.

'-..-

CONFORMED COPY
OR IGINAL FILED .
2 Superior Court of Cahforn 1a
:t - .,. county of Los Anl'.1eles
3

4 JAN 2 4 Z017
5 Pro Bono Attorney for Petitioner Sherri R.Cartar,Executive Officer/Clerk
By:Mir.lrnlle Mitchell. Deputy
6

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
10

II Inre:
CASE No..
12 . 0. -
MEMORANDUM OF POINTS AND
13 Petitioner, AUTHORITIES IN SUPPORT OF
REQUEST FOR SPECIAL IMMIGRAN T
JUVENILE STATUS
14 and
HEARING:
15 Date: January 26, 2017
Time: 8:30 AM
16 Respondent. Dept.:
Room:
17 H-------------------' Judge:
18

19
MEMORANDUM OF POINTS AND AUTHORI TIES
20 I. INTRODUCTION
21 This Memorandum of Points & Authorities is submitted in support o.f
22
_, ,, J ;. request for ajuvenile court to make factual findings of eligibility
for

23 Special Immigrant Juvenile Status ("SIJS") as under Section 101(a)(27)(J) of the Immigration &

24 Nationality Act ("INA") and as amellded by the William Wilberforce Trafficking Victims

25 Protection Reauthorization Act of 2008 ("TVPRA"). Applicable SIJS statute pursuant to the INA
26 and as amended by the TVPRA; applicable SIJS statute as codified under 8 C.F.R. 204.11.
27

28
Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile
Status
t
 As it will be shown, Brayan was "abandoned and neglected" in his home country of El

2 Salvador by his father and seeks the protection of the United States by applying for Special

3 Immigrant Juvenile Status.

4 For an applicant to obtain SIJS and remain in the United States, he must go through a

5 three-pait process. First, "a state or juvenile court" must make factual findings that will be used

6 in suppo1t of his SIJS application. TQ.icial findings ust includeJh.e following:

1 1. The child has been declared dependent on ajuvenile court located in the United States or
8 placed under the custody of an individual or entity appointed by a state or juvenile court,
9 within the meaning of INA 101(a)(27)(J) [amended by TVPRA of 2008];
10 2. The child's reunification with one or both of his or her parents is not viable due to abuse,
lI abandonment, or neglect or other similar basis under state law within the meaning of
INA
12 101(a)(27)(J) [amended by TVPRA of 2008]; and
13 3. It is not in the "best interest" of the child to be returned to his or her parents' previous
14 country of nationality or country of last habitual residence within the meaning of INA
1s 191(a)(27)(J).
16 Second, the child must submit the factual findings with their SIJS visa application to the
11 United States Citizenship and Immigration Services ("USCIS"), which will make the

18 determination of whether to grant SIJS to the applicant. Lastly, if granted, the applicant is able to
19 adjust his or her status and apply for Legal Permanent Resident status, allowing him or her to
20 remain in the United States.
21 The factual findings by this Court are not meant to determine the child's immigration
22 status nor is it meant to confer any immigration benefit directly to the child. Rather, the findings

23 primarily pertain to the child's care and custody as they relate to one or both parents. The factual

24 findings are also meant to determine whether it is in the child's best interest to return to his or
25 her home country. These findings are a prerequisite to filing an application for immigration relie
26 and the decision of whether the child shall be granted immigration status remains ultimately with
27 users.
28
 .,
Memorandum and Points of Authority in Sup pRequest for Special lrnmigrant Juvenile Status
 . .

Brayan meets the criteria for SIJS as prescribed by the INA. Particularly, Brayan's father
2 abandoned and neglected Brayan from a young age. Furthennore, due to the heavy violence and

3 gang presence inBrayan's neighborhood and school, and because Brayan's mother is inthe

4 United States, it is not in Brayan's best interest to go back to El Salvador. It is respectfully

5 requested that this Court, in exercise of its jurisdiction over Brayan, issue an order making the

6 appropriate judicial findings of fact pursuant to the SIJS statute under the INA.
7

8 II. STATEMENT OF FACTS

9 , .. - : -'"' ;now brings a petition before this
I o Court to respectfully request that she be granted full custody and that this Court issue factual
11 finding in her case in support of Brayan's application for Special Immigrant Juvenile Status.

12 Brayan's father has abandoned and neglected him since before he was born by not providing any
13 financial or emotional support. Brayan's father has also had very limited contact with him and
14 has made no attempt to make contact since Brayan and his younger brother entered the United
15 States.
16

17 HI. LEGAL AUTHORITY

1s A. TIDS COURT HAS JURISDICTION TO ISSUE JUDICIAL FINDINGS IN
19 REGARDS TO SPECIAL IMMIGRANT JUVENILE STATUS AS GRANTED
20 AND REQUIRED UNDER FEDERAL AND CALIFORNIA STATUTE
21 Under the Immigration & Nationality Act ("INA"), Congress sought to grant protection
22 to children who are unable to reunite with one or both parents due to maltreatment and who

23 cannot return to their home country. Children who qualify under the INA may be granted Special
24 Immigrant Juvenile Status ("SIJS") as a means of protection. As a prerequisite for filing an

25 application for SIJS, the applicant must be "placed under the custody of...an individual or entity

26 appointed by a State or juvenile court...and whose reunification with 1 or both of the child's
27 parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law."
28

3
Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile Status
.,
 See INA 101(a)(27). The juvenile court must also find that it is not inthe best interest of the

2 child to return to their home country.

3 Congress requires that issues relating to custody and judicial findings be made through a

4 State or juvenile court. A "juvenile court," for the purposes of SIJS, is defined as "a court located

5 in the United States having jurisdiction under State law to make judicial determinations about the

6 custody and care of juveniles. " See 8 C.F.R. 204.l l(a). The reason for endowing State courts
7 with the authority to make such :findings is due to State courts being the best forum in
8 determining the child's welfare and best interests. See Memorandum by the Judicial Council of
9 California; see also Leslie v. Sup. Ct. of Orange City., 224 Cal.App.4th 340, 348 (2014). In
10 granting such authority, Congress recognizes that State courts are more competent in

1I determining the legal and factual grounds for abuse, abandonment, and neglect as well the best

12 interests as they relate to children.

13 Recognizing the vulnerability and need of these children, and to "eliminate any
14 ambiguity regarding the jurisdiction of the state court to make findings necessary," California
15 Senate Bill 873 ("SB 873") was signed into law in 2014, granting California Superior Courts
16 with the authority to make findings in line with the INA. See SB 873 added Section 155 to the

17 California Code of Civil Procedure, stating that Superior Courts in California, including the
18 family court divisions, have the jurisdiction to make judicial findings regarding the care and
19 custody of children within the meruiing of the INA. See Cctlifornia. Code of Civil Procedure

20 155. Furthermore, Section 155(b) requires that, when requested, the Court must issue findings
21 regarding a child's custody, a child's inability to reunify with one or both parents due to abuse,
22 neglect, or abandonment, and a child's best interest as it relates to whether the child may return

23 to their home country.

24 Inall, this Court has the authority and jurisdiction to issue judicial findings regarding

25 Brayan's care and custody and must do so when requested by a party in an action as prescribed
26 under Section 155 of the Code of Civil Procedure.
27

28

Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile
Status
t/
 B. TIDS COURT HAS A LIMITED FACT-FINDING ROLE OF IDENTIFYING
2 MISTREATED CIDLDREN AND NEED NOT MAKE ANY OTHER
3 DETERMINATIONS INCLUDING IMMIGRATION ISSUES OR CONCERNS
4 Although the INA granted State courts authority to issue judicial findings, the Court's

5 role in doing so is limited. This Court's role is "simply to identify abused, neglected, or

6 abandoned children under its jurisdiction who cannot reunify with a parent or be safely returned

7 in their best interests to their home country."Leslie H v. Sup. Ct. of Orange City, 224
1
8 Cal.App.4 h 340, 341 (2014). Issues relating to immigration such as determining whether the
9 child is a "worthy candidate for citizenship" and "immigration policy concerns" are not within
1o the review of this Court.
11 This limited fact-finding role is reflected in Section 155(b)(l) of the Code of Civil
12 Procedure. As mandated, orders with judicial findings inregards to SIJS, when requested, shall

13 include findings relating to the child's custody; that reunification with one or both parents is not

14 viable due to abuse, neglect, or abandonment under State law; and, it is not in the best interest of
is the child to be returned to his home country. Thus, the Court's primary concern is in regards to
I6 the custody and best interest of the child and not in regards to their suitability for immigration

17 status.

18 Overall, this Court's role under the INA and California Code of Civil Procedure is a fact-
19 finding role. This Court must issue an order relating to only the child's custody, reunification,
20 and best interests as they relate to his parents and home country while issues of immigration
21 status are outside of the Court's authority.
22 C. THE COURT MUST FIND THAT REUNIFICATION IS NOT POSSIBLE
23 WITH AT LEAST ONE PARENT FOR PURPOSES OF JUDICIAL FINDINGS
24 UNDER THE INA AS DETERMINED BY THE PLAIN LANGUAGE OF THE
2s STATUTE AND CASE LAW
26 The INA and its amendment under the William Wilberforce Trafficking Victims
27 Protection Reauthorization Act of 2008 ("TVPRA") requires that a state court find that

28 "reunification with 1 or both of the child's parent is not viable due to abuse, neglect,

Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile Status
t:j ?
 abandonment, or a similar basis found under State law."See the TVPRA Section 235(d)(l)(A).
2 Taking the statute at its plain language, the state court only needs to find that reunification is "no

3 viable" with at least one parent or at most with both parents. Both the Judicial Council of
4 California ("Judicial Council") and relevant state case law support this plain-language

s interpretation.

6 In September of 2014, the Judicial Council issued a Memorandum to provide guidance o

7 SB 873 and Section 155 of the Code of Civil Procedure. The Judicial Council stated that an
8 instance where judicial findings may be issued includes a family court awarding one parent sole
9 custody of a child based on the other parent's maltreatment of the child. The Judicial Council's
1o interpretation allows judicial findings to be issued based on the non-viability of reunification

11 with one parent despite the other parent obtaining custody over the child.
12 The California Courts of Appeal echoes this interpretation as well. Inre Israel 0., the

13 California Courts of Appeal found that the phrase "1 or both" to mean that reunification may not
14 be viable with one parent, for purposes ofissuing judicial findings, despite a child being able to
15 live with the other parent. See In re Israel 0., Jan. 16, 2015, A142080. In support of their

16 interpretation, the Court took into account the United States Citizenship & Immigration Services
17 ("USCIS") interpretation of the SIJS statute. The Court recognized that USCIS allowed for "SIJS
18 eligible children" to live with a foster family, an appointed guardian, or the non-abusive parent.
19 The Court thus held that a child might be eligible under the SIJS statute even if there is one

20 parent with whom the child may reunify so long as reunification with the other parent is not
21 viable due to abuse, neglect, or abandonment.
22 Thus, as under the plain language of the statute, and as interpreted by the Judicial Council

23 and the California Appellate Court, judicial findings may include a determination that
24 reunification is not viable with only one parent.
25 IV. LEGAL ARGUMENTS
26 A. MINOR CANNOT REUNIFY WITH ms FATHER DUE TO BEING
27 ABANDONED AND NEGLECTED BY ms FATHER
28

Memorandum and Points of Authority in Support,.of Request for Special Immigrant Juvenile Status
 1. ! Father Abandoned Him By Leaving
2 Soon After Claudia Was Pregnant and Not Providing Any Form of
3 .:......ther
4 California Welfare & Institutions Code (WIC) 300(g) defines abandonment as when a

5 "child has been left without any provision for support." Family Code 7822(b) states that "the

6 failure to provide identification, failure to provide support, or failure to communicate is

7 presumptive evidence of the intent to abandon." Furthermore, under 7822(a), a child may be
s declared free from his/her parent's control if one parent left "the child in the care and custody of
9 the other parent for a period of one year without any provision for the child's support, or without

10 communication from the parent, with the intent on the part of the parent to abandon the child."

11 Under both WIC and the Family Code, ,- ,, . . ) actions would

12 constitute abandonment oL ':.::.. left Brayan soon after she was born and did so without
13 any means of support to ensure - - - .i was cared for. Furthermore, Carlos has only spoken to

14 Brayan a few times since he was born. = "'' -. , failure to provide support, both financially and
15 emotionally, and his failure to communicate are seen as intent to abandon on Carlos' part.

16 Given Carlos' absence and lack of relationship with Brayan, his failure to support Brayan
17 financially, and his lack of communication with his son, Carlos' actions constitute abandonment
18 pursuant to WIC and the Family Code.
19 2. Brayan's Father Neglected Him By Not :Providing Him witll Any Fooa,

20 Shelter, Clothing, or Medical Treatment

21 California & Institutions Code (WIC) 300(b) defines neglect as the "willful or negligent
22 failure of the child's parent ...to provide the child with adequate food, clothing, shelter, or

23 medical treatment."
24 Brayan has gone the majority of his life without any support from his father, including

25 shelter, clothing, food, or medical treatment. When Brayan's mother asked Carlos to send money
26 to their sons so he would have food and clothing while Claudia looked for work, Carlos refused
27 to send anything to help Brayan. Therefore, Carlos' actions constitute neglect as defined by
28 WIC.

Memorandum and Points of Authority in

Supp ..,of Request for Special Immigrant Juvenile Status
 ....,ECEIVED
B. DUE TO ms GRANDMOTHER'S NEGLECT -
2 UNECESSARY TRAUMA

3 Other than finding that the father mentioned above has abandoned and neglected Brayan, the

4 grandmother (maternal) was neglectful in protecting Brayan from traumatic events. California &

s Institutions Code (WIC) 300(b)(l)[i] defines neglect as being that "The child has suffered, or

6 there is a substantial risk that the child will suffer ... as a result of the failure or inability of his or

7 her parent or guardian to adequately supervise or protect the child."As noted in his declaration,

8 Brayan witnessed his uncle's murder by the 18 gang. This caused trauma, which has a long-term
9 effect on Brayan's psyche. His witnessing of this murder by the gang also makes him a target by

10 the gang. Due to his grandmother's neglect, he was able to witness this murder.

i1 C. IT IS NOT IN MINOR'S BEST INTEREST TO BE RETURNED TO EL

12 SALVADOR
13Other than finding whether one or both parents have abandoned, abused, or neglected a

14 child, there must be factual findings that it is in the child's best interest to not return to his or her
1s home country. Congress has long recognized the juvenile courts as being the best forum for

16 determining the best interest of children. 58 Fed. Reg. 54,42847 (Aug. 12, 1993), states that "the

11 decision concerning the best interest of the child may only be made by the juvenile court or in an

18 administrative proceeding authorized or recognized by the juvenile court."

19 Indetermining the best interests of the child, California Family Code 3020(a) states that

20 "the health, safety, and welfare of children shall be the court's primary concern in determining

21 the best interest of children ..." when making orders relating to the child's physical or legal

22 custody. See also Cal. Fam. Code Section 3011, which lists factors the court shall consider in

23 making best interests determinations, including the health, safety, and welfare of the child,
24 history and contact between child and parents, and other factors.

25 Furthermore, SB 873, the memo issued by the CA Judicial Council to provide guidance

26 to courts inhandling SIJS matters, notes that in making best interests determinations, the state

27 court need not become an expert on foreign country conditions and can focus on circumstances

28 shown by evidence presented. In making judicial findings relating to custody and best interest,

Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile Status
SI
 the Code of Civil Procedures states that the Court may rely on evidence consisting of, but not
2 limited to, the declaration of the child who is subject of the petition. Code of Civ. Proc.
3 '155(b)(l).

4 Here, it is in Brayan' s best interest for him to remain inthe United States under the
care
5 of his mother. A forced return to El Salvador would be detrimental to Brayan's safety and
6 welfare. Brayan lived in a dangerous neighborhood populated with gang members, violence, and
7 death. Brayan lived in El Salvador without his mother or his father. Brayan' s father
abandoned
8 Brayan since birth and was not ever present to protect Brayan and provide guidance. Brayan's
9 mother is unable to protect Brayan as well since she lives inthe United States as a means of
10 providing support and care to Brayan. Overall, if forced to return, Brayan would go back to a
life
11 filled with gang violence and threats without the protection and care of parents.
12 It is in Brayan's best interest to remain in the United States in the care of his mother.
In
addition, Brayan does not have anyone who could properly care for him inEl Salvador.
13
Without
14 any parental protection, he will be vulnerable to the gang violence and harassment that is
15 prevalent in Brayan's neighborhood. Brayan's only real hope for safety and well-being is to
16 remain inthe care of his mother inthe United States. Therefore, the court should find it in the
11 best interest of Brayan to stay in the United States in the care of his mother.
18 D. THIS COURT SHOULD GRANT CLAUDIA WITH FU1,L CUSTODY OF
19 MINOR

20 Pursuant to Family Code Section 301O(b), if one parent "is unable or refuses to take
21 custody, or has abandoned the child, the other parent is entitled to custody of the child."
Brayan
22 is requesting that the Court establish a parent-child relationship between himself and his mother
23 . Furthennore, Brayan requests that this Court provide Claudia (mother) with full
custody
24 of Brayan, allowing Brayan to benefit from the parent-child relationship.
25 Brayan was released from federal detention and was reunified with his mother. Since
26 then, Brayan's mother has worked hard to provide Brayan with a safe environment for him to
21 grow and mature. She has enrolled Brayan in school to ensure that he continues his education.
28

Memorandum and Points of Authority in Support of Request for Special Immigrant Juvenile Status
u
 Brayan's mother has been able to provide for Brayan's needs as much as she can and that Brayan
2 receives the love and care he deserves at home.

3 Given that Brayan's father has abandoned Brayan and that Brayan's mother has worked
4 hard to care and provide for Brayan, Brayan's request to be placed in the full custody of his
s mother should be granted.
6 v. CONCLUSION

7 Pursuant to the INA and the California Code of Civil Procedure, this Comt has
8 jurisdiction and is required to issue factual findings in support of Brayan's Special Immigrant
9 Juvenile Status application. Based on the foregoing facts, this Court should find that Brayan's
10 father abandoned and neglected Brayan pursuant to California State law. Furthermore, it is not in
11 Brayan's best interest to return to El Salvador given the gang violence in his home country and
12 due to his mother being in the United States.

13 This Court's findings as they relate to Brayan's case will have a profound effect on

14 Brayan's life an give him an opportunity to be cared for and be safe with his mother. Claudia
1s respectfully requests that this Court issue an order in line with the INA and Brayan's eligibility
16 for Special Immigrant Juvenile Status.
17

18 Dated

19 Respectfully Submitted, '

I /
20

21
22 Pro Bono Attorney for the Petitioner
23

24

25

26

27

28

Memorandum and Points of Authority in Support ,of Request for Special Immigrant Juvenile
Status
f/fJ