COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Jud ges Humphreys, Beales, Alston, Chafin, Decker, O’ Brien, Russell, AtLee and Malveaux Argued at Richmond, Virginia

EDY CANALES OPINION BY v. Record No . 1073-16-4 JUDGE ROBERT J. HUMPHREYS JUNE 20, 2017 MARVIN ALEJANDRO TORRES ORELLANA

UPON A HEARING EN BANC
FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge Tanishka Cruz (Angela Ciolfi; Rebecca Wolozin; Simon Sandoval Moshenburg; Laura Jacobson; Leg al Aid Justice Center; L & L Immigration Law, PLLC, on briefs), for appellant. William H. Hurd (Laura Anne Ku ykendall; Troutman Sanders LLP, on brief), for appellee. Amici Curiae: Trevor S. Cox, De puty Solicitor General (Mark R

. Herring, Attorney General; Stuart A. Raphael, Solicitor General ; Matthew R. McGuire, Assistant So licitor General, on brief); Kid s in Need of Defense (Jessica Le al; Kevin P. Broughel, on brief); Detained Children’s Program, Capital Area Immigrants’ Rights Coalition (Mari Dorn-Lopez; Eliza beth Nehrling Sotiriou; Kevin P. Broughel, on briefs); Virginia Bar Association Commission on th e Needs of Children (Robert M. Rol fe; Geri M. Greenspan; Hunton & Williams LLP; Margaret Ivey B acigal, on brief), for appellant

. Edy Canales (“Canales”) app eals the May 31, 2016 judgment of th e Circuit Court of Loudoun County (the “circuit court”) holding that it did not ha ve jurisdiction to make the predicate findings of fact requi red for her child (“M.C.”) to a cquire Special Immigrant status for federal immigration purposes. Spe cifically, Canales’ two assig nments of error assert that the circuit court erred in finding t hat it lacked subject matter jurisdiction to make the specificPUBLISHED- 2 - findings of fact required by feder al law to receive special imm igrant status and further erred in declining to make the specific findings of fact she requested f or that purpose.
I. BACKGROUND A. Statutory Background Federal immigration law provides that an immigrant child living in the United States may become a lawful permanent resi dent by obtaining Special Immigra nt Juvenile (“SIJ”) 1 status, which was intended to provide protection to abandoned, abused, and neglected non-native children through permanent residency status in the United State s. 8 U.S.C. § 1101(a)(27)(J). The Supreme Judicial Court of M assachusetts recently authored a n opinion with a succinct explanation of the sta tutory background of the federal SIJ statute: In 1990, Congress amended the Immigr ation and Nationality Act (INA) to include the SIJ classif ication to create a pathway to citizenship for immigrant children. Pub. L. 101-649, § 153, 10 1st Cong., 2d Sess. (1990). When the SIJ classification was first included, the statute required aState court to issue an order finding that (1) the child was depende nt on a juvenile court and was eligible for long-term foster ca re, and (2) it was not in the c hild’s best interests to return to hi s or her country of origin. Id. Since then, the provision of the INA c oncerning SIJs has been amended several times. See Matter of Mar celina M.-G. v. Israel S., 112 A.D.3d 100, 107-108, 973 N.Y.S.2d 714 (N.Y. 2013) ( Marcelina M.-G. ) (explaining various amendments to the INA concerning SIJ status). In 1997, Congress modifi ed the definition of SIJ to i nclude a child who was “legally committed to, or placed under the cust ody of, an agency or department of a S tate” and added the requireme nt that eligibility for long-term f oster care be “due to abuse, ne glect, or abandonment.” Pub. L. 105-119, § 113, 111 Stat. 2440 (1997)

. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) f urther amended the INA to expand eligibility for SIJ status to i nclude immigrant children who we re placed in the custody of an “indi vidual or entity appointed by a State or juvenile court” and e liminated the requirement of

1 “Special Immigrant Juvenile” or “SIJ” is a term and acronym us ed by United States Citizenship and Immigration Servi ces (USCIS), the parties, amici curiae , and by some of the courts of our sister states as a shorthand reference to the def inition of the term “special immigrant” that is applicable t o certain juvenile s that meet th e requirements of 8 U.S.C. § 1101(a)(27)(J).- 3 - long-term foster care e ligibility. Pub. L. 110-457, § 235(d)(1 ), 122 Stat. 5044 (2008). The amendment adde d the requirement that th e reunification with one or both pa rents is not viable due to abu se, neglect, abandonment, or a sim ilar basis found under State law. Id. Recinos v. Escobar, 473 Mass. 734, 737 (2016). The current statutory definition of a Special Immigrant as it r elates to a juvenile alien (SIJ) is as follows: The term “special immigrant” means-- . . . (J) an immigrant present in the United States-- (i) who has been declared depende nt 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 i ndividual 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, ab andonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it w ould 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; a nd (iii) in whose case the Secr etary of Homeland Security consents to the grant of special immigrant juvenile status. 8 U.S.C. § 1101(a)(27)(J). In addi tion to the above statutory factors, the juvenile immigrant must also be under the age of t wenty-one and unmarried. 8 C.F. R. 204.11(c). Further, pursuant to 8 C.F.R. § 204.11(d)(2), an applic ation for SIJ status must include at least one document evidencing that a state juvenile court has made the requisite S IJ findings of fact. Thus, before a child may obtain SIJ status, a pe titioner must first obtain a j udgment from a state juvenile court that satisfies the criteria set out by Congress in subsection ( i) of 8 U.S.C. § 1101(a)(27)(J); second, a determination must be made in administrative or judic ial proceedings that it would not- 4 - be in the child’s best interests to be returned to their native country; and finall y, the Secretary of Homeland Security or his designee must actually grant the statu s of Special Immigrant Juvenile. B. Background of the Case M.C. is the child of Canales and M arvin Alejandro Torres Orell ana (“Father”). Canales is a native of Honduras who emigrat ed to the United States in 2 006, leaving M.C., who was approximately two years old at the time, in the custody of Cana les’ mother in Honduras. On June 16, 2015, Canales petitione d the Loudoun County Juvenile a nd Domestic Relations District Court (the “JDR court”) for so le custody of M.C., whom she had retrieved from her mother’s home in Honduras, and further that the court make what are coll ectively and generically referred to in the pleadings and bri efs of the parties and amici curiae as “SIJ findings of fact.” Specifically, Canales asked the J DR court to award her sole cus tody of M.C. and make specific factual findings that M.C. had b een “abused” and “abandoned” byFather and that it was not in M.C.’s “best interest to be re turned to [Honduras,] his native country,” as those terms are used in 8 U.S.C. § 1101(a)(27)(J). Because Father resides in Honduras, with his exact whereabouts unknown, he was served notice of the petition and hearing by pu blication; he did not appear and was unrepresented at the hear ings in the lower courts. 2 The JDR court granted Canales sole custody of M.C., but declined to mak e the additional specific S IJ findings of fact she requested. Canales timely appealed t o the circuit court. At the circuit court hearing, C anales testified regarding info rmation received from others in Honduras that Father drank heav ily, had little c ontact with M.C., and repeatedly threatened to take M.C. from his grandmother unless the grandmother paid him money. Following the

2 Due to the significance of the issues in the assignments of error, this Court appointed counsel to represent Father in t his appeal, and the Attorney Ge neral was invited to submit a brief and argue as amicus curiae . Appointed counsel attempted to c ontact Father to make him aw are of the proceedings, but his a ttempts were unsuccessful.- 5 - hearing, the circuit court also granted Ca nales sole custody of M.C., finding that Canales “has taken sole responsibility for the upbringing and care of the ch ild.” However, like the JDR court, the circuit court denied Canales ’ request for additional specif ic SIJ findings, r easoning that it did not have jurisdiction to do so. The circuit court entered two separate orders. The first, a custody order in Case No. CJ15-127 (the “custody order”); the second, a n order regarding SIJ findings of fact in Case No. CJ15- 128 (the “SIJ order”). 3 Both orders were origina lly drafted by counsel for Canales and submitted to the circuit court at the hearing; howe ver, prior to entering the orders, the circuit court a ltered the orders to re flect both the findin gs the circuit court made and, just as significantly, those it declined to make. In the custody order, the circu it court made findings based on the best interests of the child factors delineated i n Code § 20-124.3. The circuit court ’s factual findings included that Father “has not maintained a r elationship with [M.C.] nor had p ositive involvement with the child’s life” and that “mother ha s taken sole responsibility fo r the upbringing and care of the child.” The court further f ound that “there is no indication t hat [M.C.’s F]ather intends to play a role in the minor child’s upbri nging and care in the future, as the [F]ather [has] not been made aware of [M.C.]’s location.” The circuit court noted that it w as unable to make any finding as to either Canales’ or Father’s “w illingness and ability to maintai n a close and continuing relationship” with M.C. Although the custody order as submitte d by Canales contained language indicating that the circuit cour t had made the SIJ findings sou ght by Canales, the circuit court crossed out those portions before entering the order. 4 In place of the stricken language, the

3 The record does not reflect the reason why there are two case numbers assigned to this case by the circuit court or why t wo final orders were prepared

. 4 The crossed-out portions of the custody order included languag e to the effect that Father abandoned M.C., that “reunificati on of [M.C.] with his [F]ather is not viable at this time,” and that “it is not in [M.C.]’s best interests to return to his nat ive Honduras at this time.” Thus, these findings on the SIJ factors were expressly not made by the circuit court in the custody order.- 6 - circuit court inserted language indicating that Father “has not been informed of the whereabouts of the minor child,” and thus the circuit court “[could] make n o finding” with respect to whether Father wishes to maintain a “cl ose and continuing relationship with the child.” In the SIJ order, the circuit court found that it did “not have jurisdiction to make findings as to [SIJ] petitions[,] as suc h authority is not set forth in the Code of Virginia.” The circuit court also found that M.C.’s re unification with Father “is not viable due to the fact that [M.C.] lives in Virginia,” declining t o conclude that abandonment prev ented the reunification. The circuit court further found tha t “[M.C.] lived in Honduras with his grandmother [and F]ather would visit the home until [M.C.] l eft for the United States.” Further, the circ uit court found that “[M]other has not notified . . . [F] ather or his family of the location of [M.C.]” and that “the testimony as presented as [sec ond] and [third] party hearsay is not sufficiently reliable to find that the Father has abandoned the child.” Finally, the circuit court recorded “[f]urther findings” that “[M.C.] wanted to come to [ the] U.S. because his Grandmoth er had other ch ildren to care for[,] so he wanted to live with M other” and that “Father did a ttempt to gain custody/visitation [with M.C.] while in Honduras.” At the hearing, the circuit cour t stated that it declined to m ake the specific findings relating to the SIJ factors both b ecause it lacked jurisdiction to do so and because, “[W]e’re talking about essentially termina ting someone’s parental rights here when we go through these petitions, and I’m very relucta nt to do that based on the type of evidence that you all are [presenting].” The circuit cour t further told counsel for Cana les, “I’ve discussed with you many times, as soon as the General Asse mbly gives us the authority a nd the jurisdiction to hear these matters, I’d be happy to do so. I believe I’m restrained by th e Code of Virginia with respect to these matters. So, I think this is the best I can do.”- 7 - II. ANALYSIS A. Preservation of Error i. Specificity of Objections Father argues that Canales has not sufficiently preserved these issues for appeal, among other reasons, because she has not appealed the SIJ order and o nly endorsed the custody order as “Seen and objected to.” With res pect to the specificity of her objections to the custody order, Canales asserts that the circu it court did not give her a chanc e to state with specificity her objections to its final ruling, t herefore the “good cause” exce ption of Rule 5A:18 permits our consideration of her specific obj ections. Furthermore, Canales contends that her assignments of error are nonetheless preserve d for appeal because the issue wa s “narrow enough so that the basis for the objection [was] obvious.” Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000). Rule 5A:18 states that “No ru ling of the trial court . . . will be considered as a basis for reversal unless an objection was s tated with reasonable certain ty at the time of the ruling, except for good cause shown or to enable th e Court of Appeals to attai n the ends of justice.” Ordinarily, endorsement of an or der “[s]een and objected to” is not specific enough to meet the requirements of Rule 5A:18 because it does not sufficiently a lert the trial court to the claimed erro r. Such an endorsement is sufficient t o satisfy Rule 5A:18 only if “the ruling made by the trial court was narrow enough to make obviou s the basis of appellant’s objection.” Herring, 33 Va. App. at 286, 532 S.E.2d at 927 (quoting Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)). Additionally, “[I]f a trial court i s aware of a litigan t’s legal position- 8 - and the litigant did no t expressly waive such arguments, the ar guments remain preserved for appeal.” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 1 85, 189 (2010). 5 In this case, Canales’ only obj ection to the circuit court’s or ders came in the form of the phrase “Seen and objected to” w ritten on the final orders. How ever, Canales was petitioning the court for only two things: cu stody of M.C. and SIJ findings of fact. Because the circuit court granted custody to Canales, there was only one issue left to wh ich Canales could object: the circuit court’s refusal to make the SIJ findings of fact. Thatrefusal is apparent on both the SIJ order, where the circuit court sp ecifically stated in the order that it did not have jurisdiction to make the requested SIJ findi ngs of fact under Virginia law, as well as in the custody order, where the circuit court stated on the record that it believed it lack ed the jurisdiction to do so and specifically declined to make t he SIJ findings of fact by cross ing out those portions of the custody order drafted by Canales t hat specifically found them t o exist. Thus, by writing “Seen and objected to” on both orders, th e only issue Canales could p ossibly be contesting is the circuit court’s refusal to make the re quested SIJ findings of fact. Ca nales’ assignments of error on appeal are that the circuit cour t erred in finding it lacked ju risdiction to make SIJ findings in the custody order and therefore erred by declini ng to make such findings. Based on the record, we conclude that the circuit court’s ruling was narrow enough to m ake Canales’ objection obvious in this case. See Herring, 33 V a. App. at 286, 532 S.E.2d at 927. Further, because counsel for

5 See also Code § 8.01-384(A): No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial cour t so as to forfeit his right t o contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, me morandum, recital of objections i n a final order, oral argument re duced to transcript, or agreed written statements of facts shal l, unless expres sly withdrawn o r waived, be deemed preserved the rein for assertion on appeal.- 9 - Canales drafted the proposed orde rs, and the circuit court cros sed out the portions relating to SIJ findings of fact, it is clear that the circuit court was aware of Canales’ legal pos ition, and Canales did nothing to waive her argum ents. See Brown, 279 Va. at 217, 688 S.E.2d at 189; Code § 8.01-384(A). For these reasons, we conclude that the issues relating to the requested SIJ findings of fact are properl y preserved and before us on appeal

. 6

ii. Potential Default of Jurisdictional Issue Father emphasizes that Canales only noted an appeal of the cust ody order in Case No. CJ15-127, and did not note an appeal of the SIJ order in Case N o. CJ15-128. Indeed, Canales concedes that point i n her brief. Unlike th e SIJ order, which has not been appealed, the custody order she now appeals does not s pecifically address Canales’ fi rst assignment of error regarding whether the circuit court had j urisdiction to make the SIJ find ings. However, that does not end the analysis. Although Canales only appealed t he custody order, and not the S IJ order in which the circuit court specifically concl uded it lacked jurisdiction to make SIJ findings of fact contained in that order, the circuit court also stated on the record that a lack of subject matter jurisdiction was a reason it crossed out some of the factual determinations in the custody order. In short, all the issues raised by Canales on app eal were both presented to t he circuit court and effectively ruled upon by the circuit court i n the custody order in Case No . CJ15-127. So, while the SIJ order is not directly before us, w e conclude that we can noneth eless reach the merits of whether a

6 Moreover, the record reflects that the circuit court interrupt ed counsel for Canales when she tried to object with specifici ty and ordered Canales’ couns el to “put ‘seen and objected to,’” on the order, rather than allowi ng counsel to make specific obj ections on the record. This constitutes “good cause” under Ru le 5A:18 such that this Court could review the assignments of error to “attain the ends of justice.” P erry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d 765, 771 (2011) (“The Court may only invoke the ‘good cause’ ex ception where an appellant did not have the opportunity to object to a ruling in the trial court.”).- 10 - JDR court, and a circuit court on appeal, has the jurisdiction and authority to make specific findings of fact on the SIJ fact ors of 8 U.S.C. § 1101(a)(27)(J )(i) in the context of the custody order appealed and the record t hat is actually before us.

B. Standard of Review

“This Court reviews a trial c ourt’s statutory interpretation de novo , as a question of law.” Commonwealth ex rel. Fair H ous. Bd. v. Windsor Plaza Condo. Ass ’n, 289 Va. 34, 51, 768 S.E.2d 79, 87 (2014). Jurisdictional issues are also questions of law reviewed de novo . Harvey v. Flockhart, 65 Va. App. 131, 138, 775 S.E.2d 427, 430 (2015). Further, this Court “will not disturb the factual findings of the trial court unless plainly wrong or unsupported by the evidence.” Commonw ealth v. Anderson, 278 Va. 419, 425, 683 S.E .2d 536, 539 (2009) (quoting Commonwealth v. Jackson, 276 Va. 184, 192, 661 S.E.2d 810, 813- 14 (2008)). C. Jurisdiction to Make SIJ Findings In the context of this appeal, j urisdiction refers to the power of a court to entertain certain issues and render a decision. Det ermining whether a Virginia c ourt has the power to decide particular cases or specific i ssues within those cases implicat es both the Virginia Constitution and its statutes governing the ope ration of the judicial system . In this case, we must also consider the impact of 8 U.S. C. § 1101(a)(27)(J), if any, on th at operation. As the Supreme Court of Virginia has noted, The general powers of the j udiciary in Virginia are conferred by Article VI, Sec tion 1 of the Constitution of Virgi nia. This section by itself confer s jurisdiction upon the Supreme Co urt of Virginia in certain matters and further states: “Subject to the foregoing limitations, the General Assembly shall have the powe r to determine the original and a ppellate jurisdiction of the courts of the Commonwealth.” The concept of jurisdiction defines power. With regard to the Court of Appeal s of Virginia, the Circuit Co urts and the General Distr ict and Juvenile and D omestic Relations- 11 - District Courts, the powers of s uch courts are entirely prescri bed by statute. Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013). Addressing the merits of Canales’ first assignment of error, th e issue of whether the JDR courts, and circuit courts on a ppeal, have jurisdiction to make the SIJ findings of fact described in 8 U.S.C. § 1101(a)(27)(J) is one of first impression in Virg inia’s appellate courts. 7 “The primary goal of the Court i n interpreting statutes is to d etermine the [legislature’s] intent. To do this, we examine th e language contained in the s tatute itself, if unambiguous, and apply its plain meaning.” Wi ndsor Plaza Condo. Ass’n, 289 Va. at 51, 768 S.E.2d at 87.

i. The Authority of Virginia Courts to Entertain Independent SIJ Petitions Unlike a few of our sister states, the General Assembly has not enacted any statute specifically authorizing JDR or c ircuit courts to make the SIJ findings of fact described in 8 U.S.C. § 1101(a)(27)(J). 8 Nothing in Code § 16.1-241, the juris dictional statute for th e JDR courts, authorizes a JDR court to conduct a proceeding whose so le purpose is to render SIJ

7 Although we review the decision of the circuit court, the ulti mate issue is whether the JDR court had jurisdiction to mak e the SIJ findings because the circuit court’s ju risdiction in this matter derives wholly from th e JDR court. See Parrish v. Fanni e Mae, 292 Va. 44, 49, 787 S.E.2d 116, 120 (2016) (“It is well-se ttled that when exercisin g its appellate jurisdiction in a de novo appeal, the circuit court’s subject matter jurisdiction is der ivative of the cour t not of record from which that appeal is take n. Therefore, when exercising it s de novo appellate jurisdiction, the circuit court has no more s ubject matter jurisdiction than the general district court had in that court’s original proceeding. Thus , the scope of the general di strict court’s subject matter jurisdiction is the dispos itive issue here.”).
8 For example, the State of Fl orida enacted Fla. Stat. Ann. § 39 .5075(4), which states, “If the child may be eligible for sp ecial immigrant juvenile status , the department or communitybased care provider shall petiti on the court for an order findi ng that the child meets the criteria for special immigrant juvenile s tatus. The ruling of the court on this petition must include findings as to the express wishes of the child, if the child is able to express such wishes, and any other circumstances that would a ffect whether the best interest s of the child would be served by applying for special immigr ant juvenile status.”- 12 - findings. In other states, some s tate appellate courts have he ld that their juvenile courts have a duty to make the SIJ findings desc ribed in the federal statute, despite the lack of any state law explicitly permitting or requiring them to do so. 9 There is growing pressure upon fed eral and state c ourts alike t o “discover” jurisdiction, where none was thought to exist, t o allow judges to advance pre ferred public polic y goals that have not been successfully achieved through action by the other branches of government. However, unelected judges make po or substitutes for legislators who are directly accountable to the citizens of t he Commonwealth. As noted above, the powers of the “ Juvenile and Domestic Relati ons District Courts . . . are entirely prescr ibed by statute.” Kelley, 285 Va. at 75, 73 7 S.E.2d at 221. Thus, although Article VI, Section 1 of the Virgi nia Constitution vests “[t]he judicial power of the Commonwealth” in the courts, set ting the jurisdiction for those courts rests with the General Assembly. Both Article 1, Section 5 and Article 3, Section 1 of the Const itution of Virginia expressly mandate the separa tion of power between the legislati ve, executive, and judicial departments of the Commonwealth. 10 The application of this principl e prevents the courts of the

9 See, e.g., Recinos, 473 Mass. at 737, 739 (“In its present for m, the Federal statute requires a juvenile court to i ssue an order f inding [on each of the SIJ factors]. . . . We conclude that the Probate and Family C ourt has juri sdiction, . . . [to m ake] the special findings necessary to apply for SIJ status pursuant to the I[mmigration and] N[ati onality] A[ct].”); H.S.P. v. J.K., 223 N.J. 196, 200 (2015) (“Family Part c ourts faced with a requ est for an SIJ predicate order should make factual findings with regard to each of the require ments listed in 8 C.F.R. § 204.11.”); In the Interest of J. J. X. C., 318 Ga. App. 420, 426 (2012) (“[T]he [juvenile] court had a duty to consider the SIJ f actors and make findings.”).
10 The fact that the framers of the Virginia Constitution include d two provisions in the Virginia Constitution commanding that no branch of government t ake actions properly belonging to another leaves no doubt as to the principle’s importance as a bedrock pillar of our government. Indeed, the concept of separa tion of powers in Virginia governm ent first appears as § 5 of the Virginia Declaration of Rights of 1776. It has continued in ev ery Virginia Constitution since then. See Va. Const. of 1830 art. I, § 5 & art. II; Va. Const. of 1851 art. I, § 5 & art. II; Va.- 13 - Commonwealth from conveying juris diction upon themselves where the General Assembly has not done so. The General Assemblyhas not authorized the court s of the Commonwealth to hear petitions for SIJ findings as an independent matter, and thus, no such power exists.

ii. Effect of 8 U.S.C. § 1101(a)(27(J) on the Authority of Virginia Courts The above conclusion is entirely c onsistent with federal law. Nothing in the relevant federal statutory scheme can fai rly be read as an attempt by Co ngress to convey jurisdiction to state courts to actively particip ate in immigration and natural ization decisions. 8 U.S.C. § 1101(a)(27)(J) is simply one of t hirteen separate definitions of the term “special immigrant.” 11 Indeed, 8 U.S.C. § 1101 is plainly labeled “Definitions” and it would strain basic principles of statutory construction to infer a grant of jurisdiction from th e definition of a term of art. The definition of a Special Immig rant Juvenile finds its originin the Immigration and Nationality Act (the “INA”), w hich was first enacted in 1990 bu t has been amended multiple times since. Compare Pub. L. 101-649, § 153, 101st Cong., 2d S ess. (1990), with Pub. L. 105- 119, § 113, 111 Stat. 2440 (1997), and Pub. L. 110-457, § 235(d )(1), 122 Stat. 5044 (2008); see also Recinos, 473 Mass. at 737; Mat ter of Marcelina M.-G. v. Is rael S., 112 A.D.3d 100, 107-08 (N.Y. 2013). As a preliminary matter, because the SIJ statute is within the definitions portion of Title 8, it is clear that 8 U.S.C. § 1101(a)(27)(J) only defines a special immigrant for the purpose of

Const. of 1864 art. I, § 5 & art . II; Va. Const. of 1870 art. I , § 7 & art. II; and Va. Const. of 1902 §§ 5 & 39.” 2014 Va. AG LEXIS 1, *10 n.27; 2014 Va. AG LEXIS 5 , *5 n.11; 2014 Va. AG LEXIS 17, *3 n.6. Succinctly put in l ess legalistic terms, our Constitution’s framers have clearly underscored this constitutional imperative thereby reminding us that, when it comes to separating and limiting the power and author ity of government, they really mean it!

11 For example, among others, the d efinition of “special immigran t” also includes a former citizen who seeks to reacqui re American citizenship, see 8 U.S.C. § 1101(a)(27)(B), or an immigrant who has served honorabl y in the armed forces of the U nited States, see 8 U.S.C. § 1101(a)(27)(K).- 14 - interpreting and enforcing t he entirety of Title 8, and nothing more. There is no language in any federal statute mandating that state juvenile courts mak e the SIJ findings. Further, th e SIJ statute does not request, much less order , state courts to make specifi c, separate SIJ findings; rather, it allows the appropriate federalentities to consider a state court’s findings of fact, as reco rded in a judgment order rendered under stat e law, when determining wheth er an immigrant meets the SIJ criteria. In other words, the S IJ definition only lists certai n factors which, if established in state court proceedings, permit a juve nile immigrant to petition the United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Se curity for SIJ status—8 U.S.C. § 1101(a)(27)(J) does not require that the state court ma ke such findings or convey jurisdiction upon them to do so. This conclusion is supported by the relevant federal agency’s i nterpretation of the SIJ process. The USCIS Policy Manual, the guidance document for ap plication of the statutory scheme by the relevant federal o fficials, provides that “[t]her e is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from relian ce upon state law a nd procedure inissuing state court orders.” 6 U.S. Citizenship & Immigr. Ser vs., Dep’t of Homeland Sec., Poli cy Manual pt. J, ch. 1(A), at n.1 (Jan. 5, 2017), https://www.uscis.gov/policymanua l/HTML/PolicyManual-Volume6-Pa rtJChapter1.html#S-A [hereinafter USCIS Policy Manual]. 12 Further, “There is nothing in USCIS guidance that should be construed a s instructing juvenile court s on how to apply their own state law,” USCIS Policy Manual, ch. 2(D)(4), and the guidance docume nt recognizes that state “[j]uvenile courts shou ld follow their state laws on issues suc h as when to exercise their

12 Both Canales and the Attorney Gen eral have cited the USCIS Pol icy Manual as pertinent authority in this case.- 15 - authority , evidentiary standards, and due process,” USCIS Policy Manual, ch. 3(A)(2) (emphasis added). The conclusion that the federal statutory scheme does not even attempt to impose an obligation on state courts to mak e SIJ findings independent of their normal processes also finds support in the USCIS requirement that the request for SIJ statu s be bona fide. In determining whether the request is bona fid e for the purposes of awarding S IJ status, USCIS must review the juvenile c ourt order to conclude that the request for SIJ classification i s bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a simila r basis under state law, and not primarily or solely to obtain an immigration benefit. The court ordered dependency or custodial placement of the child is the relief being sought from the juvenile court. USCIS Policy Manual, ch. (2)(D)(5) (emphasis added) (footnote o mitted). Finally, USCIS guidance is that “[ A] best interests determinati on generally involves the deliberation that c ourts undertake under state law when deciding what types of services, actions, and orders will best serve a child, as well as a deliberation r egarding who is best suited to take care of a child.” USCIS Policy M anual, ch. 2(D)(3) (emphasis a dded). In short, nothing in the federal statutory scheme mandate s or requires that a state cour t take any action regarding SIJ findings. Although an SIJ applicant is required to provide fed eral officials with an order or orders from a state court in s upport of his or her eligibility for SIJ status, the statutory scheme and relevant federal guidance ma ke clear that such orders shoul d have been generated by state courts applying state law in the normal course of their respons ibilities under the laws of the respective states. 13 Nothing in the INA directs a st ate court to do anything more than carry out its adjudicatory responsibilities under state law.

13 Conversely, state courts have no power to award SIJ status to an applicant; that decision is reserved to federal o fficials applying federal as o pposed to state law.- 16 - iii. SIJ Findings as an Ancillary Matter In apparent recognition of the foregoing, both Canales and the Attorney General conceded at oral argument that the statutory scheme does not cr eate an independent cause of action in Virginia courts f or those seeking SIJ status. 14 Rather, they argue tha t, in the course of exercising their jurisdiction gr anted by the General Assembly, Virginia courts can and, in fact, must make SIJ findings if such f indings are requested and might confer a benefit upon a potential SIJ applicant. Specifically, they argue that the General Assembly granted JDR courts (and hence circuit courts on appeal) jurisdiction t o resolve custody disputes purs uant to Code § 16.1-241(A)(3) 15
and that the factors th at Virginia courts r outinely consider wh en resolving such disputes significantly overlap with the S IJ factors. They reason that, because Virginia courts will consider at least some SIJ fact ors in resolving normal custody disputes, Virginia courts have an obligation to make the specific SIJ findings to allow the child to obtain all potential benefits available to him or her, includi ng permanent residency status. To address this argument, we mu st analyze subsections (i) and ( ii) of 8 U.S.C. § 1101(a)(27)(J) 16 and compare those subsections t o the provisions of Virginia la w that JDR courts routinely apply in the r esolution of custody disputes.

14 Although we are “not bound by con cessions of law by the partie s,” Epps v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) ( en banc ), aff’d on other grounds, 273 Va. 410, 641 S.E.2d 77 (2007), we appreciate the c redible candor displayed by both Canales and the Attorney General.
15 Although the issues in the case be fore us arise from a custody case brought pursuant to Code § 16.1-241(A)(3), the argument would apply with equal forc e to cases where the child “is alleged to be abused, neglected, i n need of services, [or] in n eed of supervision” pursuant to Code § 16.1-241(A)(1) or “is [al leged to be] abandoned by his p arent or other custodian” pursuant to Code § 16.1-241(A)(2).

16 Subsection (iii) of the SIJ sta tute implicates neither state a ction nor the assignments of error in this case and thus , we need not consider it.- 17 - a. Subsection (i) of t he SIJ Statute In the first subsection of the S IJ statute, Congress has expres sly contemplated that a state court should apply State law regarding whether a child is “declared dependent” on a juvenil e court and whether a child ha s been abandoned, abused, or neglec ted, such that “reunification with [one] or both . . . parents is not viable.” 8 U.S.C. § 11 01(a)(27)(J)(i). The requirement that such findings be made “under State law” was added in 2008 by th e William Wilberforce Trafficking Victims Protecti on Reauthorization Act. Pub. L. 11 0-457, § 235(d)(1), 122 Stat. 5044 (2008). Subsection (i) of the SIJ statute requires a finding that the i mmigrant child at issue is declared dependent on a state juve nile court or is appointed to the custody of another by a juvenile court. 8 U.S.C. § 1101(a )(27)(J)(i). This finding is inherent in many JDR court judgments applying the provisions of the Code of Virginia, as c hild custody is one of the primary determinations made daily by the JDR courts across the Commonwe alth. See Code § 16.1-241(A)(3). Thus, once a JDR c ourt has decided the issue of custody, it has also made a finding of fact that could potenti ally be used during SIJ proce edings to show that the immigrant child is dependent upon a state j uvenile court or is appointed to the custody of another. 17

17 Noting that M.C. was in Canal es’ custody when the underlying a ction in this case was filed and remained in her custody at the conclusion of the proc eedings below, Father urges this Court to hold that, for SIJ purpos es, a child is only “declared dependent” on a juvenile court if there is an actual change in hi s or her custody. This is not aquestion to be res olved by Virginia courts; rather, the question of whe ther a custody determination leaving M.C. in the custody of Canales is sufficient to meet SIJ requirements is for federal i mmigration officials, and not Virginia courts, to make.- 18 - Subsection (i) also requires a showing by the SIJ applicant tha t “reunification with [one] or both of the immigrant’s parent s is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i). 18 Whether a child has been subject to “abuse, neglect, [or] aband onment” so that reunification with his parent or parents is not viable, 8 U.S.C . § 1101(a)(27)(J)(i), may, and all too often does, arise in the course of a Virginia court’s deter mination of child custody. To the extent that such questions surface in Virginia custody proceedi ngs, a Virginia court would turn to the best interests of the c hild factors found in Code § 20-124. 3, which are used by JDR courts— and circuit courts on appeal—whe n making a decision regarding t he custody of a child. Factors the courts “shall consider” include: (3) The relationship existing between each parent and each chil d, giving due consideration to the pos itive involvement with the child’s life, the ability to accurately assess and meet the emo tional, intellectual and physical needs of the child; (5) The role that each parent has played and will play in the f uture, in the upbringing and care of the child; (7) The relative willingness a nd demonstrated ability of each parent to maintain a close and c ontinuing relationship with the child; (9) Any history of family abuse 19 as that term is defined in § 16.1-228; and

18 Father contends that the “one or both . . . parents” phrase sh ould be construed to mean that reunification with both parents is not viable—in other words, tha t neither parent can take or retain custody of the child, and t herefore, the SIJ statute doe s not apply to M.C., who remains in the custody of Canales. Once agai n, this misconstrues the role of Virginia courts in the statutory scheme. A Virginia court applyi ng the laws of the Commonwealth hears evidence and then decides who should be awarded c ustody based upon the evidence p resented regarding the circumstances of the parents and the best interests of the chil d. Whether the Virginia court’s determination in this regard is sufficient to satisfy the SIJ c riteria is a question reserved for federal immigration officials.

19 “‘Family abuse’ means any act i nvolving violence, force, or th reat that results in bodily injury or places one in reasonable apprehensi on of death, sexua l assault, or bodily injury and that- 19 - (10) Such other factors as the court deems necessary and proper to the determination. Code § 20-124.3(3), (5), (7), (9), (10). The above best interests factors are the closest Virginia analo gs to the SIJ findings of fact specified by Congress. Although the language in the SIJ statut e and Code § 20-124.3 is not identical, the factors are comp arable, and again, by its expres s terms, 8 U.S.C. § 1101(a)(27)(J)(i) contemplates t hat state courts apply state law and render judgments accordingly. The statute clearly leaves to federal officials t he ultimate determination whether that judgment regarding the chil d’s best interests aligns with SIJ requirements. It is certainly conceivable that a JDR court j udgment rendering factual finding s pursuant to the best interests considerations of Code § 20- 124.3 could be found to satisfy 8 U .S.C. § 1101(a)(27)(J)(i), but that determination must be made by fed eral authoritie s, not state ju dges. Similarly, a judgment rendered pursuant to Code § 20-124.3(5) r egarding “[t]he role that each parent has played and will play in the future, in the upbr inging and care of the child,” could, depending on the underlying facts found by the court in supportof its judgment, certainly be considered by federal authoritie s to satisfy a finding that one (or both) parents has engaged in abuse, neglect, or abandonment under Virginia law, thereby also satisfying the relevant portion of the SIJ statute. Also, Code § 20-124.3(9), regarding any hi story offamily abuse, 20 explicitly requires a finding on the issue of abuse when appropriate. Fin ally, Code § 20-124.3(10), which allows a JDR court to consider a ny other factors the court deem s necessary, allows a court to consider the grand scheme of the child’s circumstances. Again, depending upon the facts found

is committed by a person against such person’s fam ily or household member .” Code § 16.1-228 (emphasis added).
20 The Virginia statutory language considers any family abuse —not just abuse of the child—as grounds for a finding of a buse for the purposes of the best interests of the child.- 20 - by the court to support its judgmen t under state law, this coul d arguably also support a determination by federal authoriti es regarding “abuse, neglect, abandonment, or a s imilar basis.” Thus, we agree with Canales and the Attorney General that there may be circumstances when a Virginia court, by rende ring a custody determination in the normal course, will deliver a judgment and resulting order that may satisfy the SIJ requireme nts. So long as a Virginia court’s judgment and subsequent order are the product of a proceeding t hat was authorized by the General Assembly to conduct and result from the court’s applica tion of Virginia law in the normal course, the Virginia cour t has not exceeded its authorit y as granted by the General Assembly. We disagree, however, with the a ssertion of both Canales and th e Attorney General that Virginia courts are required to make such findings or tailor their orders to increase the l ikelihood that federal immigration offici als will find them acceptable. Virginia courts are obligated to resolve the disputes before th em and enter judgments consistent with the law of the Commonwealth. 21 This requires a Virginia court to apply Virginia law in the s ame manner it does in every other custody case that does not involve a juveni le immigrant. Whether the resulting order will assist the juvenile immigrant to achieve S IJ status is not an inquiry to be resolved by the courts of the Co mmonwealth; the power to make s uch a determination resides exclusively with the relev ant federal officials.

21 There are many reasons that a c ourt, while having the ability to address specific issues, might decline to do so. For exampl e, Virginia courts “strive t o decide cases on the ‘best and narrowest grounds available,’” Al exandria Redevelopment & Hous. Auth. v. Walker, 290 Va. 150, 156, 772 S.E.2d 297, 300 (2015) (quoting McGhee v. Commonw ealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)), leaving unanswered question s that the litigants have raised that are unnecessary to resolve the matter before the court.- 21 - b. Subsection (ii) of t he SIJ Statute Subsection (ii) of the S IJ statute states that a special immigr ant is, in part, someone “for whom it has been determined in a dministrative or judicial proce edings 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 resid ence.” 8 U.S.C. § 1101(a)(27)(J) (ii). Canales and some of the amici argue that this subsection is partof the SIJ findings of fact and therefore is a determination made by state courts. Once again, however , a Virginia court has no authority to answer this specific question. We reject the premise for this a rgument for several reasons. A s noted above, the federal statute does not direct state cou rts or officials to take any p articular actions, but rather, counsels state courts to simply follow th eir normal procedures interpret ing state law and leave federal officials with the decision as to whether the end product is su fficient to meet the federal statutory criteria. We recognize that a Vir ginia court focused solely on the dispute properly before it, may render a judgment that federal o fficials deem insufficient to m eet the SIJ requirements, leaving the applicant inelig ible for SIJ status. Although some may cha racterize such a result as unfortunate, harsh, or simply fla wed, the flaw, if any, lies wi th the federal statute. In fact, as noted above, both the S IJ statute and the federal g uidance regarding it make clear that state courts should f ocus on the state court issues before them, and not on the immigration consequences that ma y result. The USCIS specifical ly notes that an SIJ request may not be deemed bona fide if “the juvenile court order was so ught . . . primarily or solely to obtain an immigration benefit.” USCIS Policy M anual, ch. (2)(D )(5). Further, the USCIS instructs federal officials, w ho are charged with reviewing sta te court orders, that qualifying state court orders “should use language establishing that the specifi c findings (conclusions of law) were made under state law. The order (or orders) should not just mirror or cite to immigration- 22 - law and regulations .” USCIS Policy Manual, ch. (3)(A ) (emphasis added). Ultimate ly, the SIJ statute directs federa l officials to review state court orders, produced in the normal course of state court proceedings, to determine whether those orders sati sfy the federal cri teria. It does not add to or alter the responsibilit ies of Virginia courts in adju dicating custody or other matters. 22 Therefore, we hold that the ju risdiction and authority of a JDR or circuit court regarding a juvenile immigrant seeking SIJ s tatus is only that jurisdictionand authority to render judgments as granted to the courts by the General Assembly. Whether such a judgment and supporting factual findings satisfy the defi nition of a special immigrant as contemplated by 8 U.S.C. § 1101(a)(27)(J) is solely a ma tter for determination by offici als of the Department of Homeland Security.

22 Taken in context, the phrase “administrative or judicial proce edings” in subsection (ii) of the SIJ statute would seem t o refer to federal administrativ e or judicial proceed ings for several reasons. First, because the SIJ statute is a federal law, any language that does not explicitly indicate that proceedings are to be adjudicated in a state foru m should presumptively refer to federal proceedings. Before the enactment of the SIJ statute i n 1990, the Senate Committee on the Judiciary submitted a Report detailing the nature of the en tire INA. That Report sheds light specifically on subsection (ii) of the SIJ statute because it d iscusses “administrative and judicial proceedings” generally in the c ontext of naturalization. The R eport states, “Under current law, naturalization is awarded only in judicial proceedings. . . . T he committee bill permits naturalization to be c onducted under administrative, rather tha n judicial, process as a way of relieving courts of the natura lization burden. The committee b ill makes no changes to the naturalization requirements.” 1 I gor I. Kavass, Bernard D. Rea ms, Jr., The Immigration Act of 1990: A Legislative Hist ory of Pub. L. No. 101-649 1 (1997); Im migration Act of 1989; S. Rept. 101-55 on S. 358 (June 19, 1989) at 3 [ hereinafter 1989 S. Rept .]. The Report also notes that the INA is meant to permit those “wit h naturalizatio n petitions alr eady filed to chose [sic] between judicial and administrative na turalization.” 1989 S. Rept. at 5. Further evidence that the phrase refers to federal judi cial and administrative proceedings is ev idenced by 8 U.S.C. § 1446, where the administrative and judicial proceedings referenced expressl y refer to immigration officers and United States Distric t Courts, respectively. In any event, it is clear that th e only “best interests” analys is involving a state court is the one it would undertake through the application of state law pur suant to subsection (i) of the SIJ statute and whether or not the determination made by a state co urt satisfies subsection (ii) is beyond our purview; that question is reserved for the federal o fficials charged with the administration of the SIJ program.- 23 - d. Application in this Case We now apply our holding above to Canales’ second assignment of error that the circuit court “erred in declining to rul e that [M.C.]’s Father had aban doned [M.C.], that reunification with [M.C.]’s Father was not vi able, and that it was not in [M. C.]’s best inter ests to return to Honduras.” In Canales’ case, the circuit co urt did consider and make findi ngs on the best interest factors contained in Code § 20- 124.3 pursuant to state law, andgranted her request for sole custody of M.C. after doing so. In support of its judgment awa rding sole custody of M.C. to Canales, the circuit court made specific findings of fact that Father “has not maintained a relationship with [M.C.] nor ha d positive involvement with the child’s life” and t hat the Father “has played no role in the upbrin ging and care of the minor chi ld throughout his li fe, and there is no indication that [Father] intends to play a role in [M.C.]’s upbringing and care in the future.” As we have already noted, it is the proper role of federal auth orities, not state courts, to determine whether state court j udgments are sufficient to satis fy SIJ criteria. Nevertheless, Canales argues that the evidence submitted to the circuit court in this case sati sfied each of the necessary best interests factors that would satisfy SIJ status, but that the circ uit court erred in crossing out the findings that had the specific SIJ statutory l anguage. For instance, although the circuit court found that Father h ad neither maintained a relati onship with M.C. nor had positive involvement in M.C.’s life, pur suant to Code § 20-124.3(3), the circuit court cro ssed out the next sentence regarding a finding of abandonment under Virginia law, as would be required for an SIJ finding. The circuit court also c rossed-out phrases regarding whether reunification of M.C. with Father is viable and whether it is in M.C.’s best interests to return to his home country. Canales argues that the SIJ determina tions as to whether M.C. should be returned to his native country and whether reunification with F ather is viable due to abandonm ent are “necessary and proper”- 24 - to the custody decision made be low, and thus, the circuit court erred in failing to make those findings. Canales asserts that the circuit court simply refuse d to make such determinations, however, that is clearly not the case. Rather, the circuit cou rt specifically held that the testimony given at the hearing was insuffi ciently credible to support a f inding of abandonment. In the SIJ order, which is not appealed here, the circuit court held that much of the testimony was hearsay and was “not s ufficiently reliable to fin d that the Father has abandoned the child.” Because Canales did not appeal the SIJ order, thos e factual findings are binding on appeal and this Court cannot mak e a holding that would conflict with those findings. Maine v. Adams, 277 Va. 230, 242, 672 S.E.2d 862, 869 (2009). Although Canales assigns error to the crossing-out of SIJ findings in t he custody order, this Court c annot re-weigh the e vidence or alter the circuit court’s credibility determinations. Wright v. Wrigh t, 61 Va. App. 432, 460, 737 S.E.2d 519, 533 (2013) (“[W]e will not di sturb the trial court’ s credibility determinations.”). The determination by a fact-finder in a trial court that a party has failed to sus tain its burden of proof or persuasion is not subjec t to appellate review. See Wa gner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (“In determining wh ether credible evidence exists, the appellate court does not ret ry the facts, reweigh the prepo nderance of the evidence, or make its own determination of the credi bility of the witnesses.”). Therefore, we find no error in the circuit court’s factual conclusion that Canales’ evidence was l argely based upon unreliable hearsay and therefore that the e vidence was insufficient to sup port a finding of abandonment of M.C by Father. 23

23 Additionally, we note that Canales candidly conceded that, as the moving party, she bore the burden of proof regar ding any requested findings. As such, the failure of Father to appear or put on evidence to c ounter the evidence offered by Ca nales was not dispositive if the circuit court was not convin ced by the evidence offered by Cana les. SunTrust Bank v. PS Bus. Parks, L.P., 292 Va. 644, 652, 791 S.E.2d 571, 575 (2016) (“The phrase ‘burden of proof’ refers to two related but distinct con cepts: (1) The ‘burden of produc tion,’ which is the obligation to- 25 - III. CONCLUSION For the foregoing reasons, we hold that the circuit court did n ot err when it found that it lacked jurisdiction to make se parate SIJ fi ndings of fact. The Code of Virginia does not provide such authority and 8 U.S.C. § 1101(a )(27)(J) does not in any wa y alter the ju risdiction of Virginia courts. Rather, it simp ly allows immigrant juveniles to use certain state court judgments and supporting factual findings—suc h as those made under the be st interests analysis of Code § 20-124.3—to support a petition for SIJ status with the Depart ment of Homeland Security. Federal authorities then determi ne whether the state court find ings are sufficient to meet the requirements of the SIJ statute . Further, the circuit court di d not err when it crossed out the specific SIJ findings in the cus tody order, both because the ci rcuit court was permitted to apply only the provisions of the Code of Virginia to the custody dete rmination and because the unappealed factual finding that there was insufficient evidence to prove Father’s abandonment is binding on this Court in this app eal. Accordingly, we affirm t he judgment of the circuit court. Affirmed.

come forward with evidence to make a prima facie case . . ., and (2) the ‘burden of persuasion,’ which is the obligation to introduce evidence that actually pe rsuades the fact finder to the requisite degree of belief that a particular proposition of fact is true .” (quoting Charles E. Friend & Kent Sinclair, The Law of Evi dence in Virginia § 5-1[a], at 2 98 (7th ed. 2012)) (emphasis added).