Immigration Relief for Unaccompanied Minors

Transcription

1 Immigration Relief for Unaccompanied Minors Refugee and Immigrant Center for Education and Legal Services (RAICES) Jonathan Ryan, Executive Director American Bar Association, Commission on Immigration South Texas Pro Bono Asylum Representation Project, Children s Project (ProBAR) Michelle Quintero Millan, Supervising Attorney

2 Outline of Presentation on Immigration Relief Types of immigration status Removal proceedings Common forms of relief from deportation U-Visa T-Visa Special Immigrant Juvenile Status (SIJS) Asylum Deferred Action for Childhood Arrivals (DACA) U.S. Citizenship Other

3 Types of Immigration Status Types of Immigration Status United States Citizen (USC) Legal Permanent Resident (LPR) Nonimmigrant visa holder Undocumented Adjudicators and Procedural Posture United States Citizenship and Immigration Services (USCIS) Affirmative applications Executive Office of Immigration Review (EOIR) Defensive applications

4 Removal Proceedings

5 How Removal Proceedings Start Notice to Appear (NTA) Who can be subject to an NTA Noncitizens Inadmissible (INA 240) or deportable (INA 237) Not subject to reinstatement of removal (INA 241) or expedited removal (INA 235) Issuance vs. Filing of an NTA Which agencies can file an NTA (each has priorities) ICE, USCIS, CBP

6 Requirements of an NTA Requirements of an NTA (INA 239) [4 main requirements.] 1. Prima facie case for inadmissibility or deportability 2. Time and place of proceedings 3. Securing Counsel 4. Service of NTA Burden DHS has the burden of proof (production and persuasion) Burden on Respondent: varies based on manner of entry Form I-213 (evidence that DHS will use against your client) Inherently trustworthy and admissible as evidence to prove alienage and deportability absent any indication that it contains information that is incorrect or was obtained by coercion or duress. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988)

7 Common forms of relief from deportation

8 2011 Michelle Frankfurter U-Visa (victims of crime)

9 U-Visa (victims of crime) U Nonimmigrant Status ( U-Visa ): Statutory authority: INA 101(a)(15)(U), 214(p), 245(m) and 8 CFR Primary Form: I-918 Purpose: bolster ability of law enforcement to investigate and prosecute crimes by offering protection to victims, which can result in temporary immigration relief Law Enforcement Tool: Certification form I-918, Supplement B (required) Potential Outcome: U Nonimmigrant Status for crime victim (4 year duration)

10 U-Visa (victims of crime) Requirements: Victim of qualifying crime Criminal activity violated laws of U.S. Possession of information about criminal activity Helpfulness in investigation and/or prosecution Signed law enforcement certification (Form I-918, Supp. B) Suffered substantial physical or mental abuse Admissible to the U.S. or eligible for a waiver

11 U-Visa (victims of crime) Example 1: A 14 year old Honduran child named Alejandra grew up in Brownsville. She acts much younger than her age and appears very naïve. Alejandra was raped by a 40 year old man in the U.S. and she fled out of fear and crossed into Mexico. Alejandra became pregnant as a result of the rape and gave birth to her child in Mexico. The man who raped Alejandra went to Mexico and found her and threatened her. Because Alejandra was afraid of being harmed again, she returned to Brownsville. She was detained when she cross the border. Alejandra reported the rape to the police, which later resulted in the apprehension of the perpetrator.

12 T-Visa (victims of trafficking) 2011 Michelle Frankfurter

13 T-Visa (victims of trafficking) T Nonimmigrant Status ( T-Visa ): Statutory authority: INA 101(a)(15)(T), 214(o), and 8 CFR Primary Form: I-914 Purpose: bolster ability of law enforcement to investigate and prosecute human trafficking crimes by offering protection to victims, which can result in temporary immigration relief Law Enforcement Tool: Declaration form I-914, Supplement B (optional) Potential Outcome: T Nonimmigrant Status for trafficking victim (4 year duration)

14 T-Visa (victims of trafficking) Requirements: Victim of severe form of human trafficking Sex trafficking or labor trafficking Physically present in U.S. on account of trafficking Suffer extreme hardship (unusual/severe harm) if removed Admissible to the U.S. or eligible for a waiver Complied with reasonable request for assistance by law enforcement (unless under 18 or psychological/physical trauma) Law enforcement may submit signed declaration (Form I- 914, Supp. B)

15 T-Visa (victims of trafficking) Example 1: A 17 year old Guatemalan child named Roberto was living in Amarillo, Texas. He was working in a meat packing plant but was not paid minimum wage. Roberto could not read or write; Spanish was his second language. Example 2: A 15 year old Mexican child named Monica was living in El Paso, Texas with an uncle. Her uncle verbally mistreated her and demanded that she pay rent. He suggested that she work as a waitress at a bar. Monica was tricked; her uncle sold her to males at the bar. Monica was told that she had to have sex with these men or she would be sold to a bar in Ciudad Juarez.

16 2011 Michelle Frankfurter SIJS (special immigrant juvenile status)

17 SIJS (special immigrant juveniles) Special Immigrant Juvenile Status ( SIJS ): Statutory authority: INA 101(a)(27)(J) Primary Form: I-360 Purpose: In 1990, Congress created SIJS to give child protective services an avenue to petition for lawful status for children in custody. This is a humanitarian form of immigration relief that serves to protect vulnerable children. Outcome: Relief from danger of abuse, abandonment, or neglect. SIJ status immediately leads to eligibility to apply for lawful permanent resident status (green card).

18 SIJS (special immigrant juveniles) Requirements: Child is unmarried and under 21 years old Child has been declared dependent on a juvenile court or placed under the custody of an agency or department of a State Reunification with 1 or both of the child s parents is not viable due to: Abuse, Neglect, Abandonment, or A similar basis found under state law It has been determined that it would not be in the child s best interest to be returned to the child s home country

19 SIJS (special immigrant juveniles) Special Immigrant Juvenile Status ( SIJS ): Congress left determination of abuse, abandonment, neglect, and best interest to state juvenile courts (e.g., family law courts, probate courts, district courts of general jurisdiction). Texas Law Abuse: Tex. Fam. Code (1) Abandonment: Tex. Fam. Code (1) Neglect: Tex. Fam. Code (4)

20 SIJS (special immigrant juveniles) Three step SIJS process: 1. Obtain a predicate order May be sought in various types of proceedings before a juvenile court Does not confer any immigration status 2. Petition for SIJS (Form I-360) Immigration (USCIS) determines eligibility to seek SIJS If approved, immediately eligible for adjustment of status 3. Application for adjustment of status (Form I-485) Immigration services (USCIS) or Immigration Judge decides applicant s request for status as a legal permanent resident Law requires that applicant establish admissibility and that favorable exercise of discretion is warranted

21 SIJS (special immigrant juvenile status) Example 1: A 15-year-old female child from Honduras came to the U.S. after years of severe sexual abuse by her uncle. The child lived with her uncle since age 11. The child has had no communication with her mother since age 5, and her father is deceased. The child s aunt is a lawful permanent resident residing in the U.S., is supporting the child, and wishes to seek conservatorship of the child. Example 2: A 14 year old male child from Mexico was brought to the U.S. by his father when he was four years old and has been continuously enrolled in public school in Texas. The child s mother is deceased. His father regularly humiliated him in public and told him he was worthless. His father returned to Mexico a couple years ago and has not called the child in months. The child recently became homeless and has no relatives or other care providers in his home country.

22 2011 Michelle Frankfurter Asylum (fear of return)

23 Asylum (fear of return) Asylum, Withholding of Removal, Withholding of Removal under the Convention Against Torture: Statutory authority: INA 101(a)(42)(A), 208, 235(b) Primary Form: I-589 International legal authority: 1951 UN Refugee Convention; 1967 UN Refugee Protocol, UN Convention Against Torture Additional Protections for Children: UN Convention on the Rights of the Child, TVPRA (UAC asylum applicants), USCIS Memos, UNHCR Guidelines on International Protection for Child Asylum Claims (2009), DHS Asylum Office Basic Training Course Purpose: protect foreigners ( refugees ) in the U.S. who fear persecution in their country for a particular reason recognized under the law Outcome: status as an asylee and eligibility to apply for status as a legal permanent resident after one year of continuous physical presence

24 Asylum (fear of return) Requirements: Outside country of nationality Unwilling or unable to return to country of nationality Suffered past persecution or has a well-founded fear of future persecution Persecution is on account of a protected ground (nexus) Race, religion, nationality, political opinion, or membership in a particular social group Government is source of persecution or unable or unwilling to control persecutor(s)

25 Asylum (fear of return) Asylum application process: Asylum applicants who are in removal proceedings typically file their application with the Immigration Court (EOIR). A special procedural protection is provided for UACs in removal proceedings. UACs are unaccompanied immigrant children; this determination is usually made by DHS (CBP, ICE, BP) UACs may file their asylum applications with USCIS although they are in removal proceedings. TVPRA 235 (d)(7)(b). USCIS has issued multiple memos about jurisdiction over UAC asylum applications

26 Asylum (fear of return) Example 1: A 16 year old child from Ecuador named Julissa fled her country after being subjected to persistent verbal and physical abuse by her father, her grandparents and her community. They frequently hit her with wires, rope, firewood, and brooms. Julissa identifies as lesbian, a characteristic that her family and community rejected. Example 2: A 13 year old from El Salvador named Veronica was targeted by the Mara-18 gang. They extorted her and her family. When her family could not pay, the gang kidnapped Veronica outside of her school. They beat her and raped her. She became pregnant and fled her country.

27 Asylum (fear of return) Example 3: A 16 year old child named Omar fled Honduras. Omar s father was targeted for his involvement in an opposition political party. The political party in power sent threatening letters and text messages to their home. The family has changed their phone numbers after receiving threatening phone calls. On two separate occasions masked men drove by the Omar s home and riddled the house with bullets. Most recently, Omar s father was kidnapped.

28 DACA (deferred action)

29 DACA (deferred action) Deferred Action for Childhood Arrivals (DACA): Authority: June 15, 2012 Department of Homeland Security Memorandum (not a law) Primary Form: I-821D Purpose: Temporary relief from removal for a narrow sector of the undocumented population who was brought to the U.S. before age 16 Outcome: deferral of removal for 2 years (may be extended); eligibility for a work-permit, non-accrual of unlawful presence (during period of time DACA granted)

30 DACA (deferred action) Requirements: Under 31 years old on June 15, 2012 Arrived to U.S. before 16 th birthday Continuously resided in U.S. from June 15, 2007 to present No legal status or expired immigration status on June 15, 2012 enrolled in school, graduated, or honorably discharged veteran Not convicted of: felony, significant misdemeanor, or three or more misdemeanors

31 DACA (deferred action) Example 1: A 25 year old from Mexico named James wants to earn his bachelor s degree. He does not have legal status. He has lived in Houston most of his life; his mother brought him to the U.S. when he was ten. He has not left the U.S. since he entered. James has couple traffic tickets. Example 2: A 13 year old from Nicaragua named Martin was attending middle school in Edinburg, Texas. He entered the U.S. with a tourist visa when he was younger but it has expired.

32 U.S. Citizenship

33 U.S. Citizenship U.S. Citizenship Statutory authority: INA 301 through 361 Primary Forms: N-600, N-400, U.S. Passport Application Regulations: 8 CFR 301 through 349; 392; 499 Congress has changed applicable laws multiple times Process involves application to USCIS to grant citizenship or to recognize existing citizenship Permanent protection from risks involved in deportation; access to child welfare protections and other benefits

34 U.S. Citizenship U.S. Citizenship AT birth: Automatic: citizenship by birth in the U.S. (INA 301(a) and (b)) citizenship by acquisition at birth outside the U.S. (INA 301 and 309) U.S. Citizenship based on events occurring AFTER birth: Automatic: citizenship by derivation (INA 320) By applying: citizenship through naturalization (INA 101(a)(23) and 316; naturalization of children (INA 322)

35 Other forms of immigration relief

36 Other forms of immigration relief Family Based Petitions U.S. citizens may petition for: Parents Spouses Unmarried sons and daughters Married sons and daughters Brothers and sisters (where USC is an adult) Legal permanent residents may petition for: Spouses and children Unmarried sons and daughters VAWA Battered spouse, parent, or child of legal permanent resident or U.S. citizen

37 Immigration Relief and Removal Proceedings Immigration Court hearings Master Calendar hearings NTA (pleadings and designation of relief) Merits hearings Approval of immigration relief or pending applications Continuances Administrative closure Termination

38 Thank you.