Calel v. Tzun

2024 Ohio 409

• Court: Ohio Court of Appeals
• Decided: February 2, 2024
• Docket: 2023CA00050
• Status: Published

Opinion

[Cite as Calel v. Tzun, 2024-Ohio-409.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANA AJANEL CALEL, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : LEONZO PELICO TZUN, : Case No. 2023CA00050 : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2023 JCV 00124

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 2, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

KWASI O. BEDIAKO Address Unknown RETANIO AJ RUCKER Guatemala M W W Immigration Center 3150 Chester Avenue Cleveland, Ohio 44114 Stark County, Case No. 2023CA00050 2

Baldwin, J.

{¶1} The appellant, Ana Anjanel Calel, appeals the April 17, 2023, Judgment

Entry denying Special Immigrant Juvenile Status ("SIJS") to her minor child, L.A.P.A. The

appellee is Leonzo Pelico Tzun.

STATEMENT OF THE FACTS AND THE CASE

{¶2} L.A.P.A. was born on January 8, 2006. The appellant is L.A.P.A.'s biological

mother. The appellee is L.A.P.A.'s biological father. The appellant and L.A.P.A. have

resided in Stark County, Ohio, for more than one year, and the appellant has been

L.A.P.A.'s sole caretaker since entering the United States in 2017. Appellee has not seen

L.A.P.A. since birth and has not financially supported L.A.P.A. for over a year.

{¶3} On February 23, 2023, the appellant filed a complaint for legal custody of

L.A.P.A. and asked the trial court to make findings of fact to allow L.A.P.A. to petition the

federal government for status as a Special Immigrant Juvenile under 8 U.S.C.

1101(a)(27)(J).

{¶4} On March 29, 2023, the trial court granted custody of L.A.P.A. to the

appellant.

{¶5} On April 17, 2023, the trial court denied the appellant's Complaint for

Special Findings, finding they had not placed the child in the custody of an individual

appointed by the State and they had not shown it was against the child’s best interests to

return to his country of origin.

{¶6} The appellant filed a timely notice of appeal and herein raises the following

Assignments of Error: Stark County, Case No. 2023CA00050 3

{¶7} "I. WHETHER THE LOWER COURT, IMPROPERLY RELYING UPON

GONZALEZ V. RODRIGUEZ, 2018-OHIO-2410, 2018 OHIO APP. LEXIS 3607, 115

N.E.3D 719 (10TH APP. DIST., FRANKLIN COUNTY, JUNE 21, 2018), ABUSED ITS

DISCRETION BY REFUSING TO MAKE THE APPROPRIATE SPECIAL IMMIGRANT

JUVENILE STATUS FINDINGS AFTER COMMITTING THE MINOR CHILD TO THE

CUSTODY OF AN INDIVIDUAL APPOINTED BY THE STATE OF OHIO IN VIOLATION

OF §101(a)(27)(J) OF THE IMMIGRATION AND NATIONALITY ACT.”

{¶8} "II. WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY

FAILING TO MAKE THE SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS

REQUIRED UNDER THE ACT IN THE ABSENCE OF TESTIMONY AS TO ABUSE,

DANGERS IN THE MINOR'S COUNTRY OF ORIGIN, LACK OF SCHOOLING, OR

THREATS."

STANDARD OF REVIEW

{¶9} A SIJS determination, pursuant to 8 U.S.C. 1101(a)(27(J), "provides certain

alien minors with a special immigration classification that may lead to permanent

residency." Young Zheng v. Pogash, 416 F.Supp.2d 550, 552 (S.D.Tex.2006). In order to

qualify, "the juvenile must submit a petition to the United States Citizen and Immigration

Services ("USCIS") with a declaration from a juvenile court demonstrating that the juvenile

meets the statutory definition." Gonzalez v. Rodriguez, 10th Dist. Franklin No.17AP-136,

2018-Ohio-2410, 115 N.E.3d 718, ¶8.

{¶10} "To apply for [SIJS] with the USICS, the petitioner must first obtain the

following special findings from a juvenile court: (1) the child is dependent on a juvenile

court, or under the custody of…an individual… appointed by the court or State; (2) Stark County, Case No. 2023CA00050 4

reunification with one or both parents is not viable due to abuse, neglect, or abandonment;

and (3) returning the child to his or her country of origin would not be in the child's best

interest.” Matter of J.A.S., 5th Dist. Tuscarawas No. 2021 AP 12 033, 2022-Ohio-2508,

192 N.E.3d 1313, ¶15. These determinations must be made in accordance with State

law. 8 C.F.R. 204.11.

{¶11} The juvenile court's declaration must satisfy each requirement of 8 U.S.C.

1101(a)(27)(J) to "constitute a prima facie evidence of the juvenile's eligibility for SIJ

classification." Gonzalez at ¶9.

I.

{¶12} In the appellant's first Assignment of Error, the appellant argues the trial

court erred in finding the child was not placed into the custody of an individual appointed

by the State. We disagree.

{¶13} As noted above, the first prong of 8 U.S.C. 1101(a)(27)(J) requires the

juvenile court to find the juvenile dependent or the juvenile court has legally committed

the juvenile to, or placed in the custody of, an agency or department of a State, or an

individual or entity appointed by the juvenile court. 8 C.F.R. 204.11.

{¶14} In Gonzalez, the Tenth District Court of Appeals found that allocating

custody to the juvenile's natural mother was not the same as being placed under the

custody of an individual appointed by a state or juvenile court. Gonzalez at ¶12.

{¶15} We agree with the Tenth District's finding in Gonzalez. The trial court did

not appoint the appellant as the juvenile's custodian. Under Ohio law, a parent's right to

the custody of their children is "a constitutionally protected due process right [.]" In re

Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶11; citing Troxel v. Stark County, Case No. 2023CA00050 5

Granville, (2000), 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49. As such, a parent's

right to custody of their child arises from the operation of law, it does not originate with a

court appointment. See Dunn v. Marcum, 2nd Dist. Clark No. 08-CA-112, 2009-Ohio-3015

(An unmarried mother is the child’s legal custodian by operation of law); Fadi S.

Asbanyoli, Plaintiff-Appellant, v. Jennifer Haddadin, Defendant-Appellee., 10th Dist.

Franklin No. 23AP-163, 2024-Ohio-170, ¶13. (R.C. §3109.04 provides the court authority

to allocate parental rights and responsibilities between the parents). The trial court merely

designates a parent as the child’s legal custodian when a determination is appropriate,

as in the case sub judice. See R.C. §3109.04, R.C. §3109.042. Therefore, the trial court

did not abuse its discretion in finding the appellant was not appointed by the juvenile

court.

{¶16} Accordingly, the appellant's first Assignment of Error is overruled.

II.

{¶17} In the appellant's second Assignment of Error, the appellant argues the trial

court abused its discretion in failing to find that returning to his country of origin is not in

L.A.P.A.'s best interest. We disagree.

{¶18} The trial court is not required to specifically list or cite to each factor set forth

in determining the child's best interest, including those listed in R.C. §3109.04, or any

other relevant factor. Rickman v. Rickman, 5th Dist. Holmes No. 15CA014, 2016-Ohio-

132. A trial court needs only sufficient findings of fact and conclusions of law to

substantially comply with these statutes. Bruwier v. Bruwier, 5th Dist. Stark No.

2016CA00072, 2016-Ohio-7568. Stark County, Case No. 2023CA00050 6

{¶19} The appellant argues that because the trial court referred in its journal entry

that no testimony as to lack of schooling, abuse, threats, or dangers in the country of

origin, it abused its discretion in failing to find that it is not in L.A.P.A.'s best interest to

return. The appellant then made a general argument that sending the child back without

his mother would not be in the child's best interest.

{¶20} Upon a review of the record, the trial court listed factors it found relevant in

the determination not to make a factual finding that it is against L.A.P.A.'s best interest to

be sent back to his country of nationality or last habitual residence. The factors the

juvenile court found significant are relevant, and the trial court's decision was not arbitrary,

unreasonable, or unconscionable.

{¶21} Accordingly, the appellant's Second Assignment of Error is overruled.

CONCLUSION

{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Juvenile Division, is hereby, affirmed.

By: Baldwin, J.

Delaney, P.J. concur,

King, J. concurs separately. Stark County, Case No. 2023CA00050 7

King, J. concurs separately,

{¶ 23} I concur fully in the court’s judgment and opinion. I write separately to

address an issue inherent in petitioner’s claim; I have serious doubt that a state court can

be forced to comply with 8 U.S.C. 1101(a)(27)(J) (Section 287(g) of the Immigration and

Nationality Act). Recently, the Supreme Court addressed the limitations of federal

legislation requiring state courts to make certain determinations under the Tenth

Amendment’s anticommandeering principle, which are relevant here.

{¶ 24} In Haaland v. Brackeen, 599 U.S. 255, 273, 143 S.Ct. 1609, 216 L.Ed.2d

254 (2023), the Court first addressed a claim that the Indian Child Welfare Act (“ICWA”)

exceeded Congress’s power under Article I. Id. at 273. The Supreme Court observed that

the power to legislate with regard to Indian tribes was plenary. Id. Yet it also observed

that plenary did not mean it was power without limit. Id. at 276. The matter before us

arises out of Congress’s authority over immigration and naturalization, which the Court

has described as both broad and undoubted. Arizona v. United States, 567 U.S. 387, 394,

132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). As illustrated by Haaland, that is the beginning—

not the end—of the analysis.

{¶ 25} The Court recognized while the federal government’s powers under Article

I rarely touch on family law, it is not an area foreclosed to it under the Constitution.

Haaland at 277. Ultimately, the Court concluded Congress had the power to pass the

ICWA. Here we can assume without deciding that this aspect of the Immigration and

Nationality Act is within Congress’s power to enact. But see United States v. Jones, 109

U.S. 513, 520, 3 S.Ct. 346, 27 L.Ed. 1015 (1883) (stating state courts can adjudicate

federal immigration matters but only so long as the state first consented to it doing so.) Stark County, Case No. 2023CA00050 8

{¶ 26} The Court then turned to the anti-commandeering arguments before it; the

relevant aspect of its analysis had to do with its review of Printz v. United States, 521 U.S.

898, 906, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and the constitution’s interplay with

state judicial power. Haaland. at 288. As the Court observed, there is early precedent

supporting that the state courts have the power to adjudicate federal issues, especially

when considering that Congress was left with the option of foregoing entirely the creation

of inferior federal courts. Id. at 290-291. As a consequence, the Court held that "Congress

may impose ancillary recordkeeping requirements related to state-court proceedings

without violating the Tenth Amendment." Id. at 291. This is not the case in Haaland of

mere judicial recordkeeping.

{¶ 27} Although Haaland set a bright-line rule allowing state courts to be

conscripted into federal recordkeeping, the scope of a state court’s adjudicative

responsibilities under federal legislation was not addressed. In Printz, the Court observed

a previous unanswered question of whether States could be required, without its consent,

to enforce federal immigration laws. Printz at 906, citing Holmgren v. United States, 217

U.S. 509, 516–517, 30 S.Ct. 588, 54 L.Ed. 861 (1910). The Court went on to hold: "These

early laws establish, at most, that the Constitution was originally understood to permit

imposition of an obligation on state judges to enforce federal prescriptions, insofar as

those prescriptions related to matters appropriate for the judicial power." (Emphasis

added.) Id. at 907.

{¶ 28} Thus, the limitations, if any, that the Tenth Amendment place on federal

commandeering of state judicial systems, particularly for immigration matters, has not

been established. Nonetheless, if the situation here where analogous to the scheme of Stark County, Case No. 2023CA00050 9

42 U.S.C. 1983 where Congress provided state courts with the same scope of authority

as the federal courts, then the situation before us might not require comment. In that case,

there would a clear federal statute providing both federal and state court with the power

to hear certain controversies and resolve them entirely within the scope of its respective

judicial power.

{¶ 29} But here Congress appears to have established a mixed structure where

state courts exercise its judicial power in aid of federal administrative proceedings. Thus,

I question whether the federal scheme is commandeering state judicial officers in the aid

of officers of the federal executive branch. Printz makes clear that state executive officers

could not be commandeered this way; so, it would appear discordant for the Tenth

Amendment to allow judicial officers to be used as adjuncts for federal executive branch

officials. The question is all the more pertinent given that the question of consent raised

in Holmgren has apparently remained unanswered for over a hundred years.