Transcript Document

Special Immigrant Juvenile Status
for Children in Removal Proceedings
in Conference on Representing Unaccompanied
Minors UCLA February 9, 2007
Kristen Jackson
Staff Attorney, Public Counsel
(213) 385-2977, ext. 157
[email protected]
What Is at Stake?
Each year, the United States government places many children
who lack lawful immigration status and who have been abused,
abandoned or neglected by their parents into removal
proceedings. These children often cannot safely reunify with
their parents and have no responsible persons to return to in
their home countries. Some of these children have recently
arrived in the United States, while others were brought here as
infants or young children and have no connection to their
countries of birth.
The Solution for Some:
Special Immigrant Juvenile Status!
SIJS provides eligible children a route to lawful permanent
residency and can prevent an eligible child’s removal from the
United States.
Special Immigrant
Juvenile Status: A Statutory and Regulatory
Overview
What is it?
 An avenue for eligible children to obtain a visa and
lawful permanent resident status (get a “green card”)
through actions of U.S. Citizenship & Immigration
Services (“CIS”) and the Executive Office for
Immigration Review (“EOIR”)
Where do you find it?
 Section 101(a)(27)(J) of the Immigration & Nationality
Act, codified at 8 U.S.C. §1101(a)(27)(J)
 Regulations are at 8 C.F.R. § 204.11
Requirements for SIJS
• Under the jurisdiction of a juvenile court
• Dependent on a juvenile court or placed in the
custody of a state agency or department
• Eligible for “long-term foster care” due to abuse,
neglect or abandonment
• Not in the child’s best interest to be returned to
her home country
• Under 21 and unmarried
Note: The juvenile court must make these findings in a SIJS order.
Requirement One:
The child must be under the jurisdiction of a
juvenile court.
 “Juvenile court” is defined as a court “having jurisdiction
under State law to make judicial determinations about the
custody & care of juveniles.” 8 CFR § 204.11(a).
 In practice has included dependency, delinquency and
probate courts.
 IMPORTANT: The child must remain under juvenile
court jurisdiction for the entire time the immigration
applications are pending. See 8 CFR § 204.11(c)(5).
Requirement Two:
The child must be “dependent on a juvenile court”
or “legally committed to, or placed under the
custody of, an agency or department of the State”
by a juvenile court. 8 USC § 1101(a)(27)(J)(i).
 In practice has included, in California, Section 602 wards
of the delinquency court and children with probate
guardianships.
 The child can be in one of many settings: in foster care
home; suitably placed with non-parent relatives or in a
group home; living with court-appointed guardians.
Requirement Three:
The child must be “deemed eligible . . . for longterm foster care due to abuse, abandonment or
neglect.” 8 USC § 1101(a)(27)(J)(i).
 “Eligible for long-term foster care” means that “a
determination has been made by the juvenile court that
family reunification is no longer a viable option.” 8 CFR
§ 204.11(a).
 Does not require termination of parental rights.
 “Family reunification” is interpreted to mean that
between parents and child (not child and other relatives).
 “Abuse, abandonment or neglect” is not defined in the
immigration statute or regulations.
Requirement Three
In Practice:
Examples of children eligible for long-term foster
care due to abuse, abandonment or neglect
include:
 A child whose parents are deceased and whose adult
sibling is caring for her
 A child who was abandoned by his parents and who now
lives in a foster care home
 A child whose parents abused her and who will
emancipate after completing probation placement
Requirement Four:
It must not be in the “[child]’s best interest to be
returned to the [child]’s or parent’s previous
country of nationality or country of last habitual
residence.” 8 USC § 1101(a)(27)(J)(ii).
 This determination must be made in administrative or
judicial proceedings. Id.
Factors to Consider
on Requirement Four:
Both the downsides of the child’s returning to her
home country and the upsides of remaining in the
United States are relevant. For example:
 Child fears retaliation by abusive family members.
 Child has no responsible family members to provide her
with care and protection.
 Child will have no access to medical, educational or
social services.
 Child is acculturated to life in the United States.
 All of child’s personal ties, perhaps siblings, are here.
 Child has been educated in the United States.
Requirements Five
and Six
The child must be under 21 years of age. 8 CFR §
204.11(c)(1).
 Absolute deadline: Once the child turns 21, there is no
hope of getting SIJS – typically the child’s only route to a
green card.
 You must identify SIJS-eligible children early to avoid
age-out problems.
The child must be unmarried. 8 CFR §
204.11(c)(2).
 A child’s having her own children is not a bar to SIJS.
There’s more to it…
If the child meets these requirements, that is only
the beginning.
 Advocates must first obtain these SIJS findings from the
juvenile court.
 Advocates must then obtain an approved I-360 SIJS
Petition from CIS.
 With the approved I-360, advocates must then obtain an
approved I-485 Application for Adjustment of Status
(“AOS”) from EOIR – and child must meet additional
requirements to qualify for AOS.
Hurdles to SIJS-Based AOS
Even if a child meets the SIJS requirements, she
may be nonetheless ineligible to get a green card
as a Special Immigrant Juvenile. Why?
 She falls into non-waivable ground of inadmissibility –
most typically “reason to believe” she is a drug trafficker.
 She does not merit a favorable exercise of discretion by
the Immigration Judge (“IJ”)
 She is in the custody of the Department of Homeland
Security (“DHS”) and the SIJS order was obtained
without DHS’s consent.
DHS “Consent”
 Children who are in actual or constructive DHS custody
cannot seek SIJS without first getting DHS “specific
consent” to juvenile court jurisdiction. See 8 USC §
1101(a)(27)(J)(iii)(I).
 This includes children in DHS’s own custody as well as
children in Office of Refugee Resettlement (“ORR”)
custody – and may include others (such as those with
prior removal orders or those with DHS detainers).
 It does not include children released by ORR to sponsors.
 Consent must be sought from, and granted by, DHS
Headquarters in Washington DC.
The Procedure
Obtaining SIJS for the Child Proceeds in Two
Stages:
• The Juvenile Court Stage
When the court makes the required SIJS findings
• The Immigration Stage
When counsel uses these SIJS findings as the basis for the
filing and processing of an SIJS Petition with CIS and an
Adjustment of Status Application with EOIR
The Juvenile Court Stage
TASK ONE: IDENTIFY/SCREEN THE
ELIGIBLE CHILD
 Screen cases for SIJS eligibility
 Remember to screen for AOS eligibility
 Use the intake sheet and SIJS inadmissibility
chart as guides
The Juvenile Court Stage
Presuming your client is not in actual or
constructive DHS custody (if she is, you must
obtain DHS consent first):
Key question: Does the child already have an open
juvenile court case initiated by the state? If so,
proceed directly to Tasks Two through Five.
If not, but the child would meet eligibility
requirements if a case were opened, then your
first goal is to establish a juvenile court case for
the child – typically through a PROBATE
COURT GUARDIANSHIP.
The Juvenile Court Stage:
Probate Court Guardianships
What is a guardianship of the person? A legal
action designed to give someone other than a
child’s biological parents the care, custody and
control of the child
Where are guardianships established in California?
In dependency court and in probate court
Who can petition for a guardianship in probate
court? A child, if she is 12 years of age or older,
or a relative or friend of the child
The Juvenile Court Stage:
Probate Court Guardianships
Steps in the Guardianship Process:
 File all guardianship forms & fees (or fee waiver)
 Provide notice to all persons entitled to notice
 Cooperate with the guardianship investigation
 Attend the guardianship hearing
Consult Public Counsel Guardianship Manual at
http://www.publiccounsel.org/publications/guardianship_
of_the_person_attorney_manual.pdf
Forms available on the Judicial Council website at
http://www.courtinfo.ca.gov/forms/
The Juvenile Court Stage
TASK TWO: OBTAIN THE SIJS FINDINGS
Procedures vary depending upon what type of
juvenile court the child is in.
Dependency Court: Motion typically filed by
dependency attorney
Delinquency Court: Motion typically filed by
public defender
Probate Court: Motion typically filed by attorney
filing the guardianship petition
The Juvenile Court Stage
TASK TWO: OBTAIN THE SIJS FINDINGS
Timing varies depending upon what type of
juvenile court the child is in.
Dependency Court: Motion typically filed after the
child is ordered into long-term foster care
Delinquency Court: Motion typically filed after the
child’s permanent plan of emancipation is set
Probate Court: Motion typically filed along with the
guardianship petition
NB: Findings are usually made on the basis of court reports.
The Juvenile Court Stage
TASK THREE: OBTAIN A DATE & PLACE OF
BIRTH ORDER IF NECESSARY
 The child needs some proof of date and place of
birth in order to obtain SIJS.
 The court can base this order upon the complete
file and admissions regarding the child’s date and
place of birth.
 The court can include this information in the SIJS
findings.
The Juvenile Court Stage
TASK FOUR: ASSEMBLE THE NECESSARY
DOCUMENTS FROM COURT
 Certified copy of SIJS order
 Certified copy of DOB order if necessary
 Arrest record printout for delinquency cases
 Certified copies of juvenile court minute orders
corresponding to each petition filed for
delinquency cases
The Juvenile Court Stage
TASK FIVE: MAKE SURE THE COURT
RETAINS JURISDICTION OVER THE CHILD
 Do not have the court terminate jurisdiction until
the immigration process is complete
 In dependency and delinquency courts, cases can
remain open until the child’s 21st birthday
 In probate court the case closes on the child’s
18th birthday unless the court agrees to retain
jurisdiction through language in the SIJS order or
a separate order
The Immigration Stage
STEP ONE: REVIEW THE
IMMIGRATION COURT FILE
• File an EOIR-28 and a file request letter with the
immigration court – and serve DHS counsel (the “TA”)
• Review the documents in the file and obtain copies
• Listen to the audio tape of the prior hearings
What are you looking for? Prior pleadings to the allegations
in the Notice to Appear (“NTA”), instructions from the IJ,
the TA’s position on the case
The Immigration Stage
STEP TWO: ASSEMBLE THE
I-360 PACKET
• Obtain birth certificate
• Arrange for payment of fee or fee waiver
• Prepare immigration forms – available at
http://www.uscis.gov
• Always check the CIS website for the most up-to-date
forms and fee information
The Immigration Stage
STEP TWO: SAMPLE I-360 PACKET
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Cover Letter
Juvenile Court SIJS Order
Case Summary
Form I-360 Petition for SIJS
Form G-28
Proof of Age & Identity (Birth Certificate)
CIS Fee or Fee Waiver
The Immigration Stage
STEP THREE: FILE THE I-360 PACKET
• Contact Public Counsel if you would like assistance in
filing locally with the CIS Los Angeles District Office
• Current Form I-360 instructions indicate the form should
be filed at the local CIS office with jurisdiction over the
child’s place of residence
• Do not delay – do this as soon as you have reviewed the
court file and have assembled the packet
• NB: Also try to review DHS’s file before
submitting the packet
The Immigration Stage
STEP FOUR: ATTEND THE MASTER
CALENDAR HEARING
• Plead to the allegations in the NTA if not already done
• Identify the relief the child will be seeking – here, AOS
based on SIJS (and any other relief; remember asylum
one-year filing deadline)
• Provide proof of the pending I-360
• Request another master calendar for status/filing of the I485 Adjustment of Status Application
The Immigration Stage
STEP FIVE: ASSEMBLE THE
I-485 PACKET
• Once the I-360 is approved, the I-485 AOS packet can
prepared for filing with the IJ
• Arrange for payment of fees or fee waiver
• Prepare immigration forms I-485, G-325A – available at
http://www.uscis.gov
• Arrange for medical exam from CIS-approved doctor
• Arrange for CA DOJ background check
The Immigration Stage
STEP FIVE: SAMPLE I-485 PACKET
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SIJS Order & Copy of Approved I-360
Forms I-485 & G-325A
Proof of Fee Payment and Biometrics
Birth Certificate
CA DOJ Background Check Results
Juvenile Delinquency Dispositions, if any
Court Caption Page, Index and Certificate of Service
The Immigration Stage
STEP SIX: SUBMIT FEES AND
BIOMETRICS REQUEST
• Follow the instruction sheet given by the IJ
• Mail biometrics packet to the CIS Texas Service Center
• The packet includes a copy of I-485, fees, a copy of the
EOIR-28 and a copy of the instruction sheet
• Do this as soon as possible, because without completed
biometrics the IJ cannot grant AOS
The Immigration Stage
STEP SEVEN: OBTAIN RECEIPTS AND
APPOINTMENT NOTICES AND
COMPLETE BIOMETRICS
• Wait for CIS to issue receipts and schedule the biometrics
appointments
• The child must have valid government-issued ID.
• Background checks are done for criminal and security
clearance. For details see
http://www.uscis.gov/graphics/publicaffairs/factsheets/sec
urity_checks_42506.pdf.
The Immigration Stage
STEP EIGHT: FILE THE I-485 PACKET
AT THE MASTER CALENDAR HEARING
• Serve a copy of the packet on the TA (original G-325As)
• File the original packet with the IJ (copy G-325As)
• The IJ may allow you to file the packet at the clerk’s
office, although many IJs only allowing filing of
applications in court.
• Give the I-693 medical exam to the TA to open and check
• Schedule a merits hearing for the child
The Immigration Stage
STEP NINE: REQUEST DISMISSAL
WITHOUT PREJUDICE?
• A good option to reduce stress and speed up process
• Submit a cover letter and a sample Motion to Dismiss
Without Prejudice to the TA
• Follow DHS’s 10/06/05 Howard Memo instructions
• If the TA agrees, file a Joint Motion with the IJ
• If the Motion is granted, then proceed to AOS
with CIS as an affirmative SIJS case
The Immigration Stage
STEP TEN: REQUEST A
CONTINUANCE?
• If your client’s case is not going to be ready to proceed on
the date scheduled for her merits hearing, you must file a
Motion to Continue.
• Local rules require that this Motion be filed no later than
14 calendar days before the hearing – and check the IJ’s
preferences for more detailed requirements; typically the
Motion is heard the day after it is filed and you must
attend the hearing.
• Avoid this situation by being realistic about how long the
process will take and informing the IJ early on
The Immigration Stage
STEP ELEVEN: PREPARE FOR THE
MERITS HEARING
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Review all applications with the child & update if needed
Prepare and practice direct and cross examinations
Arrange for original documents to be at the hearing
Additional documents you may want to prepare: brief on
AOS eligibility, I-601 waiver, various motions
• Consult with the TA to make sure that all background
checks will be completed for the hearing,
particularly if there is an age-out problem
The Immigration Stage
STEP TWELVE: ATTEND THE MERITS
HEARING
• Field legal concerns from the IJ (questions on the basis
for AOS, inadmissibility issues)
• Submit the brief on AOS eligibility, I-601 waiver, various
motions if necessary
• Conduct the direct examination
• Assist the child on cross examination or IJ questioning
• Ask to go forward with the child’s testimony even if the
background checks are not complete
The Immigration Stage
STEP THIRTEEN: HEARING FOLLOW
UP
• If a decision cannot be issued because the background
checks are not complete, schedule a follow up hearing for
resolution of the case
• If approved and appeal waived, follow Step Fourteen
• If approved and appeal not waived, follow Step Fourteen
if no appeal is filed – otherwise, oppose appeal at the
Board of Immigration Appeals (“BIA”)
• If denied, you can appeal to BIA within 30 days, move to
reconsider within 30 days, move to reopen within 90 days
The Immigration Stage
STEP FOURTEEN: WRAP UP
AFTER APPROVAL
• Schedule an InfoPass appointment for green card
processing
• Wait for the delivery of the child’s green card from CIS
• Provide a final status report to the juvenile court
• Advise the child on her rights and responsibilities as a
lawful permanent resident using the following:
http://www.uscis.gov/graphics/citizenship/welcomeguide/index.htm
Down the Road…
• Once the child is a lawful permanent resident, she
is eligible for U.S. citizenship after 5 years or on
her 18th birthday (whichever is later).
• She can work legally, obtain federal financial aid,
and reside permanently in the United States
absent certain conduct.
…and you know you’ve done a great service for this child.
Other Resources
• ILRC SIJS Handbook at http://www.ilrc.org
• ILRC SIJS Listserve
• LIRR Publication on Working with Immigrant
Children at http://www.lirs.org/InfoRes/pub.htm
• Public Counsel SIJS Affirmative & Defensive
SIJS Manuals
• Immigrant Children Lawyers Network