Opinion
16-P-79
04-26-2016
WENDY DOMINGUEZ CARBAJAL v. MEDARDO ZAVALA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner, Wendy Dominguez Carbajal (petitioner or Wendy), a juvenile citizen of Honduras currently residing in Revere, filed by her mother and next friend a complaint on June 11, 2015, in the Suffolk Division of the Probate and Family Court Department seeking to invoke the court's equity jurisdiction under G. L. c. 215, § 6. She sought an order requesting that certain special findings enter as they are necessary to establish her eligibility to apply to the United States Citizenship and Immigration Services (USCIS) for special immigrant juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J)(2012). Wendy submitted affidavits from her mother and herself describing abuse and neglect that she and Wendy suffered at the hands of Wendy's biological father, who, having been served, failed to respond to the petition or appear at the hearing. Judgment entered on September 29, 2015, dismissing the complaint, the judge finding that Wendy's circumstances did not establish that "reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law."
To be eligible to seek SIJ status, an alien juvenile must establish: (1) that he or she has been declared dependent on a "juvenile court"; (2) that reunification with one or both of the juvenile's parents is "not viable due to abuse, neglect, abandonment, or a similar basis found under State law"; and (3) that it would not be in the juvenile's best interests to return to his or her country of nationality. See 8 U.S.C. § 1101(a)(27)(J)(i)-(ii)(2012). The State court's role is not to engage in an immigration analysis or decision. Recinos v. Escobar, 473 Mass. 734, 738 (2016). The entry of special findings is not a final determination of whether the juvenile meets the requirements for SIJ status; rather, it is the first step in the process of achieving SIJ status. Ibid.
We note that the judge did not have the benefit of the guidance supplied by the Supreme Judicial Court in Recinos, supra, and Custody of Victoria, 473 Mass. 64 (2015).
The petitioner filed a notice of appeal dated October 16, 2015, in the Probate & Family Court and a petition to a single justice of this court. On April 12, 2016, USCIS issued a bulletin advising that visa limits had been reached for the countries of El Salvador, Guatemala, and Honduras, and that applications from citizens of those countries to obtain visas or adjust immigration status will not be processed after April 30, 2016, unless a prior form was submitted prior to January 1, 2010. In effect, Wendy's ability to seek SIJ status will be substantially impeded if she does not file for such status by April 30, 2016. Wendy is unable to do so without entry of the predicate special findings by a judge of the Juvenile Court as required by § 1101(a)(27)(J)(2012). The petitioner sought and obtained relief from a single justice of this court to expedite the appeal. The single justice ordered the record be assembled on an expedited basis, and that the appeal be heard on an expedited basis.
A "juvenile court" includes the Probate and Family Court for purposes of the Federal statute. Recinos, 473 Mass. at 735 n.1.
To facilitate an expedited hearing, counsel for the petitioner waived oral argument.
Here, the judge based her findings entirely on documentary evidence and without testimony from Wendy or her mother. Accordingly, "we are in as good a position as the probate judge was to decide questions of fact." Bluhm v. Peresada, 5 Mass. App. Ct. 766, 766 (1977). The affidavits of Wendy and her mother are consistent with each other, and the facts contained in those affidavits are otherwise undisputed. As the evidence is uncontested, and the relief requested by the petitioner is time-sensitive, we choose to address the merits and in doing so, we make the following special findings and rulings based on the record before us:
1. Wendy Dominguez Carbajal (Wendy) was born on October 12, 1998, in San Pedro Sula, Honduras. Wendy resides at 9 Tf Carroll Way in Revere, Suffolk County, Massachusetts, with two younger brothers who are United States citizens, and their mother. Wendy is not married.
2. The Suffolk Division of the Massachusetts Probate and Family Court has jurisdiction pursuant to G. L. c. 215, § 6, to make equity determinations within the meaning of § 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J)(i)(2012), and 8 C.F.R. § 204.11(a) & (c)(2015). Wendy is dependent upon the Probate and Family Court's jurisdiction.
A juvenile may be declared "dependent" on a court within the meaning of § 1101(a)(27)(J)(i) without being committed to the custody of the court or a State agency. See Recinos, 473 Mass. at 742-743 ("If an immigrant child is able to show, for purposes of SIJ status eligibility, that he or she experienced abuse, neglect, or abandonment by one or both parents, it follows that the child is dependent on the Probate and Family Court for the opportunity to obtain relief.").
3. Wendy's father, the respondent, abandoned and neglected her. He never maintained any relationship with Wendy, and he refused to provide care or support for her, even when her safety was at risk.
4. Wendy's reunification with one or both of her parents is not viable due to abuse, abandonment, neglect, or similar grounds under State law.
5. It is not in the best interests of Wendy to return to Honduras, her country of nationality, and it is in her best interests to remain in the United States.
Wendy's parents and siblings reside in the United States. Wendy and her mother have indicated that if she is returned to Honduras, she will be at risk of abuse and neglect from members of her extended family.
Conclusion. The judgment of the Suffolk Division of the Probate and Family Court dated September 29, 2015, is vacated. The matter is remanded to that court where a decree is to enter forthwith incorporating the numbered findings recited in the memorandum and order of the Appeals Court. The First Justice of the Suffolk Division of the Probate and Family Court shall direct the Register to enter the decree also forthwith, but in any event no later than April 27, 2016. The rescript shall issue forthwith.
So ordered.
By the Court (Agnes, Blake & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 26, 2016.