Immigration and Family Law

1. Immigration and Family Law Louisiana Judicial College Domestic Relations Seminar August 14-15, 2014

2. Faculty Ken Mayeaux Assistant Professor of Professional Practice LSU Law Center Immigration Clinic Ayn Stehr Louisiana Judicial Education Faculty Louisiana Protective Order Registry

3. Learning Objectives Understand the intersections between state court proceedings and immigration law Know how accurate immigration law information affects just and fair outcomes in state court Recognize facts that indicate a party may qualify for Legal immigration status, or Protection from/low priority for deportation. Make appropriate findings in state court cases needed for or helpful to a non-citizen’s immigration case.

4. Immigration Statistics Relevant to Family Courts • 1 million unauthorized children under age 18 in U.S. in 2010 • 4.5 million U.S. citizen children whose parents are unauthorized • 9 million people in U.S. live in “mixed-status” families

5. Immigrants in Louisiana: Coming soon to your Courts…. U.S. Census: Hispanic population growth in the South was 57% from 2000-2010 -- but overall population growth was only 14%. Katrina, Rita and Ike… Louisiana Appleseed estimates 60,000 - 100,000 Latinos in South LA Pre-Katrina and 100,000 to 150,000 now. Historic Relationship to Honduras: Plus deteriorating conditions across Central America.

6. Vulnerable Immigrants… • Less likely to: • Report a crime • Provide information to police and prosecutors • Believe police and prosecutors want to help them • Access civil protection from abuse • Testify in court • More likely to: • Be susceptible to a perpetrator’s coercion and threats.

7. Immigration Law and Policy Protections for Non-Citizen Crime Victims and Children • Special Immigrant Juvenile Status • Juveniles that have been abused, abandoned or neglected. • U-Visa/T visa • Victims of criminal activity and severe forms of human trafficking. • VAWA self-petition/cancellation/waivers • Abused spouses/children of U.S. citizens and LPR’s; abused parents of U.S. citizen children. • Deferred Action for Childhood Arrivals (DACA) • Dreamers; arrived before 16th birthday + other requirements • DHS Prosecutorial Discretion • “Low Priority” for deportation: survivors, witnesses, parents, children, elderly, disabled.

8. How Vulnerable Immigrants Benefit from These Legal Protections • Protection from deportation • Immigration benefits for derivative children • Employment authorization • VAWA confidentiality protects release of information and reliance on abuser-provided information • Limited access to public benefits • Lawful permanent residency

9. How Courts Benefit from These Legal Protections for Vulnerable Immigrants • They promote the integrity of the justice system. • They improve immigrants’ access to justice • Legal immigration status assists courts in making orders that help victims and children • Courts build relationships with immigrants serving organizations

10. Cross-Cultural Competence Effective adjudication requires cultural competence. The issue is not so much about sensitivity, but the court’s ability to get information needed to adjudicate the case fairly. Parallel Universe Thinking: In what kind of world would this litigant’s behavior make sense? Understand interplay of three cultures (judge/adjudicator, lawyers, immigrant litigant). Expect effective communication with foreign national to require more effort—at least at the outset. Don’t get lost in translation. Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001). Available online at http://tinyurl.com/kwden9j

11. Hierarchy of Immigration Status Citizen or National LPR – Green Card Holder – Immigrant Asylee or refugee Non-Immigrant Visa (NIV) – student, visitor, temp. worker, diplomat, etc. Temporary Protected Status (TPS) DeferredAction (VAWA,Dreamers and PD) Previously documented but out of status. Undocumented – EWI

12. Key Players in Immigration Enforcement

13. Family Law: Immigration Considerations in Marriage and Divorce

14. Family Law: Immigration Considerations in Marriage and Divorce • Immigrants have right to marry in U.S. irrespective of their status • U.S. citizens and permanent residents petitioning for their spouses must execute I-864 Affidavit of Support committing to financially support the sponsored immigrant at minimum of 125% poverty level. • I-864 is “Contract” that remains valid despite divorce • Enforceable in state and federal courts • Ends only upon naturalization of sponsored immigrant or when sponsored immigrant can be credited with 40 quarters of work

15. Family Law: Immigration Considerations in Marriage and Divorce • Divorce may forecloses eligibility for someone seeking to “adjust status” (i.e., apply for permanent residency) through marital relationship • Divorce may complicate battered spouse waiver of conditional residence status for individual who acquired residency status through recent marriage • Attorneys must assess immigration status of client to determine whether divorce will affect eligibility to remain in the U.S.

16. Family Law: Immigration Considerations in Custody • Best interest of child in a mixed-status family • Should be determined case bycase • Avoid generalizations about implications of immigration status • Immigration status not relevant to best interests or primary caretaker determinations or award of custody to non-abusive parent. • Immigration status generally relevant as indicator of abuse, power and control.

17. Immigration law protections that require state court intervention

18. Special Immigrant Juvenile Status Court with jurisdiction over care, custody or dependency of juveniles issues court order: • Awarding custody or placing child with individual, agency or department • PLUS- finding that reunification with at least one parent is not viable due to abandonment, abuse, or neglect • AND not in child’s best interest to be returned to home country

19. Types of proceedings that may involve SIJ predicate orders • Divorce/Legal Separation • Custody/Child Support • Paternity • Guardianship • Dependency or Delinquency • Termination of parental rights • Criminal cases – juveniles prosecuted as adults

20. Special Immigrant Juvenile Status – Procedure after State Court • Child files application for special immigrant juvenile status (Form I-360) with USCIS (including state court order). • Child files application for permanent residence (Form I-485) with USCIS or with immigration court . • While application for permanent residence is pending, child gets employment authorization. • Eligible for citizenship five years after receiving permanent residence. • Child may never petition for immigration status for parents.

21. U Nonimmigrant Status for Survivors of Crime • Victim (direct or indirect) of qualifying criminal activity. • Possesses information regarding criminal activity. • Has been, is being or is likely to be “helpful” in detection, investigation, prosecution, conviction or sentencing. • Crime occurred in the U.S. or violated U.S. law. • Suffered substantial physical or mental abuse as a result of the crime. • Law Enforcement / Judge Certification on Form I-918, Supplement B.

22. Qualifying criminal activity includes Slave trade Peonage Blackmail Extortion Witness tampering Obstruction of justice Perjury Foreign labor contracting fraud* Stalking* “any similar criminal activity” Attempt, conspiracy or solicitation to commit a listed crime. • Domestic violence • Sexual assault • Rate • Incest • Prostitution • Torture • Felonious assault • Manslaughter • Murder • Kidnapping • Abduction • Trafficking • Involuntary servitude

23. Who can sign U-Visa certification? Any entity that detects, investigates or prosecutes criminal activity: • Based on probable cause = detection • Judges, EEOC, Department of Labor or child protection agencies. • Investigation or prosecution • Police, prosecutors, childoradultprotectiveservices, federal LEA’s • Other agencies that detect, investigate, prosecute, convict or sentence.

24. U-Visa certification in Family Court There are a variety of civil proceedings in which a judge may “detect” criminal activity • Civil protective orders • Custody or child support • Divorce • Child abuse or neglect • Guardianship

25. The Court’s Role In U-Visa Certification • Inform litigants about the U-Visa • Make EXPLICIT findings about • criminal activity, • injuries, and • helpfulness • Attach a copy of court orders to the certification form • Sign the U-Visa certification

26. Law Enforcement CertificationFormI-918SupplementB

27. L Orloff Leslye E 08/28/1956 x Washington,D.C. Superior CourtJudge. Judge Lora Livingston 555 IndianaAvenue NW Washington DC 202-555-5555 20005 202-555-5556 x x x H-62632-11 x x stalking

28. 12/19/12 HRSsec.709-906 AbuseofaFamilyorHousehold Member x x Washington,DC Ihave probable cause to believeHusband strangledMrs. Orloff during adomestic disputeand hasbeen followingher and tracking her movements Asa resultofMrs. Orloffbeing assaultedand strangled she sufferedinjuriesto her neck and. (attached are copiesof photographssubmittedto the court andthe protection order Iissued) X X x X

29. Mrs.Orloffcalled911 forhelp during adomesticdispute. Upon arrivalsheprovided informationaboutthe incidentto the officeron scene and allowedthe officertotake photographsofthe injurytoher neck. She came tocourt seeking aprotection order, which wasgranted. X WilliamOrloff Husband Defendant BasedonProbableCauseand myissuance ofaprotectionorder January,2014 JudgeLoraLivingston

30. Amending/modifying Form I-918 B • Judgesmayamendthelanguageoftheformtoaccuratelyreflect thebasisuponwhichthejudgeissigningthecertification. • Probablecause,findings,rulings • Includethetypeofproceedingand • Iforders were issuedattachacopyoftheorder • Judgescanshouldamendcurrentform--examples: • “Baseduponmyhavingprobablecause….Icertify” • “Baseduponmyissuanceofacivilprotectionorder…Icertify” • “Basedonmyhavingpresided overthecriminalcase…I certify” • “Baseduponmyfindingsina[custody/divorce]caseof[domestic violence/childabuse]…I certify”

31. U-Visa Procedure after State Court • Immigrant files application forms (petition and waiver) and supporting documentation, including U-Visa certification, with USCIS. • May include minor age children as derivative applicants. • Child victims may include parents and minor age siblings. • Adjudication typically takes over a year. • Only 10,000 U-Visas granted annually. • Status granted for 4 years. • May apply for LPR status after three years • Must demonstrate no “unreasonable refusal” to cooperate. • Plus humanitarian need, family unity or public interest

32. Immigration protections that do not require state court action

33. T Visa: For Victims of Severe Forms of Human Trafficking • Victim of severe form of human trafficking • Recruiting, transporting, obtaining or moving persons for the purpose of • Obtaining labor or commercial sex • By use of force, fraud or coercion. • Present in U.S. “on account of” trafficking. • Extreme hardship if removed from the U.S. • Compliance with reasonable requests for assistance from law enforcement • No “Certification” required as for U-Visa.

34. T-Visa Procedure • ICE may grant preliminary status of “continued presence” to facilitate investigation. • Immigrant later files application forms (I-914 petition and waiver) and supporting documentation with USCIS. • No Law Enforcement Certification required. • Adjudication typically takes over a year. • Only 5,000 T-Visas granted annually. • Status granted for 4 years. • Approved T-Visa holders receive gov’t-funded resettlement assistance. • May apply for LPR status after three years.

35. VAWA Protections for Immigrant Survivors of Abusive Marriage Self-Petition/Cancellation/Waivers allow abused alien to acquire LPR status without aid of abuser. • Perpetrator: US citizen or LPR spouse or parent; or US citizen adult child. • Battery or extreme cruelty • Good faith marriage • Good moral character

36. Policy Protections for Immigrant Family Members • Deferred Action for Childhood Arrivals • Entered US before 16th birthday • Present in US in June 2012 and for 5 years • Attending or graduated from high school/GED • No felony or significant misdemeanor • Deferred action and employment authorization. • Prosecutorial Discretion • 2 John Morton Memoranda on PD from June 17, 2011 • Includes victims and witnesses in non-frivolous actions to protect civil rights. • Directive 11064.1 “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities” • Specifically related to adjudication of family-related matters (e.g. child custody and termination of parental rights).

37. State Court Role • Make litigants aware of possible immigration impact or relief. • Make litigants aware of possible funding for representation. • See recent revisions to LSC regulations • Make appropriate findings needed for or helpful to an immigrant victim’s immigration case.

38. Questions…. Kenneth A. Mayeaux Assistant Professor of Professional Practice LSU Law Clinic P.O. Box 80839 Baton Rouge, LA 70898 225-578-2071(direct line) ken.mayeaux@law.lsu.edu