21st Annual Child Abuse and Neglect Institute Special Immigrant Juvenile Status & Current Immigration Trends Zadora M. Bolin, JD Site Manager National Council of Juvenile and Family Court Judges

Learning Objectives Define Special Immigrant Juvenile (SIJ) Status Understand the role of the state court in making SIJ findings Identify minors who are SIJ eligible and know how to issue SIJ predicate orders Recognize the implications of criminal issues on SIJ eligibility

Special Immigrant Juvenile (SIJ) There are several forms of legal immigration status for non-citizen victims of crimes, including Violence Against Women Act (VAWA), Asylum, U Visas, T Visas, and Special Immigrant Juvenile (SIJ). SIJ is a humanitarian protection for children who have been abused, neglected, or abandoned by a parent created by Congress in 1990. SIJ permits these children to apply for lawful permanent residence. There are various forms of legal immigration status for non-citizen victims of crime such as the Violence Against Women Act (VAWA), asylum, U Visas (victims of criminal activity), T Visas (victims of trafficking), and Special Immigrant Juvenile (SIJ).

SIJ Eligibility To be eligible to apply for SIJ, the child must be: unmarried; under the age of 21; physically in the United States; and have a qualifying state court order. The state court must have jurisdiction over the care, custody, dependency or placement of the child, and The state court order must include three statutorily required findings.

Qualifying State Order The court must issue an order, finding, or declaration: regarding the care, custody, dependency, or placement of the child; State agency, private agency, or individuals (e.g., non-offending parent, relative, guardian, etc.) find reunification with one or both parents is not viable due to abuse, abandonment, neglect or similar basis under state law; and it is not in the child’s best interest to return to their home country.1 NOTE – state law applies here NOTE – identify the best caregiver as part of the analysis, 1 INA § 101(a)(27)(J) (codified at 8 U.S.C. § 1101(a)(27)(J)).

Qualifying State Order The qualifying state order does not award any legal immigration status. It is merely a step in the process. Graph 1. Center for the Study of Social Policy, “Special Immigrant Juvenile Status: Guidance for Practitioners and Policymakers to Protect Children and Youth from Guatemala, Honduras, El Salvador and Mexico” (2016)

State Proceedings with Jurisdiction to Make SIJ Findings Any state court with personal jurisdiction over a child and subject matter jurisdiction to issue court orders regarding the care, custody, dependency, or placement of the child. For SIJ purposes, these courts are considered juvenile courts. The state court order will be considered as evidence by USCIS in adjudicating the immigration application. State courts have expertise in making best interest determinations, finding abuse, neglect or abandonment State court order is solely used as evidence in the immigration application, it does not give any form of legal immigration status

Types of Proceedings Dependency Delinquency Guardianship Paternity Custody Child support Divorce / Legal Separation Protection orders Adoptions Motions for declaratory judgment Share example re Medical Visa to SIJ

State Law Governs Definitions of abuse, neglect, and abandonment Best interest of the child analysis Age of majority Often 18, not 21 under state law SIJ findings must be made while court has jurisdiction over the child Court jurisdiction Service of process

One or Both Parents Requirement A court may issue SIJ findings if there was abuse, abandonment, or neglect by one parent and the child is living with the non-offending parent. Abuse may have occurred in the U.S. or in the child’s home country.

Reunification Not Viable Required for SIJ finding Does not require a termination of parental rights Visitation alone does not bar a reunification not viable finding; however, full legal or physical custody to the offending parent will bar such a finding Findings as to who was involved in the abuse, neglect, or abandonment should be made

Best Interest of the Child Required finding that it is not in the best interests of the child to be returned to their home country. Best interest of the child analysis under applicable state law Identifying best placements in the U.S. and home country The immigration status of the caregiver is irrelevant Country comparison are applicable for placement comparisons

Best Practices for SIJ Findings Specific and factual findings regarding: the jurisdiction of the court; the abuse, neglect, abandonment, or similar basis under state law; the role of each offending parent; and the best interest of the child. Cite relevant state statutes, not solely the Immigration and Nationality Act (INA).

SIJ Eligibility & Criminal Issues A finding of juvenile delinquency is not a conviction for immigration purposes, but can have negative immigration consequences. SIJ is a discretionary determination and some grounds of inadmissibility to the U.S. or deportability from the U.S. do not require criminal convictions.

SIJ Eligibility & Criminal Issues Waivable Offenses Prostitution, drug abuse or addiction, smuggling Non-Waivable Offenses Moral turpitude crimes (e.g., theft, shoplifting, murder, spousal or child abuse, domestic violence, fraud, espionage) Drug crimes (e.g., findings and admissions regarding drugs except simple possession of 30 grams or less of marijuana; controlled substances traffickers) Multiple criminal convictions (juvenile delinquency adjudications are not convictions)

Youthful Offender Exception Under the Youthful Offender Exceptions, minors tried as adults can avoid inadmissibility due to a Crime Involving Moral Turpitude (CIMT) if: they were under the age of 18 at the time of the crime, and five or more years have passed since the commission of the crime or release from any resulting imprisonment an the application for admission to the U.S.

Case Scenario The first case on your delinquency docket is Marco, a fifteen year old boy charged with shoplifting. His mother, Maria, is in court as well. Marco’s father, Juan, is not present in court. Maria and Juan have been separated for five years and Maria has custody of Marco. The couple separated because Juan was abusive toward Maria and Marco. The abuse began while the family was living in Mexico, but escalated once the family relocated to the United States. Initially, the abuse was directed at Maria, but as Marco became older, Juan began abusing him as well. To protect her son, Maria separated from Juan, and was given custody of Marco. Maria and Marco have been highly cooperative with the juvenile justice department and have provided all requested documents, including Marco’s Mexican Birth Certificate. Marco has been getting A’s and B’s in school and has never been in trouble before; however, Maria expressed concern that some of his friends are troublemakers. What issues do you see here? What findings would you make?

Why the SIJ Finding is so Important Stability Protection from removal and deportation while the case is pending Lawful Permanent Residency (LPR) in the U.S. Work authorization Education opportunities Financial Aid Admittance to colleges and universities Driver’s Licenses Note – an SIJ recipient may never file an immigration petition on behalf of their natural parents

Current Immigration Trends

New Priorities for Immigration Enforcement AG Jeff Sessions issued a memorandum on April 11, 2017 listing the following new priorities for immigration enforcement: Cases involving the unlawful transportation or harboring of aliens; Cases involving two or more prior misdemeanor improper entry convictions or one or more prior misdemeanor improper entry conviction with aggravating circumstances, such as multiple prior voluntary returns, prior removal, deportation or exclusions, or felony criminal history; Cases involving re-entry by an individual previously removed; Cases involving identity theft or fraud; and Cases involving assaulting, resisting or impeding officers.2 2 Sessions, Jeffrey. Office of the Attorney General. Memorandum for All Federal Prosecutors. (April 11, 2017).

Prior Priorities for Immigration Enforcement Comparatively, former DHS Secretary Jeh Johnson issued a memorandum on November 20, 2014 listing the following priorities:3 Priority 1 – Felons, terrorists, gang members, aggravated felons, etc. Priority 2 – Individuals convicted of one or more significant misdemeanors, three or more misdemeanors, new immigration violators (after January 1, 2014) Priority 3 – Individuals with removal orders issued on or after January 1, 2014 or do not fall into the other two categories) Vast majority of individuals deported fit into Priority 1. In 2015, 86% (Priority 1), 8% (Priority 2), 4% (Priority 3), 2% unknown Note – this memorandum has been rescinded 3 Johnson, Jeh. Department of Homeland Security. Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (November 20, 2015).

Raids and Deportations Changes in policy have led to an increase of deportations Additionally, Immigration and Customs Enforcement (ICE) is more bold in its approach: Places of employment Homes Courthouses Near schools Working with the Department of Motor Vehicles

Raids and Deportations Immigration arrests have risen by close to 40% since 2016.4 Between January 22 – April 29, 2017, ICE arrested 41,318 individuals.5 Between January 20 – April 30, 2016, ICE arrested 30,028 individuals.6 Although nearly 75% of those arrested have been convicted of an offense, non-criminal arrests have also increased: 4,200 non-criminal arrests January 20-April 30, 2016 compared to 10,800 in January 22-29, 20177 Immigration detainers rose to 22,161, a 75% increase from 2016.8 Immigration detainers (aka ICE holds) – voluntary requests from ICE to local law enforcement agencies to hold on to arrested individuals so ICE agents can take them into custody and deport them. 4 Immigration & Customs Enforcement, “Feature: 100 Days of ICE,” AILA Doc. No. 17051707 (Posted May 17, 2017) 5 Id. 6 Id. 7 Id. 8 The Washington Post, “ICE immigration arrests of noncriminals double under Trump,” April 16, 2017

Effects Victims are afraid to report crimes or obtain protective orders Individuals are afraid to become involved with the courts or law enforcement Parents plan for their children’s future in the event of a deportation Widespread uncertainty and mistrust

Impact on Children January 1, 2011 – June 30, 201110 Between 2009 and 2013, almost four million non-citizens were deported from the United States. An estimated half a million of those deportees were parents of U.S. citizen children.9 January 1, 2011 – June 30, 201110 46,486 parents were removed by ICE 39,918 orders of deportation, removal, or exclusion sought for parents January 1, 2013 – June 30, 201311 39,410 parents were removed by ICE 29,417 orders of deportation, removal, or exclusion sought for parents ICE was granted 16,123 final orders July 1, 2013 – December 31, 201312 33,000 parents were removed by ICE 31,801 orders of deportation, removal, or exclusion sought for parents ICE was granted 12,291 final orders 9 “Migration Policy Institute Press Release. Deportation of a Parent Can Have Significant and Long Lasting Harmful Effects on Child Well-Being, As a Pair of Reports from MPI and the Urban Institute Detail. September 21, 2015. Available at migrationpolicy.org. 10 “Deportation of Parents of U.S.-Born Citizens,” Fiscal Year 2011 Report to Congress Second Semi-Annual Report, March 26, 2012 11 “Deportation of Aliens Claiming U.S.-Born Children,” First Semi-Annual, Calendar Year 2013, April 28, 2014 12 “Deportation of Aliens Claiming U.S.-Born Children,” Second Half, Calendar Year 2013 Report to Congress, April 28, 2014

Impact on Children 30% of undocumented parents report that their children are afraid either all or most of the time that one of their parents will be deported.13 Almost 75% of undocumented parents report observing symptoms of Post Traumatic Stress Disorder (PTSD) as a result of this fear.14 Children whose parents have been taken into custody or deported may exhibit a number of health problems including, anxiety, depression, disruption of sleep or eating habits, poor school performance, and, among boys, increased aggression.15 More than 90% of detained and deported immigrants are men, usually resulting in the loss of the family breadwinner. Family income drops an average of 70% during the six months following a parent’s detention.16 Deportation can lead to family dissolution when children are placed in foster care and family reunification can be delayed because parents held in detention centers or living abroad are unable to attend court hearings.17 When family courts and child welfare agencies lack expertise in immigration issues, court rulings and case plans can be based erroneously on anecdotal evidence of risk of deportation, lack of economic resources, and general instability in immigrant families.18 13 National Council of Juvenile and Family Court Judges, “Deportation and Children,” (2017). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id.

Resources National Council of Juvenile and Family Court Judges (NCJFCJ) Factsheet on Deportation and Children http://www.ncjfcj.org/Deportation-and-Children Immigrant Legal Resources Center (ILRC) / Sample Family Preparedness Plan https://www.ilrc.org/ / https://www.ilrc.org/family-preparedness-plan Appleseed Network “Protecting Assets & Child Custody in the Face of Deportation https://www.appleseednetwork.org/wp-content/uploads/2017/03/Custody.first-draft-from-firm.3.8.17-KC-final.pdf National Immigrant Women’s Advocacy Project – American University Washington College of Law https://www.wcl.american.edu/niwap/ American Immigration Lawyers Association (AILA) www.aila.org Immigration Resources: Connecticut Family Preparedness Plan http://portal.ct.gov/FamilyPreparedness Kids in Need of Defense (KIND) Training Manual Chapter 4: Special Immigrant Juvenile Status (SIJS) https://supportkind.org/wp-content/uploads/2015/04/Chapter-4-Special-Immigrant-Juvenile-Status-SIJS.pdf

Questions? Zadora M. Bolin, JD Site Manager zbolin@ncjfcj.org (775) 507-4872