                             District of Columbia
                              Court of Appeals
No. 16-FM-1153
                                                                    JAN. 4, 2018
J.U.,
                                       Appellant,

        v.                                          DRB-3166-16


J.C.P.C.
                                       Appellee.

                      Appeal from the Superior Court of the
                              District of Columbia

BEFORE: Fisher and Beckwith, Associate Judges, and Steadman, Senior Judge.

                                JUDGMENT

        This case was submitted to the court on the transcript of record, the briefs
filed, and without presentation of oral argument. On consideration whereof, and as
set forth in the opinion filed this date, it is now hereby

      ORDERED and ADJUDGED that the trial court’s order of October 31,
2016, is vacated and the case is remanded to enter an amended order that includes
the requisite SIJ status finding that C.J.P.U.’s reunification with his father is not
viable due to abandonment under District of Columbia law.

                                       For the Court:




Dated: January 4, 2018.

Opinion by Senior Judge John M. Steadman.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-FM-1153
                                                                       01/04/2018
                                J.U., APPELLANT,

                                        V.

                               J.C.P.C., APPELLEE.

                      Appeal from the Superior Court of the
                              District of Columbia
                                (DRB-3166-16)

                     (Hon. Hiram E. Puig-Lugo, Trial Judge)

(Submitted November 20, 2017                             Decided January 4, 2018)

      Evgenia V. Sorokina was on the brief for appellant.

      Before FISHER and BECKWITH, Associate Judges, and STEADMAN, Senior
Judge.

      STEADMAN, Senior Judge: C.J.P.U., the minor at the heart of this appeal,

illegally entered this country in 2015 as an unaccompanied fourteen-year-old

teenager from El Salvador to join his mother (“J.U.” or “appellant”), who has been

living here since 2005.1 He seeks to remain in this country as a juvenile qualified

      1
           As is customary in appeals involving juvenile matters, we use here the
initials of the minor and the parties.
                                          2


for “special immigrant juvenile” status (“SIJ”). Among other requirements, to

achieve this status a juvenile court must 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.” 8 U.S.C. § 1101 (a)(27)(J) (2009 Supp. II).

The issue before us is whether the trial court erred in refusing to make such a

finding with respect to C.J.P.U.’s father (“J.C.P.C.” or “appellee”), who remains in

El Salvador. We agree with the mother that, on the record before us, such a

finding is mandated.



                          I.   The SIJ Status Statute2



      Under the immigration laws of the United States, an immigrant juvenile, or

someone acting on their behalf, may petition for SIJ status. As originally enacted

in 1990, the statute required a finding that a juvenile applicant was “eligible for

long-term foster care,” 8 U.S.C. § 1101 (a)(27)(J) (1998 Supp. III), thus effectively

limiting the status to juveniles who had no parent to care for them.


      2
          A further description of SIJ status can be found in a number of sources.
See e.g., Cristina Ritchie Cooper, A Guide for State Court Judges and Lawyers on
Special Immigrant Juvenile Status, 36 No. 2 CHILD L. PRAC. 25 (March/April
2017); 3 Charles Gordon et al., Immigration Law and Procedure § 35.09 (Matthew
Bender rev. ed. 2015).
                                         3




       In 2008, the provision was revised and expanded and now reads as follows:


            [a special immigrant juvenile is] an immigrant who is
            present in the United States – (i) who has been declared
            dependent on a juvenile court located in the United States
            or whom such a court has legally committed to, or placed
            under the custody of, an agency or department of a State,
            or an individual or entity appointed by a State or juvenile
            court located in the United States, and whose
            reunification with 1 or both of the immigrant’s parents is
            not viable due to abuse, neglect, abandonment, or a
            similar basis found under State law; (ii) for whom it has
            been determined in administrative or judicial proceedings
            that it would not be in the alien’s best interest to be
            returned to the alien’s or parent’s previous country of
            nationality or country of last habitual residence; and (iii)
            in whose case the Secretary of Homeland Security
            consents to the grant of special immigrant juvenile
            status[.]


8 U.S.C. § 1101 (a)(27)(J)(i)-(iii). The current law also requires the applicant be

under twenty-one years of age and unmarried. See 8 C.F.R. § 204.11 (c)(1), (2).3

Notably for present purposes, “long-term foster care” was replaced with the

requirement that reunification not be viable with “[one] or both” parents due to

abuse, neglect, or abandonment, significantly broadening eligibility for SIJ status.


      3
      The federal regulations have not been updated to reflect the 2008 statutory
amendments to the SIJ status statute.
                                          4


Now, an SIJ applicant need not be in foster care or the child welfare system to be

eligible. A finding is sufficient for SIJ status if reunification with only one parent

is not viable due to abuse, neglect, or abandonment, at least where, as here, the

parent in question is located in the home country to which the minor would

otherwise be deported.4



      Such an interpretation is consistent not only with our reading of the statute,

but also with the legislative history and, importantly, the interpretation of the

United States Citizenship and Immigration Service (“USCIS”), the agency tasked

with administering SIJ status approvals. The USCIS Policy Manual notes that

“USCIS interprets the TVPRA changes as a clarification that petitioners do not

need to be eligible for or placed in foster care and that they may be reunified with

one parent or other family members.” USCIS Policy Manual, Vol. 6, Part J, Ch. 2,

§         D2     n.9      (current       as      of       Aug.       23,       2017),

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartJ-

Chapter2.html. The states of New York and California have similarly interpreted

      4
         Although the statute may not be entirely clear, it is well-established that
the juvenile court is required to make a finding on the viability of reunification as
well as neglect, abuse, or abandonment. See USCIS Policy Manual, Vol. 6, Part J,
Ch. 2, § D2 (“The juvenile court must find that reunification with one or both
parents is not viable due to abuse, neglect, abandonment, or a similar basis under
the relevant state child welfare laws.”).
                                           5


the statutory language. See In re Israel O., 182 Cal. Rptr. 3d 548, 555 (Cal. Ct.

App. 2015) (holding that although the “one or both” language is ambiguous, the

intent of the statute and USCIS’s unofficial guidance makes clear that “SIJ eligible

children . . . may be living in this country with . . . the non-abusive parent”)

(internal quotation marks and citation omitted) (emphasis omitted); In re

Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 722 (N.Y. App. Div. 2013)

(finding that the “one or both” parent language “signifies that the child need not be

separated from both parents to be eligible for [SIJ status]”) (citation omitted).5



      These requisite state court findings, however, are not determinative of SIJ

status. Rather, once a state juvenile court makes the requisite SIJ status findings,

the minor must file a Petition for Special Immigrant Status with USCIS under the

Department of Homeland Security (“DHS”) that includes a copy of the juvenile

court’s findings. In addition to the petition and requisite findings, the minor must

obtain the consent of USCIS. See 8 U.S.C. § 1101 (a)(27)(iii). For the SIJ

applicant to obtain USCIS’s consent, USCIS must review the juvenile court order,

      5
         The Nebraska Supreme Court has found that the “[one] or both” parent
language requires a minor to demonstrate it is not feasible for the minor to return to
either parent. In re Erick M., 820 N.W.2d 639, 647 (Neb. 2012). This ruling
precedes the issuance of the USCIS Policy Manual and both the New York and
California cases.
                                           6


conclude that the SIJ status request is bona fide, and approve the petition. Id.

Accordingly, the ultimate decision as to a minor’s SIJ status lies with the federal

government, not with the juvenile court.6 Once SIJ status is approved, the minor

can apply for legal permanent residence.



                             II.   The Current Litigation



      The case before us began when the mother filed a verified complaint for

custody in the Superior Court seeking sole legal and physical custody of C.J.P.U.,

as well as a Motion for Special Immigrant Juvenile Status Predicate Order. In the

mother’s request for findings of C.J.P.U.’s SIJ status eligibility, she alleged

reunification with the father was not viable because he had abandoned C.J.P.U.

The father filed a Consent Answer to both the Complaint for Custody and Motion

for SIJ status findings under penalty of perjury. In his answer, the father agreed

with all the allegations made by the mother in her complaint and SIJ status motion.


      6
         The unusual involvement of state courts in what is ultimately a federal
immigration decision appears based on the belief that state courts have greater
experience in determining matters of abuse, neglect, and abandonment. While the
ultimate decision for SIJ status is with the federal government, it might be
observed that the refusal by a juvenile court to make a requisite finding can have
the effect of leaving the minor open to deportation, thus making it a significant
decision in itself. In C.J.P.U.’s case, a removal proceeding is already underway.
                                         7


He also agreed with both the mother’s and C.J.P.U.’s sworn statements in support

of the SIJ status motion.



      After a hearing at which both the mother and C.J.P.U. testified, the trial

court granted the mother sole physical and legal custody of C.J.P.U. With respect

to the request for SIJ status findings, the trial court determined that C.J.P.U.

satisfied the following conditions imposed by the statute: (1) C.J.P.U. was under

the age of twenty-one years and unmarried; (2) C.J.P.U. was placed, pursuant to an

order of the juvenile court, in the custody of his mother when the court granted her

sole legal and physical custody; and (3) it was not in C.J.P.U.’s best interest to be

returned to El Salvador.7 The trial court, however, found C.J.P.U. failed to meet

the final condition required for SIJ status eligibility: that reunification with his

father was not viable due to abandonment or neglect. Challenging this conclusion,

the mother brought the appeal now before us.




      7
         In making this last finding, the trial court said: “C.J.P.U. has never lived
full-time with his father. C.J.P.U.’s paternal grandfather, his caretaker for nearly
ten years, is deceased. His mother, who has consistently provided for him, is in the
United States, as are his three older and one younger sibling. C.J.P.U.’s mother is
able to provide care, a home, food, clothing, and the opportunity to attend school
full time.”
                                          8


      In addressing this finding, it is important to focus on exactly what is to be

determined in the context of the case before us. It is not the abstract question

whether the minor has been neglected or abandoned by the father. Rather, it is

whether reunification with the father in El Salvador is “viable” due to

“abandonment.” 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.



      Apart from its primary meaning of capacity for life, the word “viable,” as it

applies to the situation here, has been defined in various ways, but all of them carry

the connotation of common-sense practical workability.           See e.g., Merriam-

Webster New International Dictionary (3d ed. 2002) (“capable of being put into

practice: workable); American Heritage Dictionary of the English Language (3d

ed. 1992) (“capable of success or continuing effectiveness; practicable”); Random

House Dictionary of the English Language (21st ed. 1987) (“practicable;

workable”).



      In its turn, the word “abandonment” in our law is found in several

definitions, depending on the context in which the determination is being made.

Thus, where a petition alleges abandonment as grounds for a neglect finding, D.C.
                                         9


Code § 16-2316 (d)(1)(C) (2012 Repl.) provides that an inference of neglect may

be drawn if the child’s parent “is known but has abandoned the child in that he or

she has made no reasonable effort to maintain a parental relationship with the child

for a period of at least four (4) months.”             On the other hand, in a

termination/adoption proceeding, the statute prescribes that when a parent “has

abandoned the prospective adoptee and voluntarily failed to contribute to his

support for a period of at least six months,” his or her parental rights may be

terminated without the required consent. D.C. Code § 16-304 (d) (2012 Repl.).8

And for purposes of uniform child-custody jurisdiction and enforcement,

abandonment is defined simply as “left without provision for reasonable and

necessary care or supervision.” D.C. Code § 16-4601.01 (1) (2012 Repl.). 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 impact of the history of the

parent’s past conduct on the viability, i.e., the workability or practicability of a

forced reunification of parent with minor, if the minor were to be returned to the

home country.




      8
         The USCIS Policy Manual is explicit that termination of parental rights is
not required. See USCIS Policy Manual, Vol. 6, Part J, Ch. 2, § D2 “([a]ctual
termination of parental rights is not required”).
                                          10


      We turn to consider the record in this appeal in light of the SIJ status statute

and the above legal principles relating to the specific inquiry before us.9



                  III.   “Viable Reunification” and “Abandonment”



      C.J.P.U. was born on September 22, 2000, in El Salvador. During the early

part of his life, C.J.P.U. resided with his mother, siblings, and maternal

grandmother.    His father lived with C.J.P.U.’s paternal grandparents a short

distance away and spent several days a week with C.J.P.U. and the mother at the

maternal grandmother’s home. During this period of C.J.P.U.’s life, his mother

and father had two additional children, both also born in El Salvador, but never

married.




      9
         The statutory structure may impose an extraordinarily difficult task on a
juvenile court, as in the present case. The problems in developing a proper
evidentiary record are obvious. The father has acquiesced in all the assertions
made by the mother and C.J.P.U. There is no adverse party to present contrary
evidence based on happenings in the home country. A court may discredit
evidence, but creation of contrary evidence rests on surmise. The possibility of
collusion is not to be discounted, but the filings in the court are all made under
penalty of perjury and would appear to have some presumptive validity. It is the
responsibility of USCIS, not the juvenile court, to determine whether the SIJ status
request is “bona fide.” See 8 U.S.C. § 1101 (a)(27)(J)(iii).
                                          11


      In 2005, the mother moved to the United States where she has since resided

with four of C.J.P.U.’s siblings and his niece.10 Prior to moving to the United

States she arranged for C.J.P.U. and his younger brother to reside with their

paternal grandparents. The mother also arranged for C.J.P.U.’s younger sister to

reside with the children’s maternal grandmother. After the mother’s departure, the

father created a second family and had a daughter with his new partner, moving

half a block away from the paternal grandparents’ home. In the years C.J.P.U. and

his mother lived apart, she provided approximately $200-$300 monthly to

C.J.P.U.’s paternal grandfather and spoke on the telephone with C.J.P.U. weekly.

In October 2013, C.J.P.U.’s paternal grandfather passed away, apparently causing

controversy between C.J.P.U. and the other relatives in the home about whether he

should be permitted to continue living there. In any event, as the trial court

explicitly noted, C.J.P.U. has never lived full-time with his father.



      During this period, by the testimony of the mother and C.J.P.U., the father

living apart from his son was a non-supportive and distant figure. While the father

did visit the paternal grandparents’ house on a regular basis, C.J.P.U. testified that

the father never fed him, gave him clothes, took him to school, cared for him when

      10
          The record does not reveal the mother’s exact status in this country or that
of the children.
                                        12


he was sick, or showed him any affection. Rather, he thought of the paternal

grandfather as his father and had no feelings of affection towards his biological

father. The father never invited C.J.P.U. to live with him even after discovering

that C.J.P.U. had nowhere to live in El Salvador,11 nor did the father ever provide

any financial support or assume any significant parental responsibility for making

necessary day-to-day decisions regarding C.J.P.U. All financial support came

from his mother and grandfather. Likewise, the sworn Complaint and affidavit of

the mother, with which the father expressly agreed, averred that, while the father

recognized C.J.P.U. as his son, he never helped the mother to financially care for

him or helped to take care of him, and that the father does not have a parent-child

relationship with C.J.P.U. as he has never participated in his life or shown him

love. Once C.J.P.U. entered the United States and took up residence with his

mother, C.J.P.U. testified he had never had any contact with his father and that the

last contact with his father was a week before he left El Salvador. This was so

even though the mother and the father did communicate by telephone on certain




      11
           The trial court noted that the mother “did not present any credible
evidence to suggest that [the father] had ever been asked to take care of [C.J.P.U.]
or to provide for him.” However, it made no findings as to whether the father had
ever taken the initiative to parent C.J.P.U. A parent’s role is not fulfilled in
passivity.
                                          13


occasions, one of which involved getting a passport for C.J.P.U. During the years

that the mother and son were apart, they communicated by telephone every week.



      Although there was no explicit contrary evidence, the trial court was of the

view that the mother and C.J.P.U. were “minimizing” the father’s involvement in

C.J.P.U.’s life. It discredited C.J.P.U.’s testimony that the father visited only to

ask for money and ignored both C.J.P.U. and his younger brother on visits to the

grandparents’ home, surmising that it was simply not credible that a father could

visit his parents’ home and yet completely ignore his two sons who lived there.

The trial court also pointed out several instances in the record of the father’s

concern over his son’s welfare: when the father found out that a teacher had struck

C.J.P.U. for not doing homework, the father confronted the teacher; when C.J.P.U.

was preparing to leave for the United States, the father went to say goodbye and

wish him luck; and the father signed paperwork for C.J.P.U. to obtain a passport

once in the United States as well as a consent to the custody petition. With respect

to the failure of the father to contact C.J.P.U. after his arrival in the United States,

the trial court simply noted that C.J.P.U. had testified that the father did not know

his phone number or address in the United States.            The trial court in short

concluded that the father may “not have been a perfect father, but he has not been a

neglectful one either.”
                                         14




      We think, however, the trial court applied too demanding a standard of both

“viability” and “abandonment” in the context of this particular case. As far as the

record shows, the father, while perhaps not without affection for his son and taking

spasmodic steps in his parental role, nonetheless over the years never provided a

home with father and son together, never exercised the day-to-day oversight with

parental decisions incumbent upon proper care and supervision, never contributed

financially to maintenance of his son, and essentially outsourced all these duties to

others.   Cf. In re Je.A., 793 A.2d 447, 448 (D.C. 2002) (finding the mother

abandoned her child where “[f]or over a year and a half, . . . [the mother] made no

effort to assume any parental responsibility [for] or establish any parental

relationship with [the child],” and had “taken no action to provide for the physical

and emotional needs of [the child]”); Petition of C.E.H., 391 A.2d 1370, 1373-74

(D.C. 1978) (finding abandonment as grounds for termination where the mother

“never cleaned her child or cooked a meal for her,” and “never assumed

responsibility for [the child’s] religious, moral and educational training” but left

those parental responsibilities to the foster parents). Even after the grandfather

died, and living arrangements with C.J.P.U. apparently became untenable for the
                                           15


aging grandmothers,12 the father simply acquiesced in C.J.P.U.’s departure to join

his mother. Moreover, he never communicated with his son after his departure, for

which the absence of telephone number or address would not have presented an

insuperable obstacle to a caring parent.



      At bottom, what is at issue here is not “reunification” with the father but

rather initial “unification” itself. We must conclude that sending a seventeen-year-

old boy back to the care of a father who has never fulfilled any day-to-day role in

the support, care, and supervision during the boy’s lifetime cannot be a

“reunification” that is “viable,” that is, “practicable; workable,” and such a

conclusion is due to “abandonment” evidenced by the record here in its relation to

the viability of reunification. Given the flexibility of the concept depending on the

context for which the determination is being made, here abandonment is judged by

      12
            Both of C.J.P.U.’s younger siblings still live with the respective
grandmothers in El Salvador, not with their father. The trial court observed that
each grandmother was in charge of one of the younger siblings of C.J.P.U. and that
it was highly unlikely that the mother would have allowed these children to remain
with a grandmother who did not provide appropriate care. It does not follow,
however, that either would be in a position to care for an additional child,
especially an older teenager, to house, feed, and supervise. To the contrary, the
mother’s sworn statement was quite specific in averring that after the paternal
grandfather died, the remaining family members did not want C.J.P.U. to live with
them and that the maternal grandmother was unable to care for him, because of her
physical condition already caring for the mother’s daughter. In any event, the
statutory inquiry is not forced reunification with a grandparent, but with the father.
                                          16


the lifelong history of C.J.P.U. with his father and the bearing of that history on the

prospects if C.J.P.U. were to be returned to the immediate custody of the father in

the home country.



      In reaching this conclusion, we generally follow the approach in our only

known prior case addressing the issue now before us.            Though not binding

precedent in that no published opinion has been issued, in Olmedo v. Lopez-

Portillo, No. 16-FM-1103 (Nov. 9, 2016), this court addressed an appeal from a

trial court denial of SIJ status involving the same issue as in our case.13 Prior to

arriving in the United States at the age of sixteen to live with his uncle, the minor

in that case had resided his entire life with his biological mother in El Salvador.

While there, he and his mother were threatened with physical harm by local gangs,

they had moved from their original home to escape the threats, and were followed

by the gangs. The mother then moved yet again, telling the minor to leave for the

United States, which he did alone. The mother had not provided support since

telling the minor to leave and is unable to do so. If the minor returned to El

Salvador, he would not be permitted to live with the mother. We concluded that,

      13
          The only case in our jurisdiction with a published opinion involving the
SIJ status statute is In re C.G.H., 75 A.3d 166 (D.C. 2013), but that case dealt with
a different provision of the statute.
                                          17


as a matter of law, the mother neglected and abandoned the minor and that

reunification was not viable.14



      We vacate the October 31, 2016, order appealed from and remand this case

to the trial court to enter an amended order consistent with this opinion that

includes the requisite SIJ status finding that C.J.P.U.’s reunification with his father

is not viable due to abandonment under District of Columbia law.



                                               So ordered.




      14
          This decision post-dated the trial court’s ruling in our case. Based on this
decision, the mother in our case filed a motion under Super. Ct. Civ. R. 60 (b)(6)
for reconsideration of the trial court’s denial of her motion for SIJ status findings.
The trial court declined to address this motion on the ground that the filing of the
notice of appeal from its original order deprived it of jurisdiction.
