If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS In re VELASQUEZ, Minor. MARIO VELASQUEZ-TOMAS, Guardian of LMV FOR PUBLICATION November 10, 2022 Appellant, No. 360057 Ionia Probate Court LC No. 2021-000494-GM Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ. BOONSTRA, J. (dissenting). I respectfully dissent. By reversing the probate court’s decision in this case, the majority sanctions the abandonment of all notions of due process and our role as an error-correcting court. It facilitates the use of a by-design one-sided process (both in the probate court and in this Court) to foist factual findings (which no one has had an opportunity to rebut) upon the courts— notwithstanding the proper role of trial courts to evaluate witness credibility and the weight to be given to the evidence presented. And it allows itself to be used to further a particular political agenda—under which different living standards in other countries necessarily and conclusively equate to “abuse” and “neglect” justifying immigration. In my view, the probate court did not clearly err by failing to find that LMV’s1 reunification with his mother was “not viable due to abuse, neglect, abandonment, or a similar basis found under state law,” see 8 USC 1101(a)(27)(J)(i), or by failing to make factual findings regarding whether it was not in LMV’s best interest to be returned to his country of origin, see 8 USC 1101(a)(27)(J)(ii). Further, even if the probate court erred in addressing (or declining to address) those issues (in the absence of an opportunity for LMV’s mother to respond), this Court should 1 LMV will turn eighteen years of age on January 23, 2023. -1- not—in the first instance—make the factual findings set forth in this Court’s order, when the probate court did not address the issues first. See 8 USC 1101(a)(27)(J)(ii). The Immigration and Nationality Act of 1990 defines a “special immigrant,” in relevant part, as follows: (J) 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; (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 …
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