The United States is in the midst of a humanitarian crisis.

Transcription

1 Reproduced by permission Colorado Bar Association 45 The Colorado Lawyer 35 (Oct. 2016). All rights reserved. SPECIALTY BAR SERIES Unaccompanied Alien Children: A Crisis in Our Immigration Courts by Christine M. Hernández Unaccompanied alien children enter the United States and its immigration system alone. This article discusses who these children are and the laws designed to protect them, and encourages advocacy on their behalf. The United States is in the midst of a humanitarian crisis. Children are entering our country and our immigration system alone. While these children are afforded certain legal measures to ensure due process, many appear before immigration courts without a legal guardian and without legal counsel. This article provides an overview of the legal rights afforded to unaccompanied alien children and encourages pro bono representation of them. How This Humanitarian Crisis Arose An unaccompanied alien child (UAC) is (1) an alien under the age of 18 (2) who lacks lawful immigration status in the United States and (3) is without a parent or legal guardian in the United States or lacks a parent or legal guardian in the United States who is available to provide for the child s care and physical custody. 1 Though UACs have always played a part in illegal immigration in the United States, since 2008 their numbers have been increasing, and during the summer of 2014 there was a significant surge in the number of UACs arriving from the Northern Triangle (El Salvador, Guatemala, and Honduras), which created a unique humanitarian crisis that continues today. 2 In FY 2008, 8,041 UACs were detained at the U.S. Mexico border; approximately 80% of them were from Mexico. 3 In the first eight-and-a-half months of FY 2014, approximately 52,000 UACs were detained at our southern border, and almost all of the children were from the Northern Triangle. 4 Of those 52,000 UACs, 10,600 crossed during June After June 2014 there was a decrease in the number of UACs entering the United States, leading many to believe that President Obama s deterrent measures (assisting Mexico in protecting its southern border) had worked. But in March 2015 the numbers started increasing again, with 10,500 UACs entering the United States during October and November of that year. 6 Why Children Leave the Northern Triangle Researchers have consistently found a correlation between increased violence in the Northern Triangle and the increase of UACs entering the United States, and cite the increased violence as the primary motivation for these children fleeing to the United States. 7 In one study of UACs from El Salvador who had been deported from Mexico, 60% listed crime, gang threats, and insecurity as the reason for fleeing their home country. 8 In another study, 59% of Salvadoran boys and 61% of Salvadoran girls stated that crime, gang threats, or violence was the reason that they came to the United States. 9 Young males in particular stated that they feared assault or death for not joining a gang, and young females feared being raped or kidnapped at the hands of gangs. 10 Gangs engage in a variety of violent and threatening behaviors, including kidnapping, extortion, rape, and forced recruitment. 11 Most UACs view making the long and dangerous journey to the United States as a last resort, after they have attempted to relocate within their home country only to be found again and threatened by the same gang. 12 Even moving to a different country in the Northern Triangle does not prevent gangs from finding targets. 13 The two gangs that play a major role in the crime and violence in the Northern Triangle region are the Mara Salvatrucha (MS-13) and the 18th Street Gang (M-18). 14 These two gangs are not present to the same degree in other Central American countries, which explains the concentrated increase in UACs from the Northern Triangle region. 15 Several factors have contributed to the violence in the Northern Triangle. In the 1960s, Mexican youth in the Rampart section of Coordinating Editors Kenzo Kawanabe, Denver, of Davis Graham & Stubbs LLP (303) , kenzo. kawanabe@dgslaw.com; Elizabeth Espinosa Krupa, Denver, of Law Office of Elizabeth Espinosa Krupa (303) , krupa@ denverfelonies.com About the Author Christine M. Hernández is a partner at Hernández & Associates, P.C. Her practice focuses on family-based immigration and removal defense. She is a member of the Hispanic National Bar Association Advocacy Day Planning Committee and Finance Development Committee and serves as co-chair for its Immigration Committee. She is also a member of the Colorado Hispanic Bar Association and is chair of its Education Committee. Hernández is a member of the American Immigration Lawyers Association and serves on the ICE Liaison Committee for the Colorado Chapter. She is also a member of the DU Latino Alumni Committee, the Colorado Criminal Defense Bar, and the Rhone Bracket Inn of Court. Hernández has clerked at the Denver Immigration Court and Supremo Tribunal de Justicia in Guanajuato, Mexico chernandez@hdezlaw.com. The Colorado Lawyer October 2016 Vol. 45, No

2 Los Angeles formed M-18 when they were not accepted into the existing Hispanic gangs in the area. 16 MS-13 was created in Los Angeles in the 1980s by Salvadorans fleeing civil conflict in their home country. 17 Though both gangs extended their operations to Central America on their own, their growth and prominence accelerated in these countries after passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 18 Before the passage of IIRIRA, 19 only criminals who had been convicted of violent felonies and sentenced to five years or more of jail could be deported. 20 IIRIRA redefined an aggravated felony to include any crime of theft or violence for which a one-year sentence could be imposed. 21 Other Central American countries, such as Nicaragua and Panama, did not have a large number of immigrants in the Los Angeles area; therefore, during the 1990s, non- Northern Triangle countries did not have large numbers of gangrelated deportees. 22 The U.S. war on drugs was another contributing factor to the gang violence in the Northern Triangle. Due to stricter drug penalties in the mid-1980s, the U.S. prison population surged from 330,000 inmates to 1.57 million inmates in This led to deportations of large numbers of U.S.-based gang members to Central America under IIRIRA in the late 1990s. 24 Meanwhile, the United States was increasing counter-narcotics efforts in Colombia and Mexico, forcing the drug cartels to look toward Central America to continue their operations. 25 Thus, the Northern Triangle region was ripe with recently deported MS-13 and M-18 members ready to carry out smaller jobs related to drug trafficking. 26 Central American countries continue to have fewer resources and weaker institutions dedicated to fighting criminal activity, and with the widespread corruption of government officials and police officers there, gangs and drug traffickers are allowed to carry out their operations. 27 UACs and their families live in the midst of this hotbed of violence and corruption. When a young man turns 13, MS-13 and M-18 start their recruitment efforts. 28 Young women are targeted at any age for sexual violence and kidnapping. And families with ties to the United States are targeted for extortion. 29 Many young people stop going to school after being targeted by MS-13 and M-18 because gangs wait for them on their way to and from school each day and threaten them with violence if they refuse to join. 30 Local authorities either collude with gangs or are afraid to fight them, and thus do not intervene on behalf of innocent people in the Northern Triangle. 31 Left with no local options, UACs and their families seek refuge in the United States, 32 where they are met with the harsh realities of detention and removal proceedings. TVPRA of 2008 Protections for UACs The Victims of Trafficking and Violence Protection Act of 2000 (TVPA) was enacted to address human trafficking by establishing a T Visa for victims of severe forms of trafficking, such as sex trafficking, peonage, debt bondage, and slavery. 33 The Trafficking Victims Protections Reauthorization Act of 2008 (TVPRA) was enacted in response to concerns that UACs apprehended by Cus- 36 The Colorado Lawyer October 2016 Vol. 45, No. 10

3 toms and Border Patrol (CBP) agents were not properly screened to determine whether they were eligible for protection in the Unites States. 34 The crisis created by the 2014 surge in UACs entering the United States is a result of the added protections that UACs from non-contiguous countries have they simply cannot be summarily returned to their home country. A UAC s country of origin determines how he is treated at the U.S. Mexico border. The TVPRA sets forth different procedures for CBP agents to follow depending on whether the UAC is from a contiguous country (Mexico or Canada) or a non-contiguous country (e.g., the Northern Triangle countries). 35 Under the TVPRA, all UACs are required to be screened as potential victims of human trafficking. 36 UACs from Mexico are screened at the border and are summarily returned to their home country 37 if a CBP agent determines that the child (1) has not been a victim of a severe form of trafficking and there is no credible evidence that the child would be a victim of severe trafficking if returned; (2) has not expressed a fear of returning; and (3) makes an independent decision to withdraw his request to enter the United States. 38 A child from a contiguous country that has been deemed a victim of a severe form of trafficking or expresses a fear of return must be placed in removal proceedings to determine the child s eligibility for relief from removal. 39 Under the TVPRA, the Department of Health and Human Services (HHS) is responsible for the care and custody of UACs from non-contiguous countries. 40 Any federal agency that comes into contact with a UAC from a non-contiguous country is required to contact HHS within 48 hours of discovering the child. 41 Within 72 hours of determining that there is a UAC in their custody, the federal agency must transfer the child to HHS. 42 UACs are required to be placed in the least restrictive setting, taking into account whether they are a danger to themselves, a danger to the community, or a flight risk. 43 UACs may not be placed in secure facilities unless they are dangers to themselves or have been charged with committing a criminal offense. 44 UACs are held in HHS facilities until a relative or guardian is located. 45 The TVPRA also charged HHS with ensuring to the greatest extent practicable that UACs have counsel to represent them in legal proceedings. 46 Despite this charge, HHS has not actually put into place a system for the appointment of counsel, nor does a public defender system before the immigration courts exist. As a result, most UACs appear unrepresented before immigration courts, unless a family member can afford private counsel or find pro bono counsel. Executive Office of Immigration Review Procedures While the TVPRA requires UACs from non-contiguous countries to be placed in removal proceedings, 47 the Executive Office of Immigration Review (EOIR), the agency that oversees all immigration courts, is not equipped to handle the needs of these immigrants; 3-year-old toddlers frequently appear, unrepresented, in removal proceedings and are expected to understand and navigate a foreign and complex legal system. 48 Conversely, the Department of Homeland Security (DHS), which acts as the prosecutor and argues for removal of UACs, is represented by an attorney trained in immigration law. 49 Section 462 of the Homeland Security Act of 2002 charged the Office of Refugee Resettlement (ORR), which is within HHS, to develop a plan to ensure that qualified and independent legal counsel is timely appointed to represent the interests of each child and present it to Congress. 50 However, Section 462 also dictates that the plan be consistent with INA 292, which states that an individual must have the privilege of being represented by counsel in removal proceedings at no expense to the government. 51 Until that conflict is resolved, UACs will continue to rely on pro bono counsel and the financial ability of family members to hire private counsel. 52 Though Congress charged HHS with obtaining legal representation for UACs to the greatest extent practicable, Congress also stated that HHS should make every effort to utilize the services of pro bono counsel. 53 There is no program for UACs to ensure appointment of counsel. As of April 2015, approximately 38,000 UACs remained unrepresented. 54 Removal Proceedings All individuals placed in removal proceedings undergo the same process up until the immigration judge makes a final decision on whether to allow them to remain in the United States. 55 Though representation by counsel does not guarantee that an individual will be allowed to remain, it greatly improves the chance of this outcome. 56 General Procedures When an individual is placed in removal proceedings, a Notice to Appear (NTA) is issued and filed with the Immigration Court. 57 Notice to appear. The NTA sets forth the allegations that support removal from the United States, 58 which typically include the following facts: the individual is not a citizen of the United States; the individual is a citizen of a named foreign country; the date, place, and manner of the individual s entry into the United States; and the reason the individual was placed in removal proceedings (e.g., she entered without inspection, overstayed a visa, or violated the terms of her student visa). The NTA also sets forth the charge making the individual removable (e.g., INA 212(a)(6)(A)(i) (being present without admission)). 59 The NTA is usually personally served and advises the individual that further notice will be sent with a future hearing date and that failure to appear at that future hearing will result in an automatic order of removal. 60 Types of hearings. There are two types of hearings before the Immigration Court: a master hearing, which is the equivalent of a status conference in criminal proceedings, and a merits hearing, which is the equivalent of a bench trial in criminal proceedings. 61 Cases are resolved in a number of different ways. Individuals may: voluntarily agree to return to their home country in lieu of deportation; fight the case and pursue relief from removal; request to terminate proceedings based on procedural infirmities related to their placement in removal proceedings or argue that DHS cannot sustain the charges filed against them; or seek to administratively close their proceedings while they seek relief outside the jurisdiction of EOIR or in the discretion of DHS. 62 At the first master hearing, immigration judges in the Denver Immigration Court will typically give individuals an opportunity to request a continuance to obtain private counsel. 63 At the second The Colorado Lawyer October 2016 Vol. 45, No

4 master hearing, if the individual is represented by counsel, counsel will typically request a continuance for attorney preparation time, but by the third master hearing, the immigration judge will expect counsel to take pleadings, answer the allegations and charges contained in the NTA, and state whether the client will seek any forms of relief from removal. 64 As explained below, depending on the relief sought, the court may set the matter for a merits hearing or allow further continuances. 65 The merits hearing is the final hearing, during which testimony is presented and the court makes a decision whether to grant relief or order removal. 66 Special UAC Court Procedures Despite its inability to resolve the issue of lack of appointment of counsel for UACs, EOIR has established specific policies and procedures for handling UAC cases. 67 EOIR recognized that immigration judges were facing fundamental challenges in adjudicating UAC cases, such as whether a UAC understands the nature of the proceedings and can effectively present evidence. 68 As a result, EOIR has issued two memoranda to standardize the treatment of UACs in removal proceedings. 69 Under this guidance immigration judges should (1) employ child-sensitive procedures, (2) take into account the best interests of the child with regard to allowing a UAC to discuss the details of his or her claim for relief, and (3) encourage the use of pro bono resources. 70 Immigration judges are asked to take additional time to explain to UACs the purpose or nature of the proceedings, prepare them to testify using terms that they can understand, employ child-sensitive questioning, and modify their credibility assessments in light of the UACs age. 71 Despite EOIR s efforts to make the Immigration Court a child-friendly environment, the fact remains that DHS places children younger than 18 in removal proceedings, and EOIR is expected to proceed with their cases, without appointment of counsel. Immigration advocates across the country have been outraged by the speedy processing of UAC cases, referred to informally as rocket dockets. 72 During the summer of 2014, EOIR adopted a new policy with respect to prioritizing cases for adjudication. 73 The stated goal behind the policy is to focus resources on recent border crossers, 74 which includes UACs who recently crossed the southwest border. 75 As a result, UAC cases were initially scheduled for a master hearing within 21 days of the Immigration Court s receipt of the NTA, leaving little time for UACs to find legal representation. 76 In February 2016, EOIR revised its docketing practices, resulting in UAC cases being scheduled for the first master hearing no earlier than 30 days and no later than 90 days from receipt of the NTA. 77 As explained below, UAC cases are complex due to the ages of the children in removal proceedings and the nuances of immigration law. Legal representation is needed to ensure due process. Statistics from FY 2014 demonstrate the difference counsel can have in the outcome of a UAC case: Of the 23,771 UAC cases where the child was not represented by counsel, removal was ordered in 11,279, proceedings were terminated in 663, and requested relief was granted in Of the 32,453 UAC cases where the child was represented by counsel, removal was ordered in 1,371, proceedings were terminated in 8,103, and the requested relief was granted in What Relief Do UACs Have from Deportation? With proper legal representation, a UAC placed in removal proceedings can pursue several humanitarian forms of relief from removal. The most common forms are asylum, T Visa, U Visa, and special immigrant juvenile status. 80 Before pursuing humanitarian relief, attorneys advocating for UACs before the Immigration Court are advised to first attempt to terminate proceedings by attacking due process violations associated with the apprehension and detention of UACs. Asylum U.S. asylum law is based on international refugee principles and treaties, under which the United States has agreed not to return foreign nationals to countries where their lives or freedom would be threatened. 81 The most important international treaties for UACs are the 1951 United Nations Convention Relating to the Status of Refugees, the 1967 Protocol, and the Convention Against Torture. 82 The TVPRA provides added protection for UAC asylum seekers by giving initial jurisdiction over such applications to the U.S. Citizenship and Immigration Services (USCIS). 83 USCIS asylum officers receive training regarding child-sensitive interviewing techniques during their Asylum Officers Basic Training courses. 84 Procedurally, the UAC asylum application, Form I-589, is filed with USCIS and the immigration judge must continue proceedings until USCIS has made an initial determination regarding the UAC s eligibility for asylum. If USCIS grants the case, removal proceedings are terminated. To be granted asylum, a UAC must demonstrate past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. 85 In this regard, the main problem faced by UACs is that fear of gang recruitment or having suffered past threats and harm due to refusal to join a gang has been deemed to not constitute membership in a particular social group or political opinion. 86 Attorneys advocating for UACs must be creative in defining a particular social group to avoid summary denial of an asylum claim. The United Nation s High Commissioner for Refugees (UNHCR) and other advocates have voiced concerns regarding U.S. obligations to children fleeing persecution in the Northern Triangle. 87 The nuances of asylum law and the difficulties of Board of Immigration Appeals (BIA) precedent make it imperative for a UAC to have legal representation while in removal proceedings. 88 Establishing an asylum claim takes time, and criticism of the United States in the handling of this humanitarian crisis stems from the fact that UACs have been placed on priority dockets that do not ensure them due process, regardless of whether they are represented by legal counsel. 89 When granted asylum, a UAC is no longer removable. 90 After one year as an asylee, the UAC can apply for legal permanent resident (LPR) status. 91 After five years as an LPR, the UAC is eligible to apply for naturalization. 92 As a U.S. citizen, the UAC would then be able to petition for lawful status in the United States for other family members. 93 T Visa A T Visa is available to a UAC who has been a victim of severe forms of trafficking. 94 Severe forms of trafficking are (A) sex traf- 38 The Colorado Lawyer October 2016 Vol. 45, No. 10

5 ficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 95 To be eligible for this form of relief, UACs must establish that they (1) have been subject to severe trafficking, (2) are physically present in the United States as a result of the trafficking, (3) are under age 18, and (4) would suffer extreme hardship involving unusual and severe harm upon removal. 96 To apply for a T Visa, the UAC must submit Form I-914 to USCIS including, among other evidentiary requirements, evidence of the victimization and hardship. 97 The main problem for advocates assisting a UAC with a T Visa is that often young victims are afraid or embarrassed and do not want to talk about their victimization. Advocates are encouraged to involve licensed professionals such as therapists to assist in obtaining the necessary information to form the basis of a T Visa, to avoid further trauma to the UAC. Another complicating factor for an advocate, as discussed above, is that UAC cases are heard on a priority docket and the Immigration Court does not have jurisdiction over an I-914. Therefore, to be granted continuances while the I-914 is pending with USCIS, the advocate must act quickly to provide the court with evidence of prima facie eligibility for the I And though all immigration judges are governed by and required to uphold the same laws and regulations, they have discretion to grant continuances. 99 These are issues a UAC would be unable to effectively address without the assistance of legal counsel, particularly while simultaneously dealing with the emotional trauma of being a victim and trying to apply for relief in a foreign country. If granted a T Visa, a UAC is no longer removable and proceedings are terminated. After three continuous years with T Visa status, a UAC can apply for LPR status. 100 After five years as an LPR, a UAC is eligible to apply for naturalization. 101 As a U.S. citizen, a UAC would then be able to petition for lawful status in the United States for other family members. 102 crime, which verifies that the UAC was a victim of a crime and was helpful to the investigation. 107 UACs must also submit a signed statement describing the victimization and provide evidence of the physical or mental harm they suffered. 108 Again, advocates working with UACs are encouraged to enlist the assistance of licensed professionals to avoid re-traumatizing a victim while preparing a U Visa application. There are multiple other challenges to pursuing a U Visa. As with all cases involving children, UACs may be too embarrassed or afraid to tell anyone that they were a victim of a crime. As a result, law enforcement may never have been notified that a crime occurred. Without law enforcement s involvement, there is no U Visa. 109 Lack of cooperation from law enforcement agencies is another impediment. Though law enforcement agencies are authorized to sign Supplement B forms, 110 some police departments and prosecutors offices have a blanket policy of refusing to sign such forms regardless of how egregious the crime was or how helpful the victim was. Some law enforcement agencies require victims to have their fingerprints taken to assess their criminal background prior to agreeing to sign a Supplement B form, while others refuse to sign Supplement B forms while the criminal matter is pending. Others refuse to sign if the case has already been resolved. As with a T Visa, immigration courts lack jurisdiction over the I-918, and the intricacies of obtaining a signed Supplement B form are difficult for UACs unrepresented by an attorney in removal proceedings. U Visa A U Visa is available to a UAC who has been a victim of a qualifying crime within the United States. 103 Qualifying crimes include (among others) domestic violence, extortion, false imprisonment, felonious assault, involuntary servitude, kidnapping, murder, prostitution, rape, sexual assault, torture, and trafficking. 104 This form of relief is typically not available if the UAC suffered a qualifying crime in the UAC s home country. 105 To be eligible for a U Visa, UACs must show that (1) they have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime; (2) they possess credible and reliable information establishing their knowledge of the details concerning the criminal activity; (3) they have been, are being, or are likely to be helpful to a certifying agency in the investigation or prosecution of the criminal activity; and (4) the criminal activity occurred in the United States or violated a U.S. federal law that provides for extraterritorial jurisdiction. 106 To apply for a U Visa, the UAC must submit Form I-918 to USCIS, but before doing so must receive a signed I-918 Supplement B from a law enforcement agency involved in investigating or prosecuting the qualifying The Colorado Lawyer October 2016 Vol. 45, No

6 Another option for a UAC who was not the direct victim of a qualifying crime is to be included as a derivative of a family member s I For example, if a parent or a sibling is the victim of a crime and the UAC is unmarried and under 18, the UAC can be granted U Visa status as well. 112 It is thus important for advocates to evaluate the entire family s immigration history when evaluating relief for the UAC. A UAC with a U Visa is no longer removable and proceedings are terminated. After three continuous years with U Visa status, the UAC can apply for LPR status. 113 After five years as an LPR, the UAC can apply for naturalization. 114 As a U.S. citizen, the UAC would then be able to petition other family members for lawful status in the United States. 115 Special Immigrant Juvenile Status Special Immigrant Juvenile Status (SIJS) is another humanitarian form of relief available to UACs who were abused, neglected, or abandoned by one or both parents. 116 To be eligible for such relief, UACs must demonstrate that (1) they have been declared dependent by a juvenile court in the United States or have been placed in the custody of a state agency or other individual or entity by such court, and (2) reunification with one or both of their parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law. 117 Furthermore, the court order must state that it is not in the child s best interest to be returned to the child s home country. 118 Ultimately, DHS must consent to the granting of SIJS. 119 This form of relief requires two steps. First, there must be a predicate order from a state probate or juvenile court. A juvenile court is defined as any court in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. 120 In Colorado, a predicate order can be obtained through dependency and neglect proceedings, delinquency proceedings, probate and guardianship proceedings, family court and custody proceedings, and adoption proceedings. Advocates are advised to make a detailed record during proceedings regarding the basis for the predicate order, and may need to obtain a copy of the transcript to support an I-360. This is because in all cases where an SIJS request is based on a court s dependency order, DHS must give express consent before the I-360 is approved. 121 Without express consent, USCIS will deny the case. To obtain express consent, the USCIS district director reviewing the I-360 must find that the dependency order and the judicial finding regarding the UACs best interest were not sought for the primary purpose of obtaining SIJS, but rather were sought for relief from abuse, neglect, or abandonment. 122 The findings in the predicate order should be specific and provide the USCIS district director with sufficient information to establish that the juvenile court made an informed decision. 123 Locally, the Denver USCIS field office has been stringent in its review of I-360s and gives applicants only 30 days to respond once a Notice of Intent to Deny has been issued. The benefit of obtaining SIJS is that once approved, the alien is eligible to simultaneously apply for LPR status, which would terminate removal proceedings and allow the UAC to naturalize after five years as an LPR. 124 However, if granted, a UAC cannot petition for the UAC s biological parents to obtain lawful status in the United States, regardless of whether a parent was the subject of the predicate order. 125 For UACs in state or federal custody, the procedures are different and SIJS is easier to obtain. 126 UACs in the custody of one parent need legal representation to navigate the nuances of obtaining express consent and the requisite predicate order. As with T Visas and U Visas, immigration courts do not have jurisdiction over the I-360, requiring advocates to obtain continuances in these proceedings while the juvenile proceedings are pending in the state court. Pro Bono Opportunities In Colorado, the Rocky Mountain Immigrant Advocacy Network (RMIAN) works closely with the Denver Immigration Court to ensure that non-detained UACs know their rights and are treated fairly in removal proceedings. RMIAN coordinates pro bono attorneys for UAC cases. Volunteer attorneys who agree to represent UACs pro bono are not required to have a background in immigration law. Pro bono attorneys are given a memorandum regarding the theory of the case and are paired with an experienced immigration attorney as a mentor. The demand for pro bono family law attorneys to obtain the predicate state orders for SIJS is as high as that for representation before the immigration courts. Information is available on the RMIAN website 127 and on the CBA website. 128 Notes 1. 6 USC 279(g)(2). 2. Kandel et al., Cong. Research Serv., R43628, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration 3 (2014). 3. Id. at Id. 5. Markon and Partlow, Unaccompanied children crossing southern border in greater numbers again, raising fears of new migrant crisis, The Washington Post (Dec. 16, 2015), 6. Id. 7. A Guide to Children Arriving at the Border: Laws, Policies and Responses, American Immigration Counsel at 2 ( June 26, 2015), 8. Id. 9. Cantor, New Report Helps Explain Why Central American Children Are Leaving Their Home Countries, Immigration Impact ( July 1, 2014), tries. 10. Id. 11. Kandel et al., supra note 2 at Cantor, supra note Id. 14. Kandel et al., supra note 2 at Id. 16. Id. 17. Id. 18. Id. 19. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L.No , 110 Stat (1996). 20. Immigration Act of 1990, Pub.L.No , 104 Stat (1990). 21. INA 101(a)(43)(F) (G); 8 USC 1101(a)(43)(F) (G). 22. Kandel et al., supra note 2 at The Colorado Lawyer October 2016 Vol. 45, No. 10

7 23. Planas and Grim, Here s How the U.S. Sparked a Refugee Crisis on the Border, in 8 Simple Steps, The Huffington Post (Nov. 5, 2014), html. 24. Id. 25. Id. 26. Id. 27. Id. 28. A Guide to Children Arriving at the Border, supra note 7 at Id. at Id. at Id. at Id. at Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No , 114 Stat (2000); A Guide to Children Arriving at the Border, supra note 7 at William Wilberforce Trafficking Victims Protections Reauthorization Act of 2008, Pub.L.No , 122 Stat (2008); A Guide to Children Arriving at the Border, supra note 7 at USC 1232(a); A Guide to Children Arriving at the Border, supra note 7 at USC 1232(a)(4) USC 1232(a)(2)(B) USC 1232(a)(2)(A) USC 1232(a)(5)(D) USC 1232(b)(1) USC 1232(b)(2) USC 1232(b)(3) USC 1232(c)(2). 44. Id. 45. Id USC 1232(c)(5) USC 1232(a)(5)(D). 48. Markon, Can a 3-year old represent herself in immigration court? This judge thinks so, The Washington Post (Mar. 5, 2016), tonpost.com/world/national-security/can-a-3-year-old-represent-herself- in-immigration-court-this-judge-thinks-so/2016/03/03/5be59a32-db25-11e5-925f-1d10062cc82d_story.html. 49. A Guide to Children Arriving at the Border, supra note 7 at Homeland Security Act of 2002, Pub.L.No , 462, 116 Stat (2002) USC A Guide to Children Arriving at the Border, supra note 7 at Id. 54. Id USC 1229a. 56. Representation for Unaccompanied Children in Immigration Court, TRAC Immigration (Nov. 25, 2014), tion/reports/ USC 1229; Immigration Court Practice Manual (ICPM), 4.2(a) at (Feb. 4, 2016), attachments/2016/02/04/practice_manual_-_ _update.pdf# page= USC 1229(a)(1)(C); ICPM, supra note 57 at USC 1229(a)(1)(D); ICPM, supra note 57 at USC 1229(a)(1). 61. ICPM, supra note 57 at 69 70, Flores, This is What Happens When Unaccompanied Child Migrants Don t Have Legal Help, Buzz Feed News (Apr. 7, 2016), www. buzzfeed.com/adolfoflores/immigrant-children-legal-counsel-battle #.ee6ogkxmgv. 63. ICPM, supra note 57 at Id. at Id. 66. Id. at Neal, Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, EOIR (May 22, 2007), legacy/2007/05/22/07-01.pdf. 68. Id. at Id. at 3 4; Creppy, Operating Policies and Procedures Memorandum 04-07: Interim Operating Policies and Procedures Memorandum 04-07: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, EOIR (Sep. 16, 2004), sites/immigrantjustice.org/files/eoir%20guideline%20on%20children %20in%20immigration%20court.pdf. 70. Neal, supra note 67 at Id. at A Guide to Children Arriving at the Border, supra note 7 at DOJ Announcement of New Priorities to Address Migrants Crossing into the US, Department of Justice ( July 9, 2014), opa/pr/department-justice-announces-new-priorities-address-surgemigrants-crossing-us; DOJ Factsheet on New Priorities to Address Migrants Crossing into the United States, Department of Justice ( July 9, 2014), 74. Id. 75. Id. 76. O Leary, Docketing Practices Relating to Unaccompanied Children Cases in Light of the New Priorities, EOIR (Sept. 10, 2014), www. justice.gov/sites/default/files/eoir/legacy/2014/09/30/docketing-prac tices-related-to-uacs-sept2014.pdf. 77. Maggard, Revised Docketing Practices Relating to Certain EOIR Priority Cases, EOIR (Feb. 3, 2016), download. 78. Flores, supra note Id. 80. Kandel et al., supra note 2 at A Guide to Children Arriving at the Border, supra note 7 at Id. at USC 1232(b)(3)(C). 84. Guidelines for Children s Asylum Claims, USCIS (Sept. 1, 2009), 26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Guidelines-for- Childrens-Asylum-Claims-31aug10.pdf USC 1158(b)(1)(B)(i). 86. Matter of S-E-G, 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G, 24 I&N Dec. 591 (BIA 2008). 87. A Guide to Children Arriving at the Border, supra note 7 at Id. 89. Id. at 6, USC 1158(c)(1)(A) USC 1159(b)(2) USC USC 1151(b)(2)(A)(i) USC 1101(a)(15)(T) USC USC 1101(a)(15)(T)(i) CFR (d)(2), (f). 98. O Leary, Operating Policies and Procedures Memorandum (OPPM) 13-01: Continuances and Administrative Closure, EOIR (Mar. 7, 2013), pdf. 99. O Leary, supra note USC 1255(l)(1) USC USC 1151(b)(2)(A)(i) USC 1101(a)(15)(U) USC 1101(a)(15)(U)(iii) USC 1101(a)(15)(U) Id CFR (c)(2)(i). The Colorado Lawyer October 2016 Vol. 45, No

8 CFR (c)(2)(ii), (iii) Id CFR (a)(2), (3) USC 1101(a)(15)(U)(ii) Id USC 1255(m)(1) USC USC 1151(b)(2)(A)(i) USC 1101(a)(27)( J)(i). For a detailed description of the SIJS state court process, see Vigil and Johnson, State Court Orders Supporting Special Immigrant Juvenile Status, 45 The Colorado Lawyer 45 ( June 2016) USC 1101(a)(27)(J)(i) USC 1101(a)(27)(J)(ii) USC 1101(a)(27)(J)(iii) CFR (a) Yates, Memorandum #3: Field Guidance on Special Immigrant Juvenile Status Petitions, USCIS (May 27, 2004), default/files/uscis/laws/memoranda/static_files_memoranda/ Archives% /2004/sij_memo_ pdf Id Id Id Id Yates, supra note wide-pro-bono-opporunities. n 42 The Colorado Lawyer October 2016 Vol. 45, No. 10