M., BIANKA v. S.C.

Amicus Curiae Brief of Immigrant Legal Resource Center

Cal.April 13, 2017

S$233757 IN THE SUPREME COURT FILED SUPREME COURT OF CALIFORNIA APR18 2017 Jorge Navarrete Clerk BIANKA M., Petitioner, Deputy Vv. THE SUPERIOR COURTOF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent, ‘tape tndGLADYSM., a Real Party in Interest. APR -5 2017 CLERK SUPREME COURT AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE CASE NO. B267454 APPLICATION FOR PERMISSIONTO FILE AMICUS CURIAE BRIEF AND PROPOSED BRIEF OF AMICUS CURIAE THE IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER BIANKA M. GIBSON, DUNN & CRUTCHER LLP JULIAN W. POON (SBN 219843) | DANIEL M. BRUGGEBREW (SBN 307037) *ERIC WESTLUND (SBN 293403) 555 Mission Street, Suite 3000 333 South Grand Ave. San Francisco, CA 94105-0921 Los Angeles, CA 90071-3197 Tel: (213) 229-7474 Fax: (213) 229-6474 ewestlund@gibsondunn.com Attorneysfor Amicus Curiae the Immigrant Legal Resource Center $233757 IN THE SUPREME COURT OF CALIFORNIA BIANKA M., Petitioner, Vv. THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; GLADYSM., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE CASE NO. B267454 APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND PROPOSED BRIEF OF AMICUS CURIAE THE IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER BIANKA M. GIBSON, DUNN & CRUTCHER LLP JULIAN W.POON (SBN 219843) DANIEL M. BRUGGEBREW (SBN 307037) *ERIC WESTLUND (SBN 293403) 555 Mission Street, Suite 3000 333 South Grand Ave. San Francisco, CA 94105-0921 Los Angeles, CA 90071-3197 Tel: (213) 229-7474 Fax: (213) 229-6474 ewestlund@gibsondunn.com Attorneysfor Amicus Curiae the Immigrant Legal Resource Center APPLICATION TO FILE AMICUS CURIAE BRIEF Pursuantto rule 8.520(f) of the California Rules of Court, the Immigrant Legal Resource Center (“ILRC”) respectfully submits, as proposed amicuscuriae, the enclosed brief in support of Petitioner Bianka M.(“Bianka’).! The ILRC—foundedin 1979 and based in San Francisco, California—is a national non-profit resource center that provides training, technical assistance, and publications on immigration law and policy, including immigrant children’s issues such as special immigrant juvenile (“SIJ”) status. (See, e.g., A. Junck, et al., Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth (4th ed. 2015); A. Junck, S. Kinoshita & K. Brady, Immigration Benchbook for Juvenile and Family Court Judges (2010); A. Junck, Special Immigrant Juvenile Status: Relieffor Neglected, Abused, andAbandoned Undocumented Children (2012) 63 Juvenile & Fam.Ct. J. 48.) The ILRC also regularly provides training and technical assistance on SIJ issues to juvenile courts; social workers; immigration attorneys and pro bono attorneys; probation officers; dependency attorneys; and public defenders in California and throughout the United States. The enclosed brief seeksto aid the Court’s resolution of this case by analyzing the controlling preemption issues implicated by the Court of Appeal’s opinion. As Bianka implied in her opening brief on the merits (at p. 29, fn. 7), the Court ofAppeal usurped federal authority whenit ruled that superior courts could not issue SIJ findings outside of the context of a ' Noparty or counsel for party in this case authored the proposedbriefin whole or in part or made a monetary contribution intended to fund the preparation or submission of the proposed brief. No personorentity other than amicus, its members, or its counsel made a monetary contribution intended to fund the preparation or submission ofthe proposedbrief. “bona fide” child custody proceeding—an unmistakable violation of the principles of federalism that channel state and federal responsibilities throughout the SIJ process. Furthermore, the enclosed brief seeksto assist the Court by demonstrating that the Legislature—by amending Codeof Civil Procedure section 155 (California’s SIJ statute) after the Court of Appealissued its opinion—clarified and affirmed the jurisdiction of California superiorcourts in cases precisely like Bianka’s. For these reasons, amicus curiae the ILRC respectfully requests that the Court accept the enclosed brief for filing and consideration. DATED:April 5, 2017 Respectfully Submitted, GIBSON, DUNN & CRUTCHER LLP By: Ce WoeotldtLese. Eric Westlund Attorneysfor Amicus Curiae the immigrant Legal Resource Center S$233757 IN THE SUPREME COURT OF CALIFORNIA BIANKA M., Petitioner, Vv. THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTYOF LOS ANGELES, Respondent, GLADYSM., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE CASE NO. B267454 BRIEF OF AMICUS CURIAE THE IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER BIANKA M. GIBSON, DUNN & CRUTCHER LLP JULIAN W. POON (SBN 219843) DANIEL M. BRUGGEBREW (SBN 307037) *ERIC WESTLUND (SBN 293403) 555 Mission Street, Suite 3000 333 South Grand Ave. San Francisco, CA 94105-0921 Los Angeles, CA 90071-3197 Tel: (213) 229-7474 Fax: (213) 229-6474 ewestlund@gibsondunn.com Attorneysfor Amicus Curiae the Immigrant Legal Resource Center TABLE OF CONTENTS Page I. INTRODUCTION2.00ccc cesceeseneeteceeesteceseseaeeneeeesesseenseeseeneaees 1 Il. ARGUMENT AND AUTHORITIES........ccceecceesecesseseesseseseessseessees 2 A. State courts, although critical to the SIJ process,are preempted from assuminga role that—if it exists—is reserved for the federal government...........cc:ccsesseesseseeseteeees 3 1. Therole of state courts in the SIJ processis limited to the usual exercise of their jurisdiction to make child welfare determinations...........0..000..00. 4 2. The federal government has exclusive and preemptive jurisdiction to grant or deny SIJ STATUSoo.eeeeeeeeeeeeetessaeeeesseneeeeeeeeeeeneeeseseesceeeanes 6 3. The Court of Appealerred in affirming the denial of Bianka’s request for a custody order on the groundsthat the proceeding was not “Dona fide” oo... .eeeeecceseeeeeeesseessessesessseseaeeceeteeeeneeeeneeaee 7 B. Two of the Court ofAppeal’s central holdings violate the plain meaning of section 155 as subsequently Clarifiedoeceeeseesceescessceesesseseeeeseeesenssessessecesseecseecssecsaeers 16 1. It was error for the Court ofAppeal to hold that SIJ findings must be madeafter a full and fair evidentiary hearing in the context of a “bona fide” custody proceeding.........ccccccccsccesseesessssesceeseere 16 2. The amendmentsto section 155 did no more than clarify existing laW.........ccceeesesseeeeecsesecessessees 18 HT. CONCLUSION20ceceeeseecseeeeeeseneeseeeeseseseeseaaeeeseeessesseensees 20 CERTIFICATION OF WORD COUNT......ccceeccccccccceseeeteceeseenseeeesesaeeas 22 TABLE OF AUTHORITIES Page(s) Cases Ankenbranat v. Richards (1992) 504 U.S. 689ccccccccccccessssesscesesevessesesseeeesensrsetensteseststesenaes 4 Arizona v. United States (2012) 567 U.S. [132 S.Ct. 2492]occceceeseceeeeeeeees 6, 7, 13 Bianka M. v. Gladys M. (Super. Ct. L.A. County, 2015, No. BF052072) (Aug. 24, 2015)ee ccceccsccesccsseesesseseesecsscsesacsecsecsecceecsecesseenscsessacaeesaeens 1,2 Bianka M. v. Superior Court (2016) 199 Cal.Rptr.3d 849 oooccccceceeeee 2, 8,9, 11, 13, 16, 17, 19 Brown v. Mortensen (2011) 51 Cal.4th 1052ooccessecsccseccessevessteceeeseseesseeeettsneenes 6 Carter v. Cal. Dept. of Veterans Affairs (2006) 38 Cal4th 914occcsccccssesseseeseecsescseesecsseceseceseesucerens 18, 19 Chase v. Blue Cross of Cal. (1996) 42 Cal-App.4th 1142 ooo. ccceeceseesesesseeeseeees Leesseestteeenseees 6 Christensen v. Harris County (2000) 529 U.S. 576 .ecccececeesceseseessssessesesesessesecsecatssecseseseesseacseersssavers 10 DeCanas v. Bica (1976) 424 U.S. B51 occceecsccsssssecccssecssecssescossasevesssssesessersesecseesensns 7 Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th 433 ooo cccccseccessseccsseseeseccsecesescsecscsscsevneesevers 7 Eddie E. v. Superior Court (2015) 234 Cal.App.4th 319 ooo. ecceeceesesesseteeseeseeseeseeeseeaes 7, 12, 13, 20 Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340 oo. eeeecceesesseseeseeteeeenseees 3, 7, 12, 17, 20 Lone Star Sec. & Video, Inc. v. Bureau ofSec. and Investigative Services (2009) 176 Cal.App.4th 1249 oo cccccceccessccscesecnseceecesecsssetseneseeears 18 Manhattan Gen. Equipment Co. v. Comr. ofInternal Revenue (1936) 297 U.S. 129.ccc cccccsesccsseeesesesssecsessecsecsacaeesseesseesevscseersensevees 10 McClung v. Employment Development Dept. (2004) 34 Cal4th 467 occcccccccssseessscseeseeseecssecseecsseeccsesesscstseveaseennes 18 -ii- TABLE OF AUTHORITIES(continued) Page(s) Olszewski v. Scripps Health (2003) 30 Cal 4th 798 ooo. ccccccccscccsesesessseeeessececesecsecsecssseseesssessesuensevers 6 Oneok, Inc. v. Learjet, Inc. (2015) 575 U.S. [135 S.Ct. 1591]cccceeccsecseeesessetenenens 6 Perez-Olano v. Gonzalez (C.D.Cal. 2008) 248 F.R.D. 248 ooo. cccccccccsscsscessceseesscssecseeseessecsseseeneeees 4 Printz v. United States (1997) 521 U.S. 898 occecccesscscessssesseseessesesensueccsescsecsseceeesesesecseeaeeeas 5 Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal4th 298 ooo. cccccccccsscsscsscsecsseecsssecssessecesscesesssusscesessneeees 6 Roederv. Islamic Republic ofIran (D.C. Cir. 2003) 333 F.3d 228 ooo. ccccccccsecseccsseecsssetsesseeeerenseesneseeaee 9,12 Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022 ooo... cc ccccccssccssececsecesecsscessesssecsstenseenses 18 Western Security Bank vy. Superior Court (1997) 15 Cal4th 232 oocccecccccsscssesessecssecessecesseeseenssessscssecereeas 18, 19 White v. Mayflower Transit, LLC (9th Cir. 2008) 543 F.3d 58]cccccc cecsccsecssecesecsscsecesscsecsecsscssesrenarens 6 Constitutional Provisions USS. Const., art. 1, § 8, cl. 4cecccccesccessesecsssceccssseessaseccseeserseeeenstaaess 6 USS. Const., art. VI, Cl. 2 cocci ccccseccccsssccsseseececsssessesessersessesecauseenaresteiteness 6 Statutes 8 ULS.C. § TIO (a)27D)ecececccecccsssecssensessesecseecesseesseeseecsseeeeressseees 1,3,4 8 U.S.C. § L1LOD (a)(QTI) occ cecccccccccecssccsesseccsseccsesesesscesseeesstensscsssessanes 4,7 8 ULS.C. § L1OD a)\(2AT)(D)GLoccccececsecceseesecssecssesceessecesstsessesstesssecasessarveeas 4 8 ULS.C. § 1101 (a)(27)(I)Gai) oe eee ceccceceeeteeeeeeseeeessecseseseeeseeestenees 7,11, 13 Code Civ. Proc., § 155 ...cccccccceeccceceeesccsssessersssseess 2, 3, 16, 17, 18, 19, 20 Code Civ. Proc., § 155, subd. (€)(1)......ccceccscccseecsseccssceecseccsesncsecsucaevanens 4,5 Code Civ. Proc., § 155, subd. (a)(2).....cccccccccsccsssessseccssscecsesssesncesesssceeearenss 17 Code Civ. Proc., § 155, subd. (D)(1) 0... cccccccsccccscccsseessccecesstessssssssesaneeeses 4 Code Civ. Proc., § 155, subd. (b)(2)......ccccccecscsecessecescesccsecssesssrsesvaeenseens 17 -iii- TABLE OF AUTHORITIES(continued) Page(s) Fam. Code, § 3020, subd. (8) ....c.cccccccccccscsscsecesecesecssecessesesseescesecasevensenstensare 8 Fam. Code, § 3405, subd. (8) .....:ccccccccssecsccsessecssecseecsecesscsesecsecsevuseesseesneseaes 8 Fam. Code, § 3421, subd. (a)(1)cc cccccscscsecscesscsscsscessecesecsesssecsaussssvaceeaees 8 Fam. Code, § 3421, subd. ()(2)......c.ccccccccceesecceceseessesesseseescesecsasesssessensraeeas 8 Fam. Code, § 3422, subd. (8) ....ccccccccccsecssssesseseeeseeseessesseceeecscsecseessevsssessvenes 8 Other Authorities Angie Junck, Immigrant Legal Resource Center, Comment Letter on Proposed Regulation regarding Special Immigrant Juvenile Petitions (Nov. 7, 2011), https://www.regulations.gov/document?D=USCIS-2009- 0004-0037. ooo. eee seseeseceeeereseeeeseeeeseesenseseeseseeescseseecseesssseeessscessessenas 12 H.R.Rep. No. 105-405, Ist Sess. (1997) ..occcccccscscsseecesscessessstereeaes 9,10, 11 The Immigrant Children Lawyers Network, Comment Letter on Proposed Regulation regarding Special Immigrant Juvenile Petitions (Nov. 7, 2011), https://www.regulations.gov/document?D=USCIS-2009- QO04-OO5 1 ooeeeeeeeseeeteeneeeseeeceeeesecaesaeeesesesseseseseseseessceeeesssessssreeens 11 Judicial Council of California, Memorandum regarding Senate Bill 873 and the Special Immigrant Juvenile Process in the Superior Courts (Sept. 30, 2014)... 5, 12, 17, 20 Legis. Counsel’s Dig., Assem. Bill No. 1603 (2015-2016 Reg. SESS)... eeceecesesseeeeeeereseceneecsseeeseeessessecsecsseseesaeeesaeeseesecseesessssesesents 16 Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.Bill No. 1603 (2015-2016 Reg.Sess.) .......000.0.. 17 Special Immigrant Juvenile Petitions, 76 Fed.Reg. 54978 (Sept. 6, 2011) [proposed 8 C.F.R. § 204. 11(C)C1)G)] nccecccccscecsseccsseeesecsecserssseaeesens 11 USCIS Policy Manual, vol. 6, pt. J ....ceceseeeeeeenees 5, 8, 10, 11, 12, 14, 15 William R. Yates, Associate Director for Operations, U.S. Customs & Immigration Services, Memorandum #3—Field Guidance on Special Immigrant Juvenile Status Petitions (May 27, 2004) .......ccccccccccscceessessersssseessesneeees 11 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457 (Dec. 23, 2008) 122 Stat. 5044oo.9 -iv- I. INTRODUCTION Congress created the special immigrant juvenile (“SIJ”) classification to protect some of the most vulnerable immigrant children in our society. In order to apply for SIJ status with the United States Citizenship and Immigration Services (“USCIS”), a child—like Petitioner Bianka M.(“Bianka’’) here—must be subject to the jurisdiction ofa state juvenile court and obtain three findings(the “SIJ findings”or the “predicate findings”) from that court, namely: (1) that the child has been declared dependent upon the court or placed under the custody of an agency or departmentof a State, or an individual or entity appointed by the court; (2) that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and (3)thatit is not in her best interests to return to the country of last habitual residence. (8 U.S.C. § 1101(a)(27)(J).) In this case, despite evidence that Bianka’s alleged father (“Jorge”’)—whohadpreviously stated that he would prefer that Bianka die rather than provide for her well-being—had received notice of Bianka’s maternity action, the superior court refused to issue a custody order or find that reunification was not viable because the court (erroneously’) believed Bianka’s alleged father was a necessary party to the proceedings. (See Bianka M. v. Gladys M. (Super. Ct. L.A. County, 2015, No. BF052072), Minute Order at p. 12 (Aug. 24, 2015).) The superior court also declined to makea best-interest finding despite noting that the evidence “supports a * Before this Court, Petitioner and appointed amicus have addressed the superior court’s error with respect to personaljurisdiction and joinder (Petitioner’s Opening Brief on the Merits at pp. 12-13, 33-35; Brief of Amicus Curiae at the Request of the California Supreme Court at pp. 35-41), and amicus will not belabor the point here. finding”that returning to Honduras would not be in Bianka’s bestinterest. (Ud. at p. 13.) The result is that Bianka was precluded from applying for SIJ relief despite the superior court’s apparent awarenessthat she meets the eligibility requirements under the federal immigrationstatute. The Court ofAppeal compoundedthe superior court’s error whenit purported to impose a requirementthat superior courts may only makeSIJ findings “in the context of ongoing, bona fide proceedingsrelated to child welfare, rather than through specially constructed proceedings designed mainly for the purpose of issuing orders containing SIJ findings.” (Bianka M. v. Superior Court (2016) 199 Cal.Rptr.3d 849, 860 (Bianka M.), review granted and opn. superseded sub nom. M., Bianka v. S.C. (Cal. 2016) 370 P.3d 1052.) Federal law imposes no such “bona fide” requirement during adjudication of SIJ petitions. Moreover, even if USCIS were required to determine whetherpetitioners’ predicate custody proceedings were “bona fide,” the vesting of that responsibility in the federal government would preempt state courts from making similar determinations. Furthermore, much of the Court ofAppeal’s analysis relies on novel and erroneous interpretations of Code of Civil Procedure section 155 (“section 155”), a fact made even plainer by the Legislature’s subsequentclarification of that section immediately following the Court ofAppeal’s decision. For these reasons, and for reasonsarticulated below, amicus urges this Court to vacate the decision of the Court of Appeal and to order the Court of Appeal to remand to the Superior Court with instructions to grant Bianka’s custody request and to make the requested SIJ findings. If. ARGUMENT AND AUTHORITIES The superior court found that “the requirements ofjoinder, jurisdiction and properservice of a child’s alleged father, all of which [we]re unmethere, preclude[d] the making of a custody order.” (Bianka M. v. Gladys M., supra, No. BF052072, Minute Order at p. 13 (Aug. 24, 2015).) In affirming, the Court ofAppeal improperly upheld the denial of Bianka’s requests for custody and SIJ findings, agreeing with the superior court that California law required that Bianka join Jorge asa party to the custody proceedings. Worse, the Court of Appeal attempted to create a general requirementthat all custody cases brought by would-be SIJ petitioners in California be “bona fide” in a special manner beyondthe normaljurisdictional requirements. It was never Congress’s intent—anditis not the practice of USCIS—to require that the state court proceedings predicate to a SIJ petition be “bonafide” for purposes of SIJS, beyond what is required by state law in any dependencyor custody proceeding. Critically, even if USCIS’spractice were to review the predicate proceedings to ensure that they were indeed “bonafide,” federal immigration law preempts state courts from arrogating to themselves the power to makethat determination in the first instance. In addition, the Court ofAppeal’s decision was contrary to established California law,as clarified by the Legislature’s subsequent amendmentof section 155. This Court should vacate the contrary opinion of the Court ofAppeal. A. State courts, although critical to the SIJ process, are preempted from assuminga role that—if it exists—is reserved for the federal government ace [S]tate juvenile courts play an important and indispensable role in the SIJ application process.’ [Citation.]” (Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340, 348 (Leslie H.).) Indeed, a young personlike Bianka whoseeks SIJJreliefmay not take her first step on the path to lawful permanentresidency until she has obtained a custody order and a juvenile court has madethree predicate findings pursuant to Title 8 United States Code section 1101(a)(27)(J) (“the SIJ statute”). (See id. at p. 349,citing 8 U.S.C. § 1101(a)(27)(J); see also Code Civ. Proc., § 155, subds. (a)(1), (b)(1).) The SIJ statute first requires that the juvenile court find that the youth has been “declared dependent on a juvenile court” or has been “placed under the custody of]] an agency or departmentofa State, or an individual or entity appointed by a State or juvenile court.” (8 U.S.C. § 1101(a)(27)(J)i).) Second,it requires that the juvenile court find that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found underState law.” (Ibid.).? Third, the juvenile court must find “that it would notbe in the alien’s best interest to be returnedto the alien’s or parent’s previous country of nationality or country of last habitual residence.” (/d., § 1101(a)(27)(J)ai).) 1. Therole of state courts in the SIJ process is limited to the usualexercise of their jurisdiction to make child welfare determinations In placing responsibility in state courts to make the predicate SIJ findings, Congress recognized “the institutional competence ofstate courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests.”” (Perez-Olanov. Gonzalez (C.D.Cal. 2008) 248 F.R.D. 248, 265.) USCIS, the federal agency charged with processing SIJ applications, agrees: > Congress quite properly directs SIJ petitioners to seek a custody order from a state court since federal courts lack jurisdiction to make such determinations. (Ankenbrandt v. Richards (1992) 504 U.S. 689, 703 [“Weconclude . . . that the domestic relations exception [to diversity jurisdiction] . . . divests the federal courts of powerto issue . . . child custody decrees.”]; id. at p. 702 [“‘[T]he whole subject of the domestic relations of... parent and child[] belongsto the laws of the States and not to the laws of the United States.’ [Citation.]’”].) While the standards for making best interests determinations may vary betweenstates, a best interests determination generally involves the deliberation that courts undertake under state law when deciding whattypes ofservices, actions, and orders will best serve a child, as well as a deliberation regarding whois best suited totake care of a child. (USCISPolicy Manual,vol. 6, pt. J, ch. 2, § (D)(3) (Jan. 5, 2017),fn. omitted.) For this reason, “USCISdefers to the juvenile court in making this determination and as such does not require the court to conduct any analysis other than whatis required understate law.” (/bid.) While it may be “unusual” for a federal statute to establish a “cooperative relationship between state courts and the federal government” like the one found in the SIJ statute, such a relationship “is not without precedent.” (Jud. Council of Cal., Mem. regarding Senate Bill 873 and the Special Immigrant Juvenile Process in the Superior Courts, Sept. 30, 2014, pp. 7-8 & fn. 27 (hereafter Jud. Council Memo).) A “state court must entertain a claim under federal law whenits ordinary jurisdictionis appropriate and properly invoked understate law.” (/d. at p. 8, fn. 27, citing Printz v. United States (1997) 521 U.S. 898, 907.) Indeed,after the Court ofAppeal’s decision, the Legislature amended section 155 to ensure that SIJ petitioners could obtain SIJ findings, clarifying that the superior courts “have Jurisdiction to make the factual findings necessary to enable a child to petition the [USCIS] for classification as a special immigrant juvenile.”* (Code Civ. Proc. § 155, subd. (a)(1).) Nevertheless, the indispensable role of state courts in the SIJ process is not a limitless one. * See Section B, infra, for further discussion on how the updated text of section 155 bears on this case. 2. The federal governmenthasexclusive and preemptive jurisdiction to grant or deny SIJ status The Supremacy Clause of the U.S. Constitution “‘makes federal law paramountand vests Congress with the power to preemptstate law.’ [Citations.]” (Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 307-08 (Herb Thyme).)° Congress may exerciseits preemptive authority with “an explicit preemption clause, or courts may imply preemption under the field, conflict, or obstacle preemption doctrines. [Citations.]” (/d. at p. 308; Oneok, Inc. v. Learjet, Inc. (2015) 575 U.S. ___ [135 S.Ct. 1591, 1595].)° Field preemption,in particular, applies “whenit is clear that Congress intended, by comprehensive legislation, to occupy the entire field of regulation, leaving no room for the states to supplement federal law. > Asis relevantin this case, federal law may preempt judge-made law as well as statutes. (See, e.g., Brown v. Mortensen (2011) 51 Cal.4th 1052, 1060 [considering whether the federal Fair Credit Reporting Act preempted state statutory and commonlaw protection of informational privacy interests]; Chase v. Blue Cross ofCal. (1996) 42 Cal.App.4th 1142, 1160 [considering whether the Federal Arbitration Act preempted the covenant of good faith and fair dealing]; White v. Mayflower Transit, LLC (9th Cir. 2008) 543 F.3d 581, 586 [holding that the federal Interstate Commerce Act preempted a common-law claim for intentional infliction of emotionaldistress].) ceeThe burdenis on “‘the party claiming that Congress intended to preempt state law to proveit.’ [Citation.]” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815.) Where preemption is implied, there exists a presumption against preemption, the strength of which is “heightened in areas where the subject matter has been the longstanding subject of state regulation in the first instance.” (Herb Thyme, supra, 62 Cal.4th at p. 313.) Here, the presumption against preemptionis at its nadir given that the federal government“has broad, undoubted powerover the subject of immigration and the status of aliens.” (Arizona v. United States (2012) 567 U.S. [132 S.Ct. 2492, 2498] (Arizona); see U.S. Const., art. I, § 8, cl. 4 [authorizing Congress to “establish an uniform Rule ofNaturalization”].) [Citation].” (Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th 433, 447.) In other words, “[f]ield preemptionreflects a congressional decision to foreclose any state regulation in the area, even if it is parallel tofederal standards. {Citation.]” (Arizona, supra, 132 S.Ct. at p. 2502, emphasis added.) Congress has occupied the field with respect to the adjudication of SIJ petitions, having foreclosed state involvement by makingclear that “[a] state court’s role in the SIJ process is not to determine worthy candidates for citizenship.” (Leslie H., supra, 224 Cal.App.4th at p. 351; see 8 U.S.C. § 1101(a)(27)(J)Gii) [“[T]he Secretary of Homeland Security consents to the grant of special immigrant juvenile status.”].) Such a foreclosure comes as no surprise since, “‘[u]nder the Constitution, the states . . . can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residenceofaliens in the United States or the several states.’” (DeCanasv. Bica (1976) 424 U.S. 351, 358, fn. 6, overruled by statute on other grounds, as described in Arizona, supra, 132 S.Ct. at p. 2504.) Indeed, the Court ofAppeal has recognizedthat “‘the federal governmenthas exclusive jurisdiction with respect to immigration [citations], including the final determination whetheran alien child will be granted permanentstatus as an SJJ [citations].’” (Eddie E. v. Superior Court (2015) 234 Cal.App.4th 319, 326 (Eddie E.).) That said, Congress has established an important (albeit narrowly drawn)role for state courts in the SIJ process. 3. The Court of Appeal erred in affirming the denial of Bianka’s request for a custody order on the groundsthat the proceeding was not “bona fide” A crucialpart of the state juvenile court’s role in the SIJ processis to place a petitioning youth under the custody of an agency,individual, or court-appointed entity pursuant to state law. (8 U.S.C. § 1101 (a)(27)\D@: USCISPolicy Manual,vol. 6, pt. J, ch. 3, § (A)(2) [“There is nothing in USCISguidance that should be construedas instructing juvenile courts on how to apply their ownstate law.”’].) California law authorizes a superior court to issue a custody order when California is the child’s “homestate” (Fam. Code, § 3421, subd. (a)(1)),’ with “the health, safety, and welfare” of the child being “the court’s primary concern in determining the bestinterest of” the child. (See id., § 3020, subd.(a).) Here, despite the superior court’s clear jurisdiction to issue a custody order(arising from the uncontested fact that California is Bianka’s homestate), the Court of Appeal concludedthat “an order containing SIJ findings will not be useful to Bianka unlessit is issued in the context of a bona fide custody proceeding.” (Bianka M, supra, 199 Cal.Rptr.3d at p. 864;id. at p. 860 [“Congress and the USCIS rely upon ourstate courts to issue orders containing the findings required to support an SIJ petition in the context of ongoing, bonafide proceedings relating to child welfare, rather than through specially constructed proceedings designed mainly for the purpose of issuing orders containing SIJ findings.’’].) This was incorrect. Congress has never mandatedthat SIJ petitioners initiate predicate state court proceedings with zero immigration motive. Moreover, USCIS has allowed—throughaffirmative interpretation and the failure to enact a proposed regulation, respectively—some immigration motive to drive SIJ petitioners to seek predicate orders in state court. ’ Thisis, of course, only so long as “[a] court of another state does not havejurisdiction” (Fam. Code, § 3421, subd. (a)(2)), where California courts “shall treat a foreign country as if it were a state of the United States for the purpose of applying [Section 3421].” (d., § 3405, subd. (a).) A court “that has made a child custody determination . . . has exclusive continuing jurisdiction.” (d., § 3422, subd.(a).) The keystone of the Court of Appeal’s position to the contrary is a Joint Explanatory Statement of the Committee of Conference, which discusses a modification to the SIJ statute. (Bianka M., supra, 199 Cal.Rptr.3d at p. 859, quoting H.R.Rep. No. 105-405, Ist Sess., p. 130 (1997) (hereafter Joint Explanatory Statement) [“‘The language has been modified in order to limit the beneficiaries of this provision to. . . abandoned, neglected, or abused children, by requiring the Attorney General to determine that neither the dependency ordernorthe administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanentresidence, rather than for the purpose of obtaining relief from abuse or neglect.”].) However, “[w]hile both the conference report and the joint explanatory statementare printed in the same document, Congress votes only on the conference report.” (Roederv. Islamic Republic ofIran (D.C. Cir. 2003) 333 F.3d 228, 236 (Roeder).)® Therefore, “the explanatory remarksin the ‘conference report’ do not have theforce oflaw.” (Id. at p. 237, emphasis added.) Furthermore, even if the Joint Explanatory Statement once had the force of law, Congress has since amendedthe SIJ statute, repealing and replacing the text that the Joint Explanatory Statement had sought to explain. (William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457 (Dec. 23, 2008) 122 8 “Some words about conferencereports are in order. After the House and the Senate pass different versions of legislation, each body appoints conferees to resolve disagreements between the House and Senatebills. If a majority of the conferees from each body agree, they submit two documentsto their respective houses: a conference report presenting the formallegislative language and a joint explanatory statement that explains the legislative language and how the differences between the bills were resolved.” (Roeder, supra, 333 F.3d at p. 236.) Stat. 5044, 5079 [amending clause(iii) “by striking ‘the Attorney General expressly consents to the dependency order serving as a precondition to the grant of [SIJ] status;’ and inserting ‘the Secretary of Homeland Security consents to the grant of [SIJ] status’”].) Hence, if there had been any ambiguity as to whether Congress had directed the federal government, through the above-cited Joint Explanatory Statement, to determine whether state dependency or custody orders were “bonafide,” that ambiguity has been squelched. Since the statutory hook on which a “bonafide” requirement might have been hung hassince been repealed, this Court should give no deference to explanatory remarks that imply such a requirement’s existence. Moreover, since the Court of Appeal handed down Bianka M., USCISitself has publicly taken the position that “there may be some immigration motivefor seeking thejuvenile court order.” (USCIS Policy Manual,vol. 6, pt. J, ch. 2, § (D)(5), emphasis added.) This aspect of USCIS’s interpretation of the SIJ statute is “entitled to respect” for at least two reasons. (See Christensen v. Harris County (2000) 529 U.S. 576, 587 (“Interpretations such as those in .. . agency manuals . . are ‘entitled to respect’... [citation]... to the extent that those interpretations have the ‘powerto persuade.’ [Citation.]’’].) First, and as already noted, even if the Joint Explanatory Statement had oncecarried the force of law, Congress has since repealed and replaced the text those remarks sought to explain. So USCISis not bound by the suggestion that the state court proceedings must have beeninitiated “primarily . . . for the purpose ofobtainingrelief from abuse or neglect.” (See Manhattan Gen. Equipment Co. v. Comr. ofInternal Revenue (1936) 297 U.S. 129, 134 [“A regulation which does not [carry into effect the will of Congress as expressedbythestatute], but operates to create a rule out of harmony with the statute, is a mere nullity.”]; contra H.R.Rep. No. 105- -10- 405, Ist Sess., p. 130 (1997).) Nor should this Court defer to that part of the USCIS Policy Manual that relies upon the Joint Explanatory Statement. (Contra USCIS Policy Manual,vol. 6, pt. J, ch. 2, § (D)(5) [“USCIS must review the juvenile court order to conclude that the request for SIJ classification is bonafide,[i.e.,] . .. not primarily or solely to obtain an immigration benefit.”], citing 8 U.S.C. § 1101(a)(27)(J\Gii) and H.R.Rep. No. 105-405, Ist Sess., p. 130 (1997).) Second, USCIShas staked a position contrary to a proposed regulation that was considered but never adopted. In Bianka M.,, the Court of Appeal notedthat, in 2011, the Department of Homeland Security (“DHS,” of which USCISis a part) proposed a regulation that would have required USCISto consider whether “‘the State court order was sought primarily to obtain relief from abuse, neglect, abandonment,or a similar basis under State law and not primarily for the purpose of obtaining lawful immigration status.’” (199 Cal.Rptr.3d at p. 859-60, quoting Special Immigrant Juvenile Petitions, 76 Fed.Reg. 54978, 54985 (Sept. 6, 2011) [proposed 8 C.F.R. § 204.11(c)(1)()].) It is reasonable to infer that the proposed regulation’s non-adoption has been due,at least in part, to DHS’s consideration ofpublic comments submitted in opposition to the proposed “bonafide” determination. (See The Immigrant Children Lawyers Network, Comment Letter on Proposed Rule regarding Special Immigrant Juvenile Petitions, at p. 5, fn. 2 (Nov. 7, 2011), https://www.regulations.gov/document?D=USCIS-2009-0004-0051 [“{A] legal presumption that a SIJ petition is bonafide if the petitioner meets the eligibility requirements as evidenced by the State court order and proof of age 1s appropriate.”], citing William R. Yates, Associate Director for Operations, USCIS, Memorandum #3—Field Guidance on Special Immigrant Juvenile Status Petitions, at pp. 4-5 (May 27, 2004) [instructing that adjudicators “generally should not second-guess the [State] court’s -ll- ruling or question whether the court’s order was properly issued”]; see also Angie Junck, ILRC, CommentLetter on Proposed Rule regarding Special Immigrant Juvenile Petitions, at p. 6 (Nov. 7, 2011) [“The proposed regulation disregards the purposeofall SIJS orders, which is to make SIS findings for a future petition. Although the courts generally make these findings at some point in their proceedings, they would not do so in an SIJS predicate order unless they are specifically asked to do so for SIJS purposes.”], https://www.regulations.gov/document?7D=USCIS-2009-0004- 0037.) Nevertheless, were this Court to infer that Congress did intend for a “bona fide” determination to be made at somestage of the SIJ process (see Roeder, supra, 333 F.3d at p. 236 [“We do not say material in the joint explanatory statementis of no value in determining Congress’ intent.”]), any state court decision arrogating the authority to make that determination would be preempted. “Federal law makesclear that state court authority with respect to SIJ classification is limited to making the predicate findings based on determinations understate law.” (Jud. Council Memo, supra,at p. 8, citing Leslie H., supra, 224 Cal.App.4th at p. 351 [“State courts play no rolein the final determination of SIJ [classification] or, ultimately, permanentresidency or citizenship, which are federal questions.”’].) “There is nothing in the Immigration and Nationality Act [(“INA’’)] that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedurein issuing state court orders.” (USCIS Policy Manual,vol. 6, pt. J, ch. 1, § (A), fn. 1.) That is because, as the Court of Appeal has recognized, “[t]he task ofweeding out bad faith applications falls to USCIS, which engages in a much broader inquiry than state courts.” (Eddie E., supra, 234 Cal.App.4th at p. 329.) The suggestion from the Court ofAppeal to the contrary—i.e., that California’s courts are responsible for ensuring the “bona fide”nature of -12- custody proceedings in the SIJ context?—would operate, in effect, as a state parallel to a federal “bona fide” determination. Such an outcomeis field preempted. (See Arizona, supra, 132 S.Ct. at p. 2502 [Field preemption reflects a congressional decision to foreclose any state regulation in the area, evenifit is parallel tofederal standards.” (Emphasis added.)].) Several provisions of the USCIS Policy Manual bolster the conclusion that Congress occupied the field with respect to the adjudication of SIJ petitions. (See Eddie E., supra, 234 Cal.App.4th at p. 326 [“[T]he federal governmenthas exclusive jurisdiction with respect to . . . the final determination whetheran alien child will be granted permanentstatus as an SIJ. [Citation.].]”) To begin with, Congress has authorized a federal executive agency to exercise independent judgmentin the adjudication of SIJ petitions (see 8 U.S.C. § 1101(a)(27)(J)(iii) (“the Secretary of HomelandSecurity consents to the grant of special immigrant juvenile » Evenif state courts were required to make “bona fide” determinations, the Court ofAppeal’s suggestion here—that Bianka’s custody proceedings were “specially constructed proceedings designed mainly for the purpose of issuing orders containing SIJ findings” (see Bianka M., supra, 199 Cal.Rptr.3d at p. 860)—is without merit. In her petition to the Court of Appeal for a writ of mandate, Bianka advancedfour reasons she had soughtan order placing her in her mother’s sole custody: (1) Bianka prefers her mother’s custody (a preference the superior court is required to consider according to subdivision (a) of Family Code section 3042); (2) Bianka’s alleged father is abusive and violent; (3) being placed in her mother’s custody would help ensure continuity and stability in Bianka’s care; and (4) Bianka has serious health needs requiring her mother to havethe legal ability to make critical decisions on her behalf without having to rely on Bianka’s alleged father. (See id., supra, Petition for Writ of Mandate, at pp. 33— 35.) Moreover, there is no requirement understate law that a petitioner must present a specific imminent need in order to request custody; rather, the court is guided by the best interests of the child in making determinations regarding custody. -13- status”)), a process that “includes review ofthe petition, the juvenile court order(or orders), and supporting evidence to determineifthe petitioneris eligible for SIJ classification.” (USCIS Policy Manual, vol. 6, pt. J, ch. 2, § (A).) “Ifa petitioner cannot obtain a court order that includes facts that establish a factual basis for all of the required findings, USCIS may request evidenceofthe factual basis for the court’s findings.” (/d., vol. 6, pt. J, ch. 3, § (A)(3).)! Where a reasonablefactual basis is lacking, USCIS officers have discretion to issue Requests for Evidence (“RFEs”) for reasonsincluding, but not limited to the following: The record lacks the required dependency or custody, parental reunification, or best interest findings; [i]t is unclear if the order was made by a juvenile court or in accordance with state law; [t]he evidence provided doesnot establish a reasonable factual basis for the findings; [t]he record contains evidence or information that directly and substantively conflicts with the evidence or information that was the basis for the court order; or [a]dditional evidence is needed to determineeligibility. (d., vol. 6, pt. J, ch. 4, § (D).) In the alternative, USCIS officers have discretion to interview SIJ petitioners. (/d., vol. 6, pt. J, ch. 4, § (C)(1).) “Officers generally focus the interview on resolving issuesrelated to the eligibility requirements, including age” and tend to “avoid questioning the petitioner about the details of the abuse, neglect, or abandonmentsuffered.” (/d., vol. 6, pt. J, ch. 4, § (C)(2).) This is because USCIS“generally defers to the [state] '° To supportthe basis for the court order, petitioners may submit to USCIS,e.g., “[a]ny supporting documents submitted to the juvenile court,” “[a]ffidavits summarizing the evidence presented to the court and records from the judicial proceedings,”or other “[a]ffidavits or recordsthat are consistent with the findings made by the court.” (USCISPolicy Manual,vol. 6, pt. J, ch. 3, § (A)(3).) 14. court on matters of state law and doesnot go behind the juvenile court order to reweigh evidence and make independent determinations about abuse, neglect, or abandonment.” (/d., vol. 6, pt. J, ch. 2, § (A).) Of course, while USCIS “relies on the expertise of the juvenile court in making child welfare decisions . . . under state law,”it still requires that the bs sestate court’s “order or other supporting evidence contain or provide a reasonable factual basis for each of the findings necessary for classification as a SJJ.” Ud. vol. 6, pt. J, ch. 2, § (D)(5).) “The evidence needed does not haveto be overly detailed, but must confirm that the juvenile court made an informed decision in order to be considered ‘reasonable.’” (/bid.) In short, “USCISgenerally consents to the grant of SIJ classification when the order includes or is supplemented by a reasonable factualbasis forall of the required findings.” (/bid.) With the SIJ statute, Congress madeclear that the role of state courts is limited to functions normally reserved to those courts,i.e., issuing custody orders and makingfindings regarding abuse, neglect, abandonment, andthe bestinterests of children. If there is any role for determining whether a custody petition is “bona fide” (though amicus arguesthere is not), then that function is necessarily reserved to the federal government—and any holding to the contrary is preempted. Through the issuanceofits Policy Manual, USCIShas proclaimed(correctly) thatit exercises complete authority with respect to adjudicating SIJ petitions. This Court should therefore vacate the Court of Appeal’s opinion, which would arrogate to the state courts an immigration authority parallel to that of the federal governmentin violation of the principle of federalism evidenced in the immigration statutes. -15- B. Two of the Court of Appeal’s central holdings violate the plain meaning of section 155 as subsequently clarified While federal law preempts the Court ofAppeal from imposing a requirementthat all custody cases brought by would-be SIJ petitioners in California be “bona fide,” its decision is also erroneous for a more fundamental reason:it is contrary to current California law. Mere months after the Court ofAppealissued its opinion, the Legislature sought to clarify the meaning of section 155, which defines the role of the superior courts in the SIJ process. (Legis. Counsel’s Dig., Assem. Bill No. 1603 (2015-2016 Reg. Sess.) pp. 1-2.) When the Court ofAppeal considered the issues presented in Bianka’s petition for writ of mandate,it did so, in part, “in the interest of providing guidancethat ha[d] been requested by the lower courts and the bar.” (Bianka M., supra, 199 Cal.Rptr.3d at p. 862.) However, the Court ofAppeal’s guidance has since been superseded by the Legislature, which may disambiguate its own statutes when this Court has not already done so. To ensure clarity among the lower courts, this Court should vacate the legislatively superseded holdings as described here. 1. It was error for the Court of Appeal to hold that SIJ findings must be madeafter a full and fair evidentiary hearing in the context of a “bona fide” custody proceeding In concluding that Bianka’s request for SIJ findings in the superior court was premature, the Court ofAppeal took note of “consternation in the superior courts” and an absence of “meaningful legislative history” regarding the issue of when SIJ findings should be made. (Bianka M., supra, 199 Cal.Rptr.3d at p. 861-62.) The court then held: “In light of our legislature’s intent to facilitate access to federal immigration relief, we construe [section 155] to mean SIJ findings must be madeafteror in connection with a judicial custody determination after a full and fair evidentiary hearing.” (/d. at p. 862.) In addition, as discussed above, the -16- court held that the proceedingsinitiated by Bianka were not“bonafide,” improperly opining that her “parentage action against Gladys appear[ed] to have been broughtonly to obtain SIJ findings.” (/d. at p. 864.) In an unmistakable repudiation of the Court of Appeal’s opinion, the Legislature amended section 155 to instruct that a superior court “shall not include nor reference the asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile in the court’s findings underthis section.” (Code Civ. Proc., § 155, subd. (b)(2).) This statute makes plain what has always beenthe case in California: “[S]tate court authority with respect to SIJ classification is limited to making the predicate findings based on determinations under state law.” (Jud. Council Memo,supra, at p. 8, emphasis added,citing Leslie H., supra, 224 Cal.App.4th at p. 351 [State courts play no role in the final determination of SIJ status or, ultimately, permanent residency or citizenship, which are federal questions.” (Emphasis added.)].) The Legislature expressly corrected the Court of Appeal’s mistaken conclusion that section 155 had required that “SIJ findings . . . be made after or in connection with a judicial custody determination after a full and fair evidentiary hearing.” (Contra Bianka M.,, supra, 199 Cal.Rptr.3d at p. 862.) To that end, the statute now readsas follows: “The [SIJ findings] may be madeat any point in a proceeding regardless ofthe . . . type of proceeding if the prerequisites of [subdivision (b)(1)] are met.” (Code Civ. Proc., § 155, subd. (a)(2).) Making the Legislature’s intent even clearer, the Office of Senate Floor Analyses stated in its analysis of the amendment that its language “clarifies . . . [t]hat the SIJS findings can be made at any point in the proceedings”and “that the perceived motivations[of the petitioner] shall not be includedor referred to in the findings.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.Bill No. -17- 1603 (2015-2016 Reg. Sess.) p. 6.) This Court should vacate the Court of Appeal’s contrary holding. 2. The amendments to section 155 did no more thanclarify existing law Amicus’s reliance on amendedsection 155 in urging this Court to overturn the Court ofAppeal’s opinion may appear to raise the specter of retrospective application, but, in fact, there is no retroactivity issue here. Of course, the Court ofAppeal did not have the benefit of an amended section 155 whenit considered and handed downits opinion below, but under California law,“[a] statute does not operate ‘retroactively’... ‘simply becauseits application depends on facts or conditions existing before its enactment.’” (Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1028, quoting Western Security Bankv. Superior Court (1997) 15 Cal.4th 232, 243 (Western Security).) Where, as here, the Legislature makes “material changes in statutory language to clarify a statute’s meaning, such legislative act has no retrospective effect because the true meaning ofthe statute remains the same. [Citation.] (/bid., emphasis added.) “Consequently,‘[i]f the amendment merely clarifie[s] existing law, no question of retroactivity is presented.’” (Jbid., quoting McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471-72 (McClung).) In Carter v. Cal. Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter), this Court acknowledgedthe limitations on the Legislature to eeeinterpret existing law butheldthat “‘if the courts have not yet finally and conclusively interpreted-a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration.’ [Citation.]” (Quoting McClung, supra, 34 Cal.4th at p. 473; see Lone Star Sec. & Video, Inc. v. Bureau ofSec. and Investigative Services (2009) 176 Cal.App.4th 1249, 1256, fn. 8 [noting -18- that “finally and conclusively,” as used in McClung, meansinterpreted by the Supreme Court].) Here, this Court has an opportunity to “finally and conclusively” interpret section 155 in precisely the context where the Legislature meantto provideclarity. In determining whether a legislative amendmentto statute is merely a clarification of existing law or an “unmistakable change”—such that it implicates issues of retroactivity—this Court has found the amendmentto be “merely clarif[ying]’” when “the Legislature promptly reacts to the emergence of a novel question of statutory interpretation” and “the amendment was adopted soonafter the controversy arose concerning the properinterpretation of the statute.” (Carter, supra, 38 Cal.4th at p. 922-23, internal quotation marks omitted, quoting Western Security, supra, 15 Cal.4th at p. 243.) As with the amendmentatissue in Carter, the circumstances here reveal the Legislature’s prompt reaction to a controversy concerning the properinterpretation of existing law “soon after the controversy arose.” The controversy here is with respect to oneissueoffirst impression before the appellate courts of this state and another issue that had been squarely resolved before the Bianka M. court took a sharp turn from precedent. Onthe first point, and as the Court of Appeal noted below, no published California case had previously addressed the issue of when a superior court mayissue SIJ findings. Hence, the Legislature’s “prompt[] react[ion]” to this “novel question of statutory interpretation”is a clear rebuke of the conclusion the Court ofAppeal reached. In other words, the immediacy of the Legislature’s response demonstrates its understanding that the Court of Appeal misapprehended section 155 in Bianka M. andthat the Legislature sought to clarify the law before Bianka M. had any further impact on SIJJ petitioners. -19- On the second point, with respect to the Court ofAppeal’s novel “bonafide” inquiry, prior decisions of the Court of Appeal had unanimously demonstrated a clear understanding that the role of state courts in the SIJ process is manifestly limited. (See, e.g., Leslie H., supra, 224 Cal.App.4th at p. 351 [A state court’s role in the SIJ processis not to determine worthy candidates for citizenship.”]; Eddie E., supra, 234 Cal.App.4th at p. 329 [“The task of weeding out bad faith applicationsfalls to USCIS, which engages in a much broader inquiry than state courts.”].) Indeed, as noted above, the Judicial Council has reiterated this understanding even moreplainly: “Federal law makesclear that state court authority with respect to SIJ classification is limited to making the predicate findings based on determinations understate law.” (Jud. Council Memo, supra, at p. 8.) Against this backdrop,it is clear that the Legislature did not intend to change the law. Rather, the Legislature intended to reaffirm, as the Court of Appeal had consistently recognized until this case, that section 155 authorizes superior courts to make SIJ findingsat any time and that state courts have no gatekeepingrole in judging SIJeligibility. Thus, to the extent that the Court ofAppeal’s opinion cannot be reconciled with the SIJ process as defined by Congress, and as recognized by the Legislature, this Court should vacateit. Hit. CONCLUSION The Court ofAppeal’s imposition of a requirementthat superior courts must make SIJ findings in the context of a “bonafide” custody proceeding (defined by the superior court and Court ofAppeal to mean a proceeding in whichthe petitioner has no immigration motive) misconceives federal law, which establishes no such requirement. Regardless, if any entity is responsible for determining whetherthestate proceedings were “bonafide,” that entity is USCIS—Congress has -20- preempted California courts from aggrandizing themselves with parallel immigration authority. Moreover, to the extent that the Court of Appeal sought to provide guidance with respect to when a court may issue SIJ findings or whether a court may issue a custody order whenthere is some immigration motive, its opinion is contrary to current California law, as the Legislature clarified by amending section 155. For the foregoing reasons, amicus respectfully requests that this Court vacate the Court of Appeal’s decision and order the Court of Appeal to remandto the Superior Court with instructions to grant Bianka’s custody request and to make the requested SI findings. DATED:April 5, 2017 Respectfully Submitted, GIBSON, DUNN & CRUTCHER LLP By: on NisttndJose Eric Westlund Attorneysfor Amicus Curiae the Immigrant Legal Resource Center -21- CERTIFICATION OF WORD COUNT Pursuant Rule 8.204(c)(1), California Rules of Court, the undersigned hereby certifies that this Brief of Amicus Curiae the Immigrant Legal Resource Center in Supportof Petitioner Bianka M. contains 6,484 words, excluding the tables andthis certificate, according to the word count generated by the computer program used to producethis document. Dated: April 5, 2017 By: Que WitlAfix Eric Westlund -22- PROOF OF SERVICE I, Brittney Griffin, declare as follows: I am employed in the County of San Francisco, State of California, I am overthe age of eighteen years and am nota party to this action; my business address is 555 Mission Street, Suite 3000, San Francisco, CA 94105-0921, in said County and State. On April 5, 2017, I'served the following document(s): APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND PROPOSED BRIEF OF AMICUS CURIAE THE IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER BIANKA M. on the parties stated below, by the following meansofservice: SEE ATTACHED SERVICE LIST Unless otherwise noted on the attached Service List, BY MAIL: I placed a true copy in a sealed envelope or package addressed as indicated above, on the above-mentioned date, and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited with the U.S. Postal Service in the ordinary course of business in a sealed envelope with postage fully prepaid. I am aware that on motion of party served, serviceis presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing set forth in this declaration. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on April 5, 2017, at San Francisco, California. MbaHWb4 Cah. Britthey Griffin “ -23- SERVICE LIST Petitioner Bianka M. Joshua C. Lee Miller Barondess, LLP 1999 Avenueofthe Stars, Suite 1000 Los Angeles, CA 90067 Judith London Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 Nickole Gretta Miller Immigrant Defense Law Center 634 South Spring Street, 3rd Floor Los Angeles, CA 90014 Amicus Curiae for Respondent L. Rachel Lerman L. Rachel Lerman Barnes & Thornburg LLP 2029 Century Park East, Suite 300 Los Angeles, CA 90067 Respondent Superior Court of Los Angeles County [LASC No. BF052072] Hon. Holly Fujie c/o Frederick Bennett, Court Counsel Superior Court of Los Angeles County 111 North Hill Street, Dept. 98 Los Angeles, CA 90012 Mr. Oscar Chavez, Clerk Superior Court of Los Angeles County 111 North Hill Street Los Angeles, CA 90012 Real Party in InterestGladys Supaya Martinez -24- SERVICE LIST (CONTINUED) Court of Appeal, Second Appellate District, Division Three [COA No. B267454] Zaida Clayton, Clerk Court ofAppeal Second District, Division 3 300 South Spring Street Los Angeles, CA 90013 Guardian Ad Litem Yolanda Martin The Aguirre Law Firm 3807 Wilshire Blvd., Suite 910 Los Angeles, CA 90010 Jorge Wilfredo Montoya Lazo Pub/Depublication RequestorsCentral American ResourceCenter & Legal Aid Society ofSan Mateo County Allison W. MeredithVedder Price1925 Century Park East, Suite 1900Los Angeles, CA -25- PROOFOF SERVICE I, Brittney Griffin, declare as follows: I am employed in the County of San Francisco, State of California, I am overthe age of eighteen years and am not party to this action; my business address is 555 Mission Street, Suite 3000, San Francisco, CA 94105-0921, in said County and State. On April 5, 2017, I served the following document(s): APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND PROPOSED BRIEF OF AMICUS CURIAE THE IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER BIANKA M. on the parties stated below, by the following meansofservice: SEE ATTACHED SERVICE LIST Unless otherwise noted on the attached Service List, BY MAIL: I placed a true copy in sealed envelope or package addressed as indicated above, on the above-mentioned date, and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondencefor mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited with the U.S. Postal Service in the ordinary course of business in a sealed envelope with postage fully prepaid. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing set forth in this declaration. I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on April 5, 2017, at San Francisco, California. fo dL, A , Layttnuy (Vahl77 tt Brittney Griffin -23- SERVICE LIST Petitioner Bianka M. Joshua C. Lee Miller Barondess, LLP 1999 Avenue of the Stars, Suite 1000 Los Angeles, CA 90067 Judith London Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 Nickole Gretta Miller Immigrant Defense Law Center 634 South Spring Street, 3rd Floor Los Angeles, CA 90014 Amicus Curiae for Respondent L. Rachel Lerman L. Rachel Lerman Barnes & Thornburg LLP 2029 Century Park East, Suite 300 Los Angeles, CA 90067 Respondent Superior Court of Los Angeles County [LASC No. BF052072] Hon. Holly Fujie c/o Frederick Bennett, Court Counsel Superior Court of Los Angeles County 111 North Hill Street, Dept. 98 Los Angeles, CA 90012 Mr. Oscar Chavez, Clerk Superior Court of Los Angeles County 111 North Hill Street Los Angeles, CA 90012 Real Party in InterestGladysll -24- SERVICE LIST (CONTINUED) Court of Appeal, Second Appellate District, Division Three [COA No. B267454] Zaida Clayton, Clerk Court of Appeal Second District, Division 3 300 South Spring Street Los Angeles, CA 90013 Guardian Ad Litem Yolanda Martin The Aguirre Law Firm 3807 Wilshire Blvd., Suite 910 Los Angeles, CA 90010 ‘rea Pub/Depublication RequestorsCentral American ResourceCenter & Legal Aid Society ofSan Mateo County Allison W. MeredithVedderPrice1925 Century Park East, Suite 1900Los Angeles, CA -25-