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B.F. et al., Minors, Etc v. the Superior Court of Los Angeles County

July 2, 2012

B.F. ET AL., MINORS, ETC., PETITIONERS,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT.



ORIGINAL PROCEEDINGS in mandate. Dudley W. Gray II, Judge. (Los Angeles County Super. Ct. No. YP011580)

The opinion of the court was delivered by: Mallano, P. J.

CERTIFIED FOR PUBLICATION

Petition granted.

In this guardianship matter, three minors seeking special immigrant juvenile status (SIJ status) pursuant to title 8 United States Code section 1101 (section 1101) and 8 Code of Federal Regulations part 204.11 (2012) challenge the Superior Court of Los Angeles County's order denying their request for findings, including that they are "dependent upon the court" and "have been legally placed in the custody of an individual appointed by a juvenile court." The minors contend that respondent superior court sitting as a probate court has authority to make such findings. The superior court argues that section 1101(a)(27)(J) does not authorize it to make the findings and that even if it permitted state court findings for federal immigration purposes, only a "Juvenile Court" exercising the jurisdiction set forth in the Welfare in Institutions Code can do so. We conclude that the federal statutes and regulations and the state statutes authorize the superior court sitting as a probate court to make such findings and that the superior court rules recognize its authority to do so. Accordingly, we grant the petition.

BACKGROUND

B.F. (born Nov. 1995), M.F. (born Jan. 1997), and L.F. (born Jan. 1998) (Minors) were born in Honduras, where they lived with their parents until their father died in 1999. Their mother immigrated to the United States in 2000, while the Minors remained in Honduras with grandparents. In 2006, the Minors joined their mother in Houston, Texas. Their mother died in February 2011. The Minors' paternal aunt, Irma L., is married to Armando L., who is a United States citizen. In July 2011, the Minors moved in with Irma L. and Armando L. in California.

On August 24, 2011, the Minors filed a petition for appointment of temporary guardian of the person, pursuant to which the superior court appointed Irma L. and Armando L. temporary guardians with letters to issue. On November 30, 2011, the Minors, through their legal guardians, filed a request for an order from the superior court making the necessary findings to enable them to petition the United States Citizenship and Immigration Service for SIJ status pursuant to 8 United States Code section 1101(a)(27)(J) and 8 Code of Federal Regulations part 204.11. The Minors requested that the superior court find that within the meaning of 8 United States Code section 1101(a)(27)(J) and 8 Code of Federal Regulations part 204.11: The Minors were born in Honduras and are citizens and nationals of Honduras; the superior court has jurisdiction under California law to make judicial determinations about the custody and care of juveniles; the superior court appointed Irma L. and Armando L. as permanent legal guardians of the Minors; the Minors will remain under the superior court's jurisdiction consistent with Probate Code section 2630 after they attain majority or until the immigration process is completed; the Minors are dependent upon the superior court and have been legally placed under the custody of an individual appointed by a "juvenile court"; reunification with one or both parents is not viable due to abuse, neglect, abandonment or similar basis found under state law; it is not in the best interest of the Minors to be returned to Honduras; and it is in the Minors' best interest to remain in the United States.

A hearing on the petition for appointment of guardian was held on December 7, 2011. The superior court granted the petition for appointment of guardian, but denied the Minors' unopposed request for an order making findings under section 1101(a)(27)(J), stating that it did not have the authority to do so.

The Minors filed a petition for a writ of mandate on February 12, 2012. On March 15, 2012, we issued an order to show cause to the superior court to address why a peremptory writ should not issue. The superior court filed a return on March 23, 2012. The Minors filed a reply on April 23, 2012. On June 4, 2012, we invited the Minors and the superior court to submit argument on the effect of Superior Court of Los Angeles County, Local Rules, rule 6.15(a) on the issues raised in the petition for a writ of mandate.*fn1 The superior court and the Minors filed letter briefs.

DISCUSSION

The Minors contend that the superior court erred in denying their request for findings that would enable them to petition for SIJ status pursuant to section 1101(a)(27)(J) and 8 Code of Federal Regulations part 204.11. They contend that the superior court sitting as a probate court has the authority to make such findings. We conclude that the federal statutes and regulations and the state statutes authorize the superior court sitting as a probate court to make such findings and that rule 6.15(a) recognizes its authority to do so.

The Immigration Act of 1990, codified in section 1101, sets forth a procedure for classification of certain aliens as special immigrants who have been declared dependent "on a juvenile court." (§ 1101 (a)(27)(J)(i).) "[The Immigration Act of 1990] provides that certain aliens who have been declared dependent on juvenile courts located in the United States may be eligible for special immigrant classification. Aliens who are classifiable as special immigrants may apply for immigrant visa issuance abroad or adjustment of status to that of a lawful permanent resident within the United States. After adjustment of status or admission with an immigrant visa, they may live and work in the United States indefinitely and may apply to become United States citizens in the future." (58 Fed.Reg. 42843, 42844 (Aug. 12, 1993).)

Section 1101 states in pertinent part: "(a) As used in this Act-- [¶] . . . [¶] (27) The term 'special immigrant' means-- [¶] . . . [¶] (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 . . . ." (Italics added.) Section 1101(a)(27)(J)(iii) requires that the Secretary of Homeland Security consent to the grant of SIJ status.

Pursuant to 8 Code of Federal Regulations part 204.11(c), an alien is eligible for classification as a special immigrant if the alien: "(1) Is under twenty-one years of age; [¶] (2) Is unmarried; [¶] (3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court; [¶] (4) Has been deemed eligible by the juvenile court for long-term foster care; [¶] (5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and [¶] (6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents. . . ." Eligibility for long-term foster care means that the juvenile court has determined that family reunification is no longer a viable option. (8 C.F.R. § 204.11(a).) Further, a child who has been placed in a guardianship situation after having been found dependent upon the juvenile court will continue to be considered to be eligible for long-term foster care. (Ibid.) The alien is required to petition for classification as a special immigrant juvenile and to submit documents in support of the petition, including a juvenile court order showing that the court has found the "beneficiary" to be dependent upon that court; a ...


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