O.C. v. Super. Ct. ( 2020 )

Filed 12/23/19; Modified and Certified for Publication 1/8/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
O.C., a Minor,
G058416
Petitioner,
(Super. Ct. No. 30-2019-01049051)
v.
OPINION
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
BLANCA ODILIA CARRILLO
GALLARDO, as Guardian, etc.,
Real Party in Interest.
Appeal from findings by the Superior Court of Orange County, David L.
Belz, Judge. Appeal treated as petition for writ of mandate. Petition granted.
Public Counsel, Mary Tanagho Ross, Lucero Chavez; Akin Gump Strauss
Hauer & Feld, Rex S. Heinke and Jessica M. Weisel for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
* * *
INTRODUCTION
Special immigrant juvenile findings (SIJ findings) based on state law are a
necessary first step under the federal immigration law that allows abandoned,
unaccompanied minors living in the United States to apply for status as permanent legal
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residents. (8 U.S.C. § 1101(a)(27)(J); Code Civ. Proc., § 155. ) In this case, O.C., a
14-year-old refugee from Guatemala, asked the superior court to make the required SIJ
findings based on California law. A mandatory Judicial Council form has been created
for this purpose. Items 4(b), 5, and 6 require the superior court to detail its findings,
citing California law. The superior court failed to cite California statutory or case law in
items 4(b) and 6, and did not check the box in item 5 to indicate O.C. cannot reunify with
her mother, who is deceased.
We treat the notice of appeal as a petition for writ of mandate. We grant
the petition and order the probate court to vacate the August 1, 2019 SIJ findings and
issue new findings in items 4(b) and 6 of the mandatory Judicial Council form
(FL-357/GC-224/JV-357) based on state law, as proposed by O.C. and in compliance
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The federal government may grant special immigrant juvenile status to a minor “who
has been declared dependent [in] a juvenile court located in the United States or whom
such a court has legally committed to, or placed under the custody of, an agency or
department of a State, or an individual or entity appointed by a State or juvenile court
located in the United States, and whose reunification with 1 or both of the immigrant’s
parents is not viable due to abuse, neglect, abandonment, or a similar basis found under
State law” provided “it has been determined in administrative or judicial proceedings that
it would not be in the [minor’s] best interest to be returned to the [minor’s] . . . previous
country.” (8 U.S.C. § 1101(a)(27)(J)(i), (ii).)
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All undesignated statutory citations refer to the Code of Civil Procedure.
2
with title 8 United States Code section 1101(a)(27)(J), 8 Code of Federal Regulations
part 204.11 (2019), and Code of Civil Procedure section 155.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
O.C., now 14 years old, was born in Jutiapa, Guatemala. O.C. was 12 years
old when her mother died. O.C.’s father became ill and depressed, and failed to provide
O.C. with the care she needed. In July 2017, O.C. and her cousins left Guatemala and
traveled through Mexico until they reached the United States. At the U.S.-Mexico
border, O.C. and her cousins were detained by immigration officials; they were released
to the care of Blanca Odilia Carrillo Gallardo, O.C.’s aunt and the mother of her cousins.
Gallardo had moved to the United States in about 2008, and sent money back to O.C.’s
mother in Guatemala to care for her children.
O.C. has lived in Gallardo’s home since September 2018. O.C. is attending
school and learning English. Gallardo provides O.C. with everything she needs and treats
her like a daughter. O.C.’s father does not send any money from Guatemala for her
expenses.
O.C. has no one in Guatemala to care for her. Local gangs in O.C.’s
hometown assault and steal from community members; the police are unable to control
the gang members. Federal travel advisories support O.C.’s fear that gang members will
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hurt her if she returns to Guatemala.
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Travel advisories included in the appellate record describe the type and volume of
crime committed in Guatemala and recommend American citizens reconsider traveling
there. (See U.S. Dept. of State, Guatemala 2018 Crime and Safety Report

archived at: [as of Dec. 20, 2019]; U.S. Dept. of State,
Bureau of Consular Affairs, Guatemala Travel Advisory
archived at: [as of Dec. 20,
2019].) According to these documents, “[v]iolent crime, such as armed robbery and
murder, is common [throughout Guatemala]. Gang activity, such as extortion, violent
3
On February 4, 2019, using mandatory Judicial Council forms,
O.C. petitioned the probate court to appoint Gallardo as her guardian and to make SIJ
findings. O.C. included declarations in support of both petitions. No objections were
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received. Following a hearing, the probate court granted the petition to appoint Gallardo
as O.C.’s guardian and approved the petition for SIJ findings.
As to the SIJ findings, the minute order reads: “The Court finds that:
(1) The minor is a dependent upon the juvenile court, within the meaning of 8 U.S.C.
Section 1101(a)(27)(J) and 8 C.F.R. Section 204.11(a), (d)(2)(i); (2) It is not in the best
interest of the minor to return to the minor’s or the minor’s parents’ previous country of
nationality or country of last habitual residence, within the meaning of 8 U.S.C. Section
1101(a)(27)(J) and 8 C.F.R. Section 204.11(d)(2)(iii); and (3) Reunification with one or
both of the minor’s parents is not viable due to abuse, neglect or abandonment, within the
meaning of 8 U.S.C. Section 1101(a)(27)(J) and 8 C.F.R. Section 204.11(d)(2)(iii).”
O.C.’s counsel submitted proposed SIJ findings on the mandatory Judicial
Council form (FL-357/GC-224/JV-357) for that purpose. The probate clerk advised
counsel the proposed findings could not be processed because they did not match the
findings in the probate court’s minute order or the language of the petition.
O.C.’s counsel submitted revised SIJ findings, again citing California law.
The probate court issued its findings on the Judicial Council form, but as factual bases for
its findings in items 4(b) and 6, it cited only the federal statute and federal code of
regulations, not California law.
O.C.’s counsel then submitted amended SIJ findings and filed a
memorandum of points and authorities explaining why the state law references suggested
street crime, and narcotics trafficking, is widespread. Local police may lack the
resources to respond effectively to serious criminal incidents.”
4
O.C.’s father waived the right to notice for both the guardianship and SIJ findings
petitions.
4
by O.C.’s counsel, but not included in the probate court’s findings, was necessary. The
probate clerk rejected the proposed amended findings: “We are unable to process the
attached papers for the reasons indicated below: Order already on file 08/01/2019.
Order can not [sic] be amended to include codes that were not in the petition. Factual
findings are per minute order.”
O.C. filed a notice of appeal from the probate court’s SIJ findings. To
ensure O.C. obtains appellate review of the probate court’s findings, we exercise our
discretion to treat the appeal as a petition for writ of mandate. (Olson v. Cory (1983) 35
Cal. 3d 390, 400-401; see Eddie E. v. Superior Court (2013) 223 Cal. App. 4th 622, 628
(Eddie E.) [petition for writ relief is the remedy for a superior court’s denial of a minor
immigrant’s request for SIJ findings].)
DISCUSSION
Our analysis involves the application of law to undisputed facts;
accordingly, our review is de novo. (Leslie H. v. Superior Court (2014) 224
Cal. App. 4th 340, 347 (Leslie H.).)
Title 8 United States Code section 1101(a)(27)(J) “is a form of immigration
relief that affords undocumented children a pathway to lawful permanent residency and
citizenship [by employing] ‘a unique hybrid procedure that directs the collaboration of
state and federal systems.’” (In re Marisol N.H. (2014) 979 N.Y.S.2d 643, 645.) As this
court has observed, the specified procedure does not permit state courts to interpret or
apply federal law or “determine worthy candidates for citizenship, but simply to identify
abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify
with a parent or be safely returned in their best interests to their home country.”
(Leslie H., supra, 224 Cal.App.4th at p. 351.) State courts are “‘called upon to
determine’ discrete factual issues, including ‘whether, under state law, the juvenile is
under the age of 21, unmarried, dependent upon the court through an order of placement
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or other court order, whether reunification with one or both of the juvenile’s parents is
not possible due to abuse, neglect, or abandonment of the child, and whether it would be
contrary to the juvenile’s best interest to be returned to his or her previous country of
nationality.’” (Ibid., italics added.)
These findings must be made with reference to California law. (8 U.S.C.
5
§ 1101(a)(27)(J); 8 C.F.R. § 204.11; Code Civ. Proc., § 155, subd. (a)(1).) Moreover, if
substantial evidence supports the requested SIJ findings, the issuance of the findings is
mandatory. (§ 155, subd. (b)(1).)
Although title 8 United States Code section 1101(a)(27)(J) is worded in
terms of a state “juvenile court” having jurisdiction to make the requisite findings under
state law, the relevant federal regulation defines “juvenile court” as “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).) Section 155, which
codified the holdings in a number of Court of Appeal decisions, is in accord.
Section 155, subdivision (a)(1) provides that jurisdiction “to make judicial determinations
regarding the custody and care of children within the meaning of the federal Immigration
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Federal and state practice guides reiterate and reinforce the need for state judges to
make their findings based on state law. A United States Citizenship and Immigration
Services (USCIS) publication prepared for use by juvenile courts nationwide advises,
“Juvenile courts issue orders that help determine a child’s eligibility for SIJ status. A
child cannot apply to USCIS for SIJ status without an order from a juvenile court. . . .
The role of the court is to make factual findings based on state law about the abuse,
neglect, or abandonment; family reunification; and best interests of the child.” (Special
Immigrant Juvenile Status: Information for Juvenile Courts, italics added
archived at: [as of Dec. 20,
2019].) That same publication reminds juvenile courts that while they should be familiar
with current immigration law, “[a]ll findings must be based on state law.” (Ibid.)
A September 30, 2014 memorandum from the California Judicial Council to presiding
judges and chief executive officers of California’s superior courts addresses section 155
and provides in relevant part: “All findings are to be based on California state law.”
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and Nationality Act (8 U.S.C. Sec. 1101 et seq. and 8 C.F.R. Sec. 204.11)” rests with the
superior court, “which includes, but is not limited to, the juvenile, probate, and family
court[s].”
In Eddie E., supra, 223 Cal. App. 4th 622—a decision that predates
section 155—this court explained that under the federal statute “a court must find either
that an immigrant has been (a) ‘declared dependent on a juvenile court’ or (b) ‘legally
committed to, or placed under the custody of’ a state agency or department or ‘an
individual or entity appointed by a State or juvenile court located in the United States.’
[Citation.] Once either of those findings is made, the court must then ‘“ma[k]e two
additional findings: (1) that reunification with one or both of the immigrant’s parents is
not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
and (2) 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.”’”
(Eddie E., supra, at pp. 627-628, third italics added; see B.F. v. Superior Court (2012)
207 Cal. App. 4th 621, 630 [“the superior court sitting as a probate court has the authority
and duty to make findings within the meaning of section 1101(a)(27)(J) [of title 8 of the
United States Code] and 8 Code of Federal Regulations part 204.11”].)
The requisite factual findings “may be made at any point in a proceeding
regardless of the division of the superior court or type of proceeding.” (§ 155,
subd. (a)(2).) Three findings are required (id., subd. (b)(1)(A)-(C)); additional findings
may be made “if requested by a party” (id., subd. (b)(2).) The threshold finding for a
superior court is that the immigrant child was either declared a dependent of the court or
placed under the custody of a court-appointed guardian. (Id., subd. (b)(1)(A)(i), (ii).) In
making this finding, the superior court must indicate the date on which the dependency or
placement began. (Id., subd. (b)(1)(A)(ii).) The second required finding is that the
immigrant child cannot reunify with one or both parents “because of abuse, neglect,
abandonment, or a similar basis pursuant to California law.” (Id., subd. (b)(1)(B).) The
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superior court’s findings must “indicate the date on which reunification was determined
not to be viable.” (Ibid.) Finally, the superior court must find “it is not in the best
interest of the child to be returned to child’s . . . previous country.” (Id., subd. (b)(1)(C).)
California superior courts must issue their findings on a Judicial Council
form created for this purpose. Item 4(b) on the form applies when the immigrant child is
not a dependent of the juvenile court, but has come within the superior court’s
jurisdiction by other means, e.g., delinquency or guardianship. There, the superior court
must include citations to the applicable state statutory or decisional authority (e.g.,
Welfare and Institutions Code, Probate Code, or Family Code) upon which the threshold
custody or commitment order is based. (§ 155, subd. (b)(1)(A)(i), (ii).) In item 5 on the
form, the superior court must identify whether state court jurisdiction was obtained as the
result of “abuse, neglect, abandonment, or a similar basis pursuant to California law.”
(Id., subd. (b)(1)(B).) The superior court’s findings also must “indicate the date on which
reunification was determined not to be viable.” (Ibid.) Finally, item 6 on the form
requires the superior court to make findings as to why it is not in the child’s best interest
to be returned to his or her country of nationality or last habitual residence. (Id.,
subd. (b)(1)(C).)
O.C. submitted proposed findings that complied with federal and state law.
It appears the probate court never reviewed O.C.’s proposed findings, however. The
probate court issued no minute orders concerning O.C.’s proposed language. Instead, the
proposed findings were rejected for “processing” by a probate clerk, whose stated reasons
for the rejections had no basis in law.
Ignoring O.C.’s proposed language, the probate court’s findings in
item 4(b) of the Judicial Council form cited only federal law. The probate court
appropriately relied on state statutes and an appellate decision to support its findings in
item 5 as to O.C.’s father and deceased mother, but did not check the box referencing
mother. The probate court also failed to cite any state authority to support the findings
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detailed in item 6. The findings in items 4(b) and 6 are insufficient under federal and
state law; the failure to check the box in item 5 appears to be an oversight.
The stated purpose for SIJ findings is to enable an immigrant child to
petition the USCIS for SIJ status. (§ 155, subd. (a)(1).) The failure to issue the
SIJ findings under state law prejudices O.C.’s ability to seek SIJ status from USCIS.
Without compliant findings, “no youth can apply for [SIJ status].” (Note, Fear and
Failing in Family Court: Special Immigrant Juvenile Status and the State Court
Problem, 21 Cardozo J.L. & Gender 201, 214.) Indeed, SIJ status has been denied due to
the failure of other state courts to specify that their SIJ findings were based on state law.
(See Matter of A-A-M-R (Jan. 31, 2019) Admin. Appeals Off. No. 01949751, at p. 4 [“For
SIJ classification, the record must demonstrate that the court made a legal rather than
solely factual determination on the viability of parental reunification because
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section 10l(a)(27)(J)(i) of the Act requires the ruling to be made ‘under State law’”];
Matter of O-T-A (Aug. 16, 2017) Admin. Appeals Off., No. 00214172, at p. 3 [“Because
the order and supporting evidence contain no reference to any state law under which the
reunification determination was made, the order lacks a qualifying determination that
parental reunification is not viable, as section 101 (a)(27)(J)(i) of the Act requires [and]
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the Petitioner is ineligible for SIJ classification”].)
For this reason, the probate court must issue findings based on state law.
6
archived at: [as of Dec. 20, 2019]
7
archived at: [as of Dec. 20, 2019]
9
DISPOSITION
Let a writ of mandate issue directing respondent court to vacate the SIJ
findings entered on August 1, 2019. Within 10 days of this decision becoming final, O.C.
may submit proposed findings for items 4(b), 5, and 6 on the Judicial Council form.
DUNNING, J.*
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
* Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Filed 1/8/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
O.C., a Minor,
G058416
Petitioner,
(Super. Ct. No. 30-2019-01049051)
v.
ORDER MODIFYING OPINION
THE SUPERIOR COURT OF ORANGE AND GRANTING REQUEST FOR
COUNTY, PUBLICATION; NO CHANGE IN
JUDGMENT
Respondent;
BLANCA ODILIA CARRILLO
GALLARDO, as Guardian, etc.,
Real Party in Interest.
It is ordered that our opinion filed on December 23, 2019, be modified as follows:
On page 4, the first sentence of the last paragraph that begins “O.C.’s counsel then
submitted,” and continues onto page 5, the word “was” is changed to “were” so the
sentence reads:
O.C.’s counsel then submitted amended SIJ findings
and filed a memorandum of points and authorities explaining
why the state law references suggested by O.C.’s counsel, but
not included in the probate court’s findings, were necessary.
This modification does not result in a change in the judgment.
Petitioner has requested that our opinion be certified for publication. It appears
that our opinion meets the standards set forth in California Rules of Court, rule
8.1105(c)(1) and (6). The request is GRANTED. The opinion is ordered published in the
Official Reports.
DUNNING, J.*
WE CONCUR:
O’LEARY, ACTING P. J.
GOETHALS, J.
* Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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