A 14-year-old Guatemalan national living in Laguna Niguel with her aunt and cousins won a key legal battle to remain in the United States, one of her attorneys said Thursday.
A three-judge panel of the state’s 4th District Court of Appeal handed down a ruling on Christmas Eve regarding the case of “O.C.,” a 14-year-old Guatemalan refugee who requested a special immigrant status for minors declared dependent in a juvenile court domestically.
The girl and her attorneys had previously asked Orange County Superior Court Judge David L. Belz in probate court for the immigrant status, but were denied. The appellate panel concluded that Belz did not cite state law and failed to check a box on a form showing the girl cannot go back to her mother, who has died.
There has been a significant influx of these types of requests over the past few years, according to one of the girl’s attorneys, Jessica Weisel.
“It’s a very unusual proceeding that trial courts don’t see very often,” Weisel said. “When we tried to submit amended findings (of the client’s status), it appeared the court just refused to accept them.”
It is not certain the request to give an amended petition a review even made it to the judge, Weisel said.
The attorneys for the girl plan to ask the appellate justices to publish their opinion so it will establish precedence in California. There have been similar rulings by appellate justices and the state Supreme Court, “but this is the first to really go into detail,” Weisel said.
The girl was 12 when her mother died, according to the appellate ruling, which says her father “became ill and depressed, and failed to provide O.C. with the care she needed.”
The girl and her cousins left Guatemala and passed through Mexico before reaching the U.S., where they were detained. They were released to O.C.’s aunt, Blanca Odilia Carrillo Gallardo, who is the mother of her cousins, according to the ruling.
Gallardo emigrated to the U.S. in about 2008 and would send money to O.C.’s mother to help care for her children. The 14-year-old has lived with Gallardo since September of last year.
“Gallardo provides O.C. with everything she needs and treats her like a daughter,” the justices’ opinion says. “O.C.’s father does not send any money from Guatemala for her expenses. O.C. has no one in Guatemala to care for her.”
The justices also concluded that gangs where she lived in Guatemala “assault and steal from community members” and “the police are unable to control the gang members. Federal travel advisories support O.C.’s fear that gang members will hurt her if she returns to Guatemala.”
Gallardo was appointed the girl’s guardian and her petition for special immigration status was initially approved earlier this year. But when her attorneys submitted a required form, they were told the documents “could not be processed because they did not match the findings in the probate court’s minute order or the language of the petition,” the justices wrote.
So the girl’s attorneys filed a revised petition that cited state law, but the probate court cited only federal law, not the state’s law. The attorneys argued the probate court must consider state law, but a “probate clerk rejected the proposed amended findings,” according to the justices’ ruling.
Federal law allows undocumented children a way to gain lawful permanent residency and citizenship through a “hybrid” procedure that draws on a collaboration of state and federal agencies, the justices wrote. The state courts are allowed to become part of the immigration process for some dependents or minors who cannot be reunited with a parent.
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