B.R.L.F. v. Zuniga

200 A.3d 770

B.R.L.F., Appellant,

v.Lilian Marleny SARCENO ZUNIGA, Appellee.

No. 17-FM-61

District of Columbia Court of Appeals.

Submitted January 9, 2018

Decided January 2, 2019^*

Jaime Winthuysen Aparisi was on the brief for appellant. Zachary Kohn, Silver Spring, MD, entered his appearance for appellant.

No brief was filed for appellee.

Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Ferren, Senior Judge.

Concurring opinion by Associate Judge Easterly at page 778.

Opinion concurring in the judgment by Senior Judge Ferren at page 779.

Per Curiam:

In December 2015, at age fourteen, B.E.L.S. entered the United States illegally from Guatemala in the company of human smugglers to join appellant, his father, who has resided in the United States since 2007. Appellant challenges the trial court's December 22, 2016, order denying his unopposed motion for findings pursuant to District of Columbia law that would allow him to petition the United States for Special Immigrant Juvenile Status ("SIJS") for B.E.L.S. under 8 U.S.C. § 1101 (a)(27)(J) (2009 Supp. II).¹ We agree with the trial court's findings that B.E.L.S. was eligible for SIJS, and that it would not be in B.E.L.S.'s "best interest to be returned" to Guatemala.² We discern reversible error, however, in the court's finding that B.E.L.S.'s reunification with his mother in Guatemala would be "viable."³ Accordingly, we reverse and remand the case for the trial court to enter judgment that B.E.L.S. qualifies to petition for SIJ status.

I. The Facts

In November 2015, B.E.L.S.'s mother placed him in the company of human smugglers, who took him to the United States border, where he crossed into Texas in December and was "caught" by immigration enforcement. The terms of his release are not clear, but by January 2016, he had arrived in Washington, D.C. to live with appellant.

B.E.L.S. testified that he "came to the United States" for "better opportunities to study." He added that on two occasions prior to his departure gang members had asked him to "sell cocaine and marijuana," and that he had feared they "would harm" or even "kill" him because of his refusal to do so. B.E.L.S. and appellant both stated that the boy's mother had sent him away with human smugglers because she believed that "the police would not do anything" about the gang threat.⁴ B.E.L.S. testified that his run-ins with gang members had occurred first in September 2014 and again in October 2015, thirteen months after the first approach and one month before he left home.

As to his home life, B.E.L.S. testified that he had lived with his mother and two of his younger siblings in Guatemala. Appellant and B.E.L.S. both testified that, although his mother "always is sick" and is therefore unemployed, appellant supported the family when B.E.L.S. was in Guatemala, supports B.E.L.S. now, and continues to support B.E.L.S.'s mother and siblings living with her in Guatemala.

B.E.L.S. presently keeps in touch with his mother through weekly phone calls.

II. The Trial Court's Ruling

The trial court ruled that B.E.L.S. had satisfied three of the four statutory and regulatory criteria allocated by federal law to the District of Columbia Courts for making SIJS findings: (1) B.E.L.S. was under the age of twenty-one years and unmarried at the time of his request;⁵ (2) B.E.L.S. had been placed, pursuant to a concurrent order of the court, in the sole legal and physical custody of his father in the District of Columbia,⁶ with "a reasonable right of visitation" for his mother "per agreement between" her and appellant; and (3) it was not in B.E.L.S.'s "best interest" to be returned to Guatemala.⁷ The trial court also ruled, however, that there was "no credible evidence that reunification with BELS's mother is not viable," thereby rejecting the petition for SIJS findings under 8 U.S.C. § 1101 (a)(27)(J)(i).⁸ The court offered several reasons for this conclusion.

As to B.E.L.S.'s family life, the trial court found no credible evidence that "his mother abused, neglected or abandoned BELS in Guatemala before [she] sent him to live with his father in the United States." The court also noted that "BELS and his mother have maintained a parent-child relationship since his arrival in this country"; indeed, "[t]hey converse on the telephone every Saturday." Furthermore, said the court, the mother's health "does not make it impossible" for her to care for B.E.L.S., as "she is currently caring for two of [his] siblings despite her reported health concerns." Nor did the court find any "reason to believe that she would be unable to care for" B.E.L.S., as appellant continues to provide financial support for her and B.E.L.S.'s two siblings remaining in Guatemala in their mother's care.

Despite this benign view of B.E.L.S.'s past and future home life with his mother, the trial court found that it was not in B.E.L.S.'s "best interest to return to Guatemala" because B.E.L.S. would have "better employment and educational opportunities" in the United States as well as "a better quality of life ... distant from the public safety concerns in Guatemala." This "best interest" finding was obvious to the court, despite its finding that B.E.L.S. had not lived under the gang threat in Guatemala that he allegedly feared.⁹

The trial court addressed—and rejected—the alleged gang threats exclusively in connection with its analysis of B.E.L.S.'s "best interest";¹⁰ the court did not reference Guatemalan gangs when ruling on appellant's claims of "neglect" and "abandonment" by the boy's mother premised on her entrusting him to human smugglers.¹¹ These latter claims, however, were premised on B.E.L.S.'s gang threat testimony and the mother's response, and this appeal challenges the trial court's failure to address that alleged connection.

III. Appellant's Argument

Appellant contends that reunification of B.E.L.S. with his mother would not be viable because she has "neglected" and "abandoned" him according to District of Columbia law (applicable as "State" law incorporated into the SIJS statute).¹² Specifically, "by sending [B.E.L.S.] away" with "an unknown human smuggler," his mother has failed "to take care of him" (neglect) and to maintain "their relationship" (abandonment). She ignored "safer alternatives" to remove B.E.L.S. from the alleged gang threat, such as contacting the police or relocating B.E.L.S. "internally" (in Guatemala) with the money she used to hire the smuggler. Nor did she attempt to find a trusted adult to accompany and protect B.E.LS. on the journey. In any event, adds appellant, B.E.L.S.'s mother is "unable to care for him as she is ill and unemployed." Accordingly, argues appellant, B.E.L.S.'s reunification with his mother "is not viable because of abandonment and neglect" —grounds which, he says, the trial court erroneously rejected.

IV. Analysis

A. Standard of Review

We review "the trial court's decisions on appeal for abuse of discretion, errors of law, and clear lack of evidentiary support. In reviewing for abuse of discretion, this court considers whether the trial court exercised its discretion within the range of permissible alternatives, based on all relevant factors and no improper factor."¹³ We review the trial court's legal determinations de novo and its "findings of fact ... for clear error."¹⁴ Overall, the decision of the trial court "must provide substantial reasoning that is based on correct legal principles and has a firm factual foundation in the record."¹⁵

B. SIJS Standard of Proof

The SIJS statute does not announce a federal standard of proof,¹⁶ and "[t]here is nothing in" the U.S. Citizenship and Immigration Services ("USCIS") "guidance that should be construed as instructing juvenile courts on how to apply their own state law."¹⁷ Because our trial courts, unless otherwise specified, generally apply the preponderance standard in civil cases,¹⁸ including family matters,¹⁹ we conclude that the SIJS statute required appellant to demonstrate by a preponderance of the evidence that B.E.L.S.'s reunification with his mother was "not viable" under District of Columbia law.²⁰

C. This Case

After hearing testimony from both father and child (appellant and B.E.L.S.), the trial court, in adjudicating subsection (i) of the SIJS statute,²¹ concluded that B.E.L.S. had presented "no credible evidence ... that his mother abused, neglected or abandoned [B.E.L.S.] in Guatemala before his mother sent him to live with his father in the United States."²² We perceive no record basis for second-guessing the court's findings that B.E.L.S.'s mother had not "abused" him. On the facts here, however, "neglect" and "abandonment" require extended analysis.

1. Neglect and Abandonment

The question before us—in aid of an ultimate determination by federal authorities as to whether B.E.L.S. should be allowed to remain in the United States—is whether B.E.L.S.'s mother "neglected" or "abandoned" him by sending him on a long and dangerous journey with human smugglers from Guatemala to the Texas border in the hope of reuniting the boy with his father in the District of Columbia. We have previously noted the difficulties that such a task imposes upon a state judge.²³ Such proceedings, as in this case, are normally unopposed and involve factual questions in the home country thousands of miles away. Furthermore, the state court is asked to make the determination in a context quite foreign to its normal responsibilities—indeed, to make a determination informed by the realization that, when refusing to make the findings required for SIJ status, the court's decision is, in effect, a negative immigration decision.

Accordingly, when determining whether a petitioner has established a prima facie case, the trial court must recognize that Congress to some extent has put its proverbial thumb on the scale favoring SIJS status. "The purpose of the law is to permit abused, neglected, or abandoned children to remain in this country."²⁴ And, in establishing the...