Simbaina v. Bunay

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 01092
September Term, 2014
MARIA SIMBAINA
v.
SEGUNDO BUNAY
Zarnoch,
Arthur,
Sonner, Andrew L.
(Retired, Specially Assigned),
JJ.
Opinion by Zarnoch, J.
Filed: February 3, 2015
This case raises the question of whether, in an ordinary custody proceeding, a circuit
court must enter factual findings under 8 U.S.C. § 1101(a)(27)(J) regarding a child’s
potential status as a “special immigrant juvenile” (SIJ), if the issue is properly before the
court. We answer this question in the affirmative and remand this case to the Circuit Court
for Baltimore City to make the required findings under federal law.
FACTS AND LEGAL PROCEEDINGS1
Appellant, Maria Simbaina and Appellee, Segundo Bunay were married in a civil
ceremony in Washington D.C. on March 24, 2010, after being together since 1998. Both
Simbaina and Bunay are residents of Baltimore, Maryland. The parties have three children,
Nathaly, Ingrid and Jocelyn. Nathaly was born on June 1, 2000 and is a citizen of Ecuador,
where she resided with her maternal grandparents until 2010. She first came to the United
States in May 2010 and has resided with Simbaina since that time. Nathaly is presently an
undocumented alien. Bunay came to the United States when Nathaly was three months old
and has not had a consistent relationship with her. Since Nathaly arrived in the United
States, Simbaina has been her sole caretaker.
Simbaina and Bunay separated on April 17, 2012. On February 13, 2013, Bunay
filed a Complaint for Custody. In response, Simbaina filed an Answer and Counter-
Complaint for Divorce and Custody or, in the Alternative, Limited Divorce on March 21,
2013. Simbaina then amended her complaint on November 7, 2013, and Bunay answered
on January 7, 2014. In both her original and amended complaints, Simbaina requested that
1
Bunay did not file a brief with this Court so our factual discussion was gathered
from Simbaina’s brief and the information contained in the record in the circuit court.
the court “enter an Order finding that it is not in Nathaly’s best interest to return to her
home country and reunification with [Bunay] is not viable due to abuse[,] neglect[,] or
abandonment.”
A hearing was held in the Circuit Court for Baltimore City on April 22, 2014.
During the hearing, the court heard from both Simbaina and a corroborating witness, Maria
Loja, who testified that Simbaina and Bunay had been separated for two years and that
there was no hope of reconciliation between the pair. At the hearing, the custody of the
couple’s three minor children was addressed. Bunay agreed that Simbaina could have full
legal and physical custody of Nathaly, but requested joint custody of Ingrid and Jocelyn.
During this hearing, Simbaina presented a consent draft custody order to the court, which
“included Special Immigrant Juvenile findings and awarded [Simbaina] physical and legal
custody of Nathaly.” Simbaina wanted the court to make factual findings so that Nathaly
could remain in the United States as a permanent resident under SIJ status, which requires
an order from the circuit court.2 The circuit court explained that any immigration issues
would not be discussed because they were not properly pled. Additionally, no testimony
2
According to Simbaina’s brief, Nathaly is currently in deportation proceedings. At
oral argument, in response to a question from this Court, Simbaina’s counsel further
explained that these proceedings have been delayed pending our decision in this case. On
November 20, 2014, President Obama addressed the Nation on his Immigration
Accountability Executive actions. The President’s actions will allow undocumented
immigrants the ability to remain in the United States without fear of deportation, focusing
efforts on deporting “[c]riminals, not children.” President Obama’s recent actions,
assuming they apply to an immigrant in Nathaly’s situation, do not moot this case. These
executive actions do not change the implications or benefits of SIJ status, which offers
minors the ability to file for permanent residence, not just to avoid deportation.
2
was heard on Simbaina’s request because, as the court said, “there is a pleading that needs
to be filed with the court concerning any immigration issues.” The circuit judge suggested
that this pleading was a “petition for some type of guardianship.”
On April 24, 2014, the circuit court entered a judgment granting an absolute divorce,
but did not include any factual findings on the SIJ status of Nathaly. On May 2, 2014,
Simbaina filed a Motion to Alter or Amend and a Motion for New Trial, requesting that
the circuit court amend its judgment of absolute divorce to include the requested SIJ factual
findings. On July 2, 2014, both of these motions were denied without a hearing. Simbaina
timely noted her appeal.
QUESTIONS PRESENTED3
Appellant presents three questions for our review, which we have consolidated into
the following question:
Did the circuit court err when it failed to make Special Immigrant Juvenile
factual findings during the divorce and custody proceedings?
3
Simbaina’s original questions as presented to this Court were:
1. Did the trial judge err as a matter of law in refusing to enter special
immigrant juvenile findings as part of the custody determination?
2. Is the trial judge’s refusal to make special immigrant juvenile
findings inconsistent with Congressional intent?
3. Did the trial judge abuse her discretion in denying the Motion to
Alter or Amend and the Motion for New Trial without providing any basis
for the denials?
3
Our answer is yes. Thus, we reverse and remand for a hearing and for the entry of factual
findings related to Nathaly’s SIJ status.
STANDARD OF REVIEW
Typically, we review a circuit court’s decision to deny a motion for a new trial under
an abuse of discretion standard. See Mason v. Lynch, 151 Md. App. 17, 28 (2003), aff’d,
388 Md. 37 (2005) (“It is our job to review a trial court’s denial of a motion for new trial
using an abuse of discretion standard.”). However, while the circuit court “is granted broad
discretion in granting or denying equitable relief, where an order involves an interpretation
and application of Maryland constitutional, statutory or case law, our Court must determine
whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of
review.” Schisler v. State, 394 Md. 519, 535 (2006) (Citations omitted). This case
primarily involves an interpretation of State law and a federal statute and regulations, so
we must decide if the circuit court’s decision denying the request for SIJ factual findings
was “legally correct.” See Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 (2004).
DISCUSSION
I. History and Interpretation of SIJ Statute
The Immigration and Nationality Act of 1990, which established the initial
eligibility requirements for SIJ status, was enacted “to protect abused, neglected, or
abandoned children who, with their families, illegally entered the United States.” Yeboah
v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003). The law “provided an alternative
to deportation for these children” by allowing them to seek SIJ status. Id. The statute
creates “a special circumstance where a State juvenile court is charged with addressing an
4
issue relevant only to federal immigration law.” H.S.P. v. J.K., 87 A.3d 255, 259 (N.J.
Super. Ct. App. Div. 2014) (Citations and quotations omitted). To “be eligible for SIJ
classification, 8 U.S.C. § 1101(a)(27)(J) requires that a State court make an SIJ-predicate
order.” Perez-Olano v. Gonzalez, 248 F.R.D. 248, 253 (C.D. Cal. 2008).
The initial provisions were amended in 1997 to curb abuse “by juveniles entering
the United States as visiting students.” Yeboah, 345 F.3d at 221. The 1997 amendments
“modified the [SIJ] definition to include an immigrant whom a juvenile court4 had legally
committed to, or placed under the custody of, an agency or department of a State, and added
the requirement that the finding of eligibility for long-term foster care be due to abuse,
neglect, or abandonment.” Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 107 (N.Y. App.
Div. 2013) (Quotations omitted).
The requirements were further amended in 2008 to expand “eligibility to include
those immigrant children who had been placed in the custody of an individual or entity
appointed by a state or juvenile court.” Id. at 108. (Citations omitted). A precondition of
long-term foster care was removed and replaced with the “requirement that the juvenile
court find that 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.” Id. (Quotations
omitted).
The current law still requires that the immigrant child obtain “an order from a state
juvenile court making findings that the juvenile satisfies certain criteria.” Id. at 107
4
As discussed below, the words “juvenile court” bear a different meaning from
that found in Maryland law.
5
(Citations omitted). Once a “state court makes an SIJ-predicate order, a child may file
with CIS [U.S. Citizenship & Immigration Services] for SIJ-status using an I–360 petition.
A child . . . granted SIJ status may then apply for adjustment to lawful permanent resident
status under 8 U.S.C. § 1255.” Perez-Olano, 248 F.R.D. at 253.
II. Separation of Powers / State Regulation of Immigration Concerns
Because the SIJ statute imposes a rather extraordinary duty on a State court, we
pause to consider two possible objections to such authority: 1) whether the statute imposes
a nonjudicial duty on a Maryland court in violation of Separation of Powers? and 2)
whether a Maryland court engages in impermissible State regulation of immigration by
making actual findings about a child’s SIJ status?
The Federal Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J), requires
that a State “juvenile court” make specific factual findings before a minor can petition the
United States Citizenship and Immigration Services for SIJ status. See also 8 C.F.R.
§ 204.11(b) (“An alien may not be classified as a SIJ unless the alien is the beneficiary of
an approved petition to classify an alien as a special immigrant.”). For purposes of § 1101
(a)(27)(J), a minor child may be considered for SIJ status if he or she is present in the
United States, unmarried, under the age of 21, and
(i) . . . has been declared dependent on 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 [and]
6
(ii) for whom it has been determined in administrative or judicial proceedings
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.
Arguably, the federal statute directs our State courts to perform a “nonjudicial
function” by issuing advisory factual findings with regard to a child’s SIJ status. If a
Maryland statute required such a duty of a State court, it would violate Article 8 of the
Declaration of Rights of the Maryland Constitution.5 The Court of Appeals has held that
“a court has no jurisdiction to perform a nonjudicial function, and any enactment which
attempts to confer such a function on a court is unconstitutional.” Duffy v. Conaway, 295
Md. 242, 254 (1983) (Citations omitted). In that case, the circuit court’s role was “limited
to gathering testimony, making findings of fact, and transmitting the testimony and
findings to another governmental entity.” Id. A State law requiring the court to make these
types of determinations was found to violate Article 8, a violation that divested the lower
court of jurisdiction over the case. Id.6
The federal statute directs the circuit court to enter factual findings that are advisory
to a federal agency determination, but we do not believe that the statute offends State
separation of powers. The federal government “has exclusive jurisdiction with respect to
immigration [but] state juvenile courts play an important and indispensable role in the SIJ
application process.” Leslie H. v. Superior Court, 168 Cal. Rptr. 3d 729, 735 (Cal. Ct.
5
Article 8 provides: “That the Legislative, Executive and Judicial powers of
Government ought to be forever separate and distinct from each other; and no person
exercising the functions of one of said Departments shall assume or discharge the duties of
any other.”
6
In Duffy, this issue was raised sua sponte by the Court. 295 Md. at 254.
7
App. 2014) (Citations and quotations omitted). The federal government delegated this
power to State juvenile courts because these courts are “the appropriate forum for child
welfare determinations regarding abuse, neglect, or abandonment, and a child’s best
interests.” Id. (Citations omitted). “Congress has plenary power over immigration [and]
State courts have general jurisdiction over child welfare matters.” Perez-Olano, 248
F.R.D. at 265 (Internal citations omitted). Therefore, the federal government can delegate
specific powers to the States to make determinations helpful to determining the
immigration status of certain individuals, including the SIJ status. Moreover, because
federal law imposes the duty to make SIJ findings on a Maryland court, any claim of
impermissible imposition of nonjudicial duties or of a State separation of powers violation
would be trumped by the Supremacy Clause of the U.S. Constitution, Article VI, and the
similar federal supremacy obligation found in Article 2 of our own Declaration of Rights.7
Nor do we believe the federal directive to State courts to make SIJ findings runs
afoul of Supreme Court cases invalidating a State’s attempt to regulate immigration. See
Arizona v. United States, 132 S.Ct. 2492 (2012) and DeCanas v. Bica, 424 U.S. 351 (1976).
7
Article 2 provides:
The Constitution of the United States, and the Laws made, or which
shall be made, in pursuance thereof, and all Treaties made, or which
shall be made, under the authority of the United States, are, and shall
be the Supreme Law of the State; and the Judges of this State, and all
the People of this State, are, and shall be bound thereby; anything in
the Constitution or Law of this State to the contrary notwithstanding.
8
First, it is important to note that the State court is not “rendering an immigration
determination,” because the ultimate decision regarding the child’s immigration status
“rests with the federal government.” Marcelina M.-G., 112 A.D.3d at 109. Secondly, the
State is not acting unilaterally on the basis of State authority. Rather, it is federal law that
imposes this duty on State courts. Thus, we conclude that State action under 8 U.S.C.
§ 1101(a)(27)(J) is not a prohibited regulation of immigration.8
III. Circuit Court Jurisdiction over SIJ status
The circuit court erroneously concluded that the SIJ factual findings could only be
entered after a separate guardianship hearing. The circuit court reasoned that Nathaly
would be eligible to file for SIJ status after filing a separate petition for guardianship9 under
the United States Immigration and Nationality Act, explaining that the Clerk’s office
“could assist you with whatever the pleading that needs to be done, because it’s a whole
hearing, it’s a whole group of factors that the Court has to review.” The circuit court was
correct that the determination of SIJ status requires the establishment of certain factors, but
8
We have not been asked nor do we address sua sponte any question of whether the
SIJ statute is inconsistent with the 10th Amendment to the U.S. Constitution. See Printz v.
U.S., 521 U.S. 898 (1997).
9
We will not address any hypothetical question as to the propriety of a guardianship
proceeding in this case where the mother has custody of the child. See In re Guardianship
of Zealand W., 220 Md. App. 66, 85-86 (2014) (holding that a circuit court would not have
the authority to hear a guardianship petition when one parent still maintains parental
rights).
9
incorrectly concluded that it must be done exclusively in a separate guardianship
proceeding.
Although 8 U.S.C. § 1101(a)(27)(J) does not define the term, “juvenile court,”
applicable federal regulations do. Under these regulations, a juvenile court is defined 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). The exact
makeup of these “juvenile courts” varies from state to state. In California, a superior court
sitting as a probate court was determined to have the authorization to make SIJ findings.
B.F. v. Superior Court, 143 Cal. Rptr. 3d 730, 733-34 (Cal. Ct. App. 2012). The California
appellate court applied the broad definition of “juvenile courts” over the stricter California
provisions since “there is no distinct or separate jurisdiction between a court assigned to
the juvenile department and a court assigned to the probate department.” Id. at 735.
Because the California Probate Code “authorizes the superior court to make judicial
determinations about the care and custody of juveniles,” a court sitting in this capacity
would fit the requirements to be considered a juvenile court under the federal definition.
Id.Under 8 C.F.R. § 204.11(a), jurisdiction specifically extends to any court that has
“jurisdiction under state law to make judicial determinations about the custody and care of
juveniles.” While they may split on the interpretation of the provisions of § 1101(a)(27)(J),
courts around the country hear SIJ evidence in a variety of settings, including custody
proceedings, adoption petitions and probate issues. A New York court held that a juvenile
court hearing a guardianship petition, a petition for sole custody, and a motion for special
10
findings order, should also make special findings under 8 U.S.C. § 1101(a)(27)(J).
Marcelina M.-G, 112 A.D.3d at 106. In C.G.H., the District of Columbia Court of Appeals
concluded that in a proceeding for adoption, the Family Court should have issued SIJ
findings “simultaneously with the entrance of the adoption decree.” In re C.G.H., 75 A.3d
166, 169 (D.C. 2013). There was no custody dispute in that case, but the appeals court
determined that the family court should have heard the SIJ issue as it was raised and
presented to it. Id. at 170. There is no discernible distinction between these different types
of cases. All seek to make decisions regarding a minor’s care and custody with the child’s
best interest in mind.
In some instances in the out of state cases, the SIJ factual findings are raised solely
by motion, independent of any custody or guardianship proceeding. In a Nebraska case,
the SIJ issue was raised after an initial filing involving the minor’s “two charges of being
a minor in possession of alcohol.” In re Erick M., 820 N.W.2d 639, 642 (Neb. 2012). The
question was raised by a separate motion. Id. at 641. No claim for custody or guardianship
was presented, yet the trial court was still held to have the authority to hear the SIJ issue.
Id. at 642. The Supreme Court of Nebraska concluded “that Congress wanted to give state
courts and federal authorities flexibility to consider a juvenile’s family circumstances” in
making SIJ determinations. Id.The facts of a recent New York case mirror those presented here. The minor’s father
abandoned her and she was placed in the sole custody of her mother. The family court
11
“granted [the minor’s] unopposed petition” 10 after “the mother testified regarding [the
minor’s] father’s abandonment and neglect” but refused to enter “special findings that
would allow her to apply [for SIJ status].” P.E.A. v. A.G.G., 111 A.D.3d 619, 619-20 (N.Y.
App. Div. 2013). The case brought before the New York Family Court was an ordinary
child custody proceeding, not a separate guardianship hearing. On appeal, the New York
Supreme Court concluded that by placing the child in the mother’s custody, the child was
“legally committed to, or placed under the custody of . . . an individual or entity appointed
by a State or juvenile court” and that the family court should have made SIJ findings. Id.
at 620.
The federal statute places no restriction on what is an appropriate proceeding or how
these SIJ factual findings should be made. The only limitation is that the court entering the
findings fit the federal definition of a “juvenile court.” Any relevant limitations will arise
from State law. Pursuant to the Maryland Code, an equity court has jurisdiction over
“custody or guardianship of a child.” Md. Code (1984, 2012 Repl. Vol., 2014 Supp.),
10
New York courts have held that there is no difference between custody
proceedings that are contested or those filed unopposed:
Unopposed petitions for custody brought by a natural parent have been
granted. There is no basis for treating an unopposed guardianship petition
more restrictively than an unopposed custody petition. The distinctions
between guardianship and custody are elusive, as both forms of legal
responsibility to a child have very similar attributes.
In re Marisol N.H., 115 A.D.3d 185, 190 (N.Y. App. Div. 2014) (Internal citations
omitted).
12
Family Law Article (“FL”), § 1-201(b)(5).11 The circuit courts “are the highest common-
law and equity courts of record exercising original jurisdiction within the State.” Md. Code
(1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article (“CJP”), § 1-501.
Therefore, the circuit courts would be considered juvenile courts under the broad federal
definition and have jurisdiction to hear evidence relating to SIJ status.12
11
Subsequent to the filing of this case, this State law was amended to specifically
confer on an equity court jurisdiction over:
custody or guardianship of an immigrant child pursuant to a motion for
Special Immigrant Juvenile factual findings requesting a determination that
the child was abused, neglected, or abandoned before the age of 18 years for
purposes of § 101(a)(27)(J) of the federal Immigration and Nationality Act.
FL § 1-201(b)(10). This change was effective October 1, 2014. See Chapter 96, Laws of
2014.
12
A provision of § 1101(a)(27)(J) provides that specific consent is required for a
state juvenile court to obtain jurisdiction over the minor when a juvenile is in the custody
of the Department of Health and Human Services (DHHS). See 8 U.S.C.
§ 1101(a)(27)(J)(iii). As noted by F.L.M. v. Dep’t of Children & Families, State of Fla.,
912 So. 2d 1264, 1267 (Fla. Dist. Ct. App. 2005), “a state court is precluded from declaring
dependency without the Attorney General’s [now the Secretary of DHHS’s] consent only
if the Attorney General [now DHHS] has actual or constructive custody of the child.” See
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
No. 110-457, § 235(d)(1)(B)(ii), 122 Stat. 5044 (2008) (striking Attorney General and
replacing it with the Secretary of DHHS).
However, it has been determined that a minor is in “the constructive custody of
[DHHS] only when [he or she is] subject to a final order of deportation.” Matter of Perez
Quintanilla, Special Immigrant Proceeding A97 383 010 (June 7, 2007), at 8. Nathaly is
currently facing deportation proceedings, but remains in the physical custody of her
mother. Thus, Nathaly is not considered to be in constructive custody of DHHS until a
final order of deportation is entered. Until that time, the circuit court will continue to have
jurisdiction over Nathaly’s case.
13
Here, the circuit court had the authority over Nathaly to make decisions regarding
her custody. The circuit court accepted the custody arrangement and awarded Simbaina
sole custody of Nathaly, thus making a decision about her “custody and care.” The federal
government delegated the powers to make initial SIJ factual findings to state juvenile courts
because of the expertise that these courts have in issues relating to the care and custody of
juveniles. It is clear from cases in other jurisdictions and from relevant provisions of
Maryland law that a circuit court hearing an ordinary custody proceeding can enter factual
findings relating to SIJ status without requiring a separate filing, such as a petition for
guardianship.
IV. Pleading Requirements
A request for determination of SIJ findings is not subject to a heightened pleading
requirement. The federal statute provides no specific pleading requirements, as SIJ factual
findings are not a separate cause of action. The circuit court erroneously concluded that
these factual findings could only be entered after a separate guardianship hearing, where
the issue was pled more specifically than what was done here.
Maryland law only requires that pleadings be “simple, concise, and direct.” Md.
Rule 2-303(b). There is no requirement aside from pleading facts showing that the pleader
is entitled to some form of relief. Id. The hearing before the circuit court involved a
complaint for an absolute divorce and for a custody determination for three minor children.
14
While Simbaina did not file a separate motion for SIJ factual findings, it is clear from her
amended complaint that she sought these additional findings from the court.
In a similar case, the Superior Court of New Jersey heard a custody proceeding
under the New Jersey statutes for abused or abandoned children. D.C. v. A.B.C., 8 A.3d
260, 261-62 (N.J. Super. Ct. Ch. Div. 2010). The plaintiff brought a claim for custody
“alleging that Paul was abused, neglected, and abandoned by his mother.” Id. at 261. As
a part of this proceeding, the plaintiff only asked the court to make findings that: “1.
Reunification of Paul with his mother is not viable due to neglect and abandonment; and
2. It is not in Paul’s best interest to be returned to Guatemala, the country of his birth.” Id.Analogously, Simbaina requested the same relief from the court, that it “enter an
Order finding that it is not in Nathaly’s best interest to return to her home country and
reunification with [Bunay] is not viable due to abuse[,] neglect[,] or abandonment.”
Simbaina raised the issue at the hearing, in her Motion to Alter or Amend, and in her
Motion for a New Trial, where she specifically raised the SIJ issue and requested factual
findings. Her specific request was that the circuit court grant a new trial to allow Nathaly
to apply for SIJ status:
The Circuit Court for Baltimore City is empowered by state and federal law
to enter an Order making the required factual findings. . . . Without such
factual findings, Nathaly will be unable to seek permanent residences [sic]
and will likely be deported or removed from the United States and
permanently separated from her mother and siblings.
When pleading this issue before the circuit court, a moving party should ensure that
the court is on notice of the request for these factual findings. While a separate motion
can be filed, see Erick M., 820 N.W.2d at 641, it is not required by the federal statute. See
15
D.C., 8 A.3d at 261-62. The essential elements of the court order require that the minor be
declared dependent on the juvenile court, that reunification with 1 or both of the
immigrant’s parents is not viable due to abuse, neglect, abandonment, and that “it has been
determined in administrative or judicial proceedings 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.” 8 U.S.C. § 1101(a)(27)(J). When made clear from the filed
pleadings that this determination is part of the requested relief, a separate SIJ motion is not
necessary. Here, the factual findings were part of the requested relief and the repeated oral
requests make it clear that the SIJ issue was sufficiently before the court.
Accordingly, the circuit court had jurisdiction over the custody proceedings and
should have heard testimony and evidence relating to Nathaly’s SIJ status. Upon remand,
the circuit court should evaluate Nathaly’s request under the SIJ standards. The “state
court’s role in the SIJ process is not to 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., 168 Cal. Rptr. 3d at 737. Therefore, it is incumbent on the circuit
court to make its own independent factual findings regarding whether Nathaly fulfills the
requirements of § 1101(a)(27(J).
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY REVERSED.
CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLANT.
16