By Michelle Mendez and Martin Gauto
The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 broadened Special Immigrant Juvenile Status (SIJS) protections to cover those juveniles “whose reunification with 1 or both […] parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” Pub. L. No. 110-457, 122 Stat. 5044, Dec. 2008. Prior to the TVPRA of 2008, which took effect on March 23, 2009, the statute required that the juvenile be eligible for long-term foster care “due to abuse, neglect or abandonment.” This implied that the juvenile would only be eligible if he or she could not reunify with either parent. Pub. L. No. 105-119, 11 Stat. 2440 (November 26, 1997). In part because the regulations for the TVPRA of 2008 remain pending, the interpretation of the “1 or both” parents language has befuddled state court judges. Some states continue to issue the SIJS factual findings predicate order in sole-custody-based actions and other similar matters against the one offending defendant parent who inflicted the abuse, abandonment, or neglect. Meanwhile, other states refuse to issue the SIJS predicate order based on a strict interpretation of the “1 or both” parents language.
The Supreme Court of Nebraska was the first state appellate court to interpret the “1 or both” parents statutory language in the case of In re Interests of Erick M., 820 N.W.2d 639 (Neb. 2012). Relying on pre-TVPRA Administrative Appeals Office (AAO) decisions, the court held that the TVPRA “1 or both” language, which it found to be ambiguous, only intended to cover a child who has two problem parents. In other words, the court interpreted the “1 or both” language to require that neither parent be available for reunification.
Fortunately, the next state appellate court to interpret the statute disagreed with the Nebraska Supreme Court and held that under the TVPRA it suffices to have only one problem parent in order to be eligible for SIJS. The New York Family Court considered a case involving a juvenile who had requested the SIJS factual findings after another court had found the father had abandoned the child. In re Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012) The court considered In re Interests of Erick M. and held that “[a]lthough [the minor] was able to be returned to the custody of his mother . . . [t]he fact that [he] was returned to the care of his mother should not be determinative of his application for SIJ [status] findings.” (Id. at p. 851.). Therefore, the court interpreted the “1 or both” language as allowing SIJS protection when only one parent has abandoned, neglected, or abused the child. Though the court agreed with the Nebraska Supreme Court that the TVPRA’s “1 or both” language is ambiguous, the court also recognized the limited role the state juvenile courts play in these cases in which ultimately USCIS decides the juvenile’s eligibility for SIJS.
The Superior Court of New Jersey next tackled the “1 or both” parents issue in a case involving a juvenile from India who previously lived with his mother in deplorable conditions that had taken the lives of his two siblings and whose father had abandoned him. H.S.P. v. J.K., 87 A.3d 255 (N.J. Super. A.D. Mar. 27, 2014). While the Superior Court found that the juvenile’s father had abandoned him, the court interpreted the “1 or both” language to mean “both.” So in this case the fact that the mother had not abandoned, abused, or neglected led to the court’s affirmation that the SIJS predicate order was unwarranted. The New Jersey Supreme Court has since granted a petition for review in this case, so stay tuned for the final word on this interpretation in New Jersey. See H.S.P. v. J.K., 95 A.3d 258 (N.J. 2014).
California recently weighed in on this discussion when its Court of Appeal for the First Appellate District decided the case of In re Israel O., (Jan. 16, 2015, A142080) ___ Cal.App.4th ___. The appellate court held that the lower court erred in its interpretation of the “1 or both” language as prohibiting SIJ status findings if returning to a custodial parent remained feasible. The lower court’s conclusion derived from heavy reliance on In re Erick M. The appellate court overturned this interpretation based on the recognition of the limited state role in this process, just as the court in In re Mario did. The appellate court gave Chevron-like deference to USCIS materials that unambiguously stated that “SIJ eligible children” are those living “with a foster family, an appointed guardian, or the non-abusive parent” (italics added). The court noted that the alternative interpretation of In re Erick M. could lead to the absurd result where “a juvenile with a safe and suitable home in the United States would face the prospect of deportation to the place where he or she may have experienced the abuse, neglect or abandonment that rendered reunification with the nonresident parent infeasible in the first place.”
Though not directly on point on the “1 or both” parent language, the Maryland Court of Special Appeals recently issued a reported opinion on an SIJS issue that is instructive. In this divorce and one-parent custody case, the trial court refused to issue the SIJS factual findings because it believed a separate hearing on the matter was required. The question before the appellate court became whether a circuit court, which is the “juvenile court” in Maryland, must enter factual findings regarding a child’s potential SIJS. Simbaina v. Bunay, Md. Ct. Sp. App. No. 01092 (Feb. 3, 2015). The appellate court held that the circuit court erred in not entering the factual findings needed for SIJS in the divorce and one-parent custody proceeding and remanded the case back to the circuit court to make its own independent factual findings regarding SIJS. The decision is replete with dicta borrowed from other state courts that have examined SIJS issues and recognized that “[w]hile they may split on the interpretation of the provisions of § 1101(a)(27)(J), courts around the country hear SIJ evidence in a variety of settings, including custody proceedings, adoption petitions and probate issues.”
By remanding the case back for SIJS factual findings in a divorce and sole-custody proceeding where only the defendant parent was the one alleged to have abused, abandoned, or neglected the juvenile, the Maryland Court of Special Appeals gave a nod to the more generous interpretation of the “1 or both” language. It bears mentioning that as of October 1, 2014, Maryland expanded the jurisdiction of its equity courts by adding a definition of “child” to mean an unmarried individual under the age of 21 years who filed a motion for SIJ factual findings pursuant to a custody complaint or a guardianship petition. See 2014 Md. Laws, Chap. 96 (amending Md. Code Ann., Fam. Law § 1-201). With this plain language legislative fix that encompasses custody matters between two parents, Maryland is well-positioned to stave off restrictive interpretations of “1 or both,” present in In re Interests of Erick M.
The California Fourth Appellate District issued the latest decision in this line of cases, In the Eddie E. v. The Superior Court of Orange County, (Feb. 11, 2015, G0496370) ___ Cal.App.4th ___, the appellate court strongly disagreed with the Erick M. decision by finding that the meaning of the word “or” in “1 or both” is unambiguous and rather intended to be disjunctive – that is, to designate separate categories. “[I]t is commonplace for statutes to provide alternative means of satisfying a condition using the disjunctive word ‘or.’ Here, the statute provides that a minor can satisfy the second prerequisite by showing that one parent is unfit, or by showing that both parents are unfit. Since there is no ambiguity, the inquiry should end there.” The opinion also confirms, much like sister courts in other states, that the role of state courts is not to weed out bad faith SIJS petitions and clarified that this role belongs to the federal government. Lastly, the appellate court made an additional important ruling on an issue that may become increasingly relevant-- that the death of a parent who had previously abandoned her child did not nullify that abandonment for purposes of SIJS eligibility. “That she died only cemented the permanent abandonment already in place. As recounted above, the purpose of the SIJ statute is to provide relief from abuse, neglect, or abandonment. The deleterious effects of abandonment are not allayed by the parent’s death.”
For many advocates, the “1 or both” TVPRA language is clear, especially given the overall generous intent of the other TVPRA amendments. However, many state juvenile courts find the language ambiguous. For those advocates in states where the appellate court has not yet analyzed the “1 or both” language, these decisions are worth reading to ensure adequate preparation for the inevitable moment when a state judge inquires.