Transcript Title

Immigration Issues in Child Welfare
Proceedings
Tennessee Juvenile Court Mid-Winter Conference
February 23, 2015
Steven Weller
Center for Public Policy Studies
Immigration and the State Courts Initiative
© 2012 Center For Public Policy Studies. All rights reserved.
Steven Weller
[email protected]; (303) 494-4268
John A. Martin
[email protected]; (303) 449-0125
Center for Public Policy Studies
http://www.centerforpublicpolicy.org
© 2012 Center For Public Policy Studies. All rights reserved.
Learning Objectives
Participants will be able to:
● Identify different types of immigration status
● Anticipate how the immigration status of the parties might
affect the process, outcomes and range of available options in
a dependency case
● Identify how actions in a dependency case or a concurrent
delinquency case might either jeopardize a juvenile’s
immigration rights or provide an opportunity for a juvenile to
adjust to lawful status
● Identify other provisions under Federal immigration law for an
abused juvenile to adjust immigration status
● Identify people who might need the advice of immigration
counsel
© 2012 Center For Public Policy Studies. All rights reserved.
3
Areas of Misalignment Between Federal Immigration
Law and State Courts
© 2012 Center For Public Policy Studies. All rights reserved.
4
State Court v. Federal Immigration System
Purpose and Roles
● There is an inherent tension between the roles and purposes of
the state courts and the roles of the immigration system in
American society
● Purposes and Roles of State Courts include: punishment;
separating the dangerous from rest of society; rehabilitation;
restoration/making victims whole; protecting the vulnerable;
adjudicating disputes between individuals; doing individual
justice in individual cases; assuring justice and the appearance
of justice; and maintaining official records
● Federal Immigration Purposes and Roles include determining
who should be in the US for how long and under what
conditions; who should not be in the US and why; and who
should become a US Citizen
© 2012 Center For Public Policy Studies. All rights reserved.
5
Sources of Misalignment
● Federal immigration rights can be dependent on the
outcomes of a state court state court criminal,
family, juvenile, or civil case
● Federal immigration law assumes bright-line
distinctions in state law regarding court processes,
case outcomes, criminal convictions, and criteria for
sentencing, where in fact there are shades of gray
and judges have room to exercise discretion
● The operation of Federal immigration law may affect
a state court case by limiting the options and
possible outcomes available to the state court judge
© 2012 Center For Public Policy Studies. All rights reserved.
6
Areas of Misalignment in Child Welfare Cases
● Mandatory immigration detention of a parent, which may result
from a conviction of a minor crime under state law, may have
an effect on a dependency case
● State juvenile delinquency pleas and dispositions aimed at
helping the juvenile may carry negative immigration
consequences for a non-citizen juvenile
● Judges may make determinations in juvenile court that affect a
juvenile’s immigration rights based on a misunderstanding of
immigration law
© 2012 Center For Public Policy Studies. All rights reserved.
7
Areas of Misalignment: Best Interests of the
Child
● With regard to immigration cases involving families and
children, federal immigration law does not have a concept of
the best interests of the child.
● Neither the federal immigration courts nor USCIS have a
mandate or the resources to investigate what is in the best
interests of the child in determining the immigration rights of
parents or children.
● Where a child’s best interest is a potential determining factor in
an immigration proceeding, such as determining eligibility for
SIJS, the federal system is dependent on a determination of the
child’s best interest by a state court.
© 2012 Center For Public Policy Studies. All rights reserved.
8
Immigration Issues in Dependency Cases
© 2012 Center For Public Policy Studies. All rights reserved.
9
Why Knowledge of Immigration Issues is
Important in Dependency Cases
● Immigration status of parents or children can have
important consequences in planning for foster care,
family reunification or independent living
● A dependency case may form the basis for an
application for Special Immigrant Juvenile status
● Immigration law has no concept of the best interests
of the child in removal proceedings
● Understanding of family dynamics may turn on
knowing about family immigration issues
© 2012 Center For Public Policy Studies. All rights reserved.
Immigration Issues That Affect Conditions for
Family Reunification
Immigration status can affect whether conditions for
family reunification can be met by impacting:
●Eligibility to work
●Ability to obtain a driver’s license where parental
consent is required
●Eligibility for services
●Effect of ICE holds and immigration detention
© 2012 Center For Public Policy Studies. All rights reserved.
11
Ability to Meet Conditions for Reunification or
Conditions of Alternatives to Detention
● Completion of counseling or other services may be a
condition for parents to obtain return of a child
removed from the home in a dependency case, or for
a juvenile to avoid detention in a delinquency case
● Immigration status may affect eligibility for benefits
or services under provisions of Federal immigration
law and, in some states, provisions of state law
● Immigration status may affect eligibility to work,
which in turn affect the ability of a non-citizen to pay
for required counseling or other services ordered by
the juvenile court
© 2012 Center For Public Policy Studies. All rights reserved.
12
Limits on Availability of Service Options
●The availability of services in different languages
●The availability of culturally appropriate services
●Conditions for reunification that cannot be met by
undocumented immigrants who are not eligible to work
●Services that are not available to juveniles or parents
who are undocumented immigrants, including medical
services, mental health services, and financial
assistance
© 2012 Center For Public Policy Studies. All rights reserved.
13
Special Immigrant Juvenile Status (SIJS)
© 2012 Center For Public Policy Studies. All rights reserved.
14
Special Immigrant Juvenile Status (SIJS)
● SIJS is a form of TEMPORARY immigration relief that provides
an abused, neglected, or abandoned juvenile who meets certain
requirements with some important rights like the right to work.
● The determination of eligibility is made by the United States
Citizenship and Immigration Service (USCIS).
● The issue will come before a juvenile court judge in the form of
a motion by the attorney for the juvenile requesting the judge to
issue an order with certain required statutory findings that
enable the juvenile to file for SIJS. This order is not a decision
by the judge that the juvenile is eligible for SIJS.
● SIJS is not a grant of permanent residency. In order to remain
permanently in the U.S., the juvenile must file a separate
application for adjustment to LPR status. The grant of SIJS
does not guarantee that USCIS will grant LPR status.
© 2012 Center For Public Policy Studies. All rights reserved.
15
Special Immigrant Juvenile Status
To apply for SIJS, the juvenile must supply USCIS with an order
from court of juvenile jurisdiction in the U.S. making the following
three findings:
1. The juvenile is declared dependent on the court;
2. Reunification with one or both parents is not viable due to
abuse, neglect, or abandonment or a similar basis under
state law; and
3. There has been an administrative or judicial finding that it
would not be in the best interest of the juvenile to be
returned to the juvenile’s parents or country of origin.
The juvenile court order must have been sought primarily to
obtain relief from abuse, neglect, or abandonment and not
primarily to obtain an immigrant benefit.
© 2012 Center For Public Policy Studies. All rights reserved.
16
Special Immigrant Juvenile Status, Cont.
● The court filing may be made by a state agency or by a private
●
●
●
●
individual such as a family member
The juvenile must remain under the court’s jurisdiction until the
juvenile is granted SIJS
At the time of filing the juvenile must continue to be dependent
on the juvenile court and eligible for long-term foster care
An unmarried alien under the age of 21 who meets the
conditions listed above may apply for SIJS as long as the alien
is still under the jurisdiction of the dependency court
Note that if state dependency jurisdiction terminates when the
juvenile reaches age 18, a juvenile who has not been declared
dependent before reaching the age of 18 cannot be declared
dependent and thus will not be eligible to apply for SIJS
© 2012 Center For Public Policy Studies. All rights reserved.
17
Role of the Juvenile Court in SIJS
● At least one state has held that the juvenile court
cannot refuse to make the findings solely because it
believes the juvenile should not remain in the U.S.
● USCIS will review the basis of each finding to assure
that the dependency case was not filed solely to
obtain special immigrant status.
● If the only evidence for the findings is the testimony
of the juvenile, the court may still make the findings
if it finds the testimony credible
● The ultimate grant of SIJS is made by USCIS, not the
juvenile court, and is based on a variety of
requirements in addition to the three findings
© 2012 Center For Public Policy Studies. All rights reserved.
18
SIJS – Additional Requirements
● If the juvenile is in removal proceedings, the
application for SIJS is made to USCIS, and once
granted, the application for LPR status is made
before the immigration court judge
● In the case of an unaccompanied alien child (UAC)
who is in the physical and legal custody of the Office
of Refugee Resettlement (ORR), a juvenile court
must obtain the consent of ORR to make custody or
placement decisions for the minor
© 2012 Center For Public Policy Studies. All rights reserved.
19
SIJS: Definitions of Juvenile Court and
Dependent
● A “juvenile court” is defined as a court having
jurisdiction under State law to make judicial
determinations about the custody & care of juveniles.
Juvenile, family, orphans, dependency, guardianship,
probate and delinquency courts are examples.
● A “dependent” is a child legally committed to, or
placed under the custody of, an agency or department
of the State, or an individual or entity appointed by a
State or juvenile court. Placements in foster homes,
group homes, with relatives or with guardians qualify.
© 2012 Center For Public Policy Studies. All rights reserved.
20
SIJS and USCIS
● The requisite findings in a juvenile court permit the
juvenile to apply to USCIS for SIJS and, if granted,
subsequently for adjustment of status to LPR
● The juvenile court does not make the determination
of eligibility for SIJS
● SIJS and LPR status are not automatic based on
juvenile court findings
● Juveniles who have been approved for SIJS are
eligible to work
© 2012 Center For Public Policy Studies. All rights reserved.
SIJS and Delinquency Proceedings
● A delinquency proceeding that results in state
dependency can serve as the basis for an
application for special immigrant juvenile status
● While an adjudication of delinquency is not a
criminal conviction for immigration purposes,
certain admissions made in a delinquency
proceeding could still make a juvenile inadmissible
and thus ineligible to adjust to LPR status even after
receiving a grant of SIJS
© 2012 Center For Public Policy Studies. All rights reserved.
Subsequent Application For LPR Based on SIJS
● The grant of SIJS makes the juvenile eligible to apply for
adjustment to LPR status, either concurrently or later. The
grant of adjustment to LPR status is discretionary with USCIS
and is not guaranteed even if the juvenile has been granted
SIJS.
● To be eligible for adjustment to LPR status, an applicant must
meet the grounds of admissibility to the United States under
federal immigration law. With regard to juveniles, USCIS can
waive many of those grounds. Still, some of the grounds for
inadmissibility under federal immigration law will apply to a
juvenile applying for LPR status on the basis of an approved
grant of SIJS.
© 2012 Center For Public Policy Studies. All rights reserved.
23
Subsequent Application For Law Permanent
Resident Status (Continued)
A juvenile who engages in any of the following areas of conduct
may be deemed inadmissible and ineligible for adjustment of
status to LPR even if the juvenile has been granted SIJS:
● known or reasonably believed to have engaged in drug
trafficking;
● being a drug addict;
● having engaged in prostitution;
● violation of protection order;
● use of false documents; or
● having a mental condition that is a threat to others.
Violent offenses, sex offenses, and gang activity can be
particularly problematical for the juvenile, as these offenses can
lead to denial of any immigration benefits.
© 2012 Center For Public Policy Studies. All rights reserved.
24
SIJS and Family Immigration
● A person who becomes a Lawful Permanent
Resident through SIJS will no longer be considered
the child of his or her parents for immigration
purposes, even if parental rights were not
terminated. See 8 U.S.C. 1101(a)(27)(J)(iii)(II).
● The child will thus not be able to use the lawful
status attained through SIJS as a means to obtain
lawful status for his or her parents
● This bar applies to both parents, even if SIJS was
obtained due to abuse, neglect, or abandonment by
only one parent.
© 2012 Center For Public Policy Studies. All rights reserved.
25
Unaccompanied Alien Children (UAC)
© 2012 Center For Public Policy Studies. All rights reserved.
26
The Problem of Unaccompanied Alien Children
● The number of Unaccompanied Alien Children (UAC) from
Central America entering the United States has been
dramatically increasing.
● While the initial entrance of UACs is in the border states, UACs
have now been placed in every state in the country.
● It is likely that, with the continued increase of UACs and
placements with sponsors around the United States, other
states either are, or will soon be, dealing with issues involving
UACs in their juvenile and probate courts.
© 2012 Center For Public Policy Studies. All rights reserved.
27
Processing of Unaccompanied Alien Children
● UACs are first detained by the CBP and interviewed at the
border. Some children from contiguous countries may be sent
back if they meet certain criteria.
● Children who are not sent back are delivered to the U.S.
Department of Health and Human Services/Office of Refugee
Resettlement (ORR).
● ORR initially places the children in an ORR facility and then
seeks to place them with a sponsor such as a parent, a legal
guardian or family member, or a licensed program. UACs have
been placed with sponsors in every state in the country.
● While a child is under the physical and legal custody of ORR,
the juvenile court may make SIJS findings but needs ORR
consent to make placement decisions for the child.
© 2012 Center For Public Policy Studies. All rights reserved.
28
Processing of UAC, Cont.
● Once a child is placed with a sponsor, responsibility for the
care of the child passes from ORR to the sponsor. If the child
later becomes involved in a dependency case, all further
decisions with regard to the placement of the child may be
made by the juvenile court without ORR consent.
● State juvenile and probate courts are seeing a substantial
increase in filings on behalf of UACs seeking orders specifying
the findings required for application for SIJS.
● If DHS seeks to deport a UAC, immigration court proceedings
will continue even after a minor is placed with a sponsor. In
some cases the child may be deported before the juvenile case
can be completed.
© 2012 Center For Public Policy Studies. All rights reserved.
29
UAC and Asylum
● A UAC who is not eligible for SIJS may be eligible for asylum.
● The following are the basic conditions for asylum:
 The individual has a well-founded fear of persecution on the
basis of race, religion, nationality, membership in a
particular social group, or political opinion if returned to the
home country or country of last permanent residence.
 The individual is not a security risk or perpetrator of
persecution.
 The individual has not committed certain crimes.
● An alien granted asylum may apply for LPR status after one
year. The person must be admissible, although some grounds
may be waived for humanitarian purposes.
● Evidence of eligibility may arise in a juvenile case.
© 2012 Center For Public Policy Studies. All rights reserved.
30
Juvenile Trafficking Victims
© 2012 Center For Public Policy Studies. All rights reserved.
31
Identifying a Juvenile Trafficking Victim
Juveniles in the juvenile justice system may be victims of human
trafficking.
● Prostitution is the primary form of human trafficking for
juvenile girls. Distinguishing between a prostitute and a victim
of human trafficking can be difficult.
● Trafficking victims may also engage in other illegal activities
for their traffickers, such as selling drugs or recruiting other
victims for their traffickers.
● Trafficking victims may commit status offenses such as
runaways or truancy.
● Trafficking of children by family members, for sex or labor, may
arise in an abuse or neglect proceeding.
● A trafficker may try to get guardianship over a victim.
© 2012 Center For Public Policy Studies. All rights reserved.
32
Special Issues Faced By Trafficked Juveniles
● There may be no secure housing available for a juvenile victim
of sex trafficking unless the juvenile is convicted of prostitution
and sentenced to a juvenile detention facility. The conviction,
which is aimed at protecting the juvenile, may end up making
an immigrant juvenile ineligible for Special Immigrant Juvenile
status or discretionary immigration benefits requiring a
showing of good moral character.
● If a trafficked juvenile also engages in other illegal activities for
a trafficker, such as selling drugs or recruiting other juveniles,
that additional criminal behavior, if admitted to in a delinquency
hearing, could also make the victim ineligible for Special
Immigrant Juvenile status or discretionary immigration benefits
requiring a showing of good moral character.
© 2012 Center For Public Policy Studies. All rights reserved.
33
Special Issues, Cont.
● Some states have options for certain juveniles charged with
prostitution to be classified as sexually exploited juveniles and
sent to diversion programs rather than being convicted of
prostitution. One state makes it an affirmative defense to a
charge of prostitution that the defendant was either a victim of
human trafficking or under the age of 18 at the time of
commission of the act.
● If a juvenile is ineligible for SIJS due to criminal activity but is
determined to be a victim of human trafficking, the juvenile may
be eligible for a T visa as a victim of human trafficking.
© 2012 Center For Public Policy Studies. All rights reserved.
34
T Visas for Human Trafficking Victims
● The T visa is a non-immigrant visa available for individuals who
have been the victims of human trafficking and meet the
following requirements:
 The person is the victim of a severe form of trafficking.
Federal immigration law classifies any sex trafficking of a
person under age 18 as severe trafficking.
 If the person is 18 or older, the person is complying with a
reasonable request to assist in the investigation or
prosecution of the traffickers.
● The maximum length of stay under the T visa status is four
years, unless extended. The holder of a T visa is eligible to
apply for lawful permanent resident status after three years.
The person must show good moral character.
© 2012 Center For Public Policy Studies. All rights reserved.
35
Severe Form of Trafficking
The term “severe form of trafficking in persons” means:
●The recruitment, harboring, transportation, provision, or
obtaining of a person for the purposes of a commercial sex act in
which the commercial sex act is induced by force, fraud, or
coercion, or in which the person induced to perform such an act
has not attained 18 years of age, or
●The recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purposes of subjection to
involuntary servitude, peonage, debt bondage, or slavery.
© 2012 Center For Public Policy Studies. All rights reserved.
36
Indicators of Trafficking Victims
Some possible indicators that a juvenile may be a
human trafficking victim include:
● Homelessness
● Lack of education or not attending school
● Work in massage parlors, dance halls, or other similar
●
●
●
●
establishments
Unexplained bruises
Unusual behavior, such as uncooperativeness, fear, or anger
Dependency relationships with older adults
Possession of unusually expensive items such as jewelry or
expensive cell phones
© 2012 Center For Public Policy Studies. All rights reserved.
37
U Visas
© 2012 Center For Public Policy Studies. All rights reserved.
38
U Visa
● U visas are non-immigrant visas with a duration of up to four
years for a non-citizen who: (1) has suffered severe physical or
mental abuse as a result of being a victim of criminal activity;
(2) has been, is being, or is likely to be of help to a Federal,
state, or local investigation of the criminal activity causing the
abuse; and (3) has certification from a Federal, state, or local
judge, prosecutor, law enforcement officer, or other justice
system official involved in prosecuting the criminal activity
● The perpetrator need not be a US Citizen or LPR
● There is no qualifying relationship required
● After three years in U visa status, person may be able to adjust
status to lawful permanent residence
© 2012 Center For Public Policy Studies. All rights reserved.
39
U Visa Required Certification
● The applicant must have certification from a federal, state, or
local judge, prosecutor, law enforcement officer, or other
justice system official involved in prosecuting the criminal
activity that he or she has been, is being, or is likely to be of
help to a federal, state, or local investigation of the criminal
activity causing the abuse.
● A judge can make the certification if the judge has knowledge
that the applicant meets the above requirements.
© 2012 Center For Public Policy Studies. All rights reserved.
40
U Visa List of Eligible Crimes
● The U visa applies to the following specified list of crimes,
many of which could be involved with human trafficking: rape;
torture; trafficking; incest; domestic violence; sexual assault;
abusive sexual contact; prostitution; sexual exploitation;
female genital mutilation; being held hostage; peonage;
involuntary servitude; slave trade; kidnapping; abduction;
unlawful criminal restraint; false imprisonment; blackmail;
extortion; manslaughter; murder; felonious assault; witness
tampering; obstruction of justice; perjury; stalking; fraud in
foreign labor contracting; or attempt, conspiracy, or solicitation
to commit any of the above mentioned crimes.
© 2012 Center For Public Policy Studies. All rights reserved.
41
Immigration Rights of Abused Spouses and Children
Under The Violence Against Women Act (VAWA)
© 2012 Center For Public Policy Studies. All rights reserved.
42
VAWA Self-Petitioner
● VAWA provides “self-petitioning” opportunities for persons
●
●
●
●
who suffer “battery or extreme mental cruelty” by a U.S.
Citizen or Lawful Permanent Resident spouse or parent
An abused child may self-petition without his/her parent
Derivative provisions permit petitions to include children of
abused spouses, or the non-abusive parent of abused
children, even if they were not abused
An application filed after separation or divorce must be filed
within two years of the divorce
Must show good moral character
© 2012 Center For Public Policy Studies. All rights reserved.
Definition of a Child for VAWA Purposes
● An unmarried person under age twenty-one, and
● Has one of the following relationships to the abuser
 Born in wedlock
 Stepchild who was under age eighteen at the time the
marriage creating the status of stepchild occurred
 Born out of wedlock, if legitimated or acknowledged by
father
 Adopted while under age sixteen, if in the adoptive parent’s
physical and legal custody for two years
© 2012 Center For Public Policy Studies. All rights reserved.
44
Proving Abuse for VAWA Self-Petitioner Status
The following may be used to prove abuse in an
application to USCIS for VAWA self-petitioner status
●Reports and affidavits from police, judges and other
court officials, medical personnel, school officials,
clergy, social workers, other social service agency
personnel
●Letters from advocates
●Protection orders
●Allegations in divorce petitions
●Reports on police calls to petitioner’s home
© 2012 Center For Public Policy Studies. All rights reserved.
45
Eligibility of Battered Spouse or Child for
Cancellation of Removal Order
● A battered spouse or child found removable by an
●
●
●
●
immigration court and not eligible for VAWA selfpetitioner status may still be eligible for cancellation
of the removal order and adjustment to LPR status
The alien must have been subject to battery or
extreme cruelty by a citizen or LPR spouse or parent
Some grounds of inadmissibility or deportability
apply
Must be of good moral character
Must show that removal would result in extreme
hardship to the alien or the alien’s child or parent
© 2012 Center For Public Policy Studies. All rights reserved.
46