Immigration Issues in Child Welfare Proceedings

1. Immigration Issues in Child Welfare Proceedings Tennessee Juvenile Court Mid-Winter Conference February 23, 2015 Steven Weller Center for Public Policy Studies Immigration and the State Courts Initiative

2. Steven Wellersweller@indra.com; (303) 494-4268John A. Martinjamartin@indra.com; (303) 449-0125Center for Public Policy Studieshttp://www.centerforpublicpolicy.org

3. Learning Objectives Participants will be able to: • Identify different types of immigration status • Anticipate how the immigration status of the parties might affect the process, outcomes and range of available options in a dependency case • Identify how actions in a dependency case or a concurrent delinquency case might either jeopardize a juvenile’s immigration rights or provide an opportunity for a juvenile to adjust to lawful status • Identify other provisions under Federal immigration law for an abused juvenile to adjust immigration status • Identify people who might need the advice of immigration counsel

4. Areas of Misalignment Between Federal Immigration Law and State Courts

5. State Court v. Federal Immigration System Purpose and Roles • There is an inherent tension between the roles and purposes of the state courts and the roles of the immigration system in American society • Purposes and Roles of State Courts include: punishment; separating the dangerous from rest of society; rehabilitation; restoration/making victims whole; protecting the vulnerable; adjudicating disputes between individuals; doing individual justice in individual cases; assuring justice and the appearance of justice; and maintaining official records • Federal Immigration Purposes and Roles include determining who should be in the US for how long and under what conditions; who should not be in the US and why; and who should become a US Citizen

6. Sources of Misalignment • Federal immigration rights can be dependent on the outcomes of a state court state court criminal, family, juvenile, or civil case • Federal immigration law assumes bright-line distinctions in state law regarding court processes, case outcomes, criminal convictions, and criteria for sentencing, where in fact there are shades of gray and judges have room to exercise discretion • The operation of Federal immigration law may affect a state court case by limiting the options and possible outcomes available to the state court judge

7. Areas of Misalignment in Child Welfare Cases • Mandatory immigration detention of a parent, which may result from a conviction of a minor crime under state law, may have an effect on a dependency case • State juvenile delinquency pleas and dispositions aimed at helping the juvenile may carry negative immigration consequences for a non-citizen juvenile • Judges may make determinations in juvenile court that affect a juvenile’s immigration rights based on a misunderstanding of immigration law

8. Areas of Misalignment: Best Interests of the Child • With regard to immigration cases involving families and children, federal immigration law does not have a concept of the best interests of the child. • Neither the federal immigration courts nor USCIS have a mandate or the resources to investigate what is in the best interests of the child in determining the immigration rights of parents or children. • Where a child’s best interest is a potential determining factor in an immigration proceeding, such as determining eligibility for SIJS, the federal system is dependent on a determination of the child’s best interest by a state court.

9. Immigration Issues in Dependency Cases

10. Why Knowledge of Immigration Issues is Important in Dependency Cases Immigration status of parents or children can have important consequences in planning for foster care, family reunification or independent living A dependency case may form the basis for an application for Special Immigrant Juvenile status Immigration law has no concept of the best interests of the child in removal proceedings Understanding of family dynamics may turn on knowing about family immigration issues

11. Immigration Issues That Affect Conditions for Family Reunification Immigration status can affect whether conditions for family reunification can be met by impacting: • Eligibility to work • Ability to obtain a driver’s license where parental consent is required • Eligibility for services • Effect of ICE holds and immigration detention

12. Ability to Meet Conditions for Reunification or Conditions of Alternatives to Detention • Completion of counseling or other services may be a condition for parents to obtain return of a child removed from the home in a dependency case, or for a juvenile to avoid detention in a delinquency case • Immigration status may affect eligibility for benefits or services under provisions of Federal immigration law and, in some states, provisions of state law • Immigration status may affect eligibility to work, which in turn affect the ability of a non-citizen to pay for required counseling or other services ordered by the juvenile court

13. Limits on Availability of Service Options • The availability of services in different languages • The availability of culturally appropriate services • Conditions for reunification that cannot be met by undocumented immigrants who are not eligible to work • Services that are not available to juveniles or parents who are undocumented immigrants, including medical services, mental health services, and financial assistance

14. Special Immigrant Juvenile Status (SIJS)

15. Special Immigrant Juvenile Status (SIJS) • SIJS is a form of TEMPORARY immigration relief that provides an abused, neglected, or abandoned juvenile who meets certain requirements with some important rights like the right to work. • The determination of eligibility is made by the United States Citizenship and Immigration Service (USCIS). • The issue will come before a juvenile court judge in the form of a motion by the attorney for the juvenile requesting the judge to issue an order with certain required statutory findings that enable the juvenile to file for SIJS. This order is not a decision by the judge that the juvenile is eligible for SIJS. • SIJS is not a grant of permanent residency. In order to remain permanently in the U.S., the juvenile must file a separate application for adjustment to LPR status. The grant of SIJS does not guarantee that USCIS will grant LPR status.

16. Special Immigrant Juvenile Status To apply for SIJS, the juvenile must supply USCIS with an order from court of juvenile jurisdiction in the U.S. making the following three findings: • The juvenile is declared dependent on the court; • Reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and • There has been an administrative or judicial finding that it would not be in the best interest of the juvenile to be returned to the juvenile’s parents or country of origin. The juvenile court order must have been sought primarily to obtain relief from abuse, neglect, or abandonment and not primarily to obtain an immigrant benefit.

17. Special Immigrant Juvenile Status, Cont. • The court filing may be made by a state agency or by a private individual such as a family member • The juvenile must remain under the court’s jurisdiction until the juvenile is granted SIJS • At the time of filing the juvenile must continue to be dependent on the juvenile court and eligible for long-term foster care • An unmarried alien under the age of 21 who meets the conditions listed above may apply for SIJS as long as the alien is still under the jurisdiction of the dependency court • Note that if state dependency jurisdiction terminates when the juvenile reaches age 18, a juvenile who has not been declared dependent before reaching the age of 18 cannot be declared dependent and thus will not be eligible to apply for SIJS

18. Role of the Juvenile Court in SIJS • At least one state has held that the juvenile court cannot refuse to make the findings solely because it believes the juvenile should not remain in the U.S. • USCIS will review the basis of each finding to assure that the dependency case was not filed solely to obtain special immigrant status. • If the only evidence for the findings is the testimony of the juvenile, the court may still make the findings if it finds the testimony credible • The ultimate grant of SIJS is made by USCIS, not the juvenile court, and is based on a variety of requirements in addition to the three findings

19. SIJS – Additional Requirements • If the juvenile is in removal proceedings, the application for SIJS is made to USCIS, and once granted, the application for LPR status is made before the immigration court judge • In the case of an unaccompanied alien child (UAC) who is in the physical and legal custody of the Office of Refugee Resettlement (ORR), a juvenile court must obtain the consent of ORR to make custody or placement decisions for the minor

20. SIJS: Definitions of Juvenile Court and Dependent • A “juvenile court” is defined as a court having jurisdiction under State law to make judicial determinations about the custody & care of juveniles. Juvenile, family, orphans, dependency, guardianship, probate and delinquency courts are examples. • A “dependent” is a child legally committed to, or placed under the custody of, an agency or department of the State, or an individual or entity appointed by a State or juvenile court. Placements in foster homes, group homes, with relatives or with guardians qualify.

21. SIJS and USCIS • The requisite findings in a juvenile court permit the juvenile to apply to USCIS for SIJS and, if granted, subsequently for adjustment of status to LPR • The juvenile court does not make the determination of eligibility for SIJS • SIJS and LPR status are not automatic based on juvenile court findings • Juveniles who have been approved for SIJS are eligible to work

22. SIJS and Delinquency Proceedings A delinquency proceeding that results in state dependency can serve as the basis for an application for special immigrant juvenile status While an adjudication of delinquency is not a criminal conviction for immigration purposes, certain admissions made in a delinquency proceeding could still make a juvenile inadmissible and thus ineligible to adjust to LPR status even after receiving a grant of SIJS

23. Subsequent Application For LPR Based on SIJS • The grant of SIJS makes the juvenile eligible to apply for adjustment to LPR status, either concurrently or later. The grant of adjustment to LPR status is discretionary with USCIS and is not guaranteed even if the juvenile has been granted SIJS. • To be eligible for adjustment to LPR status, an applicant must meet the grounds of admissibility to the United States under federal immigration law. With regard to juveniles, USCIS can waive many of those grounds. Still, some of the grounds for inadmissibility under federal immigration law will apply to a juvenile applying for LPR status on the basis of an approved grant of SIJS.

24. Subsequent Application For Law Permanent Resident Status (Continued) A juvenile who engages in any of the following areas of conductmay be deemed inadmissible and ineligible for adjustment of status to LPR even if the juvenile has been granted SIJS: • known or reasonably believed to have engaged in drug trafficking; • being a drug addict; • having engaged in prostitution; • violation of protection order; • use of false documents; or • having a mental condition that is a threat to others. Violent offenses, sex offenses, and gang activity can be particularly problematical for the juvenile, as these offenses can lead to denial of any immigration benefits.

25. SIJS and Family Immigration • A person who becomes a Lawful Permanent Resident through SIJS will no longer be considered the child of his or her parents for immigration purposes, even if parental rights were not terminated. See 8 U.S.C. 1101(a)(27)(J)(iii)(II). • The child will thus not be able to use the lawful status attained through SIJS as a means to obtain lawful status for his or her parents • This bar applies to both parents, even if SIJS was obtained due to abuse, neglect, or abandonment by only one parent.

26. Unaccompanied Alien Children (UAC)

27. The Problem of Unaccompanied Alien Children • The number of Unaccompanied Alien Children (UAC) from Central America entering the United States has been dramatically increasing. • While the initial entrance of UACs is in the border states, UACs have now been placed in every state in the country. • It is likely that, with the continued increase of UACs and placements with sponsors around the United States, other states either are, or will soon be, dealing with issues involving UACs in their juvenile and probate courts.

28. Processing of Unaccompanied Alien Children • UACs are first detained by the CBP and interviewed at the border. Some children from contiguous countries may be sent back if they meet certain criteria. • Children who are not sent back are delivered to the U.S. Department of Health and Human Services/Office of Refugee Resettlement (ORR). • ORR initially places the children in an ORR facility and then seeks to place them with a sponsor such as a parent, a legal guardian or family member, or a licensed program. UACs have been placed with sponsors in every state in the country. • While a child is under the physical and legal custody of ORR, the juvenile court may make SIJS findings but needs ORR consent to make placement decisions for the child.

29. Processing of UAC, Cont. • Once a child is placed with a sponsor, responsibility for the care of the child passes from ORR to the sponsor. If the child later becomes involved in a dependency case, all further decisions with regard to the placement of the child may be made by the juvenile court without ORR consent. • State juvenile and probate courts are seeing a substantial increase in filings on behalf of UACs seeking orders specifying the findings required for application for SIJS. • If DHS seeks to deport a UAC, immigration court proceedings will continue even after a minor is placed with a sponsor. In some cases the child may be deported before the juvenile case can be completed.

30. UAC and Asylum • A UAC who is not eligible for SIJS may be eligible for asylum. • The following are the basic conditions for asylum: • The individual has a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion if returned to the home country or country of last permanent residence. • The individual is not a security risk or perpetrator of persecution. • The individual has not committed certain crimes. • An alien granted asylum may apply for LPR status after one year. The person must be admissible, although some grounds may be waived for humanitarian purposes. • Evidence of eligibility may arise in a juvenile case.

31. Juvenile Trafficking Victims

32. Identifying a Juvenile Trafficking Victim Juveniles in the juvenile justice system may be victims of human trafficking. • Prostitution is the primary form of human trafficking for juvenile girls. Distinguishing between a prostitute and a victim of human trafficking can be difficult. • Trafficking victims may also engage in other illegal activities for their traffickers, such as selling drugs or recruiting other victims for their traffickers. • Trafficking victims may commit status offenses such as runaways or truancy. • Trafficking of children by family members, for sex or labor, may arise in an abuse or neglect proceeding. • A trafficker may try to get guardianship over a victim.

33. Special Issues Faced By Trafficked Juveniles • There may be no secure housing available for a juvenile victim of sex trafficking unless the juvenile is convicted of prostitution and sentenced to a juvenile detention facility. The conviction, which is aimed at protecting the juvenile, may end up making an immigrant juvenile ineligible for Special Immigrant Juvenile status or discretionary immigration benefits requiring a showing of good moral character. • If a trafficked juvenile also engages in other illegal activities for a trafficker, such as selling drugs or recruiting other juveniles, that additional criminal behavior, if admitted to in a delinquency hearing, could also make the victim ineligible for Special Immigrant Juvenile status or discretionary immigration benefits requiring a showing of good moral character.

34. Special Issues, Cont. • Some states have options for certain juveniles charged with prostitution to be classified as sexually exploited juveniles and sent to diversion programs rather than being convicted of prostitution. One state makes it an affirmative defense to a charge of prostitution that the defendant was either a victim of human trafficking or under the age of 18 at the time of commission of the act. • If a juvenile is ineligible for SIJS due to criminal activity but is determined to be a victim of human trafficking, the juvenile may be eligible for a T visa as a victim of human trafficking.

35. T Visas for Human Trafficking Victims • The T visa is a non-immigrant visa available for individuals who have been the victims of human trafficking and meet the following requirements: • The person is the victim of a severe form of trafficking. Federal immigration law classifies any sex trafficking of a person under age 18 as severe trafficking. • If the person is 18 or older, the person is complying with a reasonable request to assist in the investigation or prosecution of the traffickers. • The maximum length of stay under the T visa status is four years, unless extended. The holder of a T visa is eligible to apply for lawful permanent resident status after three years. The person must show good moral character.

36. Severe Form of Trafficking The term “severe form of trafficking in persons” means:  • The recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age, or • The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery.

37. Indicators of Trafficking Victims Some possible indicators that a juvenile may be a human trafficking victim include: • Homelessness • Lack of education or not attending school • Work in massage parlors, dance halls, or other similar establishments • Unexplained bruises • Unusual behavior, such as uncooperativeness, fear, or anger • Dependency relationships with older adults • Possession of unusually expensive items such as jewelry or expensive cell phones

38. U Visas

39. U Visa • U visas are non-immigrant visas with a duration of up to four years for a non-citizen who: (1) has suffered severe physical or mental abuse as a result of being a victim of criminal activity; (2) has been, is being, or is likely to be of help to a Federal, state, or local investigation of the criminal activity causing the abuse; and (3) has certification from a Federal, state, or local judge, prosecutor, law enforcement officer, or other justice system official involved in prosecuting the criminal activity • The perpetrator need not be a US Citizen or LPR • There is no qualifying relationship required • After three years in U visa status, person may be able to adjust status to lawful permanent residence

40. U Visa Required Certification • The applicant must have certification from a federal, state, or local judge, prosecutor, law enforcement officer, or other justice system official involved in prosecuting the criminal activity that he or she has been, is being, or is likely to be of help to a federal, state, or local investigation of the criminal activity causing the abuse. • A judge can make the certification if the judge has knowledge that the applicant meets the above requirements.

41. U Visa List of Eligible Crimes • The U visa applies to the following specified list of crimes, many of which could be involved with human trafficking: 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; fraud in foreign labor contracting; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

42. Immigration Rights of Abused Spouses and Children Under The Violence Against Women Act (VAWA)

43. VAWA Self-Petitioner VAWA provides “self-petitioning” opportunities for persons who suffer “battery or extreme mental cruelty” by a U.S. Citizen or Lawful Permanent Resident spouse or parent An abused child may self-petition without his/her parent Derivative provisions permit petitions to include children of abused spouses, or the non-abusive parent of abused children, even if they were not abused An application filed after separation or divorce must be filed within two years of the divorce Must show good moral character

44. Definition of a Child for VAWA Purposes • An unmarried person under age twenty-one, and • Has one of the following relationships to the abuser • Born in wedlock • Stepchild who was under age eighteen at the time the marriage creating the status of stepchild occurred • Born out of wedlock, if legitimated or acknowledged by father • Adopted while under age sixteen, if in the adoptive parent’s physical and legal custody for two years

45. Proving Abuse for VAWA Self-Petitioner Status The following may be used to prove abuse in an application to USCIS for VAWA self-petitioner status • Reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, other social service agency personnel • Letters from advocates • Protection orders • Allegations in divorce petitions • Reports on police calls to petitioner’s home

46. Eligibility of Battered Spouse or Child for Cancellation of Removal Order • A battered spouse or child found removable by an immigration court and not eligible for VAWA self-petitioner status may still be eligible for cancellation of the removal order and adjustment to LPR status • The alien must have been subject to battery or extreme cruelty by a citizen or LPR spouse or parent • Some grounds of inadmissibility or deportability apply • Must be of good moral character • Must show that removal would result in extreme hardship to the alien or the alien’s child or parent