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Reyes v. McCament

United States District Court, W.D. North Carolina, Charlotte Division

August 21, 2017

MARIELA HERNANDEZ REYES, Plaintiff,
v.
JAMES McCAMENT, Acting Director, United States Citizenship and Immigration Services, Defendant

          ORDER

          FRANK D. WHITNEY DISTRICT JUDGE.

         THIS MATTER is before the Court on the parties' dispositive motions, including Plaintiff's Motion to Set Aside Final Agency Action (Doc. No. 14) and Defendant's Motion for Judgment on the Record (Doc. No. 17). Both motions have been fully briefed. Although the Court initially scheduled a hearing (Doc. No. 20), the Court cancelled that hearing after review of the pleadings, record, and applicable law, because it determined that a hearing would not aid the Court in resolving this matter. Accordingly, this Order issues on the pleadings. For the reasons that follow, Plaintiff's Motion to Set Aside Final Agency Action is DENIED, and Defendant's Motion for Judgment on the Record is GRANTED.

         I. Background

         The facts from the record come largely undisputed by the parties. Plaintiff was born in El Salvador on October 7, 1996, to Maria Isabel Reyes Reyes and Maximiliano Hernandez Ponce. Around sixteen years of age, she entered the United States, where she was apprehended on or about May 29, 2013, by the United States Customs and Border Protection near Hidalgo, Texas. Removal proceedings commenced, and the United States Department of Health and Human Services Office of Refugee Resettlement (“ORR”) took Plaintiff into custody because she was an unaccompanied minor. ORR subsequently released Plaintiff into the custody of her father, Ponce, who lived in North Carolina at the time and continues to reside in the state.

         Approximately a year-and-a-half later, Plaintiff's father sought an order from the juvenile court in North Carolina by filing an ex parte motion seeking temporary emergency custody of Plaintiff. On October 3, 2014, the General Court of Justice for Mecklenburg County, North Carolina, granted Ponce's motion and issued an “Order Granting Ex Parte Temporary Custody.” (Doc. No. 13, p. 117) (hereinafter, “Order Granting Ex Parte Temporary Custody”). As part of the Order Granting Ex Parte Temporary Custody, the court found as fact that:

Defendant [Maria Isabel Reyes Reyes] abandoned and neglected Mariela Hernandez Reyes in 2008 by stopping to provide safety, shelter, and food for her. Mariela Hernandez Reyes was forced to migrate to the United States to seek refuge with the Plaintiff, who is the biological father. Since that date, the minor child has been in the care of her biological father. If forced to return to El Salvador, the minor child would be completely on her own and without the proper family support system.”

(Doc. No. 13, p. 117). The conclusions of law specifically indicate the court relied on N.C. Gen. Stat. § 50A-204(a) and § 50A-311. (Doc. No. 13, p. 117). In addition to making other findings of fact and conclusions of law, the court ordered that Ponce be “granted emergency temporary custody and control of the minor child, Mariela Hernadez Reyes.” (Doc. No. 13, p. 117) (emphasis added). The court also ordered “notice of the hearing be given to the Defendant, Maria Isabel Reyes Reyes. The hearing to determine custody of the minor children will be held on October 8, 2014, at the Mecklenburg County District Courthouse . . . .” (Doc. No. 13, p. 118).

         On October 3, 2014, the same day the juvenile court issued the Order Granting Ex Parte Temporary Custody, Plaintiff filed an I-360, Petition for Special Immigrant, with United States Citizenship and Immigration Services (“USCIS”) requesting special immigrant juvenile immigration status (“SIJ”). Four days later, on October 7, 2014, Plaintiff turned eighteen years old and was no longer a minor under North Carolina law. The hearing originally scheduled for October 8, 2014, with the North Carolina juvenile court never took place.

         In November 2014, USCIS issued Plaintiff a Notice of Intent to Deny her petition. The Notice indicated Plaintiff had failed to submit sufficient evidence to meet her burden to establish SIJ eligibility, noting “[t]he emergency custody order is expressly temporary . . . [and] did not contain requisite language regarding reunification.” (Doc. No. 13, p. 98). The Notice provided Plaintiff an opportunity to respond prior to a final decision being issued. Plaintiff responded, submitting two affidavits - one from Plaintiff and one from her father, Ponce - explaining Plaintiff's relationship with her mother and father. Both affidavits were dated December 12, 2014. (Doc. No. 13, pp. 83, 86). Following receipt of this evidence and other materials from Plaintiff's counsel, USCIS denied Plaintiff's petition.

         The USCIS decision stated several reasons for denying Plaintiff's petition, including the fact the juvenile court order “does not make specific findings and one cannot reasonably infer that reunification is not viable based on the court order and on the documents submitted.” (Doc. No. 13, p. 65). The USCIS also explained:

While a permanent custody order is not technically required for SIJ classification, the order itself should be of a permanent nature. The ex-parte order submitted clearly shows that custody is temporary and shows that a future court date was scheduled to determine custody of the petitioner. . . . Additionally, while the sworn statement submitted from the petitioner and her father outline the petitioner's circumstances, the sworn statements are dated after the court date on October 3, 2014, and therefore were not given as evidence during the court proceeding. . . .

(Doc. No. 13, p. 65).

         Plaintiff then appealed to the Administrative Appeals Office (“AAO”) for USCIS, which conducted a de novo review, affirmed the decision to deny Plaintiff's petition, and dismissed the appeal. The AAO decision, dated July 9, 2015, concluded Plaintiff failed to show she was the subject of a qualifying juvenile custody order. (Doc. No. 13, p. 13). In so ruling, the AAO concluded that it could not “treat the temporary custody order as permanent” because doing so “would require us to make a state court determination, which[, ] as acknowledged by the petitioner, is outside our authority in these immigration proceedings.” (Doc. No. 13, p. 12).

         Next, Plaintiff returned to juvenile court in North Carolina and filed a Motion for Judgment Nunc Pro Tunc. On July 22, 2015, the Mecklenburg County District Court issued an “Order for Judgment Nunc Pro Tunc (ex parte), ” which made findings of fact and conclusions of law including, among other things:

3. Due to an unintentional omission, the [October 3, 2014] order did not include the following paragraph:
This Court determines that: (1) it has jurisdiction over Mariela Hernandez Reyes and that she is dependent upon this Court; (2) Reunification with the biological mother is not viable due to neglect and abandonment under state law; (3) it is not in Mariela Hernandez Reyes' best interest to return to El Salvador; and (4) it is [in] Mariela Hernandez Reyes' best interest for temporary and permanent custody to be awarded to [her father, Ponce].
4. Because the child turned 18 years old four days after the signing of the Order, the Order granting temporary custody to Plaintiff was as permanent as possible under North Carolina Law.

(Doc. No. 13, p. 14) (hereinafter, “Ex Parte Order for Judgment[1] Nunc Pro Tunc”). Based on those findings of facts and conclusions of law, the district court then ordered:

1. The order dated October 3, 2014[, ] be corrected to include the following findings of fact:
This Court determines that: (1) it has jurisdiction over Mariela Hernandez Reyes and that she is dependent upon this Court; (2) Reunification with the biological mother is not viable due to neglect and abandonment under state law; (3) it is not in Mariela Hernandez Reyes' best interest to return to El Salvador; and (4) it is [in] Mariela Hernandez Reyes' best interest for temporary and permanent custody to be awarded to [her father, Ponce].
2. That due to the [sic] Mariela Hernandez Reyes' age at the time the order was entered, the order was as permanent as possible under North Carolina law.

(Doc. No. 13, p. 15). Based upon this new order, Plaintiff moved for the AAO to reopen her matter and reconsider its decision. On May 3, 2016, the AAO denied Plaintiff's motion, finding that the Ex Parte Order for Judgment Nunc Pro Tunc did not make the earlier Order Granting Ex Parte Temporary Custody a qualifying order for SIJ status. The AAO explained:

[T]he juvenile court invoked its emergency jurisdiction under NCGS section 50A-204(a), and nothing about the nunc pro tunc order cures the underlying deficiency of the ex parte emergency order, which is that the ex parte emergency order was obtained through a proceeding that allows a juvenile court to take temporary jurisdiction over a child when necessary in an emergency to protect the child, and which defers custody determinations to a subsequent hearing.

(Doc. No. 13, p. 6). The AAO concluded, “when viewed together the ex parte emergency order and the nunc pro tunc order are not sufficient to satisfy section 101(a)(27)(J)(i) of the [Immigration and Nationality] Act.” (Doc. No. 13, p. 6). The AAO continued, “[W]e also determine that USCIS' consent to the grant of the SIJ classification would not be warranted even if the Petitioner had a qualifying juvenile court order.” Id. In so concluding, the AAO noted that the juvenile court's conclusions lacked a sufficient factual basis, particularly as to the non-viability of Plaintiff's reunification with her mother. Following this decision by the AAO, Plaintiff filed the instant action. The pending dispositive motions and briefing followed.

         II. Standard of Review

         The instant action presents the issue of whether the Court should overturn a decision by USCIS denying Plaintiff's petition for SIJ status. This Court's judicial review of the agency's decision is available under the Administrative Procedures Act, 5 U.S.C. § 701 et seq., and governed by statutory and regulatory standards. See 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11; see also M.B. v. Quarantillo, 301 F.3d 109 (3d Cir. 2002). Congress created SIJ status as a form of immigration relief permitting non-citizen children to obtain lawful, permanent residency in the United States. See 8 U.S.C. § 1101(a)(27)(J). Plaintiff submitted a Form I-360 to apply for SIJ status pursuant to 8 U.S.C. § 1101(a)(27)(J), which provides, in relevant part, that a “special immigrant” means:

(J) an immigrant who is present in the United States-
(i) who 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; (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; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that-
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services ...

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