Representing Unaccompanied Immigrant Children

for Special Immigrant Juvenile Status National Immigrant

Justice Center

Kirkland & Ellis LLP

December 16, 2008

National Immigrant Justice Center

The National Immigrant Justice Center, a partner of Heartland Alliance for Human Needs & Human Rights, provides direct legal services to and advocates for immigrants, refugees, and asylum seekers through policy reform, impact litigation, and public education.

Overview of Immigration System for Unaccompanied Immigrant Children

Alexandra Fung, Staff Attorney

National Immigrant Justice Center

Immigration Children’s Protection Project

• NIJC has been serving unaccompanied immigrant children since 1995 through its Children’s Project.

• With the help of pro bono attorneys, NIJC’s Children’s Project screens and provides representation to all unaccompanied immigrant children detained in Chicago.

• NIJC also provides some representation to non-detained immigrant children in the Chicago area

Who are the Children?

• Unaccompanied immigrant children;

• In federal custody & not in federal custody;

• From around the world;

• Detained in IL or residing in IL, IN, MI, and WI.

Definition of an Unaccompanied Immigrant Child

• Under 18 years of age;

• No lawful immigration status in the U.S.;

• No parent or legal guardian in the U.S. available to provide care and physical custody.

6. U.S.C. §279(g)(2)

Where is the child living? What is happening in

the immigration case?

Detention Facility

Release to relative

Return to home country

Place in ORR foster care facility

Child arrested DHS

Immigration Court

Board of Immigration

Appeals (BIA)

DOJ: EOIRORR

Federal Circuit Court of Appeals

Individuals Encountered by a Detained Child

• Department of Homeland Security– U.S. Customs and Border Patrol (CBP)– U.S. Immigration and Customs Enforcement (ICE)

• Shelter staff– Assist with family reunification– Provide some counseling – Very limited confidentiality (mental health)

• Child Protection Advocate – Friend to child– No confidentiality

• ORR Field Specialist (FS) and Field Coordinator (FC)– ORR FS is representative of ORR – ORR FC liaising b/w shelter and ORR– No confidentiality

• Attorney

Special Immigrant Juvenile Status

Manoj Govindaiah, Supervising Attorney

National Immigrant Justice Center

Special Immigrant Juvenile Status (SIJS)

Immigration status for children who have been:

– abused,

– abandoned and/or

– neglected

SIJS Eligibility

• Under 21

• Unmarried

• Abused, abandoned, or neglected by parents

• Dependent on juvenile court

8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c); 58 FR 4280, Aug. 12. 1993

HypoV. is a 16 year old girl that grew up in a rural village in Guatemala. An only child, V.’s mother died while giving birth to her, and her father died when she was five years old. V. lived with her only living relative, her grandmother, until the grandmother passed away in June 2007. At that point, V. was 15 years old, and had no one to care for her. With no other choice, V. traveled to the United States, hoping to reunite with her godmother. V. has no relatives in Guatemala or in the United States.

 

Four Steps to Obtaining SIJS

1. Specific Consent*

2. Dependency on a Juvenile Court

3. Express Consent

4. Lawful permanent residency (LPR)

* Following Perez-Olano v. Gonzales, No. 05-03604 (C.D. Cal. Jan. 8, 2008), specific consent may no longer be required.

Are all four steps required?

If your child is:

• Detained– All four steps, consecutively

• Non-detained but in Immigration Court– Steps 2-4, consecutively

• Non-detained and not in Immigration Court– Step 2, Steps 3-4 concurrently

Step 1: Specific Consent

• Prior to Perez-Olano v. Gonzales, children in actual or constructive federal custody required specific consent from DHS/ICE in order to proceed into state court for a dependency finding. [8 U.S.C. § 1101 (a) (27)(J)(iii)(I)]

• Jurisdictional grant by the DHS/ICE to the states for the specific or limited purpose of a dependency proceeding.

• Request made upon the Director of the Juvenile and Family Residential Management Unit/DHS/ICE in D.C.

Perez-Olano v. Gonzales

Perez-Olano: When state court’s role is only to make child-welfare determinations of abuse, neglect, or abandonment, specific consent is not required

Thus, specific consent now only required if state court will determine custody or placement of minor

Children who were never in federal custody as well as children released from federal custody to their sponsors do not require specific consent.

Step 2: Obtaining Dependency Order from State Juvenile Courts

• Once a child in federal custody has obtained specific consent, if needed, they may proceed into state court for a dependency order.

• Children that are not in federal custody may proceed immediately into state court for a dependency order.

Obtaining The Dependency Order

Juvenile Court and the Role of the Guardian ad Litem

Julie Gerber Sollinger

Office of the Public Guardian

Filing a SIJS Petition and Obtaining Lawful Permanent Residence

Manoj Govindaiah, Supervising Attorney

National Immigrant Justice Center

Step 3: Express Consent

• Express Consent by the DHS must be obtained as a precondition to the grant of SIJS.

• Such consent occurs during the adjudication of the I-360 SIJ petition.

• DHS must determine that state court proceedings were not initiated to obtain legal status, but instead to obtain relief from abuse, neglect, abandonment

Elements Needed for Express Consent

The state court order must establish the following:• Child declared dependent on a juvenile court or the court has

placed the child under custody of an agency or department of state;

• Child deemed eligible for long-term foster care due to abuse, neglect and abandonment.

• Not in the child’s best interest to be returned to country of origin.See Yates’ May 27, 2004 Memorandum #3 Field Guidance on Special Immigrant Juvenile Status Petitions

Order must remain binding and in effect until child adjusts status to that of lawful permanent resident

Element One

The child must be declared a dependent of Juvenile Court or legally committed to, or placed under the custody of an agency or department of the state.

- In Illinois, the proper venue is the juvenile court;

- The child can be living with a foster care family, with non-relatives, in a group home; or living with court-appointed guardians.

Element TwoThe child must be “deemed eligible for long-term foster care due to abuse, neglect or abandonment.”

- “Eligibility for long-term foster care” means that family reunification is no longer a viable option.

See 8 C.F.R. §204.11(a)

- “Abuse, neglect or abandonment” is defined by state laws, not defined in the immigration statute or regulations.

Element ThreeIt is not in the child’s best interest to be returned to country of origin. 8 USC §1101(a)(27)(J)(ii)

• The juvenile court judge can make such findings based on the facts that the child has been abused, neglected or abandonment and there is no viable family reunification.

• The following factors may be relevant in such a determination:

• Child may be accustomed to life in the United States• Child has been educated in the United States• Child has built strong personal ties to guardians, counselors and

friends, etc.

Filing the SIJS Petition

• The Supporting Documents and I-360 Form are all filed with USCIS– Cover Letter

– Juvenile Court Dependency Order with the requisite SIJS findings

– Proof of Age & Identify

– Form G-28

– No filing fee is required

• In Chicago, it takes approximately 8-9 months for I-360 approval

Step 4: Obtaining Lawful Permanent Residence

• The approval of I-360 SIJS petition makes a child immediately eligible for lawful permanent resident status. To obtain that status, the child should file an I-485 application (adjustment of status).

• A child who is not in removal proceedings, may file the I-485 application concurrently with the I-360 SIJS petition with USCIS.

Children are Eligible for Adjustment of Status Despite the Following:

•Engaging in unauthorized employment; INA §245(c)(2); 8 C.F.R. §245.1(b)(4)(ii)

•Overstaying a visa at the time of application; INA §245(c)(2); INA §245(h)(2)(A); 8 C.F.R. §245.1(b)(6)

•Entering the United States without inspection or permission;

INA §245(h)(1); 8 C.F.R. §245.1(a)

•Previously ordered removed. INA §212(a)(9)

Filing the Application for LPR Status

• Must file the following supporting documents and forms:– I-485– G-325A– G-28– Medical exam from USCIS Civil Surgeon– 3 photos– I-360 Approval Notice– Proof of age and identity– Copy of Juvenile Court Order– Filing fee is $1010, but is waivable

Filing for LPR Status in Immigration Court

Immigration Judge (IJ) retains jurisdiction over the Application for Adjustment of Status if the child is in removal proceedings. •Submit a copy of the I-485 application with fee or fee waiver pursuant to the instruction sheet given by the IJ to USCIS

•Wait for USCIS to issue a receipt and biometrics appointment

•Serve a copy of the application packet on the Office of Chief Counsel

•File the original packet with IJ along with medical examination

Filing for LPR Status with USCIS

•If the child is not in removal proceedings, the

I-485 application can be filed directly with the local (most likely Chicago) USCIS office.

• There will be an in person interview with USCIS

How does SIJS Benefit an Unaccompanied Immigrant

Minor?• With lawful status, an unaccompanied immigrant

child will be able to acquire a sense of safety and stability in his or her life. The child will be able to go to college, obtain a driver’s license, and work lawfully.

• Moreover, after 5 years of lawful permanent residence and reaching the age of 18, the child will be eligible to apply for naturalization, thus allowing him or her to become a fully-participating member of U.S. society.

Special Considerations when working with Unaccompanied Children

Alexandra Fung, Staff Attorney

National Immigrant Justice Center

Considerations when Interviewing Children

• Explain your role and the purpose of the interview and reassure confidentiality of conversation

• Determine if an interpreter is needed • Ensure interpreter is qualified and understands her

role• Ask simple, open-ended questions from different

angles• Be mindful of child’s age, level of maturity,

education, and past traumatic experience

Thank You!National Immigrant Justice Center

Alexandra Fung afung@heartlandalliance.org

Manoj Govindaiah mgovindaiah@heartlandalliance.org

Julie Sollinger jgerber@cookcountygov.com

Megan Baumann mbaumann@heartlandalliance.org