Opinion
No. 15–P–1694.
10-14-2016
GUARDIANSHIP OF Segundo Washington Maza QUILLAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 23, 2015, Segundo Pedro Quillay Quillay (Pedro) filed a petition in the Probate and Family Court to be appointed legal guardian of his younger brother, Segundo Washington Maza Quillay (Washington). Pedro simultaneously filed a “Motion for Special Findings of Fact and Rulings of Law” (motion for special findings), requesting that certain special findings enter as they are necessary to establish Washington's eligibility to apply to the United States Citizenship and Immigration Services for special immigrant juvenile (SIJ) status under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J) (2012). Washington and Pedro submitted affidavits detailing the neglect and abandonment Washington suffered from his biological mother in Ecuador, including but not limited to: leaving him alone and unsupervised for months at a time when he was very young; failing to provide for him financially and emotionally, leading to his depression and suicidal ideations; and ultimately abandoning him altogether, leading him to quit school and work full time at age eleven in exchange for food and shelter from his neighbors.
We refer to the petitioner and his brother as Pedro and Washington to avoid confusion. Washington's mother consented to the petition and his father is deceased.
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). 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 whether the juvenile meets the requirements for SIJ status; rather, it is the first step in the process of achieving SIJ status. Ibid.
On June 2, 2015, a Probate and Family Court judge held a nonevidentiary hearing at which he appointed Pedro as Washington's guardian but expressed concerns about the motion for special findings. On June 19, 2015, the following order was entered: “The Court takes no action re: motion for special findings of fact and rulings of law.” Thereafter, a motion for reconsideration was timely filed. After another hearing, the judge issued a written order denying the motion for special findings, stating that “the Court fail[ed] to find exigent circumstances to warrant entry of findings of abuse and abandonment.” Thereafter, a timely notice of appeal was filed.
Though the notice of appeal followed action on the motion for reconsideration, that motion sought action on the earlier motion for special findings, which the judge had previously declined to take. Accordingly, the notice of appeal timely followed the judge's action on the “motion to reconsider and take action on motion for special findings of fact and rulings of law.”
The judge applied an incorrect legal standard when considering the motion for special findings. Motions for special findings relating to SIJ cases are evaluated under the best interests of the child standard; there is no requirement that the petitioner demonstrate exigent circumstances. See Recinos v. Escobar, 473 Mass. 734, 738 (2016) ; 8 U.S.C. § 1101(a)(27)(J).
In the present case, there was no evidentiary hearing and the record consists entirely of documentary evidence; 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 Washington and Pedro are consistent with each other and the facts contained therein 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. Segundo Washington Maza Quillay (Washington) was born on September 10, 1997, in Ecuador and currently resides with his brother, Segundo Pedro Quillay Quillay (Pedro), in Lawrence.
2. The Probate and Family Court has jurisdiction pursuant to G.L.c. 215, § 6, to make equity determinations within the meaning of 8 U.S.C. § 1101(a)(27)(J)(i) (2012), and 8 C.F.R. § 204.11(a) & (c) (2015). Washington is dependent on the Probate and Family Court and under its jurisdiction relative to these proceedings.
Though Washington turned eighteen during the pendency of this appeal, the Probate and Family Court retains jurisdiction. See Recinos v. Escobar, supra at 739.
3. Reunification of Washington with his mother is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.
4. It is not in the best interests of Washington to return to Ecuador, his country of nationality, and it is in his best interests to remain in the United States.
The decree and order of appointment of guardian of a minor, dated June 2, 2015, appointing Pedro as Washington's legal guardian, is affirmed. The order of the Probate and Family Court dated September 9, 2015, denying the motion for special findings, is reversed. The matter is remanded to that court where a decree is to enter forthwith incorporating the numbered findings recited in this memorandum and order. The First Justice of the Essex Division of the Probate and Family Court shall direct the register to enter the decree also forthwith. The rescript shall issue forthwith.