Transcript Padilla and You: Meeting the Challenge of Effective

Immigration and Family Law
Louisiana Judicial College
Domestic Relations Seminar
August 14-15, 2014
Faculty
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Ken Mayeaux
Assistant Professor of Professional Practice
LSU Law Center Immigration Clinic
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Ayn Stehr
Louisiana Judicial Education Faculty
Louisiana Protective Order Registry
Learning Objectives
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Understand the intersections between state court
proceedings and immigration law
Know how accurate immigration law information
affects just and fair outcomes in state court
Recognize facts that indicate a party may qualify for
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Legal immigration status, or
Protection from/low priority for deportation.
Make appropriate findings in state court cases needed
for or helpful to a non-citizen’s immigration case.
Immigration Statistics Relevant to
Family Courts
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1 million unauthorized children
under age 18 in U.S. in 2010
4.5 million U.S. citizen children
whose parents are unauthorized
9 million people in U.S. live in
“mixed-status” families
Immigrants in Louisiana: Coming
soon to your Courts….
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U.S. Census: Hispanic population growth in
the South was 57% from 2000-2010 -- but
overall population growth was only 14%.
Katrina, Rita and Ike… Louisiana Appleseed
estimates 60,000 - 100,000 Latinos in
South LA Pre-Katrina and 100,000 to
150,000 now.
Historic Relationship to Honduras: Plus
deteriorating conditions across Central
America.
Vulnerable Immigrants…
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Less likely to:
 Report a crime
 Provide information to police and prosecutors
 Believe police and prosecutors want to help them
 Access civil protection from abuse
 Testify in court
More likely to:
 Be susceptible to a perpetrator’s coercion and
threats.
Immigration Law and Policy Protections for
Non-Citizen Crime Victims and Children
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Special Immigrant Juvenile Status
 Juveniles that have been abused, abandoned or
neglected.
U-Visa/T visa
 Victims of criminal activity and severe forms of human
trafficking.
VAWA self-petition/cancellation/waivers
 Abused spouses/children of U.S. citizens and LPR’s;
abused parents of U.S. citizen children.
Deferred Action for Childhood Arrivals (DACA)
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Dreamers; arrived before 16th birthday + other requirements
DHS Prosecutorial Discretion
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“Low Priority” for deportation: survivors, witnesses,
parents, children, elderly, disabled.
How Vulnerable Immigrants Benefit
from These Legal Protections
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Protection from deportation
Immigration benefits for derivative
children
Employment authorization
VAWA confidentiality protects release
of information and reliance on
abuser-provided information
Limited access to public benefits
Lawful permanent residency
How Courts Benefit from These Legal
Protections for Vulnerable Immigrants
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They promote the integrity of the
justice system.
They improve immigrants’ access to
justice
Legal immigration status assists
courts in making orders that help
victims and children
Courts build relationships with
immigrants serving organizations
Cross-Cultural Competence
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Effective adjudication requires cultural competence.
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The issue is not so much about sensitivity, but the court’s
ability to get information needed to adjudicate the case fairly.
Parallel Universe Thinking: In what kind of world
would this litigant’s behavior make sense?
Understand interplay of three cultures
(judge/adjudicator, lawyers, immigrant litigant).
Expect effective communication with foreign national
to require more effort—at least at the outset.
Don’t get lost in translation.
Susan Bryant, The Five Habits: Building Cross-Cultural Competence in
Lawyers, 8 CLINICAL L. REV. 33 (2001). Available online at http://tinyurl.com/kwden9j
Hierarchy of Immigration Status
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Citizen or National
LPR – Green Card Holder – Immigrant
Asylee or refugee
Non-Immigrant Visa (NIV) – student,
visitor, temp. worker, diplomat, etc.
Temporary Protected Status (TPS)
Deferred Action (VAWA,Dreamers and PD)
Previously documented but out of status.
Undocumented – EWI
Key Players in Immigration
Enforcement
Department of
Homeland
Security (DHS)
Immigration and
Customs
Enforcement
(ICE)
Citizenship and
Immigration
Services (CIS)
Department of
Justice (DOJ)
Customs and
Border Protection
(CBP)
Enforcement and
Removal
Operations (ERO)
Immigration
Inspectors
Office of Chief
Counsel (OCC)
Border Patrol
Executive Office
for Immigration
Review (EOIR)
Immigration
Courts and BIA
FAMILY LAW: IMMIGRATION
CONSIDERATIONS IN
MARRIAGE AND DIVORCE
Family Law: Immigration Considerations in
Marriage and Divorce
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Immigrants have right to marry in U.S. irrespective
of their status
U.S. citizens and permanent residents petitioning for
their spouses must execute I-864 Affidavit of
Support committing to financially support the
sponsored immigrant at minimum of 125% poverty
level.
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I-864 is “Contract” that remains valid despite divorce
Enforceable in state and federal courts
Ends only upon naturalization of sponsored immigrant
or when sponsored immigrant can be credited with 40
quarters of work
Family Law: Immigration Considerations in
Marriage and Divorce
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Divorce may forecloses eligibility for someone
seeking to “adjust status” (i.e., apply for permanent
residency) through marital relationship
Divorce may complicate battered spouse waiver of
conditional residence status for individual who
acquired residency status through recent marriage
Attorneys must assess immigration status of client
to determine whether divorce will affect eligibility to
remain in the U.S.
Family Law: Immigration Considerations in
Custody
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Best interest of child in a mixedstatus family
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Should be determined case by case
Avoid generalizations about implications
of immigration status
Immigration status not relevant to best
interests or primary caretaker
determinations or award of custody to
non-abusive parent.
Immigration status generally relevant as
indicator of abuse, power and control.
IMMIGRATION LAW
PROTECTIONS THAT
REQUIRE STATE COURT
INTERVENTION
Special Immigrant Juvenile Status
Court with jurisdiction over care, custody or
dependency of juveniles issues court order:
 Awarding custody or placing child with individual,
agency or department
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PLUS- finding that reunification with at least one
parent is not viable due to abandonment, abuse,
or neglect
AND not in child’s best interest to be returned to
home country
Types of proceedings that may
involve SIJ predicate orders
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Divorce/Legal Separation
Custody/Child Support
Paternity
Guardianship
Dependency or Delinquency
Termination of parental rights
Criminal cases – juveniles
prosecuted as adults
Special Immigrant Juvenile Status
– Procedure after State Court
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Child files application for special immigrant
juvenile status (Form I-360) with USCIS
(including state court order).
Child files application for permanent residence
(Form I-485) with USCIS or with immigration
court .
While application for permanent residence is
pending, child gets employment authorization.
Eligible for citizenship five years after receiving
permanent residence.
Child may never petition for immigration status
for parents.
U Nonimmigrant Status for
Survivors of Crime
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Victim (direct or indirect) of qualifying criminal
activity.
Possesses information regarding criminal activity.
Has been, is being or is likely to be “helpful” in
detection, investigation, prosecution, conviction or
sentencing.
Crime occurred in the U.S. or violated U.S. law.
Suffered substantial physical or mental abuse as a
result of the crime.
Law Enforcement / Judge Certification on Form I918, Supplement B.
Qualifying criminal activity includes
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Domestic violence
Sexual assault
Rate
Incest
Prostitution
Torture
Felonious assault
Manslaughter
Murder
Kidnapping
Abduction
Trafficking
Involuntary servitude
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Slave trade
Peonage
Blackmail
Extortion
Witness tampering
Obstruction of justice
Perjury
Foreign labor contracting
fraud*
Stalking*
“any similar criminal activity”
Attempt, conspiracy or
solicitation to commit a listed
crime.
Who can sign U-Visa certification?
Any entity that detects, investigates or
prosecutes criminal activity:
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Based on probable cause = detection
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Investigation or prosecution
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Judges, EEOC, Department of Labor or
child protection agencies.
Police, prosecutors, child or adult
protective services, federal LEA’s
Other agencies that detect, investigate,
prosecute, convict or sentence.
U-Visa certification in Family Court
There are a variety of civil
proceedings in which a judge may
“detect” criminal activity
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Civil protective orders
Custody or child support
Divorce
Child abuse or neglect
Guardianship
The Court’s Role In U-Visa
Certification
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Inform litigants about the U-Visa
Make EXPLICIT findings about
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criminal activity,
injuries, and
helpfulness
Attach a copy of court orders to the
certification form
Sign the U-Visa certification
Law Enforcement Certification
Form I-918 Supplement B
L
Orloff
Leslye
E
08/28/1956
x
Washington, D.C.
Superior Cour t Judge.
Judge Lora Livingston
555 Indiana Avenue NW
Washington
202-555-5555
20005
DC
202-555-5556
x
x
x
H-62632-11
x
x
stalking
12/19/12
HRS sec. 709-906 Abuse of a Family or Household Member
x
x
Washington, DC
I have probable cause to believe Husband strangled Mrs. Orloff
during a domestic dispute and has been following her and
tracking her movements
As a result of Mrs. Orloff being assaulted and strangled
she suffered injuries to her neck and . (attached are copies
of photographs submitted to the cour t and the protection
order I issued)
X
X
x
X
Mrs. Orloff called 911 for help during a domestic dispute.
Upon arrival she provided infor mation about the incident to
the officer on scene and allowed the officer to take
photographs of the injur y to her neck. She came to cour t
seeking a protection order, which was granted.
X
William Orloff
Husband
Defendant
Based on Probable Cause and my issuance
of a protection order
Judge Lora Livingston
Januar y , 2014
Amending/modifying Form I-918 B
•
Judges may amend the language of the form to accurately
reflect the basis upon which the judge is signing the
certification.
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Probable cause, findings, rulings
Include the type of proceeding and
If orders were issued attach a copy of the order
Judges can should amend current form --examples:
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“Based upon my having probable cause …. I certify”
“Based upon my issuance of a civil protection order …I
certify”
“Based on my having presided over the criminal case … I
certify”
“Based upon my findings in a [custody/divorce] case of
[domestic violence/child abuse] … I certify”
U-Visa Procedure after State Court
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Immigrant files application forms (petition and
waiver) and supporting documentation, including
U-Visa certification, with USCIS.
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May include minor age children as derivative
applicants.
Child victims may include parents and minor age
siblings.
Adjudication typically takes over a year.
Only 10,000 U-Visas granted annually.
Status granted for 4 years.
May apply for LPR status after three years
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Must demonstrate no “unreasonable refusal” to
cooperate.
Plus humanitarian need, family unity or public interest
IMMIGRATION PROTECTIONS
THAT DO NOT REQUIRE
STATE COURT ACTION
T Visa: For Victims of Severe
Forms of Human Trafficking
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Victim of severe form of human trafficking
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Recruiting, transporting, obtaining or moving
persons for the purpose of
Obtaining labor or commercial sex
By use of force, fraud or coercion.
Present in U.S. “on account of” trafficking.
Extreme hardship if removed from the U.S.
Compliance with reasonable requests for
assistance from law enforcement
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No “Certification” required as for U-Visa.
T-Visa Procedure
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ICE may grant preliminary status of “continued
presence” to facilitate investigation.
Immigrant later files application forms (I-914
petition and waiver) and supporting
documentation with USCIS.
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No Law Enforcement Certification required.
Adjudication typically takes over a year.
Only 5,000 T-Visas granted annually.
Status granted for 4 years.
Approved T-Visa holders receive gov’t-funded
resettlement assistance.
May apply for LPR status after three years.
VAWA Protections for Immigrant
Survivors of Abusive Marriage
Self-Petition/Cancellation/Waivers
allow abused alien to acquire LPR
status without aid of abuser.
 Perpetrator: US citizen or LPR spouse
or parent; or US citizen adult child.
 Battery or extreme cruelty
 Good faith marriage
 Good moral character
Policy Protections for Immigrant
Family Members
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Deferred Action for Childhood Arrivals
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Entered US before 16th birthday
Present in US in June 2012 and for 5 years
Attending or graduated from high school/GED
No felony or significant misdemeanor
Deferred action and employment authorization.
Prosecutorial Discretion
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2 John Morton Memoranda on PD from June 17, 2011
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Includes victims and witnesses in non-frivolous actions to
protect civil rights.
Directive 11064.1 “Facilitating Parental Interests in the
Course of Civil Immigration Enforcement Activities”
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Specifically related to adjudication of family-related matters
(e.g. child custody and termination of parental rights).
State Court Role
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Make litigants aware of possible
immigration impact or relief.
Make litigants aware of possible
funding for representation.
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See recent revisions to LSC regulations
Make appropriate findings needed
for or helpful to an immigrant
victim’s immigration case.
Questions….
Kenneth A. Mayeaux
Assistant Professor of Professional Practice
LSU Law Clinic
P.O. Box 80839
Baton Rouge, LA 70898
225-578-2071(direct line)
[email protected]