Office of Child’s Representative October 2, 2013 Immigration Issues for Court-Involved Youth and Families Kathleen M. Glynn Children’s Program Rocky Mountain Immigrant Advocacy Network (RMIAN) www. rmian. org kglynn@rmian. org; (303) 433 -2812, ext. 104
ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK
RMIAN The Rocky Mountain Immigrant Advocacy Network (RMIAN) works to ensure justice for men and women in immigration detention and for immigrant children who have suffered from abuse, neglect, or violence. Our Mission: RMIAN is a non-profit organization that serves low-income men, women, and children in immigration proceedings. RMIAN promotes knowledge of legal rights; provides effective representation to ensure due process; works to improve detention conditions; and promotes a more humane immigration system, including alternatives to detention. Equal Justice Works Fellowship
RMIAN Detention Program Children’s Program Social Services Program Anti-Human Trafficking Program Volunteer Attorney Training Program
IMMIGRATION LAW 101 Sources of Law, Agencies, Terminology
Sources of Law Administrative Law Regime + Power to Detain and Deport (INA Sections 212 & 237) Sources of Law: Immigration & Nationality Act (Title 8 of U. S. Code) Title 8 of the Code of Federal Regulations Board of Immigration Appeals Precedential Decisions; Administrative Appeals Office Circuit Court decisions (10 th & SCOTUS) Internal Agency Policy & Guidance (Memos)
Finding the Law www. uscis. gov INA CFR Agency Memorandum http: //www. justice. gov/eoir/vll/intdec/lib_indecitnet. html BIA case precedents
Agencies: Overview Department of Homeland Security (DHS) Citizenship & Immigration Services (USCIS) Immigration & Customs Enforcement (USICE) ERO: Enforcement & Removal Operations OCC: Office of Chief Counsel Customs and Border Patrol (USCBP) Department of Justice Executive Office for Immigration Review (EOIR): IJs and BIA Department of Health & Human Services Office of Refugee Resettlement
Dept. of Homeland Security Dept. of Justice Citizenship & Immigration Services (CIS) Immigration & Customs Enforcement (ICE) Customs & Border Protection (CBP) Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) ICE Officers, Attorneys (ACCs), Asylum Office Interviewers, Service Centers Immigration Judges (IJs) DHS HHS DOJ State Court 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 Courts & SIJS Predicate Orders
Types of Immigration Status United States Citizen by birth, acquisition, derivation, or naturalization Lawful Permanent Resident after 5 years as LPR, can file to naturalize AKA immigrant visa Refugee and Asylee Nonimmigrant visas temporary stays for specific purpose Overstays EWIs = entry without inspection
Rights of Everyone (Including Undocumented Immigrants) K-12 Public Education (Plyler v. Doe) Life-Saving Emergency Medical Care & Emergency Medicaid Immunizations/Vaccinations Disaster Relief Community Services (Police/Fire/Victims Services) In Colorado: Protection & Services under Children’s & Juvenile Justice Codes for those under 18 Right to remain silent Right to consult with an attorney and be represented in criminal matters Public defenders available in criminal cases All workers--regardless of immigration status--are protected by U. S. Wage and Hour laws and some other labor laws, including Workers Compensation (for on-thejob injuries) and anti-discrimination laws.
Colorado Children’s Code State authority to implement and administer child protective services originates in traditionally recognized state role of parens patriae with regard to children who are not adequately cared for by their guardians. Colorado’s Children’s Code neither creates nor recognizes distinctions based on alienage or immigration status and mandates provision of appropriate services to any child found in Colorado.
Constitutional Considerations The political branches of the federal government have plenary authority over immigration matters. Takahashi v. Fish & Game Commission, 334. U. S. 410 (1948). States cannot compel Congress or the Executive to enforce federal immigration law (Chiles v. U. S. 874 F. Supp. 1334, (S. D. Fla. , 1994)), nor can they implement their own immigration policies unless those policies closely mirror Congress’ clearly expressed intent. De. Canas v. Bica, 425 U. S. 351 (1976).
IMMIGRATION & CHILDREN
Immigration & Children Definition of “child” in the Immigration & Nationality Act (INA) Juvenile Adjudications Removal (deportation) & Custody of Juveniles in the Immigration Context Special Immigrant Juvenile Status (SIJS) Other Pathways to Status Detention and/or Deportation of Parents Question & Answer
Definition of “child” General: under 21 & unmarried for family-based immigration categories, see INA section 101 definitions, and for SIJS Unaccompanied Alien Child (UAC), 6 U. S. C. § 279(g)(2) has no lawful immigration status in the United States: has not attained 18 years of age with respect to whom there is no parent or legal guardian in the United States: or no parent or legal guardian in the United States is available to provide care not status, but a designation with certain advantages, i. e. , asylum filings, VD at government expense, potentially SIJS-eligible; and certain disadvantages, i. e. , will be detained if encountered at border or interior Federal custody determinations (ORR v. DHS) depends on age and whether a UAC or not, see 8 CFR Section 236. 3(a)
Definition of “child, ” con’t. Unaccompanied Refugee Minor (URM) Federal foster (Office for Refugee Resettlement) care for UACs who are granted asylum, SIJS, are eligible for a T Visa, suffer refugee family breakdown, or entered alone as refugees Applications to State Refugee Coordinator (no guarantee “home state” will provide placement) Colorado: LFS URM Program for 5+ years not status, but a designation that makes child eligible for federal foster care placement and public benefits
Consequences of JD cases ICE holds while in juvenile detention or serving a juvenile commitment: identification and arrest by immigration authorities Secure Immigration Detention Removal Proceedings Allegations in removal proceedings that the underlying delinquent behavior triggered a conductbased ground of inadmissibility or deportability Statutory ineligibility for status or discretionary denial of status
ICE Detainers or “Holds” A “detainer, ” or “ICE hold, ” is a request that an agency, such as a juvenile detention facility, notify ICE prior to release of a juvenile so that immigration authorities can arrange to assume custody for the purpose of arresting and removing the juvenile Does not mean that the person is deportable or will be deported; it is an expression of ICE’s intention to seek future custody.
ICE Detainers or “Holds” Legal Authority 8 USC § 1357(d) 8 CFR § 287. 7 ICE Memorandum on Removal Priorities and Prosecutorial Discretion Colorado Division of Youth Corrections Policy, “Committed Undocumented Juveniles, ” Policy 16. 14, Chapter “Admissions, Transfer and Release, effective date: June 19, 2006
Children & Custody (under 18) Flores vs. Reno Settlement Agreement (1997) (addresses detention, release, and treatment of juveniles in custody) UACs: Homeland Security Act, P. L. 107 -296, Section 462, divided functions related to UACs into two: (1) immigration benefits & enforcement (DHS) & (2) care & placement (ORR) Where? DHHS – Office of the Administration for Children & Families – Office of Refugee Resettlement http: //www. acf. hhs. gov/programs/orr/resource/unaccompanied-childrens-services Accompanied Children: 8 C. F. R. Section 236. 3 Detention & Release of Juveniles Under custody of DHS – typically when apprehended with parent Office of Inspector General Report, “A Review of DHS’ Responsibilities for Juvenile Aliens” (2005) http: //www. oig. dhs. gov/assets/Mgmt/OIG_05 -45_Sep 05. pdf CBP’s Handling of UACs: http: //www. oig. dhs. gov/assets/Mgmt/OIG_10 -117_Sep 10. pdf
Removal Proceedings Procedurally and substantively the same as adult: children can be and are deported! No GAL, no court-appointed attorney, no PD-like system (it’s admin law), no best interest standard in removal proceedings Some guidelines around interviewing (not enforceable, agencygenerated) Some protections for minor asylum applicants Juvenile Docket in Denver Immigration Court No FRE: hearsay is admissible, no discovery No Miranda warning or other warnings about self-incrimination
Juvenile Adjudications: BIA “…juvenile delinquency proceedings are not criminal proceedings, …acts of juvenile delinquency are not crimes, and …findings of juvenile delinquency are not convictions for immigration purposes. ” Matter of Devison, 22 I&N Dec. 1362, 1365 (BIA 2000). Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of C-M-, 5 I&N Dec. 327 (BIA 1953)
Juvenile Adjudications: BIA “…juvenile delinquencies are not considered to be crimes within the meaning of the immigration laws and charges relating to the conviction or the admission of the commission of crimes are inapplicable in such cases. ” Matter of C-M-, 5 I&N Dec. at 329. When a juvenile pleads guilty in a delinquency proceeding, she is admitting her status as a juvenile offender, and is not admitting the essential elements of a crime. See also Matter of Devison, 22 I&N Dec. at 1366 (elaborating that “a juvenile delinquency proceeding results in the adjudication of a status rather than conviction for a crime” and that juvenile delinquency adjudications “are civil in nature. ”).
Juvenile Adjudications Typically, adjudications of delinquency are NOT considered criminal convictions for immigration purposes (not a ground of inadmissibility/removability) BUT beware: Juvenile adjudications may be used as evidence that a juvenile has violated a conduct-based ground of inadmissibility or deportability Juvenile adjudications will be taken into consideration as a matter of discretion in all applications for status (and bond, if over 18 years and detained) and must be mitigated with evidence of rehabilitation, treatment, passage of time, family connections, etc. Direct-filed cases
Conduct-based grounds (Sec. 212) Illegal entrants or immigration violators False claim to U. S. citizenship and document fraud Health-related grounds Physical or mental disorder and behavior that may pose, or has posed, a threat to the property, safety, or welfare of self or others. Include any alien who is determined to be a current drug abuser or addict (in accordance with regulations prescribed by the Secretary of Health and Human Services).
Conduct-based grounds (Sec. 212) Controlled substance traffickers “Drug trafficking” = “some sort of commercial dealing, ” Lopez v. Gonzalez, 549 US 47 (2006); “unlawful trading or dealing of any controlled substance, ” Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). Requires evidence of knowing & conscious connection = intent Requires probative & substantial “reason to believe” **keeping record clear of admissions** Security and related grounds: seeks to enter the United States to engage solely, principally, or incidentally in any other unlawful activity is inadmissible. Often used against alleged gang members
Conduct-based grounds (Sec. 212) Prostitution and commercialized vice Being the prostitute or the pimp, not the customer Significant traffickers in persons Money laundering
Conduct-based grounds (Sec. 237) Violated nonimmigrant status or conditions of entry (overstay) Smuggling of persons Failure to register as a sex offender if convicted under section 2250 of title 18, US Code Violation of protection order Government must prove by clear and convincing evidence that the protection order was a domestic violence-related order and that it was violated
Conduct-based grounds (Sec. 237) Drug addict or abuser (now, or at any time after admission) Falsely claiming citizenship Security and related grounds
Direct filed children The criminal grounds of inadmissibility at INA § 212 or deportability at INA § 237 may be triggered Juvenile Offender Exception, INA § 212(a)(2)(A)(ii)(I): CIMT, under 18 at time of commission, committed and released more than 5 years ago Petty Offense Exception, INA § 212(a)(2)(A)(ii)(II): maximum penalty does not exceed 1 year, and term of imprisonment 6 months or less Federal Juvenile Delinquency Act (FJDA). 18 U. S. C. §§ 50315042 (1994 & Supp. II 1996).
Protecting our Kids Constitution & Right to Remain Silent C. R. S. Confidentiality Provisions & Release of Documents Bringing defenses to deportation/applying for status SIJS for court-involved youth Other pathways to status Working with parents who are detained or deported
SPECIAL IMMIGRANT JUVENILE STATUS 8 U. S. C. § 1101; INA § 101(a)(27)(J); 8 C. F. R. § 204. 11
SIJS: Law, Regs, Policy INA Section 101(a)(27)(J), 8 USC Section 1101(a)(27)(J) 8 CFR Section 204. 11 Proposed Regulations: 76 Fed. Reg 54978 (Sept. 6, 2011) USCIS Neufeld Memorandum, Trafficking Victims Protection Reauthorization Act of 2008, HQOPS 70/8. 5 (March 24, 2009). USCIS Yates Memorandum, Memo #3 – Field Guidance on Special Immigrant Juvenile Status Provisions, HQADN 70/23 (May 27, 2004).
SIJS: Law, Regs, Policy INS Cook Memorandum, Special Immigrant Juveniles – Memo #2 Clarification of Interim Field Guidance, HQADN 70/6. 1 -7 -8 (July 9, 1999). INS Cook Memo, INS on Interim Field Guidance Relating to Public Law 105 -119 (Section 113) amending Section 101(a)(27)(J) of the INA – Special Immigrant Juveniles (Aug. 7, 1998). INS Memo from 1998 specifically contemplates that the requisite SIJS findings can be made in delinquency proceedings.
SIJS: Purpose Allows abused, abandoned, and neglected juvenile court dependents to become lawful permanent residents Created by Congress in 1990 Most recently amended on December 23, 2008 by the Trafficking Victims Protection and Reauthorization Act (TVPRA) of 2008, Pub. L. No. 110 -457, 122 Stat. 5044. Requires a juvenile or State court to make several special findings of fact; also known as an “SIJS Order. ” This Order is a prerequisite to petitioning USCIS for SIJ Status. 8 CFR 204. 11(d)(2) “Juvenile” court = “a court located in the U. S. having jurisdiction under State law to make judicial decisions about the care and custody of juveniles. ” 8 CFR 201. 11(a)
Core Requirements Under 21 years of age & unmarried Juvenile Court “dependent” or Juvenile or State Court “has legally committed [minor] to, or placed [minor] under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court” Reunification with “one or both parents” is not viable “due to abuse, neglect, abandonment, or a similar basis found under State law” Not in the child’s best interest to return to country of origin Court will maintain jurisdiction until status is granted
Step One: Predicate Order from Juvenile or State Court In Colorado, the Predicate Order may be issued in: Dependency & Neglect Proceedings Delinquency Proceedings Probate Court / Guardianship Proceedings Reunified UACs in placement with extended family Family Court / Custody Proceedings Foster Care, Social Services Involvement URM Program Especially in “one-parent” cases Adoption Proceedings “those adopted remain considered a juvenile court dependent based on the prior dependency order. ”
Jurisdiction & Placement Child must be under the jurisdiction of a State or juvenile court (see definition above) Child must be “dependent” upon the court or “legally committed to, or placed under the custody of” a State agency, department, or appointed individual
Abuse, Abandonment, Neglect Terms are not defined in the INA. DHS relies on State definitions. By “one or both parents” language permits “one-parent” SIJS cases. “Or similar basis under State law” language gives (for example) delinquency courts greater leeway to enter findings within their jurisdictional authority. Be familiar with State law definitions of the above, as well as with which court has jurisdiction to make which determination (for example, not all State courts can make “abandonment” findings).
Best Interests Juvenile or State court must determine (through briefing, testimony, documentary evidence) that it is in the young person’s best interest to stay in the U. S. , as opposed to returning to home country. Factors to consider/include: family/community support system in US and in home country, emotional well-being and psychological health, medical resources, educational opportunities.
Continuing Jurisdiction Current regulations require that a minor remain under the juvenile or State court’s jurisdiction until the entire immigration process is complete. TVPRA Section 235(d)(6) appears to provide “age-out” protections to those cases where the court’s jurisdiction ends due to age – i. e. , continuing jurisdiction may not be required when the age of the juvenile prevents such continuation. ***this area of law in fluctuation*** Jurisdictional requirement may be at odds with State permanency planning and case completion goals – Court can keep “limited jurisdiction” under 8 CFR 204. 11(c)(5).
Dependency & Neglect Title 19 of Colorado Revised Statutes: Children’s Code Article 3: Dependency & Neglect D&N Proceedings are initiated by county Dep’t of Human/Social Services, see C. R. S. §§ 19 -3312(1), 19 -3 -501(2) Team: court, GAL, county attorney, county caseworker, CASA, foster family SIJS Finding #1: child is adjudicated to be “dependent” upon the court, see C. R. S. § 19 -3 -505; court has authority to determine physical placement, see C. R. S. § 19 -3 -508 SIJS Finding #2: CO law requires court inquiry into whereabouts of parents, possibility of home placement & reunification, appropriateness of other placement, see C. R. S. §§ 19 -3 -213, 19 -3 -508; court can find abuse, abandonment, or neglect, see C. R. S. § 19 -1 -103 (defines “abuse, ” and “child abuse or neglect”), see C. R. S. § 19 -3 -102 (definition of “dependent & neglected”); see C. R. S. § 19 -3 -604 (termination criteria) SIJS Finding #3: best interests control placement, see C. R. S. § 19 -3 -213 SIJS Finding #4: jurisdiction of the court continues until 21 years of age, see C. R. S. § 19 -3205(1)
Delinquency Title 19 of Colorado Revised Statutes: Children’s Code Article 2: The Colorado Juvenile Justice System Delinquency courts have the authority to make decisions about the care and custody of juveniles during the pendency of juvenile proceedings, see C. R. S. § 19 -2 -508 SIJS Finding #1: delinquency courts have the authority to: commit a juvenile to an agency or a department of a State, see C. R. S. §§ 19 -2 -909, 19 -2 -921; to place a juvenile under the custody of a State agency or department, see C. R. S. §§ 19 -2906. 5, 19 -2 -915, 19 -2 -212, 19 -2 -913, or under the custody of an individual or entity appointed by the Court, see C. R. S. §§ 19 -2 -913(1)(a), 19 -2 -912, 19 -1115(7) SIJS Finding #2: CO law requires that the juvenile justice system, via its courts, inquire into the whereabouts of the juvenile’s parents, the possibility of home placement, the possibility of parental reunification, the appropriateness of various placements, as well as the best interests of the juvenile and the community. See C. R. S. §§ 19 -2 -508(1), (3)(IV), (IV)(A)-(C); 19 -2 -906. 5(1), 19 -2 -921(1).
Delinquency SIJS Finding #2, continued: “similar bases under State law: ” parental failure to comply with C. R. S. § 19 -2 -113; or a finding that the parent has subjected the juvenile to aggravating circumstances, see C. R. S. §§ 19 -1 -115(7), 19 -3 -604(1), (2) SIJS Finding #3: Article 2 requires that “best interest” findings be made about juveniles under the Courts’ jurisdiction. See C. R. S. § 19 -2 -102 (stating “the juvenile justice system shall take into consideration the best interests of the juvenile…. ”); C. R. S. § 19 -2 -508(3)(VII) SIJS Finding #4: jurisdiction attaches pending adjudication, see C. R. S. § 19 -2 -508; can maintain jurisdiction post-adjudication if juvenile is placed on probation, see C. R. S. § 19 -2 -104(6); possible authority to maintain supervisory jurisdiction through commitment, see C. R. S. § 19 -2 -104(6) (stating “[t]he juvenile court may retain jurisdiction over a juvenile until all orders have been fully complied with by such person. . ”) (tricky argument before most delinquency judges)
Step Two: Immigration Forms & Applications I-360: Petition for Special Immigrant Juvenile Status G-28 Cover letter & Brief Case Summary Copy of Juvenile or State Court Order Copy of Juvenile’s Birth Certificate I-485: Application for Adjustment of Status (LPR Appl) G-325 A Biographical Information Fees or fee waiver request on I-912 I-693 Medical Exam & 4 passport style photographs I-765 Application for Employment Authorization Records of all juvenile adjudications/criminal convictions & evidence of rehabilitation Other evidence of equities
Step Two: Immigration Procedure If minor is not in immigration custody or removal proceedings, I 360 & I-485 can be filed together with USCIS (Chicago Lockbox) If minor is in removal proceedings, but not in immigration custody, I-360 must be filed with USCIS (IJs do not have jurisdiction to adjudicate I-360); if approved, removal proceedings may be terminated; then proceed with I-485 to USCIS (if terminated) or before IJ If minor is in ORR custody, will need “specific consent” from DHHS if state court is seeking to determine/change custody status or placement of youth. INA Section 101(a)(27)(J)(iii)(I) Congressional mandate to adjudicate within 180 days of filing
Other Considerations At the Adjustment of Status phase (I-485), note that SIJS petitioners have a number of inadmissibility exemptions and waivers available to them. See INA Sections 212, 245(h)(2)(B) USCIS Adjudicators should not “look beyond” the SIJS Order Juvenile adjudications are not criminal convictions for immigration purposes, but may trigger conduct-based grounds of inadmissibility (i. e. , drug use/abuse) and may weigh negatively in the discretionary analysis. A child granted SIJS cannot later petition for his/her biological or prior adoptive parents.
Benefits As a lawful permanent resident, you can live and work in the United States Free to travel (but not for extended periods without prior permission) Able to obtain Social Security Number and submit FAFSA Security and stability Foster care reimbursements for State Possible eligibility for URM program
SIJS Resources SIJS Manual, available at www. ilrc. org ILRC, Obtaining Special Immigrant Juvenile Findings in Delinquency Courts USCIS website: www. uscis. gov National Children’s Center SIJS Resources at www. refugees. org SIJS Caseworker’s Toolkit at www. brycs. org/sijs (for children in federal custody) www. rmian. org
Other Pathways to Status Family-based petitions & adjustment of status/consular processing Violence Against Women Act self-petitions U Nonimmigrant Visa Asylum T Nonimmigrant Visa Cancellation of Removal Prosecutorial Discretion & Deferred Action for Childhood Arrivals (DACA)
Family-based Adjustment INA Section 245 Immediate relatives: U. S. Citizen may “petition” for a spouse, child (unmarried & under 21), or parent (if USC is over 21) Legal entry OR petition submitted before April 30, 2001 Otherwise, return to home country for “consular processing, ” but beware of 3 year, 10 year, and permanent bars depending on past entries/exits and length of time in U. S. without status Other categories of family petitions, referred to as preference system: Siblings and “sons or daughters” (over 21) of U. S. Citizens Spouses, children, and unmarried “sons or daughters” of Lawful Permanent Residents (LPRS) Long wait times for these petitions (4 -20+years) Also think: Citizenship? Are child’s parents and/or grandparents US citizens? Possible to acquire citizenship at birth or derive citizenship at a later time.
Violence Against Women Act INA Sections 204, 245 The spouse, child, or step-child of an abusive U. S. citizen or lawful permanent resident may be able to self-petition for residency (LPR status) Non-abusive parent of abused child may also qualify Parents abused by USC child also qualify Must show physical abuse OR extreme cruelty (don’t have to show physical abuse if there is pervasive emotional abuse; witnessing DV=extreme cruelty) Must have “resided” (includes visitation) with abusive parent/spouse If spousal self-petition, must demonstrate good faith marriage Must have “good moral character”
U Nonimmigrant Status INA Section 101(a)(15)(U); 8 CFR Section 214. 14 For Victims of Serious Crimes Examples: Rape, Incest, Domestic Violence, Sexual Exploitation, Prostitution, Kidnapping, Trafficking, Extortion, Blackmail, Felonious Assault, False Imprisonment, Witness Tampering, Obstruction of Justice, or Attempt, Conspiracy, or Solicitation to commit any of the above Must obtain law enforcement certification (recognized certifiers: Police, District Attorney, CPS, DOL, judges) Must suffer serious physical or emotional harm Generous waiver available for past immigration violations Can apply for family members; each member has to have own waiver granted if applicable
Asylum INA Section 208; individual must meet definition of refugee under INA Section 101(a)(42)(A) Unable or unwilling to return to home country 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 Typically, must apply within one year of entering the U. S. Persecution perpetrated by government or individual beyond government’s control
T Nonimmigrant Status INA Section 101(a)(15)(T); 8 CFR 214. 11 Requirements: Is or has been a victim of a severe form of trafficking in persons; Is physically present in the U. S. on account of such trafficking; Has complied (with some exceptions) with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking related crimes (or that the victim has not attained 18 years of age or is unable to cooperate due to trauma); and Would suffer extreme hardship involving unusual and severe harm in the event of removal.
Trafficking 101 SEX TRAFFICKING: The recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act, in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age. LABOR TRAFFICKING: The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery 22 U. S. C. § 7101 (b)(2), (3).
Elements of Trafficking (Steglich, 2003) ACTION MEANS * Recruit (Force, Fraud, Coercion) Harbor Causing serious harm Transport Physical restraint Provide Threats to physical restraint Obtain PURPOSE Commercial sex acts OR Labor or Services Withholding documents • • Trafficking does NOT have to involve the transport or movement of victims. Trafficking can originate in person’s country of origin OR after they are in U. S. Psychological threats and manipulation * Means not required for minors under age 18 for commercial sex acts; unable to “consent”
Cancellation of Removal Available only to people in removal proceedings 3 types: Lawful Permanent Resident Cancellation, INA Section 240 A(a) In U. S. for 7 years after lawful admission, lawful permanent resident for 5 years, no aggravated felony convictions, merits discretion Non-Resident Cancellation, INA Section 240 A(b)(1) In U. S. for 10 years, good moral character, no applicable criminal bars, exceptional & extremely unusual hardship to USC or LPR spouse, child, or parent, merits discretion VAWA Cancellation, INA Section 240 A(b)(2) In U. S. for 3 years, good moral character, no applicable criminal bars, victim of abuse by USC or LPR parent, spouse, or child or is the non-abusive parent of child abused by USC or LPR parent, extreme hardship to self, child, or parent
Deferred Action for Childhood Arrivals (DACA) See www. uscis. gov website, search “DACA” for FAQs and additional information What is DACA? Not the DREAM Act, but a form of prosecutorial discretion Not a pathway to lawful permanent residency or citizenship 2 year permission to stay in U. S. Work Permit/Authorization Closure of pending deportation cases (sometimes) Social Security Number eligibility Driver’s License & State I. D. eligibility What is prosecutorial discretion?
DACA Requirements Arrival in U. S. before turning 16 years old Continuous residence from 6/15/2007 -6/15/2012 In school, graduated from high school, or obtained G. E. D. At least 15 at time of applying (unless in deportation proceedings) and 30 or under on 6/15/2012 No serious criminal convictions No gang activity
Voluntary Departure INA section 240 B Viewed as a benefit because future lawful re-entry is possible Departure under VD still triggers the 3 year, 10 year, and permanent bars Depart at your own expense (unless a UAC from non-contiguous country) Severe penalties for failure to comply Seen as a “better” alternative to a Removal Order (Deport Order)
Detention & Deportation of Parents Finding parents: ICE Detainee Locator, https: //locator. ice. gov Professional Visits at the GEO/ICE Facility Parental rights are not terminated by ICE, EOIR, or by detention or removal (deportation) – only State Court can do that, not immigration DHS can gain access to parents while detained! Contact: Amelia Sanchez, Amelia. M. Sanchez@ice. dhs. gov, (720) 875 -2040 To be cleared as a professional for a contact visit, email Ms. Sanchez your name, date of birth, SSN, title/position with the State or county, and information on who you would like to visit Planning for Deportation Powers of Attorney, U. S. Passports, travel documents Reunification with Parents in Country of Origin Consulates can facilitate home studies
ICE’s Parental Directive Issued August 23, 2013: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities Just guidelines; not enforceable at this point Purpose: establish policy & procedure to ensure that ICE does not disrupt the parental rights of immigrant parents & legal guardians Primary concern: Parents & legal guardians who are primary caretakers of children (children’s status not relevant) Parents & legal guardians who have direct interest in family court or child welfare proceedings Parents & legal guardians who have minor US citizen or LPR children in the US
ICE’s Parental Directive provides that ICE personnel should: Consider PD (drop ICE hold, not issue NTA, admin closure) Re-evaluate detention decisions Allow detained parents to attend family court or child welfare proceedings in person; alternatively, video or teleconferencing Facilitate visitation between detained parent and children esp if visitation is required by family court or welfare authority in order to maintain or regain custody of minor child Allow parent to coordinate care or travel of children pending parents’ removal (powers of attorney, travel documents, etc. ) Facilitate return of a deported parent who is party to family court or child court proceedings for purpose of participating in proceedings Improve communication and cooperation, training
Adoption of Undoc’d Children Best options for immigration status if adoption completed by 16 th birthday & in legal and physical custody of parents for two years Primary, tricky question: does the Hague Convention apply? Hague Convention: 8 USC Section 1101(b)(1)(G), 8 CFR Section 204. 301 -313 Applies when child is from Hague Convention country, child is a habitual residence of that country, and adoption process initiated on or after April 1, 2008 Children unlawfully present must return to country of origin to obtain visa Hague Convention does not apply if: child subject to adoption is from non. Convention country, child is from Hague country where Central Authority of that country determined that child is a habitual resident of US, or adoption process began before April 1, 2008 (when US signed) Colorado Revised Statutes
Adoption by Undoc’d Adults No federal law that prohibits adoption based on a prospective parent’s citizenship or immigration status Colorado: no provision that precludes adoption based on immigration status Challenges: Legal clearances, credit checks, backgrounds checks are difficult with no Social Security Number (but can get CBI and FBI reports) Potential for apprehension and deportation can affect “best interest” determination by DHS
Final Considerations: Challenges More children entering unaccompanied today than ever before = more children in need of State protection via D&N, APR, guardianship More children being removed today than ever before – sometimes to countries they don’t remember! Applying to USCIS and risks of removal Deportation or removal proceedings are lengthy – it is a process No access to federal funds for college loans Pathways to lawful status are rigid and few
Recommended Reading Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System (report), available at http: //arc. org/shatteredfamilies Report Recommendations: Create exceptions to the termination of parental rights timelines for detained or deported parents Institute “time-of-arrest” protocols for local LEAs to enable parents to decide who should take custody of their children State child welfare departments should explore whether children in foster care have detained or deported parents Caseworker, attorneys, judges should participate in immigration law training & immigration enforcement policy training DHS agreements/MOUs with consulates to intervene when parents are detained and facilitate reunification abroad, if appropriate Equal treatment of undocumented parents and extended family in child welfare system – should be treated equitably as viable caregivers
Recommended Reading, con’t. Elizabeth M. Frankel, DETENTION AND DEPORTATION WITH INADEQUATE DUE PROCESS: THE DEVASTATING CONSEQUENCES OF JUVENILE INVOLVEMENT WITH LAW ENFORCEMENT FOR IMMIGRANT YOUTH, 64 DUKE FORUM FOR LAW & SOCIAL CHANGE Vol. 3: 63 (2011)
Recommended Reading, con’t. Forced From Home: The Lost Boys and Girls of Central America (report), available at www. womensrefugeecommission. org The Flow of Unaccompanied Children through the Immigration System: A Resource for Practitioners, Policy Makers, and Researchers (report), available at http: //www. vera. org/download? file=3483/the-flowof-unaccompanied-children-through-the-immigrationsystem. pdf
Thank you! www. rmian. org kglynn@rmian. org, ajohnson@rmian. org (303) 433 -2812, ext. 104
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