Hernandez-Lemus v. Arias-Diaz

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-12527 ESWIN E. HERNANDEZ-LEMUS vs. MARIA ESPERANZA ARIAS-DIAZ. June 29, 2018. Alien. Probate Court, Findings by judge. In October, 2015, Eswin E. Hernandez-Lemus filed a petition in the Probate and Family Court seeking custody of his son, a seventeen year old undocumented immigrant from Guatemala. 1 A "Motion for Special Findings of Fact and Rulings of Law," requesting the judge to make the special findings necessary for the child's application for special immigrant juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (2012), also was filed. 2 After a hearing, the judge granted sole legal and physical custody of the child to Hernandez-Lemus, but declined to make the requested special findings. A panel of the Appeals Court affirmed. See Hernandez-Lemus v. Arias-Diaz, 92 Mass. App. Ct. 1121 (2018). We granted further appellate review. We now vacate so much of the judgment that declined to enter special findings and remand for further proceedings consistent with this opinion. 1 The child was born on February 16, 1998. "For purposes of special immigrant juvenile . . . status, 'child' is defined as a person under twenty-one years of age who is unmarried." Guardianship of Penate, 477 Mass. 268, 273 n.10 (2017), citing 8 U.S.C. § 1101(b)(1). 2 Although the copy of the child's affidavit included in the record appendix is unsigned, at a hearing before the probate judge the child affirmed the truth of the contents of the affidavit. 2 Congress established the SIJ status "to create a pathway to citizenship for immigrant children," Recinos v. Escobar, 473 Mass. 734, 737 (2016), who have been "abused, neglected, or abandoned by one or both parents." Guardianship of Penate, 477 Mass. 268, 270 (2017). An immigrant child's application for SIJ status is predicated on special findings from a "juvenile court" 3 that "(1) [he] is dependent on the juvenile court; (2) [his] reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in [his] best interests to return to [his] country of origin." Recinos, supra at 735, citing 8 U.S.C. § 1101(a)(27)(J)(i). "An application for SIJ status must be submitted before the immigrant's twenty- first birthday." Recinos, supra, citing 8 C.F.R. § 204.11 (2009). A judge may not decline to make special findings based on his or her assessment of the likelihood that the SIJ application ultimately will be successful before the Federal authorities, or on any consideration of the juvenile's motivation for seeking SIJ status. Guardianship of Penate, 477 Mass. at 270. Instead, "[u]nder the statute, the judge's sole function is to make the special findings, and to do so in a fashion that does not ...

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