Mariana s Story. Unaccompanied Children: The Journey from Home to Appearing before the Immigration Court in the United States

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1 Unaccompanied Children: The Journey from Home to Appearing before the Immigration Court in the United States An IAN webinar, presented jointly with CLINIC and KIND March 23, 2011 Panelists Tanisha Bowens, Sr. Project Coordinator, Pro Bono Project for Kids (CLINIC) Sarah Bronstein, Attorney, Training and Legal Support (CLINIC) Diana Castaneda, New York National Legal Services Director (KIND) Alice Fitzgerald, National Attorney Coordinator for Pro Bono Recruitment (KIND) Natalie Sullivan, Director (IAN) Mariana s Story Demographics of Children Served: Nationality For Children Provided Initial UCPBP Services Between April 1, 2006 and September 30, 2008, N=11,852 Mexico (N=847) 7% Ecuador (N=268) 2% Other (N=491) 4% Guatemala (N=3,556) 31% El Salvador (N=3,120) 26% Picture by Ehow.com Honduras (N=3,553) Data source: Vera Institute of Justice 30% UCPBP: Unaccompanied Children Pro Bono Pilot Project Demographics of Children Served: Age For Children Provided Initial UCPBP Services Between April 1, 2006 and September 30, 2008, N-11,852 Ages 1 to 12 (N=1,050) 9% Ages 13 to 17 (N=10,414) 90% Ages 18 or older (N=146) 1% Data sources: Office of Refugee Resettlement and Vera Institute of Justice UCPBP: Unaccompanied Children Pro Bono Pilot Project Data Source: Office of Refugee Resettlement 1

2 What starts the journey? What can happen along the way? Poverty War Persecution Gang recruitment Family or government neglect Abuse and physical violence Human trafficking - Reunify with family - Education and employment opportunities Victimization along the way: Violent crimes: rape assault robbery human trafficking Smuggling debts Other complications: Pregnant and parenting teens Mental health or medical needs Criminal histories Crime or trafficking victims The Journey: Statistics home to border More than 8,000 children travel to the United States alone on an annual basis and end up in immigration custody. Who are they? Where do they come from? Why do they come here? Children in Custody Children in Custody Arrested at the border Internal Enforcement Action Juvenile Adjudications and contact with law enforcement Photo credits (left to right): Latinalista.com, Southernstudies.com, Losangelesjuveniledefense.com Photo credit (left to right): Crpcorp.info, Latinalista.net 2

3 Children in Custody UAC (unaccompanied child) must be placed in the least restrictive setting that is in the best interest of the child. ORR may consider: Danger to self Danger to community and Risk of flight Children in Custody ORR-DUCS has 3 levels of detention: 1. Shelter Care No fences No restraints unless minor is a threat to others or herself 2. Staff-Secure Care Shelter with fence 3. Secure Care Similar to juvenile hall Release from ORR custody ORR may release child to reunify with a sponsor Preferably a parent or adult family member Certain undocumented relatives may sponsor Child still in removal proceedings No right to appointed counsel Why is my Client- Child in Removal Proceedings? U.S. law requires all people entering the United States to present themselves for inspection at a Port of Entry upon arriving to the U.S. People who present themselves for inspection but do not have the proper documents, OR who cross into the U.S. at a place other than a designated port of entry and are detained by Department of Homeland Security, may also be deported immediately. Children (other than Mexican or Canadian) who are caught entering the U.S. without a parent or legal guardian may NOT be deported without first having their case heard by an Immigration Judge. What are Removal Proceedings? Administrative Hearings Initiated by DHS by the filing of the Notice to Appear (NTA) DHS is represented by counsel in court Overseen by Administrative Law Judges Several Courtroom Players Two types of hearings - Master Calendar and the Individual Hearing Who are the Players? DHS- Dept. of Homeland Security Citizenship & Immigration Services (CIS) Immigration & Customs Enforcement (ICE) Customs & Border Protection (CBP) ICE Officers, Trial Attorneys (TAs), Asylum Office Interviewers, Service Centers DOJ - Dept. of Justice Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) Immigration Judges (IJs) HHS- Dept. of Health & Human Services (HHS) Office of Refugee Resettlement (ORR) Unaccompanied Refugee Minors (URM) Div. Of Unaccompanied Children s Services (DUCS) Shelter Workers, Therapists, Field Coordinators State Courts Juvenile Court: family court, juvenile delinquency, probate court 3

4 The Master Calendar Hearing The Individual Hearing Enter your Appearance Request an adjournment, if necessary Do the pleadings State forms of relief your client will be seeking File applications for relief Update the court re: status of on-going proceedings Schedule the individual hearing This is the trial Present documentary evidence (prior to hearing) Present witnesses (your client; others if possible) Direct examination Cross examination by ICE counsel Closing statement Generally, Judge issues decision immediately upon conclusion of the hearing Common Forms of Relief for Children Asylum Voluntary Departure Special Immigrant Juvenile Status (SIJS) U status: victims of serious crime T status: trafficking victims Temporary Protected Status Asylum 8 USC 1158(b)(1), INA 208(b)(1) governs asylum Definition of Refugee Any person who is outside any country of such person s nationality and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protections of, that country because of persecution OR a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. -8 USC 1101(a)(42), INA 101(a)(42) Potential Asylum Claims for Children Recruitment as child soldier or gang member Child forced into prostitution or marriage Female genital mutilation (FGM) Political activity of child or his/her parent Child targeted based on sexual orientation Vulnerability as street child Victim of domestic violence or gang violence Other forms of persecution or abuse Voluntary Departure An alternative way to leave the United States without receiving an order of deportation or removal. Child can arrange his/her own departure within the time period given by the Judge. Maximum time allowed: 120 days from master calendar hearing 60 days from individual hearing May have to post a bond, demonstrate travel document (passport), or present proof of travel arrangements Should obtain proof of timely departure Failure to depart voluntarily will result in a removal order being issued; penalties ensue. 4

5 Special Special Immigrant Immigrant Juvenile Juvenile Status Status Children who have been the victims of abuse abandonment or neglect Pathway to legal permanent residence State court must make SIJS findings File I-360 application with USCIS Adjustment adjudicated by USCIS or IJ U Status U non-immigrant status: Victims of certain crimes listed in INA Helpful in investigation or prosecution of crime Pathway to legal permanent residence T Status T non-immigrant status: Victims of severe form of trafficking Complied with law enforcement unless under age 18 Removal would cause extreme hardship Pathway to legal permanent residence Temporary Protected Status For citizens of designated countries Present in the U.S. on required date Natural disasters, civil war Some have tried derivative TPS for children Temporary status, not a pathway to permanent residence What Difference Does a Lawyer Make? Under current U.S. law, there is no right to appointed counsel in immigration removal proceedings, which are considered civil, rather than criminal in nature, even if the respondent is a child. A CHILD WITHOUT AN ATTORNEY IN IMMIGRATION COURT MUST FACE THE FOLLOWING ALONE: An adversarial system that includes the government s lawyer and the Immigration Judge Pleadings to the allegations and charges set out in the Notice to Appear (the charging document) Making requests for relief under U.S. immigration law Filing appropriate forms and supporting documents in English by certain deadlines Meeting the burden of proof in an adversarial hearing Trying to understand the nature of the proceedings, as well as the consequences of the Immigration Judge s Order 5

6 Why do we need volunteers? Children who proceed without an attorney are three times more likely to be deported and sent back to uncertain and often perilous fates. No child should have to face immigration court alone. Volunteers (cont.) Programs like KIND and CLINIC help children find pro bono attorneys in law firms, corporations and elsewhere in the legal community. We need compassionate and committed people to help these children. It s an opportunity to change the life of a child forever. The Role of the Advocate Affecting the Outcome: Answer the child s questions about the legal proceeding Address the child s fears Explain the legal options Prepare application(s) for relief Accompany/represent the child in court By working with an unaccompanied child, an attorney can: Make sure the child understands the legal proceedings and the available legal options Make it easier for the Judge to evaluate the case by presenting a well-researched, welldocumented application for relief Ensure that each child appearing in Immigration Court receives fair treatment Getting Involved KIND matches children in proceedings with pro bono attorneys and offers the attorney training and support KIND has offices in seven cities, has partnered with more than 100 major law firms and corporations KIND cities: Baltimore, Boston, Houston, Los Angeles, New York City, Newark, Washington, DC Training and Support KIND hosts trainings about the immigration process and legal remedies. No immigration experience required; KIND has trained more than 2,000 attorneys. KIND s staff of Pro Bono Coordinators in the various sites provides ongoing support and mentorship to pro bono attorneys through the duration of the cases. 6

7 MAKE A DIFFERENCE IN THE LIFE OF A CHILD Contact one of KIND s Pro Bono Coordinators Contact Alice Fitzgerald, National Attorney Coordinator for Pro Bono Recruitment afitzgerald@supportkind.org Forms of Relief Served by the National Pro Bono Project for Children *Visit for complete case acceptance criteria. IAN Resources Visit the IAN Immigrant Children s Issues library for comprehensive resources on: Children and Asylum Children in Detention Children and Immigration Enforcement Children in Removal Proceedings And More Join the discussion on Children s Issues on the IAN Community Forum Join the Immigration Advocates Network Join a community of over 4,000 advocates dedicated to protecting and promoting the rights of immigrants in the United States. To learn more, visit 7