MATTER OF A-L-A-

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 19,2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks classification as a special immigrant juvenile (SIJ). See Immigration and Nationality Act (the Act) sections 101(a)(27)(J) and 204(a)(l)(G), 8 U.S.C. §§ 1101(a)(27)(J) and 1154(a)(1)(G). SIJ classification protects foreign children in the United States who have been abused, neglected, or abandoned, and found dependent on a juvenile court in the United States.

The Field Office Director, Charlotte, North Carolina, denied the petition. The Director concluded that the Petitioner did not demonstrate that he was the subject of a qualifying juvenile court order because the ex parte emergency order the Petitioner submitted only made a temporary finding that family reunification was not viable. She further found that the Petitioner's Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition), did not warrant United States Citizenship and Immigration Services (USCIS) consent. We dismissed the Petitioner's subsequent appeal, finding that although USCIS consent was warranted in this case, we concurred with the Director that the Petitioner did not establish that he was the subject of a qualifying juvenile court order.

The matter is now before us on a motion to reconsider. On appeal, the Petitioner submits a brief and additional evidence. We will deny the motion.

I. APPLICABLE LAW

A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy; and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).

The burden of proof is on a petitioner to demonstrate eligibility for SIJ classification by a preponderance of the evidence. See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010).

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II. RELEVANT FACTS AND PROCEDURAL HISTORY

As the facts were set out below in our prior decision on appeal, incorporated here by reference, we will only discuss certain facts as necessary. The Petitioner was born in Guatemala on

On 2014, the General Court of Justice, District Court Division, North Carolina Guvenile court), granted an ex parte emergency custody order to S-J-/

whom the court identified as a family friend of the Petitioner. The juvenile court set a subsequent hearing for 2014. The Petitioner claims that on 2014, another hearing was held that left the original custody order unmodified.2

On September 16, 2014, the Petitioner filed his SIJ petition based on the juvenile court order, which the Director denied. In our prior decision on appeal, we withdrew the Director's decision in part to find that the Petitioner's request for SIJ classification warranted USCIS consent. However, we ultimately dismissed the Petitioner's appeal, finding that the Director correctly determined that the Petitioner did not establish that he was the subject of a qualifying juvenile court custody order because the order was temporary and therefore did not make a permanent finding that reunification with the Petitioner's parents was not viable.

III. ANALYSIS

On motion, the Petitioner has not established that our prior decision was based on an incorrect application of law or USCIS policy, nor that our decision was incorrect based on the evidence of record at the time of the initial decision. The motion will be denied for the following reasons.

The Act requires the Petitioner to demonstrate that reunification with one or both of his parents is not viable. Section 101(a)(27)(J)(i) of the Act. As we stated in our prior decision, the juvenile court's finding of non-viability of reunification with the Petitioner's parents was issued on a temporary basis, as the hearing was ex parte and another hearing was set six days later. On motion, the Petitioner contends that the ex parte order was not temporary because under North Carolina state law, orders are only temporary when there are more issues to be determined, or when there is a new hearing set and then the order is modified. See Petitioner's Brief at 9-12. However, as we stated in our decision on appeal, an order is temporary under North Carolina state law if "either ( 1) it states a clear and specific reconvening time in the order and the time interval between the hearings Was reasonably brief; or (2) the order does not determine all issues." See Lamond v. Mahoney, 583 S.E.2d 656, 659 (N.C. App. Ct. 203)(intemal citations omitted)(emphasis added). Regardless of whether, as the Petitioner contends, the order determined all the issues, it is clear here that the order states a clear and specific reconvening time and the time interval, 6 days, was reasonably brief.

1 Initials are used to protect the individual's identity. 2 The Petitioner did not provide a copy of a subsequent order from the 2014, court hearing. On appeal, the Petitioner provides a ·letter from Esq., S-J-'s representative in the hearing, stating that the hearing could not be held due to incomplete service on the Respondent. She also notes that the emergency order was not revoked and that there were no further orders entered in this matter, as the Petitioner turned years old shortly thereafter and the family court lost jurisdiction.

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Under the Lamond test, only one condition must be met, as it was here, for the order to be considered temporary. As such, the juvenile court order was a temporary order.3

The Petitioner further asserts that even if the ex parte order was temporary, North Carolina state law states that a temporary order has the full weight of a permanent order and remains in place until another order is issued, and that as the order remained unmodified at the 2014, hearing, it became a permanent order. Even assuming that we accepted this to be the case, 4 the Petitioner must demonstrate eligibility for the benefit he is seeking at the time of filing of the SIJ petition. See 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). On September 16, 2014, when the Petitioner's SIJ petition was . filed, the only order in place was the temporary ex parte order that was issued on

2014. Accordingly, the Petitioner was not eligible for SIJ classification at the time of filing of his SIJ petition because he did not have a qualifying court order in place that established the nonviability or reunification with his parents.

The Petitioner also contends that, in the alternative, even if the emergency custody order is a temporary order, the juvenile court's determinations that the Petitioner was neglected and abandoned by both his parents were permanent. However, a court-appointed custodian that is acting as a temporary. guardian or caretaker of a child, taking on all or some of the responsibilities of a parent, is not considered a legal custodian for purposes of SIJ eligibility. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. No. 110-457, 122 Stat. 5044 (2008) addressed eligibility for SIJ classification when a juvenile court or court appointed guardian acts in loco parentis, and states, in pertinent part, at section 235(d):

(5) STATE COURTS ACTING IN LOCO PARENTIS. A department or agency of a State, or an individual or entity appointed by a State court or juvenile court located in the United States, acting in loco parentis, shall not be considered a legal guardian for purposes of this section ....

Based on the language at section 235(d)(5) of TVPRA 2008, the term "custody" at section 101 (a)(27)(J)(i) of the Act is not satisfied by the emergency custody order because the juvenile court and S-J- were acting in loco parentis until such time as a final hearing was conducted. See In re Brode, 566 S.E.2d 858, 860 (N.C. App. Ct. 2002) (stating, "[w]hen a court invokes emergency jurisdiction, any orders entered shall be temporary protective orders only." (citations omitted)). The hearing that would have determined on a final basis the questions of custody by S-J-, and, by extension, the viability of the Petitioner's reunification with his parents, did not take place because the Petitioner's subsequent hearing was reset after incomplete service on the Respondent, and no

3 The Petitioner also notes that a judge can allow an order to become permanent by so stating. Petitioner's Brief on motion at 10. However, there is no evidence here that a judge stated that the order was permanent, particularly as the

2014, hearing was continued because of improper service. 4

We do not reach the issue of whether or not the Petitioner.'s order converted to a permanent order at the 2014, hearing because it occurred after the filing of the SIJ petition, as explained supra.

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subsequent hearing was scheduled as the Petitioner turned years of age shortly thereafter.5 Only in a final hearing could the juvenile court have determined the viability of the Petitioner's reunification with one or both parents and the resulting custody issues. See section 235( d)(5) of the Trafficking Victims Protection Reauthorization Act of 2008. The emergency custody order was insufficient to satisfy section 101(a)(27)(J)(i) of the Act at the time it was issued because the court and S-J- were acting in loco parentis and there was no finality to the proceedings.

Although on motion the Petitioner contends that section 235(d)(5) ofTVPRA 2008 does not apply to S-J- because she is not a "state court acting in loco parentis," by its plain language, section 235(d)(5) clearly applies not only to state courts, but to "an individual . . . appointed by a State court or juvenile court ... ", which would include S-J-. The Petitioner further contends that under the regulations and North Carolina state law, S-J- was not acting in loco parentis because in loco parentis only applies to individuals who take on the role of a parent for a specific, limited reason, or with a special power of attorney. However, North Carolina courts have defined the term in loco parentis to mean "in the place of a parent" and have defined "person in loco parentis" as "one who has assumed the status and obligations of a parent without a formal adoption." Liner v. Brown, 449 S.E.2d 905, 907 (1994) (citing Shook v. Peavy, 208 S.E.2d 433, 435 (1974); Howard v. United States, 2 F.2d 170, 174 (1924) (person in loco parentis is one "assuming the parental character or discharging parental duties"); Black's Law Dictionary 787 (6th ed.l990) (person in loco parentis is one "charged, factitiously, with a parent's rights, duties, and responsibilities"); N.C.G.S. § 7A-517(16.1) (1993) (in loco parentis defined in juvenile code as one, other than parents or legal guardian, who has assumed status and obligation of a parent without being awarded legal custody by a court)). The Petitioner provides no evidence to support his contention that "in loco parentis" as used in the Act applies only to the decision to have a child committed to a psychiatric hospital.

Lastly, the Petitioner asserts that there is no statutory or regulatory requirement that a qualifying order must be permanent, and that the court made a finding that reunification with the Petitioner's parents was not viable as required by the Act. However, we hold that a temporary finding of nonviability-of-reunification with the Petitioner's parents does not establish that "family reunification is no longer a viable option." Further, even if we acknowledge that the in loco parentis doctrine is legally distinct from a court order of guardianship or custody, section 235(d)(5) of TVPRA 2008's reference to the doctrine serves an illustrative purpose in demonstrating that temporary or short-term appointments of guardianship or custody by a juvenile court cannot satisfy the dependency and/or custody requirement under section 101(a)(27)(J)(i) of the Act. See also Memorandum from Donald Neufeld, Acting Associate Director for Domestic Operations, USCIS,

5 The Petitioner also asserts that he is eligible for SIJ classification under the Perez-Olano Settlement Agreement because there would have been another hearing had the Petitioner not turned years old. However, the stipulation enforcing the settlement agreement clarifies that USCIS will not deny, revoke, or terminate an SlJ petition if, at the time of filing the S/J petition: (I) the petitioner is or was under 21 years of age, unmarried, and otherwise eligible; and (2) the petitioner either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing. Contrary to the Petitioner's assertion, the record does not establish that at the time of filing, he was the subject of a valid juvenile court order.

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HQOPS 70/8.5, Trafficking Victims Protection Reauthorization Act of 2008; Special Immigrant Juvenile Status Provisions 2 (Mar. 24, 2009), https://www.uscis.gov/laws/policy-me:moranda. The Petitioner does not cite to any legal or binding authority to the contrary.

The guardianship order here was issued as a temporary order and did not result in a final resolution of the underlying guardianship petition. Accordingly, the Petitioner has not established that reunification with one or both of his parents is not viable as required under section 101(a)(27)(J)(i) ofthe Act.

IV. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The motion to reconsider is denied.

Cite as Matter of A-L-A-, ID# 113053 (AAO Sept. 19, 2016)

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