AMAYA VS. GUERRERO RIVERA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed de novo the interpretation of 8 U.S.C. § 1101(a)(27)(J) and NRS 3.2203, citing Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). The opinion describes SIJ adjudication as a two-step process: a state "juvenile court" (as defined in 8 C.F.R. § 204.11(a)) issues predicate findings that are not themselves a determination of immigration status but provide an evidentiary record for USCIS, citing Recinos v. Escobar, 46 N.E.3d 60, 64-65 (Mass. 2016), and Benitez v. Doe, 193 A.3d 134, 138-39 (D.C. 2018). The three predicate findings under 8 U.S.C. § 1101(a)(27)(J) and NRS 3.2203(3) are: (1) the dependency or custody prong; (2) the reunification prong; and (3) the best-interest prong. On the dependency or custody prong, the court held that an order granting physical custody under NRS Chapter 125C constitutes a court order placing the child "under the custody of . . . a person appointed by the court" within the meaning of NRS 3.2203(3)(a). The court relied on NRS 125A.045(1)'s definition of a "[c]hild custody determination" as including an order determining a child's physical custody. The court rejected the dissent's negative-implication argument by reasoning that district courts conducting NRS Chapter 125C proceedings already have jurisdiction to make findings of the type required for SIJ predicate findings, citing NRS 125C.003, NRS 125C.003(3), NRS 125C.0035(4)(j), and NRS 125C.0035(4). The majority invoked Landreth v. Malik, 127 Nev. 175, 187, 251 P.3d 163, 171 (2011), for the proposition that the family court has jurisdiction to resolve issues necessary to matters properly before it, and id. at 180, 251 P.3d at 166-67, for the proposition that the Legislature cannot limit a district court judge's constitutional powers. The court collected supporting authority from other jurisdictions: Simbaina v. Bunay, 109 A.3d 191, 201 (Md. Ct. Spec. App. 2015); De Guardado v. Guardado Menjivar, 901 N.W.2d 243, 247-48 (Minn. Ct. App. 2017); and In re Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 721 (App. Div. 2013). On the reunification prong, the court applied plain-language analysis to "one or both of [the juvenile's] parents" and held the disjunctive "or" allows the prong to be satisfied where reunification with only one parent is not viable due to abandonment, abuse, neglect, or some comparable basis under state law. The court distinguished its prior unpublished order in In re Guardianship of D.S.M., Docket No. 72820 (Order of Affirmance, March 15, 2018), explaining that there the appellant had not shown reunification was not viable with even one parent. The court joined the majority approach, citing Eddie E. v. Superior Court, 183 Cal. Rptr. 3d 773, 779-80 (Ct. App. 2015); E.P.L. v. J.L.-A., 190 A.3d 1002, 1007 (D.C. 2018); In re Estate of Nina L., 41 N.E.3d 930, 938 (Ill. App. Ct. 2015); and Marcelina M.-G., 973 N.Y.S.2d at 721-24. The court also invoked the USCIS Policy Manual. Because the district court did not reach the best-interest prong, the court remanded for further adjudication consistent with the opinion. Justice Silver dissented, applying the negative-implication canon (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107-11 (2012)) and the principle of plain-meaning interpretation from Davis v. Beling, 128 Nev. 301, 311, 278 P.3d 501, 508-09 (2012). The dissent reasoned that NRS 3.2203(2) lists chapters 62B, 125, 159, 159A, and 432B, and omits NRS Chapter 125C; the dissent contrasted NRS 3.223, which expressly includes Chapter 125C in the family court's jurisdiction. Citing State v. Plunkett, 134 Nev. Adv. Op. 88, 429 P.3d 936, 938-39 (2018), and In re Marisol N.H., 979 N.Y.S.2d 643, 645-48 (App. Div. 2014), the dissent would have affirmed and noted that Amaya could refile under NRS Chapter 159A.

In plain language

This case is about how an undocumented child living in Nevada can ask a state court to make the findings she needs to apply to the federal government for "Special Immigrant Juvenile" (SIJ) status -- a category of immigration relief for children who cannot safely return to a parent in their home country. To apply, the child first needs a state court to make three specific findings. Only after those findings are made can the child go to the U.S. Citizenship and Immigration Services and ask for SIJ status itself. The state judge does not decide whether the child gets SIJ status; the judge just makes findings that the federal agency will later review. A.A. was born in El Salvador in 2004. Her mother, Amaya, came to the United States when A.A. was two. A.A. lived with her father until, according to the opinion, he "kicked her out" when she was ten, after which she lived with her grandmother. A.A. says her father emotionally and physically abused her. At twelve, A.A. moved to Las Vegas to live with her mother, stepfather, and half-siblings. She does not want to return to El Salvador. Amaya filed a custody case in district court. The father did not respond, so the court entered a default and gave Amaya sole physical custody and both parents joint legal custody. Amaya then asked the same court to make the three SIJ findings. The district court refused. It said: (1) granting Amaya custody was not the same as "appointing" her to have custody, and (2) Amaya had not shown that A.A. could not reunify with both parents -- only with her father. The Nevada Supreme Court reversed. It held, first, that when a Nevada district court grants a parent physical custody of a child, that order does place the child under the custody of "a person appointed by the court" for purposes of the SIJ findings. Second, the court held that the SIJ reunification requirement is satisfied when reunification with just one parent is not viable due to abuse, abandonment, or neglect -- the law does not require that reunification with both parents be impossible. The court emphasized that the federal statute uses the word "or" in "one or both" parents, and the court joined the majority of states that read it the same way. Because the district court got both points wrong and never reached the third finding (whether returning A.A. to El Salvador is in her best interest), the Supreme Court sent the case back for the district court to redo the analysis. One justice dissented, arguing that the Nevada statute authorizing district courts to make these SIJ findings, NRS 3.2203, lists the specific kinds of cases it applies to -- and Amaya's custody case (filed under NRS Chapter 125C) is not on that list. In the dissent's view, Amaya should have filed for guardianship under NRS Chapter 159A instead, and could still do so.