1. Representing Immigrant Children

2. Workshop plan Immigration Terms
Child Migration to the United States from Central America
Introduction to Special Immigrant Juvenile Status and Recent Challenges
Other Common Forms of Immigration Relief:  
Asylum
U Nonimmigrant Status
VAWA
T Nonimmigrant Status
Best Practices for Child Welfare Agencies
Hypos
Questions???

3. DHS DOJ State Court HHS Dept. of Homeland Security Dept. of Justice
U.S. Citizenship & Immigration Services (USCIS)
Immigration & Customs Enforcement (ICE)
Customs & Border Protection (CBP)
Border Patrol (BP)
ICE Officers, Trial Attorneys (TAs)
Asylum Officers (AO)
Dept. of Justice
Executive Office for Immigration Review (EOIR)
Immigration Judges (IJs)
DHS
DOJ
State Court
HHS
Dept. of Health &
Human Services (HHS)
Office of Refugee Resettlement (ORR)
State Courts
Juvenile Court: family part, juvenile delinquency

4. DHS: Department of Homeland Security
Customs & Border Protection (CBP) & Border Patrol – responsible for border security; most often the agencies that encounter the children
Immigration & Customs Enforcement (ICE) – responsible for the detention and removal of immigrants, as well as representing DHS in immigration court
U.S. Citizenship & Immigration Services (USCIS) –responsible for granting immigration benefits, including Special Immigrant Juvenile Status, Asylum and Legal Permanent Residency

5. Basic Terms Defined 2. Lawful Permanent Resident 3. Temporary Visa
1. Citizen
2. Lawful Permanent Resident
3. Temporary Visa
4. Undocumented

6. “Unaccompanied Alien Children”
Defined in federal legislation (Homeland Security Act of 2002):
Children under the age of 18
Without lawful immigration status
Whose parent or legal guardian is not in the US or is unable or unwilling to provide care and physical custody
Question here whether we should add something about how federal practice may change with regard to UACs under EOS?

7. Unaccompanied Children – impact of Executive orders
May move to re-determine UACs who are placed with parent or upon turning 18.
May also not classify as UAC if parent in this country
If no longer UAC, may not be able to access Asylum Office
If not initially classified as UAC, may not be able to access special protections under TVPRA.
Children placed with ORR sponsor are no longer a priority in immigration court
Developing plan to go after parents who pay for smugglers.
Maybe we just move this slide up to the UAC definition section and then perhaps not address the Eos at all unless the come in as questions, but include the slides in the materials as an fyi?

8. Why do CHILDREN come to u.s.?
Push Factors
Lacking adequate adult caretaker
Child abuse and neglect
Pervasive Gang and cartel violence
Recruitment
Sexual and gender-based violence
Extortion of children and families
Lack of state protection & persecution by government
Poverty
Pull Factors
Reunification with caretaker in U.S.
Relative Safety and security of U.S.
Economic opportunities / education
Sarah

9. How do most recent child arrivals get to the U.S.?
Central America  Mexico  U.S. / Mexico Border
Smuggled / Trafficked / Travel Alone
Motor Vehicle / Train / Walking
Dangers of Journey
Violence
Cartels / Gangs / Kidnapping / False Imprisonment / Extortion
Sexual Violence
Deprivation
Lack of food and water
Intense weather
But, countervailing risks
in home country
Sarah

10. Unaccompanied Minors Encountered by Fiscal Year and Country of OriginFY
2009
2010
2011
2012
2013
2014
2015
2016
El Salvador
1,221
1,910
1,394
3,314
5,990
16,404
9,389
17,512
Guatemala
1,115
1,517
1,565
3,835
8,068
17,057
13,589
18,913
Honduras
968
1,017
974
2,997
6,747
18,244
5,409
10,468
Mexico
16,114
13,724
11,768
13,974
17,240
15,634
11,012
11,926

11. Surge in Child Arrivals
Dramatic increase in child arrivals:
FY 2012: 24,403
FY 2013: 38,759
FY 2014: 68,541
FY 2015: 39,970
FY 2016: 59,692
FY 2017 (10/16 -3/17): 28,615 (numbers dropped precipitously in February and March 2017)
*Note: figures are of unaccompanied children in removal proceedings, and do not include accompanied children in removal proceedings and children not apprehended by immigration authorities
Sarah

12. Flow of Unaccompanied Children through the Immigration System
Transfer to
HHS/ORR
Custody
Apprehension at the border or internally – placed in DHS custody
Continued
ORR
Custody
Immigration Relief
Removal/
Voluntary Departure
Release to ORR Sponsor
In Absentia
Sarah
ICE Files Notice to Appear
EOIR: IMMIGRATION REMOVAL PROCEEDINGS

13. The Removal Process
Expedited removal: Process used to remove people from the US who attempt to enter without proper documents or via fraud. (Does not usu apply to UACs unless have prior order of removal)
Can be refused entry and ordered immediately removed
Barred from returning legally to US for 5 years
May get review of your case by an Immigration Judge IF
You pass a “credible fear” interview
You have a claim to legal status in the U.S.

14. Special Immigrant Juvenile Status

15. What is SIJS?
Federal Law that helps certain undocumented youth obtain lawful immigration status
Leads to Lawful Permanent Resident Status
Child will never be able to sponsor parent

16. Special Immigrant Juvenile - TVPRA/2008
An immigrant who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law 8 USC §1101(a)(27)(J); INA §101(a)(27)(J)
Elissa

17. Special Immigrant Juvenile – 2008 cont’d
PLUS a state court finding that it is not in the child’s best interest to return to his/her country of origin
Elissa

18. Factual Findings Under 21 Not married In the U.S.
Dependent upon juvenile or family court
Reunification with one or both parents not viable due to abuse, neglect, abandonment, or something similar
Not in youth’s best interest to return to country of origin

19. 2 step - Process
STEP #1: State Court (in NJ, Superior Court, Family Part) must make factual findings
STEP #2: If state court renders all requisite factual findings (predicate order), can apply to Immigration authorities for SIJS and green card
I-360 (application for SIJS)
I-485 (application to adjust to permanent resident status) MAY NEED TO TERMINATE REMOVAL PROCEEDINGS AND MAY HAVE TO WAIT TO FILE DUE TO QUOTAS
Perhaps also I-765 (application for work permit) MAY HAVE TO WAIT TO FILE DUE TO QUOTAS

20. Which TYPE OF Family Court matters?
Child Protection Proceedings
Termination of Parental Rights
Custody or Guardianship
Juvenile Justice
Adoption
Divorce
Randi

21. Dependent on the Juvenile Court
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 or “placed under the custody of an individual or entity appointed by a State or juvenile court.”
This can include wards of the State (foster children) AND children who have been placed in the custody of individuals or entities.
8 U.S.C. § 1101(a)(27)(J)(i).
Randi

22. reunification not possible due to abuse, neglect, abandonment or something similar
Will vary from State to State
New Jersey’s Definition of an abused child
Under 18
Parent, guardian or other person having care & control
Non-accidental physical injury
Commits sexual abuse or allows to be committed
Physical, mental or emotional condition impaired or imminent danger of becoming impaired
Adequate maintenance (food, clothing, shelter, etc.)
Substantial risk of harm
Abandoned
Randi

23. How to Determine “Best Interests Not to Return”
Look to standard for “best interests” found in State law
Consider factors such as:
lack of caretaker in home country
family support system,
physical and emotional well-being of child
special needs of child
medical and educational resources
Randi

24. CASE EXAMPLE - GILDA Gilda resided in Honduras until she was 16.
Mother and father gave her up as an infant to be raised by paternal uncle and his wife
Parents never provided for child. Father had substance abuse issues and involved in criminal activity in Honduras.
Three years ago, father went missing and presumed dead
Uncle was then killed one year later - killed by gangs while investigating father’s (his brother) death
Aunt could no longer care for Gilda
Gilda fled to U.S. to live with maternal aunt in New Jersey
Aunt in New Jersey kicked her out so Gilda ended up in New Jersey’s foster care system

25. Role of the State Court
The State Court renders the factual findings and issues the predicate order. State Court has no jurisdiction to decide whether any child qualifies for SIJS.
Abuse/neglect/abandonment findings must be made under STATE law, not the law of the child’s country of origin.

26. Challenges- evidentiary issues
Proving Abuse, Neglect, Abandonment or Something Similar?
What if abuse or neglect happened a long time ago?
Is there any tangible evidence besides the youth’s story?
What if the concerns are more community conditions?

27. Challenges- accessing court
Does the matter really need the Court’s attention? In other words, is the jurisdiction of the court necessary or even authorized ?

28. Challenges- child living with one parent
What is the meaning of “reunification with one or both of the immigrant's parents is not viable . . .?”
Randi

29. USCIS Position on One-Parent Claims
Sarah
Source: Immigration Relief for Abused Children, Information for Juvenile Court Judges, Child Welfare Workers and Others Working with Abused Children, United States Citizenship and Immigration Service (April 2014), available at

30. Challenges- Emancipation
Can you file if the youth is approaching or over the age of 18?

31. Challenges- Paternity
What if father’s name is not on birth certificate and parents were never married?

32. Challenges- Service of Process
Must make every effort to serve Defendant parents
Consider using an acknowledgement of service
If cannot serve, may have to make diligent efforts
Last resort – motion to waive service
Issues involving Hague Convention

33. Other Common Forms of Immigration Relief

34. Other Forms of Immigration Relief
Asylum
U Visa
VAWA
T Visa

35. ASYLUM

36. Asylum: Definition
An individual is eligible for asylum if she meets the definition of a refugee. Immigration & Nationality Act (INA) § 208(b)(1)(A).
A refugee is “any person who is outside any country of such person’s nationality and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A)
Definition based on international law: UN Protocol Relating to the Status of Refugees, Art I(2)
Statutory and regulatory standards: INA § 208; 8 CFR § 208

37. Common asylum claims Gang-based threats or violence
Harm suffered on account of family
Child targeted based on sexual orientation/identity
Victim of domestic violence by partner or caretaker
Child forced into prostitution, marriage or human trafficking
Exploitation as street child, forced or exploitative labor

38. Asylum ELIGIBILITY
A person who fears returning to her home country due to fear of harm based on:
Race
Religion
Nationality
Membership in a particular social group
Political opinion
Gov must be unwilling or unable to help

39. Asylum continued
Common social group claims for children are often based upon domestic violence, sexual assault, gang violence, or sexual orientation
Children can be derivatives on their parents’ asylum applications (not necessary to have U.S. residence)

40. Asylum continued Child specific differences
Legal standards differ:
Fear or harm less than an adult and still qualify as persecution
Not required to present testimony with same degree of precision
Typically, asylum seekers must file within one year of entry into U.S. but there are exceptions for children based on age
Even if in removal proceedings, a child’s asylum case can be heard as if it was an affirmative claim at the Asylum Office in an non-adversarial setting

41. Asylum BENEFITS Temporary protection from deportation
Ability to live and work in the U.S. legally
Ability to apply for lawful permanent residency after receiving asylum status for one year
Gov must be unwilling or unable to help

42. Uac Asylum – case example
Angela is from Honduras. Her mother came to the U.S. when she was 5 and her father abandoned the family when she was 2. She lived in the care of various relatives from the ages of 5 to 17.
When Angela was 7, an older male cousin started sexually abusing her. The abuse continued until she was 14, when she disclosed the abuse to her aunt and reported it to the authorities.
The police interviewed Angela about the abuse but did not press charges or otherwise pursue Angela’s abuser. When the abuser found out that Angela reported the abuse, he threatened to kill her.
Angela reported that threat to the police and they did nothing. She lacked the ability to move to a different area of the country, and she found out that her abuser was tracking her whereabouts.
Angela came to the U.S. to seek safety from her abuser.

43. U VISA

44. U Visa - Eligibility Victim of certain crimes who:
Has suffered substantial physical or mental abuse
Has been, is, or will be helpful in investigation/prosecution or detection of crime
Certified by the police, prosecutor’s office, a judge, or child protective services (DCPP)

45. U Visa Crimes: INA 101(a)(15)(U)(iii)
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping
Abduction
Unlawful criminal restraint
False imprisonment
Blackmail
Extortion
Manslaughter
Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Stalking
Foreign labor contracting fraud
Or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes

46. U Visa BENEFITS Temporary legal status
Permission to live and work in the U.S. for up to 4 years
Ability to apply for a green card after 3 years
Ability to apply for derivatives
Add one more bullet about long waits/delays because of quota?

47. Certification Process
Attorney must provide completed certification for signature & letter request
Child Welfare Agency can complete certifications.

48. Violence Against Women Act (VAWA)
The Violence Against Women Act was signed into law by President Clinton in 1994 as part of a larger crime bill to address domestic violence, sexual assault and stalking. VAWA has been amended several times. VAWA includes special provisions for battered immigrants that allow them to gain legal immigration status without relying on their abusive US citizen or LPR spouses or parents.
Affirmatively
Defensively
If we need to shorten anything I would say that we can shorten VAWA section by skipping this slide and the next one and just using the last slide.
Self-Petition
and adjust status with CIS
Cancellation of Removal
to adjust status in Immigration Court

49. VAWA Must prove the following:  Status of Abuser (USC or LPR)
 Marriage Requirements
 Legal Marriage
 Good Faith Marriage
 Battery or extreme cruelty
 Residency Requirements
 Self-petitioner lived with abuser  Self-petitioner’s current residence
 Good Moral Character (3 years prior)
See INA § 204

50. T Visa Eligibility: Victim of human trafficking who
Has reported the trafficking to local/federal authorities
Has complied with reasonable requests for cooperation from law enforcement
Is in the US on account of the trafficking
Has not had an opportunity to leave the US
Would face extreme hardship if removed from the US
Benefit obtained:
4 year visa; can apply for residency after 3 years

51. BEST PRACTICES

52. COLLABORATION BETWEEN RUTGERS AND DCF

53. IMPORTANT TO ENSURE THAT CHILDREN WHO HAVE IMMIGRATION ISSUES ARE REPRESENTED

54. PARTNERING WITH RUTGERS
MOU Started: May 2016
3 Attorneys: 2 North; 1 South
Cases: 117 to date
Parameters: children 0-21; open cases
* parents, refer out, see list
Custody, care & supervision & non-litigated
MOU centralized legal services & permits tracking the need for services in the population CP&P services
I moved the photos because they were off the slide.

55. DATA on current cases country of origin
Number of Cases
Honduras 21
Mexico 15
Guatemala 14
El Salvador 12
Dominican Republic 6
Liberia (5), Haiti (4)
4-5
Colombia 3
Philippines, Jamaica, Poland, Nigeria, Jordan, Peru, Ecuador, India 2
Ghana, British Virgin Islands, Belarus, Argentina, Ivory Coast, Bahrain, Chile, China, Korea 1

56. IDENTIFYING A NEED
Foreign born residents make up 21.7% of New Jersey’s population according to the 2015 U.S. Census (
How to recognize when a client might benefit from immigration assistance?
- social security #?
- foreign birth certificate?
- unable to provide or unsure about providing identifying documentation

57. NEW CHILD WELFARE POLICIES AND PROJECTS IN NEW JERSEY

58. The GREAT HURDLE: DOCUMENTS
1. INTERNATIONAL SOCIAL SERVICES
Locating Family in Other Countries
Locating Foreign Documents
in Other Countries
Document translation services
See CPP–IV-C-9-200/ referral form (Gayle Williamson)
2. WORKING WITH CONSULATES
◦ Provide lots of services for their nationals
◦ Travel & document location & creation services
◦ Parternship w/ Mexico & contact w/ Guatemala
◦ Contact Office of Legal Affairs for Assistance

59. Placing with Undocumented Family Resources
CPP-IV-A : Placement of Children with Kinship Caregivers Who Are Undocumented Immigrants
“A child may be placed with kinship caregivers who are undocumented immigrants only when such placement is clearly in the child’s best interest. Approval must be obtained from the CP&P Director or designee prior to placement, and a waiver of the home study requirement in N.J.A.C. 10:122C-5.3(a)(1)(ii) must be granted by the Office of Licensing.”

60. Hypo #1
Lena is 14 years old and was born in Bulgaria. She is currently undocumented. She was removed from her mother and step father due to unabated drug use and sexual abuse in New Jersey. Her biological father died in Bulgaria when she was 3 years old. CPS is granted custody of her and she is placed in the home of a family friend. The court makes findings of abuse and neglect against both her mother and her step-father.
Could Lena qualify for SIJS? What else might she qualify for?

61. Hypo #2
Myra is 15 and is an undocumented immigrant from El Salvador. She had been living with her father who physically abused her. The abuse became so bad that she went to live with a friend’s family (on their couch). Recently, she was caught shoplifting food items and toiletries at the local Walmart. She has juvenile charges pending. CPS is also now involved, but no litigation has yet been initiated.
Could Myra qualify for SIJS? How?

62. Hypo #3
Juan is undocumented and turned 18 six months ago. He arrived in the United States when he was He fled to the United States from Guatemala and was stopped at the border. After spending two months in an ORR shelter in Texas, he was released to his uncle in New Jersey. In Guatemala, his father was murdered by a and his mother beat him and wanted nothing to do with him because he is homosexual.
What forms of immigration relief might Juan qualify for? What potential problems do you anticipate?

63. questions and contact information
Joanne Gottesman
Clinical Professor and Director
Immigrant Justice Clinic
Rutgers School of Law
(856)
Randi Mandelbaum
Clinical Professor of Law, Annamay Sheppard Clinical Scholar, and Director, Child Advocacy Clinic Rutgers School of Law (973)
Meredith Pindar, Esq.
Immigration Legal Specialist
Office of Legal & Legislative Affairs
Department of Children & Families
(609)