J

- S03016

- 23 2023 PA Super 135

MARIA ESTELA VILLEGAS RIVAS

Appellant

v.

JUANNA DAYEL VILLEGAS AND MARVIN DAVID LANDAVERDE : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2517 EDA 2022
Appeal from the Order Entered September 7, 2022 In the Court of Common Pleas of Chester County Civil Division at No(s): 2022

- 04171

- CU BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J. CONCURRING STATEMENT BY SULLIVAN, J.: FILED JULY 27, 2023 The learned majority thorough ly and persuasive ly explains its holding that the trial court abused its discretion by refusing to consider a request for findings related to the subject child’s status as a special immigra nt juvenile (“SIJ”)

. T his Court’s precedent compels me to agree that the trial court erred in suggesting that it lacked jurisdiction to make such findings. S ee Orozco
v. Tecu , 284 A.3d 474 , 479 (Pa. Super. 2022). However, I write separately based on my view that the SIJ statute, 8 U.S.C.A. § 1101(a)(27 ) (J) , present s unique problems , which, without further guidance from our Supreme Court and General Assembly , will continue to challenge our orphans’ , juvenile , and family courts. The SIJ statute and the implementing regulations are remarkable insofar as they enl ist state courts as part of the immigration process and delegate to those courts ’ findings that, inter alia : reunification with one or both of theJ

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child’s parents is not viable due to abuse, neglect, or abandonment and it would not be in the child’s best i nterests to return to a foreign country of origin or last habitual residence. See 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R. § 204.11(b)

- (c). Although a state court does not make an ultimate immigration decision, state courts are an integral part of the SIJ s tatus proceedings. See Orozco , 284 A.3d at 477. This hybrid approach of engrafting federal immigration law unto state law rests on a presumption that state courts have special competence when addressing abandonment, neglect, and abuse and determining a c hild’s best interests. See In re J.J.X.C. , 734 S.E.2d 120, 124 (Ga. Ct. App. 2012). Pennsylvania courts have only recently addressed the SIJ statute in published decision s in Orozco and Velasquez v. Miranda , --- A.3d

--- , 2023 PA Super 111, 2023 WL 4069151 (Pa. Super. 2023)

. 1 T he SIJ statute is not

new , however, and other state courts’ interp retation s and application s of the
statute have resulted in inconsistent decisions

. 2

_________________ __________ ______ ____ _______ 1 A petition for reargument in Velazquez is currently pending before this Court.

2 Congress enacted the first SIJ statute in 1990 and amended it in 1991, 1994, 199 8 , and 2005 . The earlier iteration s of the statute appear to have been limited to cases where a child’s parents brought a child to t he United States, but the child became eligible for long

- term foster care

. See Yeboah v. U.S. Dep ’ t of Justice , 345 F.3d 216, 221

- 22 (3d Cir. 2003) (noting that the original SIJ statute provided an alternative to deporting a child along with abusive parents or deporting a child to parents who abandoned the child once in the United States )

. Congress amended the statute in 2008 to its current form. (Footnote Continued Next Page)J

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Initially, interpreting the SIJ statute as requiring a state court to make certain findings is problematic

. The SIJ statute itself contains n o language that m andates a state court make SIJ findings , see Canales v. Torres Orellana , 800 S.E.2d 208, 21 7 ( Va. Ct. App. 2 017) , nor could the federal SIJ
statute and associated regulations so command without implicating the principles of federalism and the Tenth Amendment. Cf. MCI WorldCom, Inc. v. Pennsylvania Pub. Util. Comm'n , 844 A.2d 1239, 1251 (Pa. 2004) (noting that “ The Tenth Amendment prohibits Congress from requiring states to administer federal programs against their will [,] ” but a “[f] ederal regulation does not commandeer a state ’ s legislative power or violate the Tenth Amendment as long as the state is given a ch oice regarding whether or not to enforce the regulation ” ); accord de Rubio v. Rubio Herrera , 541 S.W.3d 564, 573 n.9 (Mo. Ct. App. 2017).
Next , n o settled interpretation or application of the SIJ statute has developed among the other states , and there i s no unified body of law for considering what evidence will be sufficient to require SIJ findings.

_________________ __________ ______ ____ _______ Commentators have noted the striking variance among the state court s’ interpretations and applica tions of the SIJ statute

. See , e.g. , Richard F. Storrow, Unaccompanied Minors at the U.S.

- Mexic o Border: The Shifting Sands of Special Immigrant Juvenile Status, 33 Geo. Immigr. L.J. 1 , 20

- 29 (201 8 ) ( discussing s tate court decisions ) ; Gregory E. Catangay, Abandoning the Status Quo: Towards Uniform Application of Special Immigrant Juvenile Status, 20 U.C. Davis J. Juv. L. & Pol’y 39, 73

- 74 (2016) (arguing that the variances in state law undermines the intent of the SIJ statute and that Congress sho uld remove the state court requirements from the SIJ and keep the program within the purview of the federal system).J

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Pennsylvania has only recently beg un to take first steps into this area . See Velasquez , 2023 WL 4069151 , at * 8 (holding that a child d id not meet th e statutory definition of an SIJ when the child reside d with one parent in the United States ; the child was n ot adjudicated dependent or under the custody of a state agency, entity, or individual appointed by a state court ; the trial court’s grant of sole legal and physical custody of the child to the mother was not an appointment of a custodian for the child )

. 3 I acknowledge that our family, juvenile, and orphans’ courts have unique competence to determine the best interests of a child , particularly when a parent and the child have a significant connection to Pennsylvania and substantial evidence exists in
Penn sylvania

. Moreover, findings of abuse, abandonment and neglect under our law and SIJ findings may overlap . However, our courts will face obvious practical limitations because substantial evidence is or may not be readily available in Pennsylvania and , as here, the court may have to determin e whether past abuse, neglect, or abandonment occurred in th e foreign country and whether it is not in a child’s best interest to return to that county

. Furthermore, the trial court in this case will not have the benefit of adversarial testing of the evidence or legal theories

. 4 Thus, w ithout settled procedures

_________________ __________ ______ ____ _______ 3 Other state courts interpreting the SIJ statute have reached contrary conclusions. See

, e.g. , De Guardado v. Guardado Menjivar , 901 N.W.2d 243, 248 (Minn. Ct. App. 2017)

.
4 Here, the moving party filed an unopposed petition for custody of child ag ainst the child’s parent s who resided in a different country and did not participate at the hearing

.J

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for bringing and considering a request for SIJ findings, it is likely that our courts will face similar confusion and produce similar in consistent results as experienced in other state courts

. Lastly, I would note that o ther states have enacted legislation addressing SIJ findings

. 5 While I concur with today’s narrow decision based

on its application of Orozco , I believe that th e issues concerning the SIJ
statute demand attention from our General Assembly and the rulemaking authority of our Supreme Court. Thus, I respectfully concur in t he result. Judge Bowes joins this concurring statement.

_________________ __________ ______ ____ _______ 5 See , e.g. , Cal. Civ. Proc. Code § 155; Colo. Rev. Stat. Ann. § 14

- 10

- 123 (1.5); Conn. Gen. Stat. Ann. § 45a

- 608n (c) ; 705 Ill. Comp. Stat. Ann. 405/1

- 4.3 (a) ; Me. Rev. Stat. tit. 22, § 4099

- I 3. ; Minn. Stat. Ann. § 257D.01 subd. 4 ; Neb. Rev. Stat. Ann. § 43

- 3806; Nev. Rev. Stat. Ann. § 3.2203 (1) ; Wash. Rev. Code Ann. § 13.90.901 (1)

- (2)

.