from a district court order establishing child custody.
Eighth Judicial District Court, Clark County; Mathew Harter,
Offices of Martin Hart, LLC, and Alissa A. Cooley, Las Vegas,
Orlando Guerrero Rivera, in Pro Se.
HARDESTY, STIGLICH and SILVER, JJ.
appellant Yesennia Esmeralda Amaya was granted sole physical
custody over her daughter, the district court denied her
motion to make the three predicate findings necessary to
petition the federal government for Special Immigrant
Juvenile (SIJ) status. See 8 U.S.C. §
1101(a)(27)(J) (2012); NRS 3.2203. We take this opportunity
to clarify that a child custody order can satisfy the first
predicate SIJ finding, which requires a person be
"appointed" to have custody over a juvenile. We
further hold that the second predicate SIJ finding can be
made where reunification is not viable with one parent due to
abuse, abandonment, neglect, or some similar basis under
Nevada law. Because the district court reached the opposite
conclusions and also failed to determine whether the third
predicate was met, we reverse and remand for further
adjudication consistent with this opinion.
gave birth to A.A. in El Salvador in November 2004. A,
A.'s father, respondent Milton Orlando Guerrero Rivera,
Amaya were never married and were no longer in a relationship
when A.A. was born. A.A. lived with her mother and maternal
grandmother in El Salvador until her mother moved to the
United States when A.A. was two years old. A.A. then lived
with her father until he kicked her out when she was ten
years old, and she resumed living with her maternal
grandmother. Amaya kept in regular contact with her daughter
through AA.'s maternal grandmother and sent money and
clothes for A.A. A.A. recalls poor treatment from her
father-alleging both emotional and physical abuse.
A.A. was 12 years old, she moved to the United States to
avoid the harsh realities of her life in El Salvador. Since
February 2017, A.A. has lived with her mother, stepfather,
and two half siblings in Las Vegas. A.A. does not want to
return to El Salvador. In December 2017, Amaya petitioned for
sole physical custody of A.A. The district court entered a
default against the nonresponsive Guerrero Rivera, granted
joint legal custody to both parties and sole physical custody
to Amaya, and ordered Guerrero Rivera to pay child support at
$100 per month.
the district court's default against Guerrero Rivera but
before a written order was entered, Amaya filed a motion for
SIJ predicate findings. The district court declined to hold a
hearing and denied Amaya's request. The district court
concluded that it did not appoint Amaya to have custody over
A.A. by granting Amaya's petition for custody and that
Amaya did not prove that A.A. was unable to reunify with both
parents, rather than with just her father. Presumably
because the district court concluded Amaya did not satisfy
these first two predicate SIJ findings, it did not reach the
third. Amaya then filed a motion for reconsideration, which
the district court also denied without a hearing.
law provides a pathway for undocumented juveniles residing in
the United States to acquire lawful permanent residency by
obtaining SIJ status under 8 U.S.C. § 1101(a)(27)(J).
See 8 C.F.R. § 204.11 (2018). Obtaining SIJ
status is a two-step process implicating both state and
federal law: first, the applicant must go to state court to
obtain a juvenile court order issuing predicate findings,
only after such findings are made can the applicant petition
the United States Citizenship and Immigration Services
(USCIS) for SIJ status. See Recinos v. Escobar, 46
N.E.3d 60, 64-65 (Mass. 2016). The state trial court does not
determine whether a petitioner qualifies for SIJ status, but
rather provides an evidentiary record for USCIS to review in
considering an applicant's petition. See Benitez v.
Doe, 193 A.3d 134, 138-39 (D.C. 2018).
Nevada Legislature enacted NRS 3.2203 in May 2017 to comport
with federal law and codify the juvenile courts' existing
authority to issue predicate findings for purposes of 8
U.S.C. § 1101(a)(27)(J). See 2017 Nev. Stat.,
ch. 212, Legislative Counsel's Digest, at 1146-47;
Hearing on A.B. 142 Before the Assembly Judiciary Comm., 79th
Leg. (Nev., March 8, 2017) (statement of Assemblyman Edgar
Flores). Under the SIJ statutes, for an undocumented juvenile
to be eligible to petition the USCIS, the state court's
predicate findings must establish that (1) the juvenile is
dependent on a juvenile court, the juvenile has been placed
under the custody of a state agency or department, or the
juvenile has been placed under the custody of an individual
appointed by the court (dependency or custody prong); (2) due
to abandonment, abuse, neglect, or some comparable basis
under state law, the juvenile's reunification with one or
both parents is not viable (reunification prong); and (3) it
is not in the juvenile's best interest to be returned to
the country of the juvenile's origin (best interest
prong). See 8 U.S.C. § 1101(a)(27)(J); NRS 3.2203(3). We
review the interpretation of these statutes de novo. Infl
Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008).
child custody order satisfies the dependency or custody prong