Ribeiro Arrais v. Sousa

1

GERISKA THAMARA RIBEIRO ARRAIS Appellant v. MARCONIO SALES SOUSA

No. 2518 EDA 2022

No. J-S03017-23

Superior Court of Pennsylvania

August 1, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered September 7, 2022 In the Court of Common Pleas of Chester County Civil Division at No(s) 2022-04169-CU

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

MCCAFFERY, J.

Geriska Thamara Ribeiro Arrais (Mother) appeals from the order denying her petition for special relief pursuant to Pennsylvania Rule of Civil Procedure 1915.13^[1] and its local rule counterpart, Chester County Rule of Civil Procedure 1915.13.A. In the petition, Mother sought the issuance of an order containing specific findings of fact regarding her minor son (Child or the Child), which would permit Child to apply for special immigrant juvenile status (SIJ) under federal law. For the following reasons, we vacate and remand.

I. Facts & Procedural History

Child was born in December 2009 and lived in Brazil with Mother, until April 2021. See Mother's Complaint For Custody (Custody Complaint), 6/15/22, at 1-2 (unpaginated). Mother and Child's father, Marconio Sales Sousa (Father),^[2] were married and subsequently divorced around 2017 because Father was purportedly physically aggressive towards Mother and Child. See N.T., 8/19/22, at 5-6. Child indicated he no longer talks to Father. Id. at 11.

In June 2017, Mother and Child moved to the United States, and presently reside in Chester County, Pennsylvania, with Mother's new husband. See Custody Complaint at 2 (unpaginated); see also N.T. at 4.

A. Custody Complaint

On June 15, 2022, Mother filed a complaint, seeking sole physical and legal custody of Child. See Custody Complaint at 1 (unpaginated).^[3] That same day, Mother also filed a petition for special relief, alleging: (1) Child was under the age of 18 and unmarried; (2) Child had resided with Mother for the past 12 years; (3) Father is in Brazil and no longer involved in Child's life; (4) Mother is Child's sole parental figure, and provides for all of his needs and wants; and (5) Child is eligible for SIJ status, as set forth in the Immigration and Nationality Act (INA) at 8 U.S.C. § 1101(a)(27)(J). See Mother's Petition for Special Relief Pursuant to Pa.R.C.P. 1915.13 and C.C.R.C.P. 1915.13.A (Mother's Petition for Special Relief), 6/15/22, at 1-2 (unpaginated). Mother indicated she was "seeking special relief in the form of a [c]ourt [o]rder that enumerates the aforesaid additional findings of fact and grants her sole legal and physical custody of . . . Child." Id. at 2.

B. Federal Law - SIJ Statute & Classification

At this juncture, it is necessary to set forth the applicable federal law at issue. "The SIJ statute, 8 U.S.C. § 1101(a)(27)(J), provides that a juvenile who qualifies as an SIJ may apply for lawful permanent residency and thus relief from deportation." Orozco v. Tecu, 284 A.3d 474, 476 (Pa. Super. 2022) (citation omitted). Section 1101(a)(27)(J) defines an SIJ as a juvenile:

(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 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[.]

8 U.S.C. § 1101(a)(27)(J).^[4]

"In order to obtain SIJ status, a petitioner must obtain determinations from both the state and federal systems." Orozco, 284 A.3d at 476. Under 8 C.F.R. § 204.11, SIJ classification requires the following, in pertinent part:

(b) Eligibility. A petitioner is eligible for classification as a special immigrant juvenile under section 203(b)(4) of the Act as described at section 1[1]01(a)(27)(J) of the Act, if they meet all of the following requirements:

(1) Is under 21 years of age at the time of filing the petition;

(2)Is unmarried at the time of filing and adjudication;

(3)Is physically present in the United States;

(4) Is the subject of a juvenile court order(s) that meets the requirements under paragraph (c) of this section; and

(5) Obtains consent from the Secretary of Homeland Security to classification as a special immigrant juvenile. For [United States Citizenship Immigration Services (USCIS)] to consent, the request for SIJ classification must be bona fide, which requires the petitioner to establish that a primary reason the required juvenile court determinations were sought was to obtain relief from parental abuse, neglect, abandonment, or a similar basis under State law. . . .

(c) Juvenile court order(s).

(1) Court-ordered dependency or custody and parental reunification determination. The juvenile court must have made certain judicial determinations related to the petitioner's custody or dependency and determined that the petitioner cannot reunify with their parent(s) due to abuse, neglect, abandonment, or a similar basis under State law.

(i) The juvenile court must have made at least one of the following judicial determinations related to the petitioner's custodial placement or dependency in accordance with State law governing such determinations:

(A) Declared the petitioner dependent upon the juvenile court; or (B) Legally committed to or placed the petitioner under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court.

(ii) The juvenile court must have made a judicial determination that parental reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under State law. The court is not required to terminate parental rights to determine that parental reunification is not viable.

(2) Best interest determination.

(i) A determination must be made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions that it would not be in the petitioner's best interest to be returned to the petitioner's or their parent's country of nationality or last habitual residence.

(ii) Nothing in this part should be construed as altering the standards for best interest determinations that juvenile court judges routinely apply under relevant State law.

(3) Qualifying juvenile court order(s).

(i) The juvenile court must have exercised its authority over the petitioner as a juvenile and made the requisite judicial determinations in this paragraph under applicable State law to establish eligibility. . . .

8 C.F.R. § 204.11(b)-(c) (emphases added). "Under the federal SIJ scheme, the state court does not render an immigration decision but rather makes factual determinations predicate to [United States Citizenship Immigration Services'] SIJ determination." Orozco, 284 A.3d at 477 (citation omitted).

C. Custody Hearing

On August 19, 2022, the trial court held a hearing but did not comment as to whether it would hear both the custody issue and the petition for special relief, or just the custody issue. See N.T. at 3. Mother and Child were both present. Id. at 4, 11. Father did not appear in person or remotely.^[5] Mother's counsel requested the court consider both the custody and petition for special relief issues. See id. at 3. Both Mother and Child testified. See id. at 4-12. The court did not enter a decision that day but took the matter under advisement. Id. at 13.

D. Trial Court Orders

On September 7, 2022, the trial court entered two separate orders. In the first order, the court awarded Mother sole legal and physical custody of Child. The trial court also stated: "This court is not sitting as a dependency or juvenile court, as those terms are defined by Pennsylvania law. The court decided this custody matter after consideration of the factors set forth in 23 Pa.C.S. § 5328." See Order, 9/7/22, at 1 n.1 (unpaginated; emphases added). The court attached a memorandum in support of its custody order, with a complete analysis of the 16 custody factors set forth in Section 5328(a). See Memorandum in Support of Custody Order, 9/7/22, at 1-5. The court opined that after considering the Section 5328(a) factors, it gave "significant weight to the stability of [Child]'s life provided by Mother, as well as the educational opportunities afforded to him." Id. at 5. It further relied on "the lack of opposition to the proposed custody, as expressed by Father," to determine it was "in the best interests" of Child to grant Mother legal and physical custody. Id.

As for the second order, the court denied Mother's petition for special relief and her request for specific findings of fact. The court filed a separate decision, also dated September 7, 2022, regarding the petition for special relief. The court noted:

Mother testified that Father was 'physical' with [Child] and that she was required to obtain a restraining order against Father in Brazil because of the abuse and his threat to kill her. [Child] has lived with Mother since 2017 and she provides him with his daily needs, including education opportunities. Mother also testified that it would be safer for [Child] to remain in her custody. . . .

Decision, 9/7/22, at 2.

In denying relief, the court stated: "There is no provision in our statutes or rules that address special relief for this purpose or permit a departure from the requirement that the factors set...