Defending Immigrant Children in Removal Proceedings. Elizabeth Frankel The Young Center for Immigrant Children s Rights at the University of Chicago

Transcription

1 Defending Immigrant Children in Removal Proceedings Elizabeth Frankel The Young Center for Immigrant Children s Rights at the University of Chicago

2 Overview Unaccompanied Immigrant Children in the United States Legal Relief for Children: 1. Special Immigrant Juvenile Status 2. Asylum 3. Deferred Action

3 Unaccompanied Immigrant Children Under 18 years of age No lawful immigration status in the U.S. No parent or legal guardian in the U.S. available to provide care and physical custody 6. U.S.C. 279(g)(2)

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5 Child Migration

6 Increasingly Dangerous Journey

7 May s Journey

8 Bus from Fujian to Hong Kong

9 Flight to Russia

10 Flight to Italy

11 Flight to Mexico

12 Flight to Cuba

13 Flight to Guatemala

14 Bus to Mexico

15 By foot and bus through Mexico

16 Removal Proceedings for Kids

17 Special Immigrant Juvenile Status Provides protection to children who have suffered abuse, abandonment or neglect by their parents.

18 INA 101(a)(27)(J) (27) The term special immigrant means (J) an immigrant who is present in the United States who has (i) been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States.and whose reunification with one or both of the immigrant s parent s is not viable due to abuse, neglect, abandonment, or a similar basis found in State law. (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien s best interest to be returned to the alien s or parent s previous country of nationality or country of last habitual residence.

19 INA 101(a)(27)(J) (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that (I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and (II) no natural parent or prior adoptive parent of any alien provided special immigrant status shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter

20 Three Step Process for SIJS

21 State Court Order Must get a dependency or predicate order from a juvenile court judge who finds that: 1) Child cannot reunify with one or both parents because of abuse, neglect or abandonment or other similar basis 2) It is not in the child s best interests* to return to his/her country of origin *Only best interests standard in immigration law

22 Hypothetical Sara was born in Honduras. After Sara was born, her father left her mother and never provided any support to Sara. Sara s mother struggled to care for her daughter and when Sara was 10 years old, her mother migrated to the U.S. to make money to send back to Sara. Unfortunately, Sara has not heard from her mother in over 2 years. In Honduras, Sara was left in the care of her uncle. Sara s uncle regularly beat her and would not allow her to go to school. When Sara was 17 years old, her aunt, who lives in the United States, sent for Sara to come live with her. Sara was apprehended and is now in the custody of ORR.

23 Filing I-360 with USCIS (1) CIS must determine whether an alien is eligible for classification as a special immigrant under section INA 101(a)(27)(J); 8 C.F.R ; TVPRA 235(d)(1) Under 21 years of age Unmarried Who has been declared dependent upon the court or who has been legally committed to the care of an individual or entity in the U.S. Who cannot be reunified with one or both parents as a result of findings of abuse, abandoned or neglect and Who cannot be returned to his or her country of residence (2) CIS must give consent = issue a decision as to whether the application is bona fide.

24 Other Requirements 1. Possible Interview 2. CIS should not look behind the state court order. 3. Decision must be issued within 180 days.

25 Benefits and Consequences of Obtaining SIJS 1) Child can adjust to LPR status immediately. 2) Child is eligible to enter the Unaccompanied Refugee Minors program--federal foster care program that program.

26 What are some of the unique challenges for children in proving asylum claims?

27 Elements of Asylum 1) Past persecution or 2) Well-founded fear of future persecution 3) On account of race, religion, ethnicity, political opinion or membership in a particular social group 4) By a government actor or someone who the government is unwilling or unable to control

28 Asylum for Children 1) Unaccompanied minors are entitled to an affirmative asylum interview under the TVPRA 2) One year bar does not apply to unaccompanied children 3) Must still meet the same standards as an adult

29 Social Group: Developing Law Child abuse or abuse of street children Former child soldiers Gang membership/former gang membership Physical or mental disabilities

30 Benefits of Asylum Ability to apply for lawful, permanent resident status after one year. Derivatives & once U.S. citizens, may apply for parents Work Authorization after 150 days Entry into URM program

31 Additional Forms of Relief 1) U Visa: For victims of crime in the United States who cooperate with law enforcement. INA 101(a)(15)(U). 2) T Visa: For victims of a severe form of trafficking in persons (either for labor or for sex). INA 101(a)(15)(T)(i). 3) Voluntary Departure: For children who wish to return to their home country without penalty.

32 Applies to children who: Deferred Action 1) Have lived in the U.S. for at least 5 years; 2) Arrived before the age of 16; 3) Are not over 30 years of age at the time they apply; 4) Are of good moral character; 5) Are attending school 6) August 15 th applications will be accepted

33 Pro Bono Organizations Chicago National Immigrant Justice Center (NIJC) KIND (Kids in Need of Defense) EOIR List of Free Legal Service Providers by Jurisdiction

34 The Young Center for Immigrant Children s Rights