Undocumented and Abused Kids: Who They Are and How We Can Help Them August 15, 2012

Undocumented and Abused Kids: Who They Are

and How We Can Help ThemAugust 15, 2012

NACC National Child Welfare, Juvenile and Family Law Conference

The Latin American Association2750 Buford Highway NE Atlanta, GA 30324404-471-1889 (Immigration Services)

•The LAA offers programs and services for Latino and non-Latino clients designed to empower them to achieve academic, social and economic advancement.

•Programs offered include: community & family services, employment services, youth programs, ESOL and other educational programs, Spanish classes, translation services and immigration services.

•The Immigration Services Department assists indigent immigrant clients with family petitions, domestic violence cases, applications to adjust status to permanent resident, citizenship, waivers of inadmissibility, asylum, immigration cases of juveniles and defense in immigration removal proceedings.

Undocumented & abused kids: who are they?1) Children who have just arrived in the US and who enter without lawful documents (“EWI”)

Federal responsibilities for Federal responsibilities for juvenile immigrant childrenjuvenile immigrant children

The Homeland Security Act of 2002 (“HSA”) reorganized federal responsibilities for juvenile aliens. Prior to the HSA, the former INS was responsible for apprehending and detaining all juvenile aliens. The Homeland Security Act of 2002 created the Department of Homeland Security (“DHS”).

DHS has assigned juvenile responsibilities to the Bureaus of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”). Both were given responsibility for apprehending, processing, and transporting all juvenile aliens.

Office of Refugee Resettlement (“ORR”), a section of the U.S.

Department of Health and Human Services, was assigned responsibility for caring and housing unaccompanied juvenile aliens who are detained by DHS pending resolution of immigration cases enforced by DHS.

Undocumented children in the USA look at the numbers

•In FY 2010, CBP reports that it apprehended approximately 29,624 minor children along US borders, and that 59% of these children were unaccompanied minor children (“UAC”). •In FY 2011, the total number of minor children apprehended declined to around 22,892 minor children. However, 70% of these minor children were UACs.

•“Unaccompanied”: a non-citizen who•Does not have lawful immigration status in the US;•Is under the age of 18;•And for whom

•There is no parent or legal guardian in the US; or•There is no parent or legal guardian in the US who is willing and able to provide care and physical custody.

Undocumented children in the USSpecial repatriation rules for unaccompanied Mexican and Canadian minor children

• 8 U.S.C. 1232(a)(2) : unaccompanied children from contiguous countries (Mexico & Canada) repatriated upon apprehension upon determination that

•The child has NOT been a victim of a severe form of trafficking and there is no credible evidence that child will be at risk of being trafficked if returned•The child does NOT have a fear of returning to country of origin•The child IS able to make an independent decision to withdraw his/her application for admission to the US.•The child IS inadmissible to the US

Undocumented children in the USUnaccompanied minor children and the ORR reunification process

•Unaccompanied minor children not repatriated upon apprehension are placed in the custody of ORR, Division of Unaccompanied Children’s Services (“DUCS”) until the child can be placed with a family member or friend or reunified with a parent, if possible.•According to the ORR, about 77% of children in their custody are male and 23% are female. The majority of UACs in custody are 14-17 yrs. old and 17% of kids in their care are under the age of 14.•Most common native countries of UACs in FY 2011:

•Guatemala: 36%•El Salvador: 25%•Honduras: 20%•Mexico: 12%•Ecuador: 3%•Other: 4%

Undocumented children in the USWhy do children come unaccompanied by a parent or adult to the US?

•Seeking reunification with family members•Example: El Salvador•Estimated 40% of population lives in poverty•Approximately 70,000 persons emigrate annually seeking employment abroad

•For exploitive purposes, including trafficking•14,500-17,500 foreign nationals are estimated to be trafficked into the US each year; the majority of these persons are female and under the age of 18.•Top countries of origin for victims are Mexico, the Philippines, Thailand, Guatemala, Honduras and India.

•Escaping war, famine, persecution•It’s estimated that over half of the world’s estimated 20 million refugees and internally displaced persons are children.•2-5% of these children (up to 1 million) are children separated from their parents.

•Escaping abuse, abandonment and neglect in their home countries

Undocumented & abused kids: who are they?2) Children who entered the US with a parent or legal guardian, either EWI or with a non-immigrant visa, years ago and are later abused.

•Many children travel to the US with a parent or legal guardian. These children may have EWI-ed when they were very young or they may have entered lawfully on a non-immigrant status (i.e. with a visitor’s visa) and stayed past the time they were authorized to remain in the US.

•Undocumented immigrants in US estimated to be around 11.5 million.•DHS doesn’t have a way to track those who overstay visas.•Pew Hispanic Center estimated in 2006 there were 4-5.5 million people in US who overstayed their visas.

...so how do we help them?...so how do we help them?

•Special Immigrant Juvenile Status (SIJ) for child abuse, abandonment and neglect victims •U nonimmigrant status for victims of certain crimes•Violence Against Women Act (VAWA) relief for domestic violence victims•T nonimmigrant status for victims of Human Trafficking•Asylum relief for individuals persecuted on account of their race, religion, nationality, political opinion or social group

What is Special Immigrant What is Special Immigrant Juvenile Status (SIJS)?Juvenile Status (SIJS)?

Protection for 1) children who 2) do not have lawful status 3) who have been abused, abandoned or neglected in the U.S. or abroad and 4) for whom parental reunification is not viable. Applies to children who have just crossed the border as unaccompanied

minors. Applies to children who were brought here by family members and grew up

in the United States.

This individual form of protection.

This status requires interplay of federal immigration law, international treaty law and 50 different state child welfare codes.

BRIEF HISTORY OF SIJS: BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT IMMIGRATION AND NATIONALITY ACT AND THE TVPRAAND THE TVPRA

In 1990, Representative Morrison introduced legislation in the House of Representatives (H.R. 4300) that created SIJS.

This became law through the Immigration Act of 1990.

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) made major changes to SIJS eligibility, changing the language needed in state juvenile court orders for SIJS eligibility. Notably, it also 1) created 180-day timeline for SIJS petitions to be adjudicated and 2) sought to prevent age-outs; as long as the child files while s/he is under a valid juvenile court order (in Georgia, by age 18).

William Wilberforce Trafficking Victims William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008Protection Reauthorization Act of 2008

Section 235 of TVPRA …Effective date: March 23, 2009

• SIJS must be adjudicated within 180 days!

• Prevents age-outs

• File by 18- age frozen

• Still in proceedings – grandfathered (effective December 23, 2008)

• Changes the Juvenile Court Order requirements from ‘long term foster care’ to ‘reunification with 1 or both parents not viable’

TVRPA Clarified intentions of Congress in protecting vulnerable foreign born children and enhanced efforts to combat trafficking and ensure safe repatriation when appropriate

• Secretary of State shall negotiate agreements between the U.S. and contiguous countries with respect to repatriation procedures

• No child shall be returned to the child’s country of nationality or of last habitual residence unless returned to appropriate employees or officials [through proper diplomatic channels]

• Implement best practices to ensure safe and sustainable repatriation and reintegration

• Determinations include assessment of country conditions through Department of State’s Country Reports on Human Rights Practices and the Trafficking in Person’s Report


SPECIFICALLY WAIVED

• Public Charge• Labor Certification• Present without admission or

Parole (without inspection)• Stowaway• Misrepresentation/ Fraud• Lack of Valid Entry

Document• Unlawful Presence

WAIVABLE• Health related grounds• Prostitution and

commercialized vice• Alcoholics or people with

“mental, physical disorders”• Drug addicts or abusers• Association with terrorist

organization• Immigration violators• Aliens previously removed


NOT WAIVABLE• Certain crimes (aggravated felonies)• Multiple criminal convictions• Controlled substance traffickers• Terrorist activities

Sec 235(d)(4)(A) provides:

STATE REIMBURSEMENTS!!◦ Increases access to federal funds for state agencies providing services

under section 501(a) of Refugee Education Assistance Act of 1980◦ Makes eligible for placement and services under INA 412(d), in parity

with refugee children◦ Title IV federal financial assistance

Sec 235(d)(4)(B) provides: DFCS REIMBURSEMENTS!!

◦ “[s]ubject to the availability of appropriations,” the federal government shall reimburse the state for state foster care funds expended on behalf of children granted Special Immigrant Juvenile Status.


SIJS eligibility: 5 basic requirementsSIJS eligibility: 5 basic requirements

Under the age of 21 (8 CFR §204.11(c)(1))** Unmarried (8 CFR §204.11(c)(2)) 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 placed under guardianship (INA §101(a)(27)(J))

Whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. (INA §101(a)(27)(J))

For whom it has been determined in administrative or judicial proceedings that it would not be in the child’s best interest to return to her home country (INA §101(a)(27)(J))

BASIC LAW OF SIJS: BASIC LAW OF SIJS: FIVE BASIC REQUIREMENTSFIVE BASIC REQUIREMENTS

REQUIREMENT ONEREQUIREMENT ONE

Under the age of 21

While the federal eligibility criteria extend to age 21, in the state of Georgia, juvenile court extends to age 18.

It may be possible to raise arguments for extension of jurisdiction in special cases.

TVRPA resolved this

REQUIREMENTREQUIREMENT TWOTWO

Unmarried A child’s having his/her own children is not a bar to SIJS.

REQUIREMENTREQUIREMENT THREETHREE

Deprived under State Law 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 (INA §101(a)(27)(J))

◦ Deprived under Georgia Law §15-11-8 Child could be in Independent Living Program, long-term foster care

placement, Permanent Guardianship situation, group home, placed with non-parent relative or living with court-appointed guardians.

REQUIREMENTREQUIREMENT FOURFOUR

Reunification with parent not viable

Whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. (INA §101(a)(27)(J))

◦ Does not require the court to address both parents, one will do Caution: if one parent still caring

for child – not going to work!

◦ Does not require termination of parental rights

REQUIREMENTREQUIREMENT FIVEFIVE

Best interest to remain in current placement

It has been determined in administrative or judicial proceedings that it would not be in the child’sbest interest to return to her home country or last habitual residence

OVERVIEW OF THE SIJS PROCESS:OVERVIEW OF THE SIJS PROCESS:NOT IN REMOVALNOT IN REMOVAL

1. State Dependency Proceedings

2. File Immigration paperwork (“1-step”)1. Form I-360, I-485, I-765 and I-912 (fee waiver)2. If child is 14 years old or older, also must file Form G-325A

Supporting documents to include: state adjudicatory order, child’s birth certificate, with certified English translation, passport with proof of lawful entry (if applicable) and medical exam.

3. Child will have two appointments with Immigration1. Biometrics appointment2. Adjustment of Status interview before USCIS officer

4. LPR (“green card” granted) -- within 180 days of filing

4. Age 18 and if LPR 5 years -- apply for citizenship

OVERVIEW OF THE SIJS PROCESS:OVERVIEW OF THE SIJS PROCESS:IN REMOVAL PROCEEDINGSIN REMOVAL PROCEEDINGS

1. Concurrently -- Child must attend ALL Immigration Hearings -- Dependency Proceedings in State Court

2. File Immigration paperwork (“1-step”) and file motion with Immigration Court to end removal proceedings

3. Child will have two appointments with Immigration1. Biometrics appointment2. Adjustment of Status interview before USCIS officer

4. LPR (“green card” granted) -- within 180 days of filing

4. Age 18 and if LPR 5 years -- apply for citizenship

CAUTION CAUTION

◦ The child must remain under juvenile court jurisdiction at the time the I-360 is filed with USCIS

U Nonimmigrant Status (U visa)U Nonimmigrant Status (U visa)

Provides immigration protection to victims of certain types of crimes

Congress wanted to aid law enforcement in investigating and prosecuting crime by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution

What crimes qualify?What crimes qualify?Rape Involuntary servitudeTorture Slave tradeTrafficking KidnappingIncest Unlawful criminal restraintDomestic violence False imprisonmentSexual assault BlackmailAbusive sexual conduct ExtortionProstitution ManslaughterSexual exploitation MurderFemale genital mutilation Felonious assaultBeing held hostage Witness tamperingPeonage Obstruction of justice

*Includes attempts, conspiracy, or solicitation.*Includes any similar activity where the nature and elements of the unlisted

crime are substantially similar.

Eligibility RequirementsEligibility Requirements

In order to be eligible for a U visa a victim must:

Be a victim of qualifying criminal activity and suffered substantial physical or mental abuse as a result of the crime.

Possess information about the qualifying criminal activity.

Have been, is being, or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity.

Be a victim of criminal activity that violated a U.S. law.

Filing a U-visaStep 1) Obtaining a U-visa law enforcement certification

• Form I-918B• Certifying official must be a Federal, State or local law enforcement agency,

prosecutor or authority, or Federal or State judge with the responsibility for the investigation or prosecution, conviction or sentencing of the qualifying criminal activity.

• *Child Protective Services is one of the enumerated agencies that can complete and sign a U-visa certification!!!*

• Must certify that the applicant:• Is a victim of a qualifying criminal activity;• Possesses information about the qualifying crime;• Was helpful in the investigation or the prosecution of the crime; and that• The qualifying crime occurred in the US or in a US territory.

Filing a U-visaStep 2) Complete Form I-918, with Forms I-918A for any qualifying derivative family members

• Fill out Form I-918 for principal applicant completely, including supporting documents such as

• No filing fee• Personal statement from applicant describing the crime of which s/he was a victim, including how

this crime affects him/her physically, emotionally and psychologically, with certified English translation (if needed)

• Police reports, hospital records, psychological treatment records (if applicable)• Indictment, charging document, court records (if applicable) • Letters from friends/relatives (*must be LPRs or USCs) with personal knowledge of crime and its

affects on applicant• Copy of applicant’s birth certificate, biographic page of passport, cédula or other government-issued

ID, with certified English translation (if needed)• Copy of applicant’s passport, with proof of lawful entry (if applicable)

• Family members that qualify for derivative status include:• Applicant’s spouse• Applicant’s child• Applicant’s parent• Applicant’s unmarried sibling under age 18

Filing a U-visaSTEP 3) Complete an I-192 (if necessary)

• If applicant did NOT enter the US lawfully (i.e. with a valid visa, border crossing card or other document), s/he will need to complete a Form I-192, Application for Advance Permission to Enter as a Non-immigrant.• $585 filing fee (*Fee waivers available)• Submit a personal statement, with certified English translation, if necessary,

from applicant about how s/he would suffer if I-192 were not approved and s/he were returned to home country• Educational, medical, work opportunities in home country• Resources available in home country to crime survivors• Stigma in home country of being crime survivor• Possibilities of re-victimization

• Derivatives with unlawful entries also must complete I-192

BenefitsBenefits

Can apply for family members

Eligible to work in the US

4 year duration of status (extensions are available)

Can adjust status to lawful permanent resident

Violence Against Women Act (VAWA)Violence Against Women Act (VAWA)

Provides immigration relief to victims of domestic violence

Congress recognized that immigrant victims of domestic violence may remain in an abusive relationship because immigration status is often tied to their abuser.

VAWA is a “self-petitioning” relief that removes control from the abuser and allows the victim to submit his or her own application that are filed without the abuser’s knowledge or consent.

Who Qualifies?Who Qualifies?

Who may file?Spouses - The abused spouse of a USC/LPR (child may be included as a derivative

beneficiary)

Children - The abused child of a USC/LPR◦ Including: The spouse of a USC/LPR whose child has been abused may file a self-petition based

on the abuse of the child. In this case, the parent files based on abuse of the child, but both parent and child benefit.

Parents – The abused parent of a USC (added by VAWA 2005)

VAWA immigration relief applies equally to women and men (this gender neutrality was reiterated by VAWA 2005)


Is or was married to USC or LPRIs child of USC or LPRIs parent of USCMarriage was in good faithSubjected to battery or extreme cruelty during the

marriageResides or Resided with the abuserGood moral character

Filing a VAWA applicationFiling a VAWA application

Fill out Form I-360 completely, with supporting documents, such as◦ No filing fee◦ Personal statement from applicant about her personal history and the abuse

suffered, with certified English translation (if needed)◦ Proof of US citizenship or LPR status of abuser◦ Marriage certificate (if spouse is abuser)◦ Proof of divorce of prior marriage(s) of abuser and/or applicant (if spouse is

abuser)◦ Evidence that the abuser and applicant resided together◦ Proof marriage was in good faith (if spouse is abuser)◦ Evidence of applicant’s good moral character◦ Proof of the abuse

BenefitsBenefits

Can work in the US

Changes to the abuser’s immigration status will not affect the victim’s self-petition

Remarriage after approval does not affect status

Can adjust status to lawful permanent resident

T Nonimmigrant Status (T visa)T Nonimmigrant Status (T visa)

Provides immigration protection to victims of human trafficking

Congress wanted to aid law enforcement in investigating and prosecuting human trafficking by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution

What is trafficking? ◦ Modern day form of slavery◦ migrant workers, sweatshops, sex trade, domestic servitude

Trafficking v. SmugglingTrafficking v. SmugglingSmugglingSmuggling TraffickingTrafficking

PurposePurpose Obtain illegal entry into Obtain illegal entry into the USthe US

Recruiting, transporting, Recruiting, transporting, harboring or receipting persons harboring or receipting persons by force or coercion for the by force or coercion for the purpose of exploitationpurpose of exploitation

ConsentConsent Consent to be Consent to be smuggledsmuggled

May or may not have May or may not have consented, or initial consent consented, or initial consent rendered meaningless by rendered meaningless by coercive or abusive actions of coercive or abusive actions of the traffickersthe traffickers

ResultResult Ends with arrival into Ends with arrival into the USthe US

Involves ongoing exploitationInvolves ongoing exploitation


In order to be eligible for a T visa a victim must:

Be a victim of a severe form of trafficking in persons.

Be physically present in the United States.

Comply with any reasonable requests for assistance in the investigation or prosecution (or be under the age of 18 or cannot participate due to trauma).

Suffer extreme hardship involving unusual and severe harm upon removal from the United States.

Filing a T-visaSTEP 1) Obtaining a T-visa law enforcement certification

• Form I-914B • Completed by a Federal, State or local law enforcement agency,

prosecutor or authority, OR Federal or State judge with responsibility for the investigation or prosecution, conviction or sentencing of the trafficking in persons

• Agency must certify that the applicant:• Was the victim of a severe form of trafficking

• “Severe form of trafficking” includes sex trafficking, forced labor, involuntary servitude, peonage, debt bondage and slavery

• Cooperated with reasonable requests from Federal, State or local law enforcement in the investigation or prosecution of the acts of trafficking of which s/he was a victim

• An applicant does NOT have to meet this requirement if under the age of 18!

Filing a T-visaSTEP 2) Complete Form I-914, with Forms I-914A for any qualifying derivative family members

• Fill out I-914 completely for principal applicant, including supporting documentation, such as• No filing fee• Personal statement from applicant with certified English translation (if

needed) • Copies of police reports (if any)• Copies of court indictments, victim’s advocate statements, etc. (if any)• Applicant’s birth certificate, biographic page of passport, cédula or other

government-issue ID with certified translation (if needed)• Applicant’s passport with proof of lawful entry (if applicable)

• Family members that qualify for derivative status include:• Applicant’s spouse• Applicant’s child• Applicant’s parent• Applicant’s unmarried sibling under age 18

Filing a T-visaSTEP 3) Complete an I-192 (if necessary)

• If applicant did NOT enter the US lawfully (i.e. with a valid visa, border crossing card or other document), s/he will need to complete a Form I-192, Application for Advance Permission to Enter as a Non-immigrant.• $585 filing fee (*Fee waivers available)• Submit a personal statement, with certified English translation, if necessary,

from applicant about how s/he would suffer if I-192 were not approved and s/he were returned to home country• Educational, medical, work opportunities in home country• Resources available in home country to trafficking survivors• Stigma in home country of being trafficking survivor• Possibilities of re-victimization

• Derivatives with unlawful entries also must complete I-192

BenefitsBenefits

Can apply for family members

Eligible to work in the US

4 year duration of status (extensions are available)

May adjust status to lawful permanent resident

AsylumAsylum

How does one qualify for asylum?◦Applicant must show that s/he meets the definition of

“refugee”◦Refugee = Person who is “unwilling or unable to return” to

his/her country of nationality or last habitual residence because of past persecution or a “well-founded fear” of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion. INA §101(a)(42), §208(a). Generalized fear of return due to high crime rates or deteriorating country conditions

often do NOT qualify an applicant as a “refugee” under this definition!

AsylumAsylum

What is “persecution”?◦Applicant must also show “Either a threat to the life or

freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

◦On account of: race, religion, nationality, membership in a particular social group, or political opinion

AsylumAsylum

Persecution by whom?◦The Government or a person or group that the

Government is unwilling or unable to control◦*Applicant must also show that s/he cannot

relocate within his/her country of origin.

AsylumAsylum

What constitutes a “particular social group”?◦Group of people who share a common, immutable (innate)

characteristic (e.g. color, kinship, shared experience)◦Must be able to define your group (must be “particular”)

and group must be “socially visible”◦No clear definition of what is and is not a “particular social

group”

AsylumAsylum

Asylum is NOT easy to win and a grant of asylum is discretionary!◦Denial factors: e.g. length of time person lived in a third

country; commission of serious fraud to circumvent orderly immigration procedures

◦In most cases (i.e. with adults and accompanied minor children), asylum claims must be filed within 1 year of arrival to the US! 1-year deadline waived with unaccompanied minor children May also be waived if can show that extraordinary

circumstances prevented timely filing

AsylumAsylum

How does one apply for asylum?◦ Affirmatively: file Form I-589 with US Citizenship and Immigration

Services (USCIS) if applicant is not in removal proceedings◦ Defensively: file Form I-589 before Immigration Judge if applicant is

in removal proceedings Form I-589 needs to be filled out completely, with supporting documentation

of persecution! What are examples of supporting documents?

◦ Personal statement from applicant, with certified English translation (if needed)◦ Country condition reports◦ Medical/psychological evaluation(s)◦ Affidavits from witnesses◦ Expert evaluations

Benefits of asylumBenefits of asylum

Can live and work in the U.S.

Can petition for derivative family members (spouse and children under 21)

Can file for legal permanent residence status and eventually U.S. citizenship.

Case studyHow can we help?

•You are a volunteer attorney who is called to meet with Mario, a 15-year-old boy who is scheduled to appear in a delinquency hearing before your county’s juvenile court. When you meet with Mario, you learn that he was arrested late one evening by a police patrol for loitering. Mario was also intoxicated at the time of his arrest. When the police officer asked Mario where his parents were, Mario was unresponsive. Mario reveals to you that his parents are both in Honduras; Mario states that an uncle molested Mario throughout his childhood, and that, when he reported it to his parents, they never called the police and continued to allow the uncle to visit the home. Mario says he decided to come to the US when he was 13 in order to escape the abuse and to live with his sister, who had immigrated to the US when Mario was 7. Mario said that he met a “guia”, or “guide” in his hometown who agreed to assist Mario in traveling to the US. Mario says that this guide charges $10,000, but because Mario did not have the money he agreed to let Mario pay him back once Mario arrived in the US. Upon arriving, associates of the guide told him that he must work for them to pay back his debt. Mario reveals that he works as a prostitute, and that he was working the night he was arrested. He did not tell the arresting officer because he was afraid and ashamed. Mario’s sister resides in a nearby town, but he feels that he must first work off his debt to the guide before he can attempt to find her. Mario is frightened and does not want to return to Honduras. Does Mario qualify for any immigration remedies?

Documents

Undocumented and Abused Kids: Who They Are and How We Can Help Them August 15, 2012