MATTER OF M-D-R-H-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 7, 2016

APPEAL OF CHARLOTTE, NORTH CAROLINA FIELD OFFICE DECISION

PETITION: FORM 1-360, 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-born children in the United States who cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis under state law.

The District Director, Charlotte, North Carolina, denied the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition), concluding that the underlying juvenile court custody order did not contain the requisite judicial determination that parental reunification was not viable.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief and previously proffered evidence. The Petitioner claims that the fin9ings set forth in the juvenile court order are sufficient to conclude that the court made the requisite non-viability determination.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 204(a)(l)(G) of the Act allows an individual to self-petition for classification as an SIJ. Section 101(a)(27)(J) ofthe Act defines an SIJ as:

an immigrant who is present in the United States-

(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;

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(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; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that-

(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Servic~s unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act[.]

Subsection 101(a)(27)(J)(iii) of the Act requires the Secretary of the Department of Homeland Security, through U.S. Citizenship and Immigration Services (USCIS), to consent to the grant of SIJ classification. This consent determination is an acknowledgement that the request for SIJ classification is bona fide, which means that the juvenile court order and the best-interest determination were sought primarily to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law, and not primarily to obtain immigrant status. 1

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The burden of proof is on a petitioner to demonstrate eligibility for SIJ classification by a preponderance ofthe evidence. See Matter ofChawathe, 25 I&N Dec. 36?, 376 (AAO 2010).

II. ANALYSIS

The record reflects that the Petitioner was born in El Salvador on and entered the United States in April2011, without inspection, admission, or parole. On 2015, when the Petitioner was years old, the General Court of Justice, District Court Division, in the

North Carolina (juvenile court) issued an Order for Permanent Child Custody, awarding custody of the Petitioner to his mother and making specific findings related to the Petitioner's eligibility for SIJ classification. The Petitioner filed the instant SIJ petition on November 23, 2015. Thereafter, on 2016, tpe juvenile court issued an Amended Order for Permanent Child Custody.

1 H.R. Rep. No. 105-405, at 130 (1997); see also Memorandum from Donald Neufeld, Acting Associate Director for Domestic Operations, USCIS, HQOPS 70/8.5, Trafficking Victims Protection Reauthorization Act of 2008; Special Immigrant Juvenile Status Provisions 3 (Mar. 24, 2009), https://www.uscis.gov/laws/policy-memoranda.

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A. The 2015 Juvenile Custody Order Is Deficient

The plain language of the statute requires that an SIJ petitioner demonstrate that "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." Section 101(a)(27)(J)(i) of the Act. Although the Act explicitly defers findings on issues of child welfare under state law to the expertise and judgment of the juvenile court, USCIS must still examine the juvenile court order to determine if it contains the requisite findings of dependency or custody, non-viability of reunification with one or both parents, and the best interests deterl:nination, as required by sections 101 (a)(27)(J)(i) and (ii) of the Act. The 2015 custody order here includes the requisite judicial determination that it was not in the Petitioner's best interest to be returned to El Salvador. However, although the juvenile court found that the Petitioner's father had abandoned her and had not provided support since the Petitioner was a baby, it did not make an explicit determination that the Petitioner's reunification with her father was not viable as required.

On appeal, the Petitioner asserts that the Act does not require that a juvenile court utilize the specific language s~t forth in the Act in rendering a non-viability determination. She maintains that the specific, substantive findings in the court order (including the fact that the Petitioner's father had abandoned her, had no contact with her, and provided no support for her, as well as the court's award of full physical and legal custody to her mother with no provisions for parenting time or contact for her father) are sufficient to satisfy the plain language of the Act. She contends that USCIS has the authority to rely on or interpret the court's factual findings to conclude that the court made the requisite non-viability determination, noting that it is not possible "to reunite [the Petitioner] with [her] parent whose location is unknown."

The factual findings of abandonment in the juvenile court order and the custody award to the Petitioner's mother are appropriate considerations in determining whether there is a reasonable factual basis for a court's non-viability and best interest determinations such that USCIS consent to a petitioner's request for SIJ classification is warranted.2 Without the requisite judicial determinations, however, USCIS does not even reach the factual findings to consider the issue of whether there is a reasonable factual basis. Moreover, contrary to the Petitioner's assertions, the factual findings of a juvenile court do not supersede the statutory requirement under section 101(a)(27)(J)(i) of the Act for a specific judicial non-viability determination.3 As such a determination is exclusively within the purview and expertise of juvenile courts, we may not "interpret" a juvenile court's factual findings to infer the requisite judicial determinations.

2 USCIS requires the factual basis for the juvenile court's findings of non-viability of parental reunification so it may fulfill its required consent function. A "factual basis" means the facts upon which the juvenile court relied in making its rulings or findings. See Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQADN 70/23, Memorandum No. 3 - Field Guidance on Special Immigrant Juvenile Status Petitions 4-5 (May 27, 2004), https://www.uscis.gov/archive/archive-laws/archive-memos. 3 See also Neufeld Memorandum, supra, at 2 (stating that under the modifications of the Trafficking Victims Protection Reauthorization Act of 2008, a "juvenile court must find that the juvenile's reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law").

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(b)(6)

Matter of M-D-R-H-

Here, the factual findings in the juvenile court order relate to past conduct and events, including a finding that the Petitioner's father had cut off the parent-child relationship and that legal and physical custody should be awarded to her mother. However, the court did not specifically address, or make the required determination regarding, the future viability of the Petitioner's reunification or parent-child relationship with her father. Thus, notwithstanding the factual findings by the court, the juvenile court order is deficient, as it does not include the requisite non-viability determination required by the Act and the implementing regulation.

The Petitioner further maintains that USCIS cannot require the juvenile court to use the word "reunify" as that term has a specific and distinct definition under North Carolina state law, noting that in many instances, juvenile court judges in the state have refused to use the term for that reason. However, this is a moot point because regardless of whether a juvenile court in North Carolina can or cannot use the term, in this instance, the juvenile court did not address or make a determination regarding the viability of the Petitioner's reunification or future parent-child relationship with her father at all. Additionally, in separate adjustment of status proceedings, the Petitioner submitted an amended custody order that she obtained in 2016 in which the juvenile court in North Carolina specifically found that "reunification" with the Petitioner's father was not viable.

Accordingly, the 2014 juvenile court order is deficient for purposes of SIJ classification as it does not set forth a specific non-viability of parental reunification determination required by section 101(a)(27)(J)(i) ofthe Act.

B. The 2016 Amended Custody Order Is Insufficient to Establish the Petitioner's Eligibility

As noted, on 2016, during the pendency of these proceedings, the Petitioner obtained an Amended Order for Permanent Child Custody, when she was still under years of age. The Petitioner did not submit the amended order or address it on appeal, but it was included with her separate adjustment of status application and is part of the record of proceedings. The amended order contains the requisite judicial non-viability and best interest determinations and sets forth specific factual findings by the juvenile court. However, even if the Petitioner had asserted on appeal that the 2016 amended order established her eligibility for SIJ classification, her appeal would still be dismissed, as the new order was not initially filed with her SIJ petition to establish her eligibility at the time of filing as required. The pertinent regulation at 8 C.F .R. § 204.11 ( d)(2) provides that a juvenile court dependency order must be submitted as initial evidence in support of a SIJ petition. See also 8 C.F.R. § 103.2(b)(l) (each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other US CIS instructions). Moreover, a Petitioner is required to establish eligibility at the time of filing the immigrant visa petition. !d. A visa petition may not be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Here, the amended order was not issued and was not filed with USCIS until after the Petitioner had

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Matter of M-D-R-H-

already filed her SIJ petition. Accordingly, the Petitioner was not eligible for SIJ classification at the time of filing based on the 2016 amended order.4

III. 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 appeal is dismissed.

Cite as Matter of M-D-R-H-, ID# 12093 (AAO Nov. 7, 2016)

4 However, nothing in this decision prohibits the Petitioner from filing another SIJ petition, along with the new custody order, prior to her 21st birthday.

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