Primer on the State Court Judges Role in Special Immigrant Juvenile Classification

Presented by the ABA Working Group on Unaccompanied Minor Immigrants and the ABA Judicial DivisionOctober 27, 2015

Primer on the State Court Judges Role in Special Immigrant Juvenile ClassificationParticipating in the WebinarA tone has been added to indicate when the slide should be advanced.Introduction

Immigration & SIJS Background

USCIS on SIJS: Overview, Juvenile Court Orders, and Federal Role in Adjudication Process

State Court Perspective and Common Challenges

Q&A

Presenter biographiesThe Honorable Katherine G. Essrig serves as a Circuit Court Judge in Floridas 13th Judicial Circuit in Tampa. She has served as a judge since 1991, and she currently is the administrative judge for her circuits unified family court, as well as the administrative judge for that courts juvenile dependency court. She previously served as a judge in her circuits domestic relations and criminal divisions. Judge Essrig serves as a member of the Hillsborough County Childrens Board, as well as of the Florida Supreme Court Steering Committee on Families and Children in the Courts.She is the recipient of the 2012 William E. Gladstone Award, which is presented annually to a Florida judge who has demonstrated a long-term commitment to safeguarding the welfare and dignity of children, as well as the 2015 Casey Families Program National Judicial Leadership Award.

Angie Junck is a supervising attorney at the Immigrant Legal Resource Center in San Francisco.Angie joined the ILRC in 2005 as a New Voices fellow, and specializes in immigrant youth, the immigration consequences of crime and delinquency, and immigration enforcement issues.She is a co-author of several ILRC publications including, Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth.She sits on the American Bar Association's Immigration Commission and is the co-chair of the Immigration Committee of the ABA's Criminal Justice Section.Eileen Matuszak presently works for U.S. Citizenship and Immigration Services (USCIS) the federal agency that adjudicates applications for immigration relief for victims of child abuse and neglect, known as the Special Immigrant Juvenile (or SIJ) program. She works at the USCIS Office of Policy & Strategy on policy, regulations and outreach related to the SIJ program. Eileen previously worked for seven years with the U.S. Department of Health and Human Services, overseeing services for unaccompanied children in federal custody. Prior to joining the federal government, she worked for six years in the non-profit sector in the field of adoption and foster care. Eileen has a Master's Degree in Social Work with a concentration in Child Welfare from the University of Wisconsin Madison.

** The webinar presentation by USCIS will not be recorded and cannot distributed. Supplemental overview materials will be available on the webinar recording and online at www.ambar.org/cwimmigration and www.ambar.org/ican.**Immigrant ChildrenApproximately 23.2 percent of children in the United States are either immigrants or the children of immigrantsMany children of immigrants are citizens, having been born in the United StatesOther children are without legal status, but have grown up almost entirely in the United States and consider this country homeMay not speak the language of their home countryMay be unaware of lack of legal statusStill other children may have arrived to the U.S. recently, fleeing violence, abuse or other harmUnaccompanied; orWith a parent or parents 2015 Immigrant Legal Resource Center

Unaccompanied Immigrant Children (UACs) DefinedA child who:has no lawful immigration status in the United States;has not attained 18 years of age; has no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody.

Source: 6 U.S.C. 279(g)(2)

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Source: acf.hhs.gov: UAC Fact SheetSee 6 U.S.C. 279(g)(2)

7Who are UACs?In FY 2014:UACs primarily from 3 countries: Guatemala (32%), El Salvador (29%) and Honduras (34%), though include children from all over the World66% male and 34% female27% were under 14 years old8

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8Influx of Unaccompanied ChildrenSharp increase in UACs detained in recent yearsFrom 2003-2011, average of 6,775 referrals per fiscal year2012: 13,625 referrals2013: 24,668 referrals2014: 57,496 referrals 2015 through August: 23,670 referrals 2015 Immigrant Legal Resource Center

Note: no statistics on accompanied kids/referralsNote: influx not limited to U.S. children from northern triangle countries also seeking refuge in Mexico, Panama, Nicaragua, Costa Rica and BelizNote: Mexican nationals relatively low number

9Why Are Children Coming to the U.S.?Children have many reasons for coming to U.S. but researchers consistently cite increased violence in Honduras, El Salvador and Guatemala as primary recent motivation, particularly gang or cartel violence

Other reasons for migrating include poverty and family reunification

For further information, see American Immigration Council, Children in Danger: A Guide to the Humanitarian Challenge at the Border (July 2014): http://www.immigrationpolicy.org/special-reports/children-danger-guide-humanitarian-challenge-border

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10Why Are Children Coming to the U.S.?My grandmother is the one who told me to leave. She said: If you dont join, the gang will shoot you. If you do, the rival gang or the cops will shoot you. But if you leave, no one will shoot you. -- Honduras, Age 17I am here because the gang threatened me. One of them liked me. Another gang member told my uncle that he should get me out of there because the guy who liked me was going to do me harm. In El Salvador they take young girls, rape them and throw them in plastic bags. My uncle told me it wasnt safe for me to stay there. They told him that on April 3, and I left on April 7. -- El Salvador , Age 15 My step-father used to beat me. He would get angry at me and hit me with a belt, punch me, or beat me with a metal pipe. I would protect my mother and he would get angry at me. Mexico, Age 17

Source: UNHCR Report: Children on the Run11 2015 Immigrant Legal Resource Center

Why Are Children Coming to the U.S.?In El Salvador, there is a wrongits being young. Youre stalked by gangs, authorities beat and follow kids because they dont trust them; they think theyre gang members. There are no jobs for young people because employers dont trust the kids either... It is better to be old. - CarlosDespite the horrific conditions that some of the children underwent in making the journey to the United States, the majority stated they would still make the trip, even with the knowledge of how difficult the journey was. As one child explained, If you stay you will die, if you leave, you mighteither way its better to try.

Source: Womens Refugee Commission: Forced From Home12 2015 Immigrant Legal Resource Center

Border Crisis or Humanitarian Crisis?UNHCR data reveals that no less than 58% of the 404 children they interviewed were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.Many children are turning themselves over to Border Patrol agents upon arrival and are not seeking to evade apprehension.

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Basics of Immigration Law: Immigration StatusWhile many children who enter the U.S. do not have lawful immigration status, some will be eligible for humanitarian immigration relief, including: Asylum, Special Immigrant Juvenile Status, U visas, and T visasSome youth may be eligible for multiple forms of humanitarian immigration relief14 2015 Immigrant Legal Resource Center

Special Immigrant Juvenile Status (SIJS) provides legal protection for certain undocumented immigrant youth who have been abused, abandoned, or neglected, by allowing them to legalize their immigration status and become lawful permanent residents

Obtaining SIJS is a two or three step process: first step takes place in state juvenile court and the remaining steps take place with USCIS or Immigration Court In this sense, SIJS is a unique hybrid of federal and state law the federal relief depends on initial findings by a state courtWhat is SIJS? 2015 Immigrant Legal Resource Center

15SIJS Basics: History 2015 Immigrant Legal Resource Center

Section 153 of the Immigration Act of 1990

16In 1997 Congress amended the statute to (among other things) require the juvenile to have been deemed eligible . . . for long-term foster care due to abuse, neglect, or abandonment. SIJS Basics: History

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Depts. of Commerce, Justice, & State, the Judiciary, & Related Agencies Appropriation Act, Pub. L. No. 105-119, 113, 111 Stat. 2440, 2460 (1997).

"The SIJ provisions of the INA were enacted in 1990 to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States." Yeboah v. U.S. Dept. of Justice, 345 F.3d 216, 221 (3d Cir.2003). "Rather than being deported along with abusive or neglectful parents, or deported to parents who had abandoned them once in the United States, such children may seek special status to remain in the United States." Ibid. As originally enacted, however, the statute "was abused . . . by juveniles entering the United States as visiting students" who used it to improve their immigration status. Ibid.

17SIJS Basics: History 2015 Immigrant Legal Resource Center

The Immigration and Nationality Act at 101(a)(27)(J), codified at 8 USC 1101(a)(27)(J). This statute is in turn implemented by standards set out in federal regulations, found in the Code of Federal Regulation at 8 CFR 204.11.CAUTION: The regulations have not yet been updated to reflect changes made to the underlying Special Immigrant Juvenile statute, which was significantly amended in 2008 by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, Pub. L. No. 110-457, 122 Stat. 5044.

18Juvenile CourtA juvenile court is defined as any court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. 8 C.F.R. 204.11(a) Kinds of courts that have jurisdiction over custody and care of juveniles vary among and within states, but may include:Juvenile Delinquency CourtsProbate/Guardianship CourtsJuvenile Dependency CourtsFamily CourtsDistrict Courts

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19Who might be eligible for SIJS?A child who was raised in the United States, enters into the child welfare system and is now living with one parent, when the other parents reunification services have been terminated by the courtA child who arrived unaccompanied to the United States and is now residing with a paternal uncle who has petitioned to be his guardianA child who has lived in the United States since the age of 6, was adjudicated a ward of the juvenile court after a delinquency offense and has been placed on probation, who cannot reunify with his mother because of abandonmentA child who arrived to the United States in December 2014 who was abused by her father in her home country and is now living safely with her mother, who has been granted sole legal custody of her20 2015 Immigrant Legal Resource Center

20SIJS Basics: Current Eligibility Requirements 2015 Immigrant Legal Resource Center

Steps of an SIJS CaseState court order making the three findings required for SIJS;Application for a Special Immigrant Juvenile visa (Form I-360) with U.S. Citizenship and Immigration Services (USCIS);

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Application for adjustment of status (a green card) using Form I-485 either with USCIS or in the Immigration Court. 2015 Immigrant Legal Resource Center

22State court perspectiveNew type of case?

Reunification with one or both parents not viable due to abuse, neglect, abandonment, or similar basis under state law

EvidenceNext WebinarJudges Choice: Presenters Answer Your Questions on SIJS Tuesday, December 83:00-4:00 pm ET/12:00-1:00 pm PTSet the agenda for this webinar! Send questions for presenters to consider before December 8 to Cristina.Cooper@americanbar.org.

If you havent already registered , please do so here: http://tinyurl.com/p87pl4f Q & A Additional questions?Contact:

Cristina Ritchie Cooper, Esq.Scott Trowbridge, Esq.Senior CounselStaff AttorneyABA Center on Children and the LawABA Center on Children and the LawCristina.Cooper@americanbar.orgScott.Trowbridge@americanbar.org

U.S. Citizenship and Immigration Services ResourcesUSCIS email box for state juvenile courts and child welfare agenciesState juvenile courts and child welfare agencies may contact USCIS to ask general questions or request outreach on the SIJ program by submitting a request to: USCIS-IGAOutreach@uscis.dhs.gov.USCIS informational resourcesThe following information and resources about the SIJ program are available at http://www.uscis.gov/green-card/special-immigrant-juveniles/special-immigrant-juveniles-sij-status: Immigration Relief for Abused Children: Information for Juvenile Court Judges, Child Welfare Workers, and Others Working with Abused Children (Brochure) Special Immigrant Juvenile Status: Information for Child Welfare Workers (Flier)Special Immigrant Juvenile Status: Information for Juvenile Courts (Flier)

USCIS email updates (Email alert service that allows you to receive important USCIS news and information as soon as it's available): http://www.uscis.gov/tools/get-email-updates