Representing Immigrant Children

1. Representing Immigrant Children Midwest Immigrant & Human Rights Center Holland & Knight April 21, 2005

2. MIHRC’s Pro Bono Children’s Program The Midwest Immigrant & Human Rights Center (MIHRC), a program of Heartland Alliance for Human Needs & Human Rights, is a non-profit, immigrant legal aid organization. MIHRC provides direct service to and advocacy on behalf of the most impoverished and needy child refugees, asylum seekers and immigrants.

3. National Center for Refugee & Immigrant Children • Partnership of USCRI, AILA and H&K • Based in Washington DC • Refers cases to MIHRC; referrals to other jurisdictions

4. Who are MIHRC’s child clients? • Immigrant children and youth who have suffered persecution, abuse, abandonment, family violence, forced labor, violent crime • Detained & non-detained • From around the world • Residing/detained in IL, IN, MI, WI

5. What we do… • Case screening, assessment and acceptance • Placement with pro bono attorneys • Case management • Attorney support and technical assistance

6. Immigrant Children in the Midwest Karen Donoso Stevens MIHRC Children’s Attorney

7. Definition: Unaccompanied Minor • Under 18 years of age • No parent or legal guardian at time of arrest by immigration **MIHRC also works with youth up to 21.**

8. If a minor is detained… • In federal custody; case before the Immigration Court • International Children’s Center, Chicago • Shelter-care facility; minimum security • SW Indiana Youth Village, Vincennes, IN • Secure facility

9. Child arrested DHS ORR Where is the child living?What is happening in the case? DOJ: EOIR Int’l Children’s Center Immigration Court Board of Immigration Appeals (BIA) Transfer to other facility Release to relative Federal Court Return to home country

10. Adults in a detained child’s life • Shelter staff • Assist with family reunification • Provide some counseling • Very limited confidentiality (mental health) • Child Protection Advocate • Friend to child • No confidentiality • ORR Field Coordinator • Liaison b/w shelter and ORR • No confidentiality • Attorney

11. Going to court… • Once every 2-3 months • ICC provides transportation • Detained children’s docket before Immigration Judge Jennie Giambastiani

12. If a minor is not detained… • May have been released from federal custody or may never have had contact with immigration authorities • Living with a relative • Living at a youth residential facility • DCFS ward

13. Adults in a non-detained child’s life • Relative/guardian/sponsor • No confidentiality • Attorney

14. Immigration Remedies for Children Elissa Steglich MIHRC Managing Attorney

15. Most common remedies • Asylum • Special Immigrant Juvenile Status • T&U Visas • VAWA • Voluntary Departure

16. United States Immigration Proceedings Child arrested/referred into immigration proceedings • Citizenship & Immigration Services • SIJ • VAWA • Asylum • T / U Master Calendar Hearing Merits Hearing Asylum / Adjustment (for “green card”)

17. Asylum: Definition • “[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). • International standard: UN Protocol Relating to the Status of Refugees, Art I(2)

18. Asylum: Elements • “Well Founded Fear” • of “Persecution” • Based on following factor(s) • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group • Nexus • Government is persecutor or cannot control persecutors

19. “Well Founded Fear” • “reasonable probability” • Lower than preponderance of the evidence • Has objective and subjective components • Applicant must have fear (subjective) • Fear must be reasonable, i.e., “well founded” • “one in ten” probability • INS v. Cardoza-Fonseca, 480 U.S. 421 at 431.

20. “Well Founded Fear” Matter of Mogharrabi, 19 I& N. Dec. 439 (BIA 1987) • Possesses belief or characteristic persecutor seeks to overcome • Know or likely to become aware of characteristic • Capability to punish • Inclination to punish

21. “Persecution” • Poverty, victim of crime, bad luck not enough • Behavior that “threatens death, imprisonment, or the infliction of substantial harm or suffering.” • Sayaxing v. INS, 179 F.S3d 515, 519 (7th Cir. 1999). • “Hallmarks” of persecution are: • detention, arrest, interrogation, prosecution, imprisonment, • illegal searches, confiscation of property, surveillance, beatings, or torture • Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995)

22. Race, Religion, Nationality • Race: Broad meaning • Religion • Nationality • Not just citizenship • May be ethnic or linguistic group • May overlap with race • E.g., Bosnian-Muslim [religion, nationality]; Dinka Sudan [race, nationality, religion]

23. Political Opinion • Actual • Imputed • E.g., daughter of a political activist persecuted for the activities of her father

24. Membership in a Particular Social Group • “common, immutable characteristic” • Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985) • “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” • E.g., street children in Guatemala

25. Importance of Past Persecution • Legal presumption of future persecution • 8 C.F.R. § 208.13 • DHS can rebut with proof by a preponderance of the evidence of changed circumstances

26. One-Year Filing Deadline • MUST file application within one year of most recent arrival to the United States • INA § 208(a)(2)(B); 8 C.F.R. § 208.4 (a) • Limited Exceptions • INA § 208(a)(2)(D); 8 C.F.R. §208.4(a). • Changed circumstances • Exceptional circumstances (e.g. illness, incapacity, minor status)

27. Children’s Asylum Case Resources • INS Children’s Asylum Guidelines • http://uscis.gov/graphics/lawsregs/handbook/10a_ChldrnGdlns.pdf • EOIR Memorandum on Procedures in Children’s Cases • http://www.usdoj.gov/eoir/efoia/ocij/oppm04/04-07.pdf • ABA Standards for Unaccompanied Alien Children in the US • http://www.abanet.org/immigration/home.html • Asylumlaw.org

28. Special Immigrant Juvenile Visa • Under 21 • Has been abused, abandoned or neglected by parents • Determined eligible for “long-term foster care” by juvenile court • Reunification with parents not feasible • Not in child’s interest to return to country of origin

29. SIJ Process Step 1: (Detained cases only) Express Consent from DHS to access juvenile court protection Step 2: Juvenile Court takes jurisdiction of child Step 3: Visa application filed with CIS Step 4: “Green card”/LPR status granted by Immigration Court or CIS

30. SIJ Resources DHS Memoranda • http://uscis.gov/graphics/lawsregs/handbook/SIJ_Memo_052704.pdf • http://uscis.gov/graphics/lawsregs/handbook/AdjMem0135Pub.pdf

31. T & U Visas, VAWA • T: Has been subjected to forced labor or commercial sexual activity in the US • U: Has been a victim of a violent crime (e.g. domestic violence, sexual assault, kidnapping) in US + cooperating with law enforcement • VAWA: Has been victim of domestic violence and parent abuser is resident or US citizen

32. When no relief is available…Voluntary Departure v. Removal • In lieu of removal • Child pays cost of return • Ability to return to the US legally • Government pays cost of return • 10 year bar on reentry • criminal penalties/ fine upon reentry

33. Effective Representation Uzoamaka Nzelibe Northwestern Children & Family Justice Center

34. Perspectives from the Bench The Hon. Jennie Giambastiani Immigration Judge

35. THANK YOU! Midwest Immigrant & Human Rights Center Mary Meg McCarthy Elissa Steglich Karen Donoso Stevens (312) 660-1305 kstevens@heartlandalliance.org