Filed 6/11/21 Guardianship of Hernandez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Guardianship of ANTONIO 

ABRAHAM PAXTOR 

HERNANDEZ

B305649

Los Angeles County

Super. Ct. No.

ANTONIO ABRAHAM PAXTOR 20STPB02372

HERNANDEZ,

Plaintiff and Appellant,

v.

JULIAN PAXTOR VELASQUEZ

et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of 

Los Angeles County, Daniel Juarez, Judge. Affirmed.

Antonio Abraham Paxtor Hernandez, in pro. per.; 

Lefkowitz Law Group, Jamie Lefkowitz for Plaintiff and

Appellant.

No appearance for Defendants and Respondents.

_________________________
2

Probate Code section 1510.1 authorizes the superior court, 

with the consent of a proposed ward, to “appoint a guardian of 

the person for an unmarried individual who is 18 years of age 

or older, but who has not yet attained 21 years of age, in 

connection with a petition to make the necessary findings 

regarding special immigrant juvenile [(SIJ)] status pursuant 

to subdivision (b) of Section 155 of the Code of Civil Procedure.”

1 

(Prob. Code, § 1510.1, subd. (a)(1).) On March 22, 2020, appellant 

Antonio Abraham Paxtor Hernandez turned 21 years old.2 On 

March 24, 2020, Antonio applied for an ex parte order extending 

the superior court’s jurisdiction past his 21st birthday to allow 

the court to consider his pending petitions for the appointment 

of a guardian and for SIJ findings. The trial court denied the 

application. Antonio appeals the ruling. He argues the court 

1 Congress first established the SIJ classification in 1990 

to provide relief to immigrant children who were declared wards 

or dependents under state law and whose interests would not 

be served by returning to their country of origin. (Bianka M. v. 

Superior Court (2018) 5 Cal.5th 1004, 1012 (Bianka M.), citing 

Immigration Act of 1990, Pub. L. No. 101–649 (Nov. 29, 1990) 

104 Stat. 4978.) “To provide a basis for SIJ-eligible children 

to secure the necessary state court findings, the California 

Legislature in 2014 enacted Code of Civil Procedure section 155 

(Stats. 2014, ch. 685, § 1). Section 155 confers jurisdiction on 

every superior court—including its juvenile, probate, and family 

court divisions—to issue orders concerning the findings relevant 

to SIJ status.” (Bianka M., at p. 1013, citing Code Civ. Proc., 

§ 155, subd. (a).)

2 Antonio shares a last name with his aunt and proposed 

guardian, Catarina Hernandez. For clarity we refer to Antonio 

and Catarina by their first names.
3

improperly rendered his guardianship petition moot by declining 

to extend its jurisdiction. The trial court had no discretion to 

grant the requested relief. We affirm.3

FACTS AND PROCEDURAL HISTORY

Antonio was born in Guatemala on March 22, 1999. 

On December 6, 2016, border patrol agents detained Antonio

near Hidalgo, Texas and charged him with being present in 

the United States without admission or parole. (See 8 U.S.C. 

§ 1182(a)(6)(A)(i).) On January 12, 2017, the Office of Refugee 

Resettlement released Antonio to the custody of his aunt, 

Catarina Hernandez, under a sponsor care agreement.

On March 10, 2020, Antonio filed petitions to have 

Catarina appointed as his guardian and for SIJ findings. In his 

supporting declaration, Antonio said he “left Guatemala because 

of the threats and assaults I suffered from teachers, students and 

other Guatemalan citizens who discriminate against indigenous 

groups.” He said he could not “return to Guatemala, as I fear 

that I will continue to be threatened, harassed, discriminated 

against or physically beaten to death.”

According to Antonio, he first suffered discrimination and 

physical abuse at the hands of his third grade teacher when he

was eight years old. The teacher beat Antonio “at least once a 

week” and threatened him with “worse things” if he told anyone. 

The abuse continued in the fourth grade, where Antonio’s teacher 

regularly hit him on the palms of his hands with a ruler when 

he was late for class. During his fourth, fifth, and sixth years of 

school, an older student frequently harassed Antonio and stole 

his money. Despite the abuse, Antonio said he was “too afraid 

3 For purposes of this opinion we will assume without 

deciding that the March 24, 2020 order is an appealable order.
4

to say something to my parents about my teachers and this 

classmate because I didn’t want these situations to get worse.”

Antonio recounted that, in December 2012, an earthquake 

hit Guatemala and destroyed his family’s home. Two weeks after 

the earthquake, he went to a city in his region to look for work. 

However, the manager of the city’s commercial center refused 

to let Antonio enter because he “did not have a degree” and he 

was not “fluent in Spanish.”

Antonio declared that, “[a]fter all these difficult situations, 

I decided that I could no longer stay in Guatemala because of 

all the abuses and discrimination I faced.” He said, “I could 

not stand the mental and physical torture and, after being 

discriminated against in the commercial center, I realized that 

I would never be able to get a job because I was indigenous, 

not flu[ent] in Spanish and hav[e] dark skin.” Antonio left 

Guatemala on November 9, 2016. He was 17 years old.

Antonio’s aunt Catarina—his proposed guardian—also 

offered a declaration in support of Antonio’s petitions. Catarina 

said she decided to take custody of Antonio after his father told 

her about the problems Antonio had at his school. Since Antonio 

arrived in the United States, Catarina has provided for all his 

necessities without receiving financial help from his parents. 

She said Antonio was forced to leave Guatemala in part because 

his father could not provide for him.

Antonio’s petitions were set for an adjudication hearing 

on May 20, 2020.

On March 13, 2020, Antonio filed an ex parte application 

to adjudicate his petitions for appointment of a guardian and 

for SIJ findings. He made the application on the ground that 

he would turn 21 years old on March 22, 2020, at which time 
5

the superior court would lose jurisdiction to rule on the petitions. 

Antonio argued dismissal of the case would cause irreparable 

harm because, without a guardianship order and SIJ findings, 

his deportation was imminent.

On March 16, 2020, the trial court denied the ex parte 

application.4

On March 20, 2020, Antonio filed an ex parte application 

for an order extending the court’s jurisdiction past March 22, 

2020—the date of his 21st birthday. The application noticed a 

hearing date of March 24, 2020. Regarding the need for ex parte 

relief, Antonio argued a March 17, 2020 court closure to arrest 

the spread of COVID-19 had prevented him from taking other 

emergency action.

5 Because he could not present the application 

before his 21st birthday, Antonio asked the court to “invoke its 

authority to act in these types of emergency circumstances and 

extend jurisdiction in this case beyond [his] 21st birthday.”

On March 24, 2020, the trial court denied the ex parte 

application.

On April 9, 2020, Antonio filed a notice of appeal from 

the March 24, 2020 order.

4 The order does not state the court’s reason for denying the

application. According to Antonio, the court denied it because 

the Probate Investigator’s Office had not yet conducted its 

investigatory meeting or prepared a report on Antonio’s petitions.

5 According to Antonio’s application, on the date of the 

court closure, his attorneys attempted to file a second ex parte 

application to compel the Probate Investigator’s Office to conduct 

its meeting. (See ante, fn. 4.) Due to the court closure, Antonio 

did not have an opportunity to present the application to the 

court.
6

DISCUSSION

SIJ status permits an immigrant child to seek lawful 

permanent residence in the United States, which, in turn, 

permits the recipient of SIJ status to seek citizenship after 

five years. (Bianka M., supra, 5 Cal.5th at p. 1013, citing 

8 U.S.C. §§ 1255, 1427.) 

Under federal immigration law, an immigrant child is 

eligible for SIJ status if: “(1) the child is a dependent of a 

juvenile court, in the custody of a state agency by court order, or 

in the custody of an individual or entity appointed by the court; 

(2) the child cannot reunify with one or both parents due to 

abuse, neglect, abandonment, or a similar basis found under 

state law; and (3) it is not in the child’s best interest to return 

to his or her home country or the home country of his or her 

parents.” (Bianka M., supra, 5 Cal.5th at p. 1013, citing 8 U.S.C. 

§ 1101(a)(27)(J)(i)–(ii), fn. omitted.)

Under the immigration law’s implementing regulations,

SIJ status is available to unmarried immigrants under 21 years 

of age if a state court has made the predicate SIJ findings. 

(8 C.F.R. § 204.11(c)(1)–(2) (2009); see Stats. 2015, ch. 694, 

§ 1(a)(2); Bianka M., supra, 5 Cal.5th at p. 1013.) An immigrant 

child cannot apply to the responsible federal agency for SIJ 

status without first obtaining a state court order (or orders) 

that makes the factual findings described above. (8 C.F.R. 

§ 204.11(d)(2)(i)–(iii) (2009) [order(s) evidencing court’s findings 

of SIJ eligibility must be submitted with petition].)6 Code of Civil 

6 “SIJ applications are reviewed by the United States 

Citizenship and Immigration Service (USCIS), an agency within 

Department of Homeland Security (DHS).” (Bianka M., supra,
7

Procedure section 155 (section 155), subdivision (a)(1) confers 

jurisdiction on the superior courts of California “to make the 

factual findings necessary to enable a child to petition [USCIS] 

for classification as a [SIJ].” The statute requires the superior 

court to issue an order including “the necessary findings 

regarding [SIJ] status” if “there is evidence to support those 

findings.” (Code Civ. Proc., § 155, subd. (b)(1); Bianka M., 

at p. 1013.)

Before 2016, immigrants between 18 and 21 years of age in 

California were unable to obtain the necessary findings “because 

probate courts [could not] take jurisdiction of individuals 18 years 

of age or older by establishing a guardianship of the person.” 

(Stats. 2015, ch. 694, § 1(a)(5); see Code Civ. Proc., § 155, subd. 

(b)(1)(A).) To enable immigrants who had reached the age of 18 

to obtain the requisite SIJ findings, the Legislature enacted 

Probate Code section 1510.1 (section 1510.1). The statute 

authorizes the court to appoint, with the individual’s consent, 

a guardian of the person for an unmarried individual who is 

between 18 and 21 years old “in connection with a petition 

to make the necessary findings regarding” SIJ status under 

section 155, subdivision (b). (Prob. Code, § 1510.1, subd. (a)(1).) 

For purposes of guardianship proceedings, the statute deems “the 

terms ‘child,’ ‘minor,’ and ‘ward’ ” to include those individuals 

under 21 years old who consent to the appointment of a guardian.

(Id., subd. (d).) In enacting section 1510.1, the Legislature 

declared its intent “to provide an avenue for a person between 

18 and 21 years of age to have a guardian of the person appointed 

beyond 18 years of age in conjunction with a request for the 

5 Cal.5th at p. 1013, citing 8 U.S.C. § 1101(a)(27)(J)(iii), 8 C.F.R. 

§ 100.1 (2009), 8 C.F.R. § 103.2(a)(7)(i) (2016).)
8

findings necessary to enable the person to petition [USCIS] for 

classification as a [SIJ].” (Stats. 2015, ch. 694, § 1(b).)

Antonio appeals the trial court’s order denying his ex parte 

application to extend the court’s jurisdiction beyond his 21st 

birthday. It is settled that a court need “not grant ex parte relief 

‘in any but the plainest and most certain of cases.’ [Citations.] 

For this reason, the rules governing ex parte applications in civil 

cases require that ‘[a]n applicant . . . make an affirmative factual 

showing . . . of irreparable harm, immediate danger, or any other 

statutory basis for granting relief ex parte.’ [Citations.] A trial 

court should deny an ex parte application absent the requisite 

showing. [Citations.] We review a trial court’s ruling on an 

ex parte application for abuse of discretion.” (People ex rel. 

Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257.)

The trial court had no discretion under section 1510.1 

to appoint a guardian for Antonio or otherwise to extend its 

jurisdiction over him after Antonio attained 21 years of age. 

(Prob. Code, § 1510.1, subd. (a)(1) [“[T]he court may appoint 

a guardian of the person for an unmarried individual who is 

18 years of age or older, but who has not yet attained 21 years 

of age.” (Italics added.)].) In requesting this relief, Antonio cited 

no statutory or common law authority that would permit the 

court to enter such an order, and we have been unable to find 

any applicable source of authority in our own research. (Cf. 

Welf. & Inst. Code, § 607 [authorizing court to retain jurisdiction 

over a person who is found to be a ward or dependent child of 

the juvenile court until the person attains 21 years of age, except

when the person has committed a qualifying offense, in which 

case the court may retain jurisdiction until the person attains 

23 or 25 years of age].)
9

Indeed, it was the fact that the superior court lacked

jurisdiction to appoint a guardian for individuals 18 years of age 

or older that compelled the Legislature to enact section 1510.1. 

(See Stats. 2015, ch. 694, § 1(a)(5).) In doing so, the Legislature 

authorized the appointment of a guardian for a person under 21 

years old to align California state law with the applicable federal 

regulations, which restrict eligibility for SIJ classification to 

unmarried persons “under twenty-one years of age.” (8 C.F.R. 

§ 204.11(c)(1).) Even if the trial court had discretion under 

our state law to appoint a guardian and make SIJ findings for 

Antonio after his 21st birthday, it had no authority to set aside 

the federal regulations barring his application to USCIS for 

SIJ status. (See 8 U.S.C. § 1101(b)(1) [“The term ‘child’ means 

an unmarried person under twenty-one years of age.”]; cf. 

8 U.S.C. § 1232(d)(6) [An immigrant child “may not be denied 

special immigrant status under [federal immigration law] . . . 

based on age if the alien was a child on the date on which the 

alien applied for such status.” (Italics added.)].) Thus, the trial 

court had neither discretion nor jurisdiction to remedy the harm 

Antonio’s ex parte application sought to address. The court did 

not err in denying the application.
10

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.