The Texas Two Step: Protecting Abused Immigrant Children under State and Federal Law

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1 The Texas Two Step: Protecting Abused Immigrant Children under State and Federal Law Angela Stout, The Stout Law Firm, P.L.L.C. Dalia Castillo-Granados, ABA s Children s Immigration Law Academy Liz Shields, Kids in Need of Defense (KIND) Maria Mitchell, Catholic Charities Cabrini Center Chloe Walker, Tahirih Justice Center

2 Overview Unaccompanied Alien Children (UAC) Humanitarian Forms of Immigration Relief Special Immigrant Juvenile Status- State Court Special Immigrant Juvenile Status- Federal Law

3 Perspective WORLDWIDE 244 million international migrants worldwide in 2015, or about 3.38% of the world s population. In 2014, there were 19.5 million refugees in the world. Turkey, Pakistan, and Lebanon are the three highest refugee-hosting countries. UNITED STATES About 3.5% of the US population are undocumented immigrants. Border apprehensions have gone down significantly in the last 15 years, from about 1.7 million in 2000 to about 337,000 in United Nations International Migration Report 2015 and the United Nations Refugee Agency

4 History of Unaccompanied Children Detention of unaccompanied children 1993 Supreme Court case- Reno v. Flores 1997 Flores Settlement Agreement Protections for unaccompanied children Unaccompanied Alien Child (UAC) defined by the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). The 2008 TVPRA added additional legal protections and broadened types of immigration relief. Legal services available for unaccompanied children Detained legal services program Pro bono recruitment, training, and mentoring for detained and released children Direct representation for released children Child advocate program Legal orientation for sponsors program

5 What happens after they cross the border? Apprehension Questioning Charging Document Transfer to the Office of Refugee Resettlement (ORR) Removal Proceedings

6 What is ORR? Division of Unaccompanied Children s Services ORR contracts with local NGOs to house children Different types of shelter settings Shelters provide food, clothing, education, and other services Department of Health and Human Services Administration for Children and Families Office of Refugee Resettlement Anti-Trafficking in Persons Division Division of Refugee Assistance Division of Unaccompanied Children s Services Unaccompanied Refugee Minors

7 What happens at the ORR facilities? Placement at ORR facility Assessment: intake, medical exam, mental health eval, services plan Know Your Rights presentation, legal assessment Identify sponsor and complete reunification Child released to the sponsor Child is referred to a legal service provider

8 What happens after the child is released? More than 90% of children are released 87% released to a parent or close family relative Top five receiving states: Texas, New York, California, Florida, and Virginia Sponsors are expected to care for the child, including enrolling the child in school The child must attend hearings before the Immigration Court The child may qualify for humanitarian-based immigration relief

9 Removal Proceedings Notice to Appear, the charging document NO RIGHT TO APPOINTED COUNSEL! The players Immigration Judge Assistant Chief Counsel Respondent *Respondent s Attorney Assess removability and eligibility for relief

10 Humanitarian Crisis

11 Demographics Where are they from? What is the average age? How did they get here? Why are they here?

12 Crisis in Central America Significant arrivals from Northern Triangle countries- El Salvador, Honduras, and Guatemala. Regional crisis- 712% increase in asylum application from these three countries in Mexico, Belize, Panama, Nicaragua, and Costa Rica. Aggressive U.S., Mexican, and Central American immigration enforcement explains 2015 decrease. Push factors High levels of violence Gang violence Highest homicide rates in the world El Salvador was the murder capital of the world in 2015 (6,600 homicides with a pop. of 6 million) High level of domestic abuse Food insecurity Poverty

13 Potential Legal Remedies for UACs Special Immigrant Juvenile Status (SIJS) Asylum T-Visa (for trafficking victims) U-Visa (for crime victims) VAWA Violence Against Women Act Voluntary Departure

14 Special Immigrant Juvenile Status (SIJS) What is it? Protected status that may be a path to citizenship for children who cannot reunify with one or both of his/her parents due to abuse, abandonment, or neglect. Who determines Eligibility? State Courts AND Federal Agency Who is excluded? Parents, children with particularly serious criminal issues or children considered threats to national security.

15 Asylum: Establishing Eligibility Meet the definition of a refugee Be deserving of discretion Not be subject to mandatory bars (i.e. serious criminal actions, national security concerns)

16 Elements of Asylum Past persecution or Well- founded fear On account of protected grounds Race Religion Nationality Political opinion Particular social group

17 T Visa Eligibility What is it? A temporary visa for those who have been a victim of one of either Sex Trafficking or Labor Trafficking Eligibility? Child is physically present in the U.S. on account of such trafficking; Has complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking-related crimes; And would suffer extreme hardship involving unusual and severe harm in the event of removal. May lead to permanent status but not automatic

18 U Visa Eligibility What is it? A temporary visa for immigrant victims of certain qualifying crimes or criminal activities who have been, are being, or are likely to be helpful in the investigation or prosecution of the crime or criminal activity. Cooperation with law enforcement must be verified, or certified. Must include a law enforcement certification with the application. The victim must have suffered substantial physical or mental abuse as a result of the criminal activity. Crime must have occurred within the U.S. May lead to permanent status but not automatic.

19 VAWA: Minor Victims of Domestic Violence What is it? A path to citizenship available for certain children who have been abused by a parent or a spouse. Eligibility: Abuser must be either a legal permanent resident or a citizen. Child must live (or have lived) with abuser Must be victim of extreme cruelty Physical and sexual abuse Emotional abuse and control Abuse of immigration process

20 Voluntary Departure What is it? A discretionary benefit Why is it better? Corrects immigration record potentially allowing a child to enter legally at a later date To be eligible, a child must: Waive/withdraw other forms of relief Concede removability NOT have been convicted of aggravated felony Show intent to leave Obtain a Passport Return to country of origin

21 Comparison of Relief *Discretionary factors may impact ability to obtain certain forms of relief T VISA U VISA ASYLUM SIJS VAWA Voluntary Departure Required Element Victim of severe form of trafficking, as defined in federal law Victim of qualifying crime in the United States and law enforcement certification Fear of return to home country AND nexus to a protected ground State court order making a best interest determination US Citizen or Legal Permanent Resident parent or spouse Ability and willingness to depart To consider Decided on paper Decided on paper Requires interview at Asylum Office and/or direct and cross exam before an Immigration Judge May require testimony in state court, interview at CIS District Office or direct and cross exam before an Immigration Judge for the adjustment of status Decided on paper Requires proffer in Immigration Court and possibly direct and cross exam

22 Special Immigrant Juvenile Status (SIJS) State Court Order Petition for SIJ Status Application for Lawful Permanent Residence

23 Why State Court? Federal law defining SIJ status specifically delegates certain findings to state court: INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J)(i) : an immigrant who is present in the United States (i) who has been 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, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (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 NOT to make finding on immigration or SIJ status

24 State Findings in simpler terms Three findings: 1. Custody or dependency 2. Reunification not viable with mother, father, or both due to abuse, abandonment, neglect, or a similar basis under state law [must include specific facts] 3. Not in the child s best interest to be returned to his/her country of origin NOT a finding on immigration status, SIJ status, inadmissibility, welfare dependency

25 DETERMINATION BY STATE COURT DETERMINATION BY USCIS Jurisdiction of family law/juvenile law petition Evidence and due process Reunification with one or both parents not viable due to abuse, neglect abandonment, or similar basis Not in child s best interest to be returned to home country Present in U.S. Child under 21 Child unmarried State court order bona fide State court order has qualified findings Supporting facts Inadmissibility factors (i.e. threat to national security, criminal history, unlawful entry to US, drug abuse, public charge)

26 Types of Proceedings SAPCR filed by one parent living in the US SAPCR filed by a non-parent living in the US Establishment of paternity/child support Modification Termination Delinquency proceedings Guardianship Adoption Declaratory Judgment

27 Findings of Abuse, Neglect, Abandonment, or similar basis The Court finds that appointing Respondent JMC is not appropriate because it finds credible evidence of a history or pattern of past or present child neglect, or physical or sexual abuse by Respondent directed against the child. TFC (b). The Court finds that the presumption that [parent] Respondent should be appointed or retained as managing conservator is rebutted because the court finds that the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit and the appointment of the nonparent as managing conservator is in the best interest of the child. TFC

28 Findings of Abuse, Neglect, Abandonment, or similar basis The Court finds that it is necessary to appoint Petitioner as SMC because of the risk of international abduction of the child by Respondent including: Respondent has a history of domestic violence that the court is required to consider under Section ; Respondent s ties to the foreign country poses a risk that the child's physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery. TFC

29 Findings of Abuse, Neglect, Abandonment, or similar basis The Court finds that [reunification with Respondent is not viable] and possession and access of Respondent and child should be [denied]/limited because the Court finds that there was the commission of family violence or sexual abuse by Respondent against child. TFC (c). The Court finds that [reunification with Respondent is not viable] and it is not in the best interest of a child for Respondent to have unsupervised visitation with the child because credible evidence has been presented of a history or pattern of past or present child neglect or physical or sexual abuse Respondent directed against the child. TFC (e)

30 Findings of Abuse, Neglect, Abandonment, or similar basis The Court finds that [reunification with Respondent is not viable] and Respondent voluntarily relinquished primary care and possession of the child to Petitioner. TFC The Court finds that the child has been neglected under Chapter 261 because Respondent left the child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child. TEX. FAM. CODE

31 History of One Parent Cases 1990 SIJS created to address children in state foster care 1998 Added requirement that state court must find abuse, neglect, or abandonment 2008 Expanded relief to children who can show reunification with one or both of the immigrant s parents is not viable No regulatory guidance has been released yet One-parent SIJS affirmed by Administrative Appeals Office, Newark, NJ: The juvenile court order in this case contains the requisite determinations: that the petitioner was adjudged, under the applicable state law, abused and abandoned by her father; that reunification with her father was not viable due to such abuse and abandonment, that it was not in the petitioner's best interest to return to Honduras; and that custody was awarded to her mother. Five state courts have addressed [New York, New Jersey, Illinois, Nebraska, California] with a 3-2 split in favor of one parent cases

32 Petition for SIJ Status The child files a petition with USCIS for an immigrant visa under the Special Immigrant Juvenile Status classification. Steps to filing: Complete I-360 Petition (found at Submit proof of eligibility State court order with required findings Proof of age Attend USCIS interview, if requested

33 Petition for SIJ Status SIJS Petition Packet is filed with USCIS Petitions filed in one central location, but adjudicated locally Receipt Notice Arrives 1-2 weeks after filing 180 days to adjudicate, per TVPRA 2008 SIJS Interview Generally waived for children under 14 Decision Approval Denial Request for Evidence, Notice of Intent to Deny, Appeal

34 Lawful Permanent Residence Requirements to obtain Lawful Permanent Residence Approved immigrant petition with an immediately available immigrant visa number Burden on the applicant to show he is not inadmissible Discretionarily deserving Steps to filing: Complete I-485 application (found at Submit proof of eligibility Approved immigrant petition for Special Immigrant Juvenile Status Medical exam Order terminating proceedings in Immigration Court Attend USCIS interview, if requested

35 Application for LPR Status AOS Application Packet is filed with USCIS Petitions filed in one central location, but adjudicated locally Receipt Notice Arrives 1-2 weeks after filing Check processing times AOS Interview Generally waived for children under 14 Decision Approval Denial Request for Evidence, Notice of Intent to Deny, Appeal

36 How can you help? Screen your prospective clients (and their kids) for possible immigration relief Take a pro bono case from any of our organizations Of the unaccompanied children currently pending before the Houston Immigration Court, about 54% are unrepresented

37 Dalia Castillo-Granados Director ABA's Children's Immigration Law Academy (CILA) 1303 San Jacinto Street, Rm. 940 Houston, Texas Main: Direct: Fax: Liz Shields, Esq. Supervising Attorney, Houston Kids in Need of Defense (KIND) 1303 San Jacinto Street, 9th Floor Houston, Texas tel: (832) fax: (281) Maria D. Mitchell Assistant Director Catholic Charities of the Archdiocese of Galveston-Houston St. Frances Cabrini Center for Immigrant Legal Assistance 2707 North Loop West, Suite 300 Houston, TX Main: Direct: Fax: Chloe Walker, JD, LMSW Staff Attorney Tahirih Justice Center 1717 St. James Place, Suite 450 Houston, TX P: F: