Filed 10/16/13; Supreme Court publication order 1/29/14




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE


EDDIE E.,

    Petitioner,

                  v.                                      G048067

THE SUPERIOR COURT OF ORANGE                              (Super. Ct. No. DL039927)
COUNTY,
                                                          OPINION
    Respondent;

THE PEOPLE OF THE STATE OF
CALIFORNIA,

    Real Party in Interest.
                 Original proceeding; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Nick A. Dourbetas, Judge. Petition granted.
                 Lina F. Somait; Catholic Charities of Los Angeles, Inc. and Martin Gauto
for Petitioner.
                 No appearance by Respondent.
                 No appearance by Real Party in Interest.
                 Public Counsel Law Center, Martha Matthews; Legal Services for
Children, Abigail Trillin; Immigrant Legal Resource Center, Angie Junck; University of
California, Irvine School of Law Immigrant Rights Clinic, Sameer M. Ashar;
Southwestern Law School Immigrant Law Clinic, Andrea Ramos; Youth Law Center and
Alice Bussiere as Amicus Curiae on behalf of Petitioner, upon request of the Court of
Appeal.
              Office of Immigration Litigation DCS, Stuart F. Delery, Acting Assistant
Attorney General for the United States Department of Justice Civil Division, Elizabeth J.
Stevens, Assistant Director, Melissa S. Liebman, Trial Attorney as Amicus Curiae, upon
request of the Court of Appeal.


                                  *          *           *


              Eighteen-year-old Eddie E. petitions for unopposed writ relief after
respondent court denied his request to make all necessary factual findings to enable him
to apply for classification as a Special Immigrant Juvenile (SIJ) under the Immigration
and Nationality Act, title 8 United States Code section 1101(a)(27)(J), which provides
“abused, neglected, and abandoned unaccompanied minors . . . a process that allows them
to become permanent legal residents.” (In re Y.M. (2012) 207 Cal.App.4th 892, 915
(Y.M.).) To be entitled to SIJ status, the minor must have, among other things, “been
declared dependent on a juvenile court located in the United States or [be one] 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 . . . .” (8 U.S.C. § 1101(a)(27)(J)(i).) Respondent court
found petitioner did not qualify as a dependent because he had “been declared a ward of
this court under [Welfare and Institutions Code] section 602” (all further statutory
references are to this code unless otherwise stated) and did not make any of the other
required findings for SIJ status. Petitioner contends this was error and seeks a writ of
mandate ordering the respondent court to make the remaining findings of fact necessary

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to determine eligibility for SIJ status. We agree and grant the petition for writ of
mandate.


                                     BACKGROUND


              Petitioner was born in Mexico in February 1995. He was brought to the
United States by his mother when he was five years old, has never returned to Mexico.
After abandoning him three years later, his mother died in September 2010.
              In 2011, respondent court declared petitioner a ward of the court under
section 602 after finding true allegations he had unlawfully taken a vehicle, resisted or
obstructed a public officer, and was guilty of hit and run with property damage. It
committed petitioner to the care of the probation department for placement in juvenile
hall for eight days, with credit for eight days served, and thereafter to be released to U.S.
Immigration and Customs Enforcement (ICE).
              In 2012, petitioner’s probation was transferred to San Bernardino County
for several months after he was placed in a foster home in that county. He was
transferred back to an Office of Refugee Resettlement shelter in Orange County later that
year.
              At a hearing in December 2012, petitioner’s immigration attorney, Martin
Gauto, made a special appearance to request respondent court make factual findings to
allow petitioner to file a petition for SIJ status. After Gauto filed supporting memoranda
of points and authorities, a hearing was held in January 2013 during which the district
attorney declined to be heard. Respondent court found petitioner did not meet the first
requirement for SIJ status, that he be an immigrant “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



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entity appointed by a State or juvenile court located in the United States.” (8 U.S.C. §
1101(a)(27)(J)(i).)
               Petitioner filed a petition for writ of mandate. We invited real party in
interest the People of the State of California to respond informally; it responded by letter
stating it was not opposed to the granting of the relief sought. We thereafter issued an
order to real party in interest to show cause why a writ of mandate should not issue and
invited amici curiae briefs from various entitles.
               By letter, real party in interest reiterated it had no opposition to the petition
while the California Attorney General’s Office stated it took no position on the matter
and declined to file an amicus brief. The United States Department of Justice filed an
amicus brief stating it took “no position whether . . . petitioner satisfies the first criterion
for a dependency order under 8 U.S.C. § 1101(a)(27)(J)(i).” An amici curiae brief was
filed in support of petitioner collectively by the Public Counsel Law Center, Legal
Services for Children, Immigrant Legal Resource Center, University of California, Irvine
School of Law, Southwestern Law School Immigration Law Clinic, and Youth Law
Center.


                                        DISCUSSION


               “The Immigration Act of 1990 [the Act], codified at [title 8 United States
Code] section 1101, sets forth a procedure for classification of certain aliens as special
immigrants who have been declared dependent ‘on a juvenile court.’” (B.F. v. Superior
Court (2012) 207 Cal.App.4th 621, 626 (B.F.).) “Congress created this classification to
protect abused, neglected, and abandoned unaccompanied minors through a process that
allows them to become permanent legal residents. . . . A minor who obtains SIJ status
may become a naturalized United States citizen after five years.” (Y.M., supra, 207
Cal.App.4th at p. 915.) “While the federal government has exclusive jurisdiction with

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respect to immigration [citations], including the final determination whether an alien
child will be granted permanent status as an SIJ [citations], state juvenile courts . . . [¶]
are charged with making a preliminary determination of the child’s dependency and his
or her best interests, which is a prerequisite to an application to adjust status as a special
immigrant juvenile.” (In re Mario S. (N.Y. Fam. Ct. 2012) 38 Misc.3d 444, 451 [954
N.Y.S.2d 843, 849] (Mario S.).)
              The SIJ provisions has been amended twice since the Act’s enactment.
(Mario S., supra, 954 N.Y.S.2d at p. 848.) “‘In 1997 . . . Congress amended [title 8
United States Code] § 1101(a)(27)(J) to require that a court, in its order, determine that
the juvenile (1) is eligible for long-term foster care due to abuse, neglect, or abandonment
and (2) has been declared a dependent of a juvenile court or committed or placed with a
state agency’ [citations]. ‘Under the 2008 amendment, the eligibility requirements . . .
hinge primarily on a reunification determination. The amendment expanded eligibility
to include juvenile immigrants whom a court has committed to or placed in the custody
of an individual or a state-appointed entity -- not just those whom a court has committed
to or placed with a state agency or department. . . . Finally, Congress removed the
requirement that a state juvenile court find that a juvenile is eligible for long-term foster
care because of abuse, neglect, or abandonment. Instead, a court must find that
reunification is not possible because of abuse, neglect, or abandonment.’” (Id. at pp. 848-
849.)
              As it reads now, title 8 United States Code section 1101(a)(27) provides:
“The term ‘special immigrant’ means—[¶] . . . [¶] (J) 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

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found under State law; [¶] (ii) for whom it has been determined in administrative or
judicial proceedings that 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;
and [¶] (iii) in whose case the Secretary of Homeland Security consents to the grant of
special immigrant juvenile status, . . . [with certain inapplicable exceptions].” (Italics
added.)
              The first part of subsection (i) is phrased in the disjunctive. (See Boy
Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th 428,
444 [“‘When used in a statute, the word “or” indicates an intention to designate separate,
disjunctive categories’”].) Thus, a court must find either that an immigrant has been (a)
“declared dependent on a juvenile court” or (b) “legally committed to, or placed under
the custody of” a state agency or department or “an individual or entity appointed by a
State or juvenile court located in the United States.” (8 U.S.C. § 1101(a)(27)(J)(i).)
Once either of those findings are made, the court must then “‘ma[k]e two additional
findings: (1) that 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) that
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.’” (Mario S., supra, 954
N.W.S.2d at p. 849; 8 U.S.C. § 1101(a)(27)(J)(i) & (ii).)
              Here, respondent court found under (a) that petitioner had not been declared
a dependent of the court. It distinguished B.F., supra, 207 Cal.App.4th 621, which held a
probate court had authority to make SIJ findings for three immigrant minors whose aunt
and uncle had been appointed as their temporary guardians. (Id. at pp. 624, 625, 627-
630.) According to respondent court, petitioner had “not been designated a dependent of
the juvenile court . . . pursuant to section 300 . . . [but rather] has been declared a ward of
this court under section 602 [and] this court made no guardianship findings as to



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[petitioner.] There were no placement orders made when [petitioner] was brought into
[section] 602 status.” It did not make any additional findings. This was error.
              Under the plain language of the statute (Shirey v. Los Angeles County Civil
Service Com. (2013) 216 Cal.App.4th 1, 20 [“In construing a federal statute, ‘“we look
first to the plain language of the statute, construing the provisions of the entire law,
including its object and policy, to ascertain the intent of Congress”’”]), dependency under
section 300 is not the only manner in which petitioner could satisfy the first part of title 8
United States Code section 1101(a)(27)(J)(i). Rather, as an alternative basis, a resident
alien in petitioner’s position may also demonstrate he had been “legally committed to, or
placed in 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.” (8 U.S.C. §
1101(a)(27)(J)(i).) Respondent court erred by not considering and making findings on
this alternative basis. We thus grant the petition and issue a writ of mandate ordering
respondent court to do so, and if it finds petitioner was such a person, to determine (1)
whether reunification with his parents “is not viable due to abuse, neglect, abandonment,
or a similar basis found under State law” and (2) whether it would be in his “best interest
to be returned to [his] . . . previous country of nationality or country of last habitual
residence.” (8 U.S.C. § 1101(a)(27)(J)(i)-(ii).)


                                       DISPOSITION


              Let a writ of mandate issue commanding respondent Superior Court of
Orange County to vacate its order of January 11, 2013, denying petitioner’s application
for SIJ status on the basis petitioner was not a dependent within the meaning of title 8
United States Code section 1101(a)(27)(J)(i), and to conduct a hearing as soon as




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practicable, on the remaining requested findings of fact necessary for SIJ status and
thereafter issue a new order. Each party shall bear its own costs of this writ proceeding.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.




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