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COA: ‘Irritated’ judge must make immigration findings

November 8, 2018

A trial court judge who refused to make federal findings regarding a minor litigant’s immigration status because he was “irritated” by having to deal with federal law must now consider the immigration questions after the Indiana Court of Appeals found the judge’s refusal was erroneous.

After her father died and her mother was no longer able to care for her, 16-year-old Guatemalan native Irma Elisabeth Avila Luis was sent to the United States and was taken into federal custody at the U.S.-Mexico border. Irma was eventually released into the custody of her brother, Seymour resident Ramiro Velasquez Avila.

Irma has continued to live with her brother and attend school in Seymour since 2016, so in March 2018 Avila petitioned to be appointed as his sister’s guardian and requested that the Jackson Circuit Court make findings necessary to help Irma seek special immigrant juvenile classification. At a hearing on that petition, Judge Richard W. Poynter said he had a “real problem” making such findings pursuant to federal statute, saying the government “(t)hrowing it on (him) to make factual findings for them (is) irritat(ing).”

“It should be made by (f)ederal officials. They’re the one that makes the decision of who comes in the United States, who leaves the United States, not me,” Poynter said at the hearing. “And that’s why I have a problem with this … Immigration (j)udges are (i)mmigration (j)udges for a reason. That’s their decision.”

Thus, Poynter appointed Avila as Irma’s guardian, but declined to enter the factual findings pursuant to United States Code section 1101(a)(27)(J). On appeal in In the Matter of the Guardianship of Irma Elisabeth Avila Luis; Ramiro Velasquez Avila, 18A-GU-1312, Avila argued Poynter erred by not entering the federal factual findings.

The Indiana Court of Appeals agreed, with Judge Patricia Riley writing that the juvenile court must make the relevant findings — whether reunification with a parent is not viable and whether it would be in the immigrant’s best interest to be return to their home country — while the final decision rests with the federal government.

“The predicate order issued by a state court is merely a prerequisite that must be fulfilled before a juvenile can submit his or her application for SIJ status to (U.S. Customs and Immigration Services) in the form of an I-360 petition,” Riley wrote. “… Thus, 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.”

“Thus, although state courts do not make immigration decisions, it is inescapable that a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law,” Riley continued. “… In this unusual setting, where a state court is charged with addressing an issue relevant only to federal immigration law, we cannot affirm the trial court’s Order without some positive indication that the court actually addressed Avila’s request.”

The case was, thus, remanded with instructions for the trial court “to consider the request for SIJ findings in light of the evidence presented and articulate the relevant determinations pursuant to 8 U.S.C. section 1101(a)(27)(J).” Avila’s appointment as Irma’s guardian also was affirmed.

 

 

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