REPRESENTING UNACCOMPANIED CHILDREN IN IMMIGRATION PROCEEDINGS

Transcription

1 REPRESENTING UNACCOMPANIED CHILDREN IN IMMIGRATION PROCEEDINGS PRESENTERS: July 16, 2014 Ashley Harrington, RMIAN Children s Program Abbie Johnson, RMIAN Children s Program David Simmons, The Immigration Law Office of David N. Simmons Lisa York, York Law LLC AILA Colorado and Rocky Mountain Immigrant Advocacy Network

2 AGENDA Thank you for attending! ORR Process Denver Immigration Court Juvenile Docket & RMIAN s Work Protections under the TVPRA for UACs Asylum Procedures for UACs Special Immigrant Juvenile Status U and T Visas for Children Best Practices for Representing Kids In-State Volunteer Opportunities with RMIAN Out-of-State Volunteer Opportunities National Response and Legislative Advocacy Efforts

3 Children & Custody Homeland Security Act, P.L , Section 462, divided functions related to UACs into two: (1) immigration benefits & enforcement (DHS) & (2) care & placement (ORR) Dep t of Health and Human Services (DHHS), Office of Refugee Resettlement (ORR) ORR Hotline For Parents: C.F.R. Section Detention & Release of Juveniles Flores vs. Reno Settlement Agreement (1997) (addresses detention, release, and treatment of juveniles in custody) Office of Inspector General Report, A Review of DHS Responsibilities for Juvenile Aliens (2005) CBP s Handling of UACs:

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5 THE UAC HUMANITARIAN CRISIS

6 How do UACs come to Colorado? After being detained and processed by ORR, UACs placed with a sponsor that resides in Colorado. Sponsor preferences: Parent, Legal guardian, adult relative, licensed program, adult or entity approved by ORR. Immigration status does not matter agree to take responsibility for the UAC and provide him or her with proper care. If no sponsor can be located, go through proceedings while in ORR custody. Children who were apprehended are generally still placed in removal proceedings. ICE has stated it will wait to file NTA with court until released COV issues Some minors end up in proceedings after coming into contact with ICE in the interior (juvenile delinquency adjudications)

7 DENVER IMMIGRATION COURT JUVENILE DOCKET

8 Juvenile Docket All UACs should be set for Juvenile Docket with Judge Mimi Tsankov, usually second Thursday of the month if not, ask clerk to put on juvenile docket Approximately 250 juveniles currently on docket Morning docket is for re-sets, afternoon for first appearances. Historically, re-set for approx. 6 months, but potentially process will be sped up RMIAN gives Know Your Rights presentations, conducts individual intakes at each docket

9 Juvenile Docket Children are often unrepresented in Immigration Court EOIR has created some procedures for children in Immigration Court, but real need is for representation Pilot Projects KIND, Immigrant Justice Corps (NY), and new JusticeAmericorps J.E.F.M. v. Holder Class action filed in July 2014 seeking appointment of counsel for minors in removal proceedings

10 TVPRA PROTECTIONS FOR UNACCOMPANIED ALIEN CHILDREN

11 TVPRA William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub.L.No , 122 Stat (codified throughout INA) Numerous protections are offered to Unaccompanied Alien Children by the TVPRA (see Section 235), including: Transfer to the care/custody of DHHS/ORR, 235(b) Placement into 240 removal proceedings, 235(a)(5)(D) Voluntary departure at govt. expense, 235(a)(5)(D) Exempt from one-year filing deadline and safe third country limitation for asylum, 235(d)(7)(A) Initial jurisdiction over I-589 with Asylum Office, EVEN if already in removal or with BIA, 235(d)(7)(B) Expansion of definitions for Special Immigrant Juvenile Status, 235()(d)(1)

12 Definition of child vs. UAC Child: under 21 & unmarried for family-based immigration categories and Special Immigrant Juvenile Status (INA 101(b)(1)) Unaccompanied Alien Child (UAC), 6 U.S.C. 279(g)(2) has no lawful immigration status in the United States: has not attained 18 years of age with respect to whom- there is no parent or legal guardian in the United States: or no parent or legal guardian in the United States is available to provide care

13 Who can file a UAC asylum? Once a UAC determination has been made, USCIS Asylum Office will adopt that determination, even if evidence suggests UAC reunited with parents or turned 18 unless there was an affirmative act by HHS, ICE or CBP to terminate UAC finding Once labeled a UAC, appears always a UAC One year bar waived HOWEVER if possible, file within 1 year, especially if no longer meets statutory definition USCIS Kim Memorandum, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, May 28, FAQs: Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by UACs, June 10, 2013

14 UAC ASYLUM PROCEDURES

15 UAC Asylum Filing Procedure USCIS has initial jurisdiction over asylum claims of Unaccompanied Alien Children (UAC), even if the UAC applicant is in removal proceedings, and even if I-589 already filed with EOIR, BIA (TVPRA Section 235(d)(7)(B); INA Section 208(b)(3)(C)) If ever detained by ORR, likely designated a UAC- Sponsors usually have paperwork, OCC can confirm, or you can file ORR FOIA (30 days or can expedite) Get UAC instruction sheet from OCC at hearing

16 UAC Instruction Sheet

17 UAC Asylum Filing Procedure File I-589 with USCIS Nebraska Service Center with UAC instruction sheet, ORR verification of release, proof of age Sometimes mis-processed as defensive filing Cover letter language to process correctly: TVPRA filing (PRL) and forwarded to ZHN. Should then get receipt notice from Houston, biometrics from Nebraska interview??

18 Unlikely to win vs. frivolous Sad state of asylum law for gang-based claims (Rivera Barrientos v. Holder, 658 F.3d 1222 (10 th Cir. 2011); Matter of M-E- V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Definition of a frivolous application: In order for a frivolous finding to be upheld, the preponderance of the evidence must demonstrate that the respondent knowingly filed an application with a deliberate misrepresentation of a material fact. 8 C.F.R ; Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007).

19 SPECIAL IMMIGRANT JUVENILE STATUS 8 U.S.C. 1101; INA 101(a)(27)(J); 8 C.F.R

20 SIJS: Law, Regs, Policy INA Section 101(a)(27)(J), 8 USC Section 1101(a)(27)(J) 8 CFR Section Proposed Regulations: 76 Fed. Reg (Sept. 6, 2011) USCIS Neufeld Memorandum, Trafficking Victims Protection Reauthorization Act of 2008, HQOPS 70/8.5 (March 24, 2009). USCIS Yates Memorandum, Memo #3 Field Guidance on Special Immigrant Juvenile Status Provisions, HQADN 70/23 (May 27, 2004).

21 SIJS: Law, Regs, Policy INS Cook Memorandum, Special Immigrant Juveniles Memo #2 Clarification of Interim Field Guidance, HQADN 70/ (July 9, 1999). INS Cook Memo, INS on Interim Field Guidance Relating to Public Law (Section 113) amending Section 101(a)(27)(J) of the INA Special Immigrant Juveniles (Aug. 7, 1998). INS Memo from 1998 specifically contemplates that the requisite SIJS findings can be made in delinquency proceedings.

22 SIJS: Purpose Allows abused, abandoned, and neglected juvenile court dependents to become lawful permanent residents Created by Congress in 1990 Most recently amended on December 23, 2008 by the Trafficking Victims Protection and Reauthorization Act (TVPRA) of 2008, Pub.L.No , 122 Stat Requires a juvenile or State court to make several special findings of fact; also known as an SIJS Order. This Order is a prerequisite to petitioning USCIS for SIJ Status. 8 CFR (d)(2) Juvenile court = a court located in the U.S. having jurisdiction under State law to make judicial decisions about the care and custody of juveniles. 8 CFR (a)

23 Core Requirements Under 21 years of age & unmarried Juvenile Court dependent or Juvenile or State Court has legally committed [minor] to, or placed [minor] under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court Reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law Not in the child s best interest to return to country of origin Court will maintain jurisdiction until status is granted

24 Step One: Predicate Order from Juvenile or State Court In Colorado, the Predicate Order may be issued in: Dependency & Neglect Proceedings Foster Care, Social Services Involvement URM Program Delinquency Proceedings Probate Court / Guardianship Proceedings Reunified UACs in placement with extended family Family Court / Custody Proceedings Especially in one-parent cases Adoption Proceedings ***Can also obtain the predicate order while child is still in ORR custody work with state courts in the jurisdiction of the shelter.

25 Jurisdiction & Placement Child must be under the jurisdiction of a State or juvenile court (see definition above) Child must be dependent upon the court or legally committed to, or placed under the custody of a State agency, department, or appointed individual

26 Abuse, Abandonment, Neglect Terms are not defined in the INA. DHS relies on State definitions. By one or both parents language permits one-parent SIJS cases. Or similar basis under State law language gives (for example) delinquency courts greater leeway to enter findings within their jurisdictional authority. Be familiar with State law definitions of the above, as well as with which court has jurisdiction to make which determination (for example, not all State courts can make abandonment findings).

27 Best Interests Juvenile or State court must determine (through briefing, testimony, documentary evidence) that it is in the young person s best interest to stay in the U.S., as opposed to returning to home country. Factors to consider/include: family/community support system in US and in home country, emotional well-being and psychological health, medical resources, educational opportunities.

28 Continuing Jurisdiction Current regulations require that a minor remain under the juvenile or State court s jurisdiction until the entire immigration process is complete. TVPRA Section 235(d)(6) appears to provide age-out protections to those cases where the court s jurisdiction ends due to age i.e., continuing jurisdiction may not be required when the age of the juvenile prevents such continuation. ***this area of law in fluctuation*** Jurisdictional requirement may be at odds with State permanency planning and case completion goals Court can keep limited jurisdiction under 8 CFR (c)(5).

29 Step Two: Immigration Forms & Applications I-360: Petition for Special Immigrant Juvenile Status G-28 Cover letter & Brief Case Summary Copy of Juvenile or State Court Order Copy of Juvenile s Birth Certificate I-485: Application for Adjustment of Status G-325A Biographical Information Fees or fee waiver request on I-912 I-693 Medical Exam & 4 passport style photographs I-765 Application for Employment Authorization Records of all juvenile adjudications/criminal convictions & evidence of rehabilitation Other evidence of equities

30 Step Two: Immigration Procedure If minor is not in immigration custody or removal proceedings, I-360 & I-485 can be filed together with USCIS (Chicago Lockbox) If minor is in removal proceedings, but not in immigration custody, I-360 must be filed with USCIS (IJs do not have jurisdiction to adjudicate I-360); if approved, removal proceedings may be terminated; then proceed with I-485 to USCIS (if terminated) or before IJ If minor is in ORR custody, will need specific consent from DHHS if state court is seeking to determine/change custody status or placement of youth. INA Section 101(a)(27)(J)(iii)(I)

31 Other Considerations At the Adjustment of Status phase (I-485), note that SIJS petitioners have a number of inadmissibility exemptions and waivers available to them. See INA Sections 212, 245(h)(2)(B) USCIS Adjudicators should not look beyond the SIJS Order Juvenile adjudications are not criminal convictions for immigration purposes, but may trigger conduct-based grounds of inadmissibility (i.e., drug use/abuse) and may weigh negatively in the discretionary analysis. A child granted SIJS cannot later petition for his/her biological or prior adoptive parents.

32 Juvenile Adjudications: INA juvenile delinquency proceedings are not criminal proceedings, acts of juvenile delinquency are not crimes, and findings of juvenile delinquency are not convictions for immigration purposes. Matter of Devison, 22 I&N Dec. 1362, 1365 (BIA 2000). Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of C-M-, 5 I&N Dec. 327 (BIA 1953)

33 Juvenile Adjudications Typically, adjudications of delinquency are NOT considered criminal convictions for immigration purposes (and therefore, not a ground of inadmissibility/removability) BUT beware: Adult charges and sentences (direct filed) Adjudications that lead to an inference of conduct-based inadmissibility (drug abuse or reason to believe trafficking ) Any formal admission of a crime involving moral turpitude Discretionary denials v. statutory inadmissibility

34 SIJS Resources SIJS Manual, available at ILRC, Obtaining Special Immigrant Juvenile Findings in Delinquency Courts USCIS website: National Children s Center SIJS Resources at SIJS Caseworker s Toolkit at (for children in federal custody)

35 U VISA

36 INA Section 101(a)(15)(U); 8 CFR Section For Victims of Serious Crimes IN the US Examples: Rape, Incest, Domestic Violence, Sexual Exploitation, Prostitution, Kidnapping, Trafficking, Extortion, Blackmail, Felonious Assault, False Imprisonment, Witness Tampering, Obstruction of Justice, or Attempt, Conspiracy, or Solicitation to commit any of the above Must obtain law enforcement certification Must suffer serious physical or emotional harm Generous waiver available for past immigration violations Can apply for family members; each member has to have own waiver granted if applicable Screen for DERIVATIVE or PRINCIPAL

37 T VISA

38 INA Section 101(a)(15)(T); 8 CFR Requirements: Is or has been a victim of a severe form of trafficking in persons; (Sex trafficking or Labor Trafficking) Force, fraud, and/or coercion Forced drug trafficking? Is physically present in the U.S. on account of such trafficking; Has complied (with some exceptions) with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking related crimes (or that the victim has not attained 18 years of age or is unable to cooperate due to trauma); and Would suffer extreme hardship involving unusual and severe harm in the event of removal.

39 ORR Eligibility Letters Issued by ORR to victims of trafficking Eligibility Letters: For youth (under 18) determined by ORR to be trafficking victims. (Youth granted Eligibility Letters may pursue any form of immigration relief.) Eligible for certain state and federal benefits: May be designated Unaccompanied Refugee Minor (URM). Usually detained at the border, then referred to service agency (Lutheran Family Services Rocky Mountains)

40 OTHER CONSIDERATIONS Screen for options to terminate proceedings in addition to screening for relief: Suppression of statements I-213 insufficient to establish alienage Improper NTA service Practice Advisory in the works Balancing these options with claim for relief DACA Not available to recent arrivals, but could be an option for youth placed in proceedings in the interior.

41 BEST PRACTICES FOR REPRESENTING KIDS

42 Children are Different Ability to participate in interview/hearing: depends on age, health, development, cognitive processes, education, language ability, background Trauma dramatically affects development of child s brain Trauma = chaotic social conditions, violence, lack of protection and caring by adults, nutritional deficits, physical and mental disabilities Capacity to consent Parents can sign forms if child under 14, 8 CFR 103.2(a)(2) Parents can be given notice, 8 CFR 236.3(f) Conflicts: are child s and parents interests aligned? Children cannot present testimony with same level of precision as adults

43 Attorney-Client Relationship The child, not parent or adult sponsor, is your client Duty to advise child of options and represent his or her expressed/stated interests Duties of confidentiality, communication, zealous advocacy apply Often need to remind adults involved that the child is your client Confidentiality of certain state court documents Explain your role, explain why meeting, explain confidentiality and attorney-client privilege Bring information you already have about the child into the first interview and let the child know what it is At the end of meetings, discuss next steps, answer questions, check in about child s emotions

44 Child-Sensitive Interviewing Techniques Show empathy, and speak to the facts Hold shorter meetings to meet attention span Continually check-in Ask open-ended questions: You said he.tell me more about it? And then what happened? What time of day was it? IF stalled, take a break, change topic Start with neutral topics Non-Judgmental Stance Use active and reflective listening It sounds like. Be creativerephrase, probe Avoid compound questions validate, repeat, verify Adapted from LIRS, 1998 and ABA, 2004

45 Service Providers Can Be VERY Helpful to a Child Client s Immigration Case! Equip your child client with referrals to address his or her non-legal needs: Rely on other service professionals for Information, Evaluations, etc.. and take the time to build relationships with: Human Service Caseworkers Victims Advocates Public Defenders GALs* CASA Volunteers Law Enforcement Housing/shelter services Mental/Medical health providers Former Service Providers Others Respect confidentiality! Remember to confirm info with your client! Despite blanket releases, everyone doesn t need to know everything! Tips for communicating with service providers: No legal jargon Provide an overview of the process Consider the Ask a favor Acknowledge and accept red tape Give plenty of advance timing Show appreciation Respect confidentiality Seek assistance from experts (local/national) to strategize

46 HOW YOU CAN HELP!

47 How You Can Help Assist RMIAN Children s Program with intakes at the Denver Immigration Court Juvenile Court Take on a child s case pro bono RMIAN provides referral, mentoring, MVL malpractice coverage, and samples Assistance with predicate orders in SIJS cases Potential litigation around any changes to the TVPRA of 2008 Attorneys willing to take on asylum cases with circuit court appeal in mind Out-of-State Opportunities and National Advocacy

48 OUT OF STATE OPPORTUNITIES David Simmons

49 UPDATES ON THE NATIONAL RESPONSE, APPROPRIATIONS & LEGISLATIVE ADVOCACY EFFORTS Lisa York

50 RESOURCES AILA s Resources on the Central American Humanitarian Crisis AILA s Special Immigrant Juvenile Resource Page Request for UAC Case File Information ORR Program Instructions on Age Determination of UAC Perez-Olano v. Holder Settlement Agreement ORR/DCS Family Reunification Packet for Sponsors (English/Español) TVPRA practice advisory, Deborah Lee, Manoj Govindaiah, Angela Morrison & David Thronson (February 2009)

51 RESOURCES cont. A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System, Children in Danger: A Guide to the Humanitarian Challenge at the Border, American Immigration Council (July 2014) Forced From Home: The Lost Boys and Girls of Central America (report), available at The Flow of Unaccompanied Children through the Immigration System: A Resource for Practitioners, Policy Makers, and Researchers (report), available at Halfway Home: Unaccompanied Children in Immigration Custody, Women s Refugee Commission and Orrick Herrington &Sutcliffe LLP (February 2009) - Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection, UNHCR (2014)

52 THANK YOU!!!