Ramirez v. Menjivar

Nevada Supreme Court·Decided December 27, 2018·No. 74030·Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

CLAUDIA YESENIA ALVARADO No. 74030 RAMIREZ, Appellant, vs.

FILED

JULIO MAURICIO MENJIVAR, DEC 2 7 2018 Respondent. ELIZABETH A. BROWN CLERK_OF S, UPFtEME COURT ey By T:71

DEPUTY

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court order in a child custody matter. Eighth Judicial District Court, Family Court Division, Clark County; Cynthia Dianne Steel, Judge.

Appellant Claudia Yesenia Alvarado Ramirez and her daughter, Wendy, fled El Salvador and arrived in Las Vegas, Nevada, in July 2016. Approximately nine months later, on or about March 31, 2017, Ramirez filed a complaint for custody against respondent Julio Mauricio Menjivar, Wendy's father, to whom Ramirez was never married. At the time of filing, Wendy was 17. Menjivar did not file an answer to the complaint, and thus, the district court entered an order of default on May 24, 2017. Thereafter, on June 15, 2017, Ramirez filed a motion for findings on the issue of Wendy's special immigrant juvenile (SIJ) status, citing 8 U.S.C. § 1101(a)(27)(J), for support (referred to as "special" or "SIJ" findings). In the motion, Ramirez argued that the district court qualifies as a Juvenile court" for purposes of the federal SIJ statute.

The district court held a hearing on August 10, 2017, to which Menjivar also failed to appear, so the court issued an order with default findings. The order granted joint legal custody, with Ramirez having sole

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MUM tg-gungs9 physical custody of the parties' daughter. However, the district court declined to make the requested SIJ findings, reasoning that it could not take judicial notice of the complexities of life in El Salvador, and it otherwise lacked a sufficient basis upon which to make the requested factual findings. Instead, the district court attached Wendy's declaration in support of the motion for SIJ findings to the order "for the review of interested parties." Whether the district court had jurisdiction to make the requested findings Ramirez argues that the district court qualifies as a "juvenile court" that could make the requested findings under 8 U.S.C. § 1101(a)(27)(J) as it undertakes jurisdiction in cases "such as custody, divorce, guardianship, adoption, dependency, and termination of parental rights." Ramirez argues that this is the case even absent the enactment of Assembly Bill 142, 2 which explicitly gave district courts the jurisdiction to make SIJ findings. Ramirez contends that the district court is a "juvenile court" for purposes of the SIJ program because it is defined as a court that has "jurisdiction under State law to make judicial determinations about the custody and care of juveniles." Similarly, the Clinic argues that Assembly

"After briefing was completed, this court filed an order inviting amicus curiae participation in the case. Ramirez v. Menjivar, Docket No. 74030 (Order Inviting Participation by Amici Curiae, July 11, 2018). Amicus curiae the UNLV Immigration Clinic (the Clinic) subsequently filed an amicus curiae brief, which we address as necessary in this disposition.

2 The Legislature passed Assembly Bill 142 on May 30, 2017, and amended NRS Chapter 3, resulting in NRS 3.2203(1). See 2017 Stat. Nev., Ch. 212, § 1, at 1146-47. This amendment became effective on October 1, 2017. See NRS 3.2203. Because NRS 3.2203 explicitly grants the district court jurisdiction to make findings for purposes of the SIJ program, this decision applies only to cases before NRS 3.2203's effective date.

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Bill 142 merely clarified the confusion surrounding the SIJ program, but "its enactment does not suggest that jurisdiction did not already exist."

Issues regarding subject matter jurisdiction are reviewed de novo. See Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009); Labor Comm'r of Nev. ix Littlefield, 123 Nev. 35, 39, 153 P.3d 26, 28 (2007). Applying for special immigrant juvenile (SIJ) status entails a multistep process involving both state courts and federal agencies. 8 U.S.C. § 1101(a)(27)(J). First, the child must obtain the following SIJ findings from a juvenile court":

(1) the child is dependent on a juvenile court or, under the custody of an agency or department of a State, or an individual or entity appointed by the court or State; (2) 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.

Guardianship of Penate, 76 N.E.3d 960, 965-66 (Mass. 2017) (citing 8 U.S.C. § 1101(a)(27)(J)). For purposes of 8 U.S.C. § 1101(a)(27)(J), a juvenile court is "a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles." 8 C.F.R. § 204.11(a). The USCIS Policy Manual notes that the term "juvenile court" may be ambiguous because different states have different names for courts that would qualify under 8 C.F.R. § 204.11(A). See 6 U.S. Citizenship & Immigr. Servs., Dep't of Homeland Sec., Policy Manual pt. J, ch. 3(A)(1), https://www.uscis.gov/policymanual/HTML/PolicyManual —Volume6— PartJ—Chapter3.html (last visited on December 17, 2018), [hereinafter USCIS Policy Manual].

Second, the immigrant child must file a petition, which includes the SIJ findings made by the "juvenile court," with USCIS. 8 C.F.R. § SUPREME COURT OF NEVADA

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(0) 1447A 204.11. In addition to the SIJ findings, a "special immigrant" must be under age 21 and unmarried to qualify for SIJ status. 8 C.F.R. § 204.11(c). Under this second step, USCIS conducts a plenary review of the petition, and ultimately determines whether to grant SIJ status. Id.; see also USCIS Policy Manual pt. J, ch. 3(A)-(B)(1) Thus, the threshold issue is whether the district court below was a "juvenile court" within the meaning of the statute, such that it had jurisdiction to make SIJ findings.

Under the Nevada Constitution, district courts have original jurisdiction in all cases excluded by law from the original jurisdiction of justice courts. Nev. Const. art. 6, § 6(1). The family court was constitutionally established as a division of the district court. Nev. Const. art. 6, § 6(2)(b). Additionally, as a division of the district court, a judge seated in family court is "a district court judge who retains his or her judicial powers derived from the Constitution to dispose of justiciable controversies." Landreth v. Malik, 127 Nev. 175, 187-88, 251 P.3d 163, 171 (2011). Under N.R.S. 3.223, the family court division has original and exclusive jurisdiction over matters affecting the familial unit including divorce, custody, marriage contracts, community and separate property, child support, parental rights, guardianship, and adoption. N.R.S. 3.223. Nevertheless, as clarified by Landreth, the family court's jurisdiction also extends beyond those matters explicitly outlined in NRS 3.223. 127 Nev. 175, 187-88, 251 P.3d 163, 171 (2011).

Accordingly, the district court had jurisdiction to make the type of findings the USCIS may utilize in determining whether to grant SIJ status, and thus, the district court also constitutes a "juvenile court" for purposes of the SIJ program. See 8 C.F.R. § 204.11. However, as described

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