Velasquez, L., Aplt v. Miranda, L.

[J-45-2024] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LICELY JUAREZ VELASQUEZ, : No. 108 MAP 2023

:

Appellant : Appeal from the Order of the

: Superior Court at No. 2688 EDA

: 2022, entered on June 20, 2023,

v. : Affirming the Order of the Delaware

: County Court of Common Pleas,

: Civil Division, at No. CV-2021-

LIZARDO MARROQUIN MIRANDA, : 002235 dated September 15, 2022

: and entered on September 20, 2022

Appellee :

: SUBMITTED: March 25, 2024

DISSENTING OPINION

JUSTICE BROBSON DECIDED: August 29, 2024

Like Justice Wecht, I somewhat grudgingly must conclude that a common pleas

court making a judicial determination in a child custody proceeding falls within the broad

federal definition of “juvenile court” under 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R.

§ 204.11(a). Accordingly, a Pennsylvania court sitting in this capacity has the authority

to make the predicate state judicial determinations that would allow an immigrant to seek

special immigrant juvenile status1 and lawful residency in the United States of America

through the United States Citizen and Immigrations Services (USCIS). 2 As both the

1 I use SIJ when referring to a special immigrant juvenile and SIJS when referring to

special immigrant juvenile status.

2 The United States Court of Appeals for the Third Circuit has explained the benefits of

SIJS as follows:

The protections afforded to children with SIJ status include an array of

statutory and regulatory rights and safeguards, such as eligibility for

application of adjustment of status to that of lawful permanent residents . . . ,

(continued…)

Majority and Justice Wecht aptly acknowledge, each state likely has its own view of what

constitutes a “juvenile court” based on its own understanding of the term. (Maj. Op.

at 26 n.17; see Wecht, J., Concurring Op. at 3-6.) It seems to me that our federal

government purposefully adopted a broad definition of the term, so as to account for these

variations from state to state.

Given this legal conclusion, the Delaware County Court of Common Pleas

(Custody Court), hearing and deciding the custody complaint of Appellant Licely Juarez

Velasquez (Mother), meets the definition of a “juvenile court” for the above limited

purposes under federal law. This is, in my view, a jurisdictional question that does not

depend on the nature of the custody order itself. It follows, then, that the custody

determination here, awarding sole legal and physical custody to the custodial parent,

Mother, does not implicate the Custody Court’s jurisdiction to make requested SIJS

findings. For this reason, I concur with the Majority’s decision to reverse the contrary

conclusion by the Pennsylvania Superior Court in this matter.

I cannot, however, agree with the Majority’s mandate to remand this matter to the

Custody Court with direction to the Custody Court to make the predicate SIJ

determinations that Mother requests. Before explaining why, I first express my doubts

about whether a court sitting in a custody proceeding can ever make the predicate SIJ

reunification finding where the court in custody proceedings grants custody to one parent.

Here, Mother removed Children from Guatemala, traveled to the United States with

them, and resides with them in Delaware County, Pennsylvania. Father remains in

Guatemala. Mother, who sought and obtained sole physical and legal custody of

exemption from various grounds of inadmissibility, and robust procedural

protections to ensure their status is not revoked without good cause.

Osorio-Martinez v. Attorney General, 893 F.3d 153, 158 (3d Cir. 2018).

[J-45-2024] [MO: Dougherty, J.] - 2

Children, also asked the Custody Court to make a reunification determination solely with

respect to Father. In applying the rules of construction that govern our interpretation and

application of federal law, 3 I can discern no legislative intent by Congress to confer lawful

residency to immigrants who, following custody proceedings, remain in the custody of at

least one parent. The fact that the statute and regulation speak to “reunification” strongly

suggests that the state juvenile court proceeding must involve an immigrant child who is,

at the time or as a result of the state court proceedings, separated from both parents and

cannot be reunified with one or both “due to abuse, neglect, abandonment, or a similar

basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i). An immigrant child that

cannot be reunified with at least one parent requires the protection of the state juvenile

courts and, under federal law, is entitled to seek SIJS. The opposite is also true under

the statute. If an immigrant child can be reunified with one or both parents, then the child

does not qualify for SIJS.

Paradigmatic of this reading of the federal law is the decision of the United States

Court of Appeals for the Fourth Circuit in Perez v. Cuccinelli, 949 F.3d 865 (4th Cir. 2020)

(en banc). In that case, a native Guatemalan, Felipe, who fled his country when he

was 16 applied to the USCIS for SIJS. Felipe relied on a state court order that granted

Felipe’s older brother, Mateo, custody over Felipe. The custody order specifically

provided that reunification with both parents was not viable due to abuse, neglect,

abandonment, or similar basis under State law. Perez, 949 F.3d at 868-70. USCIS

rejected Felipe’s application, however, because the state court order was only a

temporary order, not a final custody order. In the absence of a permanent order that

reunification was not viable, USCIS determined that Felipe was not eligible for SIJS. For

3 See, e.g., Council 13, Am. Fed’n of State, Cnty. & Mun. Emps. v. Rendell, 986 A.2d 63,

80 (Pa. 2009).

[J-45-2024] [MO: Dougherty, J.] - 3

reasons not relevant to this matter, the Fourth Circuit rejected the USCIS’s reading of the

governing federal law that a permanent custody order was required. Id. at 881.

I have found no federal court decision that confirms or rejects whether SIJS may

be granted to an immigrant child based on a state custody order that places, or reunifies,

the child with one parent. 4 I recognize that some state courts from other jurisdictions

have answered that question in the affirmative. See, e.g., Amaya v. Guerrero Rivera, 444

P.3d 450 (Nev. 2019). I also acknowledge, as the Majority Opinion does (Maj. Op. at 27),

that the USCIS Policy Manual provides for such a situation: “A qualifying court-appointed

custodial placement could be with one parent, if reunification with the other parent is found

to be not viable due to that parent’s abuse, neglect, abandonment, or similar maltreatment

of the petitioner.” 6 USCIS PM J.2(C)(1). Nonetheless, those state court interpretations

and the USCIS Policy Manual are at least arguably in tension with the language of the

federal statute and regulation. Moreover, the USCIS Policy Manual does not have the

force and effect of law. See Viswanadha v. Mayorkas, 660 F. Supp. 3d 759, 774 (N.D.

Ind. 2023). It is akin to what we refer to in Pennsylvania as a statement of policy. 5 In this

regard, the manual expressly provides:

4 The Majority contends that the Pennsylvania Superior Court, in Orozco v. Tecu,

284 A.3d 474 (Pa. Super. 2022), “did not foreclose a one-parent custody order as a

pathway to possible SIJ classification.” (Maj. Op. at 28.) I have read Orozco and find no

such pronouncement by the intermediate appellate court. The court made only two

rulings: (1) that the common pleas court’s order refusing to issue SIJS findings was

immediately appealable as a collateral order; and (2) the common pleas court abused its

discretion in refusing to issue the requested SIJS findings without explanation. Orozco,

284 A.3d at 478-79. The question of whether the federal law affords SIJS where custody

is granted to one parent—i.e., where reunification is viable with one parent—was not

addressed by the intermediate appellate court in Orozco.

5 Section 102(13) of the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769,

as amended, 45 P.S. § 1102(13), defines a statement of policy as follows:

[A]ny document, except an adjudication or a regulation, promulgated by an

agency which sets forth substantive or procedural personal or property

(continued…)

[J-45-2024] [MO: Dougherty, J.] - 4

The Policy Manual contains the official policies of USCIS and assists

immigration officers in rendering decisions. The Policy Manual is to be

followed by all USCIS officers in the performance of their duties but it does

not remove their discretion in making adjudicatory decisions. The Policy

Manual does not create any substantive or procedural right or benefit that

is legally enforceable by any party against the United States or its agencies

or officers or any other person.

USCIS PM “About the Policy Manual” (emphasis added). The accuracy of the manual’s

interpretation and application of what is referred to as the federal SIJS statute, 8 U.S.C.

§ 1101(a)(27)(J), is, therefore, not unassailable. 6

The existence of the manual language, however, likely explains the dearth of

federal case law on the subject. If USCIS reads the federal law as allowing for SIJS in

one-parent custody situations and consequently grants SIJS to immigrants based on a

one-parent custody order, who would challenge that determination? Who would test

USCIS’s interpretation of the federal law?

Although it is up to USCIS to decide whether an applicant qualifies for SIJS, it is

up to the state courts to make the predicate judicial determinations that the federal statute

directs. This all leads to the question of what is the predicate judicial determination that

a state court must issue under the federal statute with respect to reunification? Is it, as

Mother claims, simply that reunification with Father is not viable? Or, under the above

reading of the statute, must the state court determine that it is not viable to reunify the

child with one or both parents? Here, it was unquestionably viable for the Custody Court

rights, privileges, immunities, duties, liabilities or obligations of the public or

any part thereof, and includes, without limiting the generality of the

foregoing, any document interpreting or implementing any act of Assembly

enforced or administered by such agency.

6 Even if the statutory language here could be characterized as ambiguous, federal courts

are no longer compelled to defer to an agency’s interpretation; instead, they “must

exercise their independent judgment in deciding whether an agency has acted within its

statutory authority.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).

[J-45-2024] [MO: Dougherty, J.] - 5

to “reunify” (although never separated) Children with Mother (one), but not Mother and

Father (both). Does the duty of the state court under federal law to issue a determination

with respect to reunification apply where the state court grants custody to one of the

parents? To me, these are important questions that arise in this case.

Nevertheless, although the Majority does not tackle these questions directly, it

does so tacitly by concluding that the Custody Court had the jurisdiction to find, as Mother

requested, “that . . . reunification with Father is not viable due to abuse, abandonment,

neglect, or a similar basis under Pennsylvania law.” (Maj. Op. at 31.) For reasons

explained above, I have serious doubts as to whether this particular question is the

question that state courts must answer under the federal SIJS scheme. That being said,

we, like the trial court and the Pennsylvania Superior Court, are presented with an entirely

one-sided view of the record and law that favors Mother’s preferred construction of the

federal law. 7 This is by no means an ideal way to evaluate and decide weighty legal

issues. 8 It seems prudent, then, that we should tread carefully in our decision making so

as to avoid far-reaching results that, later, in an adversarial posture, might be shown to

be unworkable or, worse, just plain wrong. See Harbourside Place, LLC v. Town of

Jupiter, 958 F.3d 1308, 1322 (11th Cir. 2020) (reasoning that case was “good opportunity

. . . to practice judicial minimalism[] and decide no more than what is necessary to resolve”

appeal); Christopher J. Peters, Assessing the New Judicial Minimalism, 100 Colum. L.

Rev. 1454 (2000) (generally advocating judicial minimalism—i.e., narrow rulings sufficient

7 HIAS Pennsylvania, Professor Kara R. Finck, Professor Deeya Haldar, and Professor

Sarah Katz filed a brief as amici curiae in support of Mother, as did the National Women’s

Advocacy Project, Inc.

8 By the Majority’s disposition here in favor of Mother, the lack of an opposing party also

means that the Majority’s questionable interpretation and application of federal law, now

binding on our lower state courts, will not be challenged by way of a petition for writ of

certiorari to the United States Supreme Court.

[J-45-2024] [MO: Dougherty, J.] - 6

to resolve a case); Cass R. Sunstein, The Supreme Court 1995 Term—Foreword:

Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) (same).

For that reason, and despite my misgivings, the prudent course of action is to

resolve the matter before the court jurisdictionally and leave the question about the

question for another day. As stated above, I concur with the Majority’s determination on

the jurisdictional question. I, therefore, return to the remaining aspect of the Majority’s

mandate, that being the remand to the Custody Court to enter orders concluding that the

“Child[ren]’s reunification with Father is not viable under Pennsylvania law due to Father’s

abandonment and neglect” and “it is not in the Child[ren]’s best interest to be returned to

Guatemala.” (Maj. Op. at 42.)

I agree with much of the Majority’s recitation of the substantive law that a state

court must apply when assessing a request for predicate SIJS judicial determinations.

(Id. at 34-37.) Distilled, the Majority concludes that a Pennsylvania state court in this

situation must apply Pennsylvania law. That is what the Custody Court did in this case.

In refusing to issue the determinations Mother requested, the Custody Court considered

the following Pennsylvania statutes on the reunification question: (1) 23 Pa. C.S.

§ 6303(b.1) (definition of “child abuse”); (2) 23 Pa. C.S. § 6102(a) (definition of “abuse”);

(3) 23 Pa. C.S. § 5402 (definition of “abandoned”); (4) 23 Pa. C.S. § 6303(a) (definition

of “serious physical neglect”); and (5) 23 Pa. C.S. § 5329.1 (relating to child abuse and

protective services in custody proceedings). (Custody Court Op., 9/15/2022, at 12-14.)

It made certain factual findings with respect to the evidence and refused to make others.

Ultimately, applying Pennsylvania law, the Custody Court found that the record evidence

did not support the requested reunification determination with respect to Children and

Father. (Id.)

[J-45-2024] [MO: Dougherty, J.] - 7

As for the best interest inquiry, the Majority claims that the Custody Court held

Mother to an improper legal standard when it observed: “[T]he record in this matter does

not definitively support a conclusion that it is in the best interest of the children to issue a

SIJ order.” (Maj. Op. at 38 (second emphasis added) (quoting Custody Ct. Op.,

09/15/2022, at 12).) I concede that the Custody Court’s terminology in this single

sentence of its opinion is imprecise at best, but the Majority does not consider the balance

of the Custody Court’s reasoning:

There was no testimony given as to how the children performed

academically in Guatemala; what their prospects of success would or could

be had they remained in Guatemala or were to return to Guatemala; and

the nature of their relationship with their Father or their Father’s side of the

family. The [c]ourt lacks unbiased testimony surrounding Father’s financial

status, and as such, is reluctant to come to the assertion that Father’s

alleged failure to contact the children is due to his lack of desire and not

some other extenuating circumstances. In the absence of any credible

evidence to the contrary, the [c]ourt cannot conclude that it would not be in

the best interest of the children to return to Guatemala.

(Custody Ct. Op., 09/15/2022, at 12 (emphasis added).) The predicate state judicial

determination relating to SIJS on best interests is not a question of custody. Rather, it

asks whether “it would not be in the [child’s] best interest to be returned to the [child’s] or

parent’s previous country of nationality or country of last habitual residence.” 8 U.S.C.

1101(a)(27)(J)(ii) (emphasis added). Clearly, the Custody Court did not feel it could make

this predicate negative finding based only on the evidence of record. To me, this passage

does not make it at all clear that the Custody Court “held Mother to an inapt burden of

proof.” (Maj. Op. at 38.) Instead, it reflects the Custody Court’s concern about the utter

absence of proof, regardless of the level of burden on Mother, upon which the Custody

Court was willing to make the requested and statutorily authorized best interest

determination.

[J-45-2024] [MO: Dougherty, J.] - 8

The Majority claims that its own careful review of the record reveals Children are

entitled to predicate SIJ determinations. (Id. at 39.) This, however, is not the proper

appellate standard of review. Appellate courts do not look to the record to determine

whether there is evidence to support the losing party’s position; rather, they must look to

the record to determine whether there is any support for the lower court’s factual findings.

See Int. of K.N.L., 284 A.3d 121, 133 (Pa. 2022) (observing that appellate court is

“compelled to perform a comprehensive review of the record for assurance the findings

and credibility determinations [of the trial court] are competently supported”). The Majority

simply does not engage in the proper inquiry and, instead, displaces the Custody Court’s

factual findings with that of its own.

In summary, I do not believe that the Majority has paved new ground here in terms

of the law that a Pennsylvania state court must apply when assessing a request for

predicate judicial determinations with respect to SIJS. I, therefore, do not agree with the

portion of the mandate that returns this matter to the Custody Court for the entry of orders

contrary to the determinations made by the Custody Court. Instead, although I agree with

the Majority that the Superior Court erred in its jurisdictional determination, I would

remand this matter to the Pennsylvania Superior Court to answer the question it “never

reached;” namely, whether the Custody Court abused its discretion in refusing to grant

the Mother her requested predicate SIJS determinations. (Maj. Op. at 38.) In doing so,

the intermediate court may exercise its traditional role of error review and evaluate each

of the asserted grounds of error Mother raised below.

Justice Mundy joins this dissenting opinion.

[J-45-2024] [MO: Dougherty, J.] - 9