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Amaya v. Guerrero Rivera

Supreme Court of Nevada

July 3, 2019

MILTON ORLANDO GUERRERO RIVERA, Respondent. 135 Nev.Adv.Op. 27

          Appeal from a district court order establishing child custody. Eighth Judicial District Court, Clark County; Mathew Harter, Judge.

          Law Offices of Martin Hart, LLC, and Alissa A. Cooley, Las Vegas, for Appellant.

          Milton Orlando Guerrero Rivera, in Pro Se.



          STIGLICH, J.

         Although 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.


         Amaya gave birth to A.A. in El Salvador in November 2004. A, A.'s father, respondent Milton Orlando Guerrero Rivera, [1] and 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.

         When 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.

         Following 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.[2] 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.


         Federal 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, [3] and 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).

         The 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).

         A child custody order satisfies the dependency or custody prong ...

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