District of Columbia

Court of Appeals

No. 16-FM-1153

J.U.,

Appellant,

v. DRB-3166-16

 

J.C.P.C.

Appellee.

Appeal from the Superior Court of the 

District of Columbia 

BEFORE: Fisher and Beckwith, Associate Judges, and Steadman, Senior Judge.

J U D G M E N T

This case was submitted to the court on the transcript of record, the briefs

filed, and without presentation of oral argument. On consideration whereof, and as 

set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the trial court’s order of October 31, 

2016, is vacated and the case is remanded to enter an amended order that includes 

the requisite SIJ status finding that C.J.P.U.’s reunification with his father is not 

viable due to abandonment under District of Columbia law.

For the Court:

 

Dated: January 4, 2018.

Opinion by Senior Judge John M. Steadman.

JAN. 4, 2018
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-FM-1153

J.U., APPELLANT,

V.

J.C.P.C., APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(DRB-3166-16)

(Hon. Hiram E. Puig-Lugo, Trial Judge)

(Submitted November 20, 2017 Decided January 4, 2018)

Evgenia V. Sorokina was on the brief for appellant.

Before FISHER and BECKWITH, Associate Judges, and STEADMAN, Senior 

Judge.

STEADMAN, Senior Judge: C.J.P.U., the minor at the heart of this appeal,

illegally entered this country in 2015 as an unaccompanied fourteen-year-old 

teenager from El Salvador to join his mother (“J.U.” or “appellant”), who has been 

living here since 2005.1 He seeks to remain in this country as a juvenile qualified 

 

1

 As is customary in appeals involving juvenile matters, we use here the 

initials of the minor and the parties. 

01/04/2018
2

for “special immigrant juvenile” status (“SIJ”). Among other requirements, to 

achieve this status a juvenile court must find that “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.” 8 U.S.C. § 1101 (a)(27)(J) (2009 Supp. II). 

The issue before us is whether the trial court erred in refusing to make such a 

finding with respect to C.J.P.U.’s father (“J.C.P.C.” or “appellee”), who remains in 

El Salvador. We agree with the mother that, on the record before us, such a 

finding is mandated.

I. The SIJ Status Statute2

Under the immigration laws of the United States, an immigrant juvenile, or 

someone acting on their behalf, may petition for SIJ status. As originally enacted

in 1990, the statute required a finding that a juvenile applicant was “eligible for 

long-term foster care,” 8 U.S.C. § 1101 (a)(27)(J) (1998 Supp. III), thus effectively 

limiting the status to juveniles who had no parent to care for them. 

 

2

 A further description of SIJ status can be found in a number of sources. 

See e.g., Cristina Ritchie Cooper, A Guide for State Court Judges and Lawyers on 

Special Immigrant Juvenile Status, 36 No. 2 CHILD L. PRAC. 25 (March/April 

2017); 3 Charles Gordon et al., Immigration Law and Procedure § 35.09 (Matthew 

Bender rev. ed. 2015). 
3

In 2008, the provision was revised and expanded and now reads as follows:

[a special immigrant juvenile is] 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 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[.]

8 U.S.C. § 1101 (a)(27)(J)(i)-(iii). The current law also requires the applicant be 

under twenty-one years of age and unmarried. See 8 C.F.R. § 204.11 (c)(1), (2).3 

Notably for present purposes, “long-term foster care” was replaced with the 

requirement that reunification not be viable with “[one] or both” parents due to 

abuse, neglect, or abandonment, significantly broadening eligibility for SIJ status. 

 

3

 The federal regulations have not been updated to reflect the 2008 statutory 

amendments to the SIJ status statute. 
4

Now, an SIJ applicant need not be in foster care or the child welfare system to be 

eligible. A finding is sufficient for SIJ status if reunification with only one parent 

is not viable due to abuse, neglect, or abandonment, at least where, as here, the 

parent in question is located in the home country to which the minor would 

otherwise be deported.4 

Such an interpretation is consistent not only with our reading of the statute,

but also with the legislative history and, importantly, the interpretation of the 

United States Citizenship and Immigration Service (“USCIS”), the agency tasked 

with administering SIJ status approvals. The USCIS Policy Manual notes that 

“USCIS interprets the TVPRA changes as a clarification that petitioners do not 

need to be eligible for or placed in foster care and that they may be reunified with 

one parent or other family members.” USCIS Policy Manual, Vol. 6, Part J, Ch. 2, 

§ D2 n.9 (current as of Aug. 23, 2017), 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartJChapter2.html. The states of New York and California have similarly interpreted 

 

4

 Although the statute may not be entirely clear, it is well-established that 

the juvenile court is required to make a finding on the viability of reunification as 

well as neglect, abuse, or abandonment. See USCIS Policy Manual, Vol. 6, Part J, 

Ch. 2, § D2 (“The juvenile court must find that reunification with one or both 

parents is not viable due to abuse, neglect, abandonment, or a similar basis under 

the relevant state child welfare laws.”).
5

the statutory language. See In re Israel O., 182 Cal. Rptr. 3d 548, 555 (Cal. Ct. 

App. 2015) (holding that although the “one or both” language is ambiguous, the 

intent of the statute and USCIS’s unofficial guidance makes clear that “SIJ eligible 

children . . . may be living in this country with . . . the non-abusive parent”)

(internal quotation marks and citation omitted) (emphasis omitted); In re 

Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 722 (N.Y. App. Div. 2013) 

(finding that the “one or both” parent language “signifies that the child need not be 

separated from both parents to be eligible for [SIJ status]”) (citation omitted).

5

These requisite state court findings, however, are not determinative of SIJ 

status. Rather, once a state juvenile court makes the requisite SIJ status findings, 

the minor must file a Petition for Special Immigrant Status with USCIS under the 

Department of Homeland Security (“DHS”) that includes a copy of the juvenile 

court’s findings. In addition to the petition and requisite findings, the minor must 

obtain the consent of USCIS. See 8 U.S.C. § 1101 (a)(27)(iii). For the SIJ 

applicant to obtain USCIS’s consent, USCIS must review the juvenile court order, 

 

5

 The Nebraska Supreme Court has found that the “[one] or both” parent 

language requires a minor to demonstrate it is not feasible for the minor to return to 

either parent. In re Erick M., 820 N.W.2d 639, 647 (Neb. 2012). This ruling 

precedes the issuance of the USCIS Policy Manual and both the New York and 

California cases.
6

conclude that the SIJ status request is bona fide, and approve the petition. Id. 

Accordingly, the ultimate decision as to a minor’s SIJ status lies with the federal 

government, not with the juvenile court.

6

 Once SIJ status is approved, the minor 

can apply for legal permanent residence. 

II. The Current Litigation

The case before us began when the mother filed a verified complaint for 

custody in the Superior Court seeking sole legal and physical custody of C.J.P.U., 

as well as a Motion for Special Immigrant Juvenile Status Predicate Order. In the 

mother’s request for findings of C.J.P.U.’s SIJ status eligibility, she alleged 

reunification with the father was not viable because he had abandoned C.J.P.U. 

The father filed a Consent Answer to both the Complaint for Custody and Motion 

for SIJ status findings under penalty of perjury. In his answer, the father agreed 

with all the allegations made by the mother in her complaint and SIJ status motion. 

 

6

 The unusual involvement of state courts in what is ultimately a federal 

immigration decision appears based on the belief that state courts have greater 

experience in determining matters of abuse, neglect, and abandonment. While the 

ultimate decision for SIJ status is with the federal government, it might be 

observed that the refusal by a juvenile court to make a requisite finding can have 

the effect of leaving the minor open to deportation, thus making it a significant 

decision in itself. In C.J.P.U.’s case, a removal proceeding is already underway. 
7

He also agreed with both the mother’s and C.J.P.U.’s sworn statements in support 

of the SIJ status motion. 

After a hearing at which both the mother and C.J.P.U. testified, the trial 

court granted the mother sole physical and legal custody of C.J.P.U. With respect 

to the request for SIJ status findings, the trial court determined that C.J.P.U.

satisfied the following conditions imposed by the statute: (1) C.J.P.U. was under 

the age of twenty-one years and unmarried; (2) C.J.P.U. was placed, pursuant to an 

order of the juvenile court, in the custody of his mother when the court granted her 

sole legal and physical custody; and (3) it was not in C.J.P.U.’s best interest to be 

returned to El Salvador.7 The trial court, however, found C.J.P.U. failed to meet 

the final condition required for SIJ status eligibility: that reunification with his

father was not viable due to abandonment or neglect. Challenging this conclusion, 

the mother brought the appeal now before us.

 

7

 In making this last finding, the trial court said: “C.J.P.U. has never lived 

full-time with his father. C.J.P.U.’s paternal grandfather, his caretaker for nearly 

ten years, is deceased. His mother, who has consistently provided for him, is in the 

United States, as are his three older and one younger sibling. C.J.P.U.’s mother is 

able to provide care, a home, food, clothing, and the opportunity to attend school 

full time.” 
8

In addressing this finding, it is important to focus on exactly what is to be 

determined in the context of the case before us. It is not the abstract question 

whether the minor has been neglected or abandoned by the father. Rather, it is 

whether reunification with the father in El Salvador is “viable” due to 

“abandonment.” It calls for a realistic look at the facts on the ground in the 

country of origin and a consideration of the entire history of the relationship 

between the minor and the parent in the foreign country. 

Apart from its primary meaning of capacity for life, the word “viable,” as it 

applies to the situation here, has been defined in various ways, but all of them carry 

the connotation of common-sense practical workability. See e.g., MerriamWebster New International Dictionary (3d ed. 2002) (“capable of being put into 

practice: workable); American Heritage Dictionary of the English Language (3d 

ed. 1992) (“capable of success or continuing effectiveness; practicable”); Random 

House Dictionary of the English Language (21st ed. 1987) (“practicable; 

workable”). 

In its turn, the word “abandonment” in our law is found in several 

definitions, depending on the context in which the determination is being made. 

Thus, where a petition alleges abandonment as grounds for a neglect finding, D.C. 
9

Code § 16-2316 (d)(1)(C) (2012 Repl.) provides that an inference of neglect may 

be drawn if the child’s parent “is known but has abandoned the child in that he or 

she has made no reasonable effort to maintain a parental relationship with the child 

for a period of at least four (4) months.” On the other hand, in a 

termination/adoption proceeding, the statute prescribes that when a parent “has 

abandoned the prospective adoptee and voluntarily failed to contribute to his 

support for a period of at least six months,” his or her parental rights may be 

terminated without the required consent. D.C. Code § 16-304 (d) (2012 Repl.).8 

And for purposes of uniform child-custody jurisdiction and enforcement,

abandonment is defined simply as “left without provision for reasonable and 

necessary care or supervision.” D.C. Code § 16-4601.01 (1) (2012 Repl.). Here, 

the concept of abandonment is being considered not to deprive a parent of custody 

or to terminate parental rights but rather to assess the impact of the history of the 

parent’s past conduct on the viability, i.e., the workability or practicability of a 

forced reunification of parent with minor, if the minor were to be returned to the 

home country.

 

8

 The USCIS Policy Manual is explicit that termination of parental rights is 

not required. See USCIS Policy Manual, Vol. 6, Part J, Ch. 2, § D2 “([a]ctual 

termination of parental rights is not required”).
10

We turn to consider the record in this appeal in light of the SIJ status statute 

and the above legal principles relating to the specific inquiry before us.9

III. “Viable Reunification” and “Abandonment”

C.J.P.U. was born on September 22, 2000, in El Salvador. During the early 

part of his life, C.J.P.U. resided with his mother, siblings, and maternal 

grandmother. His father lived with C.J.P.U.’s paternal grandparents a short 

distance away and spent several days a week with C.J.P.U. and the mother at the 

maternal grandmother’s home. During this period of C.J.P.U.’s life, his mother 

and father had two additional children, both also born in El Salvador, but never 

married. 

 

9

 The statutory structure may impose an extraordinarily difficult task on a 

juvenile court, as in the present case. The problems in developing a proper

evidentiary record are obvious. The father has acquiesced in all the assertions 

made by the mother and C.J.P.U. There is no adverse party to present contrary 

evidence based on happenings in the home country. A court may discredit 

evidence, but creation of contrary evidence rests on surmise. The possibility of 

collusion is not to be discounted, but the filings in the court are all made under 

penalty of perjury and would appear to have some presumptive validity. It is the 

responsibility of USCIS, not the juvenile court, to determine whether the SIJ status 

request is “bona fide.” See 8 U.S.C. § 1101 (a)(27)(J)(iii).
11

In 2005, the mother moved to the United States where she has since resided 

with four of C.J.P.U.’s siblings and his niece.10 Prior to moving to the United 

States she arranged for C.J.P.U. and his younger brother to reside with their 

paternal grandparents. The mother also arranged for C.J.P.U.’s younger sister to 

reside with the children’s maternal grandmother. After the mother’s departure, the 

father created a second family and had a daughter with his new partner, moving 

half a block away from the paternal grandparents’ home. In the years C.J.P.U. and 

his mother lived apart, she provided approximately $200-$300 monthly to 

C.J.P.U.’s paternal grandfather and spoke on the telephone with C.J.P.U. weekly. 

In October 2013, C.J.P.U.’s paternal grandfather passed away, apparently causing 

controversy between C.J.P.U. and the other relatives in the home about whether he 

should be permitted to continue living there. In any event, as the trial court 

explicitly noted, C.J.P.U. has never lived full-time with his father. 

During this period, by the testimony of the mother and C.J.P.U., the father 

living apart from his son was a non-supportive and distant figure. While the father

did visit the paternal grandparents’ house on a regular basis, C.J.P.U. testified that 

the father never fed him, gave him clothes, took him to school, cared for him when 

 

10

 The record does not reveal the mother’s exact status in this country or that 

of the children.
12

he was sick, or showed him any affection. Rather, he thought of the paternal 

grandfather as his father and had no feelings of affection towards his biological 

father. The father never invited C.J.P.U. to live with him even after discovering 

that C.J.P.U. had nowhere to live in El Salvador,

11 nor did the father ever provide 

any financial support or assume any significant parental responsibility for making 

necessary day-to-day decisions regarding C.J.P.U. All financial support came 

from his mother and grandfather. Likewise, the sworn Complaint and affidavit of 

the mother, with which the father expressly agreed, averred that, while the father 

recognized C.J.P.U. as his son, he never helped the mother to financially care for 

him or helped to take care of him, and that the father does not have a parent-child 

relationship with C.J.P.U. as he has never participated in his life or shown him 

love. Once C.J.P.U. entered the United States and took up residence with his 

mother, C.J.P.U. testified he had never had any contact with his father and that the 

last contact with his father was a week before he left El Salvador. This was so 

even though the mother and the father did communicate by telephone on certain

 

11

 The trial court noted that the mother “did not present any credible 

evidence to suggest that [the father] had ever been asked to take care of [C.J.P.U.]

or to provide for him.” However, it made no findings as to whether the father had 

ever taken the initiative to parent C.J.P.U. A parent’s role is not fulfilled in 

passivity.
13

occasions, one of which involved getting a passport for C.J.P.U. During the years 

that the mother and son were apart, they communicated by telephone every week. 

Although there was no explicit contrary evidence, the trial court was of the 

view that the mother and C.J.P.U. were “minimizing” the father’s involvement in 

C.J.P.U.’s life. It discredited C.J.P.U.’s testimony that the father visited only to 

ask for money and ignored both C.J.P.U. and his younger brother on visits to the 

grandparents’ home, surmising that it was simply not credible that a father could 

visit his parents’ home and yet completely ignore his two sons who lived there. 

The trial court also pointed out several instances in the record of the father’s

concern over his son’s welfare: when the father found out that a teacher had struck 

C.J.P.U. for not doing homework, the father confronted the teacher; when C.J.P.U.

was preparing to leave for the United States, the father went to say goodbye and 

wish him luck; and the father signed paperwork for C.J.P.U. to obtain a passport 

once in the United States as well as a consent to the custody petition. With respect 

to the failure of the father to contact C.J.P.U. after his arrival in the United States, 

the trial court simply noted that C.J.P.U. had testified that the father did not know 

his phone number or address in the United States. The trial court in short 

concluded that the father may “not have been a perfect father, but he has not been a 

neglectful one either.” 
14

We think, however, the trial court applied too demanding a standard of both 

“viability” and “abandonment” in the context of this particular case. As far as the 

record shows, the father, while perhaps not without affection for his son and taking 

spasmodic steps in his parental role, nonetheless over the years never provided a 

home with father and son together, never exercised the day-to-day oversight with 

parental decisions incumbent upon proper care and supervision, never contributed 

financially to maintenance of his son, and essentially outsourced all these duties to 

others. Cf. In re Je.A., 793 A.2d 447, 448 (D.C. 2002) (finding the mother 

abandoned her child where “[f]or over a year and a half, . . . [the mother] made no 

effort to assume any parental responsibility [for] or establish any parental 

relationship with [the child],” and had “taken no action to provide for the physical 

and emotional needs of [the child]”); Petition of C.E.H., 391 A.2d 1370, 1373-74 

(D.C. 1978) (finding abandonment as grounds for termination where the mother 

“never cleaned her child or cooked a meal for her,” and “never assumed 

responsibility for [the child’s] religious, moral and educational training” but left 

those parental responsibilities to the foster parents). Even after the grandfather 

died, and living arrangements with C.J.P.U. apparently became untenable for the 
15

aging grandmothers,12 the father simply acquiesced in C.J.P.U.’s departure to join 

his mother. Moreover, he never communicated with his son after his departure, for 

which the absence of telephone number or address would not have presented an 

insuperable obstacle to a caring parent. 

At bottom, what is at issue here is not “reunification” with the father but 

rather initial “unification” itself. We must conclude that sending a seventeen-yearold boy back to the care of a father who has never fulfilled any day-to-day role in

the support, care, and supervision during the boy’s lifetime cannot be a 

“reunification” that is “viable,” that is, “practicable; workable,” and such a 

conclusion is due to “abandonment” evidenced by the record here in its relation to 

the viability of reunification. Given the flexibility of the concept depending on the 

context for which the determination is being made, here abandonment is judged by 

 

12

 Both of C.J.P.U.’s younger siblings still live with the respective 

grandmothers in El Salvador, not with their father. The trial court observed that 

each grandmother was in charge of one of the younger siblings of C.J.P.U. and that 

it was highly unlikely that the mother would have allowed these children to remain 

with a grandmother who did not provide appropriate care. It does not follow, 

however, that either would be in a position to care for an additional child, 

especially an older teenager, to house, feed, and supervise. To the contrary, the 

mother’s sworn statement was quite specific in averring that after the paternal 

grandfather died, the remaining family members did not want C.J.P.U. to live with 

them and that the maternal grandmother was unable to care for him, because of her 

physical condition already caring for the mother’s daughter. In any event, the 

statutory inquiry is not forced reunification with a grandparent, but with the father.
16

the lifelong history of C.J.P.U. with his father and the bearing of that history on the 

prospects if C.J.P.U. were to be returned to the immediate custody of the father in 

the home country.

In reaching this conclusion, we generally follow the approach in our only 

known prior case addressing the issue now before us. Though not binding 

precedent in that no published opinion has been issued, in Olmedo v. LopezPortillo, No. 16-FM-1103 (Nov. 9, 2016), this court addressed an appeal from a 

trial court denial of SIJ status involving the same issue as in our case.13 Prior to 

arriving in the United States at the age of sixteen to live with his uncle, the minor 

in that case had resided his entire life with his biological mother in El Salvador. 

While there, he and his mother were threatened with physical harm by local gangs, 

they had moved from their original home to escape the threats, and were followed 

by the gangs. The mother then moved yet again, telling the minor to leave for the 

United States, which he did alone. The mother had not provided support since 

telling the minor to leave and is unable to do so. If the minor returned to El 

Salvador, he would not be permitted to live with the mother. We concluded that, 

 

13 The only case in our jurisdiction with a published opinion involving the 

SIJ status statute is In re C.G.H., 75 A.3d 166 (D.C. 2013), but that case dealt with 

a different provision of the statute.
17

as a matter of law, the mother neglected and abandoned the minor and that 

reunification was not viable.

14

We vacate the October 31, 2016, order appealed from and remand this case

to the trial court to enter an amended order consistent with this opinion that 

includes the requisite SIJ status finding that C.J.P.U.’s reunification with his father 

is not viable due to abandonment under District of Columbia law. 

So ordered.

 

14

 This decision post-dated the trial court’s ruling in our case. Based on this 

decision, the mother in our case filed a motion under Super. Ct. Civ. R. 60 (b)(6) 

for reconsideration of the trial court’s denial of her motion for SIJ status findings. 

The trial court declined to address this motion on the ground that the filing of the 

notice of appeal from its original order deprived it of jurisdiction.