MATTER OF R-I-G-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 2, 2018

BOSTON, MASSACHUSETTS FIELD OFFICE DECISION

PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner was born in El Salvador in 1993, and entered the United States when she was 19 years of age. A probate and family court in Massachusetts entered an order stating that the Petitioner's father had abused, neglected, and abandoned' her, and declared her dependent on the court. Based on the court's order, the Petitioner now seeks classification as a special immigrant juvenile (SIJ). See Immigration and Nationality Act (the Act) sections 101(a)(27)(J) and 204(a)(l)(G), 8 U.S.C. §§ 1101(a)(27)(J) and 1154(a)(l)(G). SIJ classification protects foreign-born children in the United States who cannot reunify with one or both of their parents because of abuse, neglect, abandonment, or a similar basis under state law.

The Director of the Boston, Massachusetts Field Office initially approved the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition). The Director subsequently revoked approval of the SIJ petition, concluding that the Petitioner did not submit a qualifying juvenile court order when her SIJ petition was filed.

On appeal, the Petitioner submits an amended dependency order, entered nunc pro tunc prior to the filing date of her SIJ petition, and asserts that the order was in effect at the time she filed her petition. She further asserts that U.S. Citizenship and Immigration Services (USCIS) policy allows such an order to be submitted as evidence after the filing of an SIJ petition.

Upon de novo review, we will dismiss the appeal.

I. LAW

To establish eligibility for SIJ classification, petitioners must show that they are unmarried, under 21 years of age, and have been subject to a state juvenile court order determining that the petitioners cannot reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar basis under state law. Section 10l(a)(27)(J) of the Act; 8 C.F.R. § 204.ll(c). A petitioner must have been declared dependent upon the juvenile court or the juvenile court must have placed the petitioner in the custody of a state agency or a guardian appointed by the state or the juvenile court. Section 101(a)(27)(J)(i) ofthe Act. The record must also contain a judicial or administrative determination that

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Matter of R-1-G-S-

it is not in the petitioner's best interest to return to his or her or his or her parents' country of nationality or last habitual residence. Section 101 ( a)(27)(J)(ii) of the Act.

USCIS may revoke approval of an SIJ petition at any time for good and sufficient cause. Section 205 of the Act, 8 U.S.C. § 1155. We exercise de novo review of appeals from revocations of approved immigrant petitions. Matter (?f Christo's Inc., 26 I&N Dec. 53 7 (AAO 20 15). Petitioners bear the burden of proof to demonstrate their eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010).

II. ANALYSIS

The Petitioner filed her SIJ petition on November 17, 2014, without the requisite juvenile court order. In the cover letter with her filing she wrote, "[t]he order on which the I-360 is based in [sic] pending in the Probate and Family Court, Massachusetts .... As soon as the Court's order is issued it will be submitted in support of and for inclusion with this application." In

2015, the Petitioner submitted an order from the probate and family court, entered on 2015, declaring that she "was dependent upon this Court's jurisdiction in relation to her petition in equity at the time of tiling on 2014, and remains dependent on this Court relative to these proceedings." On appeal, the Petitioner submits a nunc pro tunc order from the probate and family court, dated 2017, amending the effective date of the dependency order to

2014.

A. The Petitioner Did Not Submit Required Initial Evidence

SIJ petitioners must be subject to a qualifying juvenile court order at the time they file the SIJ petition and a copy of the juvenile court order must be submitted when the SIJ petition is filed. 8 C.F.R. § 204.11(d)(2); see 8 C.F.R. § 103.2(a)(l),(b)(l) (providing respectively, that the form instructions are incorporated into the applicable filing regulations, and that the benefit request must be filed with all initial evidence required by applicable regulations); USCIS, Instructionsfor Form 1-360, https://www.uscis.gov/i-360 (last viewed January 2, 2018) (requiring SIJ petitioners to submit a copy of the court order or administrative documents that establish their eligibility for SIJ classification.). Here, the Petitioner filed her SIJ Petition on November 17, 2014, without a juvenile court order. She indicated in the cover letter to her filing that her case was still pending before the

Massachusetts Probate and Family Court. During her subsequent interview at the Boston Field Office, an immigration officer requested that she submit a certified copy of the findings of fact and rulings oflaw from the court. The Petitioner responded to the request for evidence (RFE) with a copy of a court order, entered on 2015, over five months after her SIJ petition was filed, which declared her dependent on the probate and family court.

In revoking approval of the SIJ petition, the Director concluded that the SIJ petition was approved in error because the Petitioner did not submit a juvenile court order as initial evidence. The Director further concluded that because the probate and family court dependency order the Petitioner submitted in response to the RFE was issued nearly six months after the SIJ petition filing date, it was not in effect at the time the Petitioner filed her petition and therefore she was not eligible for SIJ classification at the time of filing.

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Matter of R-1-G-S-

On appeal, the Petitioner provides an amended dependency order from the probate and family court issued in 2017, which states that it is entered nunc pro tunc to 2014, which was ten days prior to the filing of the Petitioner's SIJ petition, when the Petitioner was 20 years of age.' However, at the time of filing the SIJ petition, the court order was not in existence, the Petitioner was not subject to the order, and it was not submitted with her SIJ petition, as the regulations at 8 C.F.R. §§ 103.2(b)(l), 204.1l(d)(2) require. See 6 USCIS Policy Manual, J.3 https://www.uscis.gov/policymanual (SIJ petition must be submitted with copies of the juvenile court or administrative orders that establish the petitioner's eligibility).

The Petitioner asserts that this evidence shows that the dependency order was legally in effect at the time she filed the petition. She further asserts that pursuant to a USCIS policy memorandum on the issuance of RFEs (RFE/NOID memorandum)2 and the USCIS Policy Manual chapter on SIJ petitions, immigration officers are encouraged to issue RFEs for initial evidence to establish a petitioner's eligibility for SJJ classification, and her submission of the dependency order after the filing ofher SIJ petition was within these guidelines.

Although the nunc pro tunc order shows that the finding of dependency was in effect prior to the filing of the Petitioner's SIJ petition, she remains ineligible for SIJ classification because she did not submit a juvenile court order as initial evidence at the time of filing of her SIJ petition, as required. As discussed below, this conclusion is consistent with USCIS' RFE/NOID memorandum as well as the policy manual chapter on SIJ classification3 that the Petitioner references on appeal.

The RFE/NOID memorandum provides that if not all of the required initial evidence has been submitted, the officer should issue an RFE unless he or she determines there is no possibility that additional evidence available to the individual might cure the deficiency.4 Here, the RFE could not cure the deficiency because the court order was not issued and therefore not in existence at the time the Petitioner filed the SIJ petition. As the Petitioner stated in her cover letter, at the time she filed for SIJ classification, her dependency proceedings were still pending before the Massachusetts Probate and Family Court. Therefore, she was not subject to a qualifying juvenile court order, did not have the requisite initial evidence, and could not satisfy all eligibility requirements. See 8 C.F.R. § 103.2(b)(l)(eligibility requirements must be established at filing and continue through adjudication).

1 Although the Petitioner was no longer a child under Massachusetts law at the time the probate and family court orders

were issued, the Massachusetts Supreme Court has held that probate and family courts have jurisdiction under their equity powers to make SIJ predicate findings for immigrant youth aged 18-21 and that such youth are dependent upon those courts for their ability to obtain SIJ status. Recinos v. Escobar, 4 73 Mass. 734, 741 (Mass. 20 16). Because the Petitioner did not submit a qualifying state court order with her SIJ petition, we do not reach the issue of whether the probate and family court was acting as a juvenile court and whether the court's orders contain a qualifYing declaration of juvenile dependency under section I 0 I ( a)(27)(J)(i) of the Act. 2

USCIS Policy Memorandum PM-602-0085, Requests for Evidence and Notices of Intent to Deny (June 3, 20 13), https: / /www. uscis.gov /sites/defau lt/fi les/U SCI S/Laws/Memoranda/20 13/ J une%2020 13/Requests%20for%20 Evidence% 20%28Final%29. pdf. 3

6 USCJS Policy Manual, Part J, https: //www.uscis .gov/policymanual.

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The USCIS SIJ policy manual states that a juvenile court order must be submitted to establish an SIJ petitioner's eligibility. 6 USCIS Policy Manual, supra, at 1.3. Although the Policy Manual also states that officers may issue an RFE or NOID where evidence is insufficient to establish eligibility, none of the specific examples provided discuss a scenario where a petitioner did not include the juvenile court order as initial evidence. !d. at J.4(D). Rather, all the examples are based on the premise that a juvenile court order is already contained in the record and an RFE or NOID would be requested for additional clarification of that order. Here, the amended court order was not issued until after the filing of the SIJ petition. The Petitioner does not cite to any authority that would allow us to waive the requirement under the regulations at 8 C.F.R. §§ 103.2(a)(l),(b)(l), 204.11(d)(2) that she was subject to a qualifying juvenile court order which was submitted upon filing her SIJ petition. See United States v. Nixon, 418 U.S. 683,695-96 (1974) (as long as regulations remain in force, they are binding on government officials). Accordingly, the Director had good and sufficient cause to revoke approval of the Petitioner's SIJ petition on this basis.

B. Qualifying Determination that Parental Reunification is Not Viable under State Law

As an additional matter, we find that the probate and family court's order lacks a qualifying determination that the Petitioner cannot reunify with her father "due to abuse, neglect, abandonment, or a similar basis found under State law,", as required by section 101(a)(27)(J)(i) of the Act. The plain language of the statute indicates that state law governs the determination that parental reunification is not viable. Accordingly, the juvenile court order should show that this determination was made under state law and the order should not just cite federal immigration law and regulations. 6 USCIS Policy Manual, supra, at J.3(A)(2). Here, the court order states that the Petitioner "was physically abused, abandoned and neglected by her father,'' but it does not cite to any provisions of Massachusetts child welfare law under which those conclusions were made. Accordingly, even if the Petitioner had initially filed the court dependency order as required, we would still find that she is not eligible for SIJ classification because the court order does not contain a qualifying judicial determination on the non-viability of parental reunification under state law.

III. CONCLUSION

Although the nunc pro tunc order declared the Petitioner to be dependent upon the state court before the Petitioner filed her SIJ petition, the Petitioner was not subject to any qualifying juvenile court order in existence at the time her SIJ petition was filed and a copy of such an order was not initially filed with her petition as required. Additionally, the court order is deficient because it lacks a qualifying judicial determination that parental reunification is not viable due to abuse, neglect abandonment, or a similar basis under state law. Consequently, the Petitioner is not eligible for SIJ classification.

ORDER: The appeal is dismissed.

Cite as Matter of R-1-G-S-. ID# 737618 (AAO Jan. 2, 2018)

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