IMMIGRATION RELIEF AVAILABLE FOR ABUSED AND NEGLECTED IMMIGRANT CHILDREN AND YOUTH

Transcription

1 IMMIGRATION RELIEF AVAILABLE FOR ABUSED AND NEGLECTED IMMIGRANT CHILDREN AND YOUTH

2 Outline IMMIGRATION ENFORCEMENT OVERVIEW ROLES AND RESPONSIBILITIES OF CASE WORKERS REPRESENTING IMMIGRANT CHILDREN IN NEW JERSEY FAMILY COURT AND SPECIAL IMMIGRANT JUVENILE STATUS RELIEF DYNAMICS OF DOMESTIC VIOLENCE AND U VISA RELIEF OTHER FORMS OF IMMIGRATION RELIEF CASE STUDIES RESOURCES

3 IMMIGRATION ENFORCEMENT OVERVIEW

4 Dept. of Homeland Security Citizenship & Immigration Services (CIS) Immigration & Customs Enforcement (ICE) Customs & Border Protection (CBP) ICE Officers, Trial Attorneys (TAs), Asylum Office Interviewers, Service Centers Dept. of Justice Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) Immigration Judges (IJs) Dept. of Health & Human Services (HHS) Office of Refugee Resettlement (ORR) Unaccompanied Refugee Minors (URM) Div. Of Unaccompanied Children s Services (DUCS) Shelter Workers, Therapists, Field Coordinators State Courts Juvenile Court: family part, juvenile delinquency

5 DHS: Department of Homeland Security Customs & Border Protection (CBP) responsible for border security; most often the agency that encounters the children Immigration & Customs Enforcement (ICE) responsible for the detention and removal of immigrants, as well as representing DHS in immigration court Citizenship & Immigration Services (CIS) responsible for granting immigration benefits, including Special Immigrant Juvenile Status, Asylum and Legal Permanent Residency

6 The Removal Process

7 Forms of Relief for Abused and Neglected Children and Families SPECIAL IMMIGRANT JUVENILE STATUS U VISA VAWA ADOPTION ASYLUM DACA T VISA

8 ROLES AND RESPONSIBILITIES OF CASE WORKERS

9 Roles & Responsibilities of Caseworkers Collect and safeguard identity documents for children and parents Green Cards Naturalization Certificates Birth Certificates Passports May need to work with foreign consulate offices Determine if there is a possible immigration issue Foreign birth certificate Lack of U.S. birth certificate Circumstantial evidence

10 Roles & Responsibilities of Caseworkers Referral to Immigration Attorney All children and families not born in the U.S. Age out issues, do not delay Non-profit organizations in New Jersey (See Resources) Work in coordination with legal counsel Be Mindful of Differences (see Resources) Culture Language Religion Nationality Distrust of authorities Mixed status families

11 REPRESENTING IMMIGRANT CHILDREN IN NEW JERSEY FAMILY COURT AND SPECIAL IMMIGRANT JUVENILE STATUS RELIEF

12 What is Special Immigrant Juvenile Status (SIJS)? Federal Law that helps certain undocumented youth obtain lawful immigration status

13 Special Immigrant Juvenile Status Requirements 13 the child must be under 21 years of age; the child must be unmarried; the child must either be declared dependent on a juvenile court, OR placed by a juvenile court in the custody of a State agency or a person or entity appointed by a State or juvenile court; reunification with one or both of the child s parents must not be viable due to abuse, neglect, abandonment, or a similar basis found under State law; and it must have been determined in administrative or judicial proceedings that it would not be in the child s best interest to be returned to his or her country.

14 SIJS PROCESS: 3 STEPS: 1: State court obtain the Special Findings Order 2: USCIS Special Immigrant Juvenile Status Visa 3: Immigration Court or USCIS Lawful Permanent Residency

15 Challenges/Issues Jurisdictional Issues Approaching or Over the Age of 18

16 New Jersey Supreme Court Opinion H.S.P. v. J.K. A (8/26/15) The Family Part s sole task is to apply New Jersey law to make factual findings with regard to each of the requirements listed in 8 C.F.R The Family Part must apply New Jersey law and not that of a foreign nation.

17 Significance of H.S.P. 1-parent SIJS cases can proceed Courts are clearly directed to apply New Jersey definitions of abuse, neglect, and abandonment

18 DYNAMICS OF DOMESTIC VIOLENCE AND U VISA RELIEF

19 Domestic Violence Tactics Used by Abusers to Exert Power and Control Isolation Emotional Abuse Economic Abuse Intimidation Power And Control Sexual Abuse Threats Physical Abuse

20 How Abusers Can Misuse Immigration Privilege Abusers can misuse immigration laws in various ways, including: Failing to file immigration papers on behalf of family members; Filing immigration papers and later withdrawing them; Threatening to contact immigration officials; Actually contacting immigration officials for the purpose of deporting family members; Providing immigration officials with false information about family members.

21 Consequences of abuse on undocumented immigrants Many survivors fear Loss of immigration status (or remaining undocumented) Removal from the United States (their own or their abusers) Risk of further abuse in home country Harm to/loss of child(ren) Shame and stigma

22 U visa Eligibility: Victim of certain crimes who Has suffered substantial physical or mental abuse Has been, is, or will be helpful in investigation/prosecution or detection of crime Certified by the police, prosecutor s office, a judge, or child protective services (DCPP) Benefit obtained: 4 year visa; can apply for residency after 3 years

23 U Visa Crimes: INA 101(a)(15)(U)(iii) Rape Unlawful criminal restraint Torture False imprisonment Trafficking Blackmail Incest Extortion Domestic violence Manslaughter Sexual assault Murder Abusive sexual contact Felonious assault Prostitution Witness tampering Sexual exploitation Obstruction of justice Female genital mutilation Perjury Being held hostage Stalking Peonage Foreign labor contracting fraud Involuntary servitude Slave trade Or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes Kidnapping Abduction

24 Derivatives: INA 101(a)(15)(U)(ii) 24 Principal applicants may petition for certain family members as derivatives: Spouse Children Applicants under 21 may also petition for parents and unmarried siblings under 18 Family members may be in the U.S. or abroad The qualifying relationship must exist at the time of filing of the principal s application, the derivative s application and through final adjudication Revocation issue: CIS may revoke a derivative s status if the relationship to the principal has been terminated. 8 CFR (h)

25 Direct v. Indirect Victim: 8 CFR (a) 25 Direct Victim: Is defined as a person who has suffered direct harm or who is directly or proximately harmed as a result of the criminal activity. In very limited instances, a bystander may qualify as a direct victim if they can show an unusually direct injury as a result of a qualifying crime.

26 Direct v. Indirect Victim (cont.) 26 Indirect victims: Include certain family members of direct victims who are incompetent, incapacitated or deceased. A victim is considered incapacitated if under the age of 16 The following family members of direct victims may qualify: spouses, unmarried children under 21, and if the direct victim was under 21, then siblings under the age of 18 and parents. Undocumented family members of US citizen victims may qualify as indirect victims. The certification of helpfulness MUST list the indirect victim as the person providing assistance.

27 Substantial Abuse/Harm 27 A U applicant must have suffered substantial physical or mental abuse. INA 101(a)(15)(I)(i)(I). Mental abuse is defined as impairment of emotional or psychological soundness. 8 CFR (a)(8). Substantial factors may include: nature of the injury severity of the perpetrator s conduct severity of the harm suffered duration of infliction of harm permanent or serious harm to appearance, health, physical or mental soundness aggravation of pre-existing conditions. 8 CFR (b)(1)

28 Eligibility for U Adjustment of Status: INA 245(m) and 8 CFR This process is very different from other adjustment procedures, such as that for VAWA self-petitioners or family-based petitioners. A U nonimmigrant (principal or derivative) is eligible to adjust if the applicant: (1) continues to be in valid U nonimmigrant status; (2) has been physically present in the US for a continuous period of at least 3 years since the U approval (3) has not unreasonably refused to assist in investigation or prosecution, and (4) provides evidence that discretionary approval is warranted.

29 OTHER FORMS OF IMMIGRATION RELIEF

30 Violence Against Women Act (VAWA) The Violence Against Women Act was signed into law by President Clinton in 1994 as part of a larger crime bill to address domestic violence, sexual assault and stalking. VAWA has been amended several times. VAWA includes special provisions for battered immigrants that allow them to gain legal immigration status without relying on their abusive US citizen or LPR spouses or parents. Affirmatively Defensively Self-Petition and adjust status with CIS Cancellation of Removal to adjust status in Immigration Court

31 Who Is Eligible Under VAWA? Abused spouses of U.S. citizens and LPRs; Non-abused spouses of US citizens or LPRs whose children are abused (need not be children of abuser); Abused children (must meet the definition of a child under INA 101(b)) of USCs or LPRs; Abused children of USCs may file until age 25 if central reason for delay is abuse (VAWA 2005); Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See INA 204(a); Abused parents of USC children (VAWA 2005)

32 VAWA Eligibility WITHIN 2 YEARS following the occurrence of the following: Death of USC (not LPR) Divorce Deportation due to domestic violence

33 VAWA Must prove the following: Status of Abuser (USC or LPR) Marriage Requirements Legal Marriage Good Faith Marriage Battery or extreme cruelty Residency Requirements Self-petitioner lived with abuser Self-petitioner s current residence Good Moral Character (3 years prior) See INA 204

34 Adoption by U.S. citizen For a child to obtain U.S. citizenship via adoption (not including cases where child was admitted to US via special orphan provisions): The child must have been adopted before his or her 16 th birthday (or 18 th birthday in certain cases) AND The adoptive parent must have had legal custody of the child and have resided with the child for at least two years

35 Asylum Meet the definition of a refugee but physically present in the U.S. or at border/port of entry Unwilling or unable to return to home country due to persecution on account of race, religion, nationality, political opinion or membership in a particular social group Common social group claims for children are based upon domestic violence, gang violence, and sexual orientation Children can be derivatives on their parents asylum applications (not necessary to have U.S. residence)

36 Asylum Child specific differences Legal standards differ: Fear or harm less than an adult and still qualify as persecution Not required to present testimony with same degree of precision Typically, asylum seekers must file within one year of entry into U.S. but there are exceptions for children based on age Even if in removal proceedings, a child s asylum case can be heard as if it was an affirmative claim at the Asylum Office in an non-adversarial setting Benefit Asylum status is indefinite; can apply for lawful permanent residency after 1 year

37 Deferred Action for Childhood Arrivals (DACA) Type of Relief Deferred action is an administrative form of relief allowing a non U.S. citizen to temporarily remain in the U.S. Deferred action is granted on a case-by-case basis. Even if one meets the requirements, CIS can decide whether to grant A grant of deferred action is temporary and does not provide a path to lawful permanent residence or U.S. citizenship Benefit If granted, DACA will be for two years and can be renewed. Employment authorization allows recipient to work, apply for a social security number, and in NJ, apply for a driver s license.

38 Deferred Action for Childhood Arrivals (DACA) ELIGIBILITY Came to the U.S. under the age of 16 Continuously resided in the U.S. since June 15, 2007 and present in the U.S. on June 15, 2012 No lawful immigration status on June 15, 2012 At least 15 years of age or in removal proceedings 30 years of age or younger as of June 15, 2012* In school (high school, GED, or other program), have high school diploma or GED, or honorably discharged veteran. Not convicted of a felony offense, significant misdemeanor, or 3 or more misdemeanor offenses (specific immigration definitions) Do not pose a threat to national security or public safety

39 T Visa Eligibility: Victim of human trafficking who Has reported the trafficking to local/federal authorities Has complied with reasonable requests for cooperation from law enforcement Is in the US on account of the trafficking Has not had an opportunity to leave the US Would face extreme hardship if removed from the US Benefit obtained: 4 year visa; can apply for residency after 3 years

40 CASE STUDIES

41 Camille Camille is a teenage girl (16 y/o) from Honduras. Camille witnessed her father regularly beat her mother. Her father also hit Camille with belts and other objects. Her father would drink every day and abused drugs, and her mother abused alcohol as well. After Camille s father attempted to kill their mother, he was imprisoned for one year. He was released and the abuse continued. Camille fled the abusive household to live with her sister in New Jersey. Upon entry to the U.S., immigration officials apprehended Camille, designated her as an unaccompanied child, detained her, and placed her in removal (deportation) proceedings. Officials from the Office of Refugee Resettlement (ORR) then released Camille to her adult sister in New Jersey. She now attends the 10th grade, but she remains in removal proceedings. A successful SIJS application could prevent her from being deported.

42 Alexandra Alexandra, a 17-year old from Honduras, entered the US without inspection (by foot), when she was 10 years old, along with her 7-year old brother and her parents. Alexandra s father, Ramon, sexually assaulted Alexandra on a regular basis from a very young age and threatened to harm her if she told anyone. Alexandra confided in hospital staff when she went to the hospital seeking treatment for a sexually transmitted disease. Alexandra s statements triggered an investigation by the Division of Child Protection & Permanency ( DCP&P ). DCP&P, in turn, contacted the Newark Police Department and the Essex County Prosecutor s Office, who also investigated the matter and filed charges against Ramon. Alexandra and her mother, who was a victim of domestic violence at the hands of Ramon, fully cooperated with the investigation and prosecution of the case. Alexandra has suffered substantial physical and psychological harm as a result of the repeated sexual assaults and the abusive sexual contact at the hands of her father, but has made some progress with the help of intensive counseling.

43 Jose Jose is a 16 year old boy from Honduras. He emigrated to this country when he was three years old with his mother because his father was violent to both Jose and his mother. His father has never provided any support for Jose. In this country, the mother s paramour was abusive to him. The paramour no longer lives with them, but the abuse and trauma Jose suffered left its mark. When he turned 14, Jose began to hang out with a bad group of boys and got into some trouble with the law. Juvenile delinquency charges were brought on three occasions. The first time, the charges were dismissed, The second time, he received probation. The third time, his probation was deemed to be violated and his disposition was a year in the Boy s Training School. This last time, the juvenile authorities contacted ICE (Immigration Customs Enforcement). Jose is now in the midst of removal (deportation) proceedings. His immigration attorney is applying for Deferred Action for Childhood arrivals and is trying to bring a post disposition motion to obtain a SIJS predicate order.

44 RESOURCES

45 Immigration Legal Services for Children in New Jersey American Friends Service Committee (AFSC) Camden Center for Law and Social Justice (CCLSJ) Kids in Need of Defense (KIND) (will find pro bono attorney for unaccompanied child if child meets eligibility requirements and is within one of the counties served) Sarah Plastino, Legal Services of New Jersey(LSNJ) (732) Rutgers-Camden Immigrant Justice Clinic (856) Prof. Joanne Gottesman Rutgers-Newark Immigrant Rights Clinic (973) Prof. Anju Gupta

46 Other resources

47 Contact Information of Presenters Joanne Gottesman Clinical Professor and Director Immigrant Justice Clinic Rutgers School of Law - Camden 217 North 5th Street Camden, New Jersey (856) jgottesm@camden.rutgers.edu

48 Contact Information of Presenters Nicole Polley Miller Legal Services Director American Friends Service Committee Immigrant Rights Program 89 Market Street, 6 th Floor, Newark, NJ (973) nmiller@afsc.org Kimberly D. Krone Youth Justice Attorney American Friends Service Committee Immigrant Rights Program 89 Market Street, 6 th Floor, Newark, NJ (973) kkrone@afsc.org