Ribeiro, G. v. Sousa, M.

• Court: Superior Court of Pennsylvania
• Decided: August 1, 2023
• Docket: 2518 EDA 2022
• Status: Unpublished

Opinion

J-S03017-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

GERISKA THAMARA RIBEIRO ARRAIS : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MARCONIO SALES SOUSA : No. 2518 EDA 2022

Appeal from the Order Entered September 7, 2022 In the Court of Common Pleas of Chester County Civil Division at No(s): 2022-04169-CU

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

CONCURRING STATEMENT BY SULLIVAN, J.: FILED AUGUST 1, 2023

The learned majority thoroughly and persuasively explains its holding

that the trial court abused its discretion by refusing to consider a request for

findings related to the subject child’s status as a special immigrant juvenile

(“SIJ”). This Court’s precedent compels me to agree that the trial court erred

in suggesting that it lacked jurisdiction to make such findings. See Orozco

v. Tecu, 284 A.3d 474, 479 (Pa. Super. 2022). However, I write separately

based on my view that the SIJ statute, 8 U.S.C.A. § 1101(a)(27)(J), presents

unique problems, which, without further guidance from our Supreme Court

and General Assembly, will continue to challenge our orphans’, juvenile, and

family courts.

The SIJ statute and the implementing regulations are remarkable insofar

as they enlist state courts as part of the immigration process and delegate to

those courts’ findings that, inter alia: reunification with one or both of the J-S03017-23

child’s parents is not viable due to abuse, neglect, or abandonment and it

would not be in the child’s best interests to return to a foreign country of origin

or last habitual residence. See 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R.

§ 204.11(b)-(c). Although a state court does not make an ultimate

immigration decision, state courts are an integral part of the SIJ status

proceedings. See Orozco, 284 A.3d at 477. This hybrid approach of

engrafting federal immigration law unto state law rests on a presumption that

state courts have special competence when addressing abandonment,

neglect, and abuse and determining a child’s best interests. See In re

J.J.X.C., 734 S.E.2d 120, 124 (Ga. Ct. App. 2012).

Pennsylvania courts have only recently addressed the SIJ statute in

published decisions in Orozco and Velasquez v. Miranda, --- A.3d ---, 2023

PA Super 111, 2023 WL 4069151 (Pa. Super. 2023).1 The SIJ statute is not

new, however, and other state courts’ interpretations and applications of the

statute have resulted in inconsistent decisions.2 ____________________________________________

1A petition for reargument in Velazquez is currently pending before this Court.

2 Congress enacted the first SIJ statute in 1990 and amended it in 1991, 1994,

1998, and 2005. The earlier iterations of the statute appear to have been limited to cases where a child’s parents brought a child to the United States, but the child became eligible for long-term foster care. See Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221-22 (3d Cir. 2003) (noting that the original SIJ statute provided an alternative to deporting a child along with abusive parents or deporting a child to parents who abandoned the child once in the United States). Congress amended the statute in 2008 to its current form. (Footnote Continued Next Page)

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Initially, interpreting the SIJ statute as requiring a state court to make

certain findings is problematic. The SIJ statute itself contains no language

that mandates a state court make SIJ findings, see Canales v. Torres

Orellana, 800 S.E.2d 208, 217 (Va. Ct. App. 2017), nor could the federal SIJ

statute and associated regulations so command without implicating the

principles of federalism and the Tenth Amendment. Cf. MCI WorldCom, Inc.

v. Pennsylvania Pub. Util. Comm'n, 844 A.2d 1239, 1251 (Pa. 2004)

(noting that “The Tenth Amendment prohibits Congress from requiring states

to administer federal programs against their will[,]” but a “[f]ederal regulation

does not commandeer a state’s legislative power or violate the Tenth

Amendment as long as the state is given a choice regarding whether or not to

enforce the regulation”); accord de Rubio v. Rubio Herrera, 541 S.W.3d

564, 573 n.9 (Mo. Ct. App. 2017).

Next, no settled interpretation or application of the SIJ statute has

developed among the other states, and there is no unified body of law for

considering what evidence will be sufficient to require SIJ findings. ____________________________________________

Commentators have noted the striking variance among the state courts’ interpretations and applications of the SIJ statute. See, e.g., Richard F. Storrow, Unaccompanied Minors at the U.S.-Mexico Border: The Shifting Sands of Special Immigrant Juvenile Status, 33 Geo. Immigr. L.J. 1, 20-29 (2018) (discussing state court decisions); Gregory E. Catangay, Abandoning the Status Quo: Towards Uniform Application of Special Immigrant Juvenile Status, 20 U.C. Davis J. Juv. L. & Pol’y 39, 73-74 (2016) (arguing that the variances in state law undermines the intent of the SIJ statute and that Congress should remove the state court requirements from the SIJ and keep the program within the purview of the federal system).

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Pennsylvania has only recently begun to take first steps into this area. See

Velasquez, 2023 WL 4069151, at *8 (holding that a child did not meet the

statutory definition of an SIJ when the child resided with one parent in the

United States; the child was not adjudicated dependent or under the custody

of a state agency, entity, or individual appointed by a state court; the trial

court’s grant of sole legal and physical custody of the child to the mother was

not an appointment of a custodian for the child). 3 I acknowledge that our

family, juvenile, and orphans’ courts have unique competence to determine

the best interests of a child, particularly when a parent and the child have a

significant connection to Pennsylvania and substantial evidence exists in

Pennsylvania. Moreover, findings of abuse, abandonment and neglect under

our law and SIJ findings may overlap. However, our courts will face obvious

practical limitations because substantial evidence is or may not be readily

available in Pennsylvania and, as here, the court may have to determine

whether past abuse, neglect, or abandonment occurred in the foreign country

and whether it is not in a child’s best interest to return to that county.

Furthermore, the trial court in this case will not have the benefit of adversarial

testing of the evidence or legal theories.4 Thus, without settled procedures ____________________________________________

3 Other state courts interpreting the SIJ statute have reached contrary conclusions. See, e.g., De Guardado v. Guardado Menjivar, 901 N.W.2d 243, 248 (Minn. Ct. App. 2017).

4 Here, as in Orozco, the moving party filed an unopposed petition for custody

of child against the child’s other parent who resided in a different country and did not participate at the hearing.

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for bringing and considering a request for SIJ findings, it is likely that our

courts will face similar confusion and produce similar inconsistent results as

experienced in the state courts.

Lastly, I would note that other states have enacted legislation

addressing SIJ findings.5 While I concur with today’s narrow decision based

on its application of Orozco, I believe that the issues concerning the SIJ

statute demand attention from our General Assembly and the rulemaking

authority of our Supreme Court.

Thus, I respectfully concur in the result.

Judge Bowes joins this concurring statement.

____________________________________________

5 See, e.g., Cal. Civ. Proc. Code § 155; Colo. Rev. Stat. Ann. § 14-10-123

(1.5); Conn. Gen. Stat. Ann. § 45a-608n(c); 705 Ill. Comp. Stat. Ann. 405/1- 4.3(a); Me. Rev. Stat. tit. 22, § 4099-I 3.; Minn. Stat. Ann. § 257D.01 subd.4; Neb. Rev. Stat. Ann. § 43-3806; Nev. Rev. Stat. Ann. § 3.2203(1); Wash. Rev. Code Ann. § 13.90.901(1)-(2).

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