                                     ON REHEARING

                                     UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                       No. 17-7304



MARIELA HERNANDEZ REYES,

            Plaintiff – Appellant,

      v.

LEE FRANCIS CISSNA, Director, US Citizenship and Immigration Services,

            Defendant – Appellee.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cv-00749-FDW-DCK)


Argued: March 21, 2018                                           Decided: June 8, 2018


Before DUNCAN and AGEE, Circuit Judges, and Leonie M. BRINKEMA, United States
District Judge for the Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Bradley Bruce Banias, BARNWELL WHALEY PATTERSON & HELMS,
Charleston, South Carolina, for Appellant. Brian Christopher Ward, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Chad A.
Readler, Acting Assistant Attorney General, William C. Peachey, Director, Gisela A.
Westwater, Assistant Director, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Mariela Hernandez Reyes brought this action against Lee Cissna, the Director of

U.S. Citizenship and Immigration Services (“USCIS” or the “Agency”), after the Agency

denied her application for Special Immigrant Juvenile (“SIJ”) status. See generally 8

U.S.C. § 1101(a)(27)(J). Reyes contends that the criteria on which the Agency relied to

deny her SIJ application was in excess of its statutory mandate. She also alleges that the

Agency’s decision was arbitrary and capricious, an abuse of discretion, and otherwise

contrary to law, under the Administrative Procedure Act, 5 U.S.C. § 706. The district

court concluded that the Agency was entitled to summary judgment and Reyes appeals.

For the reasons set out below, we affirm.

                                            I.

                                            A.

      Section 101(a)(27) of the Immigration and Nationality Act lists a number of

“special immigrant” categories, including SIJ status. See 8 U.S.C. § 1101(a)(27). An SIJ

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; [and]

             ....

      (iii) in whose case the Secretary of Homeland Security consents to the
      grant of special immigrant juvenile status[.]


                                            3
Id. § 1101(a)(27)(J). The applicant bears the burden of proving she is entitled to SIJ

status. Id. § 1361 (“Whenever any person makes application for a visa or any other

document required for entry, or makes application for admission, or otherwise attempts to

enter the United States, the burden of proof shall be upon such person to establish that he

is eligible to receive such visa or such document[.]”).

       Obtaining SIJ status is a significant benefit because such an alien, like others in

the statutory special immigrant classification, is potentially eligible for lawful permanent

resident status irrespective of her immigration status. See generally id. §§ 1153(b)(4),

1154(a)(1)(G). If an SIJ is given lawful permanent resident status, she may eventually

apply for United States citizenship.

                                              B.

       Reyes was born in El Salvador in 1996. She lived with her mother, Maria Isabel

Reyes Reyes (“Maria”), until Maria abandoned her in 2008. From that point on, Reyes

lived with her grandparents in El Salvador.

       In 2013, when she was sixteen years old, Reyes unlawfully entered the United

States by crossing the United States-Mexico border near Hidalgo, Texas. Shortly after she

entered the United States, U.S. Customs and Border Protection apprehended her. She was

then transferred to Charlotte, North Carolina, for the commencement of removal

proceedings.

       While in Charlotte, Reyes reunited with her father, Maximiliano Hernandez Ponce

(“Ponce”), who was a legal temporary resident and lived in North Carolina. On October

3, 2014, four days before Reyes’ eighteenth birthday, Ponce sued Maria in North

                                              4
Carolina state court to terminate Maria’s parental rights. He also sought an order under

N.C. Gen. Stat. § 50A-204, which gives North Carolina courts temporary emergency

jurisdiction to adjudicate the custody of abandoned children.

       The same day, the state court issued an order pursuant to section 50A-204, finding

that Maria had “abandoned and neglected [Reyes]” and that “[i]f forced to return to El

Salvador, [Reyes] would be completely on her own and without the proper family support

system” and granting emergency temporary custody to Ponce. J.A. 140. The state court

set a hearing for five days later, October 8, 2014, when it would determine whether to

enter a final custody order. Significantly, the hearing was scheduled for one day after

Reyes’ eighteenth birthday. As a result, the court would no longer have jurisdiction to

hear the case because Reyes would then be an adult. See N.C. Gen. Stat. § 50A-102(2)

(giving North Carolina courts the power to adjudicate the custody of a “child”—i.e.,

someone “who has not attained 18 years of age”). The October 8, 2014, hearing therefore

did not occur.

       Immediately after receiving a copy of the state court’s order, Reyes applied to

USCIS for SIJ status. The Director of the Agency’s Charlotte field office issued a Notice

of Intent to Deny Reyes’ application. As part of the Notice of Intent to Deny, the Director

indicated that the state court order was not sufficiently permanent—that is to say, the

Director declined to grant SIJ status because the state court had issued only a temporary

emergency order.

       After receiving the Director’s Notice of Intent to Deny, Reyes submitted

additional evidence to the Director—a personal affidavit, as well as an affidavit executed

                                            5
by Ponce—that described her living conditions in El Salvador. The Director denied

Reyes’ SIJ application, again indicating that the state court’s order was insufficiently

permanent to warrant relief. In addition, the Director concluded that Reyes had “fail[ed]

to show” she was entitled to the Agency’s consent, a requirement under 8 U.S.C.

§ 1101(a)(27)(J)(iii). J.A. 88. Reyes appealed that denial to the Agency’s Administrative

Appeals Office (“AAO”), which dismissed the appeal, leaving in place the Director’s

decision.

       In July 2015, Reyes returned to the state court where she sought and was granted a

nunc pro tunc order retroactive to the October 3, 2014, temporary emergency custody

order. The nunc pro tunc order stated:

       This Court determines that: (1) it has jurisdiction over [Reyes] and that she
       is dependent upon this Court; (2) [r]eunification with [Maria] is not viable
       due to neglect and abandonment under state law; (3) it is not in [Reyes’]
       best interest to return to El Salvador; and (4) it is [in Reyes’] best interest
       for temporary and permanent custody to be awarded to [Ponce].

J.A. 37. The state court explained that it failed to include these findings in the first order

“[d]ue to an unintentional omission.” J.A. 37.

       Relying on the state court’s nunc pro tunc order, Reyes returned to the AAO,

where she petitioned to have her case reopened and reconsidered. The AAO declined to

grant Reyes either form of relief. In so doing, it explained that Reyes was not entitled to

the Agency’s consent:

       When adjudicating an SIJ [application], USCIS examines the juvenile court
       order to determine if it contains the requisite findings of dependency or
       custody, non-viability of reunification with one or both parents, and the
       best interests determination, as required by [8 U.S.C. § 1101(a)(27)(J)].
       USCIS requires the factual basis for a juvenile court order so it may fulfill

                                              6
       its required consent function. Juvenile court orders that include or are
       supplemented by specific findings of fact will generally be sufficient to
       establish eligibility for consent. . . .

               In the [first] order, the juvenile court found generally that [Maria]
       abandoned and neglected [Reyes] in 2008 by stopping to provide safety,
       shelter, and food for her. However, the record is not supported by facts that
       the juvenile court relied upon to come to its conclusions. The declaration in
       the nunc pro tunc order that [Reyes’] reunification with [Maria] is not
       viable due to neglect and abandonment under North Carolina law also lacks
       a sufficient factual basis.

J.A. 29–30 (footnote & internal quotation marks omitted). In so concluding, the AAO

declined to rely on facts provided by Reyes in the affidavits she submitted to the Agency,

but not the state court:

       As noted by the Director, statements regarding [Reyes’] circumstances
       while living in El Salvador submitted by [Reyes] and her father in response
       to a notice of intent to deny (NOID) issued by the Director are dated after
       the date of the [first] order and [Reyes] does not assert that [those
       statements] were considered by the juvenile court prior to issuance of either
       the [first] order, or at the time of the nunc pro tunc order.

J.A. 30.

                                            C.

       In October 2016, Reyes filed a complaint against Leon Rodriguez, the then-Acting

Director of USCIS, in the United States District Court for the Western District of North

Carolina. She alleged that the Agency’s demand for a permanent—as opposed to a

temporary—custody order was ultra vires. In addition, Reyes alleged that the Agency

acted in an arbitrary and capricious manner, and in a manner contrary to law, when it

denied her motion to reopen her SIJ application or to reconsider its denial of her

application.


                                            7
       The parties cross-moved for summary judgment. The district court granted the

Agency’s motion and denied Reyes’ motion. See Reyes v. McCament, No. 3:16-CV-

00749, 2017 WL 3634068 (W.D.N.C. Aug. 23, 2017). As relevant here, the court

concluded that the Agency had acted neither arbitrarily and capriciously, nor in a manner

contrary to law, when it declined to grant consent to Reyes’ SIJ status. The district court

noted that juvenile court “[o]rders lacking specific factual findings generally are not

sufficient to provide a basis for consent.” Id. at *8 (internal quotation marks omitted).

Looking at the record, it then concluded that the state court never made any “specific

factual findings regarding the basis for finding abuse, neglect, or abandonment.” Id.

       The district court also concluded that the Agency did not act in an arbitrary and

capricious manner, or a manner contrary to law, when it declined to review the affidavits

that Reyes had submitted. The district court indicated that although these affidavits might

have satisfied the Agency’s specific facts requirement in a different case, they did not do

so here because Reyes had failed to show that the affidavits were part of the state court’s

record.

       The district court entered judgment in the Agency’s favor. Reyes noted a timely

appeal, and we have jurisdiction under 28 U.S.C. § 1291.



                                            II.

       Summary judgment is appropriate if the movant—here, the Agency—“shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). This Court reviews issues raised in a motion for

                                             8
summary judgment de novo, applying “the same legal standards as the district court.”

Lawson v. Union Cty. Clerk of Ct., 828 F.3d 239, 247 (4th Cir. 2016) (internal quotation

marks omitted).

       Here, the district court reviewed the order of the AAO declining a motion to

reopen and reconsider its decision denying Reyes SIJ status. Motions to reopen are

reviewed for abuse of discretion. See Lin v. Holder, 771 F.3d 177, 182 (4th Cir. 2014).

Motions to reconsider are reviewed under the same standard. See Massis v. Mukasey, 549

F.3d 631, 637 (4th Cir. 2008). An agency abuses its discretion if it acts in an arbitrary and

capricious way, or if it acts in a manner contrary to law. See Ojo v. Lynch, 813 F.3d 533,

538 (4th Cir. 2016).



                                            III.

       On appeal, Reyes again contends that the Agency abused its discretion when it

denied her motions to reopen and reconsider. In particular, she maintains that the

Agency’s demand for a permanent custody order was ultra vires and that, even if it was

not, the application of that requirement here was arbitrary and capricious and contrary to

law. However, even if we assume, without deciding, that Reyes’ permanency argument

has merit, the Agency did not abuse its discretion when it refused to exercise its consent

function under 8 U.S.C. § 1101(a)(27)(J)(iii). Because the Agency did not act in an

arbitrary and capricious way or contrary to law when it determined the record did not

support the exercise of its statutory consent function, it is unnecessary to address Reyes’

ultra vires argument.

                                             9
                                              A.

       Reyes posits that USCIS abused its discretion when it refused to consider the

affidavits she submitted for the first time to the Director. She represents that the affidavits

executed by herself and Ponce were sufficient evidence to merit the Agency’s consent.

To support her contention, Reyes relies on a single sentence in the Agency’s policy

manual stating that “to exercise the statutorily mandated . . . consent function, USCIS

requires that the juvenile court order or other supporting evidence contain or provide a

reasonable factual basis for each of the findings necessary for classification as a[n] SIJ.”

J.A. 206 (emphasis added). She maintains that the “other supporting evidence” language

gives her license to supplement her SIJ application with material not presented to or

considered by the state court. We disagree.

       When read in context, the “other supporting evidence” language relates to the

Agency’s obligation to examine the state juvenile court orders as well as the record

presented to that court when it made the underlying custody determination. The Agency’s

manual explicitly states that the Agency “relies on the expertise of the juvenile court in

making child welfare decisions and does not reweigh the evidence to determine if the

child was subjected to abuse, neglect, abandonment, or a similar basis under state law.”

J.A. 206 (emphasis added). In performing this role, the Agency’s sole duty is to “confirm

that the juvenile court made an informed decision.” J.A. 206 (emphasis added). Evidence

not presented to the juvenile court, like Reyes’ affidavits, is not germane to that task.

Without the proper supporting evidence before the state court, the Agency can have no

confidence or assurance that the state court’s order was based on an accurate and

                                              10
sufficient factual basis to support the Agency’s separate immigration status

determination. Instead, to accept Reyes’ affidavits as sufficient would improperly invite

the Agency to supersede and reinvent the state court’s decisionmaking. Thus, evidence

not presented to the state court is not “other supporting evidence” in this case.

       We therefore conclude, as did the district court, that the Agency did not act

arbitrarily and capriciously, nor contrary to law, when it did not consider the affidavits

Reyes submitted to the Director in support of her SIJ application.

                                             B.

       Having determined the Agency did not abuse its discretion when it declined to

consider the affidavits, we readily conclude that the Agency did not abuse its discretion

when it withheld its consent to Reyes’ application for SIJ status.

       The Agency’s policy manual sheds light on how USCIS exercises its consent

function as it “must review the juvenile court order to conclude that the request for SIJ

classification is bona fide, which means that the juvenile court order was sought to obtain

relief from abuse, neglect, abandonment, or a similar basis under state law, and not

primarily or solely to obtain an immigration benefit.” J.A. 206. Though the Agency

generally “relies on the expertise of the juvenile court” to make its consent determination,

it “requires that the juvenile court order or other supporting evidence contain or provide a

reasonable factual basis for each of the findings necessary for classification as a[n] SIJ.”

J.A. 206. Such evidence “does not have to be overly detailed, but must confirm that the

juvenile court made an informed decision in order to be considered reasonable.” J.A. 206

(internal quotation marks omitted).

                                             11
       Reyes has failed to show that the Agency acted in an arbitrary or capricious

manner, or in a manner contrary to law, when it applied this procedure to her application.

Under Skidmore v. Swift & Co., 323 U.S. 134 (1944), we must give “respect” to the

Agency’s interpretation and application of its policy manual insofar as its “form and

content” have the “power to persuade.” Shipbuilders Council of Am. v. U.S. Coast Guard,

578 F.3d 234, 241 (4th Cir. 2009). The AAO’s order explained that Reyes’ SIJ

application failed to meet the guidelines for the Agency’s consent, as outlined in the

Agency’s policy manual:

               In the [first] order, the juvenile court found generally that [Maria]
       abandoned and neglected [Reyes] in 2008 by stopping to provide safety,
       shelter, and food for her. However, the record is not supported by facts that
       the juvenile court relied upon to come to its conclusions. The declaration in
       the nunc pro tunc order that [Reyes’] reunification with [Maria] is not
       viable due to neglect and abandonment under North Carolina law also lacks
       a sufficient factual basis.

J.A. 30 (internal quotation marks omitted). We find the Agency’s application of its policy

manual persuasive on these circumstances. When presented with the state court orders,

the Agency was unable to verify what facts that court relied on to support its conclusion

that Maria abandoned Reyes. Under the terms of the Agency’s policy manual, the state

court’s under-developed record was not sufficient to merit the Agency’s consent. In that

circumstance, the Agency’s decision is persuasive and, thus, was neither arbitrary and

capricious, nor contrary to law.




                                            12
                                            IV.

       As the district court held, the Agency did not abuse its discretion by refusing to

reopen or reconsider Reyes’ SIJ petition because Reyes could not show that she was

entitled to the Agency’s consent. Accordingly, the judgment of the district court is

                                                                              AFFIRMED.




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