Filed 12/23/19; Modified and Certified for Publication 1/8/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

O.C., a Minor,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

BLANCA ODILIA CARRILLO 

GALLARDO, as Guardian, etc.,

 Real Party in Interest.

 G058416

 (Super. Ct. No. 30-2019-01049051)

 O P I N I O N

Appeal from findings by the Superior Court of Orange County, David L. 

Belz, Judge. Appeal treated as petition for writ of mandate. Petition granted.

Public Counsel, Mary Tanagho Ross, Lucero Chavez; Akin Gump Strauss 

Hauer & Feld, Rex S. Heinke and Jessica M. Weisel for Petitioner.
2

No appearance for Respondent.

No appearance for Real Party in Interest.

* * *

INTRODUCTION

Special immigrant juvenile findings (SIJ findings) based on state law are a 

necessary first step under the federal immigration law that allows abandoned,

unaccompanied minors living in the United States to apply for status as permanent legal 

residents. (8 U.S.C. § 1101(a)(27)(J);

1

Code Civ. Proc., § 155.2) In this case, O.C., a 

14-year-old refugee from Guatemala, asked the superior court to make the required SIJ 

findings based on California law. A mandatory Judicial Council form has been created 

for this purpose. Items 4(b), 5, and 6 require the superior court to detail its findings, 

citing California law. The superior court failed to cite California statutory or case law in 

items 4(b) and 6, and did not check the box in item 5 to indicate O.C. cannot reunify with 

her mother, who is deceased.

We treat the notice of appeal as a petition for writ of mandate. We grant 

the petition and order the probate court to vacate the August 1, 2019 SIJ findings and 

issue new findings in items 4(b) and 6 of the mandatory Judicial Council form 

(FL-357/GC-224/JV-357) based on state law, as proposed by O.C. and in compliance 

1

The federal government may grant special immigrant juvenile status to a minor “who 

has been declared dependent [in] 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” provided “it has been determined in administrative or judicial proceedings that 

it would not be in the [minor’s] best interest to be returned to the [minor’s] . . . previous 

country.” (8 U.S.C. § 1101(a)(27)(J)(i), (ii).)

2

All undesignated statutory citations refer to the Code of Civil Procedure.
3

with title 8 United States Code section 1101(a)(27)(J), 8 Code of Federal Regulations 

part 204.11 (2019), and Code of Civil Procedure section 155. 

STATEMENT OF FACTS AND PROCEDURAL HISTORY

O.C., now 14 years old, was born in Jutiapa, Guatemala. O.C. was 12 years 

old when her mother died. O.C.’s father became ill and depressed, and failed to provide 

O.C. with the care she needed. In July 2017, O.C. and her cousins left Guatemala and 

traveled through Mexico until they reached the United States. At the U.S.-Mexico 

border, O.C. and her cousins were detained by immigration officials; they were released 

to the care of Blanca Odilia Carrillo Gallardo, O.C.’s aunt and the mother of her cousins. 

Gallardo had moved to the United States in about 2008, and sent money back to O.C.’s 

mother in Guatemala to care for her children.

O.C. has lived in Gallardo’s home since September 2018. O.C. is attending 

school and learning English. Gallardo provides O.C. with everything she needs and treats 

her like a daughter. O.C.’s father does not send any money from Guatemala for her 

expenses.

O.C. has no one in Guatemala to care for her. Local gangs in O.C.’s 

hometown assault and steal from community members; the police are unable to control 

the gang members. Federal travel advisories support O.C.’s fear that gang members will 

hurt her if she returns to Guatemala.

3

 

3

 Travel advisories included in the appellate record describe the type and volume of 

crime committed in Guatemala and recommend American citizens reconsider traveling 

there. (See U.S. Dept. of State, Guatemala 2018 Crime and Safety Report 

<https://www.osac.gov/Content/Report/618d66c1-c733-433f-96c0-15f4ae699d92>

archived at: <https://perma.cc/M2TC-NSUY> [as of Dec. 20, 2019]; U.S. Dept. of State, 

Bureau of Consular Affairs, Guatemala Travel Advisory 

<https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/guatemalatravel-advisory.html> archived at: <https://perma.cc/KZ8T-7QY4> [as of Dec. 20, 

2019].) According to these documents, “[v]iolent crime, such as armed robbery and 

murder, is common [throughout Guatemala]. Gang activity, such as extortion, violent 
4

On February 4, 2019, using mandatory Judicial Council forms, 

O.C. petitioned the probate court to appoint Gallardo as her guardian and to make SIJ 

findings. O.C. included declarations in support of both petitions. No objections were 

received.4 Following a hearing, the probate court granted the petition to appoint Gallardo 

as O.C.’s guardian and approved the petition for SIJ findings. 

As to the SIJ findings, the minute order reads: “The Court finds that: 

(1) The minor is a dependent upon the juvenile court, within the meaning of 8 U.S.C. 

Section 1101(a)(27)(J) and 8 C.F.R. Section 204.11(a), (d)(2)(i); (2) It is not in the best 

interest of the minor to return to the minor’s or the minor’s parents’ previous country of 

nationality or country of last habitual residence, within the meaning of 8 U.S.C. Section 

1101(a)(27)(J) and 8 C.F.R. Section 204.11(d)(2)(iii); and (3) Reunification with one or

both of the minor’s parents is not viable due to abuse, neglect or abandonment, within the 

meaning of 8 U.S.C. Section 1101(a)(27)(J) and 8 C.F.R. Section 204.11(d)(2)(iii).”

O.C.’s counsel submitted proposed SIJ findings on the mandatory Judicial 

Council form (FL-357/GC-224/JV-357) for that purpose. The probate clerk advised 

counsel the proposed findings could not be processed because they did not match the 

findings in the probate court’s minute order or the language of the petition.

O.C.’s counsel submitted revised SIJ findings, again citing California law. 

The probate court issued its findings on the Judicial Council form, but as factual bases for 

its findings in items 4(b) and 6, it cited only the federal statute and federal code of 

regulations, not California law. 

O.C.’s counsel then submitted amended SIJ findings and filed a 

memorandum of points and authorities explaining why the state law references suggested 

street crime, and narcotics trafficking, is widespread. Local police may lack the 

resources to respond effectively to serious criminal incidents.” 

4

 O.C.’s father waived the right to notice for both the guardianship and SIJ findings 

petitions. 
5

by O.C.’s counsel, but not included in the probate court’s findings, was necessary. The 

probate clerk rejected the proposed amended findings: “We are unable to process the 

attached papers for the reasons indicated below: Order already on file 08/01/2019. 

Order can not [sic] be amended to include codes that were not in the petition. Factual 

findings are per minute order.” 

O.C. filed a notice of appeal from the probate court’s SIJ findings. To 

ensure O.C. obtains appellate review of the probate court’s findings, we exercise our 

discretion to treat the appeal as a petition for writ of mandate. (Olson v. Cory (1983) 35 

Cal.3d 390, 400-401; see Eddie E. v. Superior Court (2013) 223 Cal.App.4th 622, 628 

(Eddie E.) [petition for writ relief is the remedy for a superior court’s denial of a minor 

immigrant’s request for SIJ findings].)

DISCUSSION

Our analysis involves the application of law to undisputed facts; 

accordingly, our review is de novo. (Leslie H. v. Superior Court (2014) 224 

Cal.App.4th 340, 347 (Leslie H.).) 

Title 8 United States Code section 1101(a)(27)(J) “is a form of immigration 

relief that affords undocumented children a pathway to lawful permanent residency and 

citizenship [by employing] ‘a unique hybrid procedure that directs the collaboration of 

state and federal systems.’” (In re Marisol N.H. (2014) 979 N.Y.S.2d 643, 645.) As this 

court has observed, the specified procedure does not permit state courts to interpret or 

apply federal law or “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., supra, 224 Cal.App.4th at p. 351.) State courts are “‘called upon to 

determine’ discrete factual issues, including ‘whether, under state law, the juvenile is 

under the age of 21, unmarried, dependent upon the court through an order of placement 
6

or other court order, whether reunification with one or both of the juvenile’s parents is 

not possible due to abuse, neglect, or abandonment of the child, and whether it would be 

contrary to the juvenile’s best interest to be returned to his or her previous country of 

nationality.’” (Ibid., italics added.) 

These findings must be made with reference to California law. (8 U.S.C. 

§ 1101(a)(27)(J); 8 C.F.R. § 204.11; Code Civ. Proc., § 155, subd. (a)(1).)5 Moreover, if 

substantial evidence supports the requested SIJ findings, the issuance of the findings is 

mandatory. (§ 155, subd. (b)(1).)

Although title 8 United States Code section 1101(a)(27)(J) is worded in 

terms of a state “juvenile court” having jurisdiction to make the requisite findings under 

state law, the relevant federal regulation defines “juvenile court” 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).) Section 155, which 

codified the holdings in a number of Court of Appeal decisions, is in accord. 

Section 155, subdivision (a)(1) provides that jurisdiction “to make judicial determinations 

regarding the custody and care of children within the meaning of the federal Immigration 

5

Federal and state practice guides reiterate and reinforce the need for state judges to 

make their findings based on state law. A United States Citizenship and Immigration 

Services (USCIS) publication prepared for use by juvenile courts nationwide advises, 

“Juvenile courts issue orders that help determine a child’s eligibility for SIJ status. A 

child cannot apply to USCIS for SIJ status without an order from a juvenile court. . . . 

The role of the court is to make factual findings based on state law about the abuse, 

neglect, or abandonment; family reunification; and best interests of the child.” (Special 

Immigrant Juvenile Status: Information for Juvenile Courts, italics added 

<https://www.ncjfcj.org/sites/default/files/Information_for_Juvenile_Courts -

FINAL%20%281%29.pdf> archived at: <https://perma.cc/2K6J-MBNU> [as of Dec. 20, 

2019].) That same publication reminds juvenile courts that while they should be familiar 

with current immigration law, “[a]ll findings must be based on state law.” (Ibid.)

A September 30, 2014 memorandum from the California Judicial Council to presiding 

judges and chief executive officers of California’s superior courts addresses section 155 

and provides in relevant part: “All findings are to be based on California state law.” 
7

and Nationality Act (8 U.S.C. Sec. 1101 et seq. and 8 C.F.R. Sec. 204.11)” rests with the 

superior court, “which includes, but is not limited to, the juvenile, probate, and family 

court[s].” 

In Eddie E., supra, 223 Cal.App.4th 622—a decision that predates 

section 155—this court explained that under the federal statute “a court must find either

that an immigrant has been (a) ‘declared dependent on a juvenile court’ or (b) ‘legally 

committed to, or placed under the custody of’ a state agency or department or ‘an 

individual or entity appointed by a State or juvenile court located in the United States.’ 

[Citation.] Once either of those findings is made, the court must then ‘“ma[k]e two 

additional findings: (1) that reunification with one or both of the immigrant’s parents is 

not viable due to abuse, neglect, abandonment, or a similar basis found under State law; 

and (2) 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.”’” 

(Eddie E., supra, at pp. 627-628, third italics added; see B.F. v. Superior Court (2012) 

207 Cal.App.4th 621, 630 [“the superior court sitting as a probate court has the authority 

and duty to make findings within the meaning of section 1101(a)(27)(J) [of title 8 of the 

United States Code] and 8 Code of Federal Regulations part 204.11”].)

The requisite factual findings “may be made at any point in a proceeding 

regardless of the division of the superior court or type of proceeding.” (§ 155, 

subd. (a)(2).) Three findings are required (id., subd. (b)(1)(A)-(C)); additional findings 

may be made “if requested by a party” (id., subd. (b)(2).) The threshold finding for a 

superior court is that the immigrant child was either declared a dependent of the court or 

placed under the custody of a court-appointed guardian. (Id., subd. (b)(1)(A)(i), (ii).) In 

making this finding, the superior court must indicate the date on which the dependency or 

placement began. (Id., subd. (b)(1)(A)(ii).) The second required finding is that the 

immigrant child cannot reunify with one or both parents “because of abuse, neglect, 

abandonment, or a similar basis pursuant to California law.” (Id., subd. (b)(1)(B).) The 
8

superior court’s findings must “indicate the date on which reunification was determined 

not to be viable.” (Ibid.) Finally, the superior court must find “it is not in the best 

interest of the child to be returned to child’s . . . previous country.” (Id., subd. (b)(1)(C).) 

California superior courts must issue their findings on a Judicial Council 

form created for this purpose. Item 4(b) on the form applies when the immigrant child is 

not a dependent of the juvenile court, but has come within the superior court’s 

jurisdiction by other means, e.g., delinquency or guardianship. There, the superior court 

must include citations to the applicable state statutory or decisional authority (e.g., 

Welfare and Institutions Code, Probate Code, or Family Code) upon which the threshold 

custody or commitment order is based. (§ 155, subd. (b)(1)(A)(i), (ii).) In item 5 on the 

form, the superior court must identify whether state court jurisdiction was obtained as the 

result of “abuse, neglect, abandonment, or a similar basis pursuant to California law.” 

(Id., subd. (b)(1)(B).) The superior court’s findings also must “indicate the date on which 

reunification was determined not to be viable.” (Ibid.) Finally, item 6 on the form 

requires the superior court to make findings as to why it is not in the child’s best interest 

to be returned to his or her country of nationality or last habitual residence. (Id., 

subd. (b)(1)(C).)

O.C. submitted proposed findings that complied with federal and state law. 

It appears the probate court never reviewed O.C.’s proposed findings, however. The 

probate court issued no minute orders concerning O.C.’s proposed language. Instead, the 

proposed findings were rejected for “processing” by a probate clerk, whose stated reasons 

for the rejections had no basis in law.

Ignoring O.C.’s proposed language, the probate court’s findings in 

item 4(b) of the Judicial Council form cited only federal law. The probate court 

appropriately relied on state statutes and an appellate decision to support its findings in 

item 5 as to O.C.’s father and deceased mother, but did not check the box referencing 

mother. The probate court also failed to cite any state authority to support the findings 
9

detailed in item 6. The findings in items 4(b) and 6 are insufficient under federal and 

state law; the failure to check the box in item 5 appears to be an oversight.

The stated purpose for SIJ findings is to enable an immigrant child to 

petition the USCIS for SIJ status. (§ 155, subd. (a)(1).) The failure to issue the 

SIJ findings under state law prejudices O.C.’s ability to seek SIJ status from USCIS. 

Without compliant findings, “no youth can apply for [SIJ status].” (Note, Fear and 

Failing in Family Court: Special Immigrant Juvenile Status and the State Court 

Problem, 21 Cardozo J.L. & Gender 201, 214.) Indeed, SIJ status has been denied due to 

the failure of other state courts to specify that their SIJ findings were based on state law. 

(See Matter of A-A-M-R (Jan. 31, 2019) Admin. Appeals Off. No. 01949751, at p. 4 [“For 

SIJ classification, the record must demonstrate that the court made a legal rather than 

solely factual determination on the viability of parental reunification because 

section 10l(a)(27)(J)(i) of the Act requires the ruling to be made ‘under State law’”];6

Matter of O-T-A (Aug. 16, 2017) Admin. Appeals Off., No. 00214172, at p. 3 [“Because 

the order and supporting evidence contain no reference to any state law under which the 

reunification determination was made, the order lacks a qualifying determination that 

parental reunification is not viable, as section 101 (a)(27)(J)(i) of the Act requires [and] 

the Petitioner is ineligible for SIJ classification”].)7

For this reason, the probate court must issue findings based on state law. 

6

 <https://www.uscis.gov/sites/default/files/err/C6%20-

%20Dependent%20of%20Juvenile%20Court/Decisions_Issued_in_2019/JAN312019_02

C6101.pdf> archived at: <https://perma.cc/Z3F6-M84S> [as of Dec. 20, 2019]

7

 <https://www.uscis.gov/sites/default/files/err/C6%20-

%20Dependent%20of%20Juvenile%20Court/Decisions_Issued_in_2017/AUG162017_0

1C6101.pdf> archived at: <https://perma.cc/C8RK-BG5A> [as of Dec. 20, 2019]
10

DISPOSITION

Let a writ of mandate issue directing respondent court to vacate the SIJ 

findings entered on August 1, 2019. Within 10 days of this decision becoming final, O.C. 

may submit proposed findings for items 4(b), 5, and 6 on the Judicial Council form. 

DUNNING, J.*

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.

* Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
Filed 1/8/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

O.C., a Minor,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

BLANCA ODILIA CARRILLO 

GALLARDO, as Guardian, etc.,

 Real Party in Interest.

 G058416

 (Super. Ct. No. 30-2019-01049051)

 ORDER MODIFYING OPINION

 AND GRANTING REQUEST FOR

 PUBLICATION; NO CHANGE IN

 JUDGMENT

It is ordered that our opinion filed on December 23, 2019, be modified as follows:

On page 4, the first sentence of the last paragraph that begins “O.C.’s counsel then 

submitted,” and continues onto page 5, the word “was” is changed to “were” so the 

sentence reads:
2

O.C.’s counsel then submitted amended SIJ findings 

and filed a memorandum of points and authorities explaining 

why the state law references suggested by O.C.’s counsel, but 

not included in the probate court’s findings, were necessary. 

This modification does not result in a change in the judgment.

Petitioner has requested that our opinion be certified for publication. It appears 

that our opinion meets the standards set forth in California Rules of Court, rule 

8.1105(c)(1) and (6). The request is GRANTED. The opinion is ordered published in the 

Official Reports.

DUNNING, J.*

WE CONCUR:

O’LEARY, ACTING P. J.

GOETHALS, J.

* Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.