‘Irritated’ judge again ordered to make immigration findings for teen girl

The Indiana Court of Appeals has ordered a southern Indiana judge for the second time to make required findings regarding the immigration status of a teen girl originally from Guatemala, this time spelling out those findings for the jurist who refused to do so.

When she was 16, Irma Luis’ mother placed her on a bus and sent her, alone, to the United States to live with her brother. Residing in Guatemala, Luis’ mother did not have enough money to feed or provide healthcare for her daughter or send her to school, and Luis’ father died when she was a toddler.

Upon Luis’ detention at the U.S. border, the federal government released her into the custody of her brother, who lives in Seymour, Indiana. While living with her brother, Luis’ basic needs have been met and she was found to be supported financially and emotionally.

Luis’s brother petitioned the Jackson Circuit Court to appoint him as guardian of his sister and requested it make certain findings necessary for Luis to seek classification as a special immigrant juvenile. Although the court appointed him guardian, it failed to make the requested findings about Luis’ status. Specifically, Jackson Circuit Judge Richard W. Poynter stated 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).”

The Indiana Court of Appeals initially reversed in part, remanding with instructions for the trial court consider the SIJ factors. On remand, the trial court scheduled a hearing but later cancelled it, ultimately concluding that “Whether it is in the child’s best interests for the child to remain in the United States is impossible for this court to decide.”

The court’s failure to make a finding as to whether reunification between Luis and her parents was viable or whether it was in her best interests to remain in the U.S. prompted the appellate court to address the issue again in In the Matter of the Guardianship of: Irma Elisabeth Avila Luis, Ramiro Velasquez Avila, 19A-GU-1276.

“The trial court focused on whether there was evidence that Irma was physically removed from her residence, but this straw man of an analysis is not part of the statutory consideration of viability,” Judge John Baker wrote for the appellate court. “Both the evidence in the record and the trial court’s own findings of fact lead to one inescapable conclusion: reunification with one or both parents is not viable due to abandonment and/or neglect.”

The appellate court found that the evidence was undisputed that Luis’ needs were not being met in Guatemala but were being met in the United States. However, the panel stated confusion about the trial court’s statement as to its inability to decide what was in Luis’ best interests.

“We are, frankly, perplexed by this statement,” Baker wrote. “Trial courts make determinations regarding the best interests of children every day in this State, and they do so based on the evidence in the record before them. Nothing in an SIJ determination is any different than any other best interests determination, meaning that the determination ‘should be based on the totality of the circumstances’ before the trial court.

“While it is ultimately for the federal government to determine whether Irma may remain in the United States, it was incumbent upon the trial court to make SIJ findings, including a best interests determination. Here, it refused to do so, which was erroneous. We can only conclude, based on the evidence in the record, that it would not be in her best interest to return to Guatemala,” the court concluded.

Noting that the trial court took an inordinate amount of time to issue its order following the first appeal and its refusal to make the required findings a second time, the appellate court chose to exercise its authority pursuant to its broad discretion under Indiana Appellate Rule 66(C)(10) allowing it to grant any appropriate relief.

It therefore ordered the trial court to include verbatim the Court of Appeals’ findings within one business day of the certification of the appeal. The findings state that Luis was abandoned and neglected by both parents, reunification with either parent is not viable, it is not in Luis’ best interests to return to Guatemala, and that it is in her best interest to remain in the U.S. under the guardianship of her brother.

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