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SJC-12527

   ESWIN E. HERNANDEZ-LEMUS   vs.   MARIA ESPERANZA ARIAS-DIAZ.


                          June 29, 2018.


            Alien.   Probate Court, Findings by judge.


     In October, 2015, Eswin E. Hernandez-Lemus filed a petition
in the Probate and Family Court seeking custody of his son, a
seventeen year old undocumented immigrant from Guatemala. 1 A
"Motion for Special Findings of Fact and Rulings of Law,"
requesting the judge to make the special findings necessary for
the child's application for special immigrant juvenile (SIJ)
status under 8 U.S.C. § 1101(a)(27)(J) (2012), also was filed. 2
After a hearing, the judge granted sole legal and physical
custody of the child to Hernandez-Lemus, but declined to make
the requested special findings. A panel of the Appeals Court
affirmed. See Hernandez-Lemus v. Arias-Diaz, 92 Mass. App. Ct.
1121 (2018). We granted further appellate review. We now
vacate so much of the judgment that declined to enter special
findings and remand for further proceedings consistent with this
opinion.



     1 The child was born on February 16, 1998. "For purposes of
special immigrant juvenile . . . status, 'child' is defined as a
person under twenty-one years of age who is unmarried."
Guardianship of Penate, 477 Mass. 268, 273 n.10 (2017), citing 8
U.S.C. § 1101(b)(1).

     2 Although the copy of the child's affidavit included in the
record appendix is unsigned, at a hearing before the probate
judge the child affirmed the truth of the contents of the
affidavit.
                                                                   2


     Congress established the SIJ status "to create a pathway to
citizenship for immigrant children," Recinos v. Escobar, 473
Mass. 734, 737 (2016), who have been "abused, neglected, or
abandoned by one or both parents." Guardianship of Penate, 477
Mass. 268, 270 (2017). An immigrant child's application for SIJ
status is predicated on special findings from a "juvenile court" 3
that "(1) [he] is dependent on the juvenile court; (2) [his]
reunification with one or both parents is not viable due to
abuse, neglect, or abandonment; and (3) it is not in [his] best
interests to return to [his] country of origin." Recinos, supra
at 735, citing 8 U.S.C. § 1101(a)(27)(J)(i). "An application
for SIJ status must be submitted before the immigrant's twenty-
first birthday." Recinos, supra, citing 8 C.F.R. § 204.11
(2009).

     A judge may not decline to make special findings based on
his or her assessment of the likelihood that the SIJ application
ultimately will be successful before the Federal authorities, or
on any consideration of the juvenile's motivation for seeking
SIJ status. Guardianship of Penate, 477 Mass. at 270. Instead,

     "[u]nder the statute, the judge's sole function is to make
     the special findings, and to do so in a fashion that does
     not limit Federal authorities in determining the merits of
     the juvenile's application for SIJ status. Therefore, we
     conclude that on a motion for special findings, the judge
     shall make such findings without regard to the ultimate
     merits or purpose of the juvenile's application. To avoid
     any unnecessary entanglement in interpreting whether SIJ
     status requires a showing of neglect or abandonment by one
     or both parents, we also conclude that the judge shall make
     special findings only as to the parent named in the
     motion."

Id. This "obligation to make the special findings also applies
regardless of whether the child presents sufficient evidence to
support a favorable finding under each of the criteria set forth
in § 1101(a)(27)(J)." Id. at 275. A judge simply may not
decline to make findings; he or she must make the findings --
whether favorable or not -- concerning those criteria.

     The motion for special findings, accompanied by the child's
affidavit, was filed in the context of a custody proceeding. It

     3 For purposes of the Federal statute, a "juvenile court"
includes the Probate and Family Court. See Recinos v. Escobar,
473 Mass. 734, 738 (2016).
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asserted that reunification of the child with his mother, the
defendant Maria Esperanza Arias-Diaz, was not viable due to
abuse and neglect, and averred that return to Guatemala was not
in the child's best interest. The child is entitled to special
findings with respect to his mother. See Guardianship of
Penate, 477 Mass. at 275. To ensure that the child, who now is
approaching his twenty-first birthday, may timely exercise his
right to seek SIJ status, the Probate and Family Court shall act
forthwith on the motion for special findings.

     So much of the judgment as denied the motion for special
findings is vacated, and the case is remanded to the Probate and
Family Court for further proceedings consistent with this
opinion. Pursuant to Mass. R. A. P. 23, as appearing in 367
Mass. 921 (1975), the clerk of this court shall issue the
rescript to the trial court immediately.

                                    So ordered.

The case was submitted on briefs.

     Valquiria C. Ribeiro for the father.
