Filed 10/16/13 Eddie E. v. Super. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

EDDIE E.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;

THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. G048067 (Super. Ct. No. DL039927)

O P I N I O N

Original proceeding; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nick A. Dourbetas, Judge . Petition granted. Lina F. Somait; Catholic Charities of Los Angeles, Inc. and Martin Gauto

for Petitioner. No appearance by Respondent. No appearance by Real Party in Interest. Public Counsel Law Center, Martha Matthews; Legal Services for Children, Abigail Trillin; Immigrant Legal Res ource Center, Angie Junck; University of2 California, Irvine School of Law Immigr ant Rights Clinic, Sameer M. Ashar;

Southwestern Law School I mmigrant Law Clinic, Andrea Ra mos; Youth Law Center and

Alice Bussiere as Amicus Curiae on behalf of Petitioner, upon request of the Court of Appeal. Office of Immigration Litigation DCS, Stuart F. Delery, Acting Assistant Attorney General for the United States Department of Justice Civil Division, Elizabeth J. Stevens, Assistant Director, Melissa S. Lieb man, Trial Attorney as Amicus Curiae, upon request of the Court of Appeal.

* * *

Eighteen-year-old Eddie E. petiti ons for unopposed writ relief after respondent court denied his request to make all necessary factual findings to enable him to apply for classification as a Special Immi grant Juvenile (SIJ) under the Immigration and Nationality Act, title 8 United States Code section 1101(a)(2 7)(J), which provides “abused, neglected, and abandoned unaccompanied minors . . . a process that allows them to become permanent legal residents.” ( In re Y.M. (2012) 207 Cal. App.4th 892, 915 ( Y.M. ).) To be entitled to SIJ status, the mi nor must have, among other things, “been declared dependent on a juven ile court located in the Unite d States or [b e one] whom such a court has legally comm itted 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 . . . .” (8 U.S.C. § 1101(a)(27)(J)(i ).) Respondent court found petitioner did not qualify as a dependent because he had “been declared a ward of this court under [Welfare and Institutions Code] section 602” (all further statutory

references are to this code unless otherwis e stated) and did not make any of the other required findings for SIJ status. Petitioner co ntends this was error and seeks a writ of mandate ordering the respondent court to ma ke the remaining findings of fact necessary3 to determine eligibility for SIJ status. We agree and grant the petition for writ of

mandate.

BACKGROUND

Petitioner was born in Mexico in Febr uary 1995. He was brought to the United States by his mother when he was five years old, has never returned to Mexico. After abandoning him three years later, his mother died in September 2010. In 2011, respondent court declared petitioner a ward of the court under section 602 after finding true allegations he ha d unlawfully taken a vehicle, resisted or obstructed a public officer, and was guilty of hit and run with property damage. It committed petitioner to the care of the proba tion department for pl acement in juvenile hall for eight days, with credit for eight days se rved, and thereafter to be released to U.S. Immigration and Customs Enforcement (ICE). In 2012, petitioner’s probation was tran sferred to San Bernardino County for several months after he was placed in a foster home in that county. He was

transferred back to an Office of Refugee Resettlement sh elter in Orange County later that

year. At a hearing in December 2012, petiti oner’s immigration attorney, Martin Gauto, made a special appearan ce to request respondent c ourt make factual findings to allow petitioner to file a petition for SIJ stat us. After Gauto filed supporting memoranda of points and authorities, a hearing was held in January 2013 duri ng which the district attorney declined to be heard. Respondent court fo und petitioner did not meet the first requirement for SIJ status, that he be an i mmigrant “who has been declared dependent on a juvenile court located in the United States or whom such a cour t has legally committed to, or placed under the custody of , an agency or department of a State, or an individual or4 entity appointed by a State or juvenile court located in the United States.” (8 U.S.C. § 1101(a)(27)(J)(i).) Petitioner filed a petition for writ of mandate. We invited real party in interest the People of the State of Californi a to respond informally ; it responded by letter stating it was not opposed to the granting of th e relief sought. We thereafter issued an order to real party in interest to show cau se why a writ of mandate should not issue and

invited amici curiae briefs from various entitles. By letter, real party in interest reit erated it had no opposition to the petition while the California Attorney General’s Offi ce stated it took no position on the matter

and declined to file an amic us brief. The United States Department of Justice filed an amicus brief stating it took “n o position whether . . . petitione r satisfies the first criterion for a dependency order under 8 U.S.C. § 1101 (a)(27)(J)(i).” An amici curiae brief was filed in support of petitioner collectively by the Public Counsel Law Center, Legal Services for Children, Immigrant Legal Resour ce Center, University of California, Irvine School of Law, Southweste rn Law School Immigration Law Clinic, and Youth Law

Center.

DISCUSSION

“The Immigration Act of 1990 [the Ac t], codified at [title 8 United States Code] section 1101, sets forth a procedure for classification of certai n aliens as special immigrants who have been declared de pendent ‘on a juvenile court.’” ( B.F. v. Superior

Court (2012) 207 Cal.App.4th 621, 626 ( B.F. ).) “Congress created this classification to protect abused, neglected, a nd abandoned unaccompanied minors through a process that allows them to become permanent legal reside nts. . . . A minor who obtains SIJ status may become a naturalized United Stat es citizen after five years.” ( Y.M. , supra , 207 Cal.App.4th at p. 915.) “While the federa l government has exclus ive jurisdiction with5 respect to immigration [citations], including the final determination whether an alien child will be granted permanent st atus as an SIJ [citations], st ate juvenile courts . . . [¶] are charged with making a preliminary determ ination of the child’s dependency and his or her best interests, which is a prerequisite to an application to adjust status as a special immigrant juvenile.” ( In re Mario S. (N.Y. Fam. Ct. 2012) 38 Misc.3d 444, 451 [954 N.Y.S.2d 843, 849] ( Mario S. ).) The SIJ provisions has been amende d twice since the Act’s enactment. ( Mario S. , supra , 954 N.Y.S.2d at p. 8 48.) “‘In 1997 . . . Congress amended [title 8 United States Code] § 1101(a)(27)(J) to require that a court, in its order, determine that the juvenile (1) is eligible fo r long-term foster care due to abuse, neglect, or abandonment and (2) has been declared a de pendent of a juvenile court or committed or placed with a state agency’ [citations]. ‘Unde r the 2008 amendment, the eligibility requirements . . . hinge primarily on a reunification determin ation. The amendmen t expanded eligibility to include juvenile immigrants whom a cour t has committed to or placed in the custody of an individual or a state-appointed entity -- not just those whom a court has committed to or placed with a state ag ency or department. . . . Finally, Congress removed the requirement that a state juvenile court find that a juvenile is eligible for long-term foster care because of abuse, neglect, or abando nment. Instead, a court must find that reunification is not possible because of abuse, neglect, or abandonment.’” ( Id . at pp. 848- 849.) As it reads now, title 8 United States Code section 1101(a )(27) provides: “The term ‘special immigrant’ means—[¶] . . . [¶] (J) an immigrant who is present in the United States—[¶] (i) who has be en declared dependent on a juvenile court located in the

United States or whom such a court has legally comm itted 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 abus e, neglect, abandonment, or a similar basis6 found under State law; [¶] (ii) for whom it has been determ ined in administrative or judicial proceedings that it woul d not be in the alien’s best in terest to be returned to the alien's or parent’s previous co untry 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, . . . [with certain inapplicable exceptions].” (Italics added.) The first part of subsection (i) is phrased in the disjunctive. (See Boy Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th 428, 444 [“‘When used in a statute, the word “or” indicates an intention to designate separate, disjunctive categories’”].) Thus, a court must find either that an immigrant has been (a) “declared dependent on a juvenile court” or (b) “legally committed to, or placed under the custody of” a state agency or department or “an indi vidual or entity appointed by a State or juvenile court located in the Unite d States.” (8 U.S.C. § 1101(a)(27)(J)(i).)

Once either of those findings are made, the cour t must then “‘ma[k]e two additional findings: (1) that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a sim ilar basis found under State law; and (2) 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.’” ( Mario S. , supra , 954 N.W.S.2d at p. 849; 8 U.S.C. § 1101(a)(27)(J)(i) & (ii).) Here, respondent court found under (a) that petitioner had not been declared a dependent of the court. It distinguished B.F. , supra , 207 Cal.App.4th 621, which held a probate court had authority to make SIJ fi ndings for three immigrant minors whose aunt and uncle had been appointed as their temporary guardians. ( Id . at pp. 624, 625, 627- 630.) According to respondent court, petitioner had “not been designated a dependent of the juvenile court . . . pursuant to section 300 . . . [but rather] has been declared a ward of this court under section 602 [and] this c ourt made no guardianship findings as to7 [petitioner.] There were no placement orders made when [petitione r] was brought into [section] 602 status.” It did not make a ny additional findings. This was error. Under the plain language of the statute ( Shirey v. Los Angeles County Civil

Service Com. (2013) 216 Cal.App.4th 1, 20 [“In cons truing a federal statute, ‘“we look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress”’”]), dependency under section 300 is not the only manner in which petitioner could satisfy the first part of title 8 United States Code section 1101( a)(27)(J)(i). Rather, as an a lternative basis, a resident alien in petitioner’s position may also demonstrat e he had been “lega lly committed to, or placed in the custody of, an agen cy or department of a State, or an individual or entity appointed by a State or juvenile court loca ted in the United States.” (8 U.S.C. § 1101(a)(27)(J)(i).) Respondent court erred by not considering and making findings on this alternative basis. We thus grant th e petition and issue a writ of mandate ordering respondent court to do so, a nd if it finds petitioner was such a person, to determine (1) whether reunification with his parents “is not viable due to abuse, neglect, abandonment,

or a similar basis found under State law” and (2) whether it would be in his “best interest to be returned to [his] . . . previous country of nationality or country of last habitual residence.” (8 U.S.C. § 1101(a)(27)(J)(i)-(ii).)

DISPOSITION

Let a writ of mandate issue comma nding respondent Superior Court of Orange County to vacate its order of January 11, 2013, denying petitioner’s application for SIJ status on the basis petitioner was not a dependent within the meaning of title 8

United States Code section 1101(a)(27)(J)(i), and to cond uct a hearing as soon as8 practicable, on the remaining requested finding s of fact necessary for SIJ status and thereafter issue a new order. Each party shall bear its own costs of this writ proceeding.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

IKOLA, J.