[J-45-2024] [MO: Dougherty, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LICELY JUAREZ VELASQUEZ,

 Appellant

 v. 

LIZARDO MARROQUIN MIRANDA,

 Appellee

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

No. 108 MAP 2023

Appeal from the Order of the 

Superior Court at No. 2688 EDA 

2022, entered on June 20, 2023, 

Affirming the Order of the Delaware 

County Court of Common Pleas, 

Civil Division, at No. CV-2021-

002235 dated September 15, 2022 

and entered on September 20, 2022

SUBMITTED: March 25, 2024

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: August 29, 2024

As I initially considered the Majority’s disposition of this case, I perceived it to 

conflate concepts of child custody and juvenile dependency. In Pennsylvania law, these 

are distinct paradigms. The idea that parents can be “appointed” by the court to have 

custody of their own children struck me as strained and counterintuitive. However, after 

digging deeper, I find myself unable to avoid the peculiar, but nonetheless determinative,

definition of “juvenile court” that federal law imposes upon us here. I also note that the 

weight of authority from other state courts suggests that the Majority’s disposition is 

correct.

Federal law defines a “special immigrant,” in relevant part, as: 

(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 
[J-45-2024] [MO: Dougherty, J.] - 2 

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 specifically consents to such jurisdiction; 

and

(II) no natural parent or prior adoptive parent of any alien 

provided special immigrant status under this subparagraph 

shall thereafter, by virtue of such parentage, be accorded any 

right, privilege, or status under this chapter. . . .1

The federal regulations provide additional relevant information about special immigrant 

juvenile (“SIJ”) status: 

(a) Definitions. As used in this section, the following definitions apply to a 

request for classification as a special immigrant juvenile.

Judicial determination means a conclusion of law made by a juvenile 

court.

Juvenile court means a court located in the United States that has 

jurisdiction under State law to make judicial determinations about the 

dependency and/or custody and care of juveniles.

* * *

(b) Eligibility. A petitioner is eligible for classification as a special immigrant 

juvenile under section 203(b)(4) of the Act as described at section 

101(a)(27)(J) of the Act, if they meet all of the following requirements:

(1) Is under 21 years of age at the time of filing the petition;

(2) Is unmarried at the time of filing and adjudication;

(3) Is physically present in the United States;

(4) Is the subject of a juvenile court order(s) that meets the 

requirements under paragraph (c) of this section; and

(5) Obtains consent from the Secretary of Homeland Security to 

classification as a special immigrant juvenile. For USCIS to consent, 

the request for SIJ classification must be bona fide, which requires 

the petitioner to establish that a primary reason the required juvenile 

court determinations were sought was to obtain relief from parental 

1 8 U.S.C. § 1101(a)(27)(J).
[J-45-2024] [MO: Dougherty, J.] - 3 

abuse, neglect, abandonment, or a similar basis under State law. 

USCIS may withhold consent if evidence materially conflicts with the 

eligibility requirements in paragraph (b) of this section such that the 

record reflects that the request for SIJ classification was not bona 

fide. USCIS approval of the petition constitutes the granting of 

consent.

(c) Juvenile court order(s).

(1) Court-ordered dependency or custody and parental reunification 

determination. The juvenile court must have made certain judicial 

determinations related to the petitioner’s custody or dependency and 

determined that the petitioner cannot reunify with their parent(s) due 

to abuse, neglect, abandonment, or a similar basis under State law.

(i) The juvenile court must have made at least one of the 

following judicial determinations related to the petitioner’s 

custodial placement or dependency in accordance with State 

law governing such determinations:

(A) Declared the petitioner dependent upon the 

juvenile court; or

(B) Legally committed to or placed the petitioner under 

the custody of an agency or department of a State, or 

an individual or entity appointed by a State or juvenile 

court.

(ii) The juvenile court must have made a judicial determination 

that parental reunification with one or both parents is not 

viable due to abuse, abandonment, neglect, or a similar basis 

under State law. The court is not required to terminate 

parental rights to determine that parental reunification is not 

viable.2

Given the statutory definition of a special immigrant juvenile as one “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 individual or entity 

appointed by a State or juvenile court,”3 application to custody cases seems dubious as 

an initial matter. Two pieces of this puzzle merit scrutiny. First, while the term “juvenile 

court” in Pennsylvania refers to a court dealing with dependency or delinquency matters, 

2 8 C.F.R. § 204.11. According to the Federal Register, these regulations are 

promulgated by the United States Citizenship and Immigration Service (“USCIS”), an 

agency within the Department of Homeland Security. See 87 FR 13066-01 (2022).

3 8 U.S.C. § 1101(a)(27)(J)(i).
[J-45-2024] [MO: Dougherty, J.] - 4 

the federal provisions appear to sweep more broadly. Second, while the federal law uses 

the term “appointed” in reference to custody, Pennsylvania courts use the term “awarded” 

in the custody context. I address these two problems in turn.

As noted, in Pennsylvania, a “juvenile court” is one that handles dependency and 

delinquency cases. That being said, the applicable federal regulation expressly defines 

a “juvenile court” as one that has jurisdiction “to make judicial determinations about the 

dependency and/or custody and care of juveniles.”4 In Pennsylvania, such a definition of

“juvenile court” would include a family division court that is making a custody 

determination. That is not how we generally refer to a family court. Nonetheless, in 

reviewing this federal statute and regulation, our courts are bound to respect the language

and definitions that Congress and its agency delegees have chosen. The applicable 

federal regulation defines an acceptable juvenile court order for the SIJ application as 

one that makes “dependency or custody determinations,” provided that the predicate 

findings are included.5 This indicates that federal law contemplates custody as well as 

dependency as an appropriate avenue for pursuit of a SIJ predicate order, and that a 

Pennsylvania family court accordingly is a lawful venue for such a proceeding. 

Other jurisdictions examining the issue have reached similar conclusions. For 

example, in a memorandum opinion, a Texas appellate court exploring jurisdiction stated: 

“In Texas, family district courts have jurisdiction over child welfare, custody, support, 

dependency[,] neglect, and delinquency, among other matters. Thus, family district 

courts are considered juvenile courts under the SIJ statute.”6 

4 8 C.F.R. § 204.11(a).

5 8 C.F.R. § 204.11(c) (cleaned up). 

6 In re B.A.L., No. 01-16-00136-CV, 2017 WL 3027660, at *3 (Tex. App. July 18, 

2017) (unpublished) (internal citations omitted) (citing In re J.L.E.O., No. 14–10–00628–

CV, 2011 WL 664642, at *1 n.4 (Tex. App. Feb. 24, 2011) (unpublished) (“although Texas 

(continued...)
[J-45-2024] [MO: Dougherty, J.] - 5 

In reviewing the statute and regulation, a Maryland appellate court noted that “the 

exact makeup of these ‘juvenile courts’ varies from state to state,” that “courts around the 

country hear SIJ evidence in a variety of settings, including custody proceedings, 

adoption petitions and probate issues,” and that SIJ issues also have been “raised solely 

by motion, independent of any custody or guardianship proceeding.”7 Examining its own 

judicial system, the Maryland court determined that, “an equity court has jurisdiction over 

‘custody or guardianship of a child.’ The circuit courts ‘are the highest common-law and 

equity courts of record exercising original jurisdiction within the State.’ Therefore, the 

circuit courts would be considered juvenile courts under the broad federal definition and 

have jurisdiction to hear evidence relating to SIJ status.”8 Since the circuit court was 

hearing a custody action, the appellate court held that the circuit court had jurisdiction as 

a juvenile court to make SIJ findings.

 A Washington state court has ruled similarly, holding that “a superior court judge 

acting as a family court judge (i.e., making determinations of a child’s custody) -- or a 

superior court family law commissioner invested with such authority by the constitution, 

statute or delegation . . . doing the same -- is a ‘juvenile court’ judge for federal law 

purposes, authorized to [make SIJ status] findings.”9 

grants certain ‘juvenile court[s]’ ‘exclusive jurisdiction over all proceedings involving 

delinquent conduct [by child] or conduct [by child] indicating a need for supervision,’ 

definition of ‘juvenile court’ under SIJ statute ‘broader . . . and includes the jurisdiction 

granted to Texas family district courts’” (quoting In re J.L.E.O., 2011 WL 664642 at *1 

n.4)). The B.A.L. court ultimately concluded it did not have jurisdiction over the appeal 

because B.A.L. turned eighteen prior to the final order being signed, thereby depriving 

the juvenile court of jurisdiction.

7 Simbaina v. Bunay, 109 A.3d 191, 199 (Md. Ct. Spec. App. 2015). 

8 Id. at 200 (footnotes and internal citations omitted).

9 In re Custody of A.N.D.M., 527 P.3d 111, 119 (Wash. Ct. App. 2023). 
[J-45-2024] [MO: Dougherty, J.] - 6 

Based upon the definition prescribed by the applicable federal regulation and the 

persuasive interpretations offered by other states’ courts, I am satisfied that the trial court 

in this case was acting as a “juvenile court” for purposes of federal law, even if it was not 

a juvenile court as properly understood in Pennsylvania’s judicial system. 

As to the second issue, the use of the term “appointed” is ill-fitting in relation to an 

award of custody to a parent. We might (and sometimes do) speak of an agency or foster 

parent being appointed by a court to care for a child. We do not speak in this way when

describing a parent’s care and custody of the parent’s child. This language appears to 

be largely unexamined by other states’ courts. Most courts have focused upon the next 

phrase of the statute when determining whether SIJ findings are permitted in 

circumstances in which a parent is awarded custody: to wit, whether “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.”10 Even more common are scenarios in which state

courts simply address an aspect of SIJ findings without questioning whether the parent’s 

award of custody falls within the federal statute’s ambit.

11

Here, our Superior Court concluded that the children were not eligible for SIJ status 

because “[the c]hildren must be adjudicated dependent or under the custody of a state 

agency or individual or entity appointed by the state or juvenile court.”12 The court opined

10 8 U.S.C. § 1101(a)(27)(J)(i); see J.U. v. J.C.P.C., 176 A.3d 136, 138–39 (D.C. 

2018) (“A finding is sufficient for SIJ status if reunification with only one parent is not viable 

due to abuse, neglect, or abandonment. . . .”). 

11 See, e.g., Kitoko v. Salomao, 215 A.3d 698, 702 (Vt. 2019) (holding that in a 

custody proceeding, “given the primacy of a child’s best interests in cases like this and 

the court’s broad discretion in determining those interests, the court does have the 

authority to make [SIJ] findings.”); Hernandez-Lemus v. Arias-Diaz, 100 N.E.3d 321, 323 

(Mass. 2018) (holding that the child was entitled to SIJ findings in the context of a custody 

case filed by the father).

12 Velasquez v. Miranda, 297 A.3d 837, 847 (Pa. Super. 2023). 
[J-45-2024] [MO: Dougherty, J.] - 7 

that equating the mother’s award of custody with the statutory requirement of custody in

an individual appointed by a juvenile court is inconsistent with the purpose of the statute. 

The court identified the statute’s purpose as “assist[ing] a limited group of abused children 

who are essentially ‘ward[s] of the United States.’”13 In reaching that conclusion, the 

Superior Court relied upon a lengthy quotation from the United States Court of Appeals 

for the Third Circuit, portions of which were focused upon language that is no longer part 

of the federal regulation.14 The Superior Court distinguished its decision in Orozco v. 

Tecu, in which that court had determined that a trial court abused its discretion by failing 

to make requested findings concerning a SIJ determination implicated in the mother’s 

custody hearing.15 In Orozco, the trial court had refused to make SIJ findings, while the 

trial court here made findings that the children were not eligible.16 This appears to be a 

distinction without a difference. If the Superior Court was correct that the award of 

custody to the mother in this case could not satisfy the federal statutory requirements, 

then it should have concluded that the Orozco panel was incorrect in finding that the trial 

court abused its discretion in refusing to make SIJ findings. If the Superior Court’s 

reasoning here is correct, then the trial court in Orozco could not have made SIJ findings 

when the mother was awarded custody. 

13 Id. at 847 n.6.

14 Id. at 845-46 (quoting Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 168-70 (3d. Cir. 

2018)). Osorio-Martinez cited the version of the federal regulation that was in effect at 

the time. Notably, the regulation has since been amended to reflect the 2008 federal 

statutory amendments which “[e]xpanded eligibility to include children whom a juvenile 

court has placed under the custody of a person or entity appointed by a state or juvenile 

court.” Budhathoki v. Nielsen, 898 F.3d 504, 508 (5th Cir. 2018) (quoting 6 USCIS, Policy

Manual J.1 (2017)).

15 284 A.3d 474 (Pa. Super. 2022).

16 297 A.3d at 847.
[J-45-2024] [MO: Dougherty, J.] - 8 

The Superior Court here is not alone in ruling that an award of custody is not the 

same as an appointment by a juvenile court. In Calel v. Calel, the Ohio Court of Appeals 

concluded that a “trial court did not appoint the [mother] as the juvenile’s custodian” in a 

custody case.17 The court reasoned that, because a parent has a constitutionally 

protected right to custody of a child, “a parent’s right to custody of their child arises from 

the operation of law, it does not originate with a court appointment.”18 The Ohio court 

offered no further discussion of the language of the federal statute or regulation.

The decisions by our intermediate court here and that of the Ohio court in Calel 

run counter to the greater weight of persuasive decisions of other states’ courts. For 

example, a Minnesota court has examined the issue of whether children were “placed 

under the custody of . . . an individual . . . appointed by a [s]tate or juvenile court” when 

the mother was awarded custody of her children.19 Because the relevant terms were not 

defined in the statute, the court turned to dictionary definitions, finding that:

The verb “place” has a number of definitions, including “[t]o put in a specified 

relation or order,” as when placing words into alphabetical order, or “[t]o put 

into a particular condition,” as when someone is placed under arrest, or “[t]o 

appoint to a post,” as when placing a person in a key position. The

American Heritage Dictionary of the English Language 1382 ([3d] ed. 1992). 

Here, by granting appellant sole custody of the children, the district court 

created a specified relation and put the children into a particular position, 

under the care and custody of appellant. The children were therefore 

“placed” with appellant.

In Welfare of A.S., we examined the plain meaning of the term “custody,” 

noting that it is defined by Black’s Law Dictionary as “the care and control 

of a thing or person for inspection, preservation, or security.” 882 N.W.2d 

[633,] 639 [(Minn Ct. App. 2016)] (quotation omitted). Here, the children 

17 2024 WL 418789 at *2 (Ohio Ct. App. Feb. 2, 2024) (citing Gonzalez v. 

Rodriguez, 115 N.E.3d 718, 722 (Ohio Ct. App. 2018)).

18 Id. 

19 De Guardado v. Guardado Menjivar, 901 N.W.2d 243, 247 (Minn. Ct. App. 2017). 
[J-45-2024] [MO: Dougherty, J.] - 9 

were placed under the “custody” of appellant because she was made 

responsible for their care and control. 

The noun “individual” is defined variously as simply “[a] person,” “[a] single 

human being considered apart from a society or community,” or “[a] human 

being regarded as a unique personality.” The American Heritage Dictionary

of the English Language 920 ([3d] ed. 1992). Appellant is an “individual” in 

this instance; she was granted sole custody. 

Lastly, the verb “appoint” is defined, in relevant part, as “[t]o select or 

designate to fill an office or position” or “[t]o fix or set by authority or by 

mutual agreement.” By fixing appellant's custodial rights by authority and 

designating her as sole custodian, the district court effectively “appointed” 

appellant.20

Based upon this plain language analysis, the Minnesota court determined that the award 

of custody to the mother qualified as an appointment under the SIJ statute. The court 

also provided an alternative analysis. To the extent that the statute was ambiguous, the 

court determined that both the legislative history of the SIJ statute and the relevant 

agency’s interpretation of the statute supported the court’s conclusion.21 

Similarly, in Washington, the A.N.D.M. court held that it was “undisputed” that 

placing the child in the mother’s custody satisfied the “placed under the custody of . . . an 

individual . . . appointed by . . . [a] juvenile court” portion of the SIJ statute.22 In New York, 

a family court once refused to provide SIJ findings when the mother was awarded custody 

of the child.23 New York’s Appellate Division deemed this to be error. Although it focused 

upon the “reunification with 1 or both parents provision,” the appellate court also held that

“since the Family Court placed [the child] in the custody of her mother, she has been 

20 Id. at 248 (footnotes and some internal citations omitted).

21 Id. at 249 (citing as evidence the 2008 amendments to the SIJ statute and the 

USCIS policy manual).

22 In re Custody of A.N.D.M., 527 P.3d at 120.

23 Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 718 (N.Y. App. Div. 2013).
[J-45-2024] [MO: Dougherty, J.] - 10

‘legally committed to, or placed under the custody of . . . an individual . . . appointed by a 

State or juvenile court located in the United States.’”24 The Nevada Supreme Court has 

reached a similar conclusion, holding that “the district court's order granting [the mother’s] 

petition for physical custody over [the child] constitutes a court determination that placed 

[the child] under [the mother’s] custody. We conclude that an order determining physical 

custody of a child satisfies the dependency or custody prong for SIJ predicate findings.”25

 The term “appointed” is a poor word choice for describing an award of custody. 

But, considering the federal statute and regulation, and the above-discussed case law, I 

feel bound to give effect to what seems to be the intent of the federal law and its language. 

Outside of the SIJ context, I would incline to defy attempts to conflate juvenile courts with

custody courts. But, within that specific context, I feel compelled to recognize and respect 

federal primacy in matters of immigration and citizenship.26 Hence, I agree

(uncomfortably) that, for purposes of this particular federal law, a court awarding custody 

is a “juvenile court” with the authority to issue a predicate order making SIJ findings, 

provided that the evidentiary record supports it. Hence, while I confess that I am not too 

sure that I am right,27 I concur in the Majority’s legal conclusions. 

24 Id. at 721.

25 Amaya v. Guerrero Rivera, 444 P.3d 450, 452 (Nev. 2019) (internal citation 

omitted); see id. at 452 n.5 (citing Simbaina, De Guardado, and Marcelina M.-G. as

examples of other state courts that reached the same conclusion).

26 See generally, U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have Power . . . 

To establish an [sic] uniform Rule of Naturalization. . . .”).

27 See Learned Hand, ‘The “Spirit of Liberty” Speech’ (delivered in 1944 on I AM an 

American Day), Bruun and Crosby, eds., Our Nation's Archives: The History of the United

States in Documents (Black Dog & Levanthal 1999) (“The spirit of liberty is the spirit which 

is not too sure that it is right. . . .”). If we are indeed getting this wrong, Congress and the 

USCIS can — and should — make that clear.
[J-45-2024] [MO: Dougherty, J.] - 11

However, I am intrigued by the Dissent’s questions regarding the use of the term 

“reunification” in the statute, and the attendant implications for a one-parent custody 

award.28 As noted above, several state courts have grappled with the “reunification with 

1 or both of the immigrant’s parents” language.

29 A question naturally arises as to 

whether a child can be “reunified” with a parent if the child was never out of the parent’s 

custody. To my knowledge, these issues have not been squarely addressed in 

Pennsylvania’s appellate courts.30 And they do not appear to have been raised thus far 

in this case. It seems that, despite the Majority’s thoughtful efforts today to clarify the law 

surrounding SIJ predicate orders, our work may not be done.

Ultimately, I depart from the mandate that the Majority chooses. Given the 

Majority’s clarifications of the law, in my view, the best course of action is neither to 

compel entry of an order as the Majority directs nor to remand to the Superior Court as 

the Dissent suggests. Instead, I would remand to the trial court in the first instance. The 

trial court can review the record as it stands or supplement that record, either on its own 

accord or by request of the parties, if the court deems supplementation necessary in order 

to apply today’s decision. Once the trial court makes its factual findings and applies the 

28 See Diss. Op. at 5-6.

29 See, e.g., J.U., 176 A.3d 138-39 (“A finding is sufficient for SIJ status if reunification 

with only one parent is not viable due to abuse, neglect, or abandonment. . . .”); Marcelina

M.-G., 973 N.Y.S.2d at 722 (“We interpret the ‘1 or both’ language to provide SIJS 

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

abandonment, or a similar State law basis.”).

30 While Orozco did not directly address the question that the Dissent raises, the 

Superior Court implicitly blessed the interpretation that custody with one parent could 

support SIJ findings. In that case, in which the mother was awarded custody of the child, 

the Superior Court held that the trial court abused its discretion in failing to issue an SIJ 

predicate order, and it remanded “for the trial court to enter a new order that shall include 

factual findings with respect to [the child] that are predicate to USCIS’s SIJ determination 

under federal law.” 284 A.3d at 479. 
[J-45-2024] [MO: Dougherty, J.] - 12

law as clarified and expounded upon in today’s decision, that court can then issue the 

order it deems appropriate, subject, of course, to further appellate review.