Case of the Month Archive

Salvadoran petitioner for special immigrant juvenile (SIJ) status established evidence to support SIJ predicate findings. . .

In a reversal, the California Supreme Court held Salvadoran petitioner for special immigrant juvenile (SIJ) status established that reunification with parents was not viable due to abuse, neglect, abandonment, or similar basis under state law and that repatriation was not in his best interest, both of which were predicate findings for SIJ status, where petitioner's parents were unable to protect him from gang violence while providing for his basic needs and education.

Saul H., who was born in El Salvador in December 2001, left his country in June 2018 and arrived in the U.S. in August 2018. Once in the U.S., Saul entered the custody of the U.S. Office of Refugee Resettlement and spent over five months in a shelter in Brownsville, Texas. He was then released to his maternal cousin's husband (J.R.). In September 2019, when he was 18 years old, Saul filed a petition for appointment of J.R. to be his guardian. Then on December 3, 2019, Saul filed a petition for special immigrant juvenile (SIJ) status per 8 U.S.C. §1101(a)(27)(J) [special immigrant who is present in U.S., who has been declared dependent of juvenile court or whom court has placed in custody of individual/entity in U.S., and whose reunification with one or both parents is not viable based on state law] and Prob C §1510.1 [court may appoint a guardian of the person or extend an existing guardianship for an unmarried individual who is at least 18 years old but under 21 in connection with a petition under CCP §155(b)].

Saul's declaration. . .
In support of his SIJ petition, Saul submitted a declaration that prior to moving to the U.S., he lived in El Salvador with his parents, five siblings, and maternal grandfather. When he was 10 years old, Saul's parents sent him to work in the fields during the summers where he would harvest fruits and vegetables. Saul stated that he worked six to seven hours every day, which left him completely exhausted. Meanwhile, his parents and grandfather did not work and instead relied on Saul and two of his siblings for income.

When in the ninth grade, Saul was approached on two separate occasions by gang members who had targeted him for recruitment into their gang. Both times Saul refused and both times the gang members threatened to kill Saul and his family. Each time Saul returned home from school and told his parents. Although Saul's father reported the incidents, the police did not take any action and his parents did not follow up with their complaints. In an effort to protect him, Saul's parents removed him from school. Saul started working at a car wash every day from 8:00 a.m. to 6:00 p.m. but he was soon again approached by a gang member who threatened to make him disappear if he did not pay a gang tax. When Saul told his parents that he wanted to leave El Salvador, they insisted that it was too dangerous to leave. Feeling that his parents could not protect him from gangs, Saul left El Salvador without their knowledge or help.

Along with his declaration, Saul submitted proposed findings to the trial court that his "'parents neglected and abandoned him by failing to provide him with adequate care and protection' and that he 'was forced to work starting from a young age using dangerous equipment.'" On August 25, 2020, the trial court denied the SIJ petition, finding that neither Saul's petition nor declaration supported a finding that he was abandoned or neglected. The trial court held that Saul failed to show that reunification with one or both parents is not viable and declined to find that it would not be in Saul's best interest to be returned to El Salvador, speculating that Saul would not face the same hardships if forced to return since he was 18 years old and, thus, no longer a minor. Based on its denial of the SIJ petition, the trial court denied the guardianship petition as moot.

Saul appealed, but in an affirmance, the Second District held that the trial court properly denied SIJ status to Saul since he failed to prove parental abandonment or neglect. In a footnote, the Second District noted although SIJ status may be based on a finding that reunification is not viable because of parental abuse or "neglect, abandonment, or similar basis" (emphasis added), Saul based his petition solely on the grounds of neglect and abandonment and, therefore, the justices of the Second District did not consider other possible grounds. Saul appealed the Court of Appeal's judgment, and the California Supreme Court reversed.

The justices first held that the appropriate burden of proof for SIJ predicate findings is preponderance of the evidence. Although neither state nor federal statutes or regulations specify a burden of proof, the default burden of proof for findings of facts in civil cases is preponderance of the evidence and courts in other jurisdictions apply this standard in ruling on petitions for SIJ predicate findings. The justices then explained how CCP §155, which authorizes SIJ predicate findings, provides guidance to the trial court ruling on a petition for such findings. First, CCP §155(b)(1) provides that SIJ predicate findings may be based solely on a declaration by the child who is the subject of the petition. Thus, Saul's declaration, without further evidence, may support SIJ predicate findings. Second, CCP §155(b)(2) provides that the "asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile shall not be admissible in making [SIJ] findings." This provision also provides that such motivation must not be referenced by the court in its ruling.

Reunification with his parents was nonviable. . .
The justices then held that the lower courts, in deciding if the reunification of Saul with his parents was nonviable because of abuse, neglect, abandonment, or a similar basis pursuant to California law, erred in several ways. First, the Court of Appeal improperly focused on whether Saul's parents were blameworthy for their failure or inability to protect Saul. The inquiry, the justices noted, should instead "focus on whether returning the child to live with the parent would be workable or practical." The justices further noted that in making this determination, a court should consider "all relevant circumstances, including the ongoing psychological and emotional impact on the child of the past relations between the child and the parent, how forced reunification would affect the child's welfare, the parent's ability and willingness to protect and care for the child, and the parent's living conditions."

Second, the lower courts erred in applying overly narrow definitions of abandonment and neglect. The Court of Appeal relied on a definition of abandonment that required a showing that Saul's parents intended to abandon him, while the trial court relied on overly narrow definitions of both neglect and abandonment. Instead, the justices noted, courts should consider whether any state-law definition of abuse, neglect, abandonment, or a similar basis applies for the purpose of determining whether it would be workable or practicable to return children to live with their parents. The justices then noted that both Fam C §3402 and W&I C §300(g) provide definitions of abandonment that do not require a showing that the parent intended to abandon the child.

Third, the trial court erred by failing to consider whether Saul had shown reunification with his parents is not viable on a "similar basis pursuant to California law." The justices noted that the addition of the "similar basis" provision to CCP §155(b)(1)(B) expanded the eligibility for SIJ status and "made clear [Congress's] intent for state courts to issue SIJ predicate findings to children who have suffered mistreatment that does not qualify as 'abuse,' 'neglect,' or abandonment' under state law." At the trial court level, Saul relied on W&I C §300(b)(1) to argue that reunification with his parents was not viable on the "similar basis" that he faces "'substantial risk [he] will suffer[] serious physical harm or illness as a result of' his parents' 'failure or inability to adequately supervise or protect him.'" The justices agreed.

Finally, the trial court "inappropriately speculated about the pervasiveness of the conditions Saul faced in El Salvador." Congress specified that the nonviability of reunification determination is to be made "under state law" and trial courts should apply state law to the facts "without considering extra-record information or making assumptions about conditions prevailing in other countries."

It is not in his best interest to return to El Salvador. . .
The justices next held that the trial court erred in declining to make a finding that it would not be in Saul's best interest to be repatriated to El Salvador based on the assumption that once Saul turned 18 years old, he was no longer reliant on a parent or guardian for support. Instead, the court concluded that Saul presented uncontroverted evidence that it would not be in his best interest to be returned to El Salvador. First, Saul's guardian in California provides him with food and shelter and ensures Saul can continue his education without fear of gang violence. Meanwhile, if he were repatriated, it is unlikely he would be able to continue his education, would have to work to provide for his basic needs, and would be unable to avoid the gangs that have threatened his life.

Accordingly, the California Supreme Court reversed the Court of Appeal's judgment and directed the case be remanded to the trial court for issuance of SIJ predicate findings and reinstatement of J.R.'s guardianship.