1. Intersection of Immigration and Child Welfare Law: Case Review and Discussion
ABA Center on Children and the Law
Child Welfare and Immigration Preconference
April 26, 2017

2. Background: When Child Welfare and Immigration Intersect
Estimated 5.3 million children in the United States live with unauthorized immigrant parents. Eighty-five percent of these children are United States born citizens.
Between 2009 and 2013 an estimated half a million parents were deported from the United States.
In fiscal year 2016, United States Immigration and Customs Enforcement (ICE) deported 240,255 people from the United States.
ICE reports that the leading countries of origin for deportations in fiscal year 2016 were Mexico, Honduras, Guatemala, and El Salvador.

3. Background: When Child Welfare and Immigration Intersect
2011 Report “Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System” estimated that there were 5,100 children in foster care related to immigration enforcement.
A 2015 report by Migration Policy Institute and Urban Institute found that immigration enforcement impacts child and family well-being and can result in:
Family economic hardship;
Psychological trauma to children;
Difficulty accessing social services because of language barriers, difficulty documenting eligibility, mistrust and fear; and
Family separation, child welfare involvement, potential termination of parental rights.

4. Background: When Child Welfare and Immigration Intersect
In fiscal years 2014 through 2016 approximately 168,000 unaccompanied children and 186,000 families (at least one parent and one minor child) were apprehended by Customs and Border Protection (CBP) entering the United States.
Unaccompanied children and families are primarily arriving from Guatemala, Honduras and El Salvador and are often fleeing violence.
States with highest numbers of unaccompanied children residing with sponsors while they go through immigration legal proceedings are: California, Texas, Florida, New York, Virginia, Maryland, and New Jersey.
State and county data is available at:

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

6. DHS DOJ State Court HHS Dept. of Homeland Security Dept. of Justice
Citizenship & Immigration Services (CIS)
Immigration & Customs Enforcement (ICE)
Customs & Border Protection (CBP)
ICE Officers, Trial Attorneys (TAs), Asylum
Office Interviewers, Service Centers
Dept. of Justice
Executive Office for Immigration Review (EOIR)
Board of Immigration Appeals (BIA)
Immigration Judges (IJs)
DHS
DOJ
State Court
HHS
This is a representation of the various departments and agencies that a child, and you as the child’s pro bono representative, may come into contact with.
The DHS is divided into three departments: CBP, ICE (TA) and CIS
DOJ EOIR BIA and immigration courts
Department of Health and Human Services ORR, URM, and DUCS
State juvenile courts play a role in a form of relief called SIJS that is sought by some children, which we will discuss at length during this presentation.
Dept. of Health &
Human Services (HHS)
Office of Refugee Resettlement (ORR)
Unaccompanied Refugee Minors (URM)
Div. Of Unaccompanied Children’s Services (DUCS)
Shelter Workers, Therapists, Field Coordinators
State Courts
Juvenile Court: family part, juvenile delinquency

7. Unaccompanied 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?

8. How does a child’s case get to immigration court?
ICE: Interior Apprehension, Raids OR
CBP: Border Apprehension then transferred to ICE custody
ORR/DUCS
Custody
Continued
ORR
Placement
Immigration Relief
Removal/
Voluntary Departure
Release to Family/ORR Sponsor
In Absentia
We saw in the introductory set of slides on how children are apprehended by one of the agencies of DHS, either ICE or CBP. While adults continue to be detained in the custody of ICE, children must be transferred to the custody of the ORR DUCS. Children may remain in ORR custody, even being transferred among facilities, or be released to a family member. NJ KIND often first starts to work with children when they are released from an ORR facility, which may be somewhere along the border in AZ or TX, to a family member in NJ. Then, while living in a home environment with a family member or other adult, that child may seek out immigration counsel for the child’s immigration case.
At the same time as all of these decisions regarding the child’s custody are being made, the child is in immigration removal proceedings. At apprehension, the arresting officer will generate the Notice to Appear (“NTA”), which is the charging document. The arresting officer includes on the NTA the factual charges against the child, such as the date and location that the child is believed to have entered the U.S. without authorization by a DHS officer. A copy of the NTA will be provided to the child, and once the NTA is filed with the nearest immigration court, the Department of Homeland Security has initiated removal proceedings against the child. Because the immigration courts are a federal system of connected immigration courts all over the country, when a child is moved, for instance from an ORR detention center in TX, to a family member in NJ, the case moves with the child, i.e. from a TX immigration judge’s docket, to the juvenile docket at Newark immigration court. A change of venue is needed.
ICE Files Notice to Appear
EOIR: IMMIGRATION REMOVAL PROCEEDINGS

9. How does an adult’s case get to immigration court?
New Enforcement Priorities include removability +
Has been convicted of ANY criminal offense
Has been charged with any criminal offense not yet adjudicated
Has committed acts which constitute a chargeable criminal offense
Deemed to pose a safety or national security risk in judgement of an immigration officer
Question: Is any undocumented person excluded?

10. How does an adult’s case get to immigration court?

11. 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.

12. Background: Child Welfare 101
When parents are unable, unwilling or unfit to adequately care for their children, the state “child welfare agency” or “child protective services” may step in to provide services to the family. This may include taking a child out of his or her parents’ custody and placing the child into foster care.
Child welfare law includes both state and federal law. State laws generally define what constitutes abuse or neglect, the legal standard for removing children from their parents’ custody and placing them in foster care, returning children to their parents’ custody, and/or choosing a “permanent plan” for children.
Federal law provides the child welfare framework. In order to receive federal funding for child welfare, states must comply with certain federal child welfare law mandates, including making reasonable efforts to prevent removal of children from their parents and to reunify children with their parents and finalize the children’s permanency plans.

13. Background: Child Welfare 101
Most families become involved with the child welfare system because of a report to the child welfare agency of abuse or neglect.
Once a report of abuse or neglect is “screened in” (i.e. there is a child safety concern), the child welfare agency will investigate the report.
If there is evidence of abuse or neglect and an ongoing safety concern that cannot be mitigated through voluntary services to the family, the child welfare agency will file a petition in court.
The petition will trigger the state court proceedings and will include allegations that the child has been abused or neglected. The child may stay in the custody of the parent with court supervision, or the child may be placed in foster care.
The primary focus of child welfare proceedings is safety, permanency, and well-being. In most cases, when a child is placed out of his or her parents’ custody, the goal of the child welfare system is to reunify the family.

15. Child Welfare 101: Key Points
In most states, parents and children are appointed counsel in child welfare legal proceedings. Information on right to counsel in child welfare proceedings can be found at:
Federal law does not base eligibility for reimbursement of state child protection services, which include prevention services, on a parent or child’s immigration status if certain conditions are met.
The first goal under the Adoption and Safe Families Act (ASFA) is to reunify children with their parents. Federal law does not prohibit reunification with parents who are undocumented or live outside the country.
Federal law requires child welfare agencies to notify adult relatives when a child is removed from the custody of a parent. There is no exception for relatives living outside the United States.
Federal law does not preclude placement of children with relative caregivers who are undocumented and federal funds can be used to support the placement in certain circumstances.

16. Child Welfare 101: Other Federal Law and Treaties that Impact Child Welfare Proceedings
Vienna Convention on Consular Relations requires the United States “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the best interests of a minor” who is a foreign national. The consulate can be very helpful locating parents and relatives who are oversees and identifying services available in the parents’ or children’s country of origin.
Title VI of the Civil Rights Act prohibits discrimination based on “race, color, or national origin” under any program or activity receiving federal financial assistance. The United States Department of Health and Human Services (HHS) and Department of Justice (DOJ) have issued Title VI guidance for child welfare agencies at: child-welfare-guidance pdf

17. Case Scenario 1
Sara came to San Francisco from Mexico as a child. She does not remember coming, but thinks she crossed the border in a car with her mother. She has never had any contact with immigration authorities but she has no legal immigration status. She is currently fourteen years old. Six months ago her mother’s new boyfriend moved into the home. Three months ago he started making sexual advances towards Sara. Sara’s grades plummeted and she started missing school. When the school counselor reached out to Sara, she learned what had been happening. The counselor made a CPS report and Sara was removed and placed with an Aunt, with whom Sara has a close relationship. Sara’s aunt is also undocumented.

18. Case Scenario 1: Discussion Questions
How might immigration status impact Sara’s placement?
How might immigration status impact reunification services to Sara’s mom?
What type of immigration relief might Sara qualify for? Might Sara’s mom be able to obtain derivative status through a grant of immigration relief for Sara?
What should Sara’s attorney in family court advocate for?
What other type of assistance will Sara and her family need?
What options will Sara have if she is able to reunify with her mother?

19. Case Scenario 2
Marco, who just turned 17 years of age, came from Honduras fleeing gang violence approximately one year ago. He had been living on his own for several years, mostly on the street. He has never known his father and his mother died three years ago. He was apprehended at the border and placed in an Office of Refugee Resettlement shelter and placed in deportation proceedings. At the shelter Marco shared the name of an Uncle who he had not seen in many years. He was released to the uncle and his family in Oakland, CA. Soon after he arrived it became clear that the uncle did not have space for him or a desire to care for him. Marco began couch surfing with different friends and sometimes sleeping outside. His school counselor made a report to Child Protective Services after she noticed he was constantly falling asleep in class. The CPS hotline worker asked if he could be “sent back” to the Office of Refugee Resettlement shelter.

20. Case Scenario 2
What is the child welfare agency’s responsibility in this scenario?
What are the potential benefits of placing Marco in the child welfare agency’s custody (foster care)?
What could happen if the child welfare agency refuses to act?  Do any other local or state agencies have any responsibility here?
What kind of assistance will the minor require on his immigration case?
What type of immigration relief might he qualify for?

21. Case Scenario 3
Laura and her five year old son Christopher fled El Salvador to the United States in 2015 and crossed the border together without inspection. Laura made the decision to flee because her domestic partner had been subjecting her to constant physical and emotional abuse since Christopher’s birth. Laura felt she could not leave the relationship because her partner was a leader of the neighborhood gang. In the United States Laura suffered from depression and post traumatic stress disorder, and without family support eventually became unable to work and homeless. A teacher at Christopher’s school contacted CPS upon noticing that Christopher was frequently ill and hungry at school. The CPS caseworker explained to the school that she was hesitant to get involved given the mother’s undocumented status and because the child welfare agency has very few services for non-English speakers.

22. Case Scenario 3
What is the child welfare agency’s obligation to Christopher and his mother?
Do any other agency’s have a responsibility to assist Christopher and his mother?
What would be the impact to Christopher and his mother if the child welfare agency filed a case in family court?
If Christopher was removed from his mother’s care, what steps could Christopher’s mother’s attorney take to help her reunify with Christopher?

23. Case Scenario 4
Fatima is a long time lawful permanent resident of the United States who is the mother to a U.S. citizen daughter who is 10 years old, named Ami. When Ami was 8 years of age, Fatima’s husband (Ami’s father) died and Fatima was left to support the family. She was barely able to earn enough money as a maintenance worker at a local office building and began falling short on her rent. Desperate, one night she stole a laptop from the office building where she worked in order to sell it. Caught on surveillance video, she was arrested and subsequently transferred to immigration custody where she was detained for six months before being ordered deported to Haiti because her conviction was classified as an “aggravated felony.” Fatima had never imagined she could face deportation and had not designated a potential guardian for Ami. The police who arrested Fatima contacted CPS who placed Ami in the foster care system. Ami believes she has an aunt who might be willing to care for her.

24. Case Scenario 4
What type of planning would have been most beneficial to Fatima prior to her apprehension by ICE?
If Ami desires to attempt to live with her aunt, how can her attorney best advocate for her?
How could Fatima’s child welfare attorney have helped Fatima while she was in ICE custody?
If Fatima wants to reunify with Ami in Haiti, what should her child welfare attorney do to help her?
How could an immigration attorney have assisted Fatima while she was in immigration detention, both with regard to her parental rights as well as her removal proceedings?
Should an immigration attorney be identified to attempt to help Fatima return to the United States and, if so, how?

25. Resources
HHS, Information Memorandum, “Immigration Enforcement and Child Welfare; Case Planning; Foster Care”
ICE Directive, “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities”
Online Detainee Locator System:
ABA Child Law Practice, “Keeping Immigrant Families in the Child Protection System Together” on/keeping-immigrant-families-in-the-child-protection-system-togeth.html