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SJC-12138
SJC-12184

             GUARDIANSHIP OF YOSSELIN GUADALUPE PENATE.

  DEPARTMENT OF REVENUE1   vs.   MANUEL MORALES LOPEZ & another.2



            Suffolk.    January 6, 2017. - June 9, 2017.

 Present:    Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.


Alien. Probate Court, Jurisdiction.     Jurisdiction, Probate
     Court.



     Petition for appointment of a guardian filed in the Suffolk
Division of the Probate and Family Court Department on September
14, 2015.

     A motion for special findings of fact was heard by Virginia
M. Ward, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

     Complaint to establish paternity filed in the Suffolk
Division of the Probate and Family Court Department on November
25, 2014.

     A motion for special findings of fact was heard by Virginia
M. Ward, J.

    1
        On behalf of Norma Cecilia Mauricio Guzman.
    2
        E.G. (a pseudonym), interested party.
                                                                   2



     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Valquiria C. Ribeiro for Marvin H. Penate.
     Jennifer B. Luz (Joshua M. Daniels also present) for E.G.
     Elizabeth Badger for Kids in Need of Defense & others,
amici curiae.
     The following submitted briefs for amici curiae:
     Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, William C. Peachey, Erez Reuveni, & Joseph A. Darrow,
of the District of Columbia, for the United States.
     Mary K. Ryan & Meghan S. Stubblebine for American
Immigration Lawyers Association, New England Chapter, & others.


     HINES, J.   In these appeals brought by E.G., an eight year

old undocumented immigrant from Guatemala, and Yosselin

Guadalupe Penate, a nineteen year old undocumented immigrant

from El Salvador, we consider for the second time3 the

statutorily mandated role of the Probate and Family Court (and

the Juvenile Court) in a juvenile's application for special

immigrant juvenile status (SIJ) under 8 U.S.C. § 1101(a)(27)(J)

(2012).   Congress established the SIJ status classification "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.   The issue

presented in these appeals is whether a judge may decline to


     3
       See Recinos v. Escobar, 473 Mass. 734, 739-743 (2016)
(recognizing Probate and Family Court jurisdiction to make
special findings under 8 U.S.C. § 1101[a][27][J] [2012], in
cases involving persons between eighteen and twenty-one years of
age).
                                                                       3


make special findings based on an assessment of the likely

merits of the movant's application for SIJ status or on the

movant's motivation for seeking SIJ status.      The judge

implicitly determined that neither child would be entitled to

SIJ status based on her interpretation of the statute and

declined to make special findings.      This was error.

       We now clarify the role of the judge with respect to a

juvenile's motion for special findings necessary to apply for

SIJ status under 8 U.S.C. § 1101(a)(27)(J).      Because immigration

status is a matter solely within Federal jurisdiction, the

merits of a juvenile's application for SIJ status will be

determined in immigration proceedings in accordance with Federal

law.   See Recinos, 473 Mass. at 738.     Under 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
                                                                     4


or both parents, we also conclude that the judge shall make

special findings only as to the parent named in the motion.4

     Background.5   1.   Yosselin Penate.   Yosselin6 was born in

1997 in El Salvador to Marleny D. Penate-Velasquez.     The father

abandoned Marleny before Yosselin was born, and is not listed on

her birth certificate.    Yosselin has never had any contact with

her father and does not know his identity.     Until her teenage

years, Yosselin lived in a small house with her mother,

grandfather, uncle, three brothers, and two cousins.     Of the

adults living in the household, only Yosselin's uncle was

employed.   Having his own children to provide for, the uncle's

income was rarely sufficient to cover food and clothing for

Yosselin and her siblings.


     4
       We acknowledge the amicus brief submitted by the United
States in E.G.'s case in support of neither party; and the
amicus briefs submitted in each case in support of the
appellants by the American Immigration Lawyers Association, New
England Chapter; the Boston College Immigration Clinic; the
Catholic Charitable Bureau of the Archdiocese of Boston, Inc.;
the Central West Justice Center; the Children's Law Center of
Massachusetts; Community Legal Services and Counseling Center;
Greater Boston Legal Services; the Immigration Legal Assistance
Program of Ascentria Care Alliance; Justice Center of Southeast
Massachusetts; Kids in Need of Defense; Massachusetts Law Reform
Institute; MetroWest Legal Services; and the Political
Asylum/Immigration Representation Project.
     5
       We recite the facts as drawn from the limited record
before us.
     6
       Because Yosselin and her uncle Marvin share a last name,
and her mother's last name is similar, we refer to the family
members by their first names.
                                                                     5


    Because her mother was unemployed, Yosselin did not have

access to medical treatment.   At age fourteen, Yosselin took a

job to help with family expenses.   While working, Yosselin

continued to attend school, but her job responsibilities

frequently prevented her from completing her homework.    Although

she added to the family's income, Yosselin's living conditions

remained poor.   In 2013, when Yosselin was fifteen years of age,

she began receiving death threats from a local gang.     The gang

demanded that she either join the gang or be killed.   Because

Marleny was unable to properly provide financial resources for

Yosselin or protect her from the gang, Marleny determined that

it would be best for the family if Yosselin left for the United

States to live with her uncle, Marleny's brother, Marvin H.

Penate, who lives in Massachusetts.   In accordance with her

mother's wishes, Yosselin traveled to the United States and has

lived with Marvin in Revere since that time.   Since her arrival

in the United States, Yosselin has had access to proper medical

care, is enrolled in school, and has adequate food and clothing.

Although Yosselin remains in contact with her mother in El

Salvador, she wishes to continue living with Marvin in the

United States.

    In September, 2015, when Yosselin was seventeen years of

age, Marvin filed a petition in the Probate and Family Court

seeking guardianship of her, and she then filed a motion seeking
                                                                    6


the requisite special findings for SIJ status.   In her motion

for special findings, Yosselin asserted that she was dependent

on the Probate and Family Court, that reunification with her

mother was not viable due to neglect, and that return to El

Salvador was not in her best interests.7   Following a short

hearing, the Probate and Family Court judge issued a written

decision, dismissing the guardianship petition and declining to

make special findings as to the first and third prongs.    With

respect to the second prong, the judge stated, "The sole problem

here is that [Yosselin] must find a legal way to re-enter this

country if in fact she is deported.   This [c]ourt does not find

that 'reunification with one or both of the immigrant's parents

is not viable due to abuse, neglect, abandonment, or similar

basis found under State law' 8 U.S.C. § 1101(a)(27)(J)."       Marvin

appealed from this decision, and we transferred the case to this

court on our own motion.

     2.   E.G.   E.G. was born in Guatemala in 2008 to Norma

Cecilia Mauricio Guzman.   After finding out that Guzman was

pregnant, E.G.'s father, Manual Morales Lopez, abandoned Guzman,

and he moved to the United States before E.G. was born.

Following his move to the United States, Lopez made no effort to

contact or take care of E.G. and offered Guzman negligible

     7
       Yosselin filed a second motion for special findings in
December, 2016, asserting neglect and abandonment by her father.
That motion is pending in the Probate and Family Court.
                                                                       7


financial support.   After E.G.'s birth, Lopez stopped providing

financial support altogether.   Because Lopez ignored Guzman's

efforts to inform him of E.G.'s birth and had no relationship

with E.G., Guzman did not list Lopez on E.G.'s birth

certificate.

    During the early years of E.G.'s life, she and her half-

brother were raised by their mother in Guatemala.   As a single

mother, Guzman was unable to earn enough money to support her

two children.    She left for the United States without her

children when E.G. was three years old and her half-brother was

ten years old.   Once in the United States, Guzman remained in

contact with her children and attempted unsuccessfully to secure

reliable care from members of E.G.'s extended family and a woman

whom Guzman paid for child care services.   Neither proved

reliable.   Consequently, E.G. was looked after by her half-

brother or, when he was at school, left completely alone.

Although initially E.G. attended kindergarten in Guatemala,

after three months she had to stop going because the walk to

school was far and too dangerous for E.G. to walk alone.      On one

occasion, E.G. suffered a head injury and was hospitalized after

falling into a large hole.    On another occasion, she was

attacked by a stray dog when she was out on the street alone.

    In 2014, with no possibility of a safe or secure life in

Guatemala, E.G. and her brother left Guatemala for the United
                                                                    8


States.   The two children were captured while attempting to

cross into the United States from Mexico.   Following their

capture in Texas, the Office of Refugee Resettlement contacted

Guzman, who by then lived in Massachusetts, and released the

children to her custody.   Since that time, both children have

lived with their mother and other members of their family in

Massachusetts.   Unlike in Guatemala, in the United States, E.G.

lives with responsible adults who care for her, and she attends

school.

     After moving to the United States, Lopez made no effort to

contact E.G.   E.G. met Lopez for the first time when he appeared

for a court-ordered paternity test, which the Department of

Revenue had sought on E.G.'s behalf.   Since that time, Lopez has

not been in contact with E.G. and has provided little meaningful

financial support.   Although Lopez is aware that E.G. now lives

in Massachusetts, the State where he also resides, he has

expressed no interest in establishing a relationship with her.

     Appearing as an interested party to the paternity suit,

E.G. filed a motion for special findings pursuant to 8 U.S.C.

§ 1101(a)(27)(J),8 as well as an affidavit from her mother.    In



     8
       The State court must find (1) that the minor is "dependent
on a juvenile court"; (2) that his or her "reunification with
[one] or both . . . parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law"; and (3)
that "it would not be in [his or her] best interest to be
                                                                        9


her motion, E.G. stated her intent to petition for SIJ status

and argued that she was dependent on the Probate and Family

Court, that reunification with her father was not viable due to

neglect and abandonment, and that it was not in her best

interest to return to Guatemala.    During the hearing on the

paternity issue, the Probate and Family Court judge denied

E.G.'s motion for special findings.    While the judge did not

explicitly articulate a reason for denying E.G.'s motion, she

noted, "[E.G.] is in the custody of her mother, so I'm not doing

special findings."     E.G. appealed from this decision, and we

transferred the case to this court on our own motion.

    Discussion.   1.     Statutory overview.    We begin by providing

an overview of the SIJ status provision.       In 1990, Congress

created the SIJ provisions of the Immigration and Nationality

Act to enable immigrant children who have been subject to abuse,

neglect, or abandonment by one or both of their parents to

remain in the United States and apply for lawful permanent

residence.   Recinos, 473 Mass. at 734, 737, citing 8 U.S.C.

§ 1101(a)(27)(J) and 8 C.F.R. § 204.11 (2016).       Applying for SIJ

status entails a multistep process involving both State courts

and Federal agencies.     8 U.S.C. § 1101(a)(27)(J).    To apply to




returned" to his or her home country.    8 U.S.C.
§ 1101(a)(27)(J).
                                                                    10


the United States Citizenship and Immigration Services (USCIS)9

for SIJ status, the "immigrant child"10 must first obtain the

following special findings from a "juvenile court":11   (1) the

child is dependent on a juvenile court or, under the custody of

an agency or department of a State, or an individual or entity

appointed by the court or State; (2) reunification with one or

both parents is not viable due to abuse, neglect, or

abandonment; and (3) returning the child to his or her country

of origin would not be in the child's best interest.    8 U.S.C.

§ 1101(a)(27)(J).

     After obtaining special findings, the immigrant child must

file a petition, including the special findings, with USCIS.       8

C.F.R. § 204.11.    Once submitted, USCIS conducts a plenary

review of the petition.   Id.   See USCIS Policy Manual, vol. 6,


     9
       The United States Citizenship and Immigration Services
(USCIS) bears responsibility for lawful immigration to the
United States. See Recinos, 473 Mass. at 735 n.2.
     10
       For purposes of special immigrant juvenile (SIJ) status,
"child" is defined as a person under twenty-one years of age who
is unmarried. 8 U.S.C. § 1101(b)(1).
     11
       For the purposes of 8 U.S.C. § 1101(a)(27)(J), a
"[j]uvenile court" is defined broadly 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). In Massachusetts,
determinations regarding the care and custody of juveniles fall
within the jurisdiction of both the Juvenile Court and the
Probate and Family Court, and thus both courts may make the
requisite special findings under § 1101(a)(27)(J). Recinos, 473
Mass. at 738.
                                                                   11


pt. J(4) (2016).   As the United States notes in its amicus

brief, during this review, USCIS generally defers to the

juvenile court's determinations, and does not reweigh the

evidence insofar as it relates to matters of State law.     See

USCIS Policy Manual, vol. 6, pt. J(3).   Ultimately, USCIS, on

behalf of the Secretary of Homeland Security, makes the final

determination whether to grant SIJ status.   See 8 U.S.C.

§ 1101(a)(27)(J)(iii); USCIS Policy Manual, vol. 6, pt.

J(4)(E)(1) (noting that Department of Homeland Security

delegates authority to consent to grant of SIJ classification to

USCIS).

    2.    The role of the Probate and Family Court.   Although

"[t]he process for obtaining SIJ status is 'a unique hybrid

procedure that directs the collaboration of [S]tate and

[F]ederal systems," Recinos, 473 Mass. at 738, quoting H.S.P. v.

J.K., 223 N.J. 196, 209 (2015), a person's immigration status

remains a matter governed solely by Federal law.   Thus, whether

a child qualifies for SIJ status and whether to grant or deny an

immigrant child's application for SIJ status is beyond the

jurisdiction of the Probate and Family Court.   The State court's

role is solely to make the special findings of fact necessary to

the USCIS's legal determination of the immigrant child's

entitlement to SIJ status.   8 U.S.C. § 1101(a)(27)(J)(iii).

Congress delegated this task to State courts because it
                                                                  12


recognized "the distinct expertise State courts possess in the

area of child welfare and abuse," which makes them best equipped

to shoulder "the responsibility to perform a best interest

analysis and to make factual determinations about child welfare

for purposes of SIJ eligibility."   Recinos, supra.

    Because this fact-finding role is integral to the SIJ

process, the Probate and Family Court judge may not decline to

make special findings if requested by an immigrant child under

§ 1101(a)(27)(J).   Acting within the limits of this fact-finding

role, the judge must make the special findings even if he or she

suspects that the immigrant child seeks SIJ status for a reason

other than relief from neglect, abuse, or abandonment.   The

immigrant child's motivation for seeking the special findings,

if relevant to the child's entitlement to SIJ status, ultimately

will be considered by USCIS in its review of the application.

The immigrant child's motivation is irrelevant to the judge's

special findings.

    The judge's 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).   See Howlett v. Rose,

496 U.S. 356, 373 (1990), quoting Mondou v. New York, New Haven,

& Hartford R.R., 223 U.S. 1, 57-58 (1912) ("'The existence of

the jurisdiction creat[ed] an implication of duty to exercise
                                                                    13


it,' . . . which could not be overcome by disagreement with the

policy of the [F]ederal Act").     To conclude otherwise would

upset the balance struck between the State and Federal roles in

the SIJ status determination, and intrude in the area of

immigration that lies exclusively within the purview of the

Federal government.   See Recinos, 473 Mass. at 738.

    As further guidance for the judge to whom a motion for

special findings has been presented, we direct that the findings

be limited to the parent with whom the child claims

reunification is not viable due to abuse, neglect, or

abandonment.   Thus, where an immigrant child asserts in her or

his motion for special findings that reunification is not viable

with only one parent, the Probate and Family Court shall limit

its findings to that parent.     In the event that the child

asserts that reunification is not viable with both parents, the

court shall make findings as to both parents.     In our view, no

more and no less is required of the Probate and Family Court to

meet its statutorily mandated role.

    We recognize the disparate approaches among State courts to

this prong of the special findings required under the statute.

Some State courts have interpreted the statute to mean that the

immigrant child must establish that reunification is not viable

as to both parents, while others have proceeded on the

assumption that reunification is not viable if only one parent
                                                                     14


has been shown to have abused, neglected, or abandoned the

immigrant child.     See, e.g., In re Israel O., 233 Cal. App. 4th

279, 288-289 (2015); In re Estate of Nina L., 2015 IL App (1st)

152223, & 27; In re Interest of Erick M., 284 Neb. 340, 345-346

(2012); Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100,

110-111 (N.Y. 2013).    We doubt the wisdom in joining the debate

among State courts over whether the immigrant child must

demonstrate that reunification is not viable with only one or

with both parents.     We have considered and are persuaded by the

reasoning in the United States's amicus brief and by the Supreme

Court of New Jersey in H.S.P., 223 N.J. at 213, that

interpretation of the "[one] or both" statutory language is not

necessary.   The State court's duty to make special findings is

not dependent on the resolution of the ambiguous language, and

thus we decline to endeavor to do so.     See id. (declining to

construe "[one] or both" language as used in § 1101[a][27][J]

because "[s]uch a task is exclusively the province of the

[F]ederal government").

    3.   Special findings for Yosselin.     In the Probate and

Family Court judge's written judgment of dismissal on the

petition for appointment of guardianship, the judge addressed

Yosselin's motion for special findings, but only as to the

viability of the parental reunification prong.     After concluding

that Yosselin's mother did not intend to abandon her, the judge
                                                                  15


posited that the sole reason for the guardianship petition was

to allow Yosselin to request special findings and ultimately

"take advantage of the [SIJ] [s]tatus program."   The judge went

on to note,

    "While it appears from her affidavit that she may have good
    reasons for leaving El Salvador, as an emancipated eighteen
    year old adult, Yosselin may now choose herself where she
    wishes to live. She is in a voluntary living arrangement
    with her uncle. The sole problem here is that she must
    find a legal way to re-enter this country if in fact she is
    deported. This [c]ourt does not find that 'reunification
    with one or both of the immigrant's parents is not viable
    due to abuse, neglect, abandonment, or similar basis found
    under State law.'"

    Here again, the judge's special findings determination

crossed into territory reserved to the Federal authorities.

Instead of determining whether Yosselin's mother abandoned or

neglected her under Massachusetts law, the judge focused on the

alleged motive behind the petition for guardianship and the

motion for special findings.   This was error, as was the judge's

failure to make findings as to the dependence on the Probate and

Family Court and best interests prongs of the special findings

as required by § 1101(a)(27)(J)(i)-(ii).   The Probate and Family

Court judge must make factual findings as to all three prongs of

the special findings analysis, under all circumstances.

Therefore, we reverse and remand Yosselin's case to the Probate

and Family Court for further fact finding consistent with this

opinion.
                                                                   16


    Moreover, although Yosselin asserted in her motion for

special findings that reunification is not viable due to abuse

and neglect by her mother, the record establishes that Yosselin

also filed a motion for special findings as to her father.

Yosselin is entitled to special findings on this motion as well,

regardless of whether reunification with the mother is viable.

To ensure that Yosselin, who is approaching her twenty-first

birthday, may timely exercise her right to seek SIJ status, the

Probate and Family Court shall conduct a hearing forthwith on

both motions for special findings.   While we express no view as

to the substance of the special findings as to the mother, we

note the judge's acknowledgement that Yosselin has never known

her father and that, in fact, he is "unknown."   In these

circumstances, a finding that reunification with the father is

not viable due to neglect or abandonment is difficult to avoid.

    4.   Special findings for E.G.   In E.G.'s case, the Probate

and Family Court judge failed to make any factual findings with

respect to E.G.'s motion for special findings.   Based on the

record, the judge's reason for declining to make the special

findings was due, at least in part, to the fact that E.G. is in

her mother's custody.   As we have said here, such a rationale

for declining to make special findings is inconsistent with the

role of the Probate and Family Court under § 1101(a)(27)(J).

Therefore, we reverse and remand E.G.'s case to the Probate and
                                                                  17


Family Court for further fact finding consistent with this

opinion.

    Because the Probate and Family Court judge declined to make

special findings based on her review of documentary evidence, we

"stand[] in the same position as did the [motion] judge" with

respect to evaluating the written evidence and reaching a

conclusion as to the special findings determination.   See

Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Berry

v. Kyes, 304 Mass. 56, 57 (1939).    Accordingly, we direct the

Probate and Family Court judge to make the following findings:

(1) E.G. is dependent on the Probate and Family Court; (2)

E.G.'s reunification with her father is not viable due to abuse,

neglect, or abandonment; and (3) it is not in E.G.'s best

interest to return to Guatemala.

    Based on the record before us, it is clear that E.G.'s

father, the parent on whom the allegation of neglect and

abandonment is predicated, has at the very least neglected, if

not also abandoned the child.   The Massachusetts Code of

Regulations defines "[n]eglect" as

    "failure by a caretaker, either deliberately or through
    negligence or inability, to take those actions necessary to
    provide a child with minimally adequate food, clothing,
    shelter, medical care, supervision, emotional stability and
    growth, or other essential care; provided, however, that
    such inability is not due solely to inadequate economic
    resources or solely to the existence of a handicapping
    condition" (emphasis in original).
                                                                    18


110 Code Mass. Regs. § 2.00 (2008).     Since E.G.'s birth, Lopez

has made no attempt to establish a parental relationship with

E.G. or materially support her in a meaningful way.     Prior to

appearing for a court-ordered paternity test, Lopez made no

effort to even meet E.G., despite her presence in Massachusetts.

    Because it is clear from the record that Lopez has, at the

very least, neglected E.G., she is, as a matter of law,

"dependent on the Probate and Family Court for the opportunity

to obtain relief."   Recinos, 473 Mass. at 743.   With respect to

the second inquiry -- whether E.G.'s reunification with "[one]

or both" of her parents is not viable due to abuse, neglect, or

abandonment -- we reiterate that the court's findings will be

limited to E.G.'s father.    Thus, the fact that E.G. lives in the

United States with her mother has no bearing on the judge's duty

to make the special findings, or the substance of the finding.

Accordingly, E.G. meets the criteria for the second prong of the

special findings analysis.

    Last, the record clearly establishes that E.G.'s interests

are not best served by returning to Guatemala, the country of

origin.   If returned to Guatemala, E.G. would, once again, live

with little if any adult supervision.    In fact, her

circumstances if forced to return to Guatemala would be even

more dire considering that her adolescent brother, who looked
                                                                    19


after her when the two were living in Guatemala, also lives in

the United States.

     5.   Guardianship.   Marvin also urges this court to find

error in the Probate and Family Court judge's dismissal on the

petition for appointment of a guardian.    Because the outcome of

the guardianship petition has no bearing on the outcome of this

case, we decline to reach the issue.12    First, any guardianship

would have terminated on Yosselin's eighteenth birthday.

Second, under Recinos, 473 Mass. at 743, if Yosselin can

establish that reunification with her mother or father is not

viable due to abuse, neglect, or abandonment, she as a matter of

law is dependent on the Probate and Family Court for the

opportunity to obtain SIJ status relief.

     Conclusion.   For the foregoing reasons, we reverse the

judgments of the Probate and Family Court as to E.G.'s and

Yosselin's motions for special findings, and remand the matters

for proceedings consistent with this opinion.

                                     So ordered.




     12
       We also decline to issue a stay sua sponte, as amici
urge, for two reasons. First, although Marvin moved for a stay
below, he has not moved for a reconsideration of the denial of
the motion, nor has he raised the issue in his brief on appeal.
Second, amici's arguments fail to justify a stay sua sponte.
