In re Velasquez

998 N.W.2d 898

344 Mich.App. 118

IN RE VELASQUEZ, Minor.

Mario Velasquez-Tomas, Guardian of LMV Appellant.

No. 360057

Court of Appeals of Michigan.

Submitted August 3, 2022, at Grand Rapids

Decided November 10, 2022, 9:15 a.m.

Ionia Probate Court, LC No. 2021-000494-GM, Robert S. Sykes, Jr., J.

Michigan Immigrant Rights Center (by Molly Huffaker) for appellant.

Before: Rick, P.J., and Boonstra and O’Brien, JJ.

Rick, P.J.

₁₂₄Appellant, Mario Velasquez-Tomas, guardian of LMV, a minor, appeals as of right the probate court’s order denying his motion for special findings of fact to apply for special immigrant juvenile (SIJ) status for LMV under 8 USC 1101(a)(27)(J) with the United States Citizenship and Immigration Services (USCIS). On appeal, appellant argues that the probate court erred when it (1) concluded that the notice of service of the motion to LMV’s mother was insufficient, (2) refused to find that LMV was neglected or abused by his mother, and (3) failed to determine whether it was in LMV’s best interests to return to his mother in Guatemala, his country of origin, or remain in the United States. This case presents issues of first impression regarding SIJ-status proceedings. MCR 7.215(B)(2). We vacate the probate court’s order and enter the accompanying order with special findings of fact to establish SIJ status for LMV. See MCR 7.216(A)(7).

I. BACKGROUND

Appellant, LMV’s uncle, initiated an action for full guardianship of LMV in December 2021, and further motioned the probate court to make the predicate factual findings necessary for LMV to apply for SIJ status, including that (1) LMV is dependent on the court, (2) his reunification with his parents was not viable because of abuse, neglect, abandonment, or a similar basis under state law, and (3) it is not in LMV’s best interests to return to Guatemala. The record ₁₂₅indicates that a copy of the petition and motion were sent by first-class mail to LMV’s mother in December 2021.

The probate court held a bifurcated hearing on the guardianship petition and motion for special findings in January 2022. At the healing, the court first heard from appellant regarding the guardianship petition. LMV had been living with appellant since January 2021.¹ Appellant explained that he was able to provide financially for LMV while LMV attended school and that he would talk to LMV when he needed to be disciplined. The probate court also heard testimony that, although LMV maintained contact with his mother, she was not providing any financial support for LMV. LMV and appellant both testified that LMV’s mother did not oppose the guardianship petition. LMV’s appointed guardian ad litem (GAL) expressed that LMV needed a guardian and observed that it was in LMV’s best interests to have appellant appointed as his guardian. The probate court confirmed that LMV’s father was deceased, and it granted the petition to appoint appellant as guardian of LMV.

Next, the court heard testimony in support of the motion for special findings to establish SIJ status. LMV explained that he left Guatemala and traveled to the United States in search of a better life. LMV testified that, instead of attending school, he was required to work starting when he was approximately eight years old. When he was 12 years old, he began working alone and was forced to work in dangerous conditions, including being exposed to chemical fertilizers and harvesting equipment. In one instance, LMV was injured by an ax or machete and his mother did ₁₂₆not seek medical care for him. Before age 12, LMV assisted with his mother’s work by moving rocks. LMV testified that he had very "little" food and water in Guatemala. LMV further testified that his mother beat him with a belt or stick if he was unable to work, leaving marks, and she also hit and scolded him as punishment. LMV testified that he felt bad when his mother beat and hit him and that he would feel bad if he had to return to his mother in Guatemala. While living with appellant, LMV was able to attend school and received appropriate care, food, and shelter. The GAL recommended that the court enter an order with the special findings on the issue of SIJ status. The GAL emphasized that the testimony supported a finding that LMV had been abused and neglected by his mother, that his father was deceased, and that it was not in LMV’s best interests to return to Guatemala, in part because LMV had better educational opportunities in the United States and appellant was able to take better care of LMV’s needs.

Although the probate court granted the guardianship petition, the court denied the motion for SIJ-status special findings. In denying the motion, the probate court found that LMV’s mother had not been given proper notice of the proceeding and determined that it could not conclude that LMV was abused or neglected by his mother because she had no opportunity to refute LMV’s testimony. The court made no findings regarding whether LMV’s best interests would be served by returning to Guatemala, stating it was "not even sure how—what the standard would be in making that finding" and noting that "within a child protection proceeding…, [the court] would not make a finding of abuse or neglect against a parent without giving the parent an opportunity to appear and respond to the allegations." Although appellant requested₁₂₇ an adjournment to provide additional notice to LMV’s mother, the court denied his request, stating, "I’m not granting the special immigration status to a young man who has entered this country illegally, and … whose mother has not been given an opportunity to refute the allegations." This appeal followed.

II. STANDARD OF REVIEW

[1-8] We review for an abuse of discretion a probate court’s dispositional rulings and review for clear error the factual findings underlying its decision. In re Portus, 325 Mich App 374, 381, 926 N.W.2d 33 (2018). A court abuses its discretion if it "chooses an outcome outside the range of reasonable and principled outcomes." Id. (quotation marks and citations omitted). "The probate court necessarily abuses its discretion when it makes an error of law." Id. (quotation marks and citations omitted). "A probate court’s finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." Id. (quotation marks and citation omitted). This Court defers to the probate court on matters of credibility and gives broad deference to findings of fact made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily ascertainable to the reviewing court. In re Erickson Estate, 202 Mich App 329, 331, 508 N.W.2d 181 (1993); MCR 2.613(C). Matters of statutory interpretation are reviewed de novo, which also applies to the interpretation of federal statutes and regulations:

Statutory interpretation is a question of law we review de novo, as is the interpretation of administrative regulations. This standard applies to the interpretation of federal₁₂₈ statutes andregulations, though reasonable administrative interpretations of regulations operating as statutory gap-fillers are entitled to deference. Clear and unambiguous statutory language is given its plain meaning, and is enforced as written. [In re L.F.O.C., 319 Mich App 476, 480, 901 N.W.2d 906 (2017) (quotation marks and citations omitted).]

III. SIJ STATUS OVERVIEW

The Immigration and Nationality Act of 1990 " ‘established SIJ status as a path for resident immigrant children to achieve permanent residency in the United States.’ " Id. at 481, 901 N.W.2d 906, quoting In re Estate of Nina L, 2015 Ill App 152223, ¶ 15, 397 Ill Dec 279, 41 N.E.3d 930 (2015). "In short, 8 USC 1101(a)(27)(J) and 8 CFR 204.11 (2022) afford undocumented children, under the jurisdiction of a juvenile court, the ability to petition for special immigrant juvenile status in order to obtain lawful permanent residence in the United States." In re L.F.O.C., 319 Mich App at 484, 901 N.W.2d 906 (quotation marks and citation omitted).

[9-14] There is a two-step process for obtaining SIJ status, which entails "a unique hybrid procedure that directs the collaboration of state and federal systems." Id. at 486, 901 N.W.2d 906 (quotation marks and citation omitted). First, the state court makes predicate factual findings pertinent to the juvenile’s SIJ status. Id. The state court must find that the individual who seeks SIJ status is under the age of 21, unmarried, and (1) dependent on the juvenile court, (2) cannot viably be reunified with one or both of their parents because of neglect, abandonment, or a similar basis found under state law, and (3) the juvenile’s best interests would not be served by returning to their country of origin. 8 USC 1101(a)(27)(J). The findings made by the state court only relate to matters of child welfare, a subject traditionally₁₂₉ left to the jurisdiction of the states, and are made according to state law. In re L.F.O.C., 319 Mich App at 486, 901 N.W.2d 906. "The federal statute places no restriction on what is an appropriate proceeding or how these SIJ factual findings should be made. The only limitation is that the court entering the findings fit the federal definition of a ‘juvenile court.’ " Id. at 487, 901 N.W.2d 906 (quotation marks and citation omitted). However, the state court "is not to engage in an immigration analysis or decision…. " Id. at 486, 901 N.W.2d 906, citing Recinos v Escobar, 473 Mass. 734, 738, 46 N.E.3d 60 (2016). "Although the juvenile court determines whether the evidence supports the findings, the final decision regarding SIJ status rests with the federal government. …" In re L.F.O.C., 319 Mich App at 485, 901 N.W.2d 906 (quotation marks and citation omitted). After the state court makes the predicate findings, the juvenile applies to the USCIS for SIJ status. Id. The USCIS "engages in a much broader...