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Representing Minors in Immigration. CLE Presented by Angela L. Williams The Law Offices of Angela L. Williams, LLC 4235 Baltimore Ave Kansas City, MO 64111 816-531-2166 (T) 816-531-2444 (F) angie.williams@me.com www.williamslawkc.com And Robert Sagastume KSMODA Organizer
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Representing Minors in Immigration CLE Presented by Angela L. Williams The Law Offices of Angela L. Williams, LLC 4235 Baltimore Ave Kansas City, MO 64111 816-531-2166 (T) 816-531-2444 (F)angie.williams@me.com www.williamslawkc.com And Robert Sagastume KSMODA Organizer Mailing Address: 4235 Baltimore Kansas City, MO 64111 Bobsagastume@gmail.com ABA’s Equal Access to Justice Conference St. Louis, MO May 9-11, 2013
My Client is an Immigrant. Now what? In all representation, it is important to verify the whether the client is a US citizen. Non-citizens, especially undocumented people may have immigration options.
Types of “Victim’s” Visas • U Visa- Crime victim’s visa • T Visa- Visa for the victims of Human Trafficking • VAWA-Violence Against Women Act- Visas for abused spouses or children of US Citizens or Permanent Residents • Juvenile Visas- Special Juvenile Immigrants or Unaccompanied Minors • Deferred Action-Temporarily Stops Physical Deportation • DACA- Deferred Action for Childhood Arrivals • Asylum
U Visas • Visa for Victims of Crimes • Goal- to encourage undocumented people to report crimes and cooperate with law enforcement • Can be found at INA § 101(a)(15)(u)-Definitions; §214(p)-Numerical limits and procedure; §245(m) adjustment of status: & 8 CFR §214 • Requires the person 1. Was a victim of a crime listed in the regs or other serious crime; 2. The person has information important to the investigation of the case 3. The person was or is being helpful; 4. The person suffered “permanent harm” as a result of being a victim; 5. The application must include a certification from investigating body, a prosecutor or judge of the persons helpfulness.
U Visas Continued • If approved gives the person and certain derivatives legal status and the right to work for 3 years • At the end of 3 years the person may self petition for Lawful Permanent Residency • After 5 years of Residency the person my self petition for US Citizenship • Waives almost everything except genocide and being a Nazi
T Visas • Be a victim of a severe form of trafficking in persons • Be physically present in the US as a result of the trafficking • Comply with any reasonable request for assistant or prosecution • Have Suffered extreme hardship involving unusual and severe harm upon removal from the US
T Visas • Can self petition • Some family members can be included • Eligible to work in the US • 4 year visa • May self petition for Lawful Permanent Residency After 4 years • Pro- No need for the certification • Con- Higher level of proof of meeting the trafficking definition
VAWA • Not just for women, can be abused men or children (USC or LPR) or parents (USC only) • Abuser must be USC or LPR: This statute takes the place of the Abusing Petitioner • Self Petitioning • Is or was married to USC or LPR/child of USC or LPR or Parent of USC
VAWA • Subjected to battery or extreme cruelty by the abuser • Resides or resided with the abuser • Good moral character • Pro- Do not need a sponsor and is self petitioning, can work, can remarry after petition is approved, can have derivatives; can apply to 751 as well as initial residency; Can apply for residency immediately if you qualify; 3 years to NATZ
VAWA • Cons: GMC not auto-waived like with U’s and T’s; Criminal history might make you ineligible; Multiple entries, deportations, Voluntary returns might make you ineligible; If married to a LPR you have to wait for the priority date; Common law marriage very hard to prove: No benefit if abuser is undocumented (though U might be available)
SIJS-Special Immigrant Juvenile Status • Abused, abandoned or neglected children- SIJS- Special immigrant juvenile status- Requires a guardian, maybe even one parent, needs state court action followed by immigration petition that takes them directly to LPR • Problems in Missouri with Commissioners • Unfriendly Judges
SIJS Continued • Juveniles in State Juvenile Court system • Juveniles in Federal Custody • MUST have a state juvenile court dependency order • Dept of Health and Human Services has responsibility for care and custody of unaccompanied minors in federal custody • May be able to file an asylum application in some situations
SIJS Continued • Pros- One Stop Shop from undocumented to LPR; waives many things but not everything; Gives you until 21 to apply for the immigration benefit; Quick adjudication (180 days); Eligible to work; Cannot apply for abusive parents • Cons- have to be under 18 to get the state order but you have until 21 to apply for the immigration benefit; have to have a state court finding that the child needs a guardian not solely for immigration purposes; tricky if there are multiple entries or if even 1 parent of the child is in the US (though not impossible)
Asylum • Gangs • Abuse • Sexual Assault or abuse • Lack of Children’s Services • http://cgrs.uchastings.edu • Center for Gender and Refugee Studies
Deferred Action • Temporarily stops a physical removal • Can sometimes get work authorization • File by using Form ICE form I-246 • Usually have to have a reason
DACA-Deferred Action for Childhood Arrivals aka Obama’s Back Door Amnesty • In high school now, graduated from high school or now in GED or English Class • No Felonies, DUI’s, DV, drugs, guns, sex abuse, burglary, “Significant Misdemeanors, no more than 3 non-significant misdemeanors • At least 15 when applying • Arrived in the US Prior to 16th B-day • Arrived in US prior to June 15, 2007 • No older than 31 on June 15, 2012 • Continuous physical presence from June 15, 2007-Present
You may be the first person to hear this story • Representing victims means building a trust relationship with them. • This relationship sometimes takes time to develop • Be aware of your own limitations and preconceptions • Be courteous and do not dismiss what the person is saying
Considerations • Be aware of the cultural and social implication of what the client is telling you • Be aware that you will probably not get the whole story the first time • Be aware that depending on the trauma to the victim their story might be disjointed and have later remembered details • Be aware they may even lie because of shame or embarrassment
Other issues • Victim’s Statement • Your job as the editor or re-writer or transcriber • Working with very traumatized people • Working with translators/interpreters • What if the client has cold feet later? • What if he or she is still living with the abuser? • Working with difficult police, prosecutors or court victim’s advocates