Immigration Issues in Child Welfare Proceedings National Council of Juvenile and Family Court Judges June 2014 Steven Weller and John A. Martin Center for Public Policy Studies Immigration and the State Courts Initiative
Steven Weller sweller@indra.com; (303) 494-4268 John A. Martin jamartin@indra.com; (303) 449-0125 Center for Public Policy Studies http://www.centerforpublicpolicy.org
Learning Objectives Participants will be able to: Identify different types of immigration status Anticipate how the immigration status of the parties might affect the process, outcomes and range of available options in a dependency case Identify how actions in a dependency case or a concurrent delinquency case might either jeopardize a juvenile s immigration rights or provide an opportunity for a juvenile to adjust to lawful status Identify other provisions under Federal immigration law for an abused juvenile to adjust immigration status Identify people who might need the advice of immigration counsel 3
Areas of Misalignment Between Federal Immigration Law and State Courts 4
Sources of Misalignment Inherent Tension Between State Court Purpose and Role and Immigration System Role in American Society Historically State Court Needs Not Considered in Federal Immigration Law, Policy and Practice State Court Actions and Interdependencies Between State Courts and Immigration System Often Expose Inconsistencies, Lack of Clarity, and Other Weaknesses of Federal Immigration Law, Policy, and Practice 5
State Court v. Federal Immigration System Purpose and Roles Purposes and Roles of State Courts include: punishment; separating the dangerous from rest of society; rehabilitation; restoration/making victims whole; protecting the vulnerable; adjudication disputes between individuals; doing individual justice in individual cases; assuring justice and the appearance of justice; and maintaining official records. Federal Immigration Purposes and Roles include determining who should be in the US for how long and under what conditions; who should not be in the US and why; and who should become a US Citizen. 6
Key Points of Misalignment in Child Welfare Cases Best Interests of the Child Determination in Federal Immigration Law and State Law The Effect of Immigration Detention on Dependency Cases The Federal Immigration Consequences of State Juvenile Delinquency Dispositions 7
Categories of Immigration Status 8
U.S. Citizens and Aliens U.S. citizens can t be excluded or deported/removed from the United States. All persons who are not U.S. citizens are aliens. Aliens can be refused admission to or deported from the U.S. Categories include: Lawful permanent residents Temporary visa holders (diplomats, tourists, students, athletes, performers, temporary workers, etc.) Persons in the U.S. by administrative grace, including asylees and refugees Persons in the U.S. without authorization
U.S. Citizenship How Acquired By birth in the U. S. By naturalization Automatically acquired by statute At birth - by birth abroad to U.S. parent or parents Derivative, during childhood upon naturalization of parent(s)
U.S. Citizenship Through Naturalization Lawful permanent residents (green card holders) and members of the U.S. military during designated combat periods can apply to become a U.S. citizen by naturalization Must have held lawful permanent resident status for a specified amount of time (usually 5 years, 3 years for spouses of U.S. citizens), with rare exceptions Must not be deportable Must show Good Moral Character Must be 18 years of age
Lawful Permanent Residents LPR is able to stay and work in the United States permanently unless loses LPR status by engaging in certain behaviors LPR status is never automatic and always requires an application process
Obtaining Lawful Permanent Residence Three major avenues Family Sponsored Employment-based Diversity Lottery Other paths for smaller numbers including refugees, asylees, and special immigrants
Lawful Permanent Resident Status How Lost Become deportable, such as by conviction of certain crimes or engaging in certain other behavior Leave the United States while inadmissible, thus unable to gain reentry Abandon LPR status by remaining too long outside United States
Unauthorized Immigrants Generally entered without inspection (55%) or overstayed some visa (45%) No current lawful immigration status Might have applied for or be eligible to apply for lawful status In the future might become eligible to apply for lawful status
Some Ways to Move From Unauthorized to Lawful Status Asylees: Persons with well-founded fear of persecution if returned to home country (persecution must be on account of a protected ground) U Visa for certain crime victims T Visa for trafficking victims Status under VAWA for certain categories of abused spouses and children Special Immigrant Juvenile Status (SIJS) Cancellation of a removal order
Immigration Benefits Requiring a Showing of Good Moral Character Eligibility to become a naturalized citizen Eligibility of a VAWA Self-Petitioner for LPR status Eligibility of a T Visa holder for LPR status Eligibility of a non-permanent resident for cancellation of a deportation order or adjustment to LPR status Eligibility of a non-permanent resident battered child or spouse for cancellation of a deportation order or adjustment to LPR status
The Federal Actors 18
The Federal Agencies Department of Homeland Security U.S. Department of Justice, Executive Office of Immigration Review State Department
Department of Homeland Security USCIS Citizenship and Immigration Services Adjudicates applications ICE Immigration and Customs Enforcement Apprehends and detains aliens for removal Represents government in removal proceedings before Immigration Court CBP Customs and Border Protection Conducts border inspections Can order expedited removal without hearing for certain inadmissible persons
Executive Office for Immigration Review U.S. Department of Justice Immigration Courts Board of Immigration Appeals (BIA), Falls Church, Virginia Office of Chief Administrative Hearing Officer (OCAHO)
Federal Courts U.S. Circuit Courts of Appeals Serve as the appeals courts from the immigration courts Circuits sometimes differ in their interpretation of Federal immigration law Immigration courts are bound by the interpretation of Federal immigration law in their respective Circuits U.S. Supreme Court
Immigration Issues in Dependency Cases 23
Why Knowledge of Immigration Issues is Important in Dependency Cases Immigration status of parents or children can have important consequences in planning for foster care, family reunification or independent living A dependency case may form the basis for an application for Special Immigrant Juvenile status Immigration law has no concept of the best interests of the child in removal proceedings Understanding of family dynamics may turn on knowing about family immigration issues
Immigration Issues That Affect Conditions for Family Reunification Immigration status can affect whether conditions for family reunification can be met by impacting: Eligibility to work Ability to obtain a driver s license where parental consent is required Eligibility for services Effect of ICE holds and immigration detention 25
Ability to Meet Conditions for Reunification or Conditions of Alternatives to Detention Completion of counseling or other services may be a condition for parents to obtain return of a child removed from the home in a dependency case, or for a juvenile to avoid detention in a delinquency case Immigration status may affect eligibility for benefits or services under provisions of Federal immigration law and, in some states, provisions of state law Immigration status may affect eligibility to work, which in turn affect the ability of a non-citizen to pay for required counseling or other services ordered by the juvenile court 26
Limits on Availability of Service Options The availability of services in different languages The availability of culturally appropriate services Conditions for reunification that cannot be met by undocumented immigrants who are not eligible to work Services that are not available to juveniles or parents who are undocumented immigrants, including medical services, mental health services, and financial assistance 27
Special Immigrant Juvenile Status 28
Special Immigrant Juvenile Status Special immigrant juvenile status requires a finding by a court of juvenile jurisdiction in the U.S. that: The juvenile is declared dependent on the court; Reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and There has been an administrative or judicial finding that it would not be in the best interest of the juvenile to be returned to the juvenile s parents or country of origin. The dependency case must not have been filed as a sham solely to obtain special immigrant status. 29
Special Immigrant Juvenile Status, Cont. The court filing may be made by a state agency or by a private individual such as a family member The juvenile court must retain jurisdiction until the juvenile is granted SIJ status At the time of filing the juvenile must continue to be dependent on the juvenile court and eligible for longterm foster care An unmarried alien under the age of 21 who meets the conditions listed above may apply for SIJ status as long as the alien is still under the jurisdiction of the dependency court 30
SIJ Status Additional Requirements If the juvenile is in removal proceedings, the application for SIJ status is made to USCIS, and once granted, the application for LPR status is made before the immigration court judge In the case of an unaccompanied refugee minor (URM) who is in the physical and legal custody of the Office of Refugee Resettlement (ORR), a juvenile court must obtain the consent of ORR to make custody or placement decisions for the minor 31
SIJ Status: Definitions of Juvenile Court and Dependent A juvenile court is defined as a court having jurisdiction under State law to make judicial determinations about the custody & care of juveniles. Dependency, guardianship, probate and delinquency courts are examples. A dependent is a child legally committed to, or placed under the custody of, an agency or department of the State, or an individual or entity appointed by a State or juvenile court. Placements in foster homes, group homes, with relatives or with guardians qualify. 32
International Social Services In the following circumstances, the assistance of an international social service provider may be needed Judges may have need for home studies and assessments to be made in a foreign country to determine whether it is in the best interest of the child to be returned to its country of origin Judges may need assistance in locating family members in other countries 33
SIJS and USCIS The requisite findings in a juvenile court permit application to USCIS to become a special immigrant juvenile and adjust status to LPR The juvenile court does not make the determination of eligibility for SIJ status SIJ and LPR status are not automatic based on juvenile court findings Juveniles who have been approved for SIJ status are eligible to work Most grounds of inadmissibility still apply
Bars to Special Immigrant Juvenile Status Some grounds of inadmissibility apply, although most can be waived by USCIS. The most problematic areas of conduct that may make a juvenile ineligible for SIJ status include the following: Drug trafficking or being a drug addict Sex offenses Violent offenses Gang-related offenses 35
SIJ Status and Delinquency Proceedings A delinquency proceeding that results in state dependency can serve as the basis for an application for special immigrant juvenile status While an adjudication of delinquency is not a criminal conviction for immigration purposes, admissions made in a delinquency proceeding could make a juvenile ineligible for SIJ status
SIJ Status and Family Immigration A person who becomes a Lawful Permanent Resident through SIJ status will no longer be considered the child of his or her parents for immigration purposes, even if parental rights were not terminated The child will thus not be able to use the lawful status attained through SIJ status as a means to obtain lawful status for his or her parents This bar applies to both parents, even if SIJ status was obtained due to abuse, neglect, or abandonment by only one parent. 37
Juvenile Trafficking Victims 38
Identifying a Juvenile Trafficking Victim Juveniles in the juvenile justice system may be victims of human trafficking. Prostitution is the primary form of human trafficking for juvenile girls. Distinguishing between a prostitute and a victim of human trafficking can be difficult. Trafficking victims may also engage in other illegal activities for their traffickers, such as selling drugs or recruiting other victims for their traffickers. Trafficking victims may commit status offenses such as runaways or truancy. Trafficking of children by family members, for sex or labor, may arise in an abuse or neglect proceeding. A trafficker may try to get guardianship over a victim. 39
Special Issues Faced By Trafficked Juveniles There may be no secure housing available for a juvenile victim of sex trafficking unless the juvenile is convicted of prostitution and sentenced to a juvenile detention facility. The conviction, which is aimed at protecting the juvenile, may end up making an immigrant juvenile ineligible for Special Immigrant Juvenile status or discretionary immigration benefits requiring a showing of good moral character. If a trafficked juvenile also engages in other illegal activities for a trafficker, such as selling drugs or recruiting other juveniles, that additional criminal behavior, if admitted to in a delinquency hearing, could also make the victim ineligible for Special Immigrant Juvenile status or discretionary immigration benefits requiring a showing of good moral character. 40
Special Issues, Cont. Some states have options for certain juveniles charged with prostitution to be classified as sexually exploited juveniles and sent to diversion programs rather than being convicted of prostitution. One state makes it an affirmative defense to a charge of prostitution that the defendant was either a victim of human trafficking or under the age of 18 at the time of commission of the act. If a juvenile is ineligible for SIJ status due to criminal activity but is determined to be a victim of human trafficking, the juvenile may be eligible for a T visa as a victim of human trafficking. 41
T Visas for Human Trafficking Victims The T visa is a non-immigrant visa available for individuals who have been the victims of human trafficking and meet the following requirements: The person is the victim of a severe form of trafficking. Federal immigration law classifies any sex trafficking of a person under age 18 as severe trafficking. If the person is 18 or older, the person is complying with a reasonable request to assist in the investigation or prosecution of the traffickers. The maximum length of stay under the T visa status is four years, unless extended. The holder of a T visa is eligible to apply for lawful permanent resident status after three years. The person must show good moral character. 42
Indicators of Trafficking Victims Some possible indicators that a juvenile may be a human trafficking victim include: Homelessness Lack of education or not attending school Work in massage parlors, dance halls, or other similar establishments Unexplained bruises Unusual behavior, such as uncooperativeness, fear, or anger Dependency relationships with older adults Possession of unusually expensive items such as jewelry or expensive cell phones 43
Immigration Rights of Abused Spouses and Children Under The Violence Against Women Act (VAWA) 44
VAWA Self-Petitioner VAWA provides self-petitioning opportunities for persons who suffer battery or extreme mental cruelty by a US Citizen or Lawful Permanent Resident spouse or parent An abused child may self-petition without his/her parent Derivative provisions permit petitions to include children of abused spouses, or the non-abusive parent of abused children, even if they were not abused An application filed after separation or divorce must be filed within two years of the divorce Must show good moral character
Definition of a Child for VAWA Purposes An unmarried person under age twenty-one, and Has one of the following relationships to the abuser Born in wedlock Stepchild who was under age eighteen at the time the marriage creating the status of stepchild occurred Born out of wedlock, if legitimated or acknowledged by father Adopted while under age sixteen, if in the adoptive parent s physical and legal custody for two years 46
Proving Abuse for VAWA Self-Petitioner Status The following may be used to prove abuse in an application to USCIS for VAWA self-petitioner status Reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, other social service agency personnel Letters from advocates Protection orders Allegations in divorce petitions Reports on police calls to petitioner s home 47
Eligibility of Battered Spouse or Child for Cancellation of Removal Order A battered spouse or child found removable by an immigration court and not eligible for VAWA selfpetitioner status may still be eligible for cancellation of the removal order and adjustment to LPR status The alien must have been subject to battery or extreme cruelty by a citizen or LPR spouse or parent Some grounds of inadmissibility or deportability apply Must be of good moral character Must show that removal would result in extreme hardship to the alien or the alien s child or parent 48
Eligibility for Work or Services 49
Who is Legally Eligible to Work? Lawful permanent residents Conditional immigrants Refugees and Asylees Aliens paroled into the U.S. as refugees Juveniles who have been approved for Special Immigrant Juvenile Status (SIJS) VAWA self-petitioners whose application has been approved
Who May Apply For Eligibility to Work? Conditional immigrants who fail to file a timely application for LPR status pending request for waiver, if removal proceedings have been stayed Aliens paroled into the U.S. for humanitarian reasons or for public benefit to pursue an application for admission Aliens who have applied for asylum or withholding of removal may apply for employment authorization 150 days after completing the application for asylum Aliens who have applied for adjustment to LPR status
Eligibility for Federally-Funded Benefits Qualified aliens who are generally eligible for federallyfunded benefits include aliens who are: Lawfully admitted for permanent residence Granted asylum or admitted as a refugee Paroled into the U.S. for a period of at least 1 year Granted withholding of deportation Granted conditional entry Cuban and Haitian entrants Approved or have a petition pending as a VAWA selfpetitioner or battered spouse or child
Eligibility for State or Local Benefits The following state or locally funded benefits are available only to aliens who are (1) qualified aliens, (2) nonimmigrants, or (3) aliens paroled into the United States for less that one year Any grant, contract, loan, professional license, or commercial license Any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit 53
Eligibility for State or Local Benefits, Cont. The following state or locally funded benefits are not subject to the above limitations on eligibility Assistance for health care items and services that are necessary for the treatment of an emergency medical condition Short-term, non-cash, in-kind emergency disaster relief Public health assistance for immunizations Programs, services, or assistance necessary for the protection of life or safety provided as in-kind services without regard to income or resources 54
Eligibility for State or Local Benefits, Cont. A State may provide that an alien who is not lawfully present in the United States is eligible for any state or local public benefit for which such alien would otherwise be ineligible, but only through the enactment of a state law after August 22, 1996 which affirmatively provides for such eligibility 55
Roles of Other Justice System Actors 56
Roles of the Justice System Actors Prosecutors Defense attorneys Guardians ad litem Probation officers Child protective workers Court clerks Adversary counsel for juveniles in delinquency proceedings Court appointed special advocates (CASA) Interpreters Law enforcement officers 57