Immigration Consequences in Dependency Proceedings Sara Lofland, Esq. Maricopa County’s Office of the Legal Advocate

Case Study: “S Family” January 2015, Arizona Department of Child Safety filed dependency action against Mother S. Mother and her two oldest children are undocumented. September 2015, a special immigrant juvenile status (“SIJS”) application on behalf of the two oldest undocumented children is filed. Children are still eligible for SIJS relief because their father is AWOL, so they still remain dependent as to their father

Case Study: “S Family” October 2015, Mother has completed her services and is ready to begin the reunification process. Her oldest children’s immigration applications have not been processed. December 2015, by the end of the calendar year, all children have been reunified with mother. Arizona Department of Child Safety moved to dismiss the matter, which, if granted, would have made the children ineligible for immigration relief. Children received green cards first, then case was dismissed! Children are still eligible for SIJS relief because their father is AWOL, so they still remain dependent as to their father.

Dependency Consequences: Initial Entry Questions about dependency are not on entry applications 485, 589, U or T. But, if parent has been offered services by a State Agency, then there is a risk that they have incurred a “public benefit.”

Dependency Consequences: Initial Entry Detained parents undergoing dependency proceedings may be able to receive: Bond Humanitarian Parole Qualify for other hardships under 42b “Cancellation of Removal.”

Executive Order on Interior Enforcement Expanded Criminalization of Aliens: Convicted of any criminal offense Charged with any criminal offense Committed “acts” that constitute a “chargeable criminal offense”

Potential Impacts of EO: Dependency proceedings Covered by any deportation ground related to crimes or criminal behavior: Drug sale Substance user or abuser Prostitution Allegations of terrorism or national security

Potential Impacts of EO: Dependency proceedings Reason to believe standard expanded: An “abuser” of any government benefit program Threat to public safety or security in judgment of immigration officer

Potential Impacts of EO: Dependency proceedings Evidence of abuse, abandonment, or neglect could affect immigration relief: Evidence of not paying child support Evidence of having children removed from custody Evidence of physical, sexual, or emotional abuse could all affect these things An actual conviction is not needed, DHS just needs to have a “reason to believe” that any of those things. “Reason to believe” standard is similar to probably cause

Existing risks in Dependency proceedings Victims of domestic violence may also suffer negative immigration consequences: Evidence that a parent failed to protect a child from domestic violence may be used against them Evidence that children were removed from parents’ custody may be used against them An actual conviction is not needed, DHS just needs to have a “reason to believe” that any of those things. “Reason to believe” standard is similar to probably cause

Executive Order on Border Enforcement The Border Enforcement Memo may also affect juvenile proceedings: Evidence of helping to arrange a child’s travel to the U.S. or otherwise encouraging a child’s travel to the U.S. may negatively impact immigration status and potentially refer them to criminal prosecution Enforcement practicality is unknown, but assisting children in applications for asylum relief, sponsoring children in HHS custody and assisting a child to fight deportation may affect relatives.

Key Practice Reminders DHS can gain access to confidential juvenile proceedings. DHS in Arizona has secured, DCS files, court reports, minute entries, etc. and used them against parents. If parental rights to a U.S. Citizen child are terminated, that parent may lose qualifying rights to immigration status. Not common practice, but has been used.

Ways to help parents detained by DHS Speak to client’s DHS officer for assistance in coordinating telephonic appearances at juvenile proceedings. Speak to your client’s immigration attorney to see if the client is eligible for humanitarian parole, or prosecutorial discretion. Ice does not have to agree to allow participation

Ways to help parents detained by DHS See if the parent is eligible for bond. Understand the limitations of immigration detention, parents may not have access to parenting classes, and other resources. Make sure the parents are in communication with their consulate so that they may attempt to coordinate reunification with their children through the consulate upon deportation. See if parents can be made available for dependency proceedings. Ice does not have to agree to allow participation Pima county has a memorandum of understanding which has always made parents available for dependency proceedings voluntarily. Maricopa County has no memorandum of understanding, but parents tend to be made available for Dependency proceedings in Maricopa county.

Repatriation of children UNCHR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997), the best interests of an unaccompanied child require that the child not be returned unless, prior to the return, a suitable care-giver such as a parent, other relative, other adult care-taker, a government agency, a child- care agency in the country of origin has agreed, and is able to take responsibility for the child and provide him/her with appropriate protection and care. The best interest analysis includes considering the developmental needs of the child, the child’s point of view, safe environment and risk of harm, permanency, well-being, assessment of the child’s age and maturity, and history of flight or persecution. However, to be truly effective, the repatriation process for unaccompanied and separated children must also look to reintegration to ensure that the child is a sustainable safety situation or the child will likely flee once again.

Repatriation Cont. Efforts should be made between the Department of Child Safety and the consulate of the parent’s home country to ensure a child’s safe repatriation. Parents should try to register their child’s birth with their country of origin, this often helps with the repatriation process If a parent’s deportation is imminent, arrangements should be made for their children to obtain passports to expedite the repatriation process

Resources to assist with repatriation Resources for assistance in Mexico include: Instituto para las Mujeres en la Migracion: The institute for women in Migration, promoting migrant women’s rights. www.imumi.org CDM-Central de Derechos del Migrante Inc.: Legal defense for workers repatriated to Mexico re: US benefits, owed back pay, etc. www.cdmigrante.org Kino Border initiative (Nogales, Arizona and Nogales, Sonora): Can help locate and provide basic services to persons recently deported to Mexico www.kinoborderinitiative.org

Questions? For any other questions, here is my contact information: Sara Lofland (602) 506-1243 loflands@mail.maricopa.gov