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Md. high court rules child can apply for special immigrant status

Court of Appeals finds 'unrefuted' evidence of neglect by mother

Attorney Stephen J. Cullen in front of the Supreme Court. (File photo)

Attorney Stephen J. Cullen in front of the Supreme Court. (File photo)

Maryland’s top court has ordered a young Guatemalan immigrant to be permitted to remain with his father in Baltimore while applying for special U.S. residency status and likely citizenship.

The Court of Appeals on Friday cited “unrefuted” evidence that the youngster’s mother had neglected him in their homeland and would continue to if he were returned.

In its one-page order, the seven-judge panel reversed lower court decisions that the father, Celso Romero, had failed to prove that his now 20-year-old son would face continued maternal neglect if sent back to Guatemala and thus the child could not apply for Special Immigrant Juvenile Status protection under U.S. law.

The Baltimore City Circuit Court, as affirmed by the intermediate Court of Special Appeals, had held that Romero had proved only a 50-50 likelihood of neglect, a non-definitive result that meant reunification with his mother was “viable” under the federal immigration statute.

But the Court of Appeals said that conclusion was wrong because the father had indeed shown that the child’s “reunification with his mother is not viable due to the unrefuted evidence of neglect presented to the circuit court.”

That evidence pointed to a mother who required her barefoot son, from age 10 to 17, to collect and carry wood, plant potatoes and move earth every day in the mountains, among poisonous snakes and far from his home. The child, identified in court papers as R.P., was unable to complete school work as a result, according to court papers.

At 17, R.P. fled Guatemala for the United States to live with his father in Baltimore, where he attends school regularly, according to court filings.

The Court of Appeals, in its order, told the Circuit Court to change “expeditiously” its ruling to reflect that R.P. can apply for SIJS status with the federal government. The high court added that time is of the essence because federal law bars SIJS applications from candidates once they reach age 21, a milestone R.P. will hit on May 2.

Under the federal immigration law, youngsters given SIJS status are placed on a path to citizenship. To qualify to apply for SIJS status, an applicant must be under age 21, unmarried and show that “reunification” with the parent in his homeland is “not viable due to abuse, neglect or abandonment or a similar basis under state law.”

The Court of Appeals, to aid in its consideration of the case, appointed a team of attorneys from Miles & Stockbridge P.C. in Baltimore to weigh in and file a friend-of-the-court brief on the standards to be applied in determining if reunification is not viable.

The lawyers said a preponderance of the evidence test should be applied, as the lower courts had done and Maryland courts routinely do in child neglect cases.  However, the team concluded that the preponderance standard had clearly been reached in R.P.’s case based on the unrefuted neglect he had faced from his mother.

In passing the federal law, Congress sought to protect immigrant children by encouraging state courts to “take an extremely broad view of abuse, neglect or abandonment” in deciding whether a child qualifies to apply for SIJS, said attorney Stephen J. Cullen, of the Miles & Stockbridge team.

“The idea is to capture as many children as possible,” Cullen said Monday. “That is the purpose of the federal statute.”

Joining Cullen on the Court of Appeals brief were Kelly A. Powers and Leah M. Hauser.

In its order, the high court did not state whether the burden of proof in an SIJS case is a preponderance — more than 50 percent – or clear and convincing evidence of neglect if the child is returned.

The court did state it would explain the bases for its order in an opinion to be filed at a later date, which, based on the court’s practice, will be by Aug. 31. The case is Celso Monterroso Romero v. Josefa Perez, No. 27, September Term 2018.

The Court of Appeals issued its order one week after hearing the father’s arguments, through counsel, that the circuit court was “clearly erroneous” in finding insufficient evidence of  the mother’s neglect.

Lara J. Wilkinson, Romero’s appellate attorney and a Baltimore solo practitioner, told the judges that the evidence was “uncontroverted” before the circuit court.

Powers, of the Miles & Stockbridge team, told the high court that a preponderance-of-the-evidence standard should be applied and that the father had certainly shown it was more probable than not that R.P.’s reunification with his mother is not viable due to neglect.


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