Deepak Budhathoki v. Kirstjen Nielsen, Secr , 898 F.3d 504 ( 2018 )

Case: 16-51449 Document: 00514582121 Page: 1 Date Filed: 08/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 16-51449 August 1, 2018
Lyle W. Cayce
Clerk
DEEPAK BUDHATHOKI, CLESMY E. CANALES GONZALES,
KATHERINE YURLIETH TURCIOS-PEREZ, on behalf of themselves and all
other similarly situated persons.
Plaintiffs - Appellants
v.
KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY, Director of Department of Homeland Security, in
his official capacity; LEON RODRIGUEZ, Director of United States
Citizenship and Immigration Services, in his official capacity; MARIO R.
ORTIZ, United States Citizenship and Immigration Services District Director
for San Antonio, in his official capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, CLEMENT and SOUTHWICK, Circuit
Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
The plaintiffs appeal the dismissal of their suit challenging a federal
agency’s denial of their applications for a specific immigrant status. They
argue the agency erred when it determined that orders each applicant received
from a Texas state court did not qualify them for the status. We AFFIRM.
Case: 16-51449 Document: 00514582121 Page: 2 Date Filed: 08/01/2018
No. 16-51449
FACTUAL AND PROCEDURAL BACKGROUND
Deepak Budhathoki, born in August 1996, is a native of Nepal. Clesmy
Gonzales, born in November 1996, is a native of Honduras. Katharine Yurlieth
Turcios-Perez, born in June 1994, is a native of Honduras. These plaintiffs,
who were each over the age of 18, filed what a Texas statute labels Suits
Affecting Parent-Child Relationship (“SAPCR”). TEX. FAM. CODE § 101.032.
Although the Texas Family Code generally defines child or minor as “a person
under 18 years of age who is not and has not been married or who has not had
the disabilities of minority removed for general purposes,” id. § 101.003(a), it
also provides: “In the context of child support, ‘child’ includes a person over 18
years of age for whom a person may be obligated to pay child support,” id.
§ 101.003(b) (emphasis added). Thus, child support can be sought in a SAPCR
suit for someone over 18 years old. See id. § 154.006(a).
In the SAPCR suits, which were filed in three different Travis County
district courts, 1 the state courts awarded child support and made certain
findings. First, the applicants were not yet 21 and were unmarried. Second,
all applicants had been abandoned by their parents. Finally, returning to their
home countries was not in their best interest. The state courts also retained
jurisdiction over the plaintiffs until certain events occurred, such as marriage,
death, joining the army, and either graduating from high school or turning 18,
whichever occurred later.
1The three SAPCR orders were entered by two different associate judges. Associate
judges can be appointed by district judges in Texas if the position has been authorized by the
Commissioners Court of the county; one such judge can assist multiple courts in the same
county; each judge serves at the will of the appointing district judge(s). TEX. GOV’T CODE
§§ 54A.102, 54A.105. The district judge can refer all or portions of civil cases to the associate
judge, who renders a decision with the same force of law as the referring court. Id.
§§ 54A.106, 54A.111. There is no challenge here to the associate judges’ delegated authority
to render final decisions.
2
Case: 16-51449 Document: 00514582121 Page: 3 Date Filed: 08/01/2018
No. 16-51449
After the plaintiffs received the state court SAPCR orders, they filed
Special Immigrant Juvenile (“SIJ”) status petitions with the United States
Customs and Immigration Services (“USCIS” or “agency”). We will discuss
that status later. The agency requested more evidence to demonstrate if “the
dependency order is valid under Texas state law, given the applicant’s age.”
Because each plaintiff “had reached 18 years of age prior to obtaining the
SAPCR,” the agency needed “evidence that the court order was issued in
compliance with state law governing juvenile court dependency” as the law
requires.
The plaintiffs responded to the requests for evidence. Subsequently, a
Field Officer Director denied each petition and gave notice of the right to an
administrative appeal. Instead, plaintiffs 2 filed suit in the United States
District Court for the Western District of Texas, seeking “declaratory relief
regarding the definition of ‘child’ under Texas state law and the proper
interpretation and application of the terms ‘juvenile court’ and ‘dependent,’ as
those terms are defined by federal law.” 3 Concluding that the SAPCR orders
were not proper ones to support SIJ status, the district court granted
defendants’ motion to dismiss. The plaintiffs timely appealed.
2 An original plaintiff, Ramon Soto Carias, was dismissed and Turcios-Perez added.
38 C.F.R. § 103.3(a)(ii) permits the petitioner to file an appeal with the Administrative
Appeal Office of the Agency, but it does not require it. See also 8 C.F.R. § 204.11(e). Unlike
final orders of removal, exhaustion of administrative remedies is not required by the
Immigration and Nationality Act for denials of special immigrant status. See 8 U.S.C.
§ 1252(d)(2). As a result, filing suit in the district court was proper.
3
Case: 16-51449 Document: 00514582121 Page: 4 Date Filed: 08/01/2018
No. 16-51449
DISCUSSION
A district court’s grant of a motion to dismiss is reviewed de novo.
Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th Cir. 2010). Review of an
agency’s “administrative decision is conducted according to the deferential
standards of the Administrative Procedures Act (“APA”), which permits the
setting aside of agency actions, findings, and conclusions that are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law’
or ‘unsupported by substantial evidence.’” Cedar Lake Nursing Home v. U.S.
Dep’t of Health & Human Servs., 619 F.3d 453, 456 (5th Cir. 2010) (quoting 5
U.S.C. §§ 706(2)(A)–(E)).
The plaintiffs make these arguments: (1) both the agency and the district
court ignored limitations on their actions imposed by the APA and by federal
common law rules of preclusion; (2) the district court did not have the full
administrative record, so remand is warranted; and (3) this court should
consider certain documents that were not before the district court. We will
take those arguments in order after first providing context for SIJ status.
The Immigration and Nationality Act of 1990 included a new form of
immigration relief for non-citizen children. SIJ status provides a path for
certain children to become lawful residents of the United States. The statute
has been amended several times since 1990. To understand what the statute
requires now, it is useful to know about the initial concept of SIJ status and
how it has evolved. For an overview, we refer to the USCIS Policy Manual,
“which is the agency’s centralized online repository for USCIS’s immigration
policies.” U.S. CITIZEN AND IMMIGRATION SERV., POLICY MANUAL, “About the
Policy Manual” (2017), 2014 WL 10102392. The Manual governs the USCIS
in the following ways:
4
Case: 16-51449 Document: 00514582121 Page: 5 Date Filed: 08/01/2018
No. 16-51449
The USCIS Policy Manual contains the official policies of USCIS
and must be followed by all USCIS officers in the performance of
their duties. The Policy Manual does not create any substantive or
procedural right or benefit that is legally enforceable by any party
against the United States or its agencies or officers or any other
person.
Id.
The 1990 enactment “[e]stablished an SIJ classification for children
declared dependent upon a juvenile court in the United States, eligible for long-
term foster care, and for whom it would not be in their best interest to return
to their country of origin.” 6 U.S. CITIZEN AND IMMIGRATION SERV., POLICY
MANUAL J.1, “Purpose and Background” (2017), 2017 WL 443002. The statute
initially required the child to be declared dependent upon the court and to be
eligible for foster care. Id. Then, the 1994 amendments “[e]xpanded eligibility
from those declared dependent on a juvenile court to children whom such a
court has legally committed to, or placed under the custody of, a state agency
or department.” Id. In 1998, the statute was amended again in order to
“[l]imit[] eligibility to children declared dependent on the court because of
abuse, neglect, or abandonment.” Id.
In 2008, the most recent statutory amendments “[e]xpanded eligibility
to include children whom a juvenile court has placed under the custody of a
person or entity appointed by a state or juvenile court.” Id. Now, SIJ status is
available to
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
5
Case: 16-51449 Document: 00514582121 Page: 6 Date Filed: 08/01/2018
No. 16-51449
due to abuse, neglect, abandonment, or a similar basis found under
State law.
8 U.S.C. § 1101(a)(27)(J). By regulation, a juvenile court is “a court located in
the United States having jurisdiction under State law to make judicial
determinations about the custody and care of juveniles.” 8 C.F.R. § 204.11(a).
Once the applicant has the necessary predicate order, he must submit
his application to the agency, attaching the state court order. See id.
§ 204.11(d). 4 The petitioner bears the burden of establishing eligibility. 8
U.S.C. § 1361. A successful application also requires the consent of the
Secretary of Homeland Security to the grant of the SIJ status, which can be
given through directors of USCIS. See 8 U.S.C. § 1101(a)(27)(J)(iii).
Thus, a state court must make initial determinations, and the USCIS
then considers if they match the requirements for SIJ status. See David B.
Thronson, Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights
Underlying Immigration Law, 63 OHIO ST. L.J. 979, 1004 (2002). Our
questions are whether the right kind of court issued the right kind of order.
1. Review under the Administrative Procedures Act
The plaintiffs make several arguments that are based on constraints
imposed on agencies themselves and on courts when reviewing agency
decisions. Though the plaintiffs did not break their arguments into quite these
segments, the following identifies the administrative law issues in the order in
4 A regulation details the documentation to be submitted when seeking SIJ status, but
it has not been updated to reflect statutory changes. For example, proof is required that a
juvenile court “found the beneficiary eligible for long-term foster care,” but that is no longer
a statutory requirement. Compare 8 C.F.R. § 204.11(d)(2)(ii), with 8 U.S.C. § 1101(a)(27)(J).
Changes to the rules have been proposed but not finalized. Special Immigrant Juvenile
Petitions, 76 Fed. Reg. 54978, 54986 (proposed Sept. 6, 2011) (would be codified at 8 C.F.R.
§§ 204, 205, and 245).
6
Case: 16-51449 Document: 00514582121 Page: 7 Date Filed: 08/01/2018
No. 16-51449
which we will discuss them. (A) The USCIS acted beyond its authority in
deciding that the state courts did not have jurisdiction to enter the orders to
support SIJ status for these plaintiffs and that the court orders did not make
the necessary findings. (B) Regardless of what the USCIS could decide, the
state courts had jurisdiction and the orders contained the proper findings. (C)
The district court substituted its reasoning in upholding the USCIS decision
instead of analyzing the allegedly flawed reasoning actually used by the
agency. (D) The USCIS acted arbitrarily and capriciously.
A. Agency authority to determine sufficiency of state court’s order
The plaintiffs argue that the USCIS exceeded its statutory authority by
concluding they had failed to show that the Texas state court had jurisdiction.
That finding was stated in the final paragraph of the agency’s denial of SIJ
status:
In conclusion, as the evidence submitted in conjunction with
your I-360 petition and response to the [Request for Evidence], is
insufficient to meet your burden of showing that the SAPCR
included with your SIJ petition was issued pursuant to the court’s
jurisdiction over you as a juvenile, your request for SIJ
classification is hereby denied.
That single sentence summarizes the agency’s longer description of the
procedural background and its analysis of the law. The agency determined the
effect of each state court order was simply to require child support to be paid.
These plaintiffs were all older than age 18. The agency did not challenge the
plaintiffs’ argument that child support could be ordered in Texas for a person
age 18 or older and until certain events, such as high school graduation,
occurred. The flaw in the case, the agency held, was that nothing showed that
any of the orders was issued by a court “having jurisdiction under state law to
make judicial determinations about the care and custody of juveniles.” See 8
7
Case: 16-51449 Document: 00514582121 Page: 8 Date Filed: 08/01/2018
No. 16-51449
C.F.R. § 204.11(a). In sum, USCIS concluded that requiring child support is
not a care and custody determination, and under state law individuals 18 years
and older were not juveniles even if some are eligible for child support. The
plaintiffs seek to overcome that deficiency by arguing that each state court
order was “a valid custody or dependency order for SIJ purposes because the
order affects the duties of parents to support their children.”
We will explain in the next section of the opinion what the operative
Texas statutes state. The issue analyzed first is whether this federal agency
had the authority to resolve these two issues about the relevant orders: (1)
were they qualifying orders, and (2) if they were, does the federal agency have
authority to decide the state court had no jurisdiction to issue them? Because
of our decision on the first issue, namely, that these were not qualifying orders,
we will only briefly discuss the authority of an agency to decide that a state
court had no jurisdiction to act.
The plaintiffs claim that the USCIS Policy Manual supports their view
that the agency had to accept the state court orders as qualifying them for SIJ
status. They refer us to a section that disclaims any desire by USCIS to control
state courts on how they are to apply their own statutes:
There is nothing in USCIS guidance that should be
construed as instructing juvenile courts on how to apply their own
state law. Juvenile courts should follow their state laws on issues
such as when to exercise their authority, evidentiary standards,
and due process.
6 U.S. CITIZEN AND IMMIGRATION SERV., POLICY MANUAL J.3, “Documentation
and Evidence” (2017), 2017 WL 443004. Just before that language, though,
the Manual also states: “The juvenile court order (or orders) must provide the
required findings regarding dependency or custody, parental reunification, and
best interests.” Id. The Manual is simply indicating that state courts need to
8
Case: 16-51449 Document: 00514582121 Page: 9 Date Filed: 08/01/2018
No. 16-51449
follow state and not federal law in ruling on what comes before them, but it is
also an obligation of the USCIS to review the orders for the needed findings.
A federal agency must be able to review a state court order offered as
support for some federal benefit to determine its consistency with the federal
requirements. The plaintiffs do not show us any authority to the contrary, and
common sense compels the validity of the point. For example, prior versions
of the SIJ status statute required that an applicant have been deemed eligible
for long-term foster care. Immigration Act of 1990, Pub. L. No. 101–649, § 153,
104 Stat. 4978, 5005 (1990). Surely the agency needed to be able to examine
the order and determine if in fact such eligibility had been determined. How
searching that examination can be is the only real issue.
The dispute here is about the discretion, indeed the obligation in
USCIS’s view, of the federal agency to decide the sufficiency for federal
purposes of Texas state court child support orders. The USCIS examined those
orders and did not say the state courts had no jurisdiction to order child
support for individuals over the age of 18. Instead, it concluded that the state
court had no jurisdiction under Texas law to declare the care and custody of
someone who was at least 18 years old and, besides, had not actually declared
dependency, i.e., the orders did not in the language of the Manual make the
“required findings regarding dependency or custody.” 6 U.S. CITIZEN AND
IMMIGRATION SERV., POLICY MANUAL J.3, “Documentation and Evidence”
(2017), 2017 WL 443004. The closest the state court got to the SIJ
requirements was simply to say the orders could be “disclosed and used to
support a petition” for SIJ status.
A similar argument in the SIJ context has been addressed by one circuit
court of appeals. See M.B. v. Quarantillo, 301 F.3d 109, 110 (3d Cir. 2002).
There, USCIS had refused to consent to commencement of the plaintiff’s
9
Case: 16-51449 Document: 00514582121 Page: 10 Date Filed: 08/01/2018
No. 16-51449
juvenile court proceedings because, under its analysis of state law, the plaintiff
was too old to be eligible for a dependency order and thus would not be able to
satisfy the SIJ requirements. Id. This initial consent was necessary because
the applicant was in federal custody, and the Secretary of the Department of
Homeland Security had to consent before a state juvenile court could act. Id.;
see also 8 U.S.C. § 1101(a)(27)(J)(iii). As a result, the agency’s determination
occurred before any state court proceedings. Quarantillo, 301 F.3d at 116.
Nonetheless, the Third Circuit rejected the plaintiff’s argument that the state
juvenile court would be the sole judge of its own jurisdiction, leaving the agency
without the authority to make a preemptive decision that an individual did not
meet the “jurisdictional age of [the] juvenile court.” Id. at 111. The USCIS
“can reasonably consider the requirements of a petition for special immigrant
juvenile classification” to determine whether, under state law, “allowing the
juvenile court proceeding to go forward would have amounted to . . . an exercise
in futility.” Id. at 115–16.
This sort of agency obligation to review state court orders for their
sufficiency is certainly the approach of the regulations identifying the
documents that must be submitted in support of SIJ status:
(2) One or more documents which include:
(i) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court
has found the beneficiary to be dependent upon that court;
(ii) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court
has found the beneficiary eligible for long-term foster care; and
(iii) Evidence of a determination made in judicial or administrative
proceedings by a court or agency recognized by the juvenile court
and authorized by law to make such decisions, that it would not be
in the beneficiary’s best interest to be returned to the country of
10
Case: 16-51449 Document: 00514582121 Page: 11 Date Filed: 08/01/2018
No. 16-51449
nationality or last habitual residence of the beneficiary or of his or
her parent or parents.
8 C.F.R. § 204.11(d).
The regulation requires both that the court be one of “competent
jurisdiction” and that it have made certain findings. 5 Whether a state court
order submitted to a federal agency for the purpose of gaining a federal benefit
made the necessary rulings very much is a question of federal law, not state
law, and the agency had authority to examine the orders for that purpose.
Finally, we examine the plaintiffs’ argument that questions of how to
apply the state court orders fall into the general category of the obligation of
federal courts to give full faith and credit to the rulings of state courts. A
federal statute provides that the records and proceedings of state courts “shall
have the same full faith and credit in every court within the United States” as
they have in that state. 28 U.S.C. § 1738. By its own terms, though, the statute
does not apply to federal agencies examining state court proceedings.
American Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 800 (5th Cir. 2000).
A federal agency must consider, though, and so does this court in reviewing
the agency’s decision, whether the policies favoring full faith and credit to the
state court orders, such as repose and concerns about federalism, outweigh any
federal interests. See id. This balancing test was not applied by the district
court nor the agency. The plaintiffs claim that was error.
5 USCIS policy guidance referenced by the district court has the agency look even more
searchingly than we are discussing here. It directs USCIS to decide whether the SIJ benefit
was “sought primarily for the purpose of obtaining the status of an alien lawfully admitted
for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect
[or abandonment.]” USCIS Interoffice Memorandum from William R. Yates, Assoc. Dir. for
Operations, to Reg. Dirs. & Dist. Dirs. (May 27, 2004), at 2. Neither the USCIS nor the
district court made a finding about “primary purpose.”
11
Case: 16-51449 Document: 00514582121 Page: 12 Date Filed: 08/01/2018
No. 16-51449
Our response is to agree with the USCIS that there was no failure to give
proper respect to the state court order. The state court ordered child support.
The agency, concluding that for SIJ status there needed to be more, refused to
grant the special status but did not interfere with the operation of the state
court’s support orders. The state and federal orders had different roles, and
each continues to perform those functions.
Whatever responsibilities are exclusively for the state court, USCIS
must evaluate if the actions of the state court make the applicant eligible for
SIJ status. We now turn to how the agency exercised its review authority.
B. Sufficiency of state court rulings as to the plaintiffs
Before deciding anything about state law, we summarize our earlier
discussion of the federal requirements for the grant of SIJ status. The SIJ
statute ties eligibility to whether the applicant has been the subject of certain
state court orders. Explaining, the Manual states:
The petitioner must be the subject of a juvenile court order that
declares him or her dependent on a juvenile court, or legally
commits to or places the petitioner under the custody of either an
agency or department of a state, or a person or entity appointed by
a state or juvenile court.
6 U.S. CITIZEN AND IMMIGRATION SERV., POLICY MANUAL J.2, “Eligibility
Requirements” (2017), 2017 WL 443003. Thus, there are three bases for a state
court order to satisfy the dependency requirement of SIJ status: (1) if the court
determines the juvenile is dependent on the court; (2) if the court places the
juvenile into state custody; or (3) if the court places the juvenile into the
custody of an individual or entity. See 8 U.S.C. § 1101(27)(J)(i). Here, there is
no argument that a court placed any plaintiff into the custody of the state,
12
Case: 16-51449 Document: 00514582121 Page: 13 Date Filed: 08/01/2018
No. 16-51449
some other entity, or an individual. Thus, the only possibility is that they were
made dependent on the court, and there was jurisdiction to do so.
The three orders each found that a parent had a support obligation that
would continue until one of several events occurred. Each also set the amount
of the periodic payments and concluded “that this Order may be disclosed and
used to support a petition for Special Immigrant Juvenile status.” In sum, the
court in each case ordered a parent to pay child support and then suggested
such an order was relevant for SIJ status. There was no declaration of
dependency. The plaintiffs, though, have argued that “the SAPCR is a valid
custody or dependency order for SIJ purposes because the order affects the
duties of parents to support their children.”
In considering the adequacy of these state court orders, we compare what
federal law requires that a state court have done with what Texas law permits
it to do. The applicable federal regulation defines a “juvenile court” as “a court
located in the United States having jurisdiction under State law to make
judicial determinations about the custody and care of juveniles.” 8 C.F.R.
§ 204.11(a). Although the regulation permits an applicant for SIJ status to be
someone who has not yet become age 21, what controls on eligibility for that
status is the state law governing decisions over the care and custody of
juveniles. See Id. § 204.11(c). The relevant state law here provides that in
most family law contexts, child is an individual under 18 years old. See TEX.
FAM. CODE § 101.003(a). The only statutory exception is this: “In the context
of child support, ‘child’ includes a person over 18 years of age for whom a person
may be obligated to pay child support.” Id. § 101.003(b). Another statute
provides that a court may order support for a child until age 18, or until high
school graduation, or until certain other events. Id. § 154.001(a). From these
provisions, it certainly seems proper for the state court to have entered orders
13
Case: 16-51449 Document: 00514582121 Page: 14 Date Filed: 08/01/2018
No. 16-51449
that awarded child support to each of the plaintiffs, who were over the age of
18 but qualified apparently because they were still in high school and not yet
age 21. The federal question, though, is not whether these are valid support
orders, but whether they are the equivalent of declaring the child dependent
on a juvenile court.
As we have discussed, the USCIS is entitled to exercise some diligence
in its examination of state court orders offered in support of SIJ status.
Guidance on whether these orders involved a declaration of “dependency” in
this context can be found in the Manual, which uses a California statute “[f]or
an example of state law governing declarations of dependency.” 6 U.S. CITIZEN
AND IMMIGRATION SERV., POLICY MANUAL J.2 “Eligibility Requirements”
(2017), 2017 WL 443003, n.5 (citing CAL. WELF. & INST. CODE § 300). That
statute allows the court to make temporary custody determinations while
trying to ameliorate potentially harmful aspects of the child’s family
environment. See In re Ethan C., 279 P.3d 1052, 1059–61 (Cal. 2012).
We conclude, then, that before a state court ruling constitutes a
dependency order, it must in some way address custody or at least supervision.
That is emphasized in guidance from the agency in interpreting the language
from a prior version of the statute. In an opinion on an administrative appeal,
the predecessor agency to USCIS held that “[t]he acceptance of jurisdiction
over the custody of a child by a juvenile court, when the child’s parents have
effectively relinquished control of the child, makes the child dependent upon
the juvenile court.” Jose A. Menjivar, (INS Administrative Appeals Unit, Jan.
3, 1995), 1995 WL 18235939 at *2. In sustaining the appeal, the agency relied
on statements from one of the drafters of the Texas Family Code. Id. This
drafter explained that a family court’s designation of a nonparent as managing
conservator over a juvenile in a case where parental rights have been
14
Case: 16-51449 Document: 00514582121 Page: 15 Date Filed: 08/01/2018
No. 16-51449
terminated is the equivalent of a dependency order. Id. We know from our
earlier discussion of amendments to the statute governing SIJ status that
placing the child in the custody of someone or some entity is not required, but
at least the person must be declared to be dependent on the court. See 8 U.S.C.
§ 1101(a)(27)(J). The plaintiffs urge that because the state courts could
exercise jurisdiction over the plaintiffs for child support orders, the plaintiffs
were dependent on the juvenile court for that purpose. “Dependent” for SIJ
purposes, though, demands that a state court do more than impose a financial
obligation on parents.
We proceed one step further in order to analyze, should our analysis of
the language of the orders have overlooked some implication, whether the
absence of formulaic language in the state court orders is all that blocks their
utility for SIJ status. We do not think so. Earlier we discussed the arguments
about full faith and credit. Under the statute we mentioned, 28 U.S.C. § 1738,
full faith and credit should not be given to an earlier state court ruling unless
the relevant legal issue was “fully and fairly considered.” See Underwriters
Nat’l Assurance Co. v. N.C. Life and Accident and Health Ins. Guar. Ass’n, 455
U.S. 691, 707 (1982). We expect that obligation applies to agencies under
American Airlines, 202 F.3d at 800, which discussed federal agencies’
consideration of state court orders, inasmuch as a federal court on review of
the agency action will need to make these inquiries.
Applying that obligation, and as far as the records here show, the state
court proceedings were not adversarial. The court orders provide that the
parents filed a waiver of service and did not appear. Further, there were no
arguments or recorded consideration by the courts of whether any of the
subjects of the support orders should be made dependent on those courts or
placed in the care and custody of another person or some institution, and if so,
15
Case: 16-51449 Document: 00514582121 Page: 16 Date Filed: 08/01/2018
No. 16-51449
whether there was authority to do so despite the age of the plaintiffs. Including
better language in the state court orders would at most take us to the deferred
step in our analysis in this opinion, which is whether the state court could
declare someone who was at least 18 years old dependent on the court.
In concluding this discussion, we briefly address Texas caselaw about
the jurisdiction of its courts. We make no holding as to jurisdiction, both
because it is unnecessary and because the caselaw is solely from two
intermediate Texas courts. Opinions from such courts are persuasive but not
binding in our analysis of state law. See ExxonMobile Corp. v. Elec. Reliability
Serv., Inc., 868 F.3d 408, 414 (5th Cir. 2018). The caselaw, though, supports
our conclusion that the orders in this case cannot be considered a
determination of care and custody.
One appeal discussed a SAPCR suit brought in 2009 seeking a
conservatorship and SIJ findings, but the court denied the relief. In Re
J.L.E.O., No. 14-10-00628-CV, 2011 WL 664642, at *1 (Tex. App.—Houston
[14th Dist.] Feb. 24, 2011, no pet.) (mem. op., not designated for publication).
After reaching age 18, the plaintiff filed a request for a judgment declaring the
findings needed for SIJ status, but the declaration was refused — it is unclear
if this was a new suit or a motion filed in the existing one. Id. at *1. The
appellate court held that because the plaintiff “was no longer a child as defined
by the Texas Family Code. . . , the juvenile court no longer had jurisdiction over
the person to make the requested findings” of care and custody Id. at *2.
Another Texas Court of Appeals decision, entered after briefing in this
case was completed, adopted the reasoning of In re J.L.E.O. to conclude that
where the plaintiff was already 18, the court no longer had jurisdiction to make
determinations about his care and custody as required by the SIJ statute. In
Interest of B.A.L., No. 01-16-00136-CV, 2017 WL 3027660, at *6 (Tex. App.—
16
Case: 16-51449 Document: 00514582121 Page: 17 Date Filed: 08/01/2018
No. 16-51449
Houston [1st Dist.] July 18, 2017, no pet.) (mem. op., not designated for
publication).
The plaintiffs here distinguish In re J.L.E.O. by arguing it analyzed
“whether the [trial] court correctly declined to make care and custody orders
for want of jurisdiction in a suit brought pursuant only to the Texas
Declaratory Judgment Act — and not pursuant to any provision of the Texas
Family Code.” The distinction is meaningless. Regardless of the procedural
mechanism used by that plaintiff, the court construed provisions of the Texas
Family Code. It summarized that “in some states, the court’s jurisdiction over
juveniles may be extended” after the individual turned age 18, but “Texas has
no similar provision.” In re J.L.E.O., 2011 WL 664642 at *2 n.5 (citations
omitted). According to the J.L.E.O. court, there is a three-year gap in Texas
between the state-law age of majority (18) after which care and custody can no
longer be ordered and the outer limits of the federal regulation for SIJ
eligibility (21). See id.
In summary, the USCIS properly determined that the state court orders
for child support were not the equivalent of the necessary “care and custody”
rulings required for SIJ status. Whether the Texas law even allows its courts
to make such rulings for individuals who have passed their eighteenth
birthday is an issue we leave for another day.
C. District court’s obligation to rely on agency reasoning
The plaintiffs argue that the district court relied on reasoning not
employed by the agency when upholding the USCIS decision. Courts must
focus on the justifications expressed by the agency at the time of its ruling. If
an agency decides based on invalid reasons, “[t]he reviewing court should not
attempt itself to make up for such deficiencies; we may not supply a reasoned
17
Case: 16-51449 Document: 00514582121 Page: 18 Date Filed: 08/01/2018
No. 16-51449
basis for the agency’s action that the agency itself has not given.” Liwanag v.
INS, 872 F.2d 685, 692 (5th Cir. 1989) (quoting Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). But we
need not require pellucid clarity “if the agency’s [analysis] may reasonably be
discerned.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Bowman
Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
The plaintiffs’ argument is based on its characterization of what the
USCIS decided. Each decision included the following language: “the evidence
submitted in conjunction with your I-360 petition and response to the RFE []
is insufficient to meet your burden of showing that the SAPCR included with
your SIJ petition was issued pursuant to the court’s jurisdiction over you as a
juvenile, [so] your request for SIJ classification is hereby denied.” The
plaintiffs then argue that the agency changed its claimed justification in the
district court, where USCIS pointed out, quite accurately as we have discussed,
that the state court orders were for child support and never declared
dependency.
We do not see the discrepancy. The USCIS summarized the Texas
statute that a child or minor must be under age 18 and that the order itself
required support payments to continue until the applicant reached age 18 or
until certain later events occurred, like high school graduation. The USCIS
noted that what the state courts ordered was child support. It remarked that
the applicants argued that such an order was an SIJ dependency or custody
order “because the order affect[ed] the duties of parents to support their
children.” Having referenced the state law that minors are those under 18,
having said that an extension beyond that age for child support was ordered,
then having described the plaintiffs’ reasoning for why these orders were “valid
custody or dependency orders,” the USCIS effectively stated its disagreement
18
Case: 16-51449 Document: 00514582121 Page: 19 Date Filed: 08/01/2018
No. 16-51449
by saying it was not convinced that “the SAPCR was issued by a juvenile court
making a care and custody determination of a juvenile.”
The district court did analyze and agree with the agency’s arguments
about what is required for a dependency order to support SIJ status. It also
discussed the plaintiffs’ insistence that this was a new justification. The
district court found the portion of the agency decision we just quoted — the
order was not from “a juvenile court making a care and custody determination
of a juvenile” — to be the reasoning that no dependency order was actually
entered.
Not central to our resolution, but at least of interest is the plaintiffs’
initial characterization of the USCIS’s decisions. Both the original and
amended complaints challenged “USCIS’s denial of Plaintiff’s SIJ petition on
the basis that a person who has reached the age of 18 is not a ‘child’ under the
Texas Family Code and, therefore, not ‘dependent’ on a ‘juvenile court.’”
The district court did not adopt a post-hoc justification for its decision.
D. Arbitrary and capricious decision
The plaintiffs also claim USCIS’s denials were arbitrary and capricious.
Agency action is arbitrary and capricious “when it is ‘so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.’”
Wilson v. U.S. Dep’t of Agric., 991 F.2d 1211, 1215 (5th Cir. 1993) (citation
omitted). The district court held that the denials were not arbitrary and
capricious because the agency looked for evidence that the Texas court could
have found the plaintiffs to be dependent juveniles. Seeing no statutory basis
for making that determination, the agency denied the applications. The agency
considered both state law and its own regulations that set the requirements
for dependency orders. The letters of denial reference the fact that state courts
19
Case: 16-51449 Document: 00514582121 Page: 20 Date Filed: 08/01/2018
No. 16-51449
hearing SAPCR cases may exercise jurisdiction over individuals older than 18
for the limited purpose of child support but the otherwise applicable definition
for a child is one who is under 18 years old.
The only order as to each of the plaintiffs was one for child support,
causing the agency to conclude there was insufficient evidence of a valid
dependency order. It then denied the petitions. The agency relied on state law
and its own regulations to make the determination that the SAPCR orders did
not comply with what SIJ status petitions require. We agree with the district
court that the agency’s decision was not arbitrary or capricious.
Thus, we reject each of the arguments about defects in the agency and
district court rulings under the APA. We now turn to the remaining issues.
2. Motion to take judicial notice
The plaintiffs have moved in this court to have us take judicial notice of
certain documents. We review first the request to take notice of Ramon Soto
Carias’s USCIS proceedings and then the request to take notice of the
supplemental SAPCR orders.
Originally, Soto Carias was a plaintiff in this action, but the agency
reconsidered, reversed its denial of his petition, and granted him SIJ status.
The plaintiffs argue that ruling is relevant to their case and, because the
documents are a matter of public record, they should be judicially noticed
under Federal Rule of Evidence 201.
Rule 201(b) permits a court to take notice of facts “generally known
within the trial court’s territorial jurisdiction” or facts that “can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.” FED. R. EVID. 201(b). Such a request may be denied, though,
where granting the motion would “undermine the general rule that a party
20
Case: 16-51449 Document: 00514582121 Page: 21 Date Filed: 08/01/2018
No. 16-51449
may not add documents to the record that were not presented to the district
court.” Board of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 n.4 (5th Cir.
2012) (citation omitted). There, this court denied a request to supplement the
record or take judicial notice of an official report prepared by the Corps of
Engineers after determining the information in the supplemental materials
was not necessary to deciding the case. Id.
The documents involving Soto Carias all predate the district court’s
decision and could have been provided to that court. We also do not see that
the materials are relevant to our decision. We are examining the validity of
the agency’s decisions that, as to the three plaintiffs, qualifying dependency
orders were not entered. We have concluded that the decision was correct. If
the Soto Carias documents might show inconsistent reasoning, and we do not
hold they do, the time for injecting that into the district court’s deliberations
has passed. We deny the request.
The plaintiffs also ask that we take judicial notice of additional orders
entered in each of the plaintiffs’ SAPCR cases. They were entered two months
after the district court entered its order, and that court relied in part on the
absence of any declaration of dependency. In what were called “motions to
clarify,” though perhaps “motions to enhance” would have been more accurate,
the plaintiffs sought an additional order in each case. The state court complied.
Each order states that the petitioner was a child under Texas Family Code
Section 101.003(b); that there was a basis for a child support order; and that
the petitioner was “dependent on this Court pursuant to this Court’s authority
under Texas Family Code 154.001(a)(1) and 154.002.”
Our analysis has not relied on the absence of some magic words in the
state court orders. We discussed why “dependency” for SIJ status purposes
has a specific federal meaning. Merely saying, now, that the order was one
21
Case: 16-51449 Document: 00514582121 Page: 22 Date Filed: 08/01/2018
No. 16-51449
declaring dependency does not address that problem. Regardless, “the focal
point for judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing court.” Camp v.
Pitts, 411 U.S. 138, 142 (1973). These documents are not part of the
administrative record, could not have been considered by the agency making
the decision, and are therefore irrelevant to this appeal.
We deny the plaintiffs’ motion to supplement.
3. Entire record
The plaintiffs argue the district court failed to consider the entire
administrative record, which is reflected in that court’s failure to reference the
SAPCR petitions. According to the plaintiffs, the record, when properly
considered, demonstrates the agency had sufficient evidence to conclude that
the SAPCR orders were issued by a juvenile court. We interpret the brief to
concede, though, that those petitions were actually before that court.
The plaintiffs rely on one of our precedents in which we reversed so the
district court could consider the entire administrative record. United States v.
Menendez, 48 F.3d 1401, 1410 (5th Cir. 1995). There, the relevant statute
required the government to file the entire administrative record with the
district court, and that had not been done. Id. at 1409. The relevant statute
here is Section 706 of the APA, which allows the court to review only “those
parts of [the record] cited by a party.” 5 U.S.C. § 706. The real issue the
plaintiffs raise is not that the SAPCR petitions were absent from the record
but that they were absent from the court’s analysis. Menendez does not require
the court to refer to any particular set of documents.
AFFIRMED. MOTION TO SUPPLEMENT RECORD DENIED.
22