MATTER OF S-Z-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 1, 2016

APPEAL OF HOUSTON, TEXAS FIELD OFFICE DECISION

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

The Petitioner 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)(1)(G). The SIJ classification protects foreign children in the United States who have been abused, neglected, or abandoned, and found dependent on a juvenile court in the United States.

The Field Office Director, Houston, Texas, denied the petition. The Director concluded that the court order entered in this case is not a qualifying juvenile court dependency or custody order under the Act, and the Petitioner's request for SIJ classification does not merit the consent of U.S. Citizenship and Immigration Services (USCIS) because the record of proceedings lacks sufficient evidence of a reasonable factual basis for the court order.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief. The Petitioner claims that the petition should be approved because the court order is a qualifying juvenile court dependency or custody order, the record of proceedings contains sufficient evidence of a reasonable factual basis for the court order, and the Petitioner's request for SIJ classification is bona fide and merits the consent ofUSCIS.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 204(a)(l)(G) of the Act allows an individual to self-petition for classification as an SIJ. Section 101(a)(27)(J) ofthe Act defines an SIJ as:

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

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Matter of S-Z-

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; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that-

(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act[.]

Subsection 101(a)(27)(J)(iii) of the Act requires the Secretary of the Department of Homeland Security, through USCIS, to consent to the grant of SIJ classification. This consent determination is an acknowledgement that the request for SIJ classification is bona fide, which means that a juvenile court order and the best-interest determination were sought primarily to gain relief from parental abuse, neglect, abandonment, or a similar basis under state law, and not solely or primarily to obtain an immigration benefit. 1

The burden of proof is on a petitiOner to demonstrate eligibility for SIJ classification by a preponderance ofthe evidence. See Matter ofChawathe, 25 I&N Dec. 369 (AAO 2010).

II. RELEVANT FACTS AND PROCEDURAL HISTORY

The record reflects that the Petitioner was born in China on He entered the United States as a nonimmigrant visitor at the age of 13 and changed to nonimmigrant student status. On

2014, when the Petitioner was years old, the Family District Court of the Texas (district court), issued temporary orders on the Petitioner's behalf

in an adult adoption proceeding by J-D-2 and T-D- on the Petitioner's behalf (court order).3 On

1 H.R. Rep. No. 105-405 at 130 (1997); see also Memorandum from Donald Neufeld, Acting Associate Director for Domestic Operations, USCIS, HQ 70/8.5, Trafficking Victims Protection Reauthorization Act of 2008; Special Immigrant Juvenile Status Provisions 3 (Mar. 24, 2009), https://www.uscis.gov/laws/policy-memoranda. 2 We use initials to protect the identities of the individuals named in the court order. 3 Pursuant to section 162.501 ofthe TexasFamily Code, a district court "may grant the petition of an adult residing in this state to adopt another adult" and, according to section 162.502, a suit to adopt an adult may be filed in a district

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2016, the district court dismissed the adoption proceeding for "want of prosecution, after two hearings scheduled in and 2014 did not take place. Accordingly, there is no final adoption order in the record of proceedings.

The Petitioner filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (SIJ petition), on April 28, 2014. He included the court order, as required by section 101(a)(27)(J) of the Act. The Director issued a request for evidence (RFE) and, in response to the RFE, the Petitioner submitted additional evidence. The Director then issued a notice of intent to deny (NOID) and the Petitioner responded to the NOID with a brief. The Director denied the Form I-360 and the Petitioner timely appealed.

III. ANALYSIS

In order to be eligible for SIJ classification, the Petitioner must establish that he was placed in the custody of J-D- and T-D- in accordance with state law while he was under the jurisdiction of the juvenile court. See 8 C.F.R. § 204.11(c)(3). A juvenile court is a court "having jurisdiction under state law to make judicial determinations about the custody and care ofjuveniles (emphasis added)." 8 C.F.R. § 204.11(a).

In the court order, the district court found that "it has jurisdiction under Texas law to make judicial determinations about the custody and care of juveniles within the meaning of 8 U.S.C. § 1101(a)(27)(J) and 8 C.R.F. [sic]§ 204.11(c)." The district court, however, did not cite the section(s) of Texas law to demonstrate its authority to make judicial determinations about the care and custody of juveniles during adult adoption proceedings under section 162.501 of the Texas Family Code. The district court cited only to the Immigration and Nationality Act and a section of the Department of Homeland Security (DHS) regulations; however, there are no provisions within either of these authorities that allow or direct courts to rely upon immigration law· for their jurisdiction or otherwise deviate from reliance upon state law and procedure in issuing orders. As the district court did not assert its authority under Texas state law to issue its SIJ-related determinations, it was not a valid order when the Petitioner filed his SIJ petition. See 6 USCIS Policy Manual J.2(D)(4)(providing that "[t]he ... court order must have been properly issued under state law to be valid for the purposes of establishing eligibility for SIJ classification, which includes

· . ..., the need for the . . . court to follow its state laws on jurisdiction)."

On appeal, the Petitioner cites to 8 C.F .R. § 204.11 (c)( 6) for his contention that the title of the proceedings under which he obtained his court order (adult adoption) is irrelevant b~cause he must only demonstrate that he is [t]he subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court." The Petitioner's argument is in error, however, because he not only misstates this regulation, which pertains to the "best interest" determination at section 101(a)(27)(J)(ii) of the Act,4 but also does not recognize that this regulation emphasizes that

court. 4 The regulation at 8 C.F.R. § 204. 11 (c)(6) states, in pertinent part: " Has been the subject of judicial proceedings or

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the proceedings where the best interest determination is made must be authorized or recognized "by the juvenile court (emphasis added)." Here, the district court was not acting as a juvenile court when it issued its court order because it did not, through the adult adoption proceedings, have authority to decide issues ofthe Petitioner's care and custody as a juvenile.

The Petitioner also cites the settlement agreement in Perez-Olano v. Holder, No. CV 05-3604 (C.D. Cal. 20 15) in support of his arguments, but his reliance on the settlement agreement is also misplaced. Pursuant to the Stipulation enforcing the Perez-Olano settlement agreement, USCIS will not deny, revoke, or terminate a SIJ petition or an SIJ-based Form 1-485 if, at the time of filing the SJJ petition: (1) the petitioner is or was under 21 years of age, unmarried, and otherwise eligible; and (2) the petitioner either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing (emphasis added). 5 The Perez­Olano settlement agreement and Stipulation reinforce the initial evidentiary requirement that the order supporting the SIJ petition must have been valid at the time of filing. Here, the Petitioner did not have a valid court order because it was not issued by a juvenile court.

In addition, although not raised by the Director, even if the order had been issued by a "juvenile court," it was not valid when filed because the Petitioner's custodial placement was temporary and, thus, there was no determination that parental reunification was not possible. See 6 USCIS Policy Manual J.2(D)(l)(providing that "[c]ourt-ordered dependency or custodial placements that are intended to be temporary generally do not qualify for the purpose of establishing eligibility for SIJ classification"). We note that further hearings were scheduled before the court in and

2014; however, they never took place and the absence of further proceedings resulted in the adoption being dismissed for want of prosecution. Accordingly, the court did not ultimately find that parental reunification was not viable due to abuse, neglect, abandonment, or a similar basis under Texas law. See section 101(a)(27)(J)(i) ofthe Act.

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In sum, the Petitioner does not establish his eligibility for SIJ classification because the order submitted with his SIJ petition was not valid because: (1) it was not issued by a "juvenile court" as that term is defined at 8 C.F.R. § 204.11(a); and (2) even ifthe district court was acting as a juvenile court through the adult adoption proceedings, the court did not determine that parental reunification was not possible because it placed the Petitioner in the temporary custody of 1-D- and T -D- and ultimately dismissed the adoption proceedings for "want of prosecution." Accordingly, the SIJ petition is not approvable and the Petitioner remains ineligible for SIJ classification on these bases alone.

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[.]" 5 See also USC IS Policy Memorandum PM-602-0 117, Updated Implementation of the Special Immigrant Juvenile Perez-0/ano Settlement Agreement 4 (June 25, 20 15), https://www.uscis.gov/laws/policy-memoranda.

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Although the Director indicated in the denial that USC IS' consent to a grant of SIJ classification is not warranted, we do not reach the consent function as described under section 101(a)(27)(J)(iii) of the Act because the juvenile court order is deficient as previously discussed.

IV. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofS-Z-, ID# 69033 0AAO Nov. 1, 2016)

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