U.S. Citizenship and Immigration Services

MATTEI\ OF R-D-G-H-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 15, 2016

APPEAL OF RALEIGH-DURHAM, NORTH CAROLINA FIELD 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. §§ 110l(a)(27)(J) and 1154(a)(l)(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 Field Office Director, Durham, North Carolina, denied the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition). The Director concluded that the record did not establish that the court custody order for the Petitioner was issued in accordance with North Carolina state law where the record did not establish the court's authority to exercise jurisdiction over the Petitioner as a juvenile or minor under state law.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief. The Petitioner contends on appeal that the juvenile court order was issued in accordance with state law.

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) of the 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 ....

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. 369, 376 (AAO 2010).

II. ANALYSIS

The Petitioner was born in Guatemala on ,and entered the United States without inspection, admission, or parole in January 2015. On 2015, 1 when the Petitioner was

years old, the General Court of Justice, District Court Division, in North Carolina issued a Consent Order (custody order), awarding guardianship, custody, and control of the Petitioner to his brother. On 2015, the Petitioner filed the instant SIJ petition.

The Director concluded that the record did not establish that the district court exercised jurisdiction over the Petitioner as a minor in accordance with state law, where the Petitioner was already over 18 years of age when the court issued the custody order. Upon de novo review of the record, as supplemented on appeal , the Petitioner has not overcome the grounds for denial.

A juvenile court order is valid for purposes of establishing SIJ eligibility if it was properly issued in accordance with state law, including state laws on jurisdiction. Accordingly, in order for a juvenile court order to be considered an eligible order for SIJ purposes, the court must have jurisdiction under state law to make judicial determinations about the care and custody of juveniles. 6 U.S. Citizenship and Immigration Services Policy Manual J.2(D)(4), https://www.uscis.gov/policymanual (citing 8 C.F.R. § 204.11(a) and Perez-Olano v. Holder, No. CV 05-3604 (C.D. Cal. 2005) (paragraph 8)).

Here, the custody order at issue states that the district court had jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act set forth at Chapter 50A, Article 2 of the North . Carolina General Statutes. Section 50A-201(b) specifically provides that subsection (a) of that provision is "the exclusive jurisdictional basis for making a child-custody determination by a court of' North Carolina. See also 50A-202 (addressing the court's exclusive, continuing jurisdiction in child-custody proceedings). However, for purposes of Chapter 50A child-custody proceedings, a "child" is defined as an individual who has not attained 18 years of age. N.C. Gen. Stat. § 50A­l 02(2). As the Petitioner was already 18 years old when the juvenile court issued the custody order under Chapter 50A, he did not meet the definition of child under state law. Although the order references the Petitioner as a minor child and asserts the court's jurisdiction in the child-custody proceedings, it does not identify the statutory or legal authority under North Carolina state law on which the court relied in assuming jurisdiction over the Petitioner as a minor child after his 18th birthday. The record also does not include the underlying petition or other court documents for the

1 Although dated 2015, by the juvenile court judge, the order was not filed until 2015.

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custody order to establish the legal basis for the court's exercise of jurisdiction in the child-custody proceedings. Accordingly, the Petitioner has not established that the custody order was issued in accordance with North Carolina state law as required.

On appeal, the Petitioner contends that the North Carolina district court qualifies as a juvenile court under the Act and may render determinations for SIJ purposes, even after a child reaches 18 years of age. The Petitioner also cites to sections 50-13.4 and 50-13.82 under Chapter 50 of the North Carolina General Statutes, under which he maintains that the district court can find a child dependent on the court beyond the child's 18th birthday.

The Petitioner is correct in that a North Carolina district court may qualify as a juvenile court under the Act in several instances, including child-custody proceedings. See 8 C.F.R. § 204.11(a) (defining "juvenile court'' as "a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles") (emphasis added). In addition, as he asserts, there may be cases in which the district court may assume jurisdiction over an individual as a dependent on the court for SIJ purposes, including child support proceedings.3

However, notwithstanding the fact that the district court may qualify as a juvenile court, the record must still establish that the court's authority to exercise jurisdiction over the Petitioner as a minor in child-custody proceedings after the Petitioner had attained 18 years of age and was no longer a "child" under state law: The Petitioner's reliance on the two cited statutory provisions under Chapter 50 to establish the court's authority to exercise jurisdiction is misplaced, as that chapter relates to divorce and alimony proceedings. Neither provi~ion addresses the juvenile court's jurisdiction in child-custody proceedings, nor provides any authority for the · court's initial or continuing jurisdiction over a child in such proceedings after he or she attai.ns 18 years of age. Moreover, even if they did so, there is no evidence that the district court here relied on either provision in exercising jurisdiction over the Petitioner as a juvenile in his child-custody proceedings. As stated, the juvenile court order specified that the court assumed jurisdiction in the Petitioner' s child-custody proceedings pursuant to Chapter 50A. However, as stated, the Petitioner did not meet

2 Section 50-13.4 of the North Carolina General Statutes addresses child support actions, providing certain exceptions where support payments continue beyond the child ' s 18th birthday. Section 50-13 .8 provides that the rights of a person who is mentally or physically incapable of self-support upon reaching majority to be the same as a minor child ' s for purposes of custody issues in divorce and alimony proceedings. Neither provision provides authority for the court's jurisdiction in child-custody proceedings to make determinations as to the care and control of such a person as a juvenile as required. 3 The Petitioner also submitted a Consent Order on Child Support issued in favor of his guardian in separate district court proceedings on December 9, 20 I 5, after the filing of the SIJ petition. The Petitioner does not explain the relevance of this order (and underlying complaint). Regardless, the child support order is not applicable to these proceedings, as the pertinent order that serves as the underlying basis for the instant SIJ petition is the 2015 custody order that was filed with the petition. See 8 C.F.R. § 204. I I (d)(2) (a juvenile court dependency order must be submitted as initial evidence in' support of a SIJ petition); see also 8C.F.R .. § 103 .2(b)(l) (a Petitioner is required to establish eligibility at the time of filing the immigrant visa petition); Matter ofKatigbak, 14 l&N Dec. 45 , 49 (Reg ' l Comm 'r 1971) (A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts) .

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the definition of "child" for purposes of his child-custody proceedings under that chapter when the order was issued.

Additionally, the Petitioner contends that a juvenile court's "acceptance of jurisdiction over custody of a child renders the child dependent on the court" for SIJ purposes. However, as noted, we do not even reach the issue of whether the order itself satisfies the statutory requirement for the requisite dependency/custody determination under section 10l(a)(27)(J)(i) ofthe Act, because the Petitioner must first establish the court had legal authority to accept jurisdiction over matters relating to dependency/custody of the Petitioner as a juvenile, after he was no longer a child under state law. As he has not done so, the record does not establish the court custody order was issued in accordance with state law.

III. CONCLUSION

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

ORDER: The appeal is dismissed.

Cite as Matter of R-D-G-H-,ID# 13750 (AAO Nov. 15, 2016)

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