Argued: October 30, 2018
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)
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.
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.
WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
QUATTLEBAUM, Circuit Judge.
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.
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
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
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.
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. 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.
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.
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.
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.
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.
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.
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.
filed a timely appeal, and this Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
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).
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)).
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)).
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.
these standards in mind, we turn to Perez's ...