THIRD DIVISION September 16, 2015 No. 1-15-2223

In re ESTATE OF NINA L., a Minor, by Terry Howerton ) Appeal from the and Richard Aleong, Coguardians, ) Circuit Court of ) Cook County Petitioners-Appellants. ) ) No.

) ) Honorable ) Susan Kennedy Sullivan, ) Judge Presiding.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

¶1 Petitioners, Terry Howerton and Richard Aleong, were appointed by the circuit

court of Cook County to act as coguardians of Nina L., a nonrelative minor who was born

in Taiwan and came to this country with her mother when she was six years old. At the

time the petition was filed, Nina was 17 years old; she will turn 18 on September 23,

2015. Following their appointment, petitioners filed a motion requesting the trial court to

make certain findings that would enable Nina to apply for Special Immigrant Juvenile

(SIJ) status, an application that, if granted, could lead to permanent resident status and,

ultimately, citizenship. The court denied the motion and declined to make any findings, a

ruling from which petitioners appealed.

¶2 On August 25, 2015, we entered an order vacating the trial court's order and,

based on our de novo review of petitioner's brief and supporting record, made findings

that (i) Nina's reunification with one or both of her parents is not viable due to abuse, No. 1-15-2223

neglect or abandonment and (ii) return to Taiwan is not in Nina's best interest. We now

set forth the basis for our ruling.

¶3 BACKGROUND

¶4 We draw the facts from the affidavits and other materials filed in the trial court.

Nina was born in Taiwan in 1997 and for the past eight years has had virtually no contact

with her father, a native of Taiwan. Nina's mother, Maria L., a native of the Philippines,

came to this country in 2003 on a student visa. After Maria's visa expired, Maria and

Nina remained here and thus are considered undocumented immigrants and are subject to

deportation.

¶5 Until September 2014, Nina lived with her mother, most recently in Lincolnwood,

Illinois. She attends high school in the community. In September 2014, Maria left for

California without making any arrangements for Nina's care and left Nina alone in their

apartment.

¶6 Petitioners are a couple who were married in 2012. They reside with two of

Howerton's nieces who came to live with them after their mother, Howerton's sister, died.

Howerton has adopted the younger girl and has been appointed to act as guardian of the

older girl. The older girl and Nina have been friends for several years and attend the

same high school. Nina has also accompanied petitioners and the two girls on family

vacations. When petitioners learned of Nina's situation shortly after her mother left, they

insisted that Nina come to stay with them, and she has resided with them ever since.

¶7 After several months, petitioners decided to seek court appointment as Nina's

guardians in order to enable them to more formally arrange for Nina's care, including

placing her on their health insurance and having the authority to make decisions for her.

2 No. 1-15-2223

Petitioners initiated guardianship proceedings on March 4, 2015. Maria was initially

served by publication, but after the court was advised that she had returned to Illinois and

Nina had been in contact with her, petitioners were directed to provide her proper notice.

Maria executed a consent to guardianship on June 18, 2015, in which she represented that

she was "unable and unwilling" to care for her daughter. The notary's attestation on the

consent reflects that Maria appeared in Illinois to execute it.

¶8 The court also appointed a guardian ad litem (GAL) for Nina. The GAL filed a

report with the court summarizing the results of his investigation into the guardianship

petition. In addition to the circumstances of Nina's situation, the GAL reported that

Maria had returned from California and was now living "on the north side of Chicago."

He further summarized a telephone conversation he had on July 9, 2015, with a person

identifying herself as Maria. This individual confirmed that she had left Nina alone while

she traveled to California and that she is "grateful" that petitioners have agreed to act as

her daughter's guardians but had no prior arrangement with them to do so. She believed

the guardianship was in her daughter's best interest, her consent to the guardianship was

voluntary, she did not expect Nina to return to live with her, and she was unwilling to

come to court.

¶9 According to petitioners and the GAL, none of the parties involved was aware at

the outset of the possible immigration benefits to Nina resulting from the guardianship

and that was not the motivation for Maria's "abandonment" of her daughter or petitioners'

efforts to be named her guardians.

3 No. 1-15-2223

¶ 10 Petitioners were appointed to act as Nina's coguardians on July 14, 2015. On July

29, 2015, petitioners filed their motion seeking SIJ findings. In a supplemental report,

Nina's GAL supported the motion and urged the court to make the requested findings.

¶ 11 After a hearing, the court entered its August 7, 2015 order. The order recites that

petitioners requested "this Court to 'find that reunification with one or both of [Nina L.'s]

parents is not viable due to abuse, neglect, or abandonment or similar basis found under

state law.' " The order further recites that "[t]here has been no finding by this court that

reunification of the minor is not viable" and otherwise denied the petition. The court did

not address whether return to Taiwan was in Nina's best interest. Petitioners filed their

notice of appeal on August 12, 2015. There is no party opposing petitioners in this court.

¶ 12 ANALYSIS

¶ 13 We must first address whether we have jurisdiction over this appeal. The circuit

court's order denying petitioners' motion for SIJ findings is not a "final judgment" in the

traditional sense. Generally, in order to be considered "final" for purposes of appeal, an

order must dispose of the rights of the parties either on the entire case or on some definite

and separate part of the controversy. See Brentine v. DaimlerChrysler Corp.,

(2005); In re Marriage of Gutman,

(2008). In most

contexts, the denial of a motion does not satisfy this standard. See, e.g., Cabinet Service

Tile, Inc. v. Schroeder,

(1993) (denial of motion to dismiss

was not a final and appealable order); Resurgence Financial, LLC v. Kelly,

(2007) (denial of summary judgment motion was not final and appealable,

because " '[w]hen an order leaves a cause still pending and undecided, it is not a final

order' " (quoting Austin's Rack, Inc. v. Gordon & Glickson, P.C.,

,

4 No. 1-15-2223

502 (1986))). But at least one court considering issues pertaining to SIJ predicate

findings has observed that the denial of the juvenile's motion effectively terminates the

juvenile's ability to pursue this avenue of immigration relief. See In re Interest of Luis

G.,

(Neb. Ct. App. 2009). In Luis G., the trial court initially

made the requested SIJ findings, but later vacated them, an order from which the minors

appealed.

Concluding it had jurisdiction over the appeal, the court stated:

"[W]ithout the order of eligibility, including the required findings from the state

court, [the minors] would be barred from proceeding in the federal system with a

valid application for special immigrant juvenile status and would face deportation

to Guatemala. The order vacating that eligibility determination effectively

terminates the application for legal permanent residence, clearly affecting a

substantial right of both [minors]."

We agree with this reasoning and therefore conclude we have jurisdiction to address the

merits of petitioners' appeal.

¶ 14 No reported decision in Illinois addresses the issues presented here. State courts

in a number of other jurisdictions have addressed issues relating to requests for predicate

findings required for SIJ applications and so we examine those authorities for guidance.

See Rhone v. First American Title Insurance Co.,

(2010)

("Although the decisions of foreign courts are not binding, 'the use of foreign decisions as

persuasive authority is appropriate where Illinois authority on point is lacking or

absent.' " (quoting Carroll v. Curry,

(2009))). We begin by

discussing the history of SIJ status under federal law.

5 No. 1-15-2223

¶ 15 The Immigration and Nationality Act of 1990 (Act) first established SIJ status as

a path for resident immigrant children to achieve permanent residency in the United

States. In re Israel O.,

(Cal. Ct. App. 2015) (discussing

history of SIJ status); see

(a)(27)(J) (Supp. I 2014) (current version of

statute). The provisions for SIJ status, as applied to minors, were designed "to protect

abused, neglected, or abandoned children, who, with their families, illegally entered the

United States." Yeboah v. United States Department of Justice,

(3d

Cir. 2003). These provisions also apply to children who legally entered the country, but

who have fallen out of status and have elected to remain here. See In re Mohamed B.,

(N.Y. App. Div. 2011) (minor who overstayed visitor's visa entitled to

pursue SIJ findings).

¶ 16 The criteria for eligibility for SIJ status have changed over time. As initially

drafted, a literal reading of the statute permitted juveniles admitted to the United States as

visiting students to apply for SIJ status. See Yeboah,

. In 1997, the

statute was amended to require that the juvenile be committed to or placed under the

custody of a state agency or department and be found eligible for long-term foster care

due to parental abuse, neglect or abandonment.

. The requirement of

eligibility for long-term foster care was modified in 2008 and, as presently formulated,

the statute now requires that a state or juvenile court place the minor in the custody of

either (i) a state agency or department or (ii) an individual or entity appointed by the

court and that the dependency determination be due to a finding that reunification with

one or both parents is not viable due to abuse, neglect or abandonment.

(a)(27)(J)(i) (Supp. I 2014). Separately, the court must also find that return to the

6 No. 1-15-2223

minor's country of nationality is not in the minor's best interest.

(a)(27)(J)(ii) (Supp. I 2014).

¶ 17 For SIJ purposes, the "appointment of a guardian constitutes the necessary

declaration of dependency on the juvenile court." (Internal quotation marks omitted.) In

the Matter of Trudy-Ann W. v. Joan W.,

(N.Y. App. Div. 2010);

see also In re Minor Children J.E. & J.C.,

(N.J. Super. Ct. Ch. Div.

2013) ("As a result of the removal of the foster care requirement, state courts may now

make SIJ[] [status] findings whenever jurisdiction can be exercised under state law to

make care and custody determinations, and are no longer confined to child protection

proceedings alone."). " 'The SIJ statute affirms the institutional competence of state

courts as the appropriate forum for child welfare determinations regarding abuse, neglect,

or abandonment, and a child's best interests.' " In re Mario S.,

, 849

(N.Y. Fam. Ct. 2012) (quoting In re J.J.X.C.,

(Ga. Ct. App. 2012)).

¶ 18 Implementing regulations require that an application for SIJ status attach an order

from a state juvenile court containing the findings as set forth in the statute.

(b), (d)(2) (2014). Once an order containing the required findings is entered, the

juvenile may apply to the U.S. Department of Homeland Security, U.S. Citizenship and

Immigration Services (USCIS) for SIJ status. At the same time, the juvenile files an

application to become a lawful permanent resident. 3 Charles Gordon et al., Immigration

Law and Procedure § 35.09, at 35-46 to 35-47 (Matthew Bender rev. ed. 2015).

7 No. 1-15-2223

The SIJ application must be filed before the juvenile's 18th birthday. 1 Approval of an

application for SIJ status requires the consent of the Secretary of the Department of

Homeland Security acting through the District Director of USCIS, which is "an

acknowledgement that the request for SIJ classification is bona fide." (Internal quotation

marks omitted.) Id. at 35-40 to 35-41.

¶ 19 If the application is granted, the juvenile may become a lawful permanent resident

who, after five years, is eligible to become a United States citizen. See Zheng v. Pogash,

(S.D. Tex. 2006) (citing federal SIJ status petition guidelines).

Denial of SIJ status renders the applicant subject to deportation. Finally, SIJ status

benefits only the juvenile; a parent whose child is granted SIJ status may not obtain

immigration relief based on the child's status as a lawful permanent resident or United

States citizen.

(a)(27)(J)(iii)(II) (Supp. I 2014) ("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").

¶ 20 Against this background, we examine the decisions from various foreign

jurisdictions that have addressed issues pertaining to requests for SIJ predicate findings.

¶ 21 One theme that runs through several decisions is the state court's reluctance to

make the requested findings based on policy concerns. For example, in Leslie H. v.

1 But see Perez-Olano v. Holder, a case in which USCIS entered into a settlement agreement in a class action involving juveniles who filed for SIJ status on or after May 13, 2005. U.S. Citizenship and Immigration Services, Policy Memorandum (June 25, 2015), http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0625_Perez- Olano_Settlement_Agreement_PM_APPROVED.pdf. As part of the settlement, USCIS agreed to process SIJ applications for juveniles whose applications were denied, revoked or terminated based on the termination of the state dependency order due to the juvenile reaching the age of 18.

8 No. 1-15-2223

Superior Court,

(Cal. Ct. App. 2014), an immigrant minor was

adjudicated delinquent of assault and burglary after she and two friends attempted to steal

items from a liquor store. After her guilty plea, the minor was declared a ward of the

court and committed to a juvenile detention facility. She then applied to the court for the

necessary SIJ predicate findings. After a hearing at which evidence of the minor's abuse

and abandonment by her biological parents was presented, the court declined to make the

findings. The trial court concluded that Congress could not have intended to confer

immigration benefits on juveniles adjudicated delinquent of criminal offenses. Further,

the court determined that it was unable to find that (i) reunification was not viable

because it doubted the juvenile's credibility and (ii) return to Mexico was not in the

juvenile's best interest given her failure to attend school and criminal behavior while in

the United States. Reversing, the California Court of Appeal concluded that the trial

court had misapprehended its role in making the SIJ predicate findings:

"A state court's role in the SIJ process is not to determine worthy candidates for

citizenship, but simply to identify abused, neglected, or abandoned alien children

under its jurisdiction who cannot reunify with a parent or be safely returned in

their best interests to their home country." Id. at 737.

See also Mario S., 954 N.Y.S.2d at 852-53 ("The juvenile court need not determine ***

what the motivation of the juvenile in making application for the required findings might

be [citations]; whether allowing a particular child to remain in the United States might

someday pose some unknown threat to public safety [citation]; and whether the USCIS

*** may or may not grant a particular application for adjustment of status as a SIJ.").

9 No. 1-15-2223

¶ 22 Similarly, a court asked to make SIJ predicate findings need not discern a parent's

motivation in abandoning the child. In Eddie E. v. Superior Court,

(Cal. Ct. App. 2015), the court observed:

"Of course the SIJ statute was not designed to provide citizenship to petitioners

who are comfortably living with a loving, supportive parent. But it is USCIS's

role to determine whether the petitioner has applied for SIJ status primarily for the

purpose of obtaining relief from abuse, neglect, or abandonment, not the state

court's role."

In fact, in removal proceedings against a minor who sought SIJ status, the Board of

Immigration Appeals determined that she did not qualify given that although a state court

had ordered that her parents be removed as her guardians (by consent) and a family friend

be appointed as her guardian, the minor had not shown that reunification with her parents

was not viable due to abuse, neglect or abandonment. In re Blanca Rocio

Deleg-Vergara, No. A088 793 320,

, (BIA Oct. 29, 2010)

(unpublished decision).

¶ 23 There is a split among reported authorities on the issue of whether, when the

applicant shows that one parent has abused, neglected or abandoned the child, but the

other has not, the predicate of abuse, neglect or abandonment by "1 or both" parents has

been satisfied.

(a)(27)(J)(i) (Supp. I 2014). According to one line of

cases, if the minor has been abused, neglected or abandoned by one parent, but is living

with the other parent, an SIJ finding that reunification is not viable is not warranted. See

In re Erick M.,

, 644 (Neb. 2012) (minor adjudicated delinquent for

possession of alcohol and committed to treatment facility; although minor had no contact

10 No. 1-15-2223

with his father, he lived with his mother prior to the adjudication and wanted to return to

her; while court found minor's proposed construction of the statute was reasonable, it

nevertheless construed "1 or both" language as meaning that, depending on the minor's

circumstances, "either reunification with one parent is not feasible or reunification with

both parents is not feasible" (emphases in original)); H.S.P. v. J.K.,

(N.J. Super. Ct. App. Div. 2014) (trial court awarded custody of 17-year-old immigrant

child to child's uncle, but refused to make SIJ findings; ruling affirmed where there was

no evidence that minor's mother, who lived in India, had willfully neglected him although

she was too poor to provide him sanitary living conditions, an education or medical care;

thus, although father had abandoned the minor at birth, court construed "1 or both"

language as requiring a showing that reunification with neither parent is viable). 2

¶ 24 But other courts have reached the opposite conclusion. The court in Eddie E.,

, directly addressed and disagreed with the reasoning of Erick M. and

H.S.P. In Eddie E., the minor was a citizen of Mexico who came to this country with his

mother at the age of five to reunite with his father. The minor's mother ultimately left the

family and died several years later. The minor continued to live with his father and

although he lived a hard life, his father never abused him. After the minor was

adjudicated delinquent of several criminal offenses, he petitioned the court to make SIJ

findings.

. The trial court declined to make the findings, determining that

because the minor's father never abused him, he could not establish that reunification

with his father was not viable due to abuse or neglect and that the minor's inability to

reunify with his mother was due to her death and not abandonment.

. The court

2 The New Jersey Supreme Court has granted a petition for review in H.S.P. v. J.K.,

(N.J. 2014). 11 No. 1-15-2223

further declined to find that return to Mexico was not in the minor's best interest.

The

court of appeal reversed, finding that under the plain meaning of the statutory language,

the minor's abandonment by one parent—his mother—sufficed. Id. at 783.

¶ 25 Fundamentally, the Eddie E. court concluded that the courts in Erick M. and

H.S.P. misunderstood the role of state courts in making SIJ findings; state courts are not

gatekeepers, charged with weeding out motions for SIJ findings that they believe are not

bona fide:

"Certainly, petitioner has presented a case from which a reasonable USCIS field

director could conclude that petitioner has applied for SIJ status in good faith to

obtain relief from his mother's abandonment. On the other hand, a USCIS field

director may determine that is not the case. The problem with the Erick M. and

H.S.P. interpretation is that it completely forecloses the ability of USCIS to make

that determination. Ultimately, immigration decisions are the purview of the

federal government, not the state government. [Citation.] The Erick M. and

H.S.P. courts improperly usurped that role." Id.

See also Israel O.,

("We therefore conclude that an eligible

minor under section 1101(a)(27)(J) includes a juvenile for whom a safe and suitable

parental home is available in the United States and reunification with a parent in his or

her country of origin is not viable due to abuse, neglect or abandonment."); In the Matter

of Marcelina M.-G. v. Israel S.,

(N.Y. App. Div. 2013) (minor

placed in custody of her mother still eligible for SIJ findings where minor had been

abandoned by her father).

12 No. 1-15-2223

¶ 26 USCIS, the agency charged with administering the Act, including applications for

SIJ status, has taken the position that abuse, neglect or abandonment by one parent is

sufficient for purposes of SIJ predicate findings. See U.S. Citizenship and Immigration

Services, Immigration Relief for Abused Children, at 1 (Apr. 2014),

http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Thro

ugh%20a%20Job/Immigration_Relief_for_Abused_Children-FINAL.pdf (providing that

SIJ-eligible children may "[b]e living with a foster family, an appointed guardian, or the

non-abusive parent"); see also Marcelina M.-G.,

(referencing

USCIS approval of SIJ status applications even though reunification with one parent was

viable). The agency's position has not been the subject of rulemaking and notice and

comment and thus is not entitled to deference under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.,

(1984), but we nevertheless believe it is a

reasonable construction of the statute. Christensen v. Harris County,

(2000) (agency interpretations that are not the product of formal rulemaking are "entitled

to respect *** but only to the extent that those interpretations have the power to

persuade" (internal quotation marks omitted)).

¶ 27 Although, for reasons we discuss below, the record supports a finding that Nina

has, in fact, been abandoned by both parents, we believe the position adopted by USCIS,

Eddie E., Israel O., and Marcelina M.-G. adheres to the plain language of the statute,

which is not ambiguous. If Congress meant that an applicant for SIJ status was required

to show that reunification with both parents was not viable due to abuse, neglect or

abandonment, it could easily have so provided. Use of the disjunctive indicates that

abuse, neglect or abandonment by one parent is sufficient to support the predicate

13 No. 1-15-2223

finding. Whether it is sufficient to warrant consent to the application by the District

Director of USCIS is an entirely separate issue, which is reserved for federal immigration

authorities, not state courts.

¶ 28 In the context of this case, the fact of Nina's abandonment by her father is

particularly significant. As noted above, Nina's father is a native of Taiwan where Nina

was born. Nina is thus a citizen of Taiwan. Her mother is a native of the Philippines.

We do not know whether Nina, soon to be an adult citizen of Taiwan, can be deported to

the Philippines even if she maintains a relationship with her mother, who is presently

subject to deportation. We have no expertise in the laws of Taiwan or the Philippines

that would enable us to answer this question. And there is no indication in the record

that, apart from her father, Nina has had contact with her relatives, if any, in Taiwan over

the past 12 years. Thus, as a practical matter, Nina's abandonment by her father warrants

a finding that return to the country of her birth (Taiwan) is not in her best interest wholly

apart from the abandonment by her mother.

¶ 29 On the issue of Maria's abandonment of Nina, we understand the circuit court's

reluctance to make the requested findings based, as we assume it was, on the court's

skepticism regarding Maria's motives. But even if we assume that Maria's abandonment

was motivated solely by the desire to give her daughter the opportunity to seek SIJ status,

the fact is Maria did abandon Nina; Nina was placed under the coguardianship of

petitioners precisely because there was no one else available to care for and make

decisions for her. And just as Maria's motivation in abandoning her daughter was not

relevant in the context of appointing petitioners to act as her guardians, so too is it

irrelevant to the determination as to whether Nina has been abandoned for purposes of the

14 No. 1-15-2223

SIJ predicate findings. Again, the bona fides of and reasons for the abandonment are not

our concern and will be addressed, to the extent that they are deemed relevant, in the

context of Nina's application for SIJ status.

¶ 30 Further, the trial court would not find the answers to these questions in any

evidentiary hearing. Again, it is undisputed that Nina has lived with petitioners for nearly

a year and, although Nina has been in contact with Maria, she is not residing with Maria

and Maria is not providing for her. There is no party opposing petitioner's motion for SIJ

findings and thus the adversary process will not work to ferret out the truth or shed light

on the reasons for Maria's conduct. And, given Maria's immigration status, her

unwillingness to come to court to testify or otherwise explain her conduct or whereabouts

is understandable.

¶ 31 We note that although the potential benefits associated with SIJ status are

substantial, Nina's decision to pursue SIJ status is not without risk. Relief is not

guaranteed and denial of the application renders Nina subject to deportation as an

undocumented immigrant. 3 Charles Gordon et al., Immigration Law and Procedure

§ 35.09, at 35-46 (Matthew Bender rev. ed. 2015). Given Nina's willingness to assume

that risk and in light of the facts disclosed in the record before us, we believe Nina's

opportunity to pursue SIJ status should not be thwarted by our refusal to make the

findings necessary to allow her application to proceed.

¶ 32 CONCLUSION

¶ 33 On this record, which we review de novo given the lack of any factual or

credibility determinations made by the trial court (see People v. Nielson,

(1999) (de novo review appropriate where neither facts nor credibility of witnesses is

15 No. 1-15-2223

at issue)), we believe the trial court erred as a matter of law in refusing to make the

requested findings. We reiterate, as we found in our August 25, 2015 order, that (i)

reunification with one or both of Nina's parents is not viable due to abuse, neglect or

abandonment and (ii) return to Taiwan is not in Nina's best interest.

¶ 34 Order vacated.

16