Special Immigrant Juvenile Status March Madness Training Rebeca

Special Immigrant Juvenile Status March Madness Training Rebeca E. Salmon Attorney, Equal Justice Works Fellow Immigrant Children’s Advocacy Project of Catholic Charities Atlanta Rachel H. Davidson Child Advocate Attorney Dekalb County Child Advocacy Center

Immigrant Children’s Advocacy Project • 2 year EJW fellowship sponsored by Sutherland Asbill & Brennan • Provides for a dedicated attorney to serve growing population – GA, NC, SC, AL, MS, LA • DHS Pilot Program – EOIR Juvenile Docket / USCIS dedicated Officer • Goals – Referrals, Pro Bono Network, Training, Resource Manuals and Mentoring

What is at Stake? • Each year more than 10, 000 children come to the U. S. seeking life • The U. S. government places all children who lack lawful immigration status into removal proceedings. • Some of these children have recently arrived in the United States, while others were brought here as infants or young children and have no connection to their countries of birth. • These children often have been abused, abandoned or neglected and cannot safely reunify with their parents and have no responsible persons to return to in their home countries. *Atlanta: - Dedicated Juvenile Docket - Dedicated USCIS Officer - Large Service Area - Growing Population (undetected)

The Solution for some: Special Immigrant Juvenile Status • SIJS can provide eligible children a route to lawful permanent residency and can prevent an eligible child’s removal from the United States. for others: o o Voluntary Departure to preserve the child’s future opportunities Asylum, WOR, CAT

Special Immigrant Juvenile Status A Statutory and Regulatory Overview What is it? ü An avenue for eligible children to obtain a visa and lawful permanent resident status (get a “green card”) through actions of U. S. Citizenship & Immigration Services (“USCIS”) or the Executive Office for Immigration Review (“EOIR”) Where do you find it? ü Section 101(a)(27)(J) of the Immigration & Nationality Act, codified at 8 U. S. C. § 1101(a)(27)(J) ü Regulations are at 8 C. F. R. § 204. 11

Breaking Down The Process Obtaining SIJS for a child happens in Two Stages: 1) The Juvenile Court Stage • • Full Deprivation Hearing where the Court makes the required SIJS findings Possibly involves DFACS and home study 2) The Immigration Stage • • Not in proceedings: Counsel uses these SIJS findings as the basis for the filing and processing of concurrently filed SIJS/AOS Petition with USCIS In proceedings: Counsel uses these SIJS findings as the basis for the filing and processing of an I-360 petition/ requests IJ to Terminate proceedings/then files I 485 Petition with USCIS

SIJS Basic Requirements The child must be under 21 years of age. …. 8 CFR § 204. 11(c)(1). Ø Absolute deadline: Once the child turns 21, there is no hope of getting SIJS – typically the child’s only route to a green card. Ø Must identify SIJS-eligible children early to avoid age-out problems. The child must be unmarried. …. 8 CFR § 204. 11(c)(2). Ø A child’s having her own children is not a bar to SIJS. Ø Getting married is

Juvenile Court Order Required Findings 1) 2) 3) 4) The Juvenile Court has jurisdiction under State law to make judicial determinations about the custody and care of this child. 8 U. S. C. § 1101(a)(27)(J)(i); 8 C. F. R. § 204. 11(a), (c), (d)(2)(i). This child is “dependent” on a juvenile court within the meaning of 8 U. S. C. § 1101(a)(27)(J)(i); 8 C. F. R. § 204. 11(a), (c), (d)(2)(i) by virtue of the child being found deprived under O. C. G. A. §§ 15 -11 -5 et seq. (2001). The juvenile is “eligible for long‑term foster care” due to abuse, neglect or abandonment within the meaning of 8 U. S. C. § 1101(a)(27)(J)(i); 8 C. F. R. § 204. 11(a), (c), (d)(2)(ii). It is not in the “best interest” of the juvenile to be returned to his or her parents’ previous country of nationality or country of last habitual residence within the meaning of 8 U. S. C. § 1101(a)(27)(J)(i); 8 C. F. R. § 204. 11(a), (c) (d)(2)(iii). Note: In most states, the juvenile court must make these findings in a deprivation order prior to the child’s 18 th birthday. The Order and jurisdiction may be extended beyond 18 th birthday

JCO Requirement 1: The child must be under the jurisdiction of a juvenile court. Ø “Juvenile court” is defined as a court “having jurisdiction under State law to make judicial determinations about the custody & care of juveniles. ” …. 8 CFR § 204. 11(a). Ø In practice has included dependency, delinquency and probate courts. Ø In most states the determinations standards are “in the best interest of the child” Ø IMPORTANT: The child must remain under juvenile court jurisdiction for the entire time the immigration applications are pending. See. . 8 CFR § 204. 11(c)(5).

JCO Requirement 2: The child must be “dependent on a juvenile court” or “legally committed to, or placed under the custody of, an agency or department of the State” by a juvenile court. …. 8 USC § 1101(a)(27)(J)(i). Ø In practice has included wards of the delinquency court and children with probate guardianships. Ø The child can be in one of many settings: DFACS custody and in foster care home; suitably placed with non-parent relatives or in a group home; living with court-appointed guardians.

JCO Requirement 3: The child must be “deemed eligible. . . for long-term foster care due to abuse, abandonment or neglect. ” …. 8 USC § 1101(a)(27)(J)(i). Ø “Eligible for long-term foster care” means that: Ø “a determination has been made by the juvenile court that family reunification is no longer a viable option. ” 8 CFR § 204. 11(a). Ø Does not require termination of parental rights Ø Does not require actual DFACS custody Ø “Family reunification” is interpreted to mean that between parents and child (not child and other relatives). Ø “Abuse, abandonment or neglect” is not defined in the immigration statute or regulations.

Requirement 3: In Practice: Examples of children eligible for long-term foster care due to abuse, abandonment or neglect include: Ø A child from another country, in the U. S. , without a parent Ø A child whose adult aunt or sibling is caring for her without legal guardianship papers Ø A child who comes to the U. S. by use of a coyote in search of parents who later cannot locate them or who cannot remain with them Ø A child who was abandoned by his parents and who now lives in a foster care home Ø A child whose parent or step-parent abused her

JCO Requirement 4: It must not be in the “[child]’s best interest to be returned to the [child]’s or parent’s previous country of nationality or country of last habitual residence. ” …. 8 USC § 1101(a)(27)(J)(ii). Ø This determination must be made in administrative or judicial proceedings. Id. Ø This means you have to convince the Juvenile Court Judge to rule in the child’s best interest to remain here in U. S. ; but assure JJ they are not granting immigration benefits – this is only the basis to apply

Requirement 4: In Practice Weigh the equities… the negatives of the child’s returning to her home country and the positives of remaining in the United States are relevant. For example: Ø Child fears retaliation by abusive family members or coyote. Ø Child has no responsible family members to provide her with care and protection. Ø Child will have no access to necessary medical, educational or social services. Ø Child is acculturated to life in the United States. Ø All of child’s personal ties, perhaps siblings, are here. Ø Child has been educated in the United States. Ø *Argue for this child, some judges fear the flood gates!

Hurdles to SIJS-Based AOS Even if a child meets the SIJS requirements, she may be nonetheless ineligible to get a green card as a Special Immigrant Juvenile. Why? v Issues with Juvenile Court Judge who is unwilling to make the required 4 findings v Child falls into non-waivable ground of inadmissibility –typically “reason to believe” she is a drug trafficker or gang activity. v Child does not merit a favorable exercise of discretion by the Immigration Judge (“IJ”)

DHS “Consent” v Children who are in actual or constructive DHS custody cannot seek SIJS without first getting DHS “specific consent” to juvenile court jurisdiction. …. See 8 USC § 1101(a)(27)(J)(iii)(I). v No worries: 100% of our current cases are not in actual or constructive custody and do not require pre-approval

This Child – This Case CASE EVALUATION Ø Is this child deprived? Ø SIJS eligible Ø Remember to screen for AOS eligibility Ø Appropriate placement Ø Child currently placed with someone with legal status Ø Guardian willing and able to continue caring for child Ø Best interest of the child

The Juvenile Court Stage TASK ONE: • FILE PRIVATE DEPRIVATION Ø File all Petitions, forms & fees with Juvenile Court of County where child currently living Ø Ø Ø “sample packet” available from ICAP Court fees range from $78 – free Request translator for hearing Ask if you need to notify DFACS Will it be 1 step hearing or 2 step Ø Provide notice to all persons entitled to notice (parents) Ø Cooperate with the guardianship investigation (DFACS/ Ad-Litem/ etc. )

The Juvenile Court Stage TASK TWO: • OBTAIN THE SIJS FINDINGS Ø Juvenile Court is a closed hearing Ø File certified copies with Court Ø Birth Certificate with translations Ø Parent’s Acknowledgement of Service or Notice by Publication Ø DFACS will submit home study directly to Court Ø You must prove deprivation and provide the basis for 4 required elements Ø Depending on Judge, may put child and guardian on stand Ø Cover how the child came to be here and any abuse suffered Ø Where are parents Ø Questions that show well child is doing here and how guardian is providing for all needs (food, shelter, vaccinations, clothing) Ø Ask if child wants to return to home country… why not? Ø Depending on Judge and Child -- best if portions can be in English

The Juvenile Court Stage TASK THREE: • OBTAIN DATE AND PLACE OF BIRTH RECORD Ø The child needs some proof of date and place of birth in order to obtain SIJS. Ø The juvenile court can base this order upon the complete file and admissions regarding the child’s date and place of birth. (medical reports and doctor calculations acceptable) Ø The juvenile court can include this information in the SIJS findings.

The Juvenile Court Stage TASK FOUR: • ASSEMBLE THE NECESSARY DOCUMENTS Ø Certified copy of Final Deprivation Order Ø Certified copy of DOB order if necessary Ø Arrest record printout for delinquency cases if necessary Ø Certified copies of juvenile court minute orders corresponding to each petition filed for delinquency cases

The Juvenile Court Stage TASK FIVE: • MAKE SURE THE COURT RETAINS JURISDICTION OVER THE CHILD Ø Ensure court does not terminate jurisdiction until the immigration process is complete Ø The case closes on the child’s 18 th birthday unless the court agrees to retain jurisdiction through language in the SIJS order or a separate extension order Ø GA law provides extensions of juvenile court jurisdiction beyond the 18 th birthday as long as initial petition was filed prior to

Sample 1 -Step CHILD NEVER IN PROCEEDINGS (File 1 -step then skip to step 5) • • Child in U. S. Have JCO with required 4 findings No bars to AOS File all petitions concurrently to USCIS Chicago

LAST, First Middle A #: xx I-360 and I-485 Petition to Adjust Status Submitted to: USCIS P. O. Box 805887 Chicago, IL 60680 -4120 Special Immigrant Juvenile Status PLEASE RUSH Enclosed: Attached to application (I-360) no fee (I-485) # 042530 $1010. 00/ FEE WAIVER (I-765) # 042531 $ 340. 00/ included in 485 TOTAL $1010. 00/ or FEE WAIVER* G-28 Notice of Entry of Appearance as Attorney (3) photos of Petitioner Sealed Medical Exams I-360 I-485 G-325 A (if over 14) I-765 Supporting Documentation Birth Certificate w/ translation Juvenile Court Order with required findings highlighted Additional beneficial supporting documentation (not required) Good school records Medical records/ Psych evaluations if abused Letters of support of child from community Photos of child in their life here *IF FEE WAIVER – clearly mark outside of envelope and every page of each petition

The Immigration Court Stage STEP ONE: IF REMOVED IN ABSENTIA • Submit a Motion to Reopen if child removed in absentia along with E-28 • Must be Joint Motion with DC (unless than 6 mo ago and no notice due to exceptional circumstances) • MTR should include sworn affidavits • Legal Brief • Sample Order for Judge IN PROCEEDINGS • • Make appearance at Master Calendar and File E-28 • Request Continuance to pursue SIJS • Make appointment with DC to review documents in the file and obtain copies of NTA if needed EOIR Judges Manual Governing Court Proceedure

Immigration Court Stage STEP TWO: IN PROCEEDINGS • File Self Petition with USCIS Chicago • G-28 • I-360 • Copy of Juvenile Court Order • Copy of Birth Certificate with translation • Immigration forms – available at http: //www. uscis. gov

Immigration Court Stage STEP THREE: IN PROCEEDINGS • Attorney and child must appear at Master Calendar every time scheduled • Request continuances while I-360 pending and JCO in process • File copy of Approval Notice for I-360 along with Form 471 and Motion to Terminate proceedings to allow for AOS *Pointers for Juvenile Docket • • Get on it! Be brief Ask directly for what you want Protect your reputation

The Immigration Stage STEP FOUR: IN PROCEEDINGS • File for AOS • • I-485 Copy of I-360 approval notice Copy of IJ’s final grant terminating case G-325 A (if over 14) I-765 (for work) Sealed medical exams from civil surgeon (3) pictures and Fee Waiver or Fees • Do not delay – do this as soon as possible to avoid ‘age-out”

The Immigration Stage STEP FIVE: CHILD NEVER IN PROCEEDINGS OR CHILD’S PROCEDINGS TERMINATED • Wait for USCIS to issue Receipts and schedule the biometrics appointment and AOS interview • Attend biometrics appointments • The child must have valid government-issued ID. • Copy of the appointment notice • And be accompanied by legal guardian • Attend AOS Interview • Attorney • Child • Legal Guardian • All original documentation

The Immigration Stage STEP SIX: CHILD NEVER IN PROCEEDINGS OR CHILD’S PROCEDINGS TERMINATED • Wait for the delivery of the child’s green card from USCIS • Provide a final status report to the juvenile court • Advise the child on her rights and responsibilities as a lawful permanent resident: http: //www. uscis. gov/graphics/citizenship/welcomeguide/index. h tm

Down the Road… • Once the child is a lawful permanent resident, she is eligible for U. S. citizenship after 5 years or on her 18 th birthday (whichever is later). • She can work legally, obtain federal financial aid, and reside permanently in the United States absent certain unlawful conduct. …and you know you’ve done a great service for this child.

To be alone and lost in a foreign country. To be alone, abandoned or abused, lost and in a foreign country. …And to be a child.

Of Catholic Charities Atlanta 404 -885 -7483 or rsalmon@archatl. com