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In re Guardianship of Avila Luis

Court of Appeals of Indiana

November 1, 2019

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 Alexander E. Budzenski Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] Irma Elisabeth Avila Luis ("Irma") used to live with her mother in Guatemala. Irma's mother did not have enough money to feed or provide healthcare for her daughter. When Irma was sixteen, Irma's mother put her on a bus, alone, to travel to the United States. Eventually, Irma was placed in the care of her brother, Ramiro Velasquez Avila ("Avila"), who lives in Seymour, Indiana. He filed a petition to become her guardian, which the trial court granted, but it refused to make required findings as to her immigration status.

         [¶2] This case has been here before, after Avila appealed the first order. This Court ordered the trial court to make the required findings. Now, the case is here again, after the trial court refused to abide by this Court's instructions in the first appeal. We now reverse in part and remand with instructions that the trial court enter an order, instanter, bearing the language contained at the end of this opinion.


         [¶3] The underlying facts were summarized by this Court as follows:

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.
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.
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 . . . .

In re Guardianship of Luis, 114 N.E.3d 855, 856-57 (Ind.Ct.App. 2018). The trial court entered findings, but it did not make the requested findings as to whether Irma qualified for Special Immigrant Juvenile (SIJ) status. Avila appealed.

         [¶4] This Court explained the underpinnings of the requirement that SIJ findings be made:

Federal law provides a path to lawful permanent residency in the United States to resident alien children who qualify for "special immigrant juvenile" (SIJ) status. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11. "Congress created the SIJ classification to protect abused, neglected, and abandoned immigrant youth through a process allowing them to become legal permanent citizens." In the Interest of J.J.X.C., a Child, 318 Ga.App. 420, 424, 734 S.E.2d 120 (Ga.Ct.App. 2012).
To be eligible to petition the federal government for SIJ status, the resident alien must be under the age of 21 and unmarried. 8 C.F.R. § 204.11(c). The child must have been declared dependent upon a state juvenile court "or whom the court . . . has legally . . . placed under the custody of . . . an individual[.]" 8 U.S.C. § 1101(a)(27)(J). In addition, the juvenile court must make two additional findings: (1) "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) "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." 8 U.S.C. § 1101(a)(27)(J)(i), (ii). The language of the first finding is designed to "prevent youths from using this remedy for the purpose of obtaining legal permanent resident status, rather than for the purpose of obtaining relief from abuse or neglect." In re Erick M., 284 Neb. 340, 820 N.W.2d 639, 645 (2012). Although the juvenile court determines whether the evidence supports the findings, the final decision regarding SIJ status rests with the federal government. 8 U.S.C. § 1101(a)(27(J)(iii).
Accordingly, the process for obtaining SIJ status is "'a unique hybrid procedure that directs the collaboration of state and federal systems.'" In re Marisol N.H., 115 A.D.3d 185, 188, 979 N.Y.S.2d 643 (N.Y.App.Div. 2014). In this hybrid proceeding, the state juvenile court is charged with making the factual inquiry relevant to SIJ status when an unmarried, resident alien child is found to be dependent on the court. "The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child's best interests." In re J.J.X.C., 318 Ga.App. at 425, 734 S.E.2d 120. Therefore, courts in other states have held that a juvenile court errs by failing to consider a request for SIJ findings. "By making these preliminary factual findings, the juvenile court is not rendering an immigration determination." H.S.P. v. J.K., 223 N.J. 196, 121 A.3d 849, 858 (2015). The predicate order issued by a state court is merely a prerequisite that must be fulfilled before a juvenile can submit his or her application for SIJ status to USCIS in the form of an I-360 petition. Id. If USCIS approves the juvenile's I-360, he or she will be granted SIJ status. Id.
Thus, a state court's role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country.

Id. at 857-58 (some internal citations omitted). We reversed in part, emphasizing that "a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law." Id. at 859. We remanded with instructions that the trial court consider the SIJ factors, noting that "the trial court is authorized to conclude that the petitioner failed to present evidence to support the SIJ factors or that the presented evidence was ...

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