Special Immigration Juvenile Status in Louisiana Together We Can Conference November 7, 2017 Ramona Fernandez & Hiroko Kusuda Loyola New Orleans College of Law, Stuart H. Smith Law Clinic & Center for Social Justice 8/27/2018

Why do they come? Domestic Abuse Gang Violence and Forced Recruitment Human Trafficking Female Genital Mutilation (FGM) Forced marriage Poverty Reunification with friends or family Average age for recruitment is 12 ys old, gangs retaliate against those who refuse, hard to hide b/c of organization of gang Facts: 3 teens fled country in 2004 b/c MS-13 gang threatened youth in the area and controlled the region. MS-13 stole from brothers, harassed, beat them for refusing to join gang, threatened to rape girl. Threatened that they must join or will be killed. Then warned again given enough time to make decision, they must make one. Learned MS-13 killed a young boy in neighborhood b/c refused to join. Protected ground: Political opinion & PSG   2 proposed PSG: (1) Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities; and (2) family members of such Salvadoran youth. The respondents also argue that the gang members persecuted them on account of their political opinion, i.e., that of opposition to the gang’s activities Why do they come? 8/27/2018

How do they come? Human smugglers (coyote, snakehead) Traveling with family and friends Crossing the border without authorization Using false documents and flying into U.S. Coming with authorization but overstaying How do they come? 8/27/2018

What happens when they arrive? Arrested by Border Patrol or ICE Detention by ORR Removal Proceedings Lack of access to attorneys Living Life Undocumented Access to education in secondary schools No access to financial aid, if college-bound What happens when they arrive? 8/27/2018

Sample types of relief Special Immigrant Juvenile Status Asylum T visa U visas Violence Against Women Act (VAWA) relief Adjustment of status based on family relationship DACA (deferral of removal) Sample types of relief 8/27/2018

What is Special Immigrant Juvenile Status? Special Immigrant Juvenile Status (SIJS) is a classification under federal law that allows certain undocumented children to obtain lawful permanent resident status in the United States. Congress amended the federal statute government SIJS in 2008 (TVPRA) making the SIJS available to more children. 8/27/2018

Unaccompanied Alien Child (UAC) 6 U.S.C. 279(g)(2), a UAC is a child who: (A) has no lawful immigration status in U.S.; (B) has not attained 18 years of age; and (C) with respect to whom – There is no parent or legal guardian in the U.S.; or No parent or legal guardian in the U.S. is available to provide care and physical custody. 8/27/2018 7

UAC Amendments (TVPRA 2008) Definition of UAC includes a child who was abused, abandoned or neglected by one or both parents whose reunification is not viable due to such abuse, abandonment or neglect or similar basis under state law Eliminated the one-year deadline to file asylum for UAC UAC can request asylum affirmatively with USCIS Asylum Office while going through removal proceedings 8/27/2018 8

USCIS Guidance (2013) Under USCIS guidance and practice, once a child is classified as a UAC, the child continues to be treated as a UAC, regardless of whether they continue to meet the definition. Signigicant benefit for UAC asylum seeker who turns 18 or older after desingation 8/27/2018 9

Special Immigrant Juvenile Status (SIJS) In 1990 Congress created a special visa so eligible children could “self-petition.” If the visa is approved, the children may apply for “permanent residence status” i.e. a green card. Statute Section 101(a)(27)(J) of INA, TVPRA 2008 changes Regulations 8 C.F.R. § 204.11 , new ones to come Memorandum CIS Memorandum #3 -- Field Guidance on Special Immigrant Juvenile Status Petitions State Law Family/Juvenile law of state where youth resides http://www.nationalimmigrationproject.org/DVPage/FieldGuidance(SIJS)AdjMemoJuv3.pdf 8/27/2018

Requirements for SIJS Under 21 & Unmarried declared dependent on a “juvenile court” OR the court has legally committed to/placed under the custody of an agency or department of a State OR an individual or entity appointed by a State or juvenile court whose reunification with 1 or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law Not in child’s best interest to return to home country 8/27/2018

“Juvenile” court court having jurisdiction under State law to make judicial determinations about the custody & care of juveniles. 8 CFR § 204.11(a) e.g., Juvenile Court, Family & Domestic Relations Court, Civil District Court, Probate Court 8/27/2018

Requirement 1: Under 21 & Unmarried SIJS cannot be approved once the child turns 21 years old. Age on filing of I-360 controls, and TVPRA provides age out protection for those who turn 21 while I-485 application is pending. Child cannot be married. A cultural marriage that does not qualify as a marriage under immigration law is not a marriage. 8/27/2018

Requirement 2: Best Interests Finding Juvenile court finds that it is not in the child’s best interest to return to the home country. Look at difference in family situation, as well as access to health, education, and any other resources 8/27/2018

Requirement 3: Dependency or Placement by Juvenile Court How is the child dependent? declared dependent on a juvenile court OR B) the court has placed the child in custody of the state (i.e. Foster Care) the court or state us put in custody of individual or entity (i.e. Guardianship, Adoption) 8/27/2018

Requirement 4: Reunification not viable… Why is the child dependent or being placed? reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law 8/27/2018

Special Immigrant Juvenile Status in Louisiana* *Specific to Jefferson and Orleans Juvenile Courts. The practices in other courts may vary.

Background Questions (1) Is there a history of abuse, abandonment or neglect by one or both parents? Is reunification with one or both parents is not viable due to abuse, abandonment, or neglect? Is the child in foster care or has there been an involvement by DCFS? Does the child have adoptive parents, step-parents or guardians? If so, where are they? Where is the child currently residing? Any future placement plan?

Background Questions (2) Is there someone in the child’s home country to provide care for him or her? If so, who? Would it be the child’s best interests to be returned to his or her home country? Has the child ever had contacts with USCIS? Is any application pending? If so, what kind and when was it filed? Has the child been arrested by immigration officials? Has the child ever been deported or order to depart from the United States voluntarily but remained despite the order? Was the child physically deported from the United States? If so, when and how did she or he returned?

Background Questions (3) Has the child been in removal proceedings before? If so, what happened? Is the child currently in removal proceedings? If so, when is his or her next hearing? What happened at the previous hearing? Has the child ever engaged in illicit activities since arriving in the United States? Has the child been arrested? If so, who arrested the child and for what conduct or charge? Has the child been convicted? If so which court and for what?

Petition and Order Setting for Hearing “Petition for Sole Custody and for Declaration of Special Immigrant Juvenile Status” and “Order Setting the Matter for Hearing” Petition should contain the statement of jurisdiction, venue, age of the child, summary of the facts supporting the judgment that the child is eligible for the finding of Special Immigrant Juvenile Status Order requesting the court to schedule a hearing

Who is the Petitioner? Orleans Parish Juvenile Court – the guardian of the child Jefferson Parish Juvenile Court – the child

Memorandum of Law The memorandum should contain more detailed facts and the country conditions of the child’s home country, and the legal basis for seeking Special Juvenile Immigrant Status. Tips: Make sure to include enough information of the child’s home country, health of the child and the family, home life of the child in the United States including school, community, etc. Source of country condition information: Department of States Reports on Human Rights Practices, news reports, articles, etc.

Proposed Judgement Proposed Judgement must be provided with the petition and memorandum of law. The proposed judgement contains: the child is dependent on the court; the age of the child and the child’s native country; the statement of jurisdiction; the statement of sole custody; the statement of abuse, neglect or abandonment under State law; the statement that reunification is not viable and the reasons; the statement that it is in the best interests of the child to remain in this country with the guardian and not to be returned to his or her home country.

Supporting Documents Birth Certificate with Certified English Translation School record showing that the child is attending school The grades of the child “Verification of Release” issued by ORR or other government issued identification document

Filing Procedure Jefferson Parish No filing fees File the petition and order requesting a hearing Clerk will call you to set a date for a hearing and the section of the court that the case is assigned The hearing is set in a couple of weeks Orleans Parish No filing fees but must pay a “building fee” for $20.00 Clerk will send the guardian and the attorney a court date Usually takes one to two months to schedule a hearing

Prepare for the Hearing Jefferson Parish Prepare the child as the witness who will give her or his testimony Takes at least two session to prepare for the hearing If the child is very young, prepare age-appropriate questions Generally, the court will take judicial notice of the country condition for Honduras, El Salvador and Guatemala The court does not want to take testimony from the guardian except for affirmation of the guardian’s willingness to continue to be financially responsible for the child

Prepare for the Hearing Orleans Parish Prepare the guardian as the witness who will give her or his testimony It is up to the child’s court appointed attorney to decide whether the child should testify Takes at least two session to prepare for the hearing

Hearing (Bring your own interpreter!) Jefferson Parish Check in with the bailiff when you arrive in court When the judge is ready, you will be called While you wait to be called, the judge’s law clerk may come and ask a question or an issue that the judge wants address DA’s office does not participate in the hearing. Orleans Parish Check in with the judge’s clerk and you will wait outside The attorney for the child will talk with you while you wait and will talk to her privately. When the judge is ready, the law clerk will bring you in. There is no DA present in court

Apply for SIJS visa Applying for SIJS So you got the juvenile court order… what next? Apply for SIJS visa 8/27/2018

SIJS Application www.uscis.gov No filing fee Form I-360 Found at 8/27/2018

Where to file? Client is in court  file with the court Client is not in court  file with the appropriate USCIS office 8/27/2018

Inadmissibility SIJ applicants are excused from several grounds of inadmissibility including Public Charge Working without auth. Entering without inspection (“paroled” if granted SIJ) Most other grounds of inadmissibility may be waived for humanitarian purposes, family unity, or when it is otherwise in the public interest. The only grounds of inadmissibility that are not waivable for SIJ applicants are those listed in INA§212(a)(2)(A), (B), and (C) (Crimes) and (3)(A), (B), (C), and (E)(Security, Terrorism, Persecutor grounds.). 8/27/2018

Family Petitions, after approval Once your client has a green card, they are not allowed to petition for and get immigration benefits for a natural parent or prior adoptive parent. 8/27/2018

Current issue The immigration visas for SIJS category have been used up. Therefore, SIJS holders have to wait until more visas become available. Currently, UACs from Honduras, El Salvador and Guatemala who filed their I-360 application on or before November 1, 2015 can apply for adjustment of status. For Mexican, the priority date is April 1, 2016

CHILDREN’S ASYLUM CLAIM

Asylum Protection for people who fear persecution on account of race, religion, nationality, political opinion, or membership in a particular social group Persecuted in the past, and/or has “well- founded fear” of future persecution Must meet refugee definition at INA §101(a)(42)(A) Discretionary 8/27/2018

Definition of Refugee (A)a person who is outside his or her country of nationality or last residence and is unable or unwilling to return or avail self of protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particularly social group, or political opinion. (B) where President determines, a person within country of nationality or last residence who meets same requirements as (A). 8/27/2018

Children Suffer from Persecution Abusive labor law practices Recruited by regular or irregular armies Sold into prostitution or indentured servitude Subject to other various human rights abuses Key phrase: “I am afraid to go back!” 8/27/2018

What is “persecution”? Past persecution or well-founded fear of future persecution imprisonment, physical or mental abuse, denial of employment, rations, education, or other basic rights, serious discrimination, other human rights violations. Not all mistreatment rises to level of persecution By government of person government is unwilling or unable to control Need not be inflicted with punitive intent (for example, FGM) BIA decisions: Acosta, Kasinga, Izatula 8/27/2018

“On Account Of” Persecution must be on account of applicant’s race, religion, nationality, political opinion (actual or imputed), or membership in a particular social group (shared immutable characteristics) “On account of” = the “nexus” requirement INS v. Elias-Zacarias (1992) – must present some evidence of nexus. 8/27/2018

Particular Social Group Common, immutable characteristic Can be innate shared characteristic such as sex, color, kinship, family, clan Or can be shared past experience Immutability = members of group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences. Socially visible & Particular BIA decisions: Acosta, Kasinga, Toboso-Alfonso 8/27/2018

Children as Social Group Growing body of case law recognizing children eligibility for social group. Russian disabled children and parents who provide care for their children are both members of a particular social group due to well documented mistreatment by the state and society in general. Tchoukhrova v Gonzales　(9th Cir. 2005) 8/27/2018

DOMESTIC VIOLENCE ASYLUM CLAIMS Family has been held to be a particular social group. Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) Child victim of a inter-family violence or sexual assault Young single women who live alone who are at risk of being trafficked 8/27/2018

Persecution by Gang Emerging controversial area in recent years Mainly asylum seekers from Central American countries where criminal gangs such as MS-13 and the 18th Street Gang (Mara 18) gained a foothold. Recruitment, extortion, rape, etc. 8/27/2018

Political Opinion “Opinions not tolerated by the authorities, which are critical of their policies or methods.” - UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status. Expressed through actions as well as words. Chang v. INS (3rd Cir. 1997). Actual or imputed Child of a political activist was persecuted because his parent’s political belief was imputed to the child by the persecutors. 8/27/2018

Benefits of Asylum Authorization to remain in U.S. World-wide protection from removal Employment authorization Authorization to travel Spouse and children can be included Adjustment to LPR after one year as asylee Government resettlement benefits USC 4 years after grant of asylum status 8/27/2018

What Happens after the Filing? Interview If approved by Asylum Office – UAC has asylee status If not recommended for approval – the application is sent to the Immigration Court for a de novo review by the Immigration Judge 8/27/2018

Problems with UAC Asylum Claims Children may not be able to articulate their claim to refugee status in the same way as adults and, therefore, may require special assistance to do so. Children may have difficulty telling a stranger their traumatic experience 8/27/2018

EO 13767 and DHS Memo (2017) Restrictive UAC definition Expedited removal for arriving children Penalize parents who facilitates children’s journey to US Criminalize youth in juvenile delinquency proceedings 8/27/2018 50

De-designation UAC may be stripped of that designation— formally or informally—once they turn 18 and/or reunify with a parent and/or obtain a legal guardian. Federal law offers certain benefits to UACs NO BOND REQUIRED Sponsor must show ORR that: No household members have serious criminal convictions In most urban areas, sponsors can get fingerprints taken electronically by an ORR subcontractor to prove this The household has the income to absorb the child The sponsor is a family member of the child OR the child’s parents have consented to their sponsorship If sponsor is undocumented, he / she can travel to shelter to pick up child 8/27/2018

Sample Effect of De-designation no longer allowed to file their asylum applications with USCIS in a non- adversarial setting despite being in removal proceedings be subject to expedited removal after being released from HHS/ORR custody rather than being placed in removal proceedings under INA § 240 NO BOND REQUIRED Sponsor must show ORR that: No household members have serious criminal convictions In most urban areas, sponsors can get fingerprints taken electronically by an ORR subcontractor to prove this The household has the income to absorb the child The sponsor is a family member of the child OR the child’s parents have consented to their sponsorship If sponsor is undocumented, he / she can travel to shelter to pick up child 8/27/2018

EOIR Guidance (2017) EOIR General Counsel (9/17/17): Immigration Judges have an independent authority to determine whether a child is a UAC and are not bound by UAC designation made by another federal agency. NO BOND REQUIRED Sponsor must show ORR that: No household members have serious criminal convictions In most urban areas, sponsors can get fingerprints taken electronically by an ORR subcontractor to prove this The household has the income to absorb the child The sponsor is a family member of the child OR the child’s parents have consented to their sponsorship If sponsor is undocumented, he / she can travel to shelter to pick up child 8/27/2018

Questions? 8/27/2018