Terry Jennings Justice

On Appeal from the 247th District Court Harris County, Texas
Trial Court Case No. 2015-19994-7

MEMORANDUM OPINION

Appellant, Dina Estela Velasquez Pereira, on behalf of B.A.L. (the "child"), challenges the trial court's order on her motion for predicate findings necessary to enable B.A.L. to petition the United States Citizenship and Immigration Services ("USCIS") for Special Immigrant Juvenile ("SIJ") status. In two issues, Pereira contends that the trial court erred in making its findings and exceeded its jurisdiction in adjudicating B.A.L.'s SIJ status on the merits.

We vacate and dismiss.

Background

In her First Amended Petition in her Suit Affecting the Parent-Child Relationship ("SAPCR"), Pereira alleged that she and B.A.L., who was born in El Salvador on August 7, 1998, were living in Harris County. Pereira alleged that although B.A.L.'s father, Leonel Antonio Lopez Bustillo, a resident of the State of Maryland, had lived with Pereira and B.A.L. and consented to being listed on B.A.L.'s birth certificate as his father, Bustillo had not, for over a decade, visited B.A.L. or provided child support. Bustillo had, over the preceding two years, committed acts of violence against B.A.L. "in the form of neglect" and would "likely expose the child to loss or injury that jeopardize[d] [his] physical health and safety." Pereira sought an order from the trial court appointing her as B.A.L.'s sole managing conservator and ordering Bustillo to pay child support. She also requested certain special findings necessary to enable B.A.L. to petition the USCIS for SIJ status, a type of immigration relief allowing non-citizen children to obtain lawful, permanent residency and, eventually, citizenship in the United States. Pereira asked the trial court to find that reunification of B.A.L. with Bustillo was not viable and that returning B.A.L. to his country of origin, El Salvador, was not in his best interest.

After Bustillo, despite service of process, did not answer the suit, an associate judge held a default hearing. At the hearing, Pereira testified that B.A.L., after his birth, had lived with family members in El Salvador. At some point, after his family members had become too elderly to care for him, B.A.L. moved to Harris County and lived with Pereira. Pereira explained that if B.A.L. were returned to El Salvador, he would not have anyone to live with or care for him and she feared for his safety because of an ongoing threat of gang-violence in El Salvador. She asked the trial court to find that "family violence ha[d] occurred in the form of neglect and abandonment" by Bustillo and that it was not in B.A.L.'s best interest that he be returned to El Salvador.

On January 12, 2016, the associate judge issued a "Rendition in Suit Affecting the Parent-Child Relationship," finding:

(1) [The court] has jurisdiction of this case and the parties and no other court has continuing, exclusive jurisdiction;
(2) [A]ll parties entitled to citation were cited;
. . . .
(4) [Pereira] provided sufficient evidence to support her requested relief with respect to conservatorship, possession and access, support, and medical support as reflected in the record and the Court GRANTS that specific requested relief;

. . . .
(6) [Pereira] failed to provide sufficient evidence to support a finding of family violence;
(7) [T]he Office of Refugee Resettlement is charged with reuniting, when possible, an unaccompanied minor child with a parent or adult caregiver living in the United States. . . .
(8) [B]efore the Office of Refugee Resettlement will release a child, the adult is required to sign a Sponsor Care Agreement.
(9) The Office of Refugee Resettlement released [B.A.L.] into [Pereira's] custody and [she] signed a Sponsor Care Agreement;
(10) [Pereira] is fulfilling her obligations under that agreement; and
(11) [R]eunification with one parent is viable, and has, in fact, been effectuated by the Office of Refugee Resettlement.

On August 7, 2016, B.A.L. turned eighteen years old. Four months later, on December 22, 2016, the referring court signed a "Final Order Modifying and Adopting the Rendition," in which it granted Pereira's motion for entry of a final order, modified the associate judge's "Rendition" to deny Pereira's requested attorney's fees, adopted the "Rendition" as modified, and denied any other relief.

Jurisdiction

In her second issue, Pereira argues that the trial court erred in making the predicate findings necessary for B.A.L. to apply for SIJ status because it misinterpreted the governing statute. See 8 U.S.C. § 1101 (a)(27)(j) (2012) (the "SIJ statute"). In her first issue, she argues that the trial court erred in purporting to adjudicate B.A.L.'s SIJ status on the merits because only the USCIS, and not the state trial court, has jurisdiction to adjudicate a petitioner's SIJ status. Pereira asks this Court to reverse the trial court's order and remand "for entry of an order containing the requested [predicate] findings."

As a preliminary matter, we consider our jurisdiction to hear Pereira's appeal from the portion of the trial court's order in which it made findings on B.A.L.'s SIJ status and concluded that B.A.L. "does not qualify as a special immigrant." See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623-24 (Tex. 2012). "Appellate courts must determine, even sua sponte, the question of jurisdiction, and the lack of jurisdiction may not be ignored simply because the parties do not raise the issue." Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

SIJ status is a form of immigration relief allowing non-citizen children to obtain lawful, permanent residency and, eventually, citizenship in the United States. See 8 U.S.C. § 1101(a)(27)(J); Budhathoki v. Dep't of Homeland Sec., 220 F. Supp. 3d 778, 781 (W.D. Tex. 2016). A special-immigrant juvenile is defined as an immigrant who is present in the United States and:

(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 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 [SIJ status], [subject to inapplicable exceptions].

The Immigration and Nationality Act of 1990 ("INA") established a process for SIJ applicants that involves the collaboration of state juvenile courts and the USCIS. Budhathoki, 220 F. Supp. 3d at 781, 786. To obtain SIJ status, a juvenile must complete a two-step process. First, the state juvenile courts are tasked with making certain determinations regarding the matters of child custody and welfare involved in SIJ status proceedings. See 8 U.S.C. § 1101(a)(27)(J)(i), (ii); 8 C.F.R. § 204.11(c) (2016); Budhathoki, 220 F. Supp. 3d at 786 (citing In re Self-Petitioner, 2012 WL 8597755, at *4 (Nov. 2, 2012) ("USCIS is neither the fact finder nor an expert in regards to these issues of child welfare under various state laws. Rather, the [SIJ] statute explicitly defers such findings to the expertise and judgment of the juvenile court.")). The juvenile must apply to a state "juvenile court" for an order making the following predicate findings:

(1) The juvenile is under the age of 21 and is unmarried;

(2) Reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law;
(3) It is not in the best interest of the juvenile to be returned to his parents' previous country of nationality or last habitual residence;
(4) The juvenile is dependent on the state court or has been placed under the custody of an agency or an individual appointed by the court; and
(5) The state court has jurisdiction under state law to make judicial determinations about the custody and care of juveniles.

After the state juvenile court makes its findings, the juvenile must submit an application to the USCIS, demonstrating his statutory eligibility. Budhathoki, 220 F. Supp. 3d at 782. The Secretary of Homeland Security, through the USCIS directors, then makes a final determination as to whether to approve or deny the SIJ status application. Budhathoki, 220 F. Supp. 3d at 787; see 8 U.S.C. § 1101(a)(27)(J)(iii). Because the USCIS is not a fact finder, the USCIS's credibility determination is not a reexamination of the juvenile court's findings. Budhathoki, 220 F. Supp. 3d at 787 (citing In re Self-Petitioner, 2015 WL3545456, at *3 (USCIS officer cannot go "behind the district court's order to make his own determination under state child welfare law")). Rather, the USCIS decides whether SIJ status is being "sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse of neglect or abandonment," and it examines the relevant evidence only to ensure that the record contains "a reasonable factual basis . . . for the [juvenile] court's rulings." Budhathoki, 220 F. Supp. 3d at 787 (internal quotations omitted).

In J.L.E.O., the Children's Center ("the Center"), on behalf of J.L.E.O. (the "child"), filed a petition in a SAPCR in the 306th District Court in Galveston, Texas, seeking findings necessary to enable the child to petition the USCIS for SIJ status. 2011 WL 664642, at *1. In its petition, the Center asserted that J.L.E.O.'s parents were deceased and it had maintained actual care, control, and possession of him. Id. The Center asked the trial court to name it as J.L.E.O.'s sole managing conservator, declare that he was dependent on the court, and declare that it was not in his best interest to be returned to Honduras, his country of nationality. Id. When the action was initiated in 2009, J.L.E.O., who was born on August 4, 1991, was seventeen and would turn eighteen in less than two months. Id. The trial court conducted an evidentiary hearing on July 27, 2009. Id. During the hearing, the trial court indicated that the Center had not provided sufficient evidence to support the requested findings and expressed concern that J.L.E.O. would soon turn eighteen. Id. On August 3, 2009, the trial court notified the Center that the requested relief was denied. Id. In April of 2010, the Center filed a request for a declaratory judgment, again seeking findings for J.L.E.O. to apply for SIJ status, which the trial court denied. Id.

On appeal in J.L.E.O., the Center argued that the trial court erred in refusing to make the requested findings to enable J.L.E.O. to pursue his SIJ application because the SIJ statute expressly delegated to state juvenile courts the authority to make the necessary findings of fact regarding children eligible for SIJ status. Id. (citing 8 C.F.R. § 204.11(a), (d)(2)). The court of appeals explained that, under the SIJ statute, the trial court sat as a juvenile court, as defined under the SIJ statute. Id. (citing 8 C.F.R. § 204.11(a)). It further noted that the Texas Family Code defines a "child" as "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes." Id. at *2 (citing TEX. FAM. CODE ANN. § 101.003(a)). The court concluded that because J.L.E.O. was over eighteen and no longer a child as defined by the Texas Family Code, the trial court, which sat as a juvenile court, "no longer had jurisdiction over the person to make the requested findings." Id. Further, J.L.E.O., as an adult, was not dependent on the juvenile court, one of the statutory prerequisites. Id. Thus, the trial court did not err in not making the requested findings. Id. (citing 8 C.F.R. § 204.11(c)).

Here, on January 12, 2016, the associate judge issued a "Rendition in Suit Affecting the Parent-Child Relationship," finding, in regard to B.A.L.'s SIJ status, that:

(1) [The court] has jurisdiction of this case and the parties and no other court has continuing, exclusive jurisdiction;
. . . .
(6) [Pereira] failed to provide sufficient evidence to support a finding of family violence;
(7) [T]he Office of Refugee Resettlement is charged with reuniting, when possible, an unaccompanied minor child with a parent or adult caregiver living in the United States. . . .
(8) [B]efore the Office of Refugee Resettlement will release a child, the adult is required to sign a Sponsor Care Agreement.
(9) The Office of Refugee Resettlement released [B.A.L.] into [Pereira's] custody and [she] signed a Sponsor Care Agreement;
(10) [Pereira] is fulfilling her obligations under that agreement; and

(11) [R]eunification with one parent is viable, and has, in fact, been effectuated by the Office of Refugee Resettlement.

"An appeal may be taken by any party to a suit from a final order rendered under this title." TEX. FAM. CODE ANN. § 109.002(b) (Vernon 2014); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally, "an appeal may be taken only from a final judgment"). An associate judge, outside the context of certain limited exceptions under the Family Code, "do[es] not have the power to render [a] final judgment." Gerke v. Kantara, 492 S.W.3d 791, 793 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting Graham v. Graham, 414 S.W.3d 800, 801 (Tex. App.—Houston [1st Dist.] 2013, no pet.)). "[A]n associate judge has the authority to 'recommend' to the referring court that an order executed by the associate judge be 'rendered' by the referring court and become a pronouncement, or final order, of that court." Id. at 792. And the associate judge's proposed order may be adopted, modified, rejected, or sent back to the associate judge by the referring court. Id. (citing TEX. FAM. CODE ANN. § 201.014(a)). When no request for a de novo hearing is made, the proposed order of the associate judge becomes the order of the referring court "only on the referring court's signing" of the proposed order. Id. (citing TEX. FAM. CODE ANN. § 201.013(b)).

Within the limited exceptions, an associate judge is authorized to "render and sign" a "final default order," which ordinarily requires no further action to constitute an order of the referring court. See TEX. FAM. CODE ANN. 201.007(14)(B) (Vernon 2014) (emphasis added); Gerke, 492 S.W.3d at 793-94. However, even orders that fit within the exceptions "are subject to review by the referring court." Gerke, 492 S.W.3d at 793-94.

Here, after Pereira filed her notice of appeal from the associate judge's "Rendition," the Clerk of this Court notified her that the Court "may dismiss" the appeal unless she demonstrated our jurisdiction. See TEX. R. APP. P. 42.3. Pereira filed a response, stating as follows:

Although [Pereira] believed the Orders were final and appealable at the time she filed her Notice of Appeal, upon reviewing the authorities cited in this Court's letter, . . . [Pereira] moves this Court to abate this appeal to permit the trial court to render a final and appealable judgment, relating back to the date of the Rendition.

On December 22, 2016, the referring court signed a "Final Order Modifying and Adopting the Rendition," in which it granted Pereira's motion for entry of a final order, modified the associate judge's "Rendition" to deny Pereira's requested attorney's fees, adopted the "Rendition" as modified, and denied any other relief.

As in J.L.E.O., the referring court, in rendering its "Final Order Modifying and Adopting the Rendition" in regard to B.A.L.'s SIJ status, sat as a juvenile court, as defined under the SIJ statute. See In re J.L.E.O., 2011 WL 664642, at *1. The record shows, however, that B.A.L. turned eighteen on August 7, 2016. Thus, on December 22, 2016, when the associate judge's findings and conclusion as to B.A.L.'s SIJ status became the final order of the referring court, B.A.L. was no longer a "child" as defined by the Texas Family Code, and the referring court no longer had juvenile jurisdiction over him, as applicable to the SIJ statute. See 8 C.F.R. § 204.11(a) ("juvenile court" means any court "having jurisdiction under State law to make judicial determinations about the custody and care of juveniles"); TEX. FAM. CODE ANN. § 101.003(a) ("child" is "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes"); In re J.L.E.O., 2011 WL 664642, at *2 (because J.L.E.O. was eighteen and no longer a child as defined by Texas Family Code, juvenile court no longer had jurisdiction over him to make requested findings on special immigrant juvenile status); see also Sheng v. Pogash, 415 F. Supp. 2d 550, 560 (S.D. Tex. 2006) (recognizing urgency of child's request for injunction to permit proceeding in state court before eighteenth birthday when court would lose jurisdiction)).

Because the trial court did not have jurisdiction to render its "Final Order" as to its findings on B.A.L.'s SIJ status and its conclusion that he "does not qualify as a special immigrant," we hold that we do not have jurisdiction to consider the merits of the appeal. See Dall. Cty. Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 471 (Tex. App.—Dallas 1994, writ denied) (where trial court lacks jurisdiction, appellate court only has jurisdiction to set judgment aside and dismiss appeal).

Conclusion

We vacate only that portion of the trial court's "Final Order Modifying and Adopting the Rendition" in which it rendered findings on B.A.L.'s SIJ status and concluded that he "does not qualify as a special immigrant," and we dismiss the appeal. Because no other errors regarding the trial court's order are advanced on appeal, we express no opinion on the merits of the remainder.

Terry Jennings

Justice Panel consists of Justices Jennings, Higley, and Lloyd.