LICELY JUAREZ VELASQUEZ, Appellant v. LIZARDO MARROQUIN MIRANDA, Appellee
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: August 29, 2024
OPINION
JUSTICE DOUGHERTY
We granted discretionary review to address a matter of first impression for this Court, involving the correct procedure and standards when our courts are asked to make certain requisite findings to support a Special Immigrant Juvenile (SIJ) classification for minors seeking that status before federal immigration authorities. More specifically, we are asked to clarify the role of Pennsylvania courts in deciding whether these predicate judicial determinations may be made in the context of a child custody proceeding. We hold that (1) pursuant to federal SIJ law, a child who is the subject of custody proceedings that result in sole custody being awarded to the parent presently in the United States may seek SIJ determinations in that custody proceeding; (2) the Superior Court erred in holding SIJ determinations may be made only in dependency proceedings; and (3) the record demonstrates Children are entitled to predicate SIJ determinations. See Velasquez v. Miranda, 297 A.3d 837, 847 (Pa. Super. 2023). We therefore reverse and remand to the custody court for entry of orders consistent with this opinion.
I. Background
SIJ is an immigration classification that provides humanitarian protection for certain minors located in the United States. See
(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[.]
The road to SIJ classification requires stops in both a state and federal decision-making tribunal. United States Citizen and Immigration Services (USCIS), a federal agency of the United States Department of Homeland Security (DHS), promulgates applicable regulations and policy, conducts interviews, screens for fraud and other concerns, adjudicates all SIJ applications, and determines whether to grant SIJ classification to a child. See
The state court with “jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles,” described in the federal provisions as a “juvenile court,” must issue an order that includes “dependency or custody,” “parental reunification,” and “best interest” determinations.
A. The underlying custody action
Appellant Licely Juarez Velasquez (Mother) filed this action against Lizardo Marroquin Miranda (Father), seeking sole physical and legal custody of their minor daughters, S.M.J. (born July 2007) and E.M.J. (born April 23, 2010) (Children). Children have resided with Mother in Delaware County, Pennsylvania since the three left Guatemala together in late 2018. Mother based her request for sole custody, as well as the SIJ findings, on Father’s alleged abuse, abandonment, and neglect of Children. See Mother’s Complaint for Custody at ¶¶ 3, 18.
Father, who resided in Guatemala at the time, signed and accepted service of the custody complaint and hearing notice, and provided a copy of his Guatemalan identification with a corresponding signature. See Trial Court Op., 9/20/22 at 2; id.
After determining it had jurisdiction over the custody action,3 the court proceeded to hold a hearing on August 15, 2022. According to the court, “Mother testified to a history of abuse at the hands of Father” from 2007 to 2018, during the family’s time living together in Guatemala.4 Trial Court Op. at 3. She “testified that the abuse always happened in front of the children, including choking and hitting her.” Id. Mother also “testified that Father worked, selling construction materials, yet [he] provided minimal support for the care of the children. On average, [weekly], Father would give Mother $5 to assist with the care of the minor children.” Id. at 4; see N.T. 8/15/22 at 10-11. Mother further testified Father did not provide sufficient financial support for Children. See N.T. 8/15/22 at 11.
Describing one incident of abuse, Mother stated Father kicked and threw her while pregnant with S.M.J., “causing [Child] to be born with a dislocated hip.” See Trial Court Op. at 3; N.T. 8/15/22 at 13-15. According to Mother, her doctors explained the “dislocation was due to a fall or [] hit she sustained” while pregnant and she knew Father had caused the injury. See Trial Court Op. at 3; N.T. 8/15/22 at 14-15. Mother did not report the incident
Mother eventually overcame her fear and took Father to court in Guatemala. See Trial Court Op. at 3; N.T. 8/15/22 at 13, 15. She explained: “the charge for taking [Father] to court, [Father] strangled me like this, and he stepped on top of me, and he spat on me.” N.T. 8/15/22 at 16. During that incident, Mother testified, Children were present and “shouting no, no, no.” Id. A neighboring relative came to take Children out of the house and Mother heard Children cry and shout “no Papi, no.” Id. at 16-17. The court “g[ave Father] a restriction of eight [] months whereas he could not harass [Mother], get near her, or insult her.” Trial Court Op. at 3. However, Father violated the order “in part because the parties remained living [together]” and he “continued the abuse.” Id. During this time, Mother reported Father to the police, but she stated they did nothing. See id. Mother further claimed “Father’s family berated [her] for taking Father to court, telling Mother that she should be ashamed of herself.” Id.
Mother “testified that in December of 2013, she left Father and stayed at her mother’s home . . . [but] Father continued to harass [her] even though she was at her mother’s home and no longer residing in the marital home.” Id. Finally, in June of 2018, when Mother returned home late after work, “Father became so enraged that he took a pot of hot water and threw it in [Mother’s] face . . . Father then began fighting and the children, witnessing this, began crying saying to [Father] ‘you are going to kill her[].’ Mother testified that she took the girls and left.” Id. at 3-4; N.T., 8/15/22 at 12. Mother sought medical treatment, and the parties separated.
Mother testified that after their separation in June 2018, Father did not provide financial support for Children and visited them only once or twice as a pretext to harass her. See N.T. 8/15/22 at 17, 20. Later that year, “Mother left Guatemala to come to the United States because she wanted ‘tranquility, . . . a better life,’ and ‘she feared she would be harmed if she remained in Guatemala[.]’” Trial Court Op. at 6. After they arrived here in December of 2018, “[C]hildren tried to contact Father . . . but [he] did not respond.” Id. at 4. Ever since, “Mother has attended to the daily physical, emotional, developmental, educational, and special needs of [C]hildren.” Id. at 9. Children reside with Mother and their maternal aunts and cousins. See id.; N.T. 8/15/22 at 7-8. Children’s grandparents and uncles remain in Guatemala as well as two half-siblings, Father’s children from another relationship. Children do not have a relationship with their half-siblings or Father’s side of the family, but Mother testified she would respect Children’s decision to see Father if he ever visited them. See N.T. 8/15/22 at 23-25.
Mother testified Children are happy in Pennsylvania with her, and they have told her they do not want to return to Guatemala. See id. at 21. They are enrolled in school and doing well. See Trial Court Op. at 7. S.M.J. excelled academically with honors in all five subjects and had an upcoming interview to enter a charter school for math and science based on her performance; she wants to become a dentist. E.M.J. was also doing well in school and hopes to become a police officer. See id. Mother testified Children would not have the same education opportunities in Guatemala and “[t]here the education is very low level.” N.T. 8/15/22 at 21.5 Mother
The court issued an order and opinion on September 20, 2022, granting Mother sole legal and physical custody of Children but denying her request for an order including predicate SIJ findings. The court began by recognizing that, “[i]n a custody case, the court concerns itself with the best interests of the child. . . . [Section] 5328(a) specifies [sixteen] factors which must be considered in determining ‘best interests’ . . . ‘giv[ing] weighted consideration to those factors which affect the safety of the child.’” Trial Court Op. at 4-5, quoting
The court gave “considerable” or “great weight” in favor of Mother to the custody factors (2), (3), (4), (9), and (10), which relate to Children’s physical safety and
Concerning the parties’ performance of parental duties, factor (3), the court stated “[t]hat even when the parties resided with one another, Mother performed the majority of parental duties. . . . Children have been in the United States, with Mother, since 2018 with Mother being the only parent present. Thus, Father has been absent from his parental duties as it pertains to [Children.]” Id. at 6-7.
Regarding factor (4), concerning children’s need for stability and continuity in education and family and community life, the court acknowledged Children’s positive home environment and education situation and that “Mother has been in the United States, since 2018, without any financial or physical support from Father.” Id. at 7.
For factor (9), which asks the court to consider “which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs,” the custody court stated “Mother ha[d] established a loving, stable, consistent, and nurturing relationship with [C]hildren adequate for [their] emotional needs. Though [C]hildren resided with both parents, while in Guatemala, it does not appear that Father established a loving and nurturing relationship with [C]hildren.” Id. at 8-9. It noted much of Father’s abuse occurred in front of Children and “caus[ed them] to cry and scream for [F]ather to not harm Mother.” Id. at 9.
Regarding factor (10), the court found “Mother has attended to the daily physical, emotional, developmental, educational, and special needs of [C]hildren. Father, a resident of Guatemala, has not provided for these needs for at least the last three [years] and it doesn’t seem likely that he will be able to perform those duties unless [C]hildren were [to] return to Guatemala.” Id. The court also gave moderate weight in favor of Mother to factors (12), ability to provide childcare; and (13), parties’ conflict and ability to cooperate. See id. at 9-10. It gave little weight in favor of Mother with respect to Children’s well-reasoned preference. See id. at 8. No factor weighed in Father’s favor; upon consideration of all the Section 5328 factors, the court granted Mother sole legal and physical custody.7
The court also ruled the record did not support a finding Father abandoned Children, as an “abandoned” child is one who is “[l]eft without provision for reasonable and necessary care or supervision.” Id. at 11, quoting
The custody court did not separately assess whether Father neglected Children or if Children could not be reunified with him due to “a similar basis” as “abuse, neglect, [or] abandonment” under Pennsylvania law.
Concerning Children’s “best interests” in the context of the predicate SIJ inquiry, the court believed it was “not tasked with the responsibility to opine as to an individual’s desire for citizenship” and that the record could not “definitively support a conclusion that it is in the best interest[s] of [C]hildren to issue a SIJ order.” Trial Court Op. at 11-12. It emphasized that “[t]here was no testimony [on] how [C]hildren performed academically in Guatemala,” “their prospects of success . . . had they remained in Guatemala or were to return,” or “the nature of their relationship with their Father” and Father’s family. Id. at 12. The court also found it lacked “unbiased testimony [on] Father’s financial status, and as such, [wa]s reluctant to come to the assertion that Father’s alleged failure to contact [C]hildren is due to his lack of desire and not some other extenuating circumstances.” Id. Thus, it determined “[i]n the absence of any credible evidence to the contrary, [it could ]not conclude that it would not be in the best interest of [C]hildren to return to Guatemala.” Id. Accordingly, the court denied Mother’s request for an SIJ order.
Mother sought reconsideration, which the custody court ultimately denied. Mother appealed to Superior Court, and filed a timely statement of matters complained of on appeal.9 In its corresponding Rule 1925(a) opinion, the custody court incorporated its reasoning from the September 20, 2022 order and opinion.10 Trial Court 1925(a) Op., 12/21/22 at 14.
Mother argued “the [trial] court readily found evidence of Father’s abandonment, abuse and/or neglect such that the court awarded Mother sole physical and legal custody of Children,” but erroneously “failed to make the same findings relevant to SIJS.” Velasquez, 297 A.3d at 843. Mother also insisted “that SIJS eligibility does not require the initiation of formal proceedings against Father to support a finding of abandonment, abuse, or neglect.” Id. She further emphasized, relying on definitions of “abuse,” “child abuse,” “abandoned,” and “serious physical neglect” under Pennsylvania law, specifically the Child Protective Services Law (CPSL), Uniform Child Custody Jurisdiction and
B. Superior Court Opinion
A unanimous three-judge panel affirmed, holding Children were “simply ineligible” for SIJS because they had not been “adjudicated dependent or placed in the legal custody of a state agency or an individual or entity appointed by a state or juvenile court.” Velasquez, 297 A.3d at 847-48. The panel considered the lower court’s decision granting sole legal and physical custody of Children to Mother — rather than to an agency or foster parent — as distinct from, and immaterial to, the predicate SIJ findings that, in the panel’s opinion, could arise only in the dependency context. Id. at 847 (“The relevant federal law contemplates an award of SIJS only where the child or children have been adjudicated dependent or . . . legally committed to the custody of a state agency or an individual or entity appointed by the state or juvenile court.”) (emphasis omitted).
Relying on the Third Circuit’s decision in Osorio-Martinez v. Attorney General, 893 F.3d 153 (3rd Cir. 2018), the panel opined the “requirements for SIJ . . . show a congressional intent to assist a limited group of abused children to remain safely in the country . . . and that, in effect, establish a successful applicant as a ward of the United States with the approval of both state and federal authorities[.] . . . To qualify for SIJ[S], applicants not only must be physically present in the United States, unmarried, and under the age of twenty-one, but also, . . . they must obtain an order of dependency from a state juvenile court.” Velasquez, 297 A.3d at 845-46, quoting Osorio-Martinez, 893 F.3d at 168-70 (alterations and omission of some internal citations and quotation marks in original). The panel concluded the federal statute “contemplates a scenario where the court appoints an individual or entity to have custody over the child at issue. This scenario is consistent with the purpose behind the statute to assist a limited group of abused children who are essentially ‘ward[s] of the United States.’” Velasquez, 297 A.3d at 847 n.6, quoting Osorio-Martinez, 893 F.3d at 168 (emphasis omitted). The panel thus viewed SIJS as limited to children in the state’s dependency system.13
Mother filed a petition for allowance of appeal, and we granted review of the following issues:
- Whether the Superior Court, when it determined the Children are not statutorily eligible for [SIJS] under federal law, misapprehended the role and authority of Pennsylvania courts when such determinations are within the exclusive authority and jurisdiction of [USCIS].
- Whether the Superior Court erred in concluding the Children are not statutorily eligible for SIJS notwithstanding the fact the trial court awarded sole custody to Mother.
- Whether the trial court erred in holding Mother failed to meet her burden to prove the predicate findings for SIJS: a) Children’s reunification with Father is not viable due to abandonment, abuse, neglect, or a similar basis under Pennsylvania law; and b) it is not in the Children’s best interest to return to Guatemala.
Velasquez v. Miranda, 308 A.3d 293 (Pa. 2023) (per curiam). We consider each issue in turn, mindful of our standard and scope of review. When considering pure questions of law, our standard of review is de novo and our scope of review is plenary. See Int. of K.T., 296 A.3d 1085, 1104 (Pa. 2023). We generally do not “interfere with the trial court’s factual conclusions unless they are unreasonable in view of the trial court’s factual findings and thus represent an abuse of discretion.” T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001); see also Int. of K.N.L., 284 A.3d 121, 132–33 (Pa. 2022) (“In matters arising under the Adoption Act, as well as appeals of child custody and dependency decisions, our plenary scope of review is of the broadest type; that is, an appellate court is not bound by the trial court’s inferences drawn from its findings of fact, and is compelled to perform a comprehensive review of the record for assurance the findings and credibility determinations are competently supported.”) (internal quotation marks omitted). Likewise, while we have a broad scope of review, we cannot nullify the fact-finding function of the judge presiding over the custody hearing or their ability to make credibility determinations. See Lombardo v. Lombardo, 527 A.2d 525, 529 (Pa. 1987).
A. Role of Pennsylvania Courts in SIJS
i. Argument
Mother contends the Superior Court, in affirming the custody court’s decision denying the requested SIJ order, “usurped” USCIS’s authority and “should have refrained from interpreting the SIJ statute to determine whether [C]hildren are eligible for SIJ relief under federal law.” Mother’s Brief at 21, 25. She views both lower tribunals as erroneously stepping into the role of USCIS by denying SIJS on a record that supports the predicate findings. She contends the Superior Court’s role was limited to determining “whether there was sufficient evidence to support the parental reunification and best interest findings required under the SIJ statute, both of which clearly fall within the scope of ‘any relevant factor’ a custody court must consider under
Mother supports her position by describing the distinct roles of state courts and USCIS in the SIJ process. She asserts “[w]hile juvenile courts make determinations pursuant to their State law” on the reunification and SIJ best interest questions, it is USCIS that “determines if the child meets the statutory requirements for SIJ classification” under federal law and whether “a primary reason the [child]
Additionally, Mother recognizes the Homeland Security Act of 2002 “gave DHS sole authority to implement and administer the provisions of the [INA],” which “include[s] the SIJ statute and its implementing regulation.” Id. at 21-22. She emphasizes the familiar federal canon that the “[p]ower to regulate immigration is unquestionably exclusively a federal power[.]” Id. at 24, quoting DeCanas v. Bica, 424 U.S. 351, 354 (1976); see also id. at 22, quoting Arizona v. United States, 567 U.S. 387, 394 (2012) (“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”). Mother notes DHS itself has stated, with respect to the SIJ regulation, “[w]hether a State court order submitted to [USCIS] establishes a petitioner’s eligibility for SIJ classification is a question of Federal law and lies within the sole jurisdiction of [USCIS].” Id. at 22, quoting 87 Fed. Reg. at 13081 and Arizona v. United States and Budhathoki v. Nielsen, 898 F.3d 504, 512 (5th Cir. 2018) (“Whatever responsibilities are exclusively for the [S]tate court, USCIS must evaluate if the actions of the [S]tate court make the applicant eligible for SIJ [classification]”).
Mother also recognizes other state courts have “correctly concluded that they lack jurisdiction and authority to determine statutory eligibility for SIJ.” Id. at 23. She relies on H.S.P. v. J.K., 121 A.3d 849 (N.J. 2015), which “overruled two state trial court decisions finding that a child was not eligible for SIJ status because it was not proven that reunification with both parents was not viable.” Id. (emphasis omitted). Mother explains H.S.P. clarified the limited but important role played by state courts in the SIJ process and that the ultimate determination of SIJ classification “is exclusively the province of the federal government, which has provided copious guidance as to the [SIJ] application process and eligibility.” Id. at 24-25, quoting H.S.P., 121 A.3d at 860. Mother observes that, in overruling the lower court decisions purporting to deny the ultimate SIJ classification, the New Jersey Supreme Court confirmed the limited role for those courts: to “make[] predicate factual findings.” Id. at 24, quoting H.S.P., 121 A.3d at 859.14
We consider whether the Superior Court misapprehended the role and authority of Pennsylvania courts when it affirmed the custody court’s denial of the requested SIJ order and conclusively determined Children are not statutorily eligible for SIJS under federal law. First, we acknowledge there is considerable confusion in our common pleas and appellate courts in this area of the law. Notably, in addition to the present case, the Superior Court has filed other published decisions with conflicting reasoning and results. For example, in Orozco v. Tecu, 284 A.3d 474 (Pa. Super. 2022), a three-judge panel held the custody court abused its discretion when it “flatly refused to issue the SIJ order” requested by a parent to whom the court had just granted temporary sole physical and legal custody. Tecu, 284 A.3d at 479. The panel explained the “federal statutory scheme puts the factual determinations necessary for SIJ status solely within the purview of state courts,” and remanded with directions to the custody court to “enter a new order that shall include factual findings . . . that are predicate to USCIS’s SIJ determination under federal law.” Id. But see Castillo v. Guerra, 312 A.3d 341, 344-345 (Pa. Super. 2024) (relying on Superior Court’s decision in Velasquez to hold nephew, in uncle’s care in United States pursuant to custody agreement with mother, did not meet eligibility requirements for SIJS).
And, in Rivas v. Villegas, 300 A.3d 1036 (Pa. Super. 2023), where yet another Superior Court panel reached a completely different conclusion from the decision below, then-Judge, now Justice Daniel D. McCaffery astutely observed:
[T]he law in this area [of SIJS predicate orders] has not been fully developed. While the statute was enacted in 1990, its interpretation and application in this Commonwealth has been limited until very recently. See Orozco; see also Velasquez v. Miranda, 297 A.3d 837 (Pa. Super. June 20, 2023).
Moreover, the statute creates a unique procedural caveat where the ultimate determination is of the federal immigration nature, but preliminary factual determinations are made by state courts. See Orozco, 284 A.3d at 477 (citation omitted). Since the statute’s enactment, no settled interpretation or application of the SIJ statute has been developed among the states, and there is no unified body of law for considering what evidence will be sufficient to support SIJ findings. As such, the courts of this Commonwealth may face confusion and produce inconsistent results in future proceedings as we see this type of case occurring often in the future. Consequently, we note that further guidance from the Pennsylvania Supreme Court and General Assembly may help to clarify those problems that will continue to
challenge our orphans’, juvenile, and family courts.
Rivas, 300 A.3d at 1049 n.15; see also NIWAP Brief at 3-4, citing id. (asking this Court to clarify applicable standards because Superior Court’s decision shows “the confusion surrounding SIJ laws and regulations and has highlighted the need for guidance from this Court”). We endeavor now to provide clarity and direction.
We begin by reiterating here the relevant provisions of the federal regulation governing the “[s]pecial immigration juvenile classification” created by
- Is under 21 years of age at the time of filing the petition;
- Is unmarried at the time of filing and adjudication;
- Is physically present in the United States;
- Is the subject of a juvenile court order(s) that meets the requirements under paragraph (c) of this section; and
- Obtains consent from the Secretary of Homeland Security to classification as a special immigrant juvenile. For USCIS to consent, the request for SIJ classification must be bona fide, which requires the petitioner to establish that a primary reason the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law. USCIS may withhold consent if evidence materially conflicts with the eligibility requirements in paragraph (b) of this section such that the record reflects that the request for SIJ classification was not bona fide. USCIS approval of the petition constitutes the granting of consent.
Paragraph (c) of
(1) Court-ordered dependency or custody and parental reunification determination. The juvenile court must have made certain judicial determinations related to the petitioner‘s custody or dependency and determined that the petitioner cannot reunify with their parent(s) due to abuse, neglect, abandonment, or a similar basis under State law.
(i) The juvenile court must have made at least one of the following judicial determinations related to the petitioner‘s custodial placement or dependency in accordance with State law governing such determinations:
(A) Declared the petitioner dependent upon the juvenile court; or
(B) Legally committed to or placed the petitioner under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court.
(ii) The juvenile court must have made a judicial determination that parental reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under State law. The court is not required to terminate parental rights to determine that parental reunification is not viable.
(2) Best interest determination.
(i) A determination must be made in judicial or administrative proceedings
by a court or agency recognized by the juvenile court and authorized by law to make such decisions that it would not be in the petitioner‘s best interest to be returned to the petitioner‘s or their parent‘s country of nationality or last habitual residence. (ii) Nothing in this part should be construed as altering the standards for best interest determinations that juvenile court judges routinely apply under relevant State law.
Accordingly, a state court presented with a request such as Mother‘s for SIJ judicial determinations pertaining to her minor children is expressly authorized by federal law to issue the SIJ order when:
- The court has exercised its jurisdiction as authorized by Pennsylvania law to determine the dependency and/or custody and care of a child;
- Reunification with one or both of the child‘s parents is not viable due to abuse, abandonment, neglect, or a similar basis under Pennsylvania law; and
- It is not in the child‘s best interest to be returned to the child‘s or their parent‘s country of nationality or last habitual residence.
See
Turning to the decision below, we conclude the Superior Court was only partially correct when it analyzed the role of state courts in the SIJ classification process. The panel correctly recognized that “[t]o obtain SIJS, a child must first apply to a state court for an order finding that he or she meets the statutory and regulatory requirements” for such order. Velasquez, 297 A.3d at 845; see id. at 844-45, citing
B. One-Parent Custody & SIJS
i. Argument
Mother contends the panel below erred in holding as a matter of law that Children are not eligible for SIJ classification because Mother — rather than a state agency — was awarded sole custody. She first avers the panel‘s decision stands in “stark contrast” to USCIS policy that “[a] qualifying court-appointed custodial placement could be with one parent” and USCIS interprets the 2008 TVPRA amendments to the SIJ statute “as a clarification that [SIJS] petitioners do not need to be eligible for or placed in foster care and that they may be reunited with one parent or other family members.” Mother‘s Brief at 26, quoting 6 USCIS PM J.2(C)(1), (C)(2) n.15. Mother explains these amendments “removed the need for a court to deem a child eligible for long-term foster care and replaced it with a requirement that the court find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law.”
Mother contends the current SIJ statute and regulations “do[] not limit the type of court from which a qualifying SIJ order may issue, so long as the court has jurisdiction to make determinations about dependency and/or custody or care of a juvenile.”
Finally, Mother argues the panel drew its erroneously narrow construction of the relevant provisions entirely from the Third Circuit‘s 2018 decision in Osorio-Martinez, which predated the 2022 SIJ regulation change and “quoted outdated implementing regulations referencing pre-2008 statutory language.”
When interpreting a federal provision, we recognize the following principles:
The construction of a federal statute is a matter of federal law. Under federal rules of statutory construction, in determining the meaning of a federal statute, the courts look not only to particular statutory language, but also to the design of the statute as a whole and to its purposes. Furthermore, when the courts confront circumstances not plainly covered by the terms of a statute, suggesting that Congress did not contemplate the issue, they endeavor to give statutory language the meaning that advances the policies underlying the legislation.
Council 13, 986 A.2d at 80 (citations omitted).16 And, because the federal law we interpret here involves immigration, we must remain cognizant that the federal government has broad power over immigration, Arizona, 567 U.S. at 394, and “exclusive[]” authority to regulate it. DeCanas, 424 U.S. at 354. See also Concurring and Dissenting Opinion at 10 (“federal primacy [exists] in matters of immigration and citizenship“), citing
The pertinent federal statute is
The operative term “appointed” is not defined in the INA, so we consider its plain meaning, assisted as necessary by relevant dictionary definitions. See, e.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (recognizing that “[w]hen terms used in a statute are undefined, we give them their ordinary meaning” and can rely on dictionary definitions to discern such meaning). Black‘s Law dictionary defines “appoint” as “[t]o fix by decree, order, command, decision, or mutual agreement[.]” Appoint (1), BLACK‘S LAW DICTIONARY (12th ed. 2024). Merriam-Webster similarly defines the word as “to fix or set officially” or “to name officially.” Appoint (1) (a)-(b), MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/appoint (last visited August 28, 2024). Given this plain meaning of “appointed,” a custody order to one parent is easily the kind of appointment envisioned by the SIJ statute, as the order sets, fixes and defines custody in that individual. Contrary to the Superior Court‘s opinion, then, the underlying order granting sole legal and physical custody to Mother satisfies the federal statute‘s requirements.
Our interpretation of
But the panel below nevertheless interpreted the SIJ provisions as exclusively describing a dependency court‘s order directing an agency or foster parent to take a child into protective custody. See Velasquez, 297 A.3d at 847-48. The panel focused on the phrase “appointed by” in paragraph (c) and erroneously rejected the notion a qualifying order could come from a court considering whether sole legal and physical custody should be awarded to one parent over another, pursuant to
Together with our interpretation of
The Rivas panel also correctly recognized our custody courts have the requisite authority in these matters, and rejected the idea a custody action “did not qualify as a juvenile or dependency proceeding” for purposes of making predicate SIJ findings. Rivas, 300 A.3d at 1041, 1048. Then-Judge McCaffery reasoned:
[T]he language of
8 C.F.R. §204.11(c) refers to all three terms — juvenile, dependency, and custody. We note the federal statute‘s language is intended to be all-encompassing, covering the 50 states as well as the District of Columbia. The purpose of the law is to address issues of abuse, abandonment, and neglect. Accordingly, we cannot conclude Section 204.11 would restrict the SIJ classification to only a juvenile court having administrative power. We point out that in this Commonwealth, a court of common pleas is the proper judicial body to review allegations of child abuse, and specifically, an orphans’ court has the most fitting jurisprudence.
Id. at 1048 (internal citation omitted).
In addition to the Superior Court‘s decisions in Orozco and Rivas, other state courts have recognized that one avenue to SIJS is a court-ordered, one-parent custodial arrangement. See, e.g., Amaya v. Guerrero Rivera, 444 P.3d 450, 452 (Nev. 2019) (order awarding mother sole physical custody of her daughter “satisfie[d] the dependency or custody prong for SIJ predicate findings” under Nevada statute that mirrors federal SIJ statute and provides its state courts jurisdiction to make SIJ findings); Kitoko v. Salomao, 215 A.3d 698, 702 (Vt. 2019) (in mother‘s uncontested proceeding for sole custody of her children, state court had authority to make SIJ findings “given the primacy of a child‘s best interests” and “the court‘s broad discretion in determining those interests“); Hernandez-Lemus v. Arias-Diaz, 100 N.E.3d 321, 323 (Mass. 2018) (state probate and family court was obligated to make SIJ findings in father‘s proceeding for sole custody of
We do not read the Third Circuit‘s decision in Osorio-Martinez as holding children with a one-parent custody order are not entitled to SIJ classification as a matter of law, such that they may not request predicate judicial determinations in custody court. The Osorio-Martinez court considered a very different question from the one before us now: whether “the jurisdiction-stripping provision of the INA operate[d] as a[ federally] unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal[.]” 893 F.3d at 158. In addressing that issue, the federal court had to determine whether the SIJS recipients in that matter “[had] developed sufficient connections to [the U.S.] [to] invoke [its] Constitution‘s protections” and the reasoning the panel relied on related to that determination.
But even more to the point, the operative SIJ regulation has been amended in a materially relevant way since Osorio-Martinez. See supra note 1. The Third Circuit relied on an earlier version of the SIJ regulation which required children be “eligible for long-term foster care” or, essentially, “ward[s] of the United States,” before they could seek SIJ classification. Osorio-Martinez, 893 F.3d at 168-69, citing
Considering the foregoing federal law and policy, it is clear that proceedings in custody court, which necessarily entail factual findings regarding a child‘s best interest and the factors set forth at
C. Pennsylvania Standard for SIJ Predicate Determinations
i. Argument
Mother contends “the trial court abused its discretion in refusing to make the requested SIJ judicial determinations, given its findings of fact in support of its custody determination.” Mother‘s Brief at 40. She emphasizes that “[i]n most cases of a finding of abuse of discretion, the case is remanded for further consideration, however, where the record is sufficiently developed, [we] may substitute [our] judgment for that of the hearing judge and decide the case on the merits.”
Mother also contends the incident in which Father threw boiling water into her face and caused Children to cry and scream for him not to harm her supports a determination reunification is not viable due to abuse. See
Mother also contends “the trial court erroneously framed the [reunification] issue as whether issuance of an SIJ order is in the best interest[] of [C]hildren because it will enable them to seek lawful permanent resident status in the United States,” and failed to separately address and make findings regarding state law definitions of abandonment, child abuse, and serious physical neglect. Mother‘s Brief at 33. She asserts “the [custody] court did not sufficiently consider the best interest[] of the children in this case,” when it should be the “paramount concern” as it always is in custody cases.
Concerning the Children‘s best interest, Mother points to the custody court‘s findings that Mother is “nurturing, and thus provides adequate physical safeguards and supervision of the Children,” and Father “has been absent from his parental duties,” as demonstrating it is not in Children‘s best interest to return to Guatemala.
Mother also emphasizes findings related to Father‘s abuse of her in front of Children, contending “they may be exposed to such violence” if reunited with Father. She
ii. Discussion
The federal provisions pertaining to SIJ classification expressly state the dependency/custody and reunification questions are to be decided in the first instance “under State law.” See
It is also clear the SIJS best interest question is meant to be decided under state law, at least for purposes of the predicate judicial determinations authorized by
While juvenile courts do not have the authority to make decisions on the removal or deportation of a child to another country, it must be determined by the juvenile court . . . that it would not be in the best interest of the [child] to be returned to the country of nationality or last habitual residence of the [child] or the [child]‘s parents. This requires the juvenile court to make an individualized assessment and consider the factors that it normally takes into account when making best interest determinations, and the record should reflect the factual basis for the juvenile court‘s determination.
The standards for making best interest determinations may vary between states, and the court may consider a number of factors related to the circumstances of the child and the circumstances and capacity of the child‘s potential caregiver(s). The child‘s safety and well-being are typically the paramount concern. For example, if the court places the child with a person in the United States under state law governing the juvenile court dependency or custody proceedings, and the order includes facts reflecting that the caregiver has provided a loving home, bonded with the child, and is the best person available to provide for the child, this would likely constitute a sufficient factual basis in support of a qualifying best interest determination to warrant DHS consent. The analysis would not change even if the chosen caregiver is a parent. USCIS defers to the juvenile court in making this determination and as such does not require the court to conduct any analysis other than what is required under state law.
6 USCIS PM J.2(C)(3) (emphasis added; footnotes omitted). Considering the foregoing, it is evident state law governs the initial evaluation of the predicate SIJ requirements, and even more to the point, the standards typically employed to determine a child‘s best interest in the state dependency and custody contexts apply. See also HIAS Brief at 9 (“[B]oth the [custody] court and the Superior Court . . . failed to recognize that, ultimately, a request for SIJ predicate findings boils down to the same kind of best interest[] analysis that courts routinely use in custody determinations.“). Accordingly, we turn to Pennsylvania custody law and the standards applied in custody court to clarify the process for making predicate SIJ judicial determinations.
The paramount concern in custody cases is the child‘s best interest. C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). The issue is decided on a case-by-case basis considering all relevant factors, and giving weighted consideration to those that affect the child‘s safety. See
Accordingly, the custody court must consider any evidence of one parent‘s abandonment, abuse, neglect, and similar maltreatment towards the child when conducting the best interest analysis. See, e.g.,
Reviewing the present matter with these parameters in mind, we find both lower tribunals erred, and understandably so, given the lack of clarity in this area of the law. Initially, the custody court inaccurately framed the issue as whether “the issuance of an SIJ is in the best interest of [C]hildren because it will enable them to pursue permanent lawful status and eventually citizenship.” Trial Court Op. at 10. The court stated “[it] is not tasked with the responsibility to opine as to an individual‘s desire for citizenship,” and concluded the record “d[id] not definitively support a conclusion that it is in the best interest of [C]hildren to issue a SIJ order.”
And, in addition to asking the wrong question, the custody court held Mother to an inapt burden of proof. The court ruled “the record in this matter does not definitively support a conclusion that it is in the best interest of the children to issue a SIJ order,” see
Our “comprehensive review of the record” reveals Children are entitled to predicate SIJ determinations. K.N.L., 284 A.3d at 133. We reject the custody court‘s SIJ findings because, as discussed supra, it applied the wrong legal standard and burden of proof.24 However, there is no reason to disrupt its credibility determination and factual findings that led to its custody award as they are amply supported by the record. In awarding sole legal and physical custody to Mother, the custody court credited and relied heavily on Mother‘s testimony regarding the family‘s relationship with Father. These findings demonstrate Children‘s reunification with Father is not viable due to abandonment and neglect, and that it is in Children‘s best interest not to return to Guatemala.
Specifically, the court found Father has not provided financial or physical support for Children in years. See Trial Court Op. at 6-7, 9. “[E]ven when the parties resided with one another,” the trial court stated, “Mother performed the majority of the parental duties,” and Father provided minimal financial support despite working.
custody to one parent.” Dissenting Opinion at 2. The dissent focuses on the word “reunification” in the relevant provisions and concludes it “strongly suggests that the state juvenile court proceeding must involve an immigrant child who is,
First, this issue has not been raised in the present appeal. See also Concurring and Dissenting Opinion at 11. Moreover, this would-be predicate state court determination the dissent raises – that the child “is separated from both parents” – is not explicit in the language of the statute and regulation. The dissent‘s reading of the word “reunification” would actually “narrow and restrict[]” our courts’ jurisdiction to grant an SIJ order for one-parent custody cases, which appears contrary to federal law and “generally incongruous with Congress‘s efforts to expand eligibility for SIJ status and increase protections for vulnerable immigrant children.” Perez v. Cuccinelli, 949 F.3d 865, 878 (4th Cir. 2020). And, this reading is undermined by USCIS‘s practices and policy manual, see 6 USCIS PM J.2(C)(1); Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 724 (N.Y. App. Div. 2013) (citations omitted) (“USCIS has approved SIJS applications where reunification with one parent was viable.“), and Orozco. See Orozco, 284 A.3d at 479; Concurring and Dissenting Opinion at 11, n. 30 (”Orozco . . . implicitly blessed the interpretation that custody with one parent could support SIJ findings.“).
Notably, several other state courts have recognized the SIJ statute does not require proof reunification is not viable due to maltreatment with both parents. See, e.g., Amaya, 444 P.3d at 453 (“We conclude the plain language of ‘one or both of [the juvenile‘s] parents’ is clear — the use of a disjunctive ‘or’ signals the reunification prong is met where the juvenile cannot reunify with one parent or with both parents. In approving of one-parent SIJ cases, we join the majority of states that have considered this issue.“) (alteration in original); J.U. v. J.C.P.C., 176 A.3d 136, 138–39 (D.C. 2018) (“A finding is sufficient for SIJ status if reunification with only one parent is not viable due to abuse, neglect, or abandonment[.]“); In re Guardianship of Sebastian, 238 N.E.3d 721, 727 (Ind. Ct. App. 2024) (“[Child] claims that reunification with Father, not Mother, is not viable due to abandonment. This is all that is needed [for the SIJ reunification finding].“); In re Israel O., 182 Cal. Rptr. 3d 548, 556 (Cal. Ct. App. 2015) (“We therefore conclude that an eligible minor under section 1101(a)(27)(J) includes a juvenile for whom a safe and suitable parental home is available in the United States and reunification with a parent in his or her country of origin is not viable due to abuse, neglect or abandonment.“); In re Est. of Nina L., 41 N.E.3d 930, 938 (Ill. App. Ct. 2015) (“If Congress meant that an applicant for SIJ[S] was required to show that reunification with both parents was not viable due to abuse, neglect or abandonment, it could easily have so provided. Use of the disjunctive indicates that abuse, neglect or abandonment by one parent is sufficient to support the predicate finding.“) (emphasis omitted); Marcelina M.-G., 973 N.Y.S.2d at 722 (“We interpret the ‘1 or both’ language to provide SIJS eligibility where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar State law basis.“) (citations (continued...)
Likewise, the custody court‘s best interest analysis and award of sole custody to Mother establish it is in Children‘s best interest not to be returned to Guatemala. Mother is present in the U.S. with Children, adequately provides for their needs, and has “established a loving, stable, consistent, and nurturing relationship with [them].” See Trial Court Op. at 7-9. Children have lived in the U.S. since 2018. See
We also conclude the custody court‘s findings show Children‘s reunification is not viable for safety reasons. The record reflects Father‘s physical abuse of Mother included strangling, hitting, grabbing and throwing her; and that some of this occurred in front of Children, causing them to scream and cry for Father not to harm or kill Mother. See
Accordingly, given the time-sensitive nature of this children‘s custody-related litigation, we remand to the custody court and direct that it enter orders for Children containing predicate SIJ determinations and corresponding factual support consistent with today‘s holdings.
III. Mandate
The order of the Superior Court is reversed and the matter is remanded to the custody court for entry of orders pursuant to
Chief Justice Todd and Justices Donohue and McCaffery join the opinion.
Justice Wecht files a concurring and dissenting opinion.
Justice Brobson files a dissenting opinion in which Justice Mundy joins.
Notes
We note at the outset that a parent outside the Commonwealth is entitled to “notice and an opportunity to be heard” in accordance with our law or the foreign state’s law, but Pennsylvania does not require the absent parent to participate in the proceedings in order for our courts to have jurisdiction over the custody action. See
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
- The present and past abuse committed by a party or member of the party‘s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
- (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s sibling relationships.
- The well-reasoned preference of the child, based on the child’s maturity and judgment.
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party‘s availability to care for the child or ability to make appropriate child-care arrangements.
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
- The history of drug or alcohol abuse of a party or member of a party’s household.
- The mental and physical condition of a party or member of a party’s household.
- Any other relevant factor.
(i) Whether the child is the subject of an indicated or founded report of child abuse [(as defined under Section 6303 of the CPSL)].
(ii) Whether a party or a member of the party’s household has been identified as the perpetrator in an indicated or founded report of child abuse.
(iii) The date and circumstances of the child abuse.
(iv) The jurisdiction where the child abuse investigation took place.
(i) Whether a party or a member of a party’s household has been provided services.
(ii) The type of services provided.
(iii) The circumstances surrounding the provision of services.
(iv) The status of services.
(v) The date the services were provided.
(vi) The jurisdiction where the services were provided.
(3) Causing or substantially contributing to serious mental injury to a child through any act or failure to act or a series of such acts or failures to act.
. . .
(7) Causing serious physical neglect of a child. . . .
NIWAP agrees with Mother that “the federal government maintains exclusive jurisdiction over immigration,” and the SIJ statute envisions a preliminary role for state courts to make determinations regarding a child’s best interest and welfare, “while leaving the ultimate immigration decision to the federal government.” Id. at 6.
Additional amici also filed a brief in support of Mother. They are HIAS Pennsylvania, a not-for-profit immigration legal services and refugee resettlement agency; and Professors Kara R. Finck, Deeya Haldar, and Sarah Katz from the law schools of University of Pennsylvania, Villanova University, and Temple University, respectively (referred to collectively as “HIAS”). See HIAS’s Brief at 2-3. HIAS agrees with NIWAP that the state court role in these matters is limited and USCIS “makes the ultimate determination of whether the child’s application for SIJ status should be granted.” Id. at 5. HIAS explains “[a] state court’s custody order including the special [SIJ] findings . . . merely makes the child eligible for an eventual adjustment of status to lawful permanent resident” and “is not a guarantee.” Id. at 6 (emphasis omitted).
HIAS adds that the custody court below misunderstood the SIJ best interest analysis as “opin[ing]” on Children‘s desire for citizenship and whether the record “definitively support[ed] a conclusion that it is in the best interest of the children to issue a[n] SIJ order.”
Amici NIWAP and HIAS agree Children are entitled to predicate SIJ determinations. More specifically, NIWAP contends we “should [] direct the issuance of the SIJ judicial determinations in this case.” NIWAP‘s Brief at 17. HIAS reviews the custody court‘s factual findings, see HIAS‘s Brief at 18-27, and argues these findings clearly support predicate SIJ determinations for Children. See