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Perez v. Cissna

United States Court of Appeals, Fourth Circuit

January 29, 2019

FELIPE PEREZ PEREZ, Plaintiff - Appellant,
v.
LEE FRANCIS CISSNA, Director, United States Citizenship and Immigration Services, Defendant-Appellee.

          Argued: October 30, 2018

          Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cv-00748-RJC-DSC)

         ARGUED:

          Bradley Bruce Banias, BARNWELL WHALEY PATTERSON AND HELMS, Charleston, South Carolina, for Appellant.

          Sheetul S. Wall, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Chad A. Readler, Acting Assistant Attorney General, William C. Peachey, Director, Brian Ward, Senior Litigation Counsel, District Court Section, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.

          QUATTLEBAUM, Circuit Judge.

         This case involves the application of 8 U.S.C. § 1101(a)(27)(J), a means for immigrant children to become lawful permanent residents of the United States if they meet the statutory special immigrant juvenile ("SIJ") requirements. One of the requirements is a qualifying state court custody order. Today, we address the narrow question of whether the temporary, ex parte emergency order presented by Felipe Perez Perez qualifies as a predicate state court custody order for the SIJ application. The United States Citizenship and Immigration Services (the "Agency"), the Administrative Appeals Office ("AAO") and the district court concluded it did not. For the reasons set out below, we affirm.

         I.

         A.

         Before examining the facts of this case, we briefly summarize the SIJ statute. Under 101(a)(27)(J) (8 U.S.C. § 1101 (a)(27)(J)) of the Immigration and Nationality Act, an SIJ is "an immigrant who is present in the United States":

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.][1]

8 U.S.C. § 1101(a)(27)(J). To become an SIJ, an immigrant child must apply for that status with the Agency. He or she bears the burden of proving the SIJ requirements. Id. § 1361. If an applicant obtains SIJ status, he or she is potentially eligible for lawful permanent resident status. If an SIJ is granted lawful permanent resident status, he or she may eventually apply for United States citizenship.

         B.

         This case involves Perez's application for SIJ status. Perez was born on July 6, 1997 in Guatemala. At age 16, he unlawfully entered the United States around January 14, 2014. Upon entry, the U.S. government apprehended Perez and placed him into custody. The government initiated removal proceedings against Perez. Shortly thereafter, the government transferred him to North Carolina, where his brother lived, and released him to his brother.

         A year later, around January 20, 2015, Perez's brother filed a complaint in state court seeking custody of Perez by alleging that Perez, then 17, was abandoned, neglected and abused by his parents in Guatemala. Perez's brother later filed a Motion for Temporary Emergency Custody. A North Carolina juvenile court issued an order on June 29, 2015, granting ex parte "emergency temporary custody" of Perez to his brother and scheduling a hearing to determine custody for July 22, 2015, just a few weeks later, for which notice to Perez's parents was required. In the order, the juvenile court found that pursuant to N.C. Gen. Stat. §§ 50A-204(a) and 50A-311, it had temporary emergency jurisdiction to protect the child based on the information it had been presented at that time. The court further found that "[r]eunification with the biological parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law," and, inter alia, that it was in Perez's "best interest for temporary and permanent custody to be awarded to the Plaintiff." J.A. 129.[2] After granting Perez's brother temporary emergency custody and control of the minor child, the juvenile court expressly acknowledged that the "terms of this Order shall remain in effect until the Court date noted below," i.e., July 22, 2015. J.A. 129.

         Perez turned 18 on July 6, 2015, just a few days after the emergency order and about two weeks before the scheduled July 22, 2015 hearing. This divested the juvenile court of jurisdiction over Perez. Therefore, the July 22, 2015 hearing never took place.

         On his 18th birthday, Perez filed a petition for SIJ status. Perez used the ex parte emergency temporary order as the predicate order for his SIJ application to claim, as required by Section 1101(a)(27)(J)(i) and (ii), that a court had (i) placed Perez under the custody of his brother and determined that reunifying Perez with his parents was not viable due to abuse, neglect, abandonment, or a similar basis under state law; and (ii) determined that it would not be in Perez's best interest to be returned to his previous country of nationality. On or around July 31, 2015, the Agency issued its Notice of Intent to Deny the SIJ petition.

         On August 28, 2015, the North Carolina juvenile court issued another ex parte order, this one for judgment nunc pro tunc. That order made the following findings of fact: (1) an action for ex parte temporary emergency child custody was instituted by Perez's brother; (2) an order granting ex parte temporary emergency child custody was granted on June 29, 2015; and (3) "[b]ecause the child turned 18 years old four days after the signing of the Order, the Order granting temporary custody to Plaintiff was as permanent as possible under North Carolina [l]aw." J.A. 88.

         On September 23, 2015, the Agency denied Perez's application for SIJ status. The Agency determined that the juvenile court order submitted in support of the petition was "expressly temporary in nature and therefore does not make the finding that reunification with one or both parents is permanently not viable." J.A. 73. After Perez appealed, the AAO reviewed the Agency's decision de novo and dismissed the appeal in a decision dated May 9, 2016.

         C.

         On October 28, 2016, Perez filed a complaint in the United States District Court for the Western District of North Carolina against the Director of the Agency, seeking declaratory relief and review of the AAO's decision under the Administrative Procedure Act ("APA"). Perez subsequently filed a motion to set aside final agency action. Perez claimed the Agency and the AAO imposed an ultra vires requirement that the predicate custody order required by the SIJ application process be permanent. Alternatively, Perez argued the Agency and AAO acted arbitrarily or capriciously in differentiating between temporary emergency custody orders and permanent custody orders. The Agency moved for judgment on the record affirming the denial of the SIJ application.

         The district court rejected Perez's claims. In concluding that the temporary emergency custody order did not suffice to establish the requisite findings for SIJ status, the district court found that the Agency and AAO did not act arbitrarily and capriciously. Instead, the district court held they simply gave the temporary emergency custody order the same effect it would have been given in North Carolina. The district court thus denied Perez's motion to set aside final agency action and granted the Agency's motion for judgment on the record in an order signed March 6, 2018.

         Perez filed a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

         II.

         We review both the district court's grant of judgment on the administrative record and denial of Perez's motion to set aside the Agency's action de novo. Am. Whitewater v. Tidwell, 770 F.3d 1108, 1115 (4th Cir. 2014); Defs. of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374, 392-93 (4th Cir. 2014). That requires us to apply the same legal standards the district court applied in addressing Perez's motion to set aside the Agency's decision and the Agency's motion for judgment on the record. Lawson v. Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016). The district court properly analyzed the Agency and AAO decisions based on the scope of review permitted under the APA. 5 U.S.C. § 706(2)(A).

         Under the APA's deferential standard, the reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In determining whether to set aside an agency's action as arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law, a reviewing court must ensure that the agency has "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action. . . ." N.C. Wildlife Fed'n v. N.C. Dep't of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (alteration in original) (internal quotation marks omitted) (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)).

         Although this Court will "accord substantial deference to an agency's final action and presume it valid, 'the arbitrary-and-capricious standard does not reduce judicial review to a rubber stamp of agency action.'" Ergon- W.Va., Inc. v. U.S. Envtl. Prot. Agency, 896 F.3d 600, 609 (4th Cir. 2018) (quoting Friends of Back Bay v. U.S. Army Corps of Eng'rs, 681 F.3d 581, 587 (4th Cir. 2012)). This Court must conduct a "searching and careful review to determine whether the agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Sierra Club v. U.S. Dep't of the Interior, 899 F.3d 260, 270 (4th Cir. 2018) (internal quotation marks omitted) (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).

         But the review under the APA is narrow and highly deferential. Webster v. U.S. Dep't of Agric., 685 F.3d 411, 422 (4th Cir. 2012). If the agency has followed proper procedures and has presented a rational basis for its decision, we will not disturb the agency's judgment. Id.

         With these standards in mind, we turn to Perez's ...


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