This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-649

C8-96-715

In the Matter of the Welfare of:

Y.W., a/k/a J.W., Child.

Filed November 19, 1996

Reversed

Huspeni, Judge

Concurring Specially, Randall, Judge

Dakota County District Court

File No. J59559798

David L. Lillehaug, United States Attorney, Friedrich A. P. Siekert, Asst. United States Attorney, 234 United States Courthouse, 110 S. Fourth St., Minneapolis, MN 55401 (for Appellant United States Immigration and Naturalization Service)

John M. Stuart, State Public Defender, Charlann E. Winking, Asst. State Public Defender, 2829 University Ave. S.E., #600, Minneapolis, MN 55414 (for Respondent child)

Gail Chang Bohr, Children's Law Center of Minnesota, 749 Simpson St., St. Paul, MN 55108 (for Respondent child)

Steven J. Wells, Dorsey & Whitney LLP, 220 S. Sixth St., Minneapolis, MN 55402 (for Respondent Robert Popken)

James C. Backstrom, Dakota County Attorney, Donald E. Bruce, Asst. Dakota County Attorney, Dakota County Judicial Center, 1560 W. Hwy. 55, Hastings, MN 55033 (for Appellant Dakota County Community Services)

Pamela J. Waggoner, Flour Exchange Bldg., Suite 500, 310 Fourth Ave. S., Minneapolis, MN 55415 (Guardian Ad Litem)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellants United States Immigration and Naturalization Service and Dakota County Community Services challenge the CHIPS (child in need of protection or services) adjudication of respondent, an 18-year-old illegal alien who is the subject of deportation proceedings. Because we hold that the federal deportation proceedings preempt the county CHIPS adjudication and because the evidence does not support the CHIPS adjudication, we reverse.

FACTS

Y.W. was born in China in March 1978. In the spring of 1993, when he turned 15, his mother made a down payment of $1,000 on the $28,000 charge for him to be smuggled to the United States. Y.W. left China without permission; he is allegedly wanted by the Chinese government for having participated in a rally when he was 11. After two months on a boat, Y.W. arrived in the United States. He then spent about a year with other smuggled persons in the basements of houses.

Appellant United States Immigration and Naturalization Service (INS) raided the house where Y.W. was confined and took him into custody in April 1994, when he was 16. He remains in the legal custody of the INS; he is now in the physical custody of respondent Robert Popken, with whom he began to live in June 1994. It is undisputed that Y.W. is thriving in Popken's custody.

Deportation proceedings on Y.W. were pending in the immigration court when Popken moved the Dakota County District Court for an order permitting him to file a private petition to have Y.W. adjudicated CHIPS.[1] The petition sought CHIPS adjudication pursuant to Minn. Stat. § 260.015, subds. 2a(1), (3), and (9), and stated that a CHIPS adjudication would enable Y.W. to apply to the INS for permanent residency as a special immigrant juvenile, thus eliminating his risk of being deported.[2] In January 1996 the district court granted Popken's motion to file the private petition and appointed a guardian ad litem for Y.W.

Appellants INS and Dakota County Community Services (DCCS) opposed the CHIPS petition. In February 1996, after the district court hearing on the petition, but before its decision, the immigration court denied Y.W. asylum, offered him voluntary departure as an alternative to deportation, and agreed not to deport him prior to March 8, 1997, his nineteenth birthday. A few days later, at the guardian ad litem's request, the district court ordered a psychological evaluation of Y.W., to be paid for by DCCS.

The psychological evaluation revealed that Y.W. suffers from post-traumatic stress disorder (PTSD). The psychologist recommended no changes in his present living situation and culturally-appropriate therapy for a year. The CHIPS petition was amended to include Minn. Stat. § 260.015, subd. 2a(4), providing for adjudication of children who are without special care necessitated by a physical, mental, or emotional condition, on the grounds of Y.W.'s previously undiagnosed and untreated PTSD.

The district court adjudicated Y.W. CHIPS and ordered his long-term placement in Popken's foster care on March 7, 1996, the day before he turned 18. Y.W.'s immigration case has been remanded to an immigration judge for additional fact-finding with the consent of the INS. Both the INS and DCCS appealed the CHIPS adjudication.

D E C I S I O N

1. Preemption

Appellants argue that the federal government's exclusive control over illegal aliens preempts a state court's CHIPS proceeding.

When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land.

In re the Welfare of C.M.K., 552 N.W.2d 768, 770 (Minn. App. 1996) (quoting Hines v. Davidowitz, 312 U.S. 52, 62-63, 61 S. Ct. 399, 404 (1941)).

Where a child is already the subject of deportation proceedings and is in the legal custody of the Immigration and Naturalization Services, the state juvenile court lacks jurisdiction to subsequently find the child in need of protection or services based solely on allegations the child will be abused if deported to his country of origin; federal immigration law preempts state law under these circumstances.

Id. at 768. C.M.K., like Y.W., was the subject of deportation proceedings and in the custody of the INS when his CHIPS adjudication was sought; he also alleged that he would be harmed if deported to China.

There are three situations where preemption may occur: (1) Congress expressly states an intent to preclude state regulation; (2) Congress implies an intent to occupy the regulated field; and (3) there is conflict between state and federal regulation. Matter of Toberman, 527 N.W.2d 138, 140 (Minn. App. 1995).

Congress granted the United States Attorney General exclusive custody over illegal immigrants.

Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. * * * Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond or parole pending final decision of deportability upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability.

8 U.S.C. § 1252(a). Congress specified that judicial review of the Attorney General's actions in regard to potentially deportable aliens is limited to situations where the Attorney General is not proceeding with reasonable dispatch. By the principle of expressio unius est exclusio alterius, it can be inferred that Congress did not intend to give courts jurisdiction over aliens in other circumstances and did intend to preclude state jurisdiction over illegal aliens.[3]

Given Congress's intent to retain exclusive jurisdiction over illegal aliens and the C.M.K. holding that federal law on illegal aliens preempts state law on child protection, we conclude that the district court lacked jurisdiction to adjudicate Y.W. as CHIPS.[4]

2. Statutory criteria for a CHIPS adjudication

Even if we assumed for the sake of further analysis that the juvenile court had jurisdiction to entertain the petition in this matter, we would be compelled to reverse the CHIPS determination. The trial court found that Y.W. was CHIPS pursuant to Minn. Stat. § 260.015, subds. 2a(3) and (9), as alleged in the original petition, to subdivision 2a(4), as alleged in the amended petition, and to subdivision 2a(2) on the court's own motion.

Minn. Stat. § 260.015, subd. 2a(3), provides for CHIPS adjudication if "[the child] is without necessary food, clothing, shelter, education or other required care * * * because the child's parent, guardian or custodian is unable or unwilling to provide that care"; subdivision 2a(9) provides for it if "[the child] is one whose behavior, condition or environment is such as to be injurious or dangerous to the child or others."

We recognize that findings in a CHIPS proceeding will not be reversed unless clearly erroneous or unsupported by substantial evidence. In re the Welfare of D.N., 523 N.W.2d 11, 13 (Minn. App. 1994). It is undisputed, however, that since Y.W. has been in the legal custody of the INS and the physical custody of respondent Popken, he has been amply provided with food, clothing, shelter, and education, that Popken is both able and willing to provide for him, and that Y.W. has suffered no injury and been in no danger since he was apprehended by the INS. Respondents argue, however, that all these circumstances may change if he is deported to China.

The same argument was raised and rejected in C.M.K. Because C.M.K, like Y.W., was provided with necessary food, clothing, and shelter by the INS and his physical custodian, and his environment was in no way injurious to him, he was held not to meet the criteria for CHIPS adjudication. "A finding that C.M.K. is in need of protection or services based on circumstances in China would directly conflict with immigration proceedings and, thus, is preempted by federal law." Id. at 771. In regard to subdivisions 2a(3) and 2a(9), Y.W.'s situation is indistinguishable from C.M.K.'s; the district court clearly erred in finding that Y.W. was CHIPS on these grounds.

The amended petition added subdivision 2a(4) as a basis for a CHIPS adjudication.[5] This subdivision provides for CHIPS adjudication if the child

is without the special care made necessary by a physical, mental or emotional condition because the child's parent, guardian, or custodian is unable or unwilling to provide that care.

The findings relative to subdivision 2a(4) were based on the report of a psychologist who examined Y.W. at the guardian ad litem's request following the filing of the original petition. The district court found that the INS knew or should have known that Y.W. had suffered physical and emotional harm at the hands of the smugglers, that the INS had been neglectful in not having Y.W. medically and psychologically evaluated and in not providing Popken with information about Y.W.'s treatment by the smugglers, and that Y.W. has been without the special care made necessary by his PTSD because his custodians have been unable or unwilling to provide it.

The INS argues that it was not unwilling to provide mental health care, but that like respondent Popken, others in the Popken household, Y.W.'s social worker, the Dakota County child protection worker, and Y.W. himself, it had no indication that mental health services would be beneficial, let alone necessary to Y.W. An INS representative testified that if the INS determined there was a need for treatment for Y.W., it would provide that treatment. DCCS would also be a resource for adult mental health care for Y.W., since he is now 18. The evidence does not support the district court's conclusion that Y.W.'s custodians are unwilling or unable to provide the special care made necessary by his PTSD.

The district court found that because Y.W. had been abused by the smugglers, he met the Minn. Stat. § 260.015, subd. 2a(2), criterion that a child may be adjudicated CHIPS if the child "has been the victim of physical or sexual abuse." Y.W. has not met with abuse since the INS acquired custody of him, and there is no risk of his being returned to the smugglers. There is no basis of physical or sexual abuse to support a CHIPS adjudication when the abuse occurred in circumstances completely unrelated to the child's current living situation, and there is no possibility of recurrence of the abusive situation. The district court's findings that Y.W. needs protection or services are not based on substantial evidence.[6]

We are not insensitive to the commendable efforts put forth by respondents in their attempt to ensure the safety and well-being of Y.W. and in their struggle to protect him from further suffering under the political regime from which he fled. However, we must conclude that the federal government's control of illegal aliens preempts the district court's jurisdiction over Y.W., and that even assuming proper exercise of jurisdiction, the trial court's findings that Y.W. is CHIPS were not supported by substantial evidence. Reversed.

RANDALL, Judge (concurring specially).

I concur in the result. The majority accurately describes the status of the impenetrable bureaucratic maze of immigration law. I write specially to point out the practical futility of what appellant is doing. Appellant, the United States Immigration and Naturalization Service, conceded at oral argument that Y.W. will not be deported, if at all, before his nineteenth birthday. At oral argument, respondent's attorney conceded that if Y.W.'s appeal process is exhausted, and if he is deported after his nineteenth birthday, the Minnesota juvenile court/state court system would not have jurisdiction to interfere, and respondent claims none.

Thus, the only practical effect of the government interfering with the help the Dakota County District Court tried to give Y.W. is that Y.W. may be denied care by people who truly care about him and, instead, be placed under the care of the INS, whose huge case load and bureaucratic method of doing everything will not compare to the individual concern that the Dakota County juvenile court, and his foster parents, can give him.

The INS puts itself in a truly anomalous position. They argue that Y.W. cannot really be a CHIPS, because a real CHIPS has no "guardian" and the INS points out that it is "his guardian." The question cries out for an answer. What kind of a guardian is the INS where "the guardian" wants to deport Y.W. and his so-called "non-guardians," his foster parents, want to help him in this country and not deport him. Who is really guarding whom?

This is a pure political turf battle with the INS and Dakota County Community Services arrayed on one side, and Y.W.'s foster parents and the Dakota County District Court on the other. When all is said and done with this case, I believe we have followed the law, but I feel uneasy. We have accomplished nothing constructive. I am not comfortable with the INS holding itself out as Y.W.'s guardian, while at the same time they vigorously line up a case to deport him.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1The original petition was not filed by Popken, but he was substituted as petitioner in December 1995.

[ ]2A juvenile may be classified as a Special Immigrant pursuant to 8 U.S.C.A. § 1101(a)(27)(J) (West Supp. 1996) if the juvenile has been legally committed by a juvenile court located in the United States to the custody of an agency or department of a state and been deemed eligible for long-term foster care.

[ ]3Appellant INS also argues that the juvenile court adjudication, in effect, declares the federal government to be negligent, that the federal government can be declared negligent only in a federal tort claims action, and, thus, that the juvenile court improperly exercised its jurisdiction over the federal government in this case. In view of our conclusion regarding preemption, we do not address this argument.

[ ]4Our decision on the preemption issue moots both the sovereign immunity issue raised by the INS and the collateral estoppel issue raised by both appellants. We find merit in the former, but not the latter. Sovereign immunity precludes suits against the sovereign unless the sovereign consents to be sued, and a suit is "against the sovereign" if the effect of the judgment would be to restrain the government from action. Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006 (1963). If Y.W. were adjudicated CHIPS, the government would be restrained from deporting him; indeed, this was the purpose of the CHIPS adjudication. Collateral estoppel requires a final judgment on the merits. In re the Welfare of D.M.D., 438 N.W.2d 713, 715 (Minn. App. 1989). There has been no final judgment on the merits by the immigration court: Y.W. moved for a remand for additional factfinding before the immigration judge.

[ ]5We agree with respondents that amendment of the CHIPS petition was proper.

[ ]6Our decision that the trial court's findings that Y.W. is CHIPS are clearly erroneous moots the issue of the propriety of Y.W.'s long-term placement. We note, however, that the long-term placement was not inherently flawed: failure to serve the INS and DCCS with notice that the court would rule on long-term placement does not violate the statutory provision that notice must be served on the person having custody or control of the child, since that person was respondent Popken. Nor does the fact that the long-term placement did not follow the usual practice of the court invalidate the placement; the practice was not mandatory.