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finding that the phrase "1 or both" can be read as both requiring "only that reunification with one parent is not feasible" and "depending on the circumstances, [to mean] either reunification with one parent is not feasible or reunification with both parents is not feasible"
Summary of this case from S.J.D.R. v. J.A.MOpinion
No. S–11–919.
2012-09-14
In re Interest of ERICK M., a child under 18 years of age. State of Nebraska, appellee, v. Erick M., appellant.
Kevin Ruser, Lincoln, of University of Nebraska Civil Clinical Law Program, and Amanda M. Civic, Senior Certified Law Student, for appellant. John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.
Syllabus by the Court
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviewsindependently of the lower court's determination.
2. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an appellate court gives words in a statute their ordinary meaning.
3. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not look beyond a statute to determine the legislative intent when the words are plain, direct, or unambiguous.
4. Statutes: Legislature: Intent: Appeal and Error. An appellate court can examine an act's legislative history when a statute is ambiguous.
5. Statutes. A statute is ambiguous if it is susceptible of more than one reasonable interpretation.
6. Juvenile Courts: Judgments: Abandonment: Proof. For obtaining special immigrant juvenile status under 8 U.S.C. § 1101(a)(27)(J) (Supp. IV 2010), a petitioner can show an absent parent's abandonment by proof that the juvenile has never known that parent or has received only sporadic contact and support from that parent for a significant period.
7. Juvenile Courts: Judgments: Child Custody: Proof. If a juvenile lives with only one parent when a juvenile court enters a guardianship or dependency order, the reunification component under 8 U.S.C. § 1101(a)(27)(J) (Supp. IV 2010) is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to the parent who had custody.
8. Juvenile Courts: Judgments: Evidence. If a juvenile alien's absent parent has abused, neglected, or abandoned the juvenile, a petitioner seeking special immigrant juvenile status for the juvenile should offer evidence on this issue. Thus, when ruling on a petitioner's motion for an eligibility order under 8 U.S.C. § 1101(a)(27)(J) (Supp. IV 2010), a court should generally consider whether reunification with either parent is feasible.
Kevin Ruser, Lincoln, of University of Nebraska Civil Clinical Law Program, and Amanda M. Civic, Senior Certified Law Student, for appellant. John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.
CONNOLLY, J.
SUMMARY
Erick M., a juvenile, requested that the juvenile court issue an order finding that under 8 U.S.C. § 1101(a)(27)(J) (Supp. IV 2010), he was eligible for “special immigrant juvenile” (SIJ) status. SIJ status allows a juvenile immigrant to remain in the United States and seek lawful permanent resident status if federal authorities conclude that the statutory conditions are met. Under § 1101(a)(27)(J)(i), the conditions include a state court order determining that the juvenile's reunification with “1 or both” parents is not feasible because of abuse, neglect, or abandonment. The juvenile court found that Erick did not satisfy that statutory requirement. Erick appeals.
See, Zheng v. Pogash, 416 F.Supp.2d 550 (S.D.Tex.2006); F.L. v. Thompson, 293 F.Supp.2d 86 (D.D.C.2003); Yu v. Brown, 36 F.Supp.2d 922 (D.N.M.1999). See, also, 8 U.S.C. § 1255(h) (Supp. IV 2010).
See 8 C.F.R. § 204.11(d) (2012).
The crux of this appeal is the meaning of the phrase “1 or both” parents under § 1101(a)(27)(J)(i). We conclude that Congress wanted to give state courts and federal authorities flexibility to consider a juvenile's family circumstances in determining whether reunification with the juvenile's parent or parents is feasible. Erick lived with only his mother when the juvenile court adjudicated him as a dependent. So the juvenile court did not err in finding that because reunification with Erick's mother was feasible, he was not eligible for SIJ status. We affirm.
BACKGROUND
SIJ Status
Under § 1101(a)(27)(J), a juvenile's petition for SIJ status must include a juvenile court order showing that the juvenile satisfies the statutory criteria. The court's findings in an “eligibility order” are a prerequisite to SIJ status, but they are not binding on federal authorities' discretion whether to grant a petition for SIJ status.
See id.
See § 1101(a)(27)(J)(iii).
There are two eligibility provisions under § 1101(a)(27)(J), which we will refer to as “the reunification and best interest components.” Subparagraph (i) is the reunification component and has two requirements: (1) The juvenile must be one whom a state juvenile court has determined to be a dependent, or has committed to or placed under the custody of a state agency or department, or has committed to or placed with an individual or entity appointed by the state or court; and (2) “reunification with 1 or both of the immigrant's parents [must not be] viable due to abuse, neglect, abandonment, or a similar basis found under State law.”
§ 1101(a)(27)(J)(i) (emphasis supplied).
Subparagraph (ii) is the best interest component. It requires a judicial or administrative finding 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.” If a state court finds that both of the eligibility components are satisfied, then federal authorities may grant a petition for SIJ status.
See § 1101(a)(27)(J)(ii).
See § 1101(a)(27)(J)(iii).
The Facts of Erick's Case
Here, the juvenile court adjudicated Erick and committed him to the care and custody of a state agency. The court committed him to the Office of Juvenile Services (OJS) in December 2010 because of two charges of being a minor in possession of alcohol. The court initially placed him in a residential treatment center. In July 2011, the juvenile court heard OJS' motion to transfer Erick to the Youth Rehabilitation and Treatment Center in Kearney, Nebraska. While in the residential treatment center, Erick had continually disappeared from the residential center, used alcohol and drugs, committed law violations, and threatened staff. Erick did not resist the motion for more restrictive custody, but his attorney stated that Erick's goal was to “get back home” and work on a rehabilitation program from there. The court sustained the motion for the transfer.
In September 2011, the court heard Erick's motion for an eligibility order for SIJ status. Erick's family permanency specialist testified that she had no contact information for Erick's father. In fact, she did not know whether paternity had ever been established. She said Erick was unsure whether his father was in Mexico or New York. She anticipated that she would continue to work with Erick's mother after OJS released Erick from the Youth Rehabilitation and Treatment Center in Kearney. She did not know of any reports or investigations of abuse or neglect by Erick's mother.
Erick's mother testified that she did not know where Erick's father was and had not spoken to him in many years. She had never been accused of abusing or neglecting Erick.
The court overruled Erick's motion for an eligibility order. It found that the first requirement was met because Erick was committed to a state agency or department. But the court found that the facts failed to show that reunification with Erick's mother was not viable because of abuse, neglect, or abandonment. The court found that (1) it had removed Erick from his home because of his alcohol abuse and he had never been removed from his mother's home because of abuse, neglect, or abandonment; (2) Erick's mother had been present at almost every hearing; (3) Erick had lived with her before the court committed him to OJS; and (4) no evidence showed that he would not be returned to his mother when he was paroled or discharged from the Youth Rehabilitation and Treatment Center in Kearney.
The court concluded that there was no evidence that Erick's father had ever abused or neglected Erick. It made no findings whether he had abandoned Erick. Because the reunification component was not met, the court did not consider whether return to Erick's country of origin would be in his best interest.
ASSIGNMENT OF ERROR
Erick argues that the court erred in denying his motion for an eligibility order for SIJ status.
STANDARD OF REVIEW
Statutory interpretation presents a question of law, which we review independently of the lower court's determination.
See State v. Jimenez, 283 Neb. 95, 808 N.W.2d 352 (2012).
ANALYSIS
As stated, this case hinges on the meaning of the federal statute's requirement that a juvenile court determine that reunification with “1 or both of the immigrant's parents” is not feasible because of abuse, neglect, or abandonment. Both parties argue that the plain language of the statute supports their interpretation.
See § 1101(a)(27)(J)(i).
Erick argues that § 1101(a)(27)(J)(i) requires that he show only that reunification with one parent is not feasible because of abuse, neglect, or abandonment. He contends that by using the word “or” in the phrase “1 or both,” Congress intended the statute to be disjunctive. And he argues that the evidence shows his father abandoned him.
The State counters that if Congress had intended that a juvenile could satisfy the statute by showing only that reunification with one parent was not feasible, then it would not have included the words “or both.” It contends that Erick's interpretation renders this language superfluous and that Congress did not intend courts to ignore the presence of a parent with whom reunification is feasible. It argues that under Erick's interpretation, a juvenile court would be required to find that the reunification component was satisfied every time the State could not identify or find a juvenile's parent, even when reunification with the other parent was appropriate. In addition, the State argues that the evidence fails to show that Erick's father ever established paternity or abandoned him.
Interpreting this statute to reach a legal conclusion presents a challenge. To construe it as something other than an indigestible lump, we turn to familiar statutory canons. Absent a statutory indication to the contrary, we give words in a statute their ordinary meaning. We will not look beyond the statute to determine the legislative intent when the words are plain, direct, or unambiguous. But we can examine an act's legislative history when a statute is ambiguous. A statute is ambiguous if it is susceptible of more than one reasonable interpretation.
See J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
See, Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d 724 (2012); State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d 134 (2009).
See State v. Halverstadt, 282 Neb. 736, 809 N.W.2d 480 (2011).
See id. Accord, e.g., Consolidated Irr. Dist. v. Superior Court, 205 Cal.App.4th 697, 140 Cal.Rptr.3d 622 (2012); SOCC, P.L. v. State Farm Mut. Auto. Ins. Co., No. 5D11–783, 2012 WL 2864384 (Fla.App. July 13, 2012); County of Du Page v. Illinois Labor Rel., 231 Ill.2d 593, 900 N.E.2d 1095, 326 Ill.Dec. 848 (2008).
Although Erick's argument is reasonable, Congress' use of the word “or” does not necessarily decide the issue in his favor. Because “or” describes what a juvenile court must determine in the alternative, we could also reasonably interpret the phrase “1 or both” parents to mean that a juvenile court must find, depending on the circumstances, that either reunification with one parent is not feasible or reunification with both parents is not feasible. Unfortunately, there are no related provisions in the act from which we can discern Congress' intent.
See Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012).
It is true that courts will sometimes look to an agency's interpretation of a governing, ambiguous statute for guidance. But here, the proposed regulations for the 2008 amendment to § 1101(a)(27)(J)(i), which is the source of the confusion, have not yet been adopted. And as proposed, they fail to clarify the issue that we must decide. Absent any statutory or regulatory guidance, we conclude that the statute is ambiguous because the parties have both presented reasonable, but conflicting, interpretations of its language. And if an ambiguous statute is to make sense, we must read it in the light of some assumed purpose. So we consider the statute's legislative history.
See, Chase Bank USA, N.A. v. McCoy, ––– U.S. ––––, 131 S.Ct. 871, 178 L.Ed.2d 716 (2011); Project Extra Mile, supra note 14, quoting Ameritas Life Ins. v. Balka, 257 Neb. 878, 601 N.W.2d 508 (1999).
See Special Immigrant Juvenile Petitions, 76 Fed.Reg. 54,978 (proposed Sept. 6, 2011).
Id.
In 2008, Congress amended the eligibility requirements for SIJ status under § 1101(a)(27)(J)(i). Before 2008, subparagraph (i) defined a special immigrant juvenile as one whom a state juvenile court had (1) determined to be a dependent under its jurisdiction, (2) placed in the custody of a state agency or department, and (3) deemed eligible for long-term foster care due to abuse, neglect, or abandonment.
See, Pub.L. No. 110–457 § 235(d)(1), 122 Stat. 5044, 5074 (2008); 8 U.S.C. § 1101(a)(27)(J)(i) (Supp. II 2008).
See § 1101(a)(27)(J)(i) (2006).
Under the 2008 amendment, the eligibility requirements under subparagraph (i) hinge primarily on a reunification determination. The amendment expanded eligibility to include juvenile immigrants whom a court has committed to or placed in the custody of an individual or a state-appointed entity—not just those whom a court has committed to or placed with a state agency or department. In addition, Congress removed the requirement that the juvenile be under the court's jurisdiction because of abuse, neglect, or abandonment. Finally, Congress removed the requirement that a state juvenile court find that a juvenile is eligible for long-term foster care because of abuse, neglect, or abandonment. Instead, a court must find that reunification is not possible because of abuse, neglect, or abandonment.
So under the amended subparagraph (i), a juvenile court no longer needs to find that the juvenile is in the juvenile system because of abuse, neglect, or abandonment. It is sufficient that the court has placed the juvenile with a court-approved individual or entity and that reunification with “1 or both” parents is not feasible because of abuse, neglect, or abandonment. For example, a juvenile alien could be eligible for SIJ status if a juvenile court has appointed a guardian for the juvenile for any reason and reunification is not feasible because of parental abuse, neglect, or abandonment.
See, e.g., In re [ Male Juvenile From Honduras ], 2011 WL 7790475 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Mar. 28, 2011); In re [ Male Juvenile From Mexico ], 2011 WL 7790423 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Mar. 15, 2011).
These 2008 changes expanded the pool of juvenile aliens who could apply for SIJ status. But an earlier 1997 amendment to the statute shows that despite this expansion, these juveniles must still be seeking relief from parental abuse, neglect, or abandonment.
We start with the original language. Congress enacted the SIJ statute as part of the Immigration Act of 1990. The original eligibility requirements were a judicial or administrative order determining only that the juvenile alien was dependent on a juvenile court and that it would not be in the juvenile's best interest to be returned to the juvenile's or parent's home country.
See Pub.L. No. 101–649, § 153, 104 Stat. 4978, 5005 (1990).
In 1997, however, Congress amended § 1101(a)(27)(J) to require that a court, in its order, determine that the juvenile (1) is eligible for long-term foster care “ ‘due to abuse, neglect, or abandonment’ ” and (2) has been declared a dependent of a juvenile court or committed or placed with a state agency. “Congress intended that the amendment would 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.”
.Pub.L. No. 105–119, § 113, 111 Stat. 2440, 2460 (1997).
See 3 Charles Gordon et al., Immigration Law and Procedure § 35.09 [1] at 35–36 (rev. ed.2011), citing H.R.Rep. No. 105–405 (1997) (Conf.Rep.).
Even before the 1997 amendment, immigration authorities interpreted the “eligible for long-term foster care” requirement to mean that “a determination has been made by the juvenile court that family reunification is no longer a viable option.” Since 1997, however, that determination must be specifically tied to parental abuse, neglect, or abandonment. And guidance memoranda from the operational directors of the U.S. Citizenship and Immigration Services (USCIS) to field directors show that protecting the juvenile from parental abuse, neglect, or abandonment must be the petitioner's primary purpose. USCIS will not consent to a petition for SIJ status if it was “ ‘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 or neglect or abandonment.’ ”
.8 C.F.R. § 204.11(a) (1996).
See Memorandum from Donald Neufeld, Acting Assoc. Dir., Dom. Ops., and Pearl Chang, Acting Chief, Ofc. of Policy & Strategy, U.S. Dept. of Homeland Sec., U.S. Citizenship & Imm. Servs., to Field Leadership, No. HQOPS 70/8.5 (Mar. 24, 2009), reprinted in 14 Bender's Immigration Bulletin, No. 10 appx. D at 616 (May 15, 2009). Accord Memorandum from William Yates, Assoc. Dir., Dom. Ops., U.S. Dept. of Homeland Sec., U.S. Citizenship & Imm. Servs., No. HQADN 70/23 (May 27, 2004), reprinted in 9 Bender's Immigration Bulletin, No. 13 appx. A (July 1, 2004).
Moreover, administrative appeal decisions from the denial of petitions for SIJ status illustrate how USCIS applies the requirement that a juvenile court find that reunification with “1 or both” parents is not feasible. We recognize that only designated decisions rendered in administrative appeals are published and considered binding precedent on immigration officials. But USCIS' unpublished decisions nonetheless enlighten and confirm our analysis.
See 8 C.F.R. § 103.3(c) (2012).
Because USCIS redacts identifying information from its case names, we have substituted descriptive case names for citing them.
A petition for SIJ status is typically filed for two general categories of juveniles: (1) for juvenile aliens who came to the United States without their parents or who began living with someone else soon after coming with their parents ; and (2) for juveniles who came to the United States with one or both parents but later became a juvenile court dependent. In either circumstance, if the petitioner shows that the juvenile never knew a parent or that a parent has failed to provide care and support for the juvenile for a significant period, USCIS and courts have agreed that reunification with the absent parent or parents is not feasible because of abandonment.
See, e.g., In re Alamgir A., 81 A.D.3d 937, 917 N.Y.S.2d 309 (2011); In re [ Male Juvenile From Mexico ], supra note 20; In re [ Male Juvenile From El Salvador ], 2010 WL 4687105 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Mar. 30, 2010).
See In re [ Female Juvenile From Jamaica ], 2010 WL 3426795 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Feb. 26, 2010).
See, In re Alamgir A., supra note 28; In re [ Male Juvenile From Mexico ], supra note 20; In re [ Female Juvenile From Mexico ], 2009 WL 6520647 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Oct. 13, 2009).
But even when reunification with an absent parent is not feasible because the juvenile has never known the parent or the parent has abandoned the child, USCIS and juvenile courts generally still consider whether reunification with the known parent is an option. Thus, if the juvenile lives in the United States with only one parent and never knew the other parent, the reunification component is satisfied if reunification with the known parent is not feasible.
See, Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 901 N.Y.S.2d 296 (2010); In re [ Male Juvenile From Mexico ], supra note 20; In re O.Y., slip op., No. 52669(U), 2009 WL 5196007 (N.Y.Fam. Sept. 22, 2009) (unpublished disposition listed in table of “Decisions Without Published Opinions” at 26 Misc.3d 1205(A), 906 N.Y.S.2d 781 (2009)).
See In re [ Female Juvenile From Jamaica ], supra note 29.
We believe that this result shows that the “1 or both” parents rule is consistent with Congress' intent to expand the pool of potential applicants. That is, under the “1 or both” parents rule, a juvenile is not disqualified from SIJ status solely because one parent is unknown or cannot be found and, thus, cannot be excluded from the possibility of reunification.
See Jacqueline Bhabha and Susan Schmidt, From Kafka to Wilberforce: Is the US. Government's Approach to Child Migrants Improving?, Immigration Briefings (West Feb. 2011).
So we reject the State's argument that Erick was required to show that his father had established paternity before Erick could prove abandonment. Because Erick has lived with only his mother, his family circumstances appear to fall within Congress' intent that a juvenile court may sometimes focus primarily on whether reunification with only one parent (the custodial parent) is feasible. In accordance with USCIS cases, we hold that for obtaining SIJ status under § 1101(a)(27)(J), a petitioner can show an absent parent's abandonment by proof that the juvenile has never known that parent or has received only sporadic contact and support from that parent for a significant period. Whether an absent parent's parental rights should be terminated is not a factor for obtaining SIJ status.
See cases cited supra note 30.
These cases also illustrate, however, that USCIS does not consider proof of one absent parent to be the end of its inquiry under the reunification component. A petitioner must normally show that reunification with the other parent is also not feasible.
See cases cited supra note 31.
But if a juvenile lives with only one parent when a juvenile court enters a guardianship or dependency order, the reunification component under § 1101(a)(27)(J) is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to the parent who had custody. This is true without any consideration of whether reunification with the absent parent is feasible because the juvenile has a safe parent to whose custody a court can return the juvenile.
See In re [ Female Juvenile From Albania ], 2009 WL 6521113 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Oct. 30, 2009). Compare Tung W.C. v. Sau Y.C., 34 Misc.3d 869, 940 N.Y.S.2d 791 (2011).
In contrast, if the juvenile was living with both parents before a guardianship or dependency order was issued, reunification with both parents is usually at issue. These varied results are all consistent with Congress' intent that SIJ status be available to only those juveniles who are seeking relief from parental abuse, neglect, or abandonment.
See, e.g., In re Alamgir A., supra note 28; Jisun L. v. Young Sun P., 75 A.D.3d 510, 905 N.Y.S.2d 633 (2010); In re [ Male Juvenile From Haiti ], 2009 WL 6607581 (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., Nov. 30, 2009).
Erick relies on In re E.G., an unpublished New York decision. We find it unpersuasive. In that case, a 13–year–old boy left his mother and siblings in Guatemala and made his way to the United States, where his biological father lived. The father squandered his wages on alcohol and eventually left the child alone. Social services removed the child from his father's custody when he was almost age 16; an attorney for the child sought an eligibility order for SIJ status. The mother filed an affidavit stating that she wanted her son to stay in the United States because he would have better education and employment opportunities. She also stated that because gang members in Guatemala had threatened him, she feared for his safety if he returned. The family court determined that under the “1 or both” parents language, the child could petition for SIJ status even if he had a fit parent abroad “so long as the minor has been abused, neglected or abandoned by one parent.”
In re E.G., slip op., No. 51797(U), 2009 WL 253556 (N.Y.Fam. Aug. 14, 2009) (unpublished disposition listed in table of “Decisions Without Published Opinions” at 24 Misc.3d 1238(A), 899 N.Y.S.2d 59 (2009)).
Id. at *3.
In re E.G. is distinguishable because the only parent with whom the juvenile was living when the dependency order was issued was the parent who had neglected and abandoned him. Also, the court's order does not show whether his mother had attempted to support or contact him. She did not attempt to intervene in the neglect proceedings. So her absence may have been the equivalent of abandonment. Most important, we disagree with the court's reasoning. Although many parents in other countries might be willing to relinquish custody of their child so the child could remain in the United States, the question for SIJ status is parental abuse, neglect, or abandonment.
See Yeboah v. US. Dept. of Justice, 345 F.3d 216 (3d Cir.2003).
So we disagree that when a court determines that a juvenile should not be reunited with the parent with whom he or she has been living, it can disregard whether reunification with an absent parent is not feasible because of abuse, neglect, or abandonment. Although a literal reading of the statute would seem to permit a state court to ignore whether reunification with an absent parent is feasible, in practice, courts and USCIS officials normally consider whether the petitioner has shown that an absent parent abused, neglected, or abandoned the juvenile.
We believe that this is the better rule. If a juvenile alien's absent parent has abused, neglected, or abandoned the juvenile, a petitioner seeking SIJ status for the juvenile should offer evidence on this issue. Thus, when ruling on a petitioner's motion for an eligibility order under § 1101(a)(27)(J), a court should generally consider whether reunification with either parent is feasible.
See In re Interest of Luis G., 17 Neb.App. 377, 764 N.W.2d 648 (2009).
But this case presents the exception. Because Erick was living with only his mother when the juvenile court adjudicated him, he could not satisfy the reunification component without showing that reunification with his mother was not feasible. Because he failed to satisfy this requirement, the court had no need to consider whether reunification with Erick's father was feasible. We conclude that the juvenile court did not err in concluding that Erick did not satisfy the reunification component. Erick was not seeking SIJ status to escape from parental abuse, neglect, or abandonment. There is no claim that reunification with his mother is not feasible for those reasons.
Affirmed.