By Walter F. Roche Jr.
After being shuffled from relative to relative, at one point being held in a locked room for weeks at a time, Edith Gracibel Pineda Orellana fled from her native Honduras last year only to be greeted by waiting U.S. Homeland Security agents who quickly took her and some 30 others into custody.
Orellana, 17, though temporarily rejoined now with her mother in Nashville, faces the prospect of deportation and efforts for assistance in Davidson Probate Court have been swiftly rebuffed.
A petition seeking to have her mother appointed as her guardian, the first step in a lengthy legal process, was rejected this month without notice or a hearing by Probate Judge David "Randy" Kennedy. In a one-page order Kennedy ruled that he did not have jurisdiction and instead transferred the case to Juvenile Court
Court records and interviews show the same action was taken on several other nearly identical petitions, including one filed for Edith's cousin.
Thomas J. Brown of the Community Law Group, who represents Iris Varela, Edith's mother, said in response to questions that while Edith's petition has not yet been acted on by the Juvenile Court, similar petitions have been rebuffed in that forum.
Brown said similar petitions filed in Davidson County Juvenile Court have been rejected also on jurisdictional grounds because any alleged neglect, abandonment or abuse occurred in a foreign country by U.S. Department of Homeland Security agents on May 3, 2014.
Requests for comment from Davidson County court officials went unanswered.
"I am aware of past
petitions concerning undocumented immigrant minors brought in Davidson
County Juvenile Court that have been dismissed on jurisdictional
grounds, concluding that the alleged neglect or abuse "took place in a foreign country – not in Tennessee,"Brown said.
The local legal roadblock comes amid a national flood of undocumented aliens crossing U.S. borders. A recent report showed that 1,361 minors who crossed the U.S. border illegally had been placed in Tennessee over the past 15 months.
The swift rejections come despite a little noticed opinion issued Sept. 16, 2014 by then Attorney General Robert Cooper. Citing state and federal statutes, Cooper concluded that guardianships for undocumented minors can be considered in both Probate and Juvenile Courts.
Responding to a request from State Sen. Brian Kelsey, Cooper concluded that the only legal requirement was that such actions be brought in the county of the person seeking the guardianship.
While acknowledging that "No Tennessee court has addressed the question whether an undocumented alien may establish domicile in Tennessee," Cooper concluded that state law and past court rulings show there is no impediment to an undocumented alien qualifying as a Tennessee resident.
"Unquestionably, my client, Iris Yolanda Orellana
Varela, has standing in Tennessee to bring a guardianship
petition," Brown wrote in an email response to questions.
Kelsey asked for the opinion at the request of Shelby County Probate Clerk Paul Boyd, who said the questions about guardianship petitions for undocumented alien minors had been raised by local attorneys handling such cases.
In contrast to Davidson County, Boyd said such guardianship petitions for alien minors have been filed and approved in other Tennessee jurisdictions.
Brown, who previously practiced law in Florida, said other states have developed specific procedures for the handling cases similar to Edith Orellana's.
"Questions regarding jurisdiction should
be settled statewide," Brown said, adding that in light of the growing border crisis, the current conflict is "in dire need of immediate clarification."
The petition by Iris Varela and an accompanying affidavit from Edith, recount a short life well stocked with abuse, abandonment and a natural disaster, Hurricane Mitch, adding to the misery.
She wrote that her father lied and told her that her mother had died. The mother had come to the United States to earn money to support her family
Locked in a room, she wrote that she was fed only plantains and was let out only to go to the bathroom.
Later she joined with her cousin Fredy to plan their escape to the United States. They were both captured on May 3 of last year.
The two still face May hearings before a federal Immigration Judge on the pending removal proceedings.
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