The Michigan Court of Appeals has ruled, for the first time, that the preponderance of the evidence standard applies in Special Immigrant Juvenile (SIJ) proceedings because the statute is silent on this issue.

The appellant in In re Velasquez, Minor (Docket No. 360057) sought full guardianship of his nephew, LMV, who was born in Guatemala. He filed a motion with the Ionia County Probate Court to make the predicate factual findings necessary for LMV to apply for SIJ status under 8 USC 1101(a)(27)(J) with the United States Citizenship and Immigration Services (USCIS).

The probate court granted the petition to appoint the appellant as guardian of LMV but denied the motion for SIJ status special findings. That decision was appealed.

In addition to finding the preponderance of the evidence standard applies in SIJ status proceedings, the Court of Appeals held:

1) the actions of LMV’s mother, as described by LMV, constituted neglect and abuse, and the record supported a finding that reunification with her was not feasible.

2) it was in LMV’s best interests to remain in the United States with the appellant.

The Court of Appeals vacated the Ionia County Probate Court’s order denying the appellant’s motion for special findings of fact to apply for SIJ status for LMV. The appeals court entered an order “with special findings of fact to establish SIJ status for LMV.”

Judge Michelle M. Rick wrote the published opinion, joined by Judge Colleen A. O’Brien.

Judge Mark T. Boonstra dissented, saying the majority’s decision “sanction[ed] the abandonment of all notions of due process and our role as an error-correcting court.”

Order Vacated

In its decision, the Court of Appeals first addressed the service of process issue, pointing out the guardianship petition and motion for SIJ status special findings were jointly sent by first-class mail to LMV’s mother.

“In denying appellant’s motion for SIJ special findings, the court determined that LMV’s mother was not properly served,” the Court of Appeals said. “However, the probate court did not deny the guardianship petition for inadequate notice. Although the court voiced some concern regarding whether LMV’s mother received actual notice of the hearing, the court implicitly found that the required notice was given by granting appellant full guardianship of LMV. … Because the guardianship petition and the motion for special findings were jointly mailed to LMV’s mother, the court erred by finding that LMV’s mother did not receive proper notice of the SIJ status special findings motion, and therefore, abused its discretion by denying the motion, in part, on that basis.”

Next, the Court of Appeals held the probate court wrongly found the evidence did not support a finding that LMV had been neglected and abused by his mother. “The standard of proof required for SIJ status predicate factual findings raises an issue of first impression …,” the appeals court said, citing MCR 7.215(B)(2). “We hold that preponderance of the evidence standard applies.”

According to the Court of Appeals, state courts must make three findings regarding SIJ status:

1) the juvenile is declared dependent on a juvenile court.

2) the juvenile’s reunification with one or both of their parents is not viable due to neglect, abandonment or a similar basis under state law.

3) the juvenile’s interests would not be served by returning to their country of origin.

“However, 8 USC 1101(a)(27)(J) does not provide a standard of proof required to make such findings,” the Court of Appeals noted, citing cases from other jurisdictions holding that the preponderance of the evidence standard applies. Similar to these out-of-state cases, the Court of Appeals itself has ruled that “when a statute fails to state the standard that probate courts are to use to establish a particular fact, the default standard in civil cases - preponderance of the evidence - applies,” the panel said, citing In re Murray Conservatorship, 336 Mich App 234 (2021). “Accordingly, because the SIJ statute does not state the applicable standard of proof to be applied for factual findings, we conclude that the preponderance of the evidence standard applies.”

The Court of Appeals continued by examining the allegations of abuse and neglect against LMV’s mother, which was why the appellant wanted to be appointed LMV’s full guardian under the Estates and Protected Individuals Code (EPIC). “On the basis of th[e] record, we conclude that the actions of LMV’s mother, as described by LMV, constituted neglect and abuse as defined by Michigan law and the record only supported a finding that reunification was not possible. Therefore, the probate court clearly erred by finding otherwise. LMV provided unrefuted testimony that he was abused and neglected by his mother. … Although there was some indication that his mother was aware that LMV traveled to the United States, the evidence only supported a finding that LMV had been abused and neglected, as defined under MCL 722.622(g) and MCL 722.622(k), by his mother and that reunification was not possible.”

Further, the probate court erred when it held that LMV entered the United States “illegally” and relied on that finding in its analysis, the Court of Appeals explained. “This Court has recognized that ‘the juvenile court’s special findings are limited to child welfare determinations’ and that ‘the juvenile court is not to engage in an immigration analysis or decision.’ … Therefore, the probate court’s conclusion and reliance on its finding that LMV entered the United States ‘illegally’ was wholly improper and erroneous. Moreover, the probate court had no authority to ‘grant’ SIJ status to LMV, as the proceedings related solely to predicate factual findings and ‘the final decision regarding SIJ status rests with the federal government ….’”

The Court of Appeals then turned to examining the best interests of LMV under MCL 722.23 (Child Custody Act) and MCL 710.22(g) (Michigan Adoption Code). “Although the probate court did not make findings regarding best interests, the record is sufficient for this Court to make such findings and we exercise our discretion to do so.”

Applying the same principles recognized in In re COH, 495 Mich 184 (2014), “we hold that, for purposes of SIJ status findings, a court may apply ‘the Child Custody Act factors, some combination of the Adoption Code and Child Custody Act factors, or a unique set of factors developed by the trial court,’” the Court of Appeals wrote. “We further conclude that the probate court abused its discretion by failing to make such findings. Moreover, because the record established that it is in LMV’s best interests to remain in the United States, rather than return to Guatemala, we exercise our discretion to make those findings instead of remanding to the probate court.”

Whether applying the child-custody factors, adoption factors or a combination of factors, “the record clearly established a finding that LMV’s best interests were served by remaining in the United States with appellant instead of returning to the conditions from which he fled, which included physical abuse, being required to work in dangerous conditions, and the complete denial of educational opportunities,” the Court of Appeals concluded, vacating the probate court’s order and entering a new order with special findings of fact to establish LMV’s SIJ status.

Dissenting Opinion

The majority “facilitate[d] the use of a by-design one-sided process (both in the probate court and in this Court) to foist factual findings (which no one has had an opportunity to rebut) upon the courts - notwithstanding the proper role of trial courts to evaluate witness credibility and the weight to be given to the evidence presented,” Judge Boonstra wrote in his dissent. “And it allows itself to be used to further a particular political agenda - under which different living standards in other countries necessarily and conclusively equate to ‘abuse’ and ‘neglect’ justifying immigration.”

Judge Boonstra concluded: “On balance, I simply cannot find that the probate court, given its superior ability to judge the credibility of witnesses before it, … clearly erred by declining to make the factual findings requested. Additionally, even if I agreed with the majority regarding the probate court’s lack of findings under 8 USC 1101(a)(27)(J)(i), I would dissent from the majority’s best-interest findings under 8 USC 1101(a)(27)(J)(ii). This Court is an error-correcting court …; it is not appropriate for us to make factual findings regarding an issue that the probate court declined to address. … For this additional reason, I dissent from Section V(C) of the majority opinion.”