Presentation on theme: "Rebeca E. Salmon, Esq. Of Catholic Charities Atlanta"— Presentation transcript:
1Rebeca E. Salmon, Esq. Of Catholic Charities Atlanta orRebeca E. Salmon, Esq.A Salmon Firm, LLC ICAP Contract AttorneyLegalization Remedies for Undocumented ChildrenNACC Conference – Achieving Equity for Children and Families, October 20-23, 2010
2...What remedies are there? T nonimmigrant status for victims of Human TraffickingU nonimmigrant status for victims of crimesViolence Against Women Act (VAWA) relief for domestic violence victimsSpecial Immigrant Juvenile Status (SIJ) for child abuse, abandonment and neglect victims...What remedies are there?
3Immigrants can be particularly vulnerable to crimes like human trafficking, domestic violence and child abuseLanguage barrier, separation from family and friends, lack of understanding of US laws, fear of deportation, fear of law enforcement, cultural differencesCongress created several forms of immigration relief that are available to undocumented immigrants who become victims
4T Nonimmigrant Status (T visa) Provides immigration protection to victims of human traffickingCongress 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 prosecutionWhat is trafficking?Modern day form of slaverymigrant workers, sweatshops, sex trade, domestic servitudeT Nonimmigrant Status (T visa)
5Trafficking v. Smuggling PurposeObtain illegal entry into the USRecruiting, transporting, harboring or receipting persons by force or coercion for the purpose of exploitationConsentConsent to be smuggledMay or may not have consented, or initial consent rendered meaningless by coercive or abusive actions of the traffickersResultEnds with arrival into the USInvolves ongoing exploitation
6Eligibility 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.Eligibility Requirements
7Self-petitioning application—do not need a sponsor (law enforcement certification is optional) Can apply for family members5,000 visas each fiscal year for victims and no limit for family membersEligible to work in the US4 year duration of status (extensions are available)May adjust status to lawful permanent residentBenefits
8U Nonimmigrant Status (U visa) Provides immigration protection to victims of certain types of crimesCongress 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 prosecutionU Nonimmigrant Status (U visa)
9What crimes qualify? Rape Involuntary servitude Torture Slave trade Trafficking KidnappingIncest Unlawful criminal restraintDomestic violence False imprisonmentSexual assault BlackmailAbusive sexual conduct ExtortionProstitution ManslaughterSexual exploitation MurderFemale genital mutilation Felonious assaultBeing held hostage Witness tamperingPeonage Obstruction of justice*Includes attempts, conspiracy, or solicitation.*Includes any similar activity where the nature and elements of the unlisted crime are substantially similar.
10Eligibility 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.Eligibility Requirements
11Self-petitioning application—do not need a sponsor (requires law enforcement certification) Can apply for family members10,000 visas each fiscal year for victims, no limit for family membersEligible to work in the US4 year duration of status (extensions are available)Can Adjust status to lawful permanent residentBenefits
12Violence Against Women Act (VAWA) Provides immigration relief to victims of domestic violenceCongress 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 abuser’s knowledge or consent.Violence Against Women Act (VAWA)
13Who 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/LPRIncluding: 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)Who Qualifies?
14Eligibility Requirements Is or was married to USC or LPRIs child of USC or LPRIs parent of USCMarriage was in good faithSubjected to battery or extreme cruelty during the marriageResides or Resided with the abuserGood moral characterEligibility Requirements
15Benefits Placed in deferred action to prevent removal from the US Can work in the USChanges to the abuser’s immigration status will not affect the victim’s self-petitionRemarriage after approval does not affect statusCan adjust status to lawful permanent residentBenefits
16What 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 is Special Immigrant Juvenile Status (SIJS)?
17WHAT LAWS AND PROCEDURES APPLY? Federal Law (Defining SIJS Law and Procedure)HR7311- TVRPAStatute (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 StatutesState Case lawInternational Law (Defining Best Interests/ Basic Human Rights & Protections)Convention on the Rights of the ChildDeclaration on the Rights of the ChildWHAT LAWS AND PROCEDURES APPLY?
18FEDERAL 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.These federal responsibilities are important because they help us understand the different interests of each government agency involved with the children.Additionally, there are many children who are not in federal custody who may still be eligible for SIJS. We will, from time to time, note some distinctions in these cases.FEDERAL RESPONSIBILITES FOR JUVENILE ALIENS
19 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 1990Nov. 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) BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT
20William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 Section 235 of TVPRA …Effective date: March 23, 2009SIJS must be adjudicated within 180 days!Prevents age-outsFile by 18- age frozenStill 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 HHSAsylum reliefChildren no longer have 1 year filing deadlineAsylum office has jurisdiction even if previous deport
21TVRPA Clarified intentions of Congress in protecting vulnerable foreign born children and enhanced efforts to combat trafficking and ensure safe repatriation when appropriateSecretary of State shall negotiate agreements between the U.S. and contiguous countries with respect to repatriation proceduresNo child shall be returned to the child’s 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 reintegrationDeterminations include assessment of country conditions through Department of State’s Country Reports on Human Rights Practices and the Trafficking in Person’s Report
22Sec 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 1980Makes eligible for placement and services under INA 412(d), in parity with refugee childrenTitle IV federal financial assistanceSec 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
23Inadmissibility... Most Juvenile Delinquency Public Charge SPECIFICALLY WAIVEDMost Juvenile DelinquencyPublic ChargeLabor CertificationPresent without admission or Parole (without inspection)StowawayMisrepresentation/ FraudLack of Valid Entry DocumentUnlawful PresenceWAIVABLEHealth related groundsProstitution and commercialized viceAlcoholics or people with “mental, physical disorders”Drug addicts or abusersAssociation with terrorist organizationImmigration violatorsAliens previously removedNOT WAIVABLECertain crimes (aggravated felonies)Multiple criminal convictionsControlled substance traffickersTerrorist activitiesInadmissibility...
24BASIC LAW OF SIJS: SIX BASIC REQUIREMENTS U.S. Congress enacted this form of relief that helps certain undocumented children who have been abused, abandoned or neglected to obtain lawful permanent residency. The law has strict requirements and is not intended to be a general mechanism for undocumented children to acquire lawful immigration status. Note the House Conference Report Section that DHS refers to in these cases.Child is unmarried and under the age of 21 (Arizona: under the age of 18)Child must be declared dependent in the Superior Court of the county in the state of Arizona in which the child residesThe child is eligible for long-term foster care (not necessarily in foster care, but family reunification is not a viable option) due to abuse, abandonment or neglect in accordance with Arizona state law (this abuse can occur inside or outside U.S.)It is not in the best interests of the child to return to his/her country of origin or country of last habitual residence (best interests; abusive family members, no access to medical, educational or social services)Abuse, abandondment and nelgect is not defeined under federal law, rather it is state law. Family reunification has been interpretered tyo mean that between parents and child. Family reuniifcatio nis onr longer option.,BASIC LAW OF SIJS: SIX BASIC REQUIREMENTS
25REQUIREMENT 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 thisPresence is all that is required, it does not matter when or how the minor came to be in the United States.RAISE THE ISSUE OF AGING OUT AT THIS POINT.REQUIREMENT ONE
26REQUIREMENT TWO Unmarried A child’s having his/her own children is not a bar to SIJS.Presence is all that is required, it does not matter when or how the minor came to be in the United States.REQUIREMENT TWO
27REQUIREMENT 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 LawChild 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 THREE
28REQUIREMENT FOUR Reunification with parent not viable Whose reunification with 1 or both of the immigrant’s 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 doCaution: if one parent still caring for child – not going to work!Does not require termination of parental rightsREQUIREMENT FOUR
29REQUIREMENT FIVE Best interest to remain in current placement It has been determined in administrative or judicial proceedings that it would not be in the child’s best interest to return to her home country or last habitual residenceAdvocates can raise both state and international law on best interestsCountry reportsDOS travel advisoriesHuman Rights WatchLook to State law regarding basics of neglect(ie. Indoor plumbing, access to education, access to medical care, ability to protect)Under international principles:protection of the child’s “best interest” requires that the child’s welfare supersede all other considerations, that individuality be respected and that physical, psychological, and social development needs be met. From these principles it follows that what is best for the child comes before any political, social or other consideration. It also follows that, wherever possible, an individual assessment of needs and circumstances should take place with the child’s participation. The objective should be to enable the child to develop physically, morally, mentally, spiritually and socially in a healthy and normal manner. (Declaration of the Rights of the Child, United Nations)REQUIREMENT FIVE
30The 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 GeneralChildren 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)Based on the Third Memorandum (May 2004), specific consent requests must now be made through Immigration and Customs Enforcement (ICE) (instead of through the USCIS District Director) to permit a juvenile court to exercise jurisdiction for purposes of a dependency determination. The Third Memorandum (May 2004) does not address the standards for determining whether requests for specific consent should be granted, advocates still rely on the Second Memorandum insofar as it defines these standards.REQUIREMENT SIX (n/a)
31The child must remain under juvenile court jurisdiction for the entire time that the immigration applications are pending. (8 CFR (c)(5))TVPRA should address thisCAUTION
32OVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL State Dependency ProceedingsFile 1-step (I-360,I-485,I-765, I-131,G-325A, birth certificate, medicals, fee waiver, pictures)Have ASC Biometrics' taken-- EAD issued within 90 days (SSN)Adjustment of Status interview before U.S.C.I.S. officerLPR granted-- within 180 days of filingAge 18 and if LPR 5 years -- apply for citizenshipOVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL
33OVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS Concurrently-- Child must attend All EOIR Removal Master Calendar Hearings-- Dependency Proceedings in State CourtFile I-360*-- Once approved, request joint Motion to Terminate from ICE-- Deportation stopped and case transferred back to USCISFile I-485Have ASC Biometrics' taken-- EAD issued within 90 days of 485 filing (SSN)Adjustment of Status interview before U.S.C.I.S. officerLPR granted-- within 180 days of filing the 4857. Age 18 and if LPR 5 years -- apply for citizenshipOVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS
34Special Immigrant Juvenile Status LAST, First MiddleA #: xxI-360 and I-485 Petition to Adjust StatusSubmitted to:USCISP.O. BoxChicago, ILSpecial Immigrant Juvenile StatusPLEASE RUSHEnclosed: 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 PetitionerSealed Medical ExamsI-360, I-485, G-325A (if over 14), I-765, I-131Supporting DocumentationBirth Certificate w/ translationJuvenile Court Order with required findings highlightedAdditional beneficial supporting documentation (not required)Good school recordsMedical records/ Psych evaluations if abusedLetters of support of child from communityPhotos of child in their life here*IF FEE WAIVER – clearly mark outside of envelope and every page of each petitionCOVER PAGE
36Practice Pointers Prepare well in advance Know your clientKnow your juvenile courtJuvenile Delinquency/ Deprivation require certified dispositionsImmigration Attorney is crucialCommunicate with Imm. Ct and District CounselMotion to Reopen// Motion to DismissMonitor USCIS processEvaluate for Grounds of InadmissibilityPrepare I-601 Waiver w/ supporting documentationKeep options openT- visaU- visaVAWASIJSAsylumVoluntary Departure*Men MUST REGISTER FOR SELECTIVE SERVICENote that there may be a timing issue when there is a simultaneous asylum hearing or the minor has already had an asylum hearing and the case is on appeal.Practice Pointers
37…we just want to feel safe Karen from Honduras – sold to coyotesJuan from El Salvador – rode his bikeDiego from Mexico – fled constant abuseMarisol from Guatemala – father killed sisterAlex from Honduras- shot by gangsIleana from Nicaragua – abused by step-dadMichael from Nigeria – Mom died in car accidentTrish from Lagos – Dad abandoned her with auntChristina from Mexico – been in DFCS care all her life…we just want to feel safe
38To 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.