Simbaina v. Bunay

ZARNOCH, J. This case raises the question of whether, in an ordinary custody proceeding, a circuit court must enter factual findings under 8 U.S.C. § 1101 (a)(27)(J) regarding a child’s potential status as a “special immigrant juvenile” (SIJ), if the issue is properly before the court. We answer this question in the affirmative and remand this case to the Circuit Court for Baltimore City to make the required findings under federal, law. ⁴⁴⁶ FACTS AND LEGAL PROCEEDINGS 1 Appellant, Maria Simbaina and Appellee, Segundo Bunay were married in a civil ceremony in Washington D.C. on March 24, 2010, after being together since 1998. Both Simbaina and Bunay are residents of Baltimore, Maryland. The parties have three children, Nathaly, Ingrid and Jocelyn.

Nathaly was born on June 1, 2000 and is a citizen of Ecuador, where she resided with her maternal grandparents until 2010. She first came to the United States in May 2010 and has resided with Simbaina since that time. Nathaly is presently an undocumented alien. Bunay came to the United States when Nathaly was three months old and has not had a consistent relationship with her.

Since Nathaly arrived in the United States, Simbaina has been her sole caretaker. Simbaina and Bunay separated on April 17, 2012. On February 13, 2013, Bunay filed a Complaint for Custody. In response, Simbaina filed an Answer and Counter-Complaint for Divorce and Custody or, in the Alternative, Limited Divorce on March 21, 2013.

Simbaina then amended her complaint on November 7, 2013, and Bunay answered on January 7, 2014. In both her original and amended complaints, Simbaina requested that the court “enter an Order finding that it is not in Nathaly’s best interest to return to her home country and reunification with [Bunay] is not viable due to abuse[,] neglect[,] or abandonment.” A hearing was held in the Circuit Court for Baltimore City on April 22, 2014. During the hearing, the court heard from both Simbaina and a corroborating witness, Maria Loja, who testified that Simbaina and Bunay had been separated for two years and that there was no hope of reconciliation between the pair. At the hearing, the custody of the couple’s three minor children was addressed.

Bunay agreed that Simbaina could have full legal and physical custody of Nathaly, but requested joint custody of Ingrid and Jocelyn. During this hearing, ⁴⁴⁷ Simbaina presented a consent draft custody order to the court, which “included Special Immigrant Juvenile findings and awarded [Simbaina] physical and legal custody of Nathaly.” Simbaina wanted the court to make factual findings so that Nathaly could remain in the United States as a permanent resident under SIJ status, which requires an order from the circuit court. 2 The circuit court explained that any immigration issues would not be discussed because they were not properly pled. Additionally, no testimony was heard on Simbaina’s request because, as the court said, “there is a pleading that needs to be filed with the court concerning any immigration issues.” The circuit judge suggested that this pleading was a “petition for some type of guardianship.” On April 24, 2014, the circuit court entered a judgment granting an absolute divorce, but did not include any factual findings on the SIJ status of Nathaly. On May 2, 2014, Simbaina filed a Motion to Alter or Amend and a Motion for New Trial, requesting that the circuit court amend its judgment of absolute divorce to include the requested SIJ factual findings.

On July 2, 2014, both of these motions were denied without a hearing. Simbaina timely noted her appeal. QUESTIONS PRESENTED 3 Appellant presents three questions for our review, which we have consolidated into the following question: ⁴⁴⁸ Did the circuit court err when it failed to make Special Immigrant Juvenile factual findings during the divorce and custody proceedings? Our answer is yes.

Thus, we reverse and remand for a hearing and for the entry of factual findings related to Nathaly’s SIJ status. STANDARD OF REVIEW Typically, we review a circuit court’s decision to deny a motion for a new trial under an abuse of discretion standard. See Mason v. Lynch, 151 Md.App. 17, 28 , 822 A.2d 1281 (2003), aff'd, 388 Md. 37 , 878 A.2d 588 (2005) (“It is our job to review a trial court’s denial of a motion for new trial using an abuse of discretion standard.”). However, while the circuit court “is granted broad discretion in granting or denying equitable relief, where an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006) (Citations omitted).

This case primarily involves an interpretation of State law and a federal statute and regulations, so we must decide if the circuit court’s decision denying the request for SIJ factual findings was “legally correct.” See Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 , 854 A.2d 879 (2004). DISCUSSION I. History and Interpretation of SIJ Statute The Immigration and Nationality Act of 1990, which established the initial eligibility requirements for SIJ status, ⁴⁴⁹ was enacted “to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States.” Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216 , 221 (3d Cir.2003).

The law “provided an alternative to deportation for these children” by allowing them to seek SIJ status. Id. The statute creates “a special circumstance where a State juvenile court is charged with addressing an issue relevant only to federal immigration law.” H.S.P. v. J.K, 435 N.J.Super. 147 , 87 A.3d 255, 259 (Ct.App.Div.2014) (Citations and quotations omitted). To “be eligible for SIJ classification, 8 U.S.C. § 1101 (a)(27)(J) requires that a State court make an SIJ-predicate order.” Perez-Olano v. Gonzalez, 248 F.R.D. 248, 253 (C.D.Cal.2008).

The initial provisions were amended in 1997 to curb abuse “by juveniles entering the United States as visiting students.” Yeboah, 345 F.3d at 221. The 1997 amendments “modified the [SIJ] definition to include an immigrant whom a juvenile court 4 had legally committed to, or placed under the custody of, an agency or department of a State, and added the requirement that the finding of eligibility for long-term foster care be due to abuse, neglect, or abandonment.” Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 107 , 973 N.Y.S.2d 714 (N.Y.App.Div.2013) (Quotations omitted). The requirements were further amended in 2008 to expand “eligibility to include those immigrant children who had been placed in the custody of an individual or entity appointed by a state or juvenile court.” Id. at 108 , 973 N.Y.S.2d 714 . (Citations omitted).

A precondition of long-term foster care was removed and replaced with the “requirement that the juvenile court find that 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.” Id. (Quotations omitted). The current law still requires that the immigrant child obtain “an order from a state juvenile court making findings ⁴⁵⁰ that the juvenile satisfies certain criteria.” Id. at 107, 973 N.Y.S.2d 714 (Citations omitted). Once a “state court makes an SIJ-predicate order, a child may file with CIS [U.S. Citizenship & Immigration Services] for SIJ-status using an 1-360 petition.

A child ... granted SIJ status may then apply for adjustment to lawful permanent resident status under 8 U.S.C. § 1255 .” Perez-Olano, 248 F.R.D. at 253 .

II

Separation of Powers/State Regulation of Immigration Concerns Because the SU statute imposes a rather extraordinary duty on a State court, we pause to consider two possible objections to such authority: 1) whether the statute imposes a nonjudicial duty on a Maryland court in violation of Separation of Powers? and 2) whether a Maryland court engages in impermissible State regulation of immigration by making actual findings about a child’s SIJ status? The Federal Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(27)(J), requires that a State “juvenile court” make specific factual findings before a minor can petition the United States Citizenship and Immigration Services for SIJ status. See also 8 C.F.R. § 204.11 (b) (“An alien may not be classified as a SIJ unless the alien is the beneficiary of an approved petition to classify an alien as a special immigrant.”). For purposes of § 1101(a)(27)(J), a minor child may be considered for SIJ status if he or she is present in the United States, unmarried, under the age of 21, and (i) ... 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] (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best ⁴⁵¹ interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.

Arguably, the federal statute directs our State courts to perform a “nonjudicial function” by issuing advisory factual findings with regard to a child’s SIJ status. If a Maryland statute required such a duty of a State court, it would violate Article 8 of the Declaration of Rights of the Maryland Constitution. 5 The Court of Appeals has held that “a court has no jurisdiction to perform a nonjudicial function, and any enactment which attempts to confer such a function on a court is unconstitutional.” Duffy v. Conaway, 295 Md. 242, 254 , 455 A.2d 955 (1983) (Citations omitted). In that case, the circuit court’s role was “limited to gathering testimony, making findings of fact, and transmitting the testimony and findings to another governmental entity.” Id. A State law requiring the court to make these types of determinations was found to violate Article 8, a violation that divested the lower court of jurisdiction over the case.

Id. 6 The federal statute directs the circuit court to enter factual findings that are advisory to a federal agency determination, but we do not believe that the statute offends State separation of powers. The federal government “has exclusive jurisdiction with respect to immigration [but] state juvenile courts play an important and indispensable role in the SIJ application process.” Leslie H. v. Superior Court, 224 Cal.App.4th 340 , 168 Cal.Rptr.3d 729 , 735 (2014) (Citations and quotations omitted). The federal government delegated this power to State juvenile courts because these courts are “the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests.” ⁴⁵² Id. (Citations omitted). “Congress has plenary power over immigration [and] State courts have general jurisdiction over child welfare matters.” Perez-Olano, 248 F.R.D. at 265 (Internal citations omitted).

Therefore, the federal government can delegate specific powers to the States to make determinations helpful to determining the immigration status of certain individuals, including the SIJ status. Moreover, because federal law imposes the duty to make SIJ findings on a Maryland court, any claim of impermissible imposition of nonjudicial duties or of a State separation of powers violation would be trumped by the Supremacy Clause of the U.S. Constitution, Article VI, and the similar federal supremacy obligation found in Article 2 of our own Declaration of Rights. 7 Nor do we believe the federal directive to State courts to make SIJ findings runs afoul of Supreme Court cases invalidating a State’s attempt to regulate immigration. See Arizona v. United States, — U.S. -, 132 S.Ct. 2492 , 183 L.Ed.2d 351 (2012) and DeCanas v. Bica, 424 U.S. 351 , 96 S.Ct. 933 , 47 L.Ed.2d 43 (1976). First, it is important to note that the State court is not “rendering an immigration determination,” because the ultimate decision regarding the child’s immigration status “rests with the federal government.” Marcelina M.-G., 112 A.D.3d at 109 , 973 N.Y.S.2d 714 .

Secondly, the State is not acting unilaterally on the basis of State authority. Rather, it is federal law that imposes this duty on State courts. Thus, we conclude that State action under 8 U.S.C. § 1101 (a)(27)(J) is not a prohibited regulation of immigration. 8 ⁴⁵³ III. Circuit Court Jurisdiction over SIJ status The circuit court erroneously concluded that the SIJ factual findings could only be entered after a separate guardianship hearing.

The circuit court reasoned that Nathaly would be eligible to file for SIJ status after filing a separate petition for guardianship 9 under the United States Immigration and Nationality Act, explaining that the Clerk’s office “could assist you with whatever the pleading that needs to be done, because it’s a whole hearing, it’s a whole group of factors that the Court has to review.” The circuit court was correct that the determination of SIJ status requires the establishment of certain factors, but incorrectly concluded that it must be done exclusively in a separate guardianship proceeding. Although 8 U.S.C. § 1101 (a)(27)(J) does not define the term, “juvenile court,” applicable federal regulations do. Under these regulations, a juvenile court is defined as “a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles.” 8 C.F.R. § 204.11 (a). The exact makeup of these “juvenile courts” varies from state to state.

In California, a superior court sitting as a probate court was determined to have the authorization to make SIJ findings. B.F. v. Superior Court, 207 Cal.App.4th 621 , 143 Cal.Rptr.3d 730, 733-34 (2012). The California appellate court applied the broad definition of “juvenile courts” over the stricter California provisions since “there is no distinct or separate jurisdiction between a court assigned to the juvenile department and a court assigned to the probate department.” Id. at 735 . Because the California Probate Code “authorizes the superior court to make judicial determinations about the care and ⁴⁵⁴ custody of juveniles,” a court sitting in this capacity would fit the requirements to be considered a juvenile