ABA BUSINESS LAW SECTION SPRING MEETING 2015 IMMIGRATION LAW 101: Represen4ng Unaccompanied Children in Immigra4on Removal Proceedings

Transcription

1 ABA BUSINESS LAW SECTION SPRING MEETING 2015 IMMIGRATION LAW 101: Represen4ng Unaccompanied Children in Immigra4on Removal Proceedings Chris4na A. Fiflis, Chair, ABA Commission on Immigra4on Co- Chair, ABA Working Group on UMI Angie Junck, Immigrant Legal Resource Center Monique R. Sherman, Cooley, LLP The Honorable Judge Dana Leigh Marks

2 Topics for today 2014 Immigrant Legal Resource Center 2

3 Part I: Deten4on & Removal of Unaccompanied Children 3

4 Who Is an Unaccompanied Minor (UAC)? 6 U.S.C. 279(g)(2) A child who: has no lawful immigra4on status in the United States; has not a`ained 18 years of age; has no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody. 4

5 How Do the Children Get Here?

6 MONTHLY UAC APPREHENSIONS FY

7 UAC Na4onali4es

8 Release Loca4ons by County

9 Dept. of Homeland Security Ci4zenship & Immigra4on Services (USCIS) Immigra4on & Customs Enforcement (ICE) Customs & Border Protec4on (CBP) ICE Officers, A`orneys (ACCs), Asylum Office Interviewers, Service Centers Dept. of Jus4ce Execu4ve Office for Immigra4on Review (EOIR) Board of Immigra4on Appeals (BIA) Immigra4on Judges (IJs) Dept. of Health & Human Services (HHS) Office of Refugee Rese`lement (ORR) Unaccompanied Refugee Minors (URM) Div. of Children s Services (DCS) Shelter Workers, Therapists, Field Coordinators State Courts Juvenile Courts & SIJS Predicate Orders

10 ICE/CBP Arrest Vast majority of child apprehensions occur at the border. Internal apprehensions: ICE may coordinate with local police, juvenile proba4on or deten4on officers; Detainers: immigra4on hold while juvenile is comple4ng sentence; Denial of applica4ons for immigra4on benefits. Immigrant Legal Resource Center Adapted from Deportation 101 by Families for Freedom, National Immigration Project of the NLG, NYSDA Immigrant Defense Project, and Detention Watch Network (March 2007) Revised September ICE/CBP Processing Station At the border, CBP screens all children for fear of return/ human trafficking. If child is from a con4guous country (Mexico, Canada) and is determined not to be in need of protec4on, they are voluntarily returned. Children from non- con4guous countries, e.g., Central America, are usually transferred to ORR custody. Both CBP & ICE must make a determina2on at arrest whether the child is unaccompanied. Unaccompanied means a child who has no lawful imm status in the U.S., is under 18 years of age, & has no parent or legal guardian in the country present or available to provide care & physical custody. If determined to be a UAC, the child must be transferred to ORR within 72 hours (as req d by TVPRA). Charged with immigra2on viola2ons. No counsel provided and if you have counsel, not typically allowed at this stage. Risk of losing right to hearing. Pressured to sign documents giving up right to hearing. Consular assistance - Vienna Conven2on. Deportation If immigrant has a final administra2ve order of deporta2on/removal, and no stay of deporta2on, ICE may deport him/her. Consulate usually issues travel documents first. Federal Courts Circuit Courts of Appeal are extremely limited as to what immigra2on cases they can review. Juvenile or Criminal Prosecution Deporta2on process happens simultaneously or aker prosecu2on/adjudica2on. Detention: ICE or ORR Facili2es can be federal, local/county, private. Li`le is known about ICE facili4es and they are generally secure. ORR facili4es include shelters, staff secure, secure, or therapeu4c. Very lixle control over transfer. Juvenile delinquency, drugs, suspected gang affilia2on, or any indica2on that minor is a flight risk increases likelihood of deten2on in secure sezng. UACs should receive KYR and legal screening while detained. If child turns 18, will likely be transferred into ICE custody. Release Process may happen concurrently w/ imm court. While in ORR custody, a parent, rela2ve or friend fills out reunifica2on packet and is approved or denied. Op2on of federal foster placement if no sponsor is iden2fied and legal services provider confirms eligibility for imm relief. Immigration Court System No right to counsel at the gov t expense at Immigra2on Court or Appeals Court. Immigra2on Judge makes decision to deport and/or grant relief (lawful imm status), but USCIS has ini2al jurisdic2on to consider Special Immigrant Juvenile Status (SIJS) and asylum applica2ons. If granted voluntary departure, UAC not req d to pay own return. Immigra2on Judge is DOJ employee. Appeal to Board of Immigra2on Appeals within 30 days. Can be detained throughout appeal.

11 Immigra4on Court Structure Immigra4on Courts are part of the Execu4ve Office for Immigra4on Review (EOIR) EOIR is an agency within DOJ that answers directly to the Deputy A`orney General. The EOIR Director and Immigra4on Judges are AG appointees. Immigra4on and Customs Enforcement (ICE) is the agency responsible for enforcement of immigra4on laws ICE is represented in Immigra4on Court by the Office of Chief Counsel (OCC). The OCC acts as a prosecutor in immigra4on cases.

12 Who will be in Immigra4on Court?

13 Rights in Removal Proceedings Representa4on at no expense to the government. INA 240(a) (4)(A). NB: J.E.F.M. v. Holder, class ac4on filed in Sea`le, July 2014, seeking appointment of counsel for minors in removal proceedings. List of available legal services; 8 CFR Contac4ng consulates; 8 CFR (e). Transla4on; 8 CFR Right to examine and present evidence, call witnesses, etc.; INA 240(a)(4)(B). Right to Due Process 14

14 Procedural Differences for Children The immigra4on court has created some different procedures for children in Court: - Some jurisdic4ons including San Francisco immigra4on court have created specialized juvenile dockets - There are special guidelines for judges to use in cases with unaccompanied children See May 2007 EOIR Guidelines at h`p:// oppm07/07-01.pdf 15

15 Procedural Differences for Children Since the increase in the number of unaccompanied children, courts have begun expedi4ng these cases. - This is referred to as the rocket or surge docket. It is extremely important that your client a`end all immigra4on hearings unless the court has specifically waived the minor s presence - If a client does not a`end court, he can be ordered removed/deported in absen4a 16

16 Immigra4on Court Basics ORR Files/ A Files A`orney registra4on and entry of appearance Preliminary Considera4ons No4ces to Appear/Pleadings Master Calendar and Individual Hearings

17 The ORR File Unaccompanied Minors placed in the custody of the DHHS Office of Refugee Rese`lement prior to release have an ORR File The ORR file may include the client s NTA (charging document) and some other documents from ICE but will also include a screening from staff at the facility, medical records about vaccina4ons, school records, a birth cer4ficate and other informa4on. See h`p:// requests- for- uac- case- file- informa4on for informa4on on how to request a copy of your client s ORR file

18 The A File For children in removal/deporta4on proceedings, ICE will have informa4on regarding deten4on, interviews, any admissions your client may have made and other relevant informa4on in the client s Alien ( A ) file. You may file an expedited FOIA request to get a copy - The FOIA request is filed on Form G Do not admit to alienage on the G- 639 if you want to keep that burden of proof on ICE

19 The A File Two important documents included in the A File: - No4ce to Appear: lists the allega4ons against the client to which you will plead and the grounds of inadmissibility/ removability ICE contends pertain to your client - I- 213 Record of Deportable Alien : includes informa4on on how client was detained, admissions client made at 4me of deten4on, criminal charges against client, etc. - Both of these documents will be introduced into evidence by ICE

20 A`orney Registra4on to Represent UACS To represent a minor in Immigra4on Court, you must register with EOIR and file an E- 28 (EOIR- 28) No4ce of Entry of Appearance as A`orney before the Immigra4on Court. Registra4on is a 2 step process: - First, register online at h`p:// engage/eregistra4on.htm. You ll receive an that registra4on is in process. - Second, bring your photo ID to the Immigra4on Court where you will be appearing to complete the registra4on process

21 A`orney Registra4on to Represent UACS For San Francisco: 120 Montgomery St, 7 th Floor, M- F from 8:30-11:30 or 1:30-3:30 to complete the registra4on process Once you have registered, you will receive an with your EOIR ID number which you will need to include on the E- 28 and all court filings.

22 A`orney Entry of Appearance Aqer registering with EOIR, you can file an E- 28, no4ce of Entry of Appearance as A`orney with the Immigra4on Court (can be done online) - The hard copy of the E- 28 should be printed on green paper - You should file prior to the hearing date if at all possible - Don t forget to serve a copy on the government

23 Preliminary Considera4ons Screen for op4ons to terminate Mo4on to Change Venue Mo4on to Con4nue Administra4ve Closure

24 No4ce to Appear The NTA is the charging document in Immigra4on Court that ini4ates removal proceedings The client should have a copy of the NTA, otherwise a copy can be obtained from the government a`orney or the Court NTA must specify certain informa4on Respondent (your client) is the individual against whom an NTA is issued Usually minors are charged with entering the U.S. without inspec4on. If the minor admits these charges, he can be removed to his or her country of origin unless he applies for a form of immigra4on relief

25 Sample No4ce to Appear 2014 Immigrant Legal Resource Center 26

26 Types of Hearings for Children in Immigra4on Court: Master Calendar Master Calendar Hearing(s) - Request con4nuance for a`orney prepara4on - Plead to the charges in the NTA - Discuss legal issues - Request relief from removal - Schedule deadlines for documents, briefing & individual hearing Note that many ma`ers (some4mes 30 or so) are set at the same 4me - Courtrooms may be crowded - May have to wait a long 4me to be called 27

27 Types of Hearings for Children in Immigra4on Court: Master Calendar If client has a master calendar hearing while an applica4on is pending outside of court, consider filing a mo4on to con4nue or administra4vely close - Allows you and client not to have to a`end court just to request a con4nuance - See EOIR s prac4ce manual for detailed informa4on on filing requirements and 4melines h`p:// ocij_page1.htm 28

28 Types of Hearings for Children in Immigra4on Court: Individual Individual Hearing(s) - Present case for relief, including expert and lay witnesses, direct & cross examina4on - Object to evidence proposed by DHS if appropriate - Give closing statement if appropriate - Immigra4on Judge (IJ) will decide case - Check with local prac44oners regarding presiding judges prac4ces (e.g., opportunity to discuss/s4pulate with ICE counsel prior to commencing hearing, whether opening/closing statements are permi`ed, witness sequestra4on) 2012 Immigrant Legal Resource Center 29

29 How to Prepare for your first Master Calendar Hearing Advise the child about what will and will not happen at the first MC hearing Review No4ce to Appear with your client Iden4fy which form(s) of relief you will be seeking Review with your client who will be in court Confirm a few weeks in advance, and then again the day before your hearing Provide them with a way to contact you if they are running late, etc. Remind client of the consequences of failing to appear Immigrant Legal Resource Center 30

30 How to Prepare your Client for their first Master Calendar Hearing Remind client how they should act in court: - Always tell the truth - Tell the court if they don t understand a ques4on - It is be`er to say I don t understand or Can you repeat the ques4on? than to answer a ques4on incorrectly. - Sit upright and speak to the IJ with respect. Remind your client that the IJ is the person who will decide their case. - If client s best language is Spanish, let them know that they should speak only in Spanish in court - Client should respond to yes- or- no ques4ons with Yes or No. - The proceedings are recorded, so a movement of the head will not suffice. Also not appropriate to use slang in court Immigrant Legal Resource Center 31

31 What to Expect at your First Master Calendar Hearing Before the docket begins, check in with the clerk using client s Alien Number (A#) Court will call cases by the last three digits of the Respondent s Alien number (A#) If you haven t already filed your Entry of Appearance (E- 28), file the original with the clerk and serve a copy on the government a`orney. Note that all filings in Immigra4on Court must be 2- hole punched or they will not be accepted. If you inform the clerk that you are appearing pro bono, the clerk may call your case ahead of others- check re: local prac4ce When your client s case is called, proceed to counsel s table and your client will sit next to you 32

32 What to Expect at your First Master Calendar Hearing The IJ will ask you to enter your appearance: Ms. Doe, appearing pro bono on behalf of the Respondent At your ini4al appearance, the IJ will ask for an update on the case and whether you are prepared to plead. You can typically request one ini4al con4nuance for a`orney prepara4on before you plead (varies based on the IJ) 33

33 What to Expect at your First Master Calendar Hearing Your honor, I am not prepared to plead today. I just recently accepted representa4on of this case pro bono and need to request a con4nuance for a`orney prepara4on 4me. I would like to request a [three] month con4nuance at this 4me. The IJ should grant your con4nuance, and the clerk will issue you a hearing no4ce for your next hearing; don t leave court without it! - Be sure to inform client of the next hearing date and send them a follow- up le`er with the informa4on as well 34

34 Pleading to NTA Entry of pleadings to the NTA occurs at a Master Calendar hearing, usually orally If you seek a con4nuance, the Court will likely advise you to be prepared to enter pleadings at the next MC or may order you to file wri`en pleadings Carefully review the NTA for facial inaccuracies. If you find inaccuracies, move to amend the NTA. IJ will ask if you concede proper service and waive a formal reading. Yes or No ; So waived or No 35

35 Pleading to NTA IJ will ask that you Admit or Deny the factual allega4ons as they appear on the NTA. The Respondent admits factual allega4ons 1 through 4 or The Respondent denies factual allega4ons 1 through 4, etc. DENY allega4ons that you wish to contest. DENY allega4ons and charges of removability related to criminal history (typically not an issue for UACs). The IJ will ask that you Contest or Concede the charge of removability. Conceding removability waives Respondent s ability to challenge removability down the line. 36

36 Pleading to NTA Remember that ICE has the burden to prove alienage by clear, unequivocal and convincing evidence Woodby v. INS, 385 U.S. 276, 277 (1966) The IJ will ask you to designate a country for removal. Respondent can decline to designate a country for removal. This is oqen done when the individual fears returning to their country of origin. If your client declines to designate, the IJ will then designate the country of removal based on the government s recommenda4on. When in doubt, deny allega4ons and charges, and hold the government to their burden of proof! 37

37 Sample Plea & Request for Relief Respondent admits the factual allegabons 1& 2, denies allegabon 3 as charged and counter- alleges an entry date of on or about 00/00/0000 near XXX, and admits allegabon 4. Respondent contests/concedes removability as charged. The court finds that removability has been established by clear and convincing evidence, what relief will you be seeking? Respondent will be seeking adjustment of status based on Special Immigrant Juvenile Status and Asylum, withholding of removal, and relief under CAT and Voluntary Departure in the alternabve. 38

38 Aqer Pleading & Sta4ng Relief Confirm best language of your client Confirm Client Address Receive any filing deadlines from the Court Receive Biometric Instruc4ons from government a`orney You may receive deadlines for: Filing of applica4on Filing of documents in support of applica4on Filing of briefs New hearing date 39

39 Possible Outcomes in an Immigra4on Court Case Relief is granted (e.g. adjustment of status, asylum) Removal proceedings terminated Prosecutorial discre4on Procedural challenges Child ordered voluntarily removed Child ordered removed 40

40 Removal Order vs. Voluntary Departure Voluntary Departure agree to voluntarily return to home country to avoid the nega4ve consequences that result from order of removal INA 240B Can return to U.S. if have a legal way to do so in the future no 5, 10, 20 or permanent bar TVPRA allows UACs who are eligible for voluntary departure to be returned at government expense 235(a)(5)(E)(ii) Adults and non UACs must pay for own transporta4on 41

41 Right to Appeal Appeals from Immigra4on Court are made to the Board of Immigra4on Appeals ( BIA ), the highest administra4ve body interpre4ng immigra4on law Generally, BIA does not conduct courtroom proceedings BIA must receive the no4ce of appeal within 30 days of the IJ s decision For more informa4on, see BIA Prac4ce Manual: h`p:// apptmtn4.htm 42

42 Part II: Working with Unaccompanied Children 43

43 A`orney- Client Rela4onship/Ethics Remember, the child (not adult) is your client. You owe her the same du4es of confiden4ality, zealous advocacy, and communica4on that you owe an adult. - But there are some major differences including: logis4cs, 4me and pa4ence required, and capacity to consent Your duty is to advise the child about her legal op4ons and represent her stated/expressed interest. Do not disregard your client s views in favor of what you might think is in her best interest.

44 Logis4cal Considera4ons Effect of past trauma on current behavior Anxiety Insecurity Inability to relive past trauma Child s circumstances (age, lack of financial security, lack of educa4on, etc.) oqen impact a child s ability to understand that there are consequences, good or bad, to their ac4ons Result: Child asylum clients are oqen at higher risk than adult clients for engaging in bad behavior Impacts understanding/ability to accept rules of professional communica4on with an a`orney 45

45 Logis4cal Considera4ons: Mee4ngs Schedule Mee4ngs with Client: - ALWAYS REMEMBER THEY HAVE PROBABLY NEVER DEALT WITH ANY PROFESSIONAL BEFORE YOU! - Expect that they may not show up to all scheduled mee4ngs on 4me, will miss mee4ngs altogether, and will forget to bring vital documents with them - Help organize them by always puwng mee4ngs in wri4ng, and try to call to remind a day before - Provide a folder or envelope to keep all documents related to case - Be mindful of financial considera4ons for UAC and family when scheduling mee4ngs - Be pa4ent and flexible, but know your boundaries 46

46 Interviewing Children and Youth Keep in mind that many of these children and youth have experienced trauma and trauma affects behavior! Ini4al mee4ng with any non- infant/toddler client should be alone with child. Assess Considera4ons for communica4on: language, educa4onal level, chronological age versus developmental age, mental health issues

47 Communication should be targeted to child (language, development versus chronological age, mental health) During Meeting/Interview Interviewing Children and Youth Obtain as much informa4on as possible before interview Define role (meaning and limita4ons of rela4onship) Explain reason for mee4ng Confiden4ality in child friendly terms Guidelines for interview Other 4ps: Give child as much control as prac4cable Avoid typing while doing ini4al mee4ngs Allow your notes to be visible Introduc4on

48 Interviewing Children and Youth Interview Con4nually check in Non- judgmental stance and reac4ons Speak to the facts ( when your parents abused vs. when your parent hit you ) Don t forget to consider age and maturity when formula4ng ques4ons Be gentle, but ask direct open ended ques4ons Avoid legalese Explain again, again, and again

49 Interviewing Children and Youth Wrap- Up Remind child of short and long term goals Review next steps Ask the child if he or she has ques4ons Ask the child to repeat back to ensure understanding Check in about child s emo4onal state Make appropriate referrals (e.g. child abuse hotline, emergency shelter, 911, local health center)

50 Ability to Consent to Representa4on Absent indicia of capacity concerns beyond age alone, capacity to consent for representa4on is presumed Sample ques4ons for determining consent: Do you want me to help you stay here in the U.S.? Can I help you in the courtroom? Can I help you at your asylum interview? Do you want my help to tell the judge why you want to stay here? 51

51 Working with Children and Youth Managing Rela4onships with Adults With children come adults- facility staff, sponsors, extended family, other professionals Remember that the child is the client! Remind both child and adult caregiver that child is client. Make referrals for adults when appropriate.

52 When There Are Concerns This is an especially vulnerable group of children (status, language, knowledge and access to resources) Child is the client! Equip child with referrals to address non- legal needs Uncondi4onal support

53 Screening the Child s Case Screen for relief, to be certain (especially Special Immigrant Juvenile Status and asylum). But also screen for op4ons to terminate removal proceedings (suppression of statements, insufficiency of I- 213 to establish alienage, failure to provide 4mely I- 770 also look at improper No4ce to Appear service). When you take on representa4on, you must consider and advise on these op4ons

54 Screening the Child s Case When child appears eligible for mul4ple forms of relief - Grounds of inadmissibility: do any grounds of inadmissibility apply? Can they be waived with certain forms of relief? - Process: will child have to go through lengthy interview process or provide extensive tes4mony? Will child have to contact family members in home country? How long will it take to pursue different forms of relief - Family Members: does child want to include parents, siblings as deriva4ves? - Ability to travel outside of U.S. - Strength of different claims

55 Part III: Common Forms of Relief for Minors 56

56 Common Forms of Relief Available to Minors Special Immigrant Juvenile Status Asylum U Nonimmigrant Status (U Visa for vic4ms of crimes) T Nonimmigrant Status (T visas for vic4ms of trafficking) Violence Against Women Act (VAWA) Family Immigra4on 57

57 Special Immigrant Juvenile Status Special Immigrant Juvenile Status (SIJS) is a form of relief for children who: Are under 21 Are unmarried Have been abused, abandoned or neglected by one or both parents Are under the jurisdic4on of a state juvenile court Once SIJS is granted, youth is immediately eligible to adjust status (apply for a green card) Being a lawful permanent resident/green card holder is the best immigra4on status short of being a U.S. ci4zen

58 SIJS Basics: Statutory Authority The Immigra4on and Na4onality Act at 101(a)(27)(J), codified at 8 USC 1101(a)(27)(J) This statute is in turn implemented by standards set out in federal regula4ons, found in the Code of Federal Regula4on at 8 CFR CAUTION: the regula4ons have not yet been updated to reflect changes made to the underlying Special Immigrant Juvenile statute, which was significantly amended in 2008 by the Trafficking Vic4ms Protec4on and Reauthoriza4on Act (TVPRA) of 2008, Pub. L. No , 122 Stat

59 SIJS Basics: Steps of a SIJS Case 1. Seek an order from a state court making the three findings required for SIJS; 2. Apply for a Special Immigrant Juvenile visa with U.S. Ci4zenship and Immigra4on Services (USCIS) using Form I- 360; 3. Apply for adjustment of status (a green card) using Form I- 485 either with USCIS or in the Immigra4on Court. 60

60 SIJS: Juvenile Court To apply, child must have factual findings from a juvenile court Juvenile court defined as any court located in the United States having jurisdic4on under State law to make judicial determina4ons about the custody and care of juveniles. 8 C.F.R (a) Examples: dependency/foster care, probate/guardianship, delinquency, family court (custody, paternity or divorce) Juvenile Court must find: Reunifica4on with one or both of the child s parents is not viable due to abuse, abandonment, neglect or similar basis under state law; and It is not in the child s best interests to return to his or his parent s country of na4onality 61

61 SB 873 On September 27, 2014, California Governor Jerry Brown signed into law Senate Bill 873 Clarifies state court roles in considering Special Immigrant Juvenile Status (SIJS) pe44ons filed by immigrant children in state courts "Helping these young people navigate our legal system is the decent thing to do and it's consistent with the progressive spirit of California. Gov. Brown 62

62 SB 873 For SIJS pe44ons in state court: Eliminates any ambiguity that California Superior Courts, including family courts, have jurisdic4on to make the findings necessary for SIJS; Creates an affirma4ve responsibility of Superior Courts to make the SIJS findings when there is evidence to support those findings; Clarifies that the evidence to support the SIJS findings may consist of (but is not limited to) a declara4on by the child; 63

63 SB 873 Lists the specific SIJS findings that a court order should include and makes clear that when requested, the court may make addi4onal findings; Increases confiden4ality protec4ons for proceedings in which SIJS findings are requested; Clarifies that courts may provide interpreters in proceedings reques4ng SIJS findings. 64

64 SIJS: Juvenile Court If the child already has an open dependency, delinquency, probate or family court case, can file a request for SIJS findings in those proceedings If the child does not have an open case in state court but would become SIJS- eligible through a legal guardianship or custody pe44on, you must file for and establish the guardianship or custody in order to request SIJS findings Most Unaccompanied Minors have recently arrived to the United States and will not have an open case in juvenile court. This means that you will need to file a pe44on in state court to request the SIJS findings. 65

65 SIJS: Abuse, Abandonment & Neglect Some examples of children for whom reunifica4on with 1 or both parents may not be viable due to abuse, abandonment, neglect, or a similar basis include: A child whose parents are deceased and whose adult sibling is caring for her. A child who experienced domes4c violence in the home and who is now living outside the home. A child who was abandoned by his parents and who now lives in a foster home. A child who was abused by one parent and who is living safely with the other parent or another family member. 66

66 One- Parent SIJS One- parent SIJS: reunifica4on not viable with one or both parents Although USCIS has issued guidance indica4ng that cases where reunifica4on is not viable with only ONE parent sa4sfy the statute, state courts con4nue to grapple with the interpreta4on of this language This issue could arise when, for example, a child is safely residing with her mother in the United States but was subject to physical and emo4onal abuse by her father in the home country 67

67 One- parent SIJS Two recent California appellate court decisions support one- parent SIJS: In re Israel O., 233 Cal. App. 4th 279 (Cal. App. 1st Dist. 2015) held that a child may be eligible for SIJS even if a safe and suitable parental home in the United States is available Eddie E. v. Superior Court, No. G049637, 2015 Cal App. LEXIS 136 (Cal. Ct. App. Feb. 11, 2015) held that the plain language of the statute means that a pe44oner can sa4sfy this finding by showing an inability to reunify with one parent due to abandonment, abuse, neglect or a similar basis Further, a USCIS Fact Sheet, SB 873, and the Judicial Council Memo implemen4ng it support the argument that reunifica4on must not be viable with only ONE parent 68

68 SIJS: Best Interests For this requirement, both the downsides of the child returning to her home country and the upsides of remaining in the U.S. are relevant. For example: - Child fears retalia4on by abusive family members in home country. - Child has no responsible family members to provide her with care and protec4on in home country. - Child will have no access to medical, educa4onal or social services in home country. - Child is acculturated to life in the U.S., has been educated in the U.S., etc. - Child s personal 4es, e.g., guardian, siblings, suppor4ve rela4ves, in U.S. 69

69 SIJS: Best Interests The Judicial Memo implemen4ng SB 873 notes that in making the best interests determina4on, the state court can focus on circumstances shown by the evidence presented regarding the child s life and rela4onships in the U.S. and in his or her country of origin and need not become an expert on condi4ons in foreign countries 70

70 SIJS: State Court Predicate Order In Juvenile Court (dependency or delinquency), the SIJS predicate order is a judicial council form: JV In Probate Court, the SIJS predicate order is another Judicial Council form: GC In Family Court, there is no Judicial Council form and the SIJS findings must be made on pleadings. Once the order has been granted, take it to the clerk s office to be filed and request a cer4fied copy (which you will submit to USCIS). This cer4fied copy should be free if the minor has a fee waiver.

71 SIJS: Common Issues in Probate Court Age- out cases Temporary Guardianships Comple4ng no4ce to family members Hague Conven4on Guardianship Inves4ga4on Report not completed in a 4mely fashion Lack of familiarity with SIJS Judge finds evidence in support of SIJS request to be self- serving

72 SIJS: Common Issues in Family Court Jurisdic4onal issues UCCJEA Home State Age- out cases Need for Guardian Ad Litem Comple4ng no4ce to family members Hague Conven4on Lack of familiarity with SIJS Judge finds evidence in support of SIJS request to be self- serving Concern about collusion in uncontested cases Issue with interpreta4on of one or both parents

73 SIJS: I- 360 Pe44on Form I- 360: the I- 360 is a rela4vely simple form, much of which does not apply to SIJS applicants and should be leq blank I- 360 Filing Packet includes: Cover Le`er: use as table of contents for your suppor4ng documents G- 28 No4ce of Entry of Appearance (on blue paper) I- 360 Pe44on (current versions of all USCIS forms can be downloaded at 74

74 SIJS: I- 360 Pe44on Case Summary: briefly highlight the facts of the child s story that make them eligible for SIJS State Court Predicate Order Birth Cer4ficate with English Transla4on The I- 360 Pe44on for Amerasian, Widower or Special Immigrant is always filed with USCIS regardless of whether the youth is in removal (deporta4on) proceedings or not 75

75 SIJS: Adjustment of Status If the I- 360 is approved and the child is in removal proceedings, you should file a Mo4on to Terminate the removal proceedings (see if the government will join in your mo4on or not oppose it) This allows the child to apply for a green card in a non- adversarial sewng If not, you can apply for a green card in Immigra4on Court With an approved I- 360, the child is immediately eligible to file the I- 485 Applica4on to Register Permanent Residence or Adjust Status to apply for a green card 76

76 SIJS: Filing the I- 485 with USCIS If immigra4on proceedings are terminated, file the I- 485 with USCIS The I- 485 packet filed with USCIS includes: Cover Le`er Fee Waiver Request: Form I- 912 I- 485, Applica4on for Adjustment of Status G- 325A Biographical Form Copy of I- 360 Approval No4ce I- 693 Medical Report Copy of IJ s Order Termina4on Proceedings Op4onal: Declara4on from Applicant 77

77 SIJS: Filing the I- 485 in Immigra4on Court If Immigra4on Court proceedings are not terminated, you must file the permanent residency applica4on with the Immigra4on Court. You should include: Cover Page I- 485, Applica4on for Adjustment of Status G- 325A, Biographical Form Copy of I- 360 approval no4ce Birth Cer4ficate with English Transla4on EOIR Fee Waiver Request When you file at a master calendar hearing, the judge will set an individual/ merits hearing for you at that 4me

78 SIJS: Immigra4on Stage When filing the I- 485 you must look out for inadmissibility issues (things that might bar the youth from gewng a green card)! For example, if client was forced to carry drugs across the border, government could argue inadmissible under reason to believe drug trafficker ground (INA 212(a)(2) (C)). Note that many grounds of inadmissibility do not apply to youth with SIJS See h`p://

79 Aqer Filing I- 485 in Court Once you file the adjustment of status applica4on with the Immigra4on Court, mail a copy to the USCIS Texas Service Center. See h`p:// You will receive a receipt no4ce and your client will receive a biometrics appointment At biometrics appointment, USCIS will take photograph and fingerprints, and ask your client to provide a signature Client will need to get an immigra4on physical conducted by a USCIS Civil Surgeon before their adjustment hearing The results must be presented to the government a`orney in a SEALED envelope with the I- 693 Civil Surgeon Exam

80 Preparing for Adjustment of Status Hearing in Immigra4on Court If your client has nega4ve discre4onary issues such as arrests, juvenile jus4ce involvement, gang involvement, etc., you should supplement the I- 485 adjustment of status applica4on with a pre- trial brief and other posi4ve discre4onary evidence (e.g., Le`ers of support, grades, diplomas, cer4ficates from school, proba4on programs, community service, etc.). Juvenile arrests have to be disclosed, but in California, juvenile court documents, including disposi4onal records, are confiden4al. You cannot disclose these documents to USCIS or the Immigra4on Court without gewng permission from the juvenile court. See ILRC Prac4ce Advisory, DACA and Juvenile Delinquency Adjudica4ons & Records: FAQs at: h`p:// and- juvenile- delinquency- adjudica4ons- records- faqs

81 Preparing for Adjustment of Status Hearing in Immigra4on Court You can present your client as a witness and should prepare a direct examina4on of your client. Depending on whether there are nega4ve discre4onary issues (juvenile jus4ce charges, gang involvement, etc.), the direct may only be a couple of minutes or may be much longer. Also prepare your client for cross examina4on. It is very important to prac4ce thoroughly with your client so that he feels comfortable in court. If your client has nega4ve discre4onary issues, you may wish to call other witnesses (e.g., social worker, guardian, teacher, mentor, etc.). Follow EOIR prac4ce manual for witness list requirements.

82 Adjustment of Status Hearing At the adjustment of status hearing, the Immigra4on Judge will review all of the procedural history of the case and enter documents into evidence Then the hearing will proceed with direct and cross examina4on of your client and any other witnesses. The judge may also ques4on the witnesses. The judge will generally make a decision on the same day of the hearing and will issue an order. If the judge grants adjustment of status, you will be provided with instruc4ons on gewng your client s residency card from USCIS. Make sure to check the order to ensure that your client s complete name appears and is spelled correctly

83 Post Residency/Green Card Once your client is granted permanent residency and receives his green card, you should review with him his rights and responsibili4es See and h`p:// Note that if you helped the minor pe44on for a probate guardianship, you should plan to address any future Annual Status Reports (un4l the minor turns 18) or obtain the court s permission to withdraw Note that children granted SIJS are prohibited from later filing any immigra4on applica4ons on behalf of their parents

84 Asylum: Procedure for UACs Except in limited circumstances, UAC asylum claims will be adjudicated by the USCIS/Asylum Office. If client is in removal proceedings, at the Master Calendar, a`orney will inform the court that the client plans to file an applica4on for asylum with USCIS, and request a con4nuance. Then, submit applica4on to USCIS, file mo4on to administra4vely close or terminate the court case, and a`end non- adversarial asylum interview with client. If client is not in removal proceedings, just file asylum applica4on with USCIS, and a`end non- adversarial asylum interview with client.

85 Asylum: Jurisdic4on of UAC Asylum USCIS has ini4al jurisdic4on over asylum applica4ons filed by a child in removal proceedings AS LONG AS: CBP or ICE designated her as an Unaccompanied Alien Child (typically, in ORR care) and CBP, ICE, or HHS has not affirma4vely terminated the UAC finding See 2013 USCIS Memo on Jurisdic4on of UAC Asylum h`p:// %20%26%20Asylum/Asylum/Minor%20Children%20Applying%20for %20Asylum%20By%20Themselves/determ- juris- asylum- app- file- unaccompanied- alien- children.pdf If the asylum office denies the applica4on, referred to Immigra4on Court. This makes UAC asylum claims perfect for business a`orneys!

86 Asylum Asylum protec4on is available to refugees as defined under U.S. law: A refugee is a person with a well- founded fear of persecu4on on account of race, poli4cal opinion, religion, na4onality or membership in a par4cular social group. INA 101(a)(42)(A). Elements of asylum claim: Well- founded fear of Persecu4on On account of A protected ground: race, poli4cal opinion, religion, na4onality, or membership in a par4cular social group Persecutor is state actor, or state unwilling or unable to control private actor Cannot safely or reasonably relocate within state Basic law governing asylum set out in INA

87 Asylum: A Child Specific Lens Children may struggle to ar4culate a fear. Children may suffer child- focused forms of persecu4on, including family violence (within or toward the family), child trafficking, forced underage recruitment into armed conflict, forced or underage marriage, etc. The level of harm needed to amount to persecu4on may be lower for a child than an adult. Consult key materials (USCIS AOBTC Guidelines for Children s Claims (2009), UNHCR Children s Guidelines (2009), INS Guidelines (1998)) to re- frame your view. 88

88 Asylum: Well- founded Fear Well- founded fear: Subjec4ve Component Fear must be genuine. Note that child may be unable to express actual fear rely on tes4mony of knowing adults and objec4ve evidence. Objec4ve Component Past persecu4on vs. future persecu4on Reasonable possibility of suffering persecu4on 8 C.F.R (b)(2)(I) 10% chance of future persecu4on substan4ates a well- founded fear. (INS v. Cardoza- Fonseca, 480 U.S. 421 (1987)) A reasonable person would experience a fear of persecu4on. (Ma\er of Mogharrabi, 19 I. & N. Dec. at 444) 89

89 Asylum: Persecu4on Harm of a serious nature, more than mere harassment. Harm or threats must be considered cumula4vely. Standard for children: The harm a child has suffered or feared can be less than that of an adult and s4ll qualify as persecu4on (AOBTC, UNHCR, DHS/INS Guidelines, Hernandez- OrBz v. Gonzales, 496 F.3d 1042 (9 th Cir. 2007) Take these factors into considera4on and stress them in your case: Age Maturity Vulnerability Dependence on adults Cogni4ve issues, other developmental issues Psychological factors Injury to family members Viola4on of interna4onally recognized children s rights Harm to child s family Child s perspec4ve 90

90 Asylum: Protected Grounds Five protected grounds (immutable or fundamental status or belief): Race: e.g. ethnic and indigenous groups Religion: e.g. wrong religion, too religious or not religious enough Na4onality: can include statelessness Membership in a PSG Poli4cal Opinion (actual or imputed): broadly defined, not just poli4cal par4es; children can hold an opinion, or may also have an opinion imputed to them based on parents, family, or their ac4ons 91

91 Asylum: Nexus Nexus (rela4onship between persecu4on and protected grounds): Must be on account of one of the protected grounds. Mixed mo4ves allowed, but the protected ground must be at least one central reason for the persecu4on. Children & nexus Remember to keep a trauma- informed perspec4ve. Children may have limited understanding or informa4on. Objec4ve evidence may be important: status of children in society or family; levels of certain types of harm against children. Tes4mony of knowing adults Importance of country condi4ons experts 92

92 Asylum: Membership in a Par4cular Social Group Immutable or fundamental characteris4c: Ma\er of Acosta, 19 I&N Dec. 211 (BIA 1985) Socially dis4nct: Perceived as a group by society Treated dis4nctly Ma\er of W- G- R, 26 I&N Dec. 208 (BIA 2014); Ma\er of M- E- V- G-, 26 I&N Dec. 227 (BIA 2014); Ma\er of C- A-, 23 I&N Dec. 951 (BIA 2006) Par4cular: Terms commonly understood/accepted in society; discrete and definable boundaries. Ma\er of W- G- R, 26 I&N Dec. 208 (BIA 2014); Ma\er of M- E- V- G-, 26 I&N Dec. 227 (BIA 2014); Ma\er of S- E- G-, 24 I&N Dec. 579 (BIA 2008) Examples: Families; homosexuals required to register; married women unable to leave their rela4onship. 93

93 Asylum: Child- Defined Social Groups Child- defined social groups Age/childhood/youth + other immutable or fundamental characteris4cs Na4onality Gender Family Sexual orienta4on Marital status or status in domes4c rela4onship (including within family) Lack of adult supervision or protec4on Opposi4on to societal norm or custom Disability or mental illness Government witness Age/youth is immutable at any given point in 4me. See Ma\er of S- E- G- at 583; UNHCR guidelines. 94

94 Asylum: Common Asylum Claims for UACs Gang- based threats or violence Unfortunately, there is nega4ve jurisprudence on children resis4ng gang recruitment as a PSG. Inquire about other reasons the gang may be targe4ng the child. Other grounds? Harm suffered on account of family Vic4m of domes4c violence by partner or caregiver Child targeted based on sexual orienta4on Child forced into pros4tu4on or marriage Exploita4on of child labor Street children 95

95 Asylum: State Actor/Non- state Actor Persecu4on must be commi`ed by a state actor or non- state actor the government is unable OR unwilling to control. You can establish this through: Actual failure to protect; Fu4lity or danger of repor4ng; Failure to protect similarly situated individuals; Law as it is wri`en versus how it is enforced; Country condi4ons materials and experts. Argue that children depend on adults to protect them and to access protec4on. 96

96 Asylum: Safe reloca4on It is presumed unreasonable to relocate where government is the persecutor It is generally NOT reasonable to expect a child to relocate (AOBTC Para. 42) Consider age, familial 4es, mental health, medical condi4ons, language issues, race/ethnicity issues, gender issues, means of survival Your goal is to show that it was not reasonable for this child applicant. 97

97 Asylum: Bars to Asylum Bars inapplicable to UACs by statute: Safe third country bar One- year filing deadline For non- UAC children, can argue that minor status is an extraordinary circumstance (legal disability) Applicable statutory bars: Previous asylum applica4on denial Persecutor of others Par4cularly serious crime/aggravated Felony Serious nonpoli4cal crime Na4onal security Terrorism Firm rese`lement Bars should be evaluated considering child s individual culpability, developmental stage, and factors that may negate culpability, such as duress, coercion, self- defense. 98

98 Asylum Applica4ons Asylum Applica4on: I- 589 (be careful!) Child s declara4on Witness declara4ons (here or abroad) Medical report Psychological assessment (harm & credibility) Strong country condi4ons Country condi4ons expert Legal brief/le`er brief

99 Asylum: Working with Children Gaps & Inconsistencies in Child Tes4mony Under- repor4ng (shame) Fear of it not being enough and over- repor4ng Probe- do not put it in a declara4on if you suspect that it is an embellishment! Memory loss (trauma) Fear of gewng someone else in trouble Neurological damage (drug use) Need for mul4ple mee4ngs

100 Other Common Forms of Relief: U Visa U visas (INA 101(a)(15)(U)) For children who have been the vic4m of a serious crime (e.g. ba`ery, sexual assault, domes4c violence) in the United States and have suffered substan4al physical or mental abuse as a result, and who are willing to assist law enforcement in the inves4ga4on or prosecu4on of the crime - For children under the age of 16, a parent, guardian, or next friend may assist law enforcement by providing informa4on on their behalf Children may be eligible as vic4m of crime themselves or as a deriva4ve of a sibling or parent 101

101 U Visa To be eligible for a U visa, must obtain a cer4fica4on from a law enforcement agency confirming that the individual was helpful or will likely be helpful in the inves4ga4on or prosecu4on of the case The cer4fying law enforcement agency can include police, DA, court, CPS, etc. Use Form I- 918B to request law enforcement cer4fica4on When U Nonimmigrant Status is granted, it is valid for 4 years But U visa holder is eligible to apply for a green card aqer three years of physical presence in the U.S. while in U Nonimmigrant Status 102

102 Other Common Forms of Relief: T Visa T visas (INA 101(a)(15)(T)) Available for people who have been vic4ms of labor or sex trafficking Requirements: Vic4m of a severe form of trafficking in persons Physically present in the U.S. on account of such trafficking Compliance with any reasonable request for assistance in the inves4ga4on of trafficking Not required if applicant is under 18 Would suffer extreme hardship involving unusual and severe harm upon removal 103

103 T Visa Most children will not self- iden4fy as a trafficking vic4m. Ques4ons to ask: Did the child have to work? Was there force, fraud or coercion? Some labor trafficking possibili4es: domes4c servitude, restaurant work, forced to sell or transport drugs, construc4on, agricultural work When T Nonimmigrant Status is granted, it is valid for 4 years But T visa holder is eligible to apply for a green card aqer three years of physical presence in the U.S. while in T Nonimmigrant Status 104

104 Part IV: Immigra4on Court by Immigra4on Judge Dana Marks 105

105 Part V: Ques4ons & Answers 106

106 Addi4onal Resources Unaccompanied Immigrant Child Resources Chart h`p:// immigrant- children- resources California PLI/State Bar Training from December 2014 h`p:// Represen4ng_Unaccompanied_Children_in_California/_/N- 4nZ1z126fu? fromsearch=false&id= SIJS- specific materials, fact sheet, etc. h`p:// immigrant- juvenile- status- sijs Center for Gender & Refugee Studies: Resources for Children s Asylum h`p://cgrs.uchas4ngs.edu/search- materials/childrens- asylum- guidelines Fact sheets on immigra4on op4ons for undocumented children h`p:// sheets- immigra4on- op4ons- for- undocumented- children- updated- for Living in the US: Guide for Immigrant Youth h`p:// in- the- united- states- a- guide- for- immigrant- youth \

107 Thank you for axending!