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Canales v. Orellana

Court of Appeals of Virginia

June 20, 2017

EDY CANALES
v.
MARVIN ALEJANDRO TORRES ORELLANA

         FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge.

         UPON A HEARING EN BANC

          Tanishka Cruz (Angela Ciolfi; Rebecca Wolozin; Simon Sandoval Moshenburg; Laura Jacobson; Legal Aid Justice Center; L & L Immigration Law, PLLC, on briefs), for appellant.

          William H. Hurd (Laura Anne Kuykendall; Troutman Sanders LLP, on brief), for appellee.

          Amici Curiae: Trevor S. Cox, Deputy Solicitor General (Mark R. Herring, Attorney General; Stuart A. Raphael, Solicitor General; Matthew R. McGuire, Assistant Solicitor General, on brief); Kids in Need of Defense (Jessica Leal; Kevin P. Broughel, on brief); Detained Children's Program, Capital Area Immigrants' Rights Coalition (Mari Dorn-Lopez; Elizabeth Nehrling Sotiriou; Kevin P. Broughel, on briefs); Virginia Bar Association Commission on the Needs of Children (Robert M. Rolfe; Geri M. Greenspan; Hunton & Williams LLP; Margaret Ivey Bacigal, on brief), for appellant.

          Present: Chief Judge Huff, Judges Humphreys, Beales, Alston, Chafin, Decker, O'Brien, Russell, AtLee and Malveaux

          OPINION

          ROBERT J. HUMPHREYS JUDGE.

         Edy Canales ("Canales") appeals the May 31, 2016 judgment of the Circuit Court of Loudoun County (the "circuit court") holding that it did not have jurisdiction to make the predicate findings of fact required for her child ("M.C.") to acquire Special Immigrant status for federal immigration purposes. Specifically, Canales' two assignments of error assert that the circuit court erred in finding that it lacked subject matter jurisdiction to make the specific findings of fact required by federal law to receive special immigrant status and further erred in declining to make the specific findings of fact she requested for that purpose.

         I. BACKGROUND

         A. Statutory Background

         Federal immigration law provides that an immigrant child living in the United States may become a lawful permanent resident by obtaining Special Immigrant Juvenile ("SIJ") [1] status, which was intended to provide protection to abandoned, abused, and neglected non-native children through permanent residency status in the United States. 8 U.S.C. § 1101(a)(27)(J).

         The Supreme Judicial Court of Massachusetts recently authored an opinion with a succinct explanation of the statutory background of the federal SIJ statute:

In 1990, Congress amended the Immigration and Nationality Act (INA) to include the SIJ classification to create a pathway to citizenship for immigrant children. Pub. L. 101-649, § 153, 101st Cong., 2d Sess. (1990). When the SIJ classification was first included, the statute required a State court to issue an order finding that (1) the child was dependent on a juvenile court and was eligible for long-term foster care, and (2) it was not in the child's best interests to return to his or her country of origin. Id. Since then, the provision of the INA concerning SIJs has been amended several times. See Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 107-108, 973 N.Y.S.2d 714 (N.Y. 2013) (Marcelina M.-G.) (explaining various amendments to the INA concerning SIJ status). In 1997, Congress modified the definition of SIJ to include a child who was "legally committed to, or placed under the custody of, an agency or department of a State" and added the requirement that eligibility for long-term foster care be "due to abuse, neglect, or abandonment." Pub. L. 105-119, § 113, 111 Stat. 2440 (1997). In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) further amended the INA to expand eligibility for SIJ status to include immigrant children who were placed in the custody of an "individual or entity appointed by a State or juvenile court" and eliminated the requirement of long-term foster care eligibility. Pub. L. 110-457, § 235(d)(1), 122 Stat. 5044 (2008). The amendment added the requirement that the reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. Id.

Recinos v. Escobar, 473 Mass. 734, 737 (2016).

         The current statutory definition of a Special Immigrant as it relates to a juvenile alien (SIJ) is as follows:

         The term "special immigrant" means-- . . .

(J) an immigrant 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;
(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.

8 U.S.C. § 1101(a)(27)(J). In addition to the above statutory factors, the juvenile immigrant must also be under the age of twenty-one and unmarried. 8 C.F.R. 204.11(c). Further, pursuant to 8 C.F.R. § 204.11(d)(2), an application for SIJ status must include at least one document evidencing that a state juvenile court has made the requisite SIJ findings of fact. Thus, before a child may obtain SIJ status, a petitioner must first obtain a judgment from a state juvenile court that satisfies the criteria set out by Congress in subsection (i) of 8 U.S.C. § 1101(a)(27)(J); second, a determination must be made in administrative or judicial proceedings that it would not be in the child's best interests to be returned to their native country; and finally, the Secretary of Homeland Security or his designee must actually grant the status of Special Immigrant Juvenile.

         B. Background of the Case

         M.C. is the child of Canales and Marvin Alejandro Torres Orellana ("Father"). Canales is a native of Honduras who emigrated to the United States in 2006, leaving M.C., who was approximately two years old at the time, in the custody of Canales' mother in Honduras. On June 16, 2015, Canales petitioned the Loudoun County Juvenile and Domestic Relations District Court (the "JDR court") for sole custody of M.C., whom she had retrieved from her mother's home in Honduras, and further that the court make what are collectively and generically referred to in the pleadings and briefs of the parties and amici curiae as "SIJ findings of fact." Specifically, Canales asked the JDR court to award her sole custody of M.C. and make specific factual findings that M.C. had been "abused" and "abandoned" by Father and that it was not in M.C.'s "best interest to be returned to [Honduras, ] his native country, " as those terms are used in 8 U.S.C. § 1101(a)(27)(J). Because Father resides in Honduras, with his exact whereabouts unknown, he was served notice of the petition and hearing by publication; he did not appear and was unrepresented at the hearings in the lower courts.[2] The JDR court granted Canales sole custody of M.C., but declined to make the additional specific SIJ findings of fact she requested. Canales timely appealed to the circuit court.

         At the circuit court hearing, Canales testified regarding information received from others in Honduras that Father drank heavily, had little contact with M.C., and repeatedly threatened to take M.C. from his grandmother unless the grandmother paid him money. Following the hearing, the circuit court also granted Canales sole custody of M.C., finding that Canales "has taken sole responsibility for the upbringing and care of the child." However, like the JDR court, the circuit court denied Canales' request for additional specific SIJ findings, reasoning that it did not have jurisdiction to do so. The circuit court entered two separate orders. The first, a custody order in Case No. CJ15-127 (the "custody order"); the second, an order regarding SIJ findings of fact in Case No. CJ15-128 (the "SIJ order").[3] Both orders were originally drafted by counsel for Canales and submitted to the circuit court at the hearing; however, prior to entering the orders, the circuit court altered the orders to reflect both the findings the circuit court made and, just as significantly, those it declined to make.

         In the custody order, the circuit court made findings based on the best interests of the child factors delineated in Code § 20-124.3. The circuit court's factual findings included that Father "has not maintained a relationship with [M.C.] nor had positive involvement with the child's life" and that "mother has taken sole responsibility for the upbringing and care of the child." The court further found that "there is no indication that [M.C.'s F]ather intends to play a role in the minor child's upbringing and care in the future, as the [F]ather [has] not been made aware of [M.C.]'s location." The circuit court noted that it was unable to make any finding as to either Canales' or Father's "willingness and ability to maintain a close and continuing relationship" with M.C. Although the custody order as submitted by Canales contained language indicating that the circuit court had made the SIJ findings sought by Canales, the circuit court crossed out those portions before entering the order.[4] In place of the stricken language, the circuit court inserted language indicating that Father "has not been informed of the whereabouts of the minor child, " and thus the circuit court "[could] make no finding" with respect to whether Father wishes to maintain a "close and continuing relationship with the child."

         In the SIJ order, the circuit court found that it did "not have jurisdiction to make findings as to [SIJ] petitions[, ] as such authority is not set forth in the Code of Virginia." The circuit court also found that M.C.'s reunification with Father "is not viable due to the fact that [M.C.] lives in Virginia, " declining to conclude that abandonment prevented the reunification. The circuit court further found that "[M.C.] lived in Honduras with his grandmother [and F]ather would visit the home until [M.C.] left for the United States." Further, the circuit court found that "[M]other has not notified . . . [F]ather or his family of the location of [M.C.]" and that "the testimony as presented as [second] and [third] party hearsay is not sufficiently reliable to find that the Father has abandoned the child." Finally, the circuit court recorded "[f]urther findings" that "[M.C.] wanted to come to [the] U.S. because his Grandmother had other children to care for[, ] so he wanted to live with Mother" and that "Father did attempt to gain custody/visitation [with M.C.] while in Honduras."

         At the hearing, the circuit court stated that it declined to make the specific findings relating to the SIJ factors both because it lacked jurisdiction to do so and because, "[W]e're talking about essentially terminating someone's parental rights here when we go through these petitions, and I'm very reluctant to do that based on the type of evidence that you all are [presenting]." The circuit court further told counsel for Canales, "I've discussed with you many times, as soon as the General Assembly gives us the authority and the jurisdiction to hear these matters, I'd be happy to do so. I believe I'm restrained by the Code of Virginia with respect to these matters. So, I think this is the best I can do."

         II. ANALYSIS

         A. Preservation of Error

         i. Specificity of Objections

         Father argues that Canales has not sufficiently preserved these issues for appeal, among other reasons, because she has not appealed the SIJ order and only endorsed the custody order as "Seen and objected to." With respect to the specificity of her objections to the custody order, Canales asserts that the circuit court did not give her a chance to state with specificity her objections to its final ruling, therefore the "good cause" exception of Rule 5A:18 permits our consideration of her specific objections. Furthermore, Canales contends that her assignments of error are nonetheless preserved for appeal because the issue was "narrow enough so that the basis for the objection [was] obvious." Herring v. Herring, 33 Va.App. 281, 286, 532 S.E.2d 923, 927 (2000).

         Rule 5A:18 states that "No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice."

Ordinarily, endorsement of an order "[s]een and objected to" is not specific enough to meet the requirements of Rule 5A:18 because it does not sufficiently alert the trial court to the claimed error. Such an endorsement is sufficient to satisfy Rule 5A:18 only if "the ruling made by the trial court was narrow enough to make obvious the basis of appellant's objection."

Herring, 33 Va.App. at 286, 532 S.E.2d at 927 (quoting Mackie v. Hill, 16 Va.App. 229, 231, 429 S.E.2d 37, 38 (1993)). Additionally, "[I]f a trial court is aware of a litigant's legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal." Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010).[5]

         In this case, Canales' only objection to the circuit court's orders came in the form of the phrase "Seen and objected to" written on the final orders. However, Canales was petitioning the court for only two things: custody of M.C. and SIJ findings of fact. Because the circuit court granted custody to Canales, there was only one issue left to which Canales could object: the circuit court's refusal to make the SIJ findings of fact. That refusal is apparent on both the SIJ order, where the circuit court specifically stated in the order that it did not have jurisdiction to make the requested SIJ findings of fact under Virginia law, as well as in the custody order, where the circuit court stated on the record that it believed it lacked the jurisdiction to do so and specifically declined to make the SIJ findings of fact by crossing out those portions of the custody order drafted by Canales that specifically found them to exist. Thus, by writing "Seen and objected to" on both orders, the only issue Canales could possibly be contesting is the circuit court's refusal to make the requested SIJ findings of fact. Canales' assignments of error on appeal are that the circuit court erred in finding it lacked jurisdiction to make SIJ findings in the custody order and therefore erred by declining to make such findings. Based on the record, we conclude that the circuit court's ruling was narrow enough to make Canales' objection obvious in this case. See Herring, 33 Va.App. at 286, 532 S.E.2d at 927. Further, because counsel for Canales drafted the proposed orders, and the circuit court ...


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