SPECIAL IMMIGRANT JUVENILE STATUS

Transcription

1 SPECIAL IMMIGRANT JUVENILE STATUS Professor Sarah Rogerson, Director of the Immigration Law Clinic Margaret Burt, Esq., Child Welfare Attorney January 24, 2018 Child Migrant Crisis at the Southern Border Tens of thousands of children from Central America fleeing to the United States in the past several years. UNHCR- In 2014, over 68,000 unaccompanied children were apprehended at the border, vast majority of whom had fled from Northern Triangle: Honduras, El Salvador, Guatemala, countries with some of the world s highest murder rates. UNICEF - In the first six months of 2016, almost 26,000 unaccompanied children were apprehended at the southern border. U.S. Customs and Border Protection: Numbers of unaccompanied children apprehended at the Southern border. 2014: 68, : 39, : 59, 962 1

2 Child Migrant Crisis at the Southern Border Graph from: William A. Kandel, UNACCOMPANIED ALIEN CHILDREN: AN OVERVIEW (Congressional Research Center Report, January 18, 2017), available at What is Special Immigrant Juvenile Status (SIJS)? An immigration status for children under the age of 21 who meets certain eligibility requirements. SIJS involves certain determinations made by state courts. SIJS enables a child to seek lawful permanent residence in the United States. 2

3 SIJS Eligibility 5 criteria to be SIJS-eligible: Under 21 years old Unmarried Declared dependent on a juvenile court, or placed under the custody of an agency, department of a State, or an individual or entity appointed by a State or juvenile court Unable to be reunited with one or both parents due to abuse, neglect, abandonment, or a similar basis found under State law (e.g. death) It is in the child s best interests not to be returned to their home country 8 U.S.C. 1101(27)(J) and 8 C.F.R (c)(1) 3

4 Why does a DSS attorney need to know about this? Why am I at this CLE? A child could be in foster care who is eligible A child could be with a relative or suitable person or even with one parent under a FCA 1017 placement or release who is eligible More children may be eligible if caretakers are deported SO??? 11- OCFS-ADM-01 issued 2/7/11 -LDSS is supposed to be assessing if these children are eligible - LDSS is supposed to seek the predicate SIJS findings in family court - LDSS is supposed to help find immigration counsel to assist with the immigration court proceedings ARE YOU DOING THIS?? SIJS JUVENILE FAMILY COURT PROCEEDINGS 4

5 Family Court Proceedings that Satisfy the Dependency Prong of SIJS Type of Proceeding Governing State Statute Custody FCA Guardianship FCA Family Offense Adoption Juvenile Delinquency FCA FCA ; DRL Art. 7 FCA Art. 3 Case Recognizing Grounds for SIJS Dependency In the Matter of P.E.A. v. Sergio A.G.G., 975 N.Y.S.2d 85 (2d Dep t 2013) In the Matter of Trudy-Ann W. v. Joan W., 901 N.Y.S.2d 296 (2d Dep t 2010) In the Matter of Fifo v. Fifo, , No. O , 2015 WL (2d Dep t, April 1, 2015) In re Emma M., 902 N.Y.S.2d 651 (2d Dep t 2013) In re Mario S., 954 N.Y.S. 2d 843 (N.Y. Fam. Ct. 2012) Motion for Special Findings A child must obtain an order from the juvenile court that makes findings of fact regarding the eligibility requirements for SIJS. This order is usually obtained by making a motion to the court for an Order of Special Findings. The Order must include the SIJS eligibility requirements: The child is under 21 years old. The child is unmarried. The child is dependent on the Family Court, or has been committed to or placed in the custody of a state agency or department, or an individual or entity appointed by the state or Family Court. The order should also include the grounds for dependency and the name of the custodian or guardian to whom the child has been committed. Reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law. The order should specify whether it found abuse, abandonment, neglect, or a similar basis under state law (and what that basis is), as well as the facts that support its legal classification. It is not in the child s best interests to return to his or her home country, or the country of her last residence. The order should provide the factual basis supporting court s best interests determination. It is essential that a proposed order be submitted to the Court, as the Order must contain very specific language and information, including specifying the eligibility basis under state law, to avoid rejection by USCIS. 5

6 Motion for Special Findings Reunification not viable 8 U.S.C. 1101(27)(j)(i): 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 1 or both means that the court needs to find only that reunification with one parent is not viable. Matter of Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714 (2d Dep t 2013). New York law controls the standards for abandonment, abuse, neglect, and any similar basis. Family Court Act 1012 contains the definitions for each Social Services Law 384-b contains a more complete definition of abandonment. Motion for Special Findings Not in Child s Best Interest to Return 8 U.S.C. 1101(27)(J)(ii): for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence New York law controls the best interests standard. 6

7 Motion for Special Findings Not in Child s Best Interest to Return Best interests are determined by the individual needs of the child. Courts will consider a wide range of factors related to the health and welfare of the child, including: Stability Family ties Emotional support Fulfillment of basic needs Educational opportunities See, e.g., Eschbach v. Eschbach, 56 N.Y.2d 167 (N.Y. 1982). Motion for Special Findings Not in Child s Best Interest to Return In SIJS cases, common additional best interests factors might include: Violence in home country (In re Marisol N.H., 979 N.Y.S.2d 643 (2d Dep t 2014)). Familiarity with home country (In re Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012)). Abusive extended family in home country (In re Gabriela Y.U.M., 989 N.Y.S.2d 117 (2d Dep t 2014)). 7

8 SIJS IMMIGRATION APPLICATION Adjustment of Status Individuals who have received certain immigration statuses (e.g. SIJS, U Nonimmigrant) may be available to adjust their status to Lawful Permanent Resident (LPR) by filing an I-485. May be simultaneous with obtaining status Certain inadmissibility grounds apply, although there may be exceptions All applicants must establish that they merit a favorable exercise of USCIS s discretion Granted petitions confers the right to live and work in the US for a set period of time Petitioners whose applications are granted receive a green card 8

9 SIJS Immigration Application A SIJS application can be offensive or defensive (e.g. the child is in removal proceedings discussed previously). USCIS must receive an I-360 petition at least one day before the child s 21 st birthday. An approved SIJS petition (Form I-360) does not result in lawful permanent residency (adjustment of status). Applicants also must submit a Form I-485. There are additional eligibility requirements for the I-485. SIJS Immigration Application I-485 Inadmissibility Issues SIJS applicants are exempt from several grounds of inadmissibility (8 U.S.C. 1255(h)): Public charge (8 U.S.C. 1182(a)(4)) Labor certification (8 U.S.C. 1182(a)(5)(A)) Aliens present without admission or parole (8 U.S.C. 1182(a)(6)(A)) Misrepresentation (8 U.S.C. 1182(a)(6)(C)) Stowaways (8 U.S.C. 1182(a)(6)(D)) Immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document (8 U.S.C. 1182(a)(7)(A)) Aliens unlawfully present (8 U.S.C. 1182(a)(9)(B)) 9

10 SIJS Immigration Application I-485 Inadmissibility Issues Certain other grounds for inadmissibility may be waived for humanitarian purposes, family unity, or when it is otherwise in the public interest. 8 U.S.C. 1255(h). For example: Health-related grounds (8 U.S.C. 1182(a)(1)) Prostitution (8 U.S.C. 1182(a)(2)(D)) Failure to attend removal proceedings (8 U.S.C. 1182(a)(6)(B)) Smugglers (8 U.S.C. 1182(a)(6)(E)) Aliens unlawfully present after previous immigration violations (8 U.S.C. 1182(a)(9)(C)) Refer to 8 U.S.C. 1182(a) for all potential grounds for inadmissibility. Consult with an experienced immigration attorney if your client may be inadmissible. SIJS Immigration Application The filing procedure for the I-485 depends on whether the child is removal proceedings. For SIJS petitioners in removal, USCIS does not have jurisdiction over I-485. Must either: (1) move to terminate Removal Proceedings after USCIS grants SIJS petition, then submit I-485 to USCIS. (2) submit the I-485 to the Immigration Court. If a child is in removal proceedings, consider limiting the scope of representation. Legal services providers near the immigration court may be better situated to represent the child in removal proceedings. Ulster Correctional Facility (DOCCS custody) New York, NY Newark, NJ Buffalo, NY Hartford, CT 10

11 SIJS Immigration Application Overview Organizations with SIJS Expertise: Safe Passage Project ( The Door ( Kids in Need of Defense ( Make the Road New York ( A comprehensive list of service providers is available here: New York: New Jersey: SIJS Application: Immigration Application G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) I-360 (Petition for Amerasian, Widower, or Special Immigrant) Cover Letter Case Summary Order of Special Findings Copy of Birth Certificate Certified Translation of Birth Certificate Adjustment of Status Application: G-28 I-485 (Application to Register Permanent Residence or Adjust Status) G-325A (Biographic Information) [Not needed for children under 14] I-693 (Report of Medical Examination and Vaccination Record) Submit in sealed envelope from civil surgeon I-765 (Application for Employment Authorization) I-912 (Request for Fee Waiver) (if applicable) 4 passport photos of applicant (2x2) 11

12 Immigration Application The I-693 Medical Examination: The I-693 form must be filled out by a civil surgeon. USCIS has a database of civil surgeons: USCIS filing addresses are subject to change. Check online to find the correct address: For the adjustment of status application, the child will be required to attend a Biometrics appointment. The child may also be required to attend an interview. SIJS = EB4 category visa Visa Cap Limited number of visas assigned for EB4 adjustments per country May 2016 Visa bulletin: USCIS announced cap reached for adjustment applicants from Guatemala, Honduras, El Salvador, Mexico and India. Nearly at cap for China. March 2017 Visa bulletin: India and China are current and USCIS is adjudicating applications for adjustment with a priority date prior to June 15, 2015 for Northern Triangle and Mexico applicants. What is a priority date? Note that a child can file for SIJS but not for adjustment until priority date becomes current Must monitor visa bulletin, which will likely continue to alter the priority date for SIJS adjustment of status for these countries. 12

13 SIJS and Parents Parents of a SIJS child will never be able gain lawful immigration status through the child based on the child s LPR gained through SIJS. This includes the non-abandoning/ abusive/neglectful parent. 8 U.S.C. 1101(27)(J)(iii)(II). If the child later becomes a citizen, a parent may be able to obtain status through the child. Parents of a SIJS child may still be eligible for lawful immigration status independent of the SIJS child. After Approval Young person becomes a Lawful Permanent Resident immediately. No condition on the residency. Eligible for federal financial aid and certain other benefits Can apply for naturalization after 5 years/ once turns 18 years old (whichever comes later). Subject to same deportation grounds as other LPRs. New York Immigration Coalition

14 RELATED ISSUES Ethics Issues in SIJS Cases Split Representation between family court and immigration proceedings Can be difficult to avoid if child can t self-petition NY Eth. Op. 1069: Conflict of Interest; Simultaneous Representation Central question: whether representing both the proposed guardian in Family Court and the child in Immigration Court would create an impermissible conflict of interest. Retainers with minors Obtaining consent from unrepresented parties 14

15 Parental Interest Directive Gives immigration enforcement officials guidance for family members in custody that may have family members, including children, who are in the United States. Compliments ICE s existing immigration enforcement priorities and prosecutorial discretion memoranda and detention standards Prosecutorial discretion: ICE can decide to refrain from actively seeking to deport an individual based on their particular situation. Focus on deporting criminals over caretakers, children, or the elderly Specific Benefits of the Directive: Assists parents, legal guardians and primary caretakers involved in ongoing family or dependency court proceedings Allows detained parents, legal guardians, and primary caretakers to visit with their children while in ICE detention In limited circumstances, enables parents, legal guardians, and primary caretakers who have already been removed from the United States to return if their presence is necessary in relation to proceedings to terminate parental or legal guardianship rights OTHER FORMS OF RELIEF 15

16 Asylum Must meet the definition of a refugee under the Immigration and Nationality Act. unable or unwilling to return to home country, and suffered past persecution or have a well-founded fear of future persecution in home country on account of one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. Persecution feared in home country must be by the government or a group the government is unable or unwilling to control. Applications must be filed within one (1) year of entry into the United States, but an exception allows unaccompanied children to continue to be eligible for asylum even after the deadline has passed. Affirmative with USCIS or Defensive before Immigration Court Even if in removal proceedings, unaccompanied children can first have asylum case decided by the Asylum Office instead of an Immigration Judge, but if not approved, will be referred to Immigration Court U-Nonimmigrant Status Also known as a U-Visa Immigration relief for victims of certain crimes who suffered substantial harm as a result of the crime and who are helpful to law enforcement Certain indirect victims, such as parents of child victims, may be eligible to apply as well Purpose: encourage immigrants to report crimes and cooperate with law enforcement; encourage law enforcement to work with and protect immigrant victims Benefits and Limitations: U-status is valid for four years and allows employment authorization Eligible to apply for green card after three years 10,000 annual limit. Waiting list may provide deferred action and employment authorization. 16

17 VAWA Self-Petition Immigration relief available to battered spouses and children of U.S. Citizen or Lawful Permanent Resident Path to green card and citizenship Purpose: prevent abusive spouses and parents from using immigration status as a means of power and control Two options for child applicants: Derivative of battered parent s application Individual self-petitioner DACA Deferred Action for Childhood Arrivals A type of prosecutorial discretion exercised by immigration authorities for certain individuals brought to the U.S. before their 16 th birthday Executive policy introduced June 15, effective August 15, 2012 Expanded on November 20, 2014 to include parents, but the expansion has been blocked by federal courts DACA is solely a decision not to subject the DACA applicant to deportation and allows the applicant to apply for work authorization. It may be revoked at any time. No path to a green card or citizenship Expires after two years (renewal is possible) Future of DACA is currently unknown 17

18 T-nonimmigrant Status Victims of Trafficking Similar to U-nonimmigrant Status Also known as T-Visa Eligibility Victim of trafficking, as defined by federal or state law Physically in the U.S. or at a port of entry due to trafficking Comply with reasonable request from law enforcement for assistance in investigation or prosecution of human trafficking (exception for victims under 18 who are unable to cooperate due to physical or psychological trauma) Would suffer extreme hardship, unusual and severe harm, if removed from U.S. Admissible to U.S. (waivers may be available) Law enforcement certification (Form I-914 B) is not required, but is strongly encouraged T-status expires after four years. Eligible to apply for green card after three years. 18