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Perez v. Rodriguez

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

March 6, 2018

FELIPE PEREZ PEREZ, Plaintiff,
v.
LEON RODRIGUEZ, Director, United States Citizenship and Immigration Services, Defendant.

          ORDER

          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER is before the Court on Felipe Perez Perez's (“Plaintiff's”) Motion to Set Aside Final Agency Action, (Doc. No, 14); Leon Rodriguez's (“Defendant's”) Motion for Summary Judgment on the Administrative Record, (Doc. No. 16); Plaintiff's Response in Opposition, (Doc. No. 17); and Defendant's Response in Support, (Doc. No. 18).

         I. BACKGROUND

         A. Procedural Background

         On October 28, 2016, Plaintiff filed his Complaint before this Court. (Doc. No. 1). Defendant filed his answer on January 26, 2017. (Doc. No. 10). Then, on April 4, 2017, Plaintiff filed a “Motion to Set Aside Final Agency Action.” (Doc. No, 14). A month later, rather than file a response, Defendant filed a “Motion for Summary Judgment on the Administrative Record.” (Doc. No. 16). Both motions are ripe for this Court's consideration.

         B. Factual Background

         Plaintiff is a 20 year-old national from Guatemala. (Doc. No. 1 ¶1, 6). In January, 2014, at the age of 16, Plaintiff sought refuge from his allegedly abusive parents in Guatemala by attempting to cross the United States border alone. (Id. ¶7). When Plaintiff crossed the United States border, he was arrested by United States Customs and Border Protection agents. (Id. ¶8). Plaintiff was held in civil detention and later transferred to North Carolina after deeming him an “Unaccompanied Minor” under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. (Id. ¶ 10-11).

         In North Carolina, Plaintiff appeared before the General Court of Justice for Mecklenburg County, which awarded Plaintiff's older brother, Mateo Perez, temporary emergency custody of him on June 29, 2015. (Doc. No. 12: Administrative Record (“A.R.”) at 110-13). This ex parte temporary custody order lasted only until a full hearing could be held on July 22, 2015. (Id. at 113).

         In the state court's temporary custody order, findings of fact indicated that Plaintiff's parents “abandoned, neglected, and abused” him since he was eight years old. (Id. at 111). “Upon information of the minor, ” the court found that: (1) Plaintiff's parents stopped providing for him; (2) he was not allowed to go to school, (3) he had one change of clothes; (4) he would have to walk one hour to get to work; (5) he was afforded one meal a day; (6) and that his father was abusive both verbally and physically. (Id.). As a result, Plaintiff sought change and migrated to the United States in order to seek refuge by living with his older brother. (Id.). The court then concluded as a matter of law that:

(1) it has jurisdiction over Felipe Perez Perez and that he is dependent upon this Court; (2) Reunification with the biological parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; (3) it is not in Felipe Perez Perez's best interest to return to Guatemala; and (4) it is Felipe Perez Perez's best interest for temporary and permanent custody to be awarded to the Plaintiff.

(Id. at 112). Two week prior to the hearing date established by the juvenile court, Plaintiff turned 18, the North Carolina age of majority, and thereafter fell outside of that court's jurisdiction. (Doc. No. 14 at 2). The July hearing never occurred. Plaintiff's permanent custody status was left unresolved.

         Prior to turning 18, and while under the temporary custody order, Plaintiff filed an application for special immigrant juvenile immigration (“SIJ”) status. (Doc. No. 1 ¶14). This status required certain findings made by state juvenile courts. 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R. § 204.11. On July 31, 2015, the United States Citizenship and Immigration Services (“USCIS”) issued a notice of intent to deny Plaintiff's application. (A.R. 76). To support its decision, USCIS emphasized that the temporary custody order was not permanent:

The Order Granting Ex Parte Temporary Custody is expressly temporary in nature and does not make a finding that reunification with one or both parents is permanently not viable. The order submitted specifically states that the terms of the order remain in effect until the next court date of July 22, 2015. The petitioner did not submit any subsequent court orders or any other evidence of additional custody determinations made by the juvenile court as evidence that the order is a permanent finding. Additionally, the court order does not make specific factual findings to support the statement that it is not in the best interest of the petitioner to be returned to Guatemala.

(A.R. 77). In response, Plaintiff sought and received a nunc pro tunc order from the state court that granted his temporary custody order. In this second order, the court entered three “findings of fact”: (1) Plaintiff initiated the ex parte temporary emergency child custody action; (2) an order was granted and signed on June 29, 2014; and (3) “[b]ecause 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.” (A.R. 71). USCIS denied Plaintiff SIJ status stating that the nunc pro tunc order “does not overcome the fact that the custody order submitted is expressly temporary in nature and therefore does not make the finding that reunification with one or both parents is permanently not viable.” (A.R. 62).

         After USCIS denied his application, Plaintiff appealed to the Administrative Appeals Office (“AAO”), which affirmed the findings and reasoning of USCIS. (A.R. 5-6). AAO concluded that, due to the lack of a permanent custody order, the proceedings and their findings lacked finality. (A.R. 5).

         These facts are largely not in dispute; their legal effect is. This Court finds that the temporary nature of the lower court's custody order fails to fulfill the requirements needed in order to receive SIJ status, especially in light of the considerable deference courts afford agencies as they execute their statutory duties.

         II. STANDARD OF REVIEW

         The Administrative Procedure Act (“APA”) provides for judicial review of final agency actions. See 5 ...


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