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In re Guardianship of Avila Luis

Court of Appeals of Indiana

November 8, 2018

In the Matter of the Guardianship of Irma Elisabeth Avila Luis Ramiro Velasquez Avila, Appellant-Petitioner.

          Appeal from the Jackson Circuit Court The Honorable Richard W. Poynter, Judge Trial Court Cause No. 36C01-1803-GU-9

          Attorney for Appellant Thomas J.O. Moore Indianapolis, Indiana, Alexander E. Budzenski Indianapolis, Indiana

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Petitioner, Ramiro Velasquez Avila (Avila), appeals the trial court's Order appointing him guardian of his minor sister, Irma Elisabeth Avila Luis (Irma), because the trial court refused to articulate special immigrant juvenile findings in accordance with 8 U.S.C. § 1101(a)(27)(J).

         [¶2] We affirm in part, reverse in part, and remand with instructions.

         ISSUE

         [¶3] Avila presents us with one issue on appeal, which we restate as: Whether the trial court was required to make findings on Irma's special immigrant juvenile status in accordance with 8 U.S.C. § 1101(a)(27)(J).

         FACTS AND PROCEDURAL HISTORY

         [¶4] Irma, born on May 20, 2000, in Chisec, Guatemala, is a native and citizen of Guatemala. Irma's father, Hilario Velasquez de la Cruz, died when she was three years old. Until 2016, Irma lived with her mother, Julia Avila Luis (Mother), in Guatemala. In 2016, Mother became unable to provide care for Irma. She no longer could afford to feed Irma, send her to school, and provide her with medical care. Mother put Irma on a bus to the United States.

         [¶5] After several weeks of travelling alone to the Mexican-American border, Irma entered the United States and was detained by immigration officials and taken into federal custody. Eventually, the federal government released Irma into the custody of her brother, Avila, who resides in Seymour, Indiana. Since her release from federal custody, Irma has lived with her brother in Indiana. She is studying English and attending Seymour High School in the tenth grade. Avila meets Irma's basic needs and supports her financially and emotionally.

         [¶6] On March 2, 2018, Avila petitioned the trial court to appoint him as guardian of his sister and requested the trial court to make certain findings necessary for Irma to seek classification as a special immigrant juvenile before the United States Citizenship and Immigration Services (USCIS) in accordance with 8 U.S.C. § 1101(a)(27)(J). On May 11, 2018, the trial court conducted a hearing on Avila's petition. During the hearing, the trial court felt "very uncomfortable making those kinds of findings." (Transcript p. 17). The court stated that it had "a real problem" because the federal government "[t]hrowing it on me to make factual findings for them [is] irritat[ing]." (Tr. p. 20). "It should be made by [f]ederal officials. They're the one that makes the decision of who comes in the United States, who leave the United States, not me. And that's why I have a problem with this . . .. Immigration [j]udges are [i]mmigration [j]udges for a reason. That's their decision." (Tr. pp. 21-22). On May 17, 2018, the trial court issued its findings of facts and Order, appointing Avila as guardian of Irma and finding, in pertinent part:

6. Irma's mother, [Mother], is a native of Guatemala. According to [I.C. §] 31-21-2-2, "abandoned" means left without provision for reasonable and necessary care or supervision. Accordingly, Irma's mother neglected and abandoned Irma by allowing her to travel across several countries alone.
7. Irma's father, [], was a native of Guatemala. He died on October 6, 2003, and abandoned Irma before she was born. He was never a part of her life and passed ...

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