Immigration – Conditions imposed were not required by statute

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U.S. Citizenship and Immigration Services, or USCIS, erred when it required a permanent custody order before it would allow an immigrant to qualify for special juvenile status because that requirement is not found in the statute.

Background

In late 2013, at the age of 16, Felipe Perez Perez fled his home country. Felipe was apprehended and eventually released to his older brother, Mateo Perez Perez, who resided in North Carolina. In January 2015, Mateo sought legal custody of Felipe in a North Carolina court, alleging that Felipe had been abused, neglected and abandoned by their biological parents.

It was not until June 2015 that the court acted on Mateo’s custody petition. At that point, the court conducted an ex parte hearing, granted Mateo emergency temporary custody of Felipe and scheduled a hearing to consider permanent custody. Shortly thereafter, Felipe turned 18 (North Carolina’s age of majority), and the court thus canceled the second hearing and never entered a permanent custody order.

In July 2015, Felipe applied for special immigrant juvenile, or SIJ, status with USCIS. The Immigration and Nationality Act, or INA, specifies that an immigrant may qualify for SIJ status if, among other things, “a juvenile court located in the United States” has “placed [him] under the custody of” “an individual” and “reunification with 1 or both of [his] parents is not viable.” USCIS has interpreted clause (i) to require a permanent custody order. On that basis, it denied Felipe’s SIJ application and dismissed his administrative appeal of that denial.

The federal district court denied Felipe’s motion to set aside the agency’s final action and granted the summary judgment motion of USCIS. Felipe then timely noted this appeal from the judgment of the district court.

Argument in this appeal was initially heard by a three-judge panel that affirmed the district court’s judgment by a split decision. A majority of this court’s judges in active service voted to grant Felipe’s petition for rehearing en banc. The panel’s decision was thereby vacated, and our en banc court now reviews anew the judgment of the district court.

Analysis

Utilizing ordinary rules of statutory construction, we conclude that the language of clause (i) is clear and unambiguous that neither a finding of the permanent non-viability of reunification nor a permanent custody order is required. Thus, we accord USCIS’s contrary interpretation no deference and recognize that, by defying the plain statutory language, that interpretation is not in accordance with law.

There is no indication anywhere in the INA, including the SIJ provision and clause (i) itself, that Congress intended to displace the common understanding of the term “custody.” As that term is commonly understood, custody may be granted by a temporary or permanent order, according to the law of the pertinent state. Consequently, clause (i) clearly and unambiguously does not require a permanent custody order.

We underscore that, in defying the plain language of the SIJ provision, USCIS’s interpretation of clause (i) impermissibly intrudes into issues of state domestic relations law. Most prominently, the agency’s interpretation demands rulings—namely, a permanent custody order and a finding of the permanent non-viability of an SIJ applicant’s reunification with one or both of his parents—that state juvenile courts may be unwilling or unable to render. Finally, we emphasize that even if the pertinent statutory language were ambiguous, USCIS’s interpretation of clause (i) of the SIJ provision would not be eligible for deference.

Reversed and remanded.

Dissent

(Quattlebaum, J., with whom Wilkinson, Niemeyer, Agee, Richardson and Rushing join): In reversing the agency’s decision, we severely restrict the agency in carrying out one of the duties Congress expressly conferred to it under the SIJ provisions of the INA—reviewing predicate state court orders of SIJ petitioners. Our justification for this deviation from our standard of review is a false premise—that the agency imposed a blanket requirement that SIJ predicate custody orders must be permanent.

However, try as one might, one will not be able to find any such sweeping requirement in either the agency’s decision or that of the administrative appeals office. In fact, a review of those decisions reveals that the temporary nature of the state court order was just one of several factors upon which the agency relied in concluding that the order did not satisfy the SIJ requirements under the INA. And without Perez’s false premise, his argument should fail.

Perez v. Cuccinelli (Lawyers Weekly No. 001-020-20, 51 pp.) (Robert Bruce King, J.) (A. Marvin Quattlebaum Jr., J., dissenting) Case No. 18-1330. Feb. 10, 2020. From W.D.N.C. (Robert J. Conrad, J.) Bradley Bruce Banias for Appellant, Scott Grant Stewart for Appellee.