The People v. Israel O.

Israel O. was born in Mexico and is not a United States citizen. He was adjudged

a ward of the juvenile court as a result of admitting a misdemeanor violation of Penal

Code section 496, subdivision (a). Israel requested that the court make the factual

findings that would qualify him for special immigrant juvenile (SIJ) status under federal

law (8 U.S.C. § 1101(a)(27)(J); hereafter section 1101(a)(27)(J) or the SIJ statute). Such

findings are a prerequisite for filing an SIJ status application with the United States

Citizenship and Immigration Services (USCIS) of the Department of Homeland Security

(see 8 C.F.R. § 204.11(d)), which would allow Israel an opportunity to pursue

regularization of his immigration status in the United States. The juvenile court declined

to make the requested SIJ status findings. The sole issue on appeal is whether the

juvenile court erred in its interpretation of the SIJ statute.1

We find that it did and remand

for further proceedings.



1

Pursuant to California Rules of Court, rule 8.200(c), nonprofit groups Legal

Services for Children and Immigrant Legal Resource Center have requested leave to 2

I. BACKGROUND

A. The SIJ Statute

"The Immigration Act of 1990, codified at [title 8 United States Code]

section 1101, sets forth a procedure for classification of certain aliens as special

immigrants who have been declared dependent 'on a juvenile court.' ” (B.F. v. Superior

Court (2012) 207 Cal.App.4th 621, 626.) "Congress created this classification to protect

abused, neglected, and abandoned unaccompanied minors through a process that allows

them to become permanent legal residents. [Citation.] . . . A minor who obtains SIJ

status may become a naturalized United States citizen after five years. [Citation.]” (In re

Y.M. (2012) 207 Cal.App.4th 892, 915; see 8 U.S.C. § 1427(a).)

In 1997, as a result of congressional concern "that visiting students were abusing

the SIJ process, and amended the SIJ statute to 'limit the beneficiaries of this provision to

those juveniles for whom it was created, namely abandoned, neglected, or abused

children . . . .' [Citation.]” (Perez-Olano v. Gonzalez (C.D.Cal. 2008) 248 F.R.D. 248,

265, fn 10.) That amendment required a state court determine whether a minor seeking

SIJ status was (1) eligible for long-term foster care due to abuse, neglect, or abandonment

and (2) a dependent of a juvenile court or committed or placed with a state agency. (See

Eddie E. v. Superior Court (2013) 223 Cal.App.4th 622, 626–627.) At issue here is an

amendment to the SIJ statute under the William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008 (TVPRA) (Pub.L. No. 110-457, § 235(d)(1)

(Dec. 23, 2008), 122 Stat. 5044, 5079). TVPRA replaced the requirement of long-term

foster care eligibility with a requirement that reunification with "1 or both” parents not be

viable due to abuse, neglect, abandonment. TVPRA also made minors who had been

placed in the custody of an individual or entity appointed by a state court eligible for SIJ

status. (Eddie E., at p. 627.)2

" 'As a result of the removal of the foster care requirement,



appear as amici curiae in support of Israel. On December 23, 2014, we granted the

request and accepted their joint brief for filing.

2

Section 1101(a)(27) currently provides in relevant part: "The term 'special

immigrant' means—[¶] . . . [¶] (J) an immigrant who is present in the United States—[¶] 3

state courts may now make SIJ [status] findings whenever jurisdiction can be exercised

under state law to make care and custody determinations, and are no longer confined to

child protection proceedings alone.' [Citation.]” (Leslie H. v. Superior Court (2014)

224 Cal.App.4th 340, 349 (Leslie H.).)

" 'While the federal government has exclusive jurisdiction with respect to

immigration [citations] . . . , state juvenile courts play an important and indispensable role

in the SIJ application process.' [Citation.] Under section 1101(a)(27)(J) and its

implementing regulations codified at 8 Code of Federal Regulations part 204.11 . . . ,

'state juvenile courts are charged with making a preliminary determination of the child's

dependency and his or her best interests, which is a prerequisite to an application to

adjust status as a special immigrant juvenile. "The SIJ statute affirms the institutional

competence of state courts as the appropriate forum for child welfare determinations

regarding abuse, neglect, or abandonment, and a child's best interests” [citations].'

[Citation.]” (Leslie H., supra, 224 Cal.App.4th at p. 348, quoting In re Mario S.

(N.Y.Fam.Ct. 2012) 954 N.Y.S.2d 843, 849 (Mario S.).)

The predicate state trial court findings now required under the SIJ statute, as

revised by TVPRA, are that (1) the minor is "dependent” upon a juvenile court or

"committed to, or placed under the custody of,” a state entity or other court-appointed

individual or entity; (2) the minor cannot be reunified with one or both parents "due to

abuse, neglect, abandonment or a similar basis found under State law,” and (3) it is not in

the minor's "best interest” to be "returned” to his or her country of origin.



(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 [SIJ]

status . . . .” (Italics added.)4

(§ 1101(a)(27)(J); see also 8 C.F.R. § 204.11(c).) A superior court with jurisdiction to

make child custody determinations under California law "has the authority and duty to

make [SIJ status] findings” if the evidence before it supports those findings. (B.F. v.

Superior Court, supra, 207 Cal.App.4th at p. 630; Code Civ. Proc., § 155, subds. (a),

(b)(1).)3 After a state court makes SIJ status findings, the minor must include that order

in his or her SIJ petition to the Department of Homeland Security. (See 8 U.S.C.

§ 1101(a)(27)(J)(iii); 8 C.F.R. § 204.11(d).)

B. Procedural History

1. In the Trial Court

Pursuant to a plea agreement, Israel admitted a misdemeanor violation of receiving

stolen property (Pen. Code, § 496, subd. (a)). The underlying facts are not relevant to the

narrow issue of law before us.

4

At the February 14, 2014 disposition hearing, the court

declared wardship and returned Israel to his mother's home, subject to conditions of

probation. At the time of disposition, Israel requested that the court make SIJ status

findings. In a declaration submitted with his request, Israel stated that he was born in

Mexico in 1999, came to the United States in 2005 with his older brother, and lived in

Alameda County with his mother. He also asserted that he had no memory of his father,



3 Code of Civil Procedure section 155 was enacted by Senate Bill No. 873 (2013-

2014 Reg. Sess.) and took effect immediately on September 27, 2014. The statute

explicitly provides that the superior court (including juvenile, probate, or family court

divisions) has jurisdiction to make judicial determinations regarding the custody and care

of juveniles within the meaning of the Immigration and Nationality Act, and it eliminates

any ambiguity regarding the jurisdiction of California courts to make factual findings

that, if supported by evidence, would enable an immigrant minor to petition USCIS for

SIJ status. (Code Civ. Proc., § 155, subds. (a), (b).) Trial court findings under the SIJ

statute must be incorporated into Judicial Council Forms, form JV-224 ("Order

Regarding Eligibility for Special Immigrant Juvenile Status”). (See Code Civ. Proc.,

§ 155, subd. (e).)

4

The People's brief on appeal recited details of the offenses underlying the

operative delinquency petition, as well as other information regarding Israel's

delinquency history, including a subsequent delinquency petition. We agree with Israel

that none of those facts are material to the single issue that we must decide and are not

considered here.5

who continued to live in Mexico; he had only very limited telephone contact with his

father; his family had not received any physical or emotional support from his father; and

his care in Mexico before coming to the United States had been provided by a

grandmother who passed away in January 2014. Israel said he would have no place to

live if he were returned to Mexico and his father would not provide for him. The court

requested additional briefing, focused on questions not at issue here.

At a hearing on May 12, 2014, the trial court considered the briefing submitted

and the argument of counsel.5

The court found that Israel's father, who remained in

Mexico, had abandoned him. However, relying largely on a decision of the Nebraska

Supreme Court (In re Erick M. (Neb. 2012) 820 N.W.2d 639 (Erick M.)), the trial court

interpreted the "1 or both” language of section 1101(a)(27)(J) as prohibiting SIJ status

findings if return to a custodial parent remained feasible.

2. On Appeal

Israel and amici curiae argue that section 1101(a)(27)(J) provides for SIJ status

findings if reunification with either parent is not viable due to abuse, neglect or

abandonment. The parties agree that no reported California decision has yet addressed

this issue.

The People initially argued in support of the trial court's statutory interpretation,

contending that section 1101(a)(27)(J) was ambiguous (as the Nebraska Supreme Court

found in Erick M.), and that the legislative history failed to support Israel's contention

that inability to reunify with either parent would trigger SIJ status eligibility. However,

by letter to this court, dated December 22, 2014, the People withdrew their argument,

citing, among other things, materials posted on the USCIS Web site stating that residence

in the United States with a nonabusive parent would not disqualify a minor from SIJ

status consideration. The People now take the position that it would be inappropriate for

"a state attorney general to urge an interpretation of federal immigration policy in a



5

The district attorney took no position on Israel's request for SIJ status findings.6

manner that would contradict with information provided by the federal agency tasked

with enforcing such policy.”

In response to the People's letter, Israel moved on December 23, 2014, for

summary reversal. Although this court has the power to entertain a motion for reversal in

an appropriate case (People v. Browning (1978) 79 Cal.App.3d 320, 323–324), we did

not find this to be such a case and denied the motion. As discussed post, the trial court's

interpretation of the SIJ statute was not patently unreasonable in the first instance and

summary reversal would have abdicated our responsibility to provide de novo analysis of

what appears to be a potentially significant and recurring issue of first impression.6

II. DISCUSSION

We deal only with a question of proper interpretation of the current SIJ statute,

specifically the meaning of the statute's "1 or both” language. Where the question

presented is one of statutory interpretation on undisputed facts, our review is de novo.

(Shirey v. Los Angeles County Civil Service Com. (2013) 216 Cal.App.4th 1, 7.)

"A reviewing court's fundamental task in construing a statute is to determine the

intent of the lawmakers so as to effectuate the purpose of the statute. Courts begin this

task by scrutinizing the actual words of the statute, giving them their usual, ordinary

meaning. [Citations.] When statutory language is clear and unambiguous (i.e.,

susceptible to only one reasonable construction), courts adopt the literal meaning of that

language, unless that literal construction would frustrate the purpose of the statute or

produce absurd consequences. In contrast, when the statutory language is ambiguous,

courts must select the construction that comports most closely with the apparent intent of



6

Israel also sought expedited consideration and immediate issuance of the

remittitur because his next juvenile court hearing is set for March 4, 2015, and if he is

dismissed from probation the Department of Homeland Security would no longer have

jurisdiction to consider an application for SIJ status. (See 8 C.F.R. §204.11(c)(5).) As

noted in our January 12, 2015 order, immediate remittitur may issue only on stipulation

of the parties (Cal. Rules of Court, rule 8.272(c)(1)); however, we granted Israel's request

for expedited review given that he has demonstrated some urgency for resolution of this

appeal.7

the Legislature, with a view to promoting rather than defeating the general purpose of the

statute. [Citation.] In short, courts adopt 'the construction that best effectuates the

purpose of the law.' [Citation.]” (Consolidated Irrigation Dist. v. Superior Court (2012)

205 Cal.App.4th 697, 715–716.)

Israel and amici curiae argue that use of the disjunctive " '1 or both' ” in the

statute is an express and unambiguous reflection of congressional intent that a minor only

need to show that reunification is not viable with one parent as a result of abuse,

abandonment or neglect at the hands of that parent. "If the intent of Congress is clear,

that is the end of the matter . . . .” (Chevron U. S. A. v. Natural Res. Def. Council (1984)

467 U.S. 837, 842–843, fn. omitted (Chevron); Leslie H., supra, 224 Cal.App.4th at pp.

347–348.) As we have noted, no California authority has construed this provision of the

SIJ statute, and the few published decisions from other jurisdictions are in conflict.

In Erick M., the Nebraska court recognized that "the '1 or both' parents rule is

consistent with Congress' intent to expand the pool of potential applicants,” but found

that Congress intended that SIJ status be available to only those juveniles who are

seeking relief from parental abuse, neglect, or abandonment, not those seeking

immigration advantage. (Erick M., supra, 820 N.W.2d at p. 647.) The court

consequently held that "where a juvenile lives with only one parent when a juvenile court

enters a guardianship or dependency order, the reunification component under

§ 1101(a)(27)(J) is not satisfied if a petitioner fails to show that it is not feasible to return

the juvenile to the parent who had custody. This is true without any consideration of

whether reunification with the absent parent is feasible because the juvenile has a safe

parent to whose custody a court can return the juvenile.” (Erick M., at p. 647.)

At least one intermediate appellate court adopted Erick M.'s interpretation of the

SIJ statute, agreeing that the "1 or both” language requires a finding that reunification

with neither parent is viable. (H.S.P. v. J.K. (N.J.Ct.App. 2014) 87 A.3d 255, 268.) That

court found the legislative and administrative history showed "two competing goals”: on

one hand, "Congress wanted to permit use of the SIJ procedure when necessary to

prevent the return of juveniles to unsafe parents”; on the other hand, "[w]here such 8

protection is unnecessary, Congress wanted to prevent misuse of the SIJ statute for

immigration advantage.” (Ibid.) The New Jersey Supreme Court has since granted a

petition for review in that matter. (H.S.P. v. J.K. (N.J. 2014) 95 A.3d 258.)

Several New York courts have disagreed with the Erick M. analysis. In Mario S.,

supra, 954 N.Y.S.2d 843, the court held that "[a]lthough [the minor] was able to be

returned to the custody of his mother . . . [t]he fact that [he] was returned to the care of

his mother should not be determinative of his application for SIJ [status] findings.” (Id.

at p. 851.) In rejecting Erick M.'s interpretation of the SIJ statute, the Mario S. court

found that "[n]othing in 8 U.S.C. § 1101(a)(27)(J) or the regulation indicates that the

Congress intended that state juvenile courts pre-screen potential SIJ applications for

possible abuse on behalf of the USCIS.” (Id. at p. 853; accord, In re Marcelina M.-G.

(N.Y.App.Div. 2013) 973 N.Y.S.2d 714, 722 (Marcelina M.-G.) [interpreting the plain

language of the "the '1 or both' language to provide [SIJ status] eligibility where

reunification with just one parent is not viable as a result of abuse, neglect abandonment,

or a similar State law basis”]; Diaz v. Munoz (N.Y.App.Div. 2014) 989 N.Y.S.2d 52, 54;

In re Gabriel H.M. (N.Y.App.Div. 2014) 984 N.Y.S.2d 96, 98.)

We agree with the view of the Nebraska Supreme Court that the reference to "1 or

both” parents in section 1101(a)(27)(J) is ambiguous—i.e., the statute is susceptible to

more than one reasonable interpretation. (Erick M., supra, 820 N.W.2d at p. 644.)

Because "or” describes what a juvenile court must determine in the alternative, it could

be read as Israel urges, or alternatively to require that depending on the circumstances

either reunification with one parent is not feasible or reunification with both parents is

not feasible. (Id. at pp. 644, 648.) But we depart from that court's view to the extent that

it appears to contemplate a state court role, through the SIJ statute, in effectuating federal

immigration policy. "A 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. As Mario S. aptly observed, the SIJ statute and

accompanying regulations 'commit . . . specific and limited issues to state juvenile courts. 9

The juvenile court need not determine any other issues, such as what the motivation of

the juvenile in making application for the required findings might be [citations]; whether

allowing a particular child to remain in the United States might someday pose some

unknown threat to public safety [citation]; and whether the USCIS, the federal

administrative agency charged with enforcing the immigration laws, may or may not

grant a particular application for adjustment of status as a SIJ.' (Mario S., supra,

954 N.Y.S.2d at pp. 852–853[, fn. omitted].)” (Leslie H., supra, 224 Cal.App.4th at

p. 351.)

The parties here appear to agree that there is no specific legislative history relating

to the "1 or both” language of the SIJ statute from which we may divine congressional

intent.

7 At least none has been presented to us. The Erick M. court, at the time of its

decision, found no regulatory interpretation of the statute, and rendered its decision

"absent any statutory or regulatory guidance.” (Erick M., supra, 820 N.W.2d at p. 644.)

Here, in contrast, our attention is directed by all parties, including the People, to several

agency sources interpreting and applying section 1101(a)(27)(J) in a contrary fashion.8



While the judiciary is the final authority on issues of statutory construction and must

reject administrative constructions contrary to clear congressional intent, "considerable

weight [is] accorded to an executive department's construction of a statutory scheme it is

entrusted to administer” (Chevron, supra, 467 U.S. at p. 844, fn. omitted). (Id. at

pp. 842–845; American Meat Inst. v. Leeman (2009) 180 Cal.App.4th 728, 751.) The



7

"The shift in language from the regulatory term 'family reunification' to the

current statutory term 'reunification with [one] or both parents' was accomplished

without a trace of legislative history.” (3 Gordon et al., Immigration Law and Procedure

(2014) § 35.09[3][a], fn. omitted [Lexis, 3-35 Immigration Law and Procedure § 35.09].)

8

The documents referenced by the parties are not part of the trial court record.

However, those materials are posted as reference sources on the official Web sites of the

responsible federal agencies, and both sides agree as to their content. We therefore take

judicial notice of the existence and content of the cited documents. (Evid. Code, § 452,

subd. (h) ["facts and propositions that are not reasonably subject to dispute and are

capable of immediate and accurate determination by resort to sources of reasonably

indisputable accuracy”]; cf. Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364 &

fn.5.)10

agency sources cited here, however, are not contained in formal regulations, and are not

otherwise the product of a formal rule-making and notice and comment process.

9

They

are therefore not accorded the same "Chevron-style deference,” but are nevertheless

" 'entitled to respect' . . . but only to the extent that those interpretations have the 'power

to persuade,' [citation]. [Citation.]” (Christensen v. Harris County (2000) 529 U.S. 576,

587.)

As conceded by the People in withdrawal of their original arguments, there

appears little doubt that USCIS currently interprets and applies section 1101(a)(27)(J) to

include, as "SIJ eligible children” those who may be living in this country "with a foster

family, an appointed guardian, or the non-abusive parent” (italics added).10 Marcelina

M.-G., supra, 973 N.Y.S.2d at page 724, referenced USCIS approval of SIJ status

applications where reunification with one parent was viable, and amici curiae have

submitted examples of decisions by USCIS's Administrative Appeals Office (AAO)11

and the Executive Office for Immigration Review of the Department of Justice that are

consistent with SIJ status eligibility for minors living with a nonabusive parent in the

United States. The Executive Office for Immigration Review has also taken the position

that "Prior to the TVPRA amendments, SIJ classification required a State court finding



9

"Apart from nonsubstantive changes in 2009 (see 74 Fed.Reg. 26937 (June 5,

2009)), [the SIJ] regulations were last updated in 1993 and therefore have not 'kept pace'

with intervening Congressional amendments. [Citaton.]” (Leslie H., supra,

224 Cal.App.4th at p. 348; see 8 C.F.R. § 204.11.) Proposed rules for SIJ petitions were

posted for comment in 2011 (76 Fed.Reg. 54978-01 (Sept. 6, 2011)), but apparently have

yet to be adopted. The proposed rules mirror the "1 or both” parent language, without

additional discussion or explanation.

10 United States Citizenship and Immigration Services, Immigration Relief for

Abused Children: Information for Juvenile Court Judges, Child Welfare Workers, and

Others Working With Abused Children (April 2014)

(as of

Jan. 16, 2015).

11 AAO reviews SIJ proceedings de novo. (See 5 U.S.C. § 557(b) ["[o]n appeal

from or review of the initial decision, the agency has all the powers which it would have

in making the initial decision except as it may limit the issues on notice or by rule”].)11

that the child was eligible for long-term foster care, which effectively meant that

reunification was not viable with either parent. Under the current version of the statute,

because it is only reunification with one parent that must be not viable, the alien child

could potentially be living with one parent and still qualify for SIJ status. [Citation]”

12

While the Erick M. court contended that USCIS, in practice, normally required a

petitioner to prove reunification with both parents was not feasible, its cited example was

a nonprecedential AAO case that seems only to exemplify that SIJ status can be revoked

by USCIS where a request for SIJ classification was not bona fide (e.g., a juvenile court

dependency order had been sought primarily for purpose of obtaining an immigration

benefit rather than for the purpose of relief from abuse, neglect or abandonment).

13



(Erick M., supra, 820 N.W.2d at p. 647.)

Where a statute is "silent or ambiguous with respect to [a] specific issue,” we

consider whether a responsible "agency's answer is based on a permissible construction

of the statute.” (Chevron, supra, 467 U.S. at p. 843, fn. omitted.) Even absent formal

regulatory action by USCIS, we find the interpretation of the SIJ statute adopted by the

agency and Department of Justice to be persuasive and entirely consistent with the

purpose of SIJ status to " 'protect the applicant from further abuse or maltreatment by

preventing him or her from being returned to a place where he or she is likely to suffer

further abuse or neglect' [Citation.]” (Marcelina M.-G., supra, 973 N.Y.S.2d at p. 724.)

The alternative suggested by Erick M. would mean that a juvenile with a safe and suitable

home in the United States would face the prospect of deportation to the place where he or

she may have experienced the abuse, neglect or abandonment that rendered reunification

with the nonresident parent infeasible in the first place. We therefore conclude that an

eligible minor under section 1101(a)(27)(J) includes a juvenile for whom a safe and



12 Ploeg, Special Immigrant Juveniles: All the Special Rules (2014) vol. 8, No. 1,

Immigr. L.Advisor 1, 4

(as of Jan. 16, 2015), italics added.

13 See In Re [Redacted] (U.S. Dept. of Homeland Security, Citizenship and

Immigration Serv., Oct. 30, 2009, No. [Redacted]) 2009 WL 6521113.12

suitable parental home is available in the United States and reunification with a parent in

his or her country of origin is not viable due to abuse, neglect or abandonment.

The juvenile court has already determined Israel to be a ward of the court and has

found that reunification with his father in Mexico is not viable due to abandonment.

Given its view of the scope of the SIJ statute, the juvenile court did not address the

question of whether a return to his home country was in Israel's best interest. (8 U.S.C.

§ 1101(a)(27)(J)(ii).) Although nothing in this record indicates that care and support is

available for Israel in Mexico, a finding on this issue is best made by the juvenile court in

the first instance.

We reverse the juvenile court’s order denying Israel’s request for SIJ status

findings and remand for a hearing as soon as practicable to determine whether it is in Israel’s best interest to be returned to Mexico. If the juvenile court finds that it is not in

Israel’s best interest to be returned to Mexico, the court shall complete Judicial Council

Forms, form JV-224, as required by Code of Civil Procedure section 155, subdivision (b).13