J-S03016-23

2023 PA Super 135

MARIA ESTELA VILLEGAS RIVAS 

Appellant

v.

JUANNA DAYEL VILLEGAS AND 

MARVIN DAVID LANDAVERDE

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 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 thoroughly and persuasively 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 immigrant juvenile

(“SIJ”). This Court’s precedent compels me to agree that the trial court erred 

in suggesting that it lacked jurisdiction to make such findings. See 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), presents

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 enlist state courts as part of the immigration process and delegate to 

those courts’ findings that, inter alia: reunification with one or both of the 
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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 interests 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 status 

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 child’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 decisions in Orozco and Velasquez v. Miranda, --- A.3d ---, 2023 

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

1

 The SIJ statute is not 

new, however, and other state courts’ interpretations and applications of the 

statute have resulted in inconsistent decisions.

2

 

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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, 

1998, and 2005. The earlier iterations of the statute appear to have been 

limited to cases where a child’s parents brought a child to the 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)
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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 no language 

that mandates a state court make SIJ findings, see Canales v. Torres 

Orellana, 800 S.E.2d 208, 217 (Va. Ct. App. 2017), 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 choice 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, no settled interpretation or application of the SIJ statute has 

developed among the other states, and there is no unified body of law for 

considering what evidence will be sufficient to require SIJ findings. 

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Commentators have noted the striking variance among the state courts’ 

interpretations and applications of the SIJ statute. See, e.g., Richard F. 

Storrow, Unaccompanied Minors at the U.S.-Mexico Border: The Shifting 

Sands of Special Immigrant Juvenile Status, 33 Geo. Immigr. L.J. 1, 20-29

(2018) (discussing state 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 should remove the state court requirements from the SIJ and keep 

the program within the purview of the federal system).
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Pennsylvania has only recently begun to take first steps into this area. See

Velasquez, 2023 WL 4069151, at *8 (holding that a child did not meet the 

statutory definition of an SIJ when the child resided with one parent in the 

United States; the child was not 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 

Pennsylvania. 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 determine

whether past abuse, neglect, or abandonment occurred in the 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, without settled procedures 

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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

against the child’s parents who resided in a different country and did not 

participate at the hearing. 
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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 inconsistent results as 

experienced in other state courts. 

Lastly, I would note that other 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 the issues concerning the SIJ 

statute demand attention from our General Assembly and the rulemaking 

authority of our Supreme Court. 

Thus, I respectfully concur in the result. 

Judge Bowes joins this concurring statement.

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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).