Ribeiro, G. v. Sousa, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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