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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

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 Resource Center, Angie Junck; University of 
2

California, Irvine School of Law Immigrant Rights Clinic, Sameer M. Ashar; 

Southwestern Law School Immigrant Law Clinic, Andrea Ramos; 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. Liebman, Trial Attorney as Amicus Curiae, upon 

request of the Court of Appeal. 

* * * 

 Eighteen-year-old Eddie E. petitions 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 Immigrant Juvenile (SIJ) under the Immigration 

and Nationality Act, title 8 United States Code section 1101(a)(27)(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 minor must have, among other things, “been 

declared dependent on a juvenile court located in the United States or [be one] 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 . . . .” (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 otherwise stated) and did not make any of the other 

required findings for SIJ status. Petitioner contends this was error and seeks a writ of 

mandate ordering the respondent court to make the remaining findings of fact necessary 
3

to determine eligibility for SIJ status. We agree and grant the petition for writ of 

mandate. 

BACKGROUND 

 Petitioner was born in Mexico in February 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 had 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 probation department for placement in juvenile 

hall for eight days, with credit for eight days served, and thereafter to be released to U.S. 

Immigration and Customs Enforcement (ICE). 

 In 2012, petitioner’s probation was transferred 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 shelter in Orange County later that 

year. 

 At a hearing in December 2012, petitioner’s immigration attorney, Martin 

Gauto, made a special appearance to request respondent court make factual findings to 

allow petitioner to file a petition for SIJ status. After Gauto filed supporting memoranda 

of points and authorities, a hearing was held in January 2013 during which the district 

attorney declined to be heard. Respondent court found petitioner did not meet the first 

requirement for SIJ status, that he be an immigrant “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 
4

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 California to respond informally; it responded by letter 

stating it was not opposed to the granting of the relief sought. We thereafter issued an 

order to real party in interest to show cause why a writ of mandate should not issue and 

invited amici curiae briefs from various entitles. 

 By letter, real party in interest reiterated it had no opposition to the petition 

while the California Attorney General’s Office stated it took no position on the matter 

and declined to file an amicus brief. The United States Department of Justice filed an 

amicus brief stating it took “no position whether . . . petitioner 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 Resource Center, University of California, Irvine 

School of Law, Southwestern Law School Immigration Law Clinic, and Youth Law 

Center. 

DISCUSSION 

 “The Immigration Act of 1990 [the Act], codified at [title 8 United States 

Code] section 1101, sets forth a procedure for classification of certain aliens as special 

immigrants who have been declared dependent ‘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, and abandoned unaccompanied minors through a process that 

allows them to become permanent legal residents. . . . A minor who obtains SIJ status 

may become a naturalized United States citizen after five years.” (Y.M., supra, 207 

Cal.App.4th at p. 915.) “While the federal government has exclusive jurisdiction with 
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respect to immigration [citations], including the final determination whether an alien 

child will be granted permanent status as an SIJ [citations], state juvenile courts . . . [¶] 

are charged with making a preliminary determination 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 amended twice since the Act’s enactment. 

(Mario S., supra, 954 N.Y.S.2d at p. 848.) “‘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 for long-term foster care due to abuse, neglect, or abandonment 

and (2) has been declared a dependent of a juvenile court or committed or placed with a 

state agency’ [citations]. ‘Under the 2008 amendment, the eligibility requirements . . . 

 hinge primarily on a reunification determination. The amendment expanded eligibility 

to include juvenile immigrants whom a court 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 agency 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 abandonment. 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 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 
6

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, . . . [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 individual or entity appointed by a 

State or juvenile court located in the United States.” (8 U.S.C. § 1101(a)(27)(J)(i).) 

Once either of those findings are made, the court 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 similar 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 findings 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 court made no guardianship findings as to 
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[petitioner.] There were no placement orders made when [petitioner] was brought into 

[section] 602 status.” It did not make any 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 construing 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 alternative basis, a resident 

alien in petitioner’s position may also demonstrate he had been “legally committed to, or 

placed in 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 erred by not considering and making findings on 

this alternative basis. We thus grant the petition and issue a writ of mandate ordering 

respondent court to do so, and 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 commanding 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 conduct a hearing as soon as 
8

practicable, on the remaining requested findings 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.