding a neglect finding, in a SIJ case?
- Did the Court of Special Appeals err in finding that the Circuit Court had committed no error in its findings that there was insufficient evidence to prove neglect, and therefore no neglect under the law, in the context of a SIJ case?
Coleman v. Anne Arundel Cty. Police Dep’t, 369 Md. 108, 125 n.16 (2002) (quoting MPJI 1:7 (3d. ed. 2000)).“[t]o prove by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence which, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that it is more likely true than not true.”