                                                                           FILED
                                                                       Nov 08 2018, 8:42 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT
Thomas J.O. Moore
Indianapolis, Indiana
Alexander E. Budzenski
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                      November 8, 2018
Guardianship of Irma Elisabeth                            Court of Appeals Case No.
Avila Luis                                                18A-GU-1312
Ramiro Velasquez Avila,                                   Appeal from the Jackson Circuit
                                                          Court
Appellant-Petitioner.
                                                          The Honorable Richard W.
                                                          Poynter, Judge
                                                          Trial Court Cause No.
                                                          36C01-1803-GU-9



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018                           Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Ramiro Velasquez Avila (Avila), appeals the trial court’s

      Order appointing him guardian of his minor sister, Irma Elisabeth Avila Luis

      (Irma), because the trial court refused to articulate special immigrant juvenile

      findings in accordance with 8 U.S.C. § 1101(a)(27)(J).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                    ISSUE
[3]   Avila presents us with one issue on appeal, which we restate as: Whether the

      trial court was required to make findings on Irma’s special immigrant juvenile

      status in accordance with 8 U.S.C. § 1101(a)(27)(J).


                      FACTS AND PROCEDURAL HISTORY
[4]   Irma, born on May 20, 2000, in Chisec, Guatemala, is a native and citizen of

      Guatemala. Irma’s father, Hilario Velasquez de la Cruz, died when she was

      three years old. Until 2016, Irma lived with her mother, Julia Avila Luis

      (Mother), in Guatemala. In 2016, Mother became unable to provide care for

      Irma. She no longer could afford to feed Irma, send her to school, and provide

      her with medical care. Mother put Irma on a bus to the United States.


[5]   After several weeks of travelling alone to the Mexican-American border, Irma

      entered the United States and was detained by immigration officials and taken

      into federal custody. Eventually, the federal government released Irma into the

      custody of her brother, Avila, who resides in Seymour, Indiana. Since her

      Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018      Page 2 of 9
      release from federal custody, Irma has lived with her brother in Indiana. She is

      studying English and attending Seymour High School in the tenth grade. Avila

      meets Irma’s basic needs and supports her financially and emotionally.


[6]   On March 2, 2018, Avila petitioned the trial court to appoint him as guardian

      of his sister and requested the trial court to make certain findings necessary for

      Irma to seek classification as a special immigrant juvenile before the United

      States Citizenship and Immigration Services (USCIS) in accordance with 8

      U.S.C. § 1101(a)(27)(J). On May 11, 2018, the trial court conducted a hearing

      on Avila’s petition. During the hearing, the trial court felt “very uncomfortable

      making those kinds of findings.” (Transcript p. 17). The court stated that it had

      “a real problem” because the federal government “[t]hrowing it on me to make

      factual findings for them [is] irritat[ing].” (Tr. p. 20). “It should be made by

      [f]ederal officials. They’re the one that makes the decision of who comes in the

      United States, who leave the United States, not me. And that’s why I have a

      problem with this . . .. Immigration [j]udges are [i]mmigration [j]udges for a

      reason. That’s their decision.” (Tr. pp. 21-22). On May 17, 2018, the trial

      court issued its findings of facts and Order, appointing Avila as guardian of

      Irma and finding, in pertinent part:


              6. Irma’s mother, [Mother], is a native of Guatemala.
              According to [I.C. §] 31-21-2-2, “abandoned” means left without
              provision for reasonable and necessary care or supervision.
              Accordingly, Irma’s mother neglected and abandoned Irma by
              allowing her to travel across several countries alone.




      Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018       Page 3 of 9
              7. Irma’s father, [], was a native of Guatemala. He died on
              October 6, 2003, and abandoned Irma before she was born. He
              was never a part of her life and passed away when she was three
              years old.


              8. [Avila], petitioner, is Irma’s brother. Petitioner is twenty-one
              (21) years old and resides in Seymour, Indiana with Irma.


              9. No person has objected to Petitioner being appointed
              Guardian of Irma.


              10. Irma cannot care for herself.


              11. For the foregoing reasons, the [c]ourt further finds that:


                       a. Irma has been abandoned and neglected by both of her
                       parents in that her father abandoned her before birth and
                       died, and her mother allowed her [to] make a dangerous
                       journey across several countries alone[.]


      (Appellant’s App. Vol. II, p. 5).


[7]   Avila now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[8]   Avila does not contest the trial court’s affirmative findings. The trial court’s

      Order is silent, however, with regard to the requested findings on Irma’s

      immigration status, and Avila contends that the trial court erred by failing to

      articulate such findings. Although there are no appellate decisions in Indiana

      discussing the procedure for obtaining special immigrant juvenile status before


      Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018          Page 4 of 9
       our state juvenile courts, our sister states have created a wealth of case law

       which we will consult for guidance and interpretation in this issue of first

       impression.


[9]    Federal law provides a path to lawful permanent residency in the United States

       to resident alien children who qualify for “special immigrant juvenile” (SIJ)

       status. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11. “Congress created the SIJ

       classification to protect abused, neglected, and abandoned immigrant youth

       through a process allowing them to become legal permanent citizens.” In the

       Interest of J.J.X.C., a Child, 318 Ga. App. 420, 424 (Ga. Ct. App. 2012).


[10]   To be eligible to petition the federal government for SIJ status, the resident alien

       must be under the age of 21 and unmarried. 8 C.F.R. § 204.11(c). The child

       must have been declared dependent upon a state juvenile court “or whom the

       court . . . has legally . . . placed under the custody of . . . an individual[.]” 8

       U.S.C. § 1101(a)(27)(J). In addition, the juvenile court must make two

       additional findings: (1) “reunification with one or both of the immigrant’s

       parents is not viable due to abuse, neglect, abandonment, or a similar basis

       found under State law;” and (2) “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.” 8 U.S.C. § 1101(a)(27)(J)(i), (ii). The language of the

       first finding is designed to “prevent youths from using this remedy for the

       purpose of obtaining legal permanent resident status, rather than for the

       purpose of obtaining relief from abuse or neglect.” In re Erick M., 820 N.W.2d

       639, 645 (Neb. 2012) (quoting 3 Charles Gordon et al., Immigration Law and

       Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018          Page 5 of 9
       Procedure § 35.09(1) at 35-36 (rev. ed. 2001), citing H.R. Rep. No. 105-

       405(1997) (Conf. Rep.)). Although the juvenile court determines whether the

       evidence supports the findings, the final decision regarding SIJ status rests with

       the federal government. 8 U.S.C. § 1101(a)(27(J)(iii).


[11]   Accordingly, the process for obtaining SIJ status is “‘a unique hybrid procedure

       that directs the collaboration of state and federal systems.’” In re Marisol N.H.,

       115 A.D. 3d 185, 188 (N.Y. App. Div. 2014) (quoting In re Hei Ting C., 109 A.D.

       3d 100, 104 (N.Y. 2013)). In this hybrid proceeding, the state juvenile court is

       charged with making the factual inquiry relevant to SIJ status when an

       unmarried, resident alien child is found to be dependent on the court. “The SIJ

       statute affirms the institutional competence of state courts as the appropriate

       forum for child welfare determinations regarding abuse, neglect, or

       abandonment, and a child’s best interests.” In re J.J.X.C., 318 Ga. App. at 425.

       Therefore, courts in other states have held that a juvenile court errs by failing to

       consider a request for SIJ findings. See id.; In re Mohammed B., 83 A.D. 3d 829,

       831 (N.Y.A.D. 2011) (child moved for SIJ findings during guardianship

       proceeding in family court); In re Interest of Luis G., 764 N.W. 2d 648 (Neb.

       2009) (motions regarding SIJ status filed during juvenile cases addressing

       guardianship and foster care). “By making these preliminary factual findings,

       the juvenile court is not rendering an immigration determination.” H.S.P. v.

       J.K., 121 A.3d 849, 858 (N.J. 2015). The predicate order issued by a state court

       is merely a prerequisite that must be fulfilled before a juvenile can submit his or




       Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018        Page 6 of 9
       her application for SIJ status to USCIS in the form of an I-360 petition. Id. If

       USCIS approves the juvenile’s I-360, he or she will be granted SIJ status. Id.


[12]   Thus, a state court’s role in the SIJ process is not to determine worthy

       candidates for citizenship, but simply to identify abused, neglected, or

       abandoned alien children under its jurisdiction who cannot reunify with a

       parent or be safely returned in their best interests to their home country. As

       aptly observed by the court in Mario S., the SIJ statute and accompanying

       regulations


               commit . . . specific and limited issues to state juvenile courts.
               The juvenile court need not determine any other issues, such as
               what the motivation of the juvenile in making application for the
               required findings might be; whether allowing a particular child to
               remain in the United States might someday pose some unknown
               threat to public safety; and whether the USCIS, the federal
               administrative agency charged with enforcing the immigration
               laws, may or may not grant a particular application for
               adjustment of status as a SIJ.


       In re Mario S. 954 N.Y.S.2d 843, 852-53 (N.Y. Fam. Ct. 2012) (internal citations

       omitted). Mario S. further explained that if “the USCIS denies a juvenile alien’s

       application for legal permanent residence as a [SIJ],” the juvenile’s remedy lies

       not in state court, but instead the juvenile must “seek review of the agency’s

       decision in federal court.” Id. State courts play no role in the final

       determination of SIJ status, or ultimately, permanent residency or citizenship,

       which are federal questions. Nothing in 8 U.S.C. § 1101(a)(27)(J) indicates that

       Congress intended state juvenile courts to pre-screen potential SIJ applications.

       Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018         Page 7 of 9
       Rather, “[t]he juvenile court is simply called upon to determine” discrete factual

       issues, including “whether, under state law, the juvenile is under the age of 21,

       unmarried, dependent upon the court through an order of placement or other

       court order, whether reunification with one or both of the juvenile’s parents is

       not possible due to abuse, neglect, or abandonment of the child, and whether it

       would be contrary to the juvenile’s best interest to be returned to his or her

       previous country of nationality.” Id. at 852.


[13]   Thus, although state courts do not make immigration decisions, it is

       inescapable that a minor seeking SIJ status is dependent upon a state court to

       make the prerequisite findings in a predicate order for the minor to qualify for

       such status under the scheme established by federal immigration law. Here,

       however, the trial court’s Order is silent regarding any decision on the SIJ

       factors despite Avila’s request. Likewise, the trial court did not state a basis for

       declining to make SIJ findings nor did it state that it had considered the SIJ

       findings and rejected them. Although the trial court is authorized to conclude

       that the petitioner failed to present evidence to support the SIJ factors or that

       the presented evidence was not credible, the court nevertheless has a duty to

       consider the SIJ factors and to make findings. In this unusual setting, where a

       state court is charged with addressing an issue relevant only to federal

       immigration law, we cannot affirm the trial court’s Order without some positive

       indication that the court actually addressed Avila’s request. Accordingly, we

       affirm the trial court’s appointment of a guardian but remand to the trial court

       with instruction to consider the request for SIJ findings in light of the evidence


       Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018        Page 8 of 9
       presented and articulate the relevant determinations pursuant to 8 U.S.C. §

       1101(a)(27)(J).


                                             CONCLUSION
[14]   Based on the foregoing, we hold that the trial court erred when it failed to make

       findings on Irma’s special immigrant juvenile status pursuant to 8 U.S.C. §

       1101(a)(27)(J). Accordingly, we affirm the trial court’s appointment of a

       guardian but remand for further proceedings in accordance with this decision.


[15]   Affirmed in part, reversed in part, and remanded with instructions.


[16]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-GU-1312 | November 8, 2018     Page 9 of 9
