Celso Monterroso Romero v. Josefa Perez, No. 2477, September Term 2016
Filed March __, 2018.
HEADNOTES:
Aliens, Immigration, and Citizenship – Special Immigrants – Burden of Proof
Special Immigration Juvenile (SIJ) status petitioners must prove each of the SIJ factors
by a preponderance of the evidence. 8 U.S.C. § 101(a)(27)(J); 8 C.F.R. § 204.11.
Aliens, Immigration, and Citizenship – Special Immigrants – Procedure
The circuit court, when petitioned by an applicant seeking SIJ status, must make
individual factual findings on each of the factors required by 8 C.F.R. § 204.11.
Circuit Court for Baltimore City
Case No. 24-D-15-002928
                                                REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                              OF MARYLAND


                                                  No. 2477

                                           September Term, 2016

                                       _________________________

                                     CELSO MONTERROSO ROMERO

                                                      v.

                                              JOSEFA PEREZ


                                       _________________________

                                      Eyler, Deborah S.,
                                      Leahy,
                                      Friedman,

                                                     JJ.

                                       _________________________

                                          Opinion by Friedman, J.
                                       _________________________


                                      Filed:April 4, 2018
       Appellant, Celso Romero, appeals a circuit court finding that his son, R.P., was not

neglected, abused, or abandoned by his mother in Guatemala. Because the circuit court

made the necessary factual findings to support its ruling, we affirm.

                                      DISCUSSION

       R.P. was born to Celso Romero and Josefa Perez in Quetzaltenango, Guatemala, in

1998. Romero immigrated to the United States and has resided in Baltimore since 2004.

R.P. was raised by Perez until he joined his father in the United States in 2015. R.P. then

began the application process for Special Immigration Juvenile (“SIJ”) status to seek lawful

permanent residence in the United States.1

       To begin the process of obtaining SIJ status, immigrants already residing in the

United States must obtain five findings from a state court:

       1)     The juvenile is under the age of 21 and unmarried;

       2)     The juvenile is dependent on the court or has been placed under the
              custody of an agency or an individual appointed by the court;

       3)     The court has jurisdiction under state law to make judicial
              determinations about the custody and care of juveniles;

       4)     Reunification with one or both of the juvenile’s parents is not viable
              due to abuse, neglect, or abandonment or a similar basis under state
              law; and

       5)     It is not in the “best interest” of the juvenile to be returned to his
              parents’ previous country of nationality.
       1
        Because this case arose as a custody petition, Perez is styled as the defendant below
and the appellee here. She did not respond to Romero’s initial motion or this appeal.
Additionally because it arose as a custody petition, this appeal was designated for expedited
treatment pursuant to Rule 8-207(a). Because the instant appeal is from denial of SIJ
findings, not “from a judgment granting, denying, or establishing custody,” the designation
was subsequently withdrawn.
In re Dany G., 223 Md. App. 707, 714-15 (2015) (citing 8 C.F.R. § 204.11). Circuit courts

are required to take evidence and make individual factual findings on each of these factors

when they are petitioned by an immigrant applying for SIJ status. Id. The circuit courts,

sitting as juvenile courts, retain jurisdiction over these matters until the petitioner is 21

years old. Md. Code Family Law (“FL”) § 1-201(a).

       The Circuit Court for Baltimore City placed R.P. under the custody of Romero

(Factor #2) and made three of the other four findings required for SIJ status: that R.P. was

under the age of 21 and unmarried (Factor #1); that the circuit court had the authority to

make determinations for juveniles (Factor #3); and that it was not in R.P.’s best interests

to return to Guatemala (Factor #5). The court was not persuaded that R.P. had been the

victim of neglect, abandonment, or abuse (Factor #4) and therefore, it declined to rule in

favor of Romero. In so ruling, the court (1) correctly noted that no decision of this Court

or the Court of Appeals has identified the applicable burden of proof in SIJ cases;

(2) considered applying either the “preponderance of the evidence” standard or the

heightened “clear and convincing evidence” standard; and (3) determined that Romero had

failed to persuade the court under either burden of proof that R.P. was a victim of neglect,

abandonment, or abuse. We will first determine the proper burden of proof for SIJ findings,

then determine whether it was applied here.

       I.     Burden of proof

       Romero argues that the court erred by using the clear and convincing evidence

standard, causing the court improperly to find that Romero failed to prove neglect. We

agree that it would have been error to apply the clear and convincing standard and hold that

                                              2
Maryland law requires courts to apply the preponderance of the evidence standard to SIJ

petitions.

       We begin by noting that we write on a blank slate; neither federal law nor existing

Maryland law specifies a standard of proof for SIJ cases. Federal law simply requires a

finding of neglect, abandonment, or abuse of the juvenile “under state law,” 8 C.F.R.

§ 204.11. The U.S. Citizenship and Immigration Services (“USCIS”) Policy Manual

instructs state courts to “follow their state law on … evidentiary standards,” but does not

specify a standard. USCIS Policy Manual Pt. J Ch. 3(a)(2) (2017), https://perma.cc/N855-

YEQA. While Maryland requires that courts with jurisdiction over juveniles entertain SIJ

petitions and make the five factual determinations required by SIJ petitions, FL

§ 1-201(b)(10), there is no statutorily designated standard of proof for these findings.

Moreover, as the trial court noted, there are no reported appellate opinions selecting a

burden of proof.

       We are persuaded, however, that applying the preponderance of the evidence

standard to SIJ petitions is consistent with Maryland law. The preponderance standard is

“generally applicable in civil and administrative proceedings.”2 Meyers v. Montgomery

Cnty. Police Dep’t, 96 Md. App. 668, 691 (1993) (discussing appropriate burdens of proof

in the absence of a legislatively designated standard). The General Assembly has

determined that the appropriate burden of proof for juvenile matters, with some enumerated



       2
        The heightened clear and convincing standard is generally reserved for situations
“when the government seeks to take [an] unusual coercive action.” Coleman v. Anne
Arundel Cnty. Police Dep’t, 369 Md. 108, 143 (2002).

                                            3
exceptions, is the preponderance of the evidence standard. Md. Code Courts § 3-817(c) (in

Child In Need of Assistance (“CINA”) cases); § 3-8A-18(e) (in non-CINA cases). Our

courts also use the preponderance of the evidence standard in the custody and visitation

context, when a court is required to make a finding of neglect. Michael Gerald D. v.

Roseann B., 220 Md. App. 669, 683 (2014). In such cases, the court may not grant a parent

visitation if the court believes, by a preponderance of the evidence, that there is reason to

believe that a parent neglected or abused the child. Id. at 685. Maryland law generally

applies the preponderance of the evidence standard to juvenile cases, and because there is

no statutory exception for SIJ petitions, we think that the preponderance standard is

appropriate here.3

       Our review of other state courts’ treatment of SIJ petitions supports the conclusion

that the preponderance standard is appropriate. For example, New York courts have

adopted the preponderance of the evidence standard for SIJ cases. In re Ena S.Y., 34

N.Y.S.3d 99, 101 (N.Y. App. Div. 2016). Texas uses a catch-all preponderance of the

evidence standard for juvenile proceedings, including SIJ cases. Tex. Fam. Code

§ 105.005. Other states specify higher burdens of proof for individual factors in the SIJ

analysis, but only as is required to comport with pre-existing state statutes. In re Y.M., 144

Cal. Rptr. 3d 54, 73-74 (Cal. Ct. App. 2012) (adopting the clear and convincing standard


       3
         We also note that the role of the state courts in the SIJ procedure is to make
preliminary findings to aid USCIS in making final immigration decisions. Simbaina v.
Bunay, 221 Md. App. 440, 453 (2015). USCIS, the federal agency tasked with reviewing
these applications, also applies a preponderance of the evidence standard when it conducts
an administrative review of an immigration determination. Matter of Chawathe, 25 I&N
369 (AAO 2010).

                                              4
to justify termination of court-ordered family reunification services to comply with Cal.

Welf. & Inst. Code § 388(c)(1)(A)(3)); In re Guardianship of Guaman, 879 N.W.2d 668,

672 (Minn. Ct. App. 2016) (adopting the clear and convincing evidence standard for

appointment of a guardian to comply with Minn. Stat. § 524.5–310(a)). Because no pre-

existing Maryland law compels the application of the clear and convincing standard, we

hold that applying a clear and convincing standard in SIJ petitions would be inappropriate.

       Finally, we note that Maryland law is animated by the purpose of “protect[ing]

children who have been the subject of abuse or neglect.” FL § 5-702. We think that the

preponderance of the evidence standard, rather than the heightened clear and convincing

standard, will protect more children and will better protect juvenile victims of abuse,

neglect, or abandonment. We, therefore, hold that preponderance of the evidence is the

proper standard for a circuit court addressing the mandatory factual findings in an SIJ

petition. That holding, however, does not resolve this case.

       II.    The present case

       As described above, Romero argues that the circuit court erred by applying the

higher clear and convincing standard rather than the preponderance of the evidence

standard. We do not think that is what happened here. The circuit court in this case

expressed confusion about the applicable standard, but ultimately found that the evidence

presented by Romero did not establish neglect by any standard:

              With respect to the SIJ findings … we obviously … do this all
              the time. [Appellate courts have] never set a [standard] … for
              the burden [of proof] or the evidence that needs to be met … .
              If the Court is going to make a finding against reunification
              with a parent, there has to be clear and convincing evidence.

                                             5
                                       *     *     *
                     And at this point, regardless of what standard … you
              use, the standard can’t be 50/50. And that’s really where I am.

                                       *       *      *
                     But again, at best, I have a 50/50—and maybe Mom was
              properly caring for him; maybe she wasn’t. And at that level of
              evidence, I can’t make a finding that reunification is not viable
              [due to neglect].

       Over and over, the circuit court described the evidence as “50/50,” by which it meant

that it was in equipoise, perfectly balanced between believing that R.P. was neglected and

believing that R.P. was not neglected. That is insufficient to satisfy the preponderance of

the evidence standard, which is defined as being more likely than not, Mathis v. Hargrove,

166 Md. App. 286, 311 (2005), or “greater-than-fifty percent.” Muti v. Univ. of Md. Med.

Sys., 197 Md. App. 561, 583 n.13 (2011). “50/50” is even less close to satisfying the clear

and convincing evidence standard. Thus, we hold that the court, despite some

misstatements, actually applied the correct standard.

       Finally, we turn to the court’s factual findings, which we review for clear error,

giving due regard to the court on the weight and credibility of evidence. Kusi v. State, 438

Md. 362, 383 (2014). We do not think it was error for the court to determine that Romero

had not adduced credible evidence sufficient for the court to make a finding of neglect by

any evidentiary standard. We affirm.

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR BALTIMORE CITY AFFIRMED.
                                          COSTS TO BE PAID BY APPELLANT.




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