Presentation on theme: "Legalization Remedies for Undocumented Children NACC Conference – Achieving Equity for Children and Families, October 20-23, 2010 Of Catholic Charities."— Presentation transcript:
Legalization Remedies for Undocumented Children NACC Conference – Achieving Equity for Children and Families, October 20-23, 2010 Of Catholic Charities Atlanta or Rebeca E. Salmon, Esq. A Salmon Firm, LLC ICAP Contract Attorney
...What remedies are there? T nonimmigrant status for victims of Human Trafficking U nonimmigrant status for victims of crimes Violence Against Women Act (VAWA) relief for domestic violence victims Special Immigrant Juvenile Status (SIJ) for child abuse, abandonment and neglect victims
Immigrants can be particularly vulnerable to crimes like human trafficking, domestic violence and child abuse Language barrier, separation from family and friends, lack of understanding of US laws, fear of deportation, fear of law enforcement, cultural differences Congress created several forms of immigration relief that are available to undocumented immigrants who become victims
T Nonimmigrant Status (T visa) Provides immigration protection to victims of human trafficking Congress wanted to aid law enforcement in investigating and prosecuting human trafficking by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution What is trafficking? Modern day form of slavery migrant workers, sweatshops, sex trade, domestic servitude
Trafficking v. Smuggling SmugglingTrafficking Purpose Obtain illegal entry into the US Recruiting, transporting, harboring or receipting persons by force or coercion for the purpose of exploitation Consent Consent to be smuggled May or may not have consented, or initial consent rendered meaningless by coercive or abusive actions of the traffickers Result Ends with arrival into the US Involves ongoing exploitation
Eligibility Requirements In order to be eligible for a T visa a victim must: Be a victim of a severe form of trafficking in persons. Be physically present in the United States. Comply with any reasonable requests for assistance in the investigation or prosecution (or be under the age of 18 or cannot participate due to trauma). Suffer extreme hardship involving unusual and severe harm upon removal from the United States.
Benefits Self-petitioning applicationdo not need a sponsor (law enforcement certification is optional) Can apply for family members 5,000 visas each fiscal year for victims and no limit for family members Eligible to work in the US 4 year duration of status (extensions are available) May adjust status to lawful permanent resident
U Nonimmigrant Status (U visa) Provides immigration protection to victims of certain types of crimes Congress wanted to aid law enforcement in investigating and prosecuting crime by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution
What crimes qualify? RapeInvoluntary servitude TortureSlave trade TraffickingKidnapping IncestUnlawful criminal restraint Domestic violenceFalse imprisonment Sexual assaultBlackmail Abusive sexual conductExtortion ProstitutionManslaughter Sexual exploitationMurder Female genital mutilationFelonious assault Being held hostageWitness tampering PeonageObstruction of justice *Includes attempts, conspiracy, or solicitation. *Includes any similar activity where the nature and elements of the unlisted crime are substantially similar.
Eligibility Requirements In order to be eligible for a U visa a victim must: Be a victim of qualifying criminal activity and suffered substantial physical or mental abuse as a result of the crime. Possess information about the qualifying criminal activity. Have been, is being, or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity. Be a victim of criminal activity that violated a U.S. law.
Benefits Self-petitioning applicationdo not need a sponsor (requires law enforcement certification) Can apply for family members 10,000 visas each fiscal year for victims, no limit for family members Eligible to work in the US 4 year duration of status (extensions are available) Can Adjust status to lawful permanent resident
Violence Against Women Act (VAWA) Provides immigration relief to victims of domestic violence Congress recognized that immigrant victims of domestic violence may remain in an abusive relationship because immigration status is often tied to their abuser. VAWA is a self-petitioning relief that removes control from the abuser and allows the victim to submit his or her own application that are filed without the abusers knowledge or consent.
Who Qualifies? Who may file? Spouses - The abused spouse of a USC/LPR (child may be included as a derivative beneficiary) Children - The abused child of a USC/LPR Including: The spouse of a USC/LPR whose child has been abused may file a self-petition based on the abuse of the child. In this case, the parent files based on abuse of the child, but both parent and child benefit. Parents – The abused parent of a USC (added by VAWA 2005) VAWA immigration relief applies equally to women and men (this gender neutrality was reiterated by VAWA 2005)
Eligibility Requirements Is or was married to USC or LPR Is child of USC or LPR Is parent of USC Marriage was in good faith Subjected to battery or extreme cruelty during the marriage Resides or Resided with the abuser Good moral character
Benefits Placed in deferred action to prevent removal from the US Can work in the US Changes to the abusers immigration status will not affect the victims self-petition Remarriage after approval does not affect status Can adjust status to lawful permanent resident
What is Special Immigrant Juvenile Status (SIJS)? Protection for children who do not have lawful status and who have been abused, abandoned or neglected in the U.S. or abroad. Applies to children who have just crossed the border as unaccompanied minors. Applies to children who were brought here by family members and grew up in the United States. This individual form of protection. This status requires interplay of federal immigration law, international treaty law and 50 different state child welfare codes.
WHAT LAWS AND PROCEDURES APPLY? Federal Law (Defining SIJS Law and Procedure) HR7311- TVRPA Statute (INA §101(a)(27)(j)) Code of Federal Regulations (8 CFR §204.11) INS Memoranda (August 1998) State Law (Defining Abuse, Abandonment & Neglect; Best Interests) State Revised Statutes State Case law International Law (Defining Best Interests/ Basic Human Rights & Protections) Convention on the Rights of the Child Declaration on the Rights of the Child
FEDERAL RESPONSIBILITES FOR JUVENILE ALIENS The Homeland Security Act of 2002 (HSA) reorganized federal responsibilities for juvenile aliens. Prior to the HSA, the former INS was responsible for apprehending and detaining all juvenile aliens. The Homeland Security Act of 2002 created the Department of Homeland Security (DHS). DHS has assigned juvenile responsibilities to the Bureaus of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Both were given responsibility for apprehending, processing, and transporting all juvenile aliens. DHS is also responsible for caring and housing accompanied juvenile aliens. Office of Refugee Resettlement (ORR), a section of the U.S. Department of Health and Human Services, was assigned responsibility for caring and housing unaccompanied juvenile aliens who are detained by DHS pending resolution of immigration cases enforced by DHS. A Statement of Principles guides the relationship between DHS and ORR, but discussions continue on a Memorandum of Understanding to govern the different responsibilities of the agencies for juvenile aliens. For instance, there are still different interpretations of what is an unaccompanied minor and which agency has responsibility for that minor.
BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT In 1990, Representative Morrison introduced legislation in the House of Representatives (H.R. 4300) that created SIJS. This became law through the Immigration Act of 1990 Nov. 29, 1990, Pub. L. No , 104 Stat INA §101(a)(27)(J)(i); 8 USC §1101(a)(27)(J)(i) In 1997, the SIJS section was amended by Sec. 113, Act of Nov. 26, 1997, Pub. L. No , 111 Stat providing that no state juvenile court has jurisdiction to determine the custody status or placement of an alien in DHS custody unless the Secretary of the Department of Homeland Security (formerly the Attorney General) specifically and expressly consents to such jurisdiction. 8 U.S.C. § 1101(a)(27)(J)(iii)(I)
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 Section 235 of TVPRA …Effective date: March 23, 2009 SIJS must be adjudicated within 180 days! Prevents age-outs File by 18- age frozen Still in proceedings – grandfathered (effective December 23, 2008) Changes the Juvenile Court Order requirements from long term foster care to reunification with 1 or both parents not viable Transfers specific consent authority to U.S. Dept of HHS Asylum relief Children no longer have 1 year filing deadline Asylum office has jurisdiction even if previous deport
TVRPA Clarified intentions of Congress in protecting vulnerable foreign born children and enhanced efforts to combat trafficking and ensure safe repatriation when appropriate Secretary of State shall negotiate agreements between the U.S. and contiguous countries with respect to repatriation procedures No child shall be returned to the childs country of nationality or of last habitual residence unless returned to appropriate employees or officials [through proper diplomatic channels] Implement best practices to ensure safe and sustainable repatriation and reintegration Determinations include assessment of country conditions through Department of States Country Reports on Human Rights Practices and the Trafficking in Persons Report
Sec 235(d)(4)(A) provides: STATE REIMBURSEMENTS!! Increases access to federal funds for state agencies providing services under section 501(a) of Refugee Education Assistance Act of 1980 Makes eligible for placement and services under INA 412(d), in parity with refugee children Title IV federal financial assistance Sec 235(d)(4)(B) provides: DFCS REIMBURSEMENTS!! [s]ubject to the availability of appropriations, the federal government shall reimburse the state for state foster care funds expended on behalf of children granted Special Immigrant Juvenile Status. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
SPECIFICALLY WAIVED Most Juvenile Delinquency Public Charge Labor Certification Present without admission or Parole (without inspection) Stowaway Misrepresentation/ Fraud Lack of Valid Entry Document Unlawful Presence WAIVABLE Health related grounds Prostitution and commercialized vice Alcoholics or people with mental, physical disorders Drug addicts or abusers Association with terrorist organization Immigration violators Aliens previously removed NOT WAIVABLE Certain crimes (aggravated felonies) Multiple criminal convictions Controlled substance traffickers Terrorist activities Inadmissibility...
BASIC LAW OF SIJS: SIX BASIC REQUIREMENTS
REQUIREMENT ONE Under the age of 21 While the federal eligibility criteria extend to age 21, in the state of Georgia, juvenile court extends to age 18. It may be possible to raise arguments for extension of jurisdiction in special cases. TVRPA resolved this
REQUIREMENT TWO Unmarried A childs having his/her own children is not a bar to SIJS.
REQUIREMENT THREE Deprived under State Law Declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State (INA § 101(a)(27)(J)) Deprived under Georgia Law Child could be in Independent Living Program, long-term foster care placement, Permanent Guardianship situation, group home, placed with non-parent relative or living with court-appointed guardians.
REQUIREMENT FOUR Reunification with parent not viable Whose reunification with 1 or both of the immigrants parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. (INA §101(a)(27)(J)) Does not require the court to address both parents, one will do Caution: if one parent still caring for child – not going to work! Does not require termination of parental rights
REQUIREMENT FIVE Best interest to remain in current placement It has been determined in administrative or judicial proceedings that it would not be in the childs best interest to return to her home country or last habitual residence
REQUIREMENT SIX (n/a) The Attorney General specifically consents (SPECIFIC CONSENT) to jurisdiction of juvenile court to determine the custody status or placement of a child if the child is in actual or constructive custody of the Attorney General Children in actual or constructive custody are children who are currently detained in an ORR shelter or in long-term foster care through ORR. If the child has been released to a family sponsor or has never been detained, the minor is not in DHS custody. (Stated Policy- Mr. John Pogash) For children in actual or constructive custody, before going into state juvenile court, you must obtain specific consent from the National Director on Juvenile Detention and Removal Operations. (Third Memorandum) If you do not obtain specific consent before going into state court, the state juvenile court order is invalid for purposes of SIJS. (Third Memorandum)
CAUTION The child must remain under juvenile court jurisdiction for the entire time that the immigration applications are pending. (8 CFR (c)(5)) TVPRA should address this
OVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL 1. State Dependency Proceedings 2. File 1-step (I-360,I-485,I-765, I-131,G-325A, birth certificate, medicals, fee waiver, pictures) 3. Have ASC Biometrics' taken -- EAD issued within 90 days (SSN) 4. Adjustment of Status interview before U.S.C.I.S. officer 5. LPR granted -- within 180 days of filing 4. Age 18 and if LPR 5 years -- apply for citizenship
OVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS 1. Concurrently -- Child must attend All EOIR Removal Master Calendar Hearings -- Dependency Proceedings in State Court 2. File I-360* -- Once approved, request joint Motion to Terminate from ICE -- Deportation stopped and case transferred back to USCIS 3. File I Have ASC Biometrics' taken -- EAD issued within 90 days of 485 filing (SSN) 5. Adjustment of Status interview before U.S.C.I.S. officer 6. LPR granted -- within 180 days of filing the Age 18 and if LPR 5 years -- apply for citizenship
COVER PAGE LAST, First Middle A #: xx I-360 and I-485 Petition to Adjust Status Submitted to: USCIS P.O. Box Chicago, IL Special Immigrant Juvenile Status PLEASE RUSH Enclosed: Attached to application (I-360)no fee (I-485)$ / FEE WAIVER (I-131)incl (I-765)incl. TOTAL $ / or FEE WAIVER* G-28 Notice of Entry of Appearance as Attorney (3) photos of Petitioner Sealed Medical Exams I-360, I-485, G-325A (if over 14), I-765, I-131 Supporting Documentation Birth Certificate w/ translation Juvenile Court Order with required findings highlighted Additional beneficial supporting documentation (not required) Good school records Medical records/ Psych evaluations if abused Letters of support of child from community Photos of child in their life here *IF FEE WAIVER – clearly mark outside of envelope and every page of each petition
Prepare well in advance Know your client Know your juvenile court Juvenile Delinquency/ Deprivation require certified dispositions Immigration Attorney is crucial Communicate with Imm. Ct and District Counsel Motion to Reopen// Motion to Dismiss Monitor USCIS process Evaluate for Grounds of Inadmissibility Prepare I-601 Waiver w/ supporting documentation Keep options open T- visa U- visa VAWA SIJS Asylum Voluntary Departure* Men MUST REGISTER FOR SELECTIVE SERVICE Practice Pointers
…we just want to feel safe Karen from Honduras – sold to coyotes Juan from El Salvador – rode his bike Diego from Mexico – fled constant abuse Marisol from Guatemala – father killed sister Alex from Honduras- shot by gangs Ileana from Nicaragua – abused by step-dad Michael from Nigeria – Mom died in car accident Trish from Lagos – Dad abandoned her with aunt Christina from Mexico – been in DFCS care all her life
To be alone. To be alone and lost. To be alone and lost in a foreign country. To be alone, abandoned or abused, lost and in a foreign country. …And to be a child.