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Special Immigrant Juvenile Status for Children in Removal Proceedings

Special Immigrant Juvenile Status for Children in Removal Proceedings in Conference on Representing Unaccompanied Minors UCLA February 9, 2007 Kristen Jackson Staff Attorney, Public Counsel (213) 385-2977, ext. 157 kjackson@publiccounsel.org. What Is at Stake?

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Special Immigrant Juvenile Status for Children in Removal Proceedings

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  1. Special Immigrant Juvenile Status for Children in Removal Proceedings in Conference on Representing Unaccompanied Minors UCLA February 9, 2007 Kristen Jackson Staff Attorney, Public Counsel (213) 385-2977, ext. 157 kjackson@publiccounsel.org

  2. What Is at Stake? Each year, the United States government places many children who lack lawful immigration status and who have been abused, abandoned or neglected by their parents into removal proceedings. These children often cannot safely reunify with their parents and have no responsible persons to return to in their home countries. Some of these children have recently arrived in the United States, while others were brought here as infants or young children and have no connection to their countries of birth. The Solution for Some: Special Immigrant Juvenile Status! SIJS provides eligible children a route to lawful permanent residency and can prevent an eligible child’s removal from the United States.

  3. Special Immigrant Juvenile Status: A Statutory and Regulatory Overview • What is it? • An avenue for eligible children to obtain a visa and lawful permanent resident status (get a “green card”) through actions of U.S. Citizenship & Immigration Services (“CIS”) and the Executive Office for Immigration Review (“EOIR”) • Where do you find it? • Section 101(a)(27)(J) of the Immigration & Nationality Act, codified at 8 U.S.C. §1101(a)(27)(J) • Regulations are at 8 C.F.R. § 204.11

  4. Requirements for SIJS • Under the jurisdiction of a juvenile court • Dependent on a juvenile court or placed in the custody of a state agency or department • Eligible for “long-term foster care” due to abuse, neglect or abandonment • Not in the child’s best interest to be returned to her home country • Under 21 and unmarried • Note: The juvenile court must make these findings in a SIJS order.

  5. Requirement One: • The child must be under the jurisdiction of a juvenile court. • “Juvenile court” is defined as a court “having jurisdiction under State law to make judicial determinations about the custody & care of juveniles.” 8 CFR § 204.11(a). • In practice has included dependency, delinquency and probate courts. • IMPORTANT: The child must remain under juvenile court jurisdiction for the entire time the immigration applications are pending. See 8 CFR § 204.11(c)(5).

  6. Requirement Two: • The child must be “dependent on a juvenile court” or “legally committed to, or placed under the custody of, an agency or department of the State” by a juvenile court. 8 USC § 1101(a)(27)(J)(i). • In practice has included, in California, Section 602 wards of the delinquency court and children with probate guardianships. • The child can be in one of many settings: in foster care home; suitably placed with non-parent relatives or in a group home; living with court-appointed guardians.

  7. Requirement Three: • The child must be “deemed eligible . . . for long-term foster care due to abuse, abandonment or neglect.” 8 USC § 1101(a)(27)(J)(i). • “Eligible for long-term foster care” means that “a determination has been made by the juvenile court that family reunification is no longer a viable option.” 8 CFR § 204.11(a). • Does not require termination of parental rights. • “Family reunification” is interpreted to mean that between parents and child (not child and other relatives). • “Abuse, abandonment or neglect” is not defined in the immigration statute or regulations.

  8. Requirement Three In Practice: • Examples of children eligible for long-term foster care due to abuse, abandonment or neglect include: • A child whose parents are deceased and whose adult sibling is caring for her • A child who was abandoned by his parents and who now lives in a foster care home • A child whose parents abused her and who will emancipate after completing probation placement

  9. Requirement Four: • It must not be in the “[child]’s best interest to be returned to the [child]’s or parent’s previous country of nationality or country of last habitual residence.” 8 USC § 1101(a)(27)(J)(ii). • This determination must be made in administrative or judicial proceedings. Id.

  10. Factors to Consider on Requirement Four: • Both the downsides of the child’s returning to her home country and the upsides of remaining in the United States are relevant. For example: • Child fears retaliation by abusive family members. • Child has no responsible family members to provide her with care and protection. • Child will have no access to medical, educational or social services. • Child is acculturated to life in the United States. • All of child’s personal ties, perhaps siblings, are here. • Child has been educated in the United States.

  11. Requirements Five and Six • The child must be under 21 years of age. 8 CFR § 204.11(c)(1). • Absolute deadline: Once the child turns 21, there is no hope of getting SIJS – typically the child’s only route to a green card. • You must identify SIJS-eligible children early to avoid age-out problems. • The child must be unmarried. 8 CFR § 204.11(c)(2). • A child’s having her own children is not a bar to SIJS.

  12. There’s more to it… • If the child meets these requirements, that is only the beginning. • Advocates must first obtain these SIJS findings from the juvenile court. • Advocates must then obtain an approved I-360 SIJS Petition from CIS. • With the approved I-360, advocates must then obtain an approved I-485 Application for Adjustment of Status (“AOS”) from EOIR – and child must meet additional requirements to qualify for AOS.

  13. Hurdles to SIJS-Based AOS • Even if a child meets the SIJS requirements, she may be nonetheless ineligible to get a green card as a Special Immigrant Juvenile. Why? • She falls into non-waivable ground of inadmissibility – most typically “reason to believe” she is a drug trafficker. • She does not merit a favorable exercise of discretion by the Immigration Judge (“IJ”) • She is in the custody of the Department of Homeland Security (“DHS”) and the SIJS order was obtained without DHS’s consent.

  14. DHS “Consent” • Children who are in actual or constructive DHS custody cannot seek SIJS without first getting DHS “specific consent” to juvenile court jurisdiction. See 8 USC § 1101(a)(27)(J)(iii)(I). • This includes children in DHS’s own custody as well as children in Office of Refugee Resettlement (“ORR”) custody – and may include others (such as those with prior removal orders or those with DHS detainers). • It does not include children released by ORR to sponsors. • Consent must be sought from, and granted by, DHS Headquarters in Washington DC.

  15. The Procedure • Obtaining SIJS for the Child Proceeds in Two Stages: • The Juvenile Court Stage • When the court makes the required SIJS findings • The Immigration Stage • When counsel uses these SIJS findings as the basis for the filing and processing of an SIJS Petition with CIS and an Adjustment of Status Application with EOIR

  16. The Juvenile Court Stage • TASK ONE: IDENTIFY/SCREEN THE ELIGIBLE CHILD • Screen cases for SIJS eligibility • Remember to screen for AOS eligibility • Use the intake sheet and SIJS inadmissibility chart as guides

  17. The Juvenile Court Stage Presuming your client is not in actual or constructive DHS custody (if she is, you must obtain DHS consent first): Key question: Does the child already have an open juvenile court case initiated by the state? If so, proceed directly to Tasks Two through Five. If not, but the child would meet eligibility requirements if a case were opened, then your first goal is to establish a juvenile court case for the child – typically through a PROBATE COURT GUARDIANSHIP.

  18. The Juvenile Court Stage: Probate Court Guardianships What is a guardianship of the person? A legal action designed to give someone other than a child’s biological parents the care, custody and control of the child Where are guardianships established in California? In dependency court and in probate court Who can petition for a guardianship in probate court? A child, if she is 12 years of age or older, or a relative or friend of the child

  19. The Juvenile Court Stage: Probate Court Guardianships • Steps in the Guardianship Process: • File all guardianship forms & fees (or fee waiver) • Provide notice to all persons entitled to notice • Cooperate with the guardianship investigation • Attend the guardianship hearing • Consult Public Counsel Guardianship Manual at http://www.publiccounsel.org/publications/guardianship_of_the_person_attorney_manual.pdf • Forms available on the Judicial Council website at http://www.courtinfo.ca.gov/forms/

  20. The Juvenile Court Stage TASK TWO: OBTAIN THE SIJS FINDINGS Procedures vary depending upon what type of juvenile court the child is in. Dependency Court: Motion typically filed by dependency attorney Delinquency Court: Motion typically filed by public defender Probate Court: Motion typically filed by attorney filing the guardianship petition

  21. The Juvenile Court Stage TASK TWO: OBTAIN THE SIJS FINDINGS Timing varies depending upon what type of juvenile court the child is in. Dependency Court: Motion typically filed after the child is ordered into long-term foster care Delinquency Court: Motion typically filed after the child’s permanent plan of emancipation is set Probate Court: Motion typically filed along with the guardianship petition NB: Findings are usually made on the basis of court reports.

  22. The Juvenile Court Stage • TASK THREE: OBTAIN A DATE & PLACE OF BIRTH ORDER IF NECESSARY • The child needs some proof of date and place of birth in order to obtain SIJS. • The court can base this order upon the complete file and admissions regarding the child’s date and place of birth. • The court can include this information in the SIJS findings.

  23. The Juvenile Court Stage • TASK FOUR: ASSEMBLE THE NECESSARY DOCUMENTS FROM COURT • Certified copy of SIJS order • Certified copy of DOB order if necessary • Arrest record printout for delinquency cases • Certified copies of juvenile court minute orders corresponding to each petition filed for delinquency cases

  24. The Juvenile Court Stage • TASK FIVE: MAKE SURE THE COURT RETAINS JURISDICTION OVER THE CHILD • Do not have the court terminate jurisdiction until the immigration process is complete • In dependency and delinquency courts, cases can remain open until the child’s 21st birthday • In probate court the case closes on the child’s 18th birthday unless the court agrees to retain jurisdiction through language in the SIJS order or a separate order

  25. The Immigration Stage • STEP ONE: REVIEW THE • IMMIGRATION COURT FILE • File an EOIR-28 and a file request letter with the immigration court – and serve DHS counsel (the “TA”) • Review the documents in the file and obtain copies • Listen to the audio tape of the prior hearings • What are you looking for? Prior pleadings to the allegations in the Notice to Appear (“NTA”), instructions from the IJ, the TA’s position on the case

  26. The Immigration Stage • STEP TWO: ASSEMBLE THE • I-360 PACKET • Obtain birth certificate • Arrange for payment of fee or fee waiver • Prepare immigration forms – available at http://www.uscis.gov • Always check the CIS website for the most up-to-date forms and fee information

  27. The Immigration Stage • STEP TWO: SAMPLE I-360 PACKET • Cover Letter • Juvenile Court SIJS Order • Case Summary • Form I-360 Petition for SIJS • Form G-28 • Proof of Age & Identity (Birth Certificate) • CIS Fee or Fee Waiver

  28. The Immigration Stage • STEP THREE: FILE THE I-360 PACKET • Contact Public Counsel if you would like assistance in filing locally with the CIS Los Angeles District Office • Current Form I-360 instructions indicate the form should be filed at the local CIS office with jurisdiction over the child’s place of residence • Do not delay – do this as soon as you have reviewed the court file and have assembled the packet • NB: Also try to review DHS’s file before submitting the packet

  29. The Immigration Stage • STEP FOUR: ATTEND THE MASTER CALENDAR HEARING • Plead to the allegations in the NTA if not already done • Identify the relief the child will be seeking – here, AOS based on SIJS (and any other relief; remember asylum one-year filing deadline) • Provide proof of the pending I-360 • Request another master calendar for status/filing of the I-485 Adjustment of Status Application

  30. The Immigration Stage • STEP FIVE: ASSEMBLE THE I-485 PACKET • Once the I-360 is approved, the I-485 AOS packet can prepared for filing with the IJ • Arrange for payment of fees or fee waiver • Prepare immigration forms I-485, G-325A – available at http://www.uscis.gov • Arrange for medical exam from CIS-approved doctor • Arrange for CA DOJ background check

  31. The Immigration Stage • STEP FIVE: SAMPLE I-485 PACKET • SIJS Order & Copy of Approved I-360 • Forms I-485 & G-325A • Proof of Fee Payment and Biometrics • Birth Certificate • CA DOJ Background Check Results • Juvenile Delinquency Dispositions, if any • Court Caption Page, Index and Certificate of Service

  32. The Immigration Stage • STEP SIX: SUBMIT FEES AND BIOMETRICS REQUEST • Follow the instruction sheet given by the IJ • Mail biometrics packet to the CIS Texas Service Center • The packet includes a copy of I-485, fees, a copy of the EOIR-28 and a copy of the instruction sheet • Do this as soon as possible, because without completed biometrics the IJ cannot grant AOS

  33. The Immigration Stage • STEP SEVEN: OBTAIN RECEIPTS AND APPOINTMENT NOTICES AND COMPLETE BIOMETRICS • Wait for CIS to issue receipts and schedule the biometrics appointments • The child must have valid government-issued ID. • Background checks are done for criminal and security clearance. For details see http://www.uscis.gov/graphics/publicaffairs/factsheets/security_checks_42506.pdf.

  34. The Immigration Stage • STEP EIGHT: FILE THE I-485 PACKET AT THE MASTER CALENDAR HEARING • Serve a copy of the packet on the TA (original G-325As) • File the original packet with the IJ (copy G-325As) • The IJ may allow you to file the packet at the clerk’s office, although many IJs only allowing filing of applications in court. • Give the I-693 medical exam to the TA to open and check • Schedule a merits hearing for the child

  35. The Immigration Stage • STEP NINE: REQUEST DISMISSAL WITHOUT PREJUDICE? • A good option to reduce stress and speed up process • Submit a cover letter and a sample Motion to Dismiss Without Prejudice to the TA • Follow DHS’s 10/06/05 Howard Memo instructions • If the TA agrees, file a Joint Motion with the IJ • If the Motion is granted, then proceed to AOS with CIS as an affirmative SIJS case

  36. The Immigration Stage • STEP TEN: REQUEST A CONTINUANCE? • If your client’s case is not going to be ready to proceed on the date scheduled for her merits hearing, you must file a Motion to Continue. • Local rules require that this Motion be filed no later than 14 calendar days before the hearing – and check the IJ’s preferences for more detailed requirements; typically the Motion is heard the day after it is filed and you must attend the hearing. • Avoid this situation by being realistic about how long the process will take and informing the IJ early on

  37. The Immigration Stage • STEP ELEVEN: PREPARE FOR THE MERITS HEARING • Review all applications with the child & update if needed • Prepare and practice direct and cross examinations • Arrange for original documents to be at the hearing • Additional documents you may want to prepare: brief on AOS eligibility, I-601 waiver, various motions • Consult with the TA to make sure that all background checks will be completed for the hearing, particularly if there is an age-out problem

  38. The Immigration Stage • STEP TWELVE: ATTEND THE MERITS HEARING • Field legal concerns from the IJ (questions on the basis for AOS, inadmissibility issues) • Submit the brief on AOS eligibility, I-601 waiver, various motions if necessary • Conduct the direct examination • Assist the child on cross examination or IJ questioning • Ask to go forward with the child’s testimony even if the background checks are not complete

  39. The Immigration Stage • STEP THIRTEEN: HEARING FOLLOW UP • If a decision cannot be issued because the background checks are not complete, schedule a follow up hearing for resolution of the case • If approved and appeal waived, follow Step Fourteen • If approved and appeal not waived, follow Step Fourteen if no appeal is filed – otherwise, oppose appeal at the Board of Immigration Appeals (“BIA”) • If denied, you can appeal to BIA within 30 days, move to reconsider within 30 days, move to reopen within 90 days

  40. The Immigration Stage • STEP FOURTEEN: WRAP UP AFTER APPROVAL • Schedule an InfoPass appointment for green card processing • Wait for the delivery of the child’s green card from CIS • Provide a final status report to the juvenile court • Advise the child on her rights and responsibilities as a lawful permanent resident using the following: • http://www.uscis.gov/graphics/citizenship/welcomeguide/index.htm

  41. Down the Road… • Once the child is a lawful permanent resident, she is eligible for U.S. citizenship after 5 years or on her 18th birthday (whichever is later). • She can work legally, obtain federal financial aid, and reside permanently in the United States absent certain conduct. • …and you know you’ve done a great service for this child.

  42. Other Resources • ILRC SIJS Handbook at http://www.ilrc.org • ILRC SIJS Listserve • LIRR Publication on Working with Immigrant Children at http://www.lirs.org/InfoRes/pub.htm • Public Counsel SIJS Affirmative & Defensive SIJS Manuals • Immigrant Children Lawyers Network

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