When your CASA youth is undocumented…Special Immigrant Juvenile Status

WASHINGTON STATE CASA CONFERENCE - 11/02/2014 KATI ORTIZ, IMMIGRATION ATTORNEY

“Undocumented” – what does that mean?

 Immigrant  Non-immigrant  Undocumented  Illegal  Alien  No status  Unlawful status

How do I know if my youth is “undocumented?”

    Never assume based on color of skin/eyes/hair, accent, or name that a child is or is not a United States citizen Ask the child Ask the parents Get a copy of the child’s birth certificate

What is at stake?

 Permanency: CASAs advocate for the best interests of abused and neglected children. You offer judges the critical information they need to ensure that each child’s rights and needs are being attended to while in foster care. You often stay with children until they are placed in permanent homes.

 Deportation: The U.S. government places all children who lack lawful immigration status into removal proceedings.

 Best Interests: The children you work with have been abused, abandoned or neglected and cannot safely reunify with their parents and have no responsible persons to return to in their home countries.

The solution

 Special Immigrant Juvenile Status (SIJS)  SIJS can provide eligible children a route to legal permanent residency and can prevent an eligible child’s removal/deportation from the U.S.

 Immigration and Nationality Act (INA) 101(a)(27)(J)  William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) 235(d)(1)  Code of Federal Regulations (CFR) 204.11

SIJS: An overview

 What is SIJS?

 SIJS is a non-immigrant visa available to certain youth (unmarried and under age 21) who are the subject of abuse, neglect, or abandonment by one or both parents.

 Once SIJS is obtained, a youth becomes immediately eligible to apply for lawful permanent residence (a “greencard”).

 For many undocumented youth, SIJS is the only path available to legal immigration status and without it a youth will most likely be removed from the U.S.

Breaking down the process

 SIJS is a two-step process:  1. The Juvenile/Dependency Court Stage  Commissioner or judge must make the required findings.

 2. The Immigration Stage  Not in removal proceedings: Attorney uses the SIJS findings as the basis for the concurrent filing of the SIJS petition (Form I-360) and Adjustment of Status application (Form I-485) with USCIS  In removal proceedings: Attorney uses the SIJS findings as the basis for the filing of the SIJS petition and then requests the immigration judge to terminate proceedings - then files I-485 with USCIS

Juvenile Court: required findings



The child must be declared dependent on a juvenile court or whom such a court has legally committed to or placed under the custody of, an agency or department of a State or an individual or entity appointed by a State.

“Juvenile court” is defined as a court “having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” 8 CFR § 204.11(a).

 In practice this has included dependency, delinquency, and non parental custody actions.

Juvenile Court: required findings



The child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.

 Does not require termination of parental rights

Juvenile Court: required findings



It is not 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.

  You may have to convince the Commissioner or Judge to rule on this.

The Commissioner or Judge is not granting immigration benefits

Juvenile Court: In practice:



Weigh the equities: the negatives of the child’s returning to his/her home country and the positives of remaining in the U. S. are relevant.

 For example:  Child fears retaliation by abusive family members or coyote   Child has no responsible family members to provide care and protection Child will have no access to necessary 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 *Argue for this child, some judges fear the flood gates!

The hurdles

   Issues with the Commissioner or Judge who is unwilling to make the required findings The child falls into non-waivable ground(s) of inadmissibility The child does not merit a favorable exercise of discretion by the immigration judge

Immigration Stage

 Immigration Court?

 Form I-360  Form I-485  Biometrics  Interview  Greencard

Conclusion

 Questions?

 Kati Ortiz Ortiz Law Office, PLLC 2200 6th Ave, Ste 839 Seattle, WA 98121 206-602-2598 [email protected]