1. Rebeca E. Salmon, Esq. Of Catholic Charities Atlantaor
Rebeca E. Salmon, Esq.
A Salmon Firm, LLC ICAP Contract Attorney
Legalization Remedies for Undocumented Children
NACC Conference – Achieving Equity for Children and Families, October 20-23, 2010

2. ...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
...What remedies are there?

3. 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

4. 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
T Nonimmigrant Status (T visa)

5. Trafficking v. Smuggling
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

6. 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.
Eligibility Requirements

7. Self-petitioning application—do 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
Benefits

8. 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
U Nonimmigrant Status (U visa)

9. What crimes qualify? Rape Involuntary servitude Torture Slave trade
Trafficking Kidnapping
Incest Unlawful criminal restraint
Domestic violence False imprisonment
Sexual assault Blackmail
Abusive sexual conduct Extortion
Prostitution Manslaughter
Sexual exploitation Murder
Female genital mutilation Felonious assault
Being held hostage Witness tampering
Peonage Obstruction of justice
*Includes attempts, conspiracy, or solicitation.
*Includes any similar activity where the nature and elements of the unlisted crime are substantially similar.

10. 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.
Eligibility Requirements

11. Self-petitioning application—do 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
Benefits

12. 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 abuser’s knowledge or consent.
Violence Against Women Act (VAWA)

13. 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)
Who Qualifies?

14. 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
Eligibility Requirements

15. Benefits Placed in deferred action to prevent removal from the US
Can work in the US
Changes to the abuser’s immigration status will not affect the victim’s self-petition
Remarriage after approval does not affect status
Can adjust status to lawful permanent resident
Benefits

16. 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 is Special Immigrant Juvenile Status (SIJS)?

17. 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
WHAT LAWS AND PROCEDURES APPLY?

18. 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.
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 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)
  BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT

20. 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

21. 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 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 reintegration
Determinations include assessment of country conditions through Department of State’s Country Reports on Human Rights Practices and the Trafficking in Person’s Report

22. 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

23. Inadmissibility... Most Juvenile Delinquency Public Charge
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...

24. BASIC 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 resides
The 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

25. 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
Presence 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

26. REQUIREMENT 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

27. 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 THREE

28. REQUIREMENT 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 do
Caution: if one parent still caring for child – not going to work!
Does not require termination of parental rights
REQUIREMENT FOUR

29. 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 child’s best interest to return to her home country or last habitual residence
Advocates can raise both state and international law on best interests
Country reports
DOS travel advisories
Human Rights Watch
Look 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

30. 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)
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)

31. 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
CAUTION

32. OVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL
State Dependency Proceedings
File 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. officer
LPR granted
-- within 180 days of filing
Age 18 and if LPR 5 years -- apply for citizenship
OVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL

33. OVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS
Concurrently
-- Child must attend All EOIR Removal Master Calendar Hearings
-- Dependency Proceedings in State Court
File I-360*
-- Once approved, request joint Motion to Terminate from ICE
-- Deportation stopped and case transferred back to USCIS
File I-485
Have ASC Biometrics' taken
-- EAD issued within 90 days of 485 filing (SSN)
Adjustment of Status interview before U.S.C.I.S. officer
LPR granted
-- within 180 days of filing the 485
7. Age 18 and if LPR 5 years -- apply for citizenship
OVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS

34. Special Immigrant Juvenile Status
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
COVER PAGE

35. FEE WAIVER

36. Practice Pointers 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
Note 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 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
…we just want to feel safe

38. 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.