Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth [5 ed.]

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Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth

Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth. Immigrant children and youth may be eligible for special types of immigration relief available just for children or they may be eligible for immigration relief in different ways than adults. In addition, separate procedures may and often do apply in the immigration process for children and youth. A federal law enacted in December 2008, called the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), introduced important protections for the treatment of unaccompanied minors in the immigration system, many of which have continued to be clarified in recent years, and others of which have come under attack. This manual is an essential guide for those representing the increased number of unaccompanied minors who have migrated to the United States in recent years, as well as those representing immigrant youth who were brought to the United States at a young age and know no other home. In particular, this manual provides background and guidance on the protections, procedures, and immigration options for immigrant children, including unaccompanied minors under the TVPRA. It has a special focus on Special Immigrant Juvenile Status (SIJS), with an in-depth discussion of the legal requirements for SIJS eligibility, including “one-parent” SIJS cases, and step-by-step guidance for representing SIJS-eligible youth in both affirmative and defensive applications. The manual also provides information on other immigration options for children and youth, including: U Nonimmigrant Status, T Nonimmigrant Status, Violence Against Women Act protection, asylum (with a special discussion of unaccompanied minor asylum cases and evolving social group claims), family-based immigration options, citizenship, and others. It also addresses specialized issues such as working with and representing child clients, immigration consequences of delinquency and drug trafficking or gang involvement, and the immigration detention system for youth. The manual contains many useful samples for practitioners, including screening forms, sample SIJS and other applications, state court and immigration court motions, court orders and other resources for helping advocates and their clients understand and interact with the juvenile court, immigration court, and immigration authorities.

Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792 WWW.ILRC.ORG

5th Edition

1663 MISSION STREET SUITE 602

5th Edition By Angie Junck, Alison Kamhi, and Rachel Prandini, ILRC Attorneys with Kristen Jackson

Special Immigrant Juvenile Status

and Other Immigration Options for Children and Youth 5th Edition By Angie Junck, Alison Kamhi, and Rachel Prandini, ILRC Attorneys

with Kristen Jackson

The Immigrant Legal Resource Center

A

Copyright 2018 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights.  Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates 

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

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Publications: ILRC publishes some of the top reference manuals on immigration law.

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Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and others assisting immigrants. Immigrants 

Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the democratic process in the United States, so as to enable them to advocate for better policies in immigration law, as well as in health care, community safety, and other issues that affect the immigrant community.

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Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.

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Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice 

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

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Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.

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Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us 

General inquiries: [email protected]

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Publications: [email protected]

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Attorney of the Day (AOD): [email protected]

 Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

Special Immigrant Juvenile Status June 2018

ACKNOWLEDGEMENTS It is a great pleasure to acknowledge the people whose input, support and assistance have made possible the Fifth Edition of Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth. This manual was made possible by generous support over the years from the Morris Stulsaft Foundation, Haigh-Scatena Foundation, Zellerbach Family Foundation, Equal Access Fund, and through the City of San Francisco’s funding for the San Francisco Immigrant Legal Defense Collaborative. This updated edition benefited greatly from the diligent work of Alison Kamhi, Supervising Attorney at the ILRC. Alison’s practical and substantive expertise in immigrant children’s issues was critical in updating, expanding, and improving our manual. Before coming to the ILRC, Alison represented immigrant children at Catholic Charities in New York and more recently, authored a model SIJS state statute to better ensure immigrant children have access to SIJS in their respective state courts. Alison is also an expert in citizenship for children, among other subjects. This edition was also brought up to date on current policy and practice thanks to the thoughtful and practice-oriented contributions of Sara Van Hofwegen, Supervising Staff Attorney at Public Counsel Law Center in Los Angeles, California, and Cecilia Candia, Staff Attorney at Legal Services for Children in San Francisco, California. Sara updated two of the procedural chapters on SIJS (Chapters 8–9), which required extensive edits due to changes in policy and practice at U.S. Citizenship & Immigration Services since the publication of the previous edition of this manual. She also contributed significantly to the appendices included in the manual. Cecilia updated the chapter on detention of children and youth (Chapter 18), an issue that has captured the national attention of the public in recent years and been the subject of frequent and ongoing litigation. Her first-hand experience working with detained immigrant youth brought great depth and insight to that chapter. I am also grateful to Cindy Liou, a renowned expert in T visas and Deputy Director of Legal Services at Kids in Need of Defense (KIND), who assisted in updating the chapter on T visas for youth. Catherine Seitz, Legal Director at Legal Services for Children, edited and added insight to two chapters on SIJS and state court systems. The groundwork for this updated edition was made possible with the assistance of Kristen Jackson, Senior Staff Attorney at Public Counsel Law Center in Los Angeles, California; Helen Lawrence, immigration attorney and former ILRC law fellow; and Angie Junck, former ILRC Supervising Attorney and Director of Immigrant Defense Programs. Kristen, a renowned national expert in Special Immigrant Juvenile Status and children’s immigration issues, wrote the original editions of the procedural chapters on SIJS (Chapters 7–9). She has been a great partner to the ILRC over the years and we are grateful for all of her support. Helen, an immigration lawyer based in Oakland, California, who has litigated some of the most complex legal issues affecting immigrant children, wrote many of the chapters in prior editions of the manual. Without her extensive work on the prior editions, we would not have been able to address the breadth of legal issues facing immigrant children. Finally, Angie is a national expert on, among other things, children’s immigration issues, the immigration consequences of delinquency, and immigration issues in the child welfare system. Her contributions to the development of this manual made it the comprehensive national resource that it is today. We are grateful to Sally Kinoshita and Kathy Brady of the ILRC for writing the first edition of this manual and laying the foundation for the immigrant youth work of the ILRC. i

Immigrant Legal Resource Center June 2018

I am also very grateful to others who have contributed to this manual. Appendices materials were provided by Lynette Parker, Clinical Professor at the Katharine & George Alexander Community Law Center at Santa Clara University Law School; Catherine Seitz and the rest of the staff at Legal Services for Children; Sara Van Hofwegen and the rest of the staff in the Immigrant Rights’ Project at Public Counsel; Yliana Johansen-Méndez and the rest of the staff at Immigrant Defenders Law Center; Erika Gonzalez and Carolyn Kim, Training and Technical Assistance Senior Attorneys at The Coalition to Abolish Slavery & Trafficking (CAST); Katie Annand, Managing Attorney – San Francisco at Kids in Need of Defense (KIND); Jenny Horne, Staff Attorney at Legal Aid Society of San Mateo County; Abby Sullivan Engen, Supervising Immigration Attorney, Centro Legal de la Raza; Anna Welch, Clinical Professor, University of Maine School of Law; C. Mario Russell, Legal Director of Catholic Charities New York’s Immigrant & Refugee Services Division; Brett Stark, Legal Director and Co-Founder of Terra Firma, Catholic Charities New York; and Sarah Gavigan, Immigration Attorney at the Central American Resource Center in San Francisco. Lastly, I would like to thank other attorneys at the ILRC, in particular Eric Cohen, Sally Kinoshita, Ariel Brown, Angie Junck, Em Puhl, Sharon Hing, and Allison Davenport for cowriting and editing this manual, and ILRC intern Bryn Choi for her assistance in compiling appendices. I am also grateful to Linda Mogannam and Tim Sheehan for all of their patience and hard work. Rachel Prandini September 2018

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SPECIAL IMMIGRANT JUVENILE STATUS AND OTHER IMMIGRATION OPTIONS FOR CHILDREN AND YOUTH 5TH EDITION TABLE OF CONTENTS PART I: INTRODUCTION AND OVERVIEW Chapter 1

Introduction and Overview

§ 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6

Introduction and Overview to This Manual ........................................................... 1 Lawful Immigration Status and Forms of Immigration Relief Available to Children and Youth............................................................................ 5 Immigration System Actors.................................................................................... 9 Immigration Legal Provisions .............................................................................. 15 Grounds of Inadmissibility and Deportability and Waivers ................................. 20 Overview of the Immigration Process for Children and Youth............................ 22

Chapter 2

Working with Children and Youth

§ 2.1 § 2.2

Introduction .......................................................................................................... 29 Understanding a Child or Youth’s Developmental Stage and Background.................................................................................................... 30 General Practice Tips for Developmentally Appropriate Interviews and Working with Children and Youth ................................................................ 34 Special Considerations and Practice Tips for Working with Detained Children and Youth .............................................................................................. 38 Avoiding Re-Traumatization ................................................................................ 40 Ethical Issues in Representing Children ............................................................... 42

§ 2.3 § 2.4 § 2.5 § 2.6

PART II: SPECIAL IMMIGRANT JUVENILE STATUS FOR CHILDREN AND YOUTH UNDER JUVENILE COURT JURISDICTION Chapter 3

Introduction and Overview to Special Immigrant Juvenile Status

§ 3.1

Lawful Immigration Status: What Is It and Why Is It Important? The Stories of Julia, Martin, Eduardo, and Ramon ..................................................... 46 What Is Special Immigrant Juvenile Status and Who Is Eligible to Become a Permanent Resident Through Special Immigrant Juvenile Status? .................................................................................................................. 47 What Are the Benefits of Applying for Special Immigrant Juvenile Status? .................................................................................................... 57 What Are the Risks of Applying? ........................................................................ 58 Who Should Apply? ............................................................................................. 59 What Is the Application Procedure? ..................................................................... 59 Expeditious Adjudication ..................................................................................... 62 Talking with the Child Applicant and Child’s Attorney About SIJS ................... 62

§ 3.2

§ 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8

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§ 3.9 § 3.10

Natural Parents, or Prior Adoptive Parents, and Maybe Siblings, Cannot Benefit Through Grant of SIJS to Child .................................................. 62 Children in Immigration Custody......................................................................... 63

Chapter 4

Eligibility for Special Immigrant Juvenile Status

§ 4.1 § 4.2 § 4.3

History and Statutory Authority ........................................................................... 65 Statutory and Regulatory Requirements............................................................... 67 Under the Jurisdiction of a Juvenile Court: Dependency, Guardianship, Custody, Delinquency, and Adoption ........................................... 68 Reunification with One or Both of the Immigrant’s Parents Is Not Viable ............................................................................................................ 75 Due to Abuse, Neglect, Abandonment, or a Similar Basis Found Under State Law: Legal Standards, USCIS Requests for Evidence and Documentation............................................................................................... 86 Not in the Child’s Best Interest to Be Returned to Country of Nationality or Last Habitual Residence................................................................ 92 Consent to the Grant of SIJS and Specific Consent ............................................. 94 Additional Regulatory Requirements: Age, Continuing Jurisdiction of the Juvenile Court, and Marriage ..................................................................... 98 Expeditious Adjudication ................................................................................... 103 Who Should Not Apply for Special Immigrant Juvenile Status: Weighing Affirmative and Defensive SIJS Cases .............................................. 103 How a Special Immigrant Juvenile Can Lose SIJS: Revocation of Approval ........................................................................................................ 104

§ 4.4 § 4.5

§ 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 Chapter 5

Eligibility for Adjustment of Status to Permanent Residency for Special Immigrant Juveniles

§ 5.1 § 5.2 § 5.3 § 5.4 § 5.5

Statutory Requirements for Adjustment of Status .............................................. 107 Grounds of Inadmissibility and Deportability .................................................... 108 Waivers of Inadmissibility: INA § 245(h)(2)(B) and INA § 212(h) .................. 123 Availability of an Immigrant Visa...................................................................... 124 Discretion to Grant or Deny Adjustment of Status ............................................ 130

Chapter 6

Risks and Benefits of Applying

§ 6.1 § 6.2 § 6.3 § 6.4

Overview ............................................................................................................ 133 Pending Affirmative SIJS Cases ........................................................................ 134 Employment Authorization for Adjustment of Status Applicants...................... 134 Limited Eligibility for Public Benefits for Special Immigrant Juveniles ........................................................................................... 135 Benefits of Lawful Permanent Residency Through SIJS ................................... 135 Risks of Applying in Affirmative SIJS Cases: Placement in Removal Proceedings Based on Denial or Revocation of Status ...................................... 137 People Who Obtain Lawful Permanent Residence Through SIJS Cannot Petition for Natural or Prior Parents to Immigrate; They Can Petition for New, Adoptive Parents ............................................................ 139

§ 6.5 § 6.6 § 6.7

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Chapter 7

State Juvenile Courts and Obtaining SIJS Findings in Juvenile Courts

Part I: State Court Systems § 7.1 Dependency Proceedings ................................................................................... 142 § 7.2 Guardianship Proceedings .................................................................................. 149 § 7.3 Custody Proceedings .......................................................................................... 151 § 7.4 Adoption ............................................................................................................. 154 § 7.5 Delinquency Proceedings ................................................................................... 157 Part II: Obtaining SIJS Findings in Juvenile Courts (By Kristen Jackson) § 7.6 Obtaining Specific Consent When Needed ........................................................ 162 § 7.7 Establishing Juvenile Court Jurisdiction if Not Already Existent ...................... 164 § 7.8 Deciding When to Request the SIJS Findings .................................................... 166 § 7.9 Determining Who Should Request the SIJS Findings ........................................ 167 § 7.10 Preparing the Proposed SIJS Findings and SIJS Motion.................................... 169 § 7.11 Presenting the Proposed SIJS Findings and SIJS Motion to the Juvenile Court .................................................................................................... 172 § 7.12 Maintaining the Child’s SIJS Eligibility After the Juvenile Court Has Made the SIJS Findings...................................................................................... 174 Chapter 8

Affirmative Special Immigrant Juvenile Status Cases

Part I: Creating the SIJS Packet § 8.1 Assessing the Child’s Immigration History ....................................................... 178 § 8.2 Determining Which Applications to File ........................................................... 179 § 8.3 Understanding the Risks of Applying for SIJS and Helping Your Client Reach an Informed Decision ................................................................... 180 § 8.4 General Guidelines for Forms to File in a Special Immigrant Juvenile Status Packet ...................................................................................................... 181 § 8.5 Completing Each USCIS Form .......................................................................... 182 § 8.6 Meeting with the Child to Complete and Review Each Form............................ 187 § 8.7 Obtaining Supporting Materials ......................................................................... 187 § 8.8 Drafting a Cover Page, Cover Letter, and Case Summary ................................. 196 § 8.9 Assembling the SIJS Forms for Filing ............................................................... 197 Part II: The Affirmative SIJS Process Step-by-Step § 8.10 Filing the SIJS Packet......................................................................................... 199 § 8.11 Completing the Biometrics Appointment and Obtaining the Work Permit ....................................................................................................... 200 § 8.12 Keeping Addresses Current ................................................................................ 201 § 8.13 Common Adjudication Issues ............................................................................ 202 § 8.14 Interviews ........................................................................................................... 207 § 8.15 Notice of Decision: Approvals, Denials, and Appeals ....................................... 210 Chapter 9

Defensive Special Immigrant Juvenile Status Cases

Part I: The Defensive SIJS Process Step-by-Step § 9.1 Immigration Court and Obtaining Copies of the Child’s Immigration Files .................................................................................................................... 217 Table of Contents

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§ 9.2 Preparing for the Master Calendar Hearing........................................................ 218 § 9.3 Attending the Master Calendar Hearing ............................................................. 222 § 9.4 Filing the I-360 Packet with USCIS ................................................................... 224 § 9.5 Keeping Addresses Current ................................................................................ 224 § 9.6 Obtaining a Decision on the I-360 from USCIS ................................................ 225 § 9.7 Moving to Terminate the Removal Proceedings if Desired ............................... 226 § 9.8 Obtaining the I-485 Fees or Fee Waiver ............................................................ 228 § 9.9 Completing the Biometrics Requirement ........................................................... 229 § 9.10 Filing the I-485 Packet with the Immigration Court .......................................... 230 § 9.11 Obtaining a Work Permit ................................................................................... 231 § 9.12 Preparing for the Merits Hearing........................................................................ 232 § 9.13 Attending the Merits Hearing ............................................................................. 234 § 9.14 The Immigration Judge’s Decision: Approvals, Denials and Appeals............... 237 Part II: Creating the I-360, I-485, and I-765 Packets § 9.15 General Guidelines for USCIS Forms ................................................................ 239 § 9.16 Preparing the I-360 Packet for Filing with USCIS ............................................. 239 § 9.17 Preparing the I-485 Packet for Filing with the Immigration Court .................... 240 § 9.18 Preparing the I-765 Packet for Filing with USCIS ............................................. 243 Part III: Reopening Removal Proceedings for an SIJS-Eligible Child § 9.19 Obtaining a Copy of the Child’s Immigration Court File .................................. 246 § 9.20 Preparing an I-246 Stay of Removal Packet....................................................... 247 § 9.21 Assessing Whether, Where, and When to File the Motion to Reopen ............... 248 § 9.22 Preparing the Motion to Reopen ........................................................................ 251 § 9.23 Convincing ICE to Join the Motion to Reopen .................................................. 252 § 9.24 Filing the Motion to Reopen and Obtaining a Decision ..................................... 253 § 9.25 Completing the Child’s SIJS-Based Adjustment of Status ................................ 254 PART III: OTHER FORMS OF IMMIGRATION RELIEF Chapter 10

U Nonimmigrant Status (“U Visa”)

§ 10.1 § 10.2 § 10.3 § 10.4 § 10.5

§ 10.7 § 10.8

Overview of Benefits and Eligibility.................................................................. 255 Victim and Derivative Beneficiary Definitions .................................................. 258 Victim of Criminal Activity ............................................................................... 263 Suffered Substantial Physical or Mental Abuse ................................................. 264 Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution................................................................ 265 Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States .............................................................. 267 Admissible to the United States ......................................................................... 268 Other Documentation Requirements .................................................................. 270

Chapter 11

Violence Against Women Act Relief

§ 11.1 § 11.2 § 11.3

Overview of VAWA Provisions......................................................................... 273 Requirements for VAWA Self-Petitioning Children ......................................... 274 Children of the Self-Petitioner May Qualify for Derivative Status .................... 282

§ 10.6

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§ 11.4 § 11.5 § 11.6

VAWA and the Child Status Protection Act (CSPA) ........................................ 283 Conditional Permanent Residence and Abused Immigrants .............................. 285 Cancellation of Removal for Abused Immigrants .............................................. 288

Chapter 12

Asylum, Withholding of Removal and Convention Against Torture Protection

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7

Overview of Asylum and Related Protections ................................................... 291 Well-Founded Fear of Persecution ..................................................................... 295 Nexus and the Protected Grounds ...................................................................... 305 Bars to Asylum and Related Protections ............................................................ 329 The Asylum Process ........................................................................................... 339 Withholding of Removal .................................................................................... 351 Convention Against Torture ............................................................................... 352

Chapter 13

Family-Based Immigration

§ 13.1 § 13.2

Overview of the Family Immigration Process: A Two-Step Process................. 357 Overview of Who Can Immigrate Through FamilyBased Immigration ............................................................................................. 360 Definition of “Child” and “Spouse” ................................................................... 362 Family Immigration and Adoption ..................................................................... 367 K Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens........................ 371 The Preference Category Immigration System .................................................. 374 Derivative Beneficiaries ..................................................................................... 380 The Child Status Protection Act (CSPA) ........................................................... 382 V Nonimmigrant Visas for Spouses and Children of U.S. Permanent Residents .......................................................................................... 386

§ 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9 Chapter 14

Citizenship for Children and Youth

§ 14.1 § 14.2 § 14.3 § 14.4 § 14.5 § 14.6

Introduction to Citizenship ................................................................................. 389 Overview of Acquisition and Derivation of Citizenship .................................... 391 Introduction to Acquisition of Citizenship ......................................................... 392 Derivation of Citizenship ................................................................................... 395 Child Citizenship Act of 2000 ............................................................................ 397 Citizenship Under INA § 322: Children of U.S. Citizens Living Abroad .................................................................................................... 401

Chapter 15

Human Trafficking and T Visas

§ 15.1 § 15.2

Overview of Human Trafficking ........................................................................ 407 Benefits from Department of Health and Human Services from Receiving Continued Presence (CP), T Visa, or as an Unaccompanied Minor ....................................................................................... 410 T Visa Eligibility ................................................................................................ 415 Element One: Victim of a Severe Form of Human Trafficking ......................... 416 Element Two: Physical Presence on Account of Trafficking ............................ 424 Element Three: Compliance with Any Reasonable Request for

§ 15.3 § 15.4 § 15.5 § 15.6

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§ 15.7 § 15.8 § 15.9 § 15.10 § 15.11 § 15.12 § 15.13 § 15.14 § 15.15 § 15.16

Assistance Made by Law Enforcement .............................................................. 427 Element Four: Extreme Hardship upon Removal .............................................. 432 Applying for Waivers for Inadmissibility .......................................................... 435 Trauma from Trafficking.................................................................................... 439 Filing the T Visa ................................................................................................. 440 Approval of T Visa ............................................................................................. 440 Responding to Requests for Evidence and Notices of Intent to Deny................ 441 Removal Proceedings and Final Orders of Removal ......................................... 444 Derivative Applications...................................................................................... 445 Adjustment of Status .......................................................................................... 448 Filing a T Visa, U Visa, SIJS, or Asylum?......................................................... 449

Chapter 16

Other Immigration Options

§ 16.1 § 16.2 § 16.3 § 16.4 § 16.5 § 16.6 § 16.7

Overview ............................................................................................................ 453 Cancellation of Removal for Lawful Permanent Residents ............................... 453 Cancellation of Removal for Non-Lawful Permanent Residents ....................... 455 Motions to Suppress and Challenging Removability ......................................... 457 Voluntary Departure ........................................................................................... 458 Temporary Protected Status (TPS) ..................................................................... 464 Prosecutorial Discretion and Deferred Action, Including Deferred Action for Childhood Arrivals (DACA) ............................................................ 468 Private Bills Passed by Congress ....................................................................... 473

§ 16.8

PART IV: SPECIAL ISSUES IN REPRESENTING YOUTH Chapter 17

Immigration Consequences of Juvenile Delinquency and Crime

§ 17.1 § 17.2 § 17.3

Overview ............................................................................................................ 475 Immigration Consequences of Juvenile Court Dispositions............................... 477 Reason to Believe the Person Engaged in or Assisted in Drug Trafficking ................................................................................................ 483 Drug Abuser or Addict ....................................................................................... 488 Physical or Mental Disorder Posing Threat to Self or Others ............................ 490 Prostitution ......................................................................................................... 491 Finding of Violation of a Domestic Violence Protective Order ......................... 492 False Claim to U.S. Citizenship ......................................................................... 493 Other Conduct That May Cause Problems: Violent Offenses, Sex Offenses, and Gang Conduct or Membership .................................................... 497 Discretion to Deny Immigration Relief Based on Juvenile Delinquency ......................................................................................... 503 Immigration Enforcement Actions Against Youth with Records ...................... 504 Other Potential Consequences of Juvenile Dispositions .................................... 505 Obtaining Juvenile Records, Sealing and Expunging Records, and Confidentiality Issues ......................................................................................... 506 Youth Convicted as Adults................................................................................. 512 Overview of Immigration Consequences of Adult Criminal Convictions ......................................................................................... 513

§ 17.4 § 17.5 § 17.6 § 17.7 § 17.8 § 17.9 § 17.10 § 17.11 § 17.12 § 17.13 § 17.14 § 17.15

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§ 17.16 § 17.17

Immigration Enforcement in Schools and the Juvenile Justice System ............. 517 Resources ........................................................................................................... 519

Chapter 18

Detention of Children and Youth

§ 18.1 § 18.2 § 18.3 § 18.4 § 18.5

Overview ............................................................................................................ 521 Apprehension/Arrest, Initial Determinations and Detention Standards ............. 523 Detention in ORR Custody................................................................................. 528 Detention in DHS Custody ................................................................................. 537 Seeking Release of Juveniles in Custody ........................................................... 541

INDEX OF APPENDICES Appendix A Appendix B Appendix C

Appendix D

Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K

Immigration Relief Screening Questionnaire Map of the Deportation System for Immigrant Children & Youth Statutes and Regulations 8 USC § 1101(a)(27)(J), Definition of Special Immigrant Juvenile 8 USC § 1255(a), Adjustment of Status of Nonimmigrant to That of Person Admitted for Permanent Residence 8 USC § 1255(h), Special Immigrant Juveniles’ Adjustment of Status, Waivers of Inadmissibility 8 USC § 1227(c), Automatic Waiver of Certain Grounds for Deportation for Special Immigrant Juveniles 8 CFR § 204.11, Regulation Governing Application for Special Immigrant Juvenile Status 8 CFR § 204.1(f), (g)(2), Regulation on Substitute Documents to Prove Birth in Family Visa Petition Cases 8 CFR § 103.7(c), Federal Regulation Governing Fees and Fee Waivers 8 CFR § 205.1(a)(3)(iv), Federal Regulation Governing Automatic Revocations USCIS Memoranda on SIJS 2011 Ombudsman Recommendation & USCIS Response 2009 Neufeld Memorandum 2004 Yates Memorandum Selected AAO Decision on TVPRA Changes to SIJS Eligibility Risks and Benefits Flyers (English and Spanish) Step by Step Guide to FOIA Requests Chart of Grounds of Inadmissibility for Special Immigrant Juveniles Sample Memorandum of Points and Authorities in Support of Request for SIJS Findings Sample SIJS Juvenile Court Predicate Orders from California, Maine, and New York Instructions for Completing USCIS Forms

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Appendix L Appendix M Appendix N Appendix O Appendix P

Appendix Q Appendix R Appendix S Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z Appendix AA Appendix BB Appendix CC Appendix DD

Appendix EE Appendix FF Appendix GG Appendix HH Appendix II Appendix JJ Appendix KK

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Annotated USCIS Instructions for Forms G-28, I-360, I-912, I-485, I765, I-693 and I-601 Sample Affirmative SIJS Application Packet Sample Motion to Terminate Based on T Visa Status Sample Biometrics Letter, Adjustment of Status Letter and Adjustment of Status Checklist Sample Approvals Permanent Resident Card (“Green Card”) I-360 Approval Notice I-485 Approval Notice Specific Consent Request and Instructions Sample Track 3 USCIS FOIA Request Sample I-360 Packet for Child in Removal Proceedings & Approval Sample Fee Waiver Motion and Proposed Order to EOIR for Child in Removal Proceedings Sample Cover Letter for Biometrics Processing for Child in Removal Proceedings Template I-485 Adjustment of Status Filing for Child in Removal Proceedings I-765 Packet for SIJS Recipient in Removal Proceedings Sample Motion to Terminate Based on Improper Service Sample Order Granting Adjustment of Status and Post-Grant Instructions Sample Closing Letter Sample EOIR Freedom of Information Act Request Sample I-246 Packet Sample Motion to Continue Based on Pending I-589 Judicial Council of California Memorandum Implementing SB 873 and the Special Immigrant Juvenile Process in the Superior Courts (Sept. 30, 2014) CAST Advisory on Requesting Continued Presence Centers for Disease Control and Prevention Revised Fact Sheet on Vaccinations Quick Reference Tips for Immigration Attorneys Working in State Juvenile Courts Acquisition of Citizenship Chart A Acquisition of Citizenship Chart B Derivation of Citizenship Chart C USCIS Fact Sheet and Memoranda on Unaccompanied Children Seeking Asylum under the TVPRA and Procedures for Handling Children’s Asylum Claims

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Appendix LL

Appendix MM Appendix NN Appendix OO Appendix PP Appendix QQ Appendix RR

Appendix SS Appendix TT Appendix UU Appendix VV Appendix WW

EOIR Legal Opinion re: EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of the TVPRA (Sept. 19, 2017) EOIR Memorandum on Implementation of TVPRA Asylum Jurisdictional Provision (Interim Guidance) (March 20, 2009) DHS UAC Instruction Sheet Sample UAC Asylum Letter Brief Sample UAC Asylum Declaration Quick Reference Chart on the Immigration Consequences of Delinquency Map of Immigration Enforcement in the Juvenile Justice System Memorandum of Agreement Among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection of the U.S. Department of Homeland Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters Sample California Benefits Letter for Trafficking Survivors ICE HSI Directive 10075.2: Continued Presence (Oct. 6, 2016) Sample T Visa Cover Letter Sample Cover Letter for T Visa Recipient to Adjust Status Screening Questions for Trafficking Victims

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Chapter 1

Special Immigrant Juvenile Status June 2018

PART I: INTRODUCTION AND OVERVIEW CHAPTER 1 INTRODUCTION AND OVERVIEW This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6

Introduction and Overview to This Manual ........................................................... 1 Lawful Immigration Status and Forms of Immigration Relief Available to Children and Youth............................................................................ 5 Immigration System Actors.................................................................................... 9 Immigration Legal Provisions .............................................................................. 15 Grounds of Inadmissibility and Deportability and Waivers ................................. 20 Overview of the Immigration Process for Children and Youth............................ 22

§ 1.1

Introduction and Overview to This Manual

The United States has been the preferred destination for immigrants from around the world since at least 1960, with approximately 20 percent of the world’s immigrants living here as of 2017. 1 According to data from the most recent census and the 2016 American Community Survey, the states with the highest number of foreign-born residents are California, Texas, New York, and Florida. 2 However, the growth of the immigrant population is not limited to states with a traditionally large immigrant presence. 3 Between 2010 and 2016, the states with the largest percent growth in immigrant populations were South Dakota, South Carolina, North Dakota, Tennessee, and Delaware. 4 Immigrant youth form no small part of the foreign-born population in the United States. Approximately 24 percent of children in the United States are either immigrants or the children of immigrants. 5 Many children of immigrants are citizens, having been born in the United States, although their parents may or may not have legal immigration status. Others are immigrants themselves. In 2016, there were approximately 2.1 million foreign-born children living in the United States.6 Some immigrant children are without legal status, but have 1

Jie Zong, Jeanne Batalova, and Jeffrey Hallock, Frequently Requested Statistics on Immigrants and Immigration in the United States (Feb. 2018), https://www.migrationpolicy.org/article/frequentlyrequested-statistics-immigrants-and-immigration-united-states#Numbers [hereinafter Frequently Requested Statistics]. 2 Migration Policy Institute, Immigrant Population by State, 1990-Present, https://www.migrationpolicy.org/programs/data-hub/charts/immigrant-population-state-1990present?width=1000&height=850&iframe=true. 3 Id; see also Frequently Requested Statistics, supra note 1; Pew Hispanic Center, A Statistical Portrait of the Foreign-Born at Mid-Decade, Table 11: Change in Foreign-Born Population by State, 2000-2005 (2006), http://www.pewhispanic.org/files/2013/09/2005-Foreign-Born.pdf. 4 See note 1. 5 Annie E. Casey Foundation, Race for Results: Building a Path to Opportunity for All Children, 9 (2017), https://www.aecf.org/m/resourcedoc/aecf-2017raceforresults-2017.pdf. 6 See Frequently Requested Statistics, supra note 1.

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grown up almost entirely in the United States and consider this country their only home. Some of these youth do not know the language spoken in their native country and left so long ago that they have no memory of the place. Other children and youth are more recent immigrants who may be completely unfamiliar with the legal system and customs in the United States. Immigrant children and youth may travel to the United States with parents, an adult relative, or a family friend. Some come to the United States with their parents as infants or young children. Increasingly, children and youth come to the United States unaccompanied, without their parents or a legal guardian, making their way by foot, bus, train, cargo ship, or plane. 7 These youth have often endured unspeakably traumatic experiences in their countries of origin and come to the United States fleeing violence, persecution, and extreme poverty. A 2013 United Nations High Commissioner for Refugees (UNHCR) study found that many unaccompanied children were motivated to come to the United States by two main factors: violence by gangs and violence in the home. 8 Some of these youth receive the assistance of smugglers or “coyotes.” Still others are victims of illegal trafficking, and are forced to engage in sex-work or to work in slave-like conditions in factories, as domestic servants, or in restaurants. 9 Many assume extraordinary debt to come to the United States and in some cases, solely to help their impoverished families. Often, these youth endure dangerous and exploitative work conditions in order to pay off these debts. Particularly for unaccompanied immigrant youth, the journey to the United States is often extraordinarily arduous and dangerous. Countless youth have been robbed, beaten, or sexually assaulted along the way. Sometimes youth languish for many days without food or water as they cross the desert. Hundreds of youth have lost a limb or sustained other disabling injuries trying to jump on or off trains across Mexico. 10 Many youth embark on the journey to come to the United States, never to be heard of again; these youth may have been killed, died from an accident along the way or during the trek across the dessert, or been kidnapped and trafficked by gangs along the way. Prior to 2012, an annual average of between 7,000 to 8,000 such unaccompanied children were apprehended at the southern border annually. 11 In Fiscal Year 2012, the number jumped dramatically to 13,625 children referred to the Office of Refugee Resettlement (ORR), the federal agency charged with custody of unaccompanied children. This number again jumped in Fiscal Year 2013 to 24,668 referrals from the Department of Homeland Security (DHS) to ORR. In Fiscal Year 2014, ORR received an unprecedented number of referrals from DHS, with 57,496

7

See ORR, ACF Fact Sheet, Unaccompanied Alien Children Program (June 15, 2018), https://www.hhs.gov/sites/default/files/Unaccompanied-Alien-Children-Program-Fact-Sheet.pdf hereinafter UAC Fact Sheet]. 8 UNHCR, Children on the Run (2013), 6, http://www.unhcrwashington.org/children [hereinafter Children on the Run]. 9 According to a U.S. Department of State estimate, more than 44,000 survivors of trafficking were identified in 2013, but more than 20 million victims of trafficking have not been identified. U.S. Dep’t of State, Office to Monitor and Combat Trafficking in Persons, Trafficking in Persons Report, Introduction (June 2014), http://www.state.gov/j/tip/rls/tiprpt/2014/index.htm. 10 See Sonia Nazario, Enrique’s Journey: The Story of a Boy’s Dangerous Odyssey to Reunite with his Mother (2006). 11 UAC Fact Sheet, supra note 7.

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unaccompanied children referred. 12 Since then, the annual numbers of unaccompanied children have remained high, leading to a sustained influx of immigrant children each year. In 2017, 41,456 unaccompanied children were apprehended at the U.S. border, which is more than twice as many children as were apprehended in 2011, before the “surge.” 13 To address the huge increase in unaccompanied children being placed in ORR custody, the Department of Health and Human Services (under whose umbrella ORR operates) has opened additional shelters to house such children. As of August 2018, ORR operated more than 100 shelters in 17 states. 14 DHS has also opened additional family detention centers in response to the sharp increase in the number of family units crossing the southern border, discussed in greater detail in Chapter 18. The sharp increase in arrivals over the last 6 years is largely due to the migration of children from Guatemala, Honduras, and El Salvador, a region of Central America known as the “Northern Triangle.” 15 Studies have found that, while there may be multiple reasons that a child leaves her home country, “children from the Northern Triangle consistently cite gang or cartel violence as a prime motivation for migrating.” 16 A 2013 report by the UNHCR found that 48% of unaccompanied children interviewed as part of the study shared experiences of how they had been personally affected by violence in the region by organized armed criminal actors, including gangs and drug cartels, as well as state actors. 17 Once children arrive in the United States, however, their struggles are not over. Children and youth without legal immigration status are exceptionally vulnerable in the United States. Many undocumented youth face discrimination and burdensome fears of deportation that drive them, and any family they may be with, into the shadows. The need to remain invisible marginalizes them and their families, and undermines their ability to access basic necessities. As a whole, undocumented youth are more likely to live in poverty, 18 less likely to have health insurance, and more likely to encounter barriers to accessing public benefits and social services than U.S. citizen youth. 19 Importantly, there are many avenues available for undocumented youth to obtain lawful immigration status in the United States to eliminate their fear of deportation and ensure that they 12

KIND, Briefing Book on Unaccompanied Children (March 2018), https://supportkind.org/resources/briefing-book-on-unaccompanied-children/. 13 Id. 14 ORR, Unaccompanied Alien Children Frequently Asked Questions (July 2018), https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-frequently-asked-questions. 15 American Immigration Council, Children in Danger (July 2014), http://www.immigrationpolicy.org/special-reports/children-danger-guide-humanitarian-challenge-border [hereinafter Children in Danger]. 16 Id. at 2. 17 Children on the Run, supra note 8, at 6. 18 Jeffrey S. Passel, Demography of Immigrant Youth: Past, Present and Future, 21 Immigrant Children 1, p. 33 (Spring 2011), http://www.futureofchildren.org/futureofchildren/publications/journals/journal_details/index.xml?journalid =74; see also Frequently Requested Statistics, supra note 1. 19 See, e.g., Univ. of Cal. Center for Poverty Research, Poverty Research and Policy in the U.S.: Building a Path to Mobility (Apr. 2016), https://poverty.ucdavis.edu/sites/main/files/file-attachments/cprpoverty_research_and_policy_in_the_us.pdf.

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have access to the benefits and services they need. In 2008, Congress, recognizing the unique nature of unaccompanied children and youth, provided broader legal protections and access to services through the passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457) (TVPRA). It was signed into law on December 23, 2008. Unfortunately, President Trump’s administration has aggressively tried to eliminate or undermine these protections, and although the TVPRA remains good law as of the time of this manual’s writing, numerous bills and policies have been introduced to limit its effect. 20 This manual seeks to provide background and guidance on the immigration options available to children and youth. It will cover various forms of immigration relief, with a special emphasis on Special Immigrant Juvenile Status (SIJS). While this manual is primarily intended to guide advocates and attorneys representing or working with undocumented youth, this manual is also useful in working with youth who have legal status and face various immigration related issues, whether it be fighting back against removal charges, seeking to change status, or applying for citizenship. This manual is divided into four parts: Part I: Introduction and Overview, Chapters 1–2. This chapter provides introductory information on basic terms and principles of immigration law as they apply to children and youth, a summary of immigration relief options for youth, and an overview of the immigration process (both affirmative and defensive). Chapter 2 provides background on particular developmental issues that are unique to children and youth, practice tips for advocates working with these youth to address these issues, and tips for avoiding re-traumatization. Part II: Special Immigrant Juvenile Status (SIJS), a Form of Immigration Relief for Abused, Neglected, or Abandoned Children, Chapters 3–9. Chapter 3 provides a basic overview of SIJS. For many child welfare workers and non-legal advocates curious about SIJS, or supporting a child who is applying for SIJS, it will provide all the information needed. Chapters 4–6 are designed to answer more specific questions about SIJS eligibility, the adjustment of status portion of the SIJS application, and risks and benefits of applying. Chapter 7, Part One is a basic primer on the various state court systems that may play a role in SIJS findings, including dependency, delinquency, guardianship, custody and adoption, and Part Two of the chapter provides procedural guidance in obtaining SIJS findings in juvenile courts. Chapter 8 provides information on the affirmative SIJS application process and how to complete the forms. Chapter 9 provides information on the defensive SIJS application process for those children and youth who are in removal (or deportation) proceedings. Part III: Other Forms of Immigration Relief, Chapters 10–16. This part of the manual provides information on other potential ways in which children and youth can obtain lawful status including U nonimmigrant status (Chapter 10), relief under the Violence Against Women Act (Chapter 11), asylum (Chapter 12), family-based visas (Chapter 13), citizenship and naturalization for children (Chapter 14), T nonimmigrant status (Chapter 15) and other

20

KIND, Death by a Thousand Cuts: The Trump Administration’s Systematic Assault on the Protection of Unaccompanied Children (May 2018), https://supportkind.org/wp-content/uploads/2018/05/Death-by-aThousand-Cuts_May-2018.pdf.

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immigration-related laws that may help children, including temporary protected status and cancellation of removal, among others (Chapter 16). Part IV: Special Issues in Representing Children and Youth, Chapters 17–18. Chapter 17 covers the immigration consequences of juvenile delinquency, discusses immigration enforcement in the juvenile justice system, and provides a basic overview of the immigration consequences of criminal conduct. Chapter 18 covers detention-related issues of immigrant children and youth, including how they are apprehended and the bases for their detention and release. The Appendices to this manual contain many useful documents, including quick reference guides, a sample screening intake form, sample motions, court orders and other papers that you can present to a juvenile court judge in SIJS cases or to the immigration court or immigration authorities, practice advisories, a copy of the relevant law, regulations, and U.S. Citizenship and Immigration Services (USCIS) memoranda, and sample completed copies of application forms. See Appendices. Note that it is easy to obtain the immigration forms you will need for the application from the USCIS website (www.uscis.gov), by calling the USCIS toll-free number 1800-870-3676, or from an immigration practitioner. § 1.2 A.

Lawful Immigration Status and Forms of Immigration Relief Available to Children and Youth

Lawful immigration status: What is it and why is it important?

“Immigration status” is a term that refers to a person’s classification under U.S. immigration laws. Immigration status determines the rights, privileges, and benefits to which individual children and youth are entitled, and the possible consequences they will face when charged with a violation of law. Under immigration laws, any person in the United States who is not a U.S. citizen (which can be a complex determination) is referred to as an alien. This manual will not use that term, except when quoting the statute directly. Instead, it will use the term noncitizen. A noncitizen who has a green card has permanent lawful immigration status and is called a lawful permanent resident. A noncitizen can have many other different types of lawful status in the United States as well, such as having asylum, a U visa, a T visa, a visitor’s visa, or temporary protected status. A noncitizen may also have been granted prosecutorial discretion or deferred action (such as pursuant to DACA)—which is not lawful status but can provide protection from deportation (and work authorization, for deferred action). These categories are described in more detail below. A noncitizen with no lawful immigration status is said to be undocumented. Life in the United States can be terribly difficult for an undocumented person. They might be deported or removed (forced to leave the United States) if caught by immigration authorities. Further, the person cannot obtain employment authorization, and so cannot work legally. The person is often not eligible for many public benefits. In most states, undocumented young people

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are not eligible for in-state tuition at state colleges and universities, and therefore may have to overcome more barriers to attend college. 21 NOTE: U.S. citizenship. It is important to determine whether the child or youth may be a U.S. citizen. U.S. citizens are not subject to federal immigration laws and therefore, cannot be removed or be refused admission to the United States. Individuals can obtain citizenship in a number of different ways. They may be born in the United States or apply to become a citizen through the process of naturalization. This is the process by which someone immigrates to the United States, obtains lawful permanent resident status, and then becomes a citizen after a certain period of time; note that children under 18 cannot naturalize. A person can also acquire or derive citizenship from a U.S. citizen parent, such as if the person’s parent was a U.S. citizen at birth and met certain criteria, or if the person was a lawful permanent resident and the parent naturalized. 22 Under certain circumstances, a person may be able to acquire citizenship if U.S. citizenship can be traced through the lineage of their U.S. citizen parent(s) or even in some instances, grandparent(s) or great grandparent(s), even if the child was born abroad and lived abroad for most of their life. The vast majority of U.S. citizens, however, acquire their citizenship because they are born in the United States. With the rise in immigration enforcement, more U.S. citizens are mistakenly placed in removal (or deportation) proceedings. In the decade between 2007 and 2017, 693 U.S. citizens were held in county jails under immigration detention orders, and 818 U.S. citizens were in immigration detentions centers during the same time period; that amounts to roughly 150 mistaken detentions of U.S. citizens per year. 23 The Trump administration is also challenging the U.S. citizenship of thousands of recorded U.S. citizens who were born along the Texas border. 24 Noncitizen categories. A person who is not a U.S. citizen and falls within one of the categories listed below is a noncitizen. A noncitizen is always subject to the possibility of deportation/removal regardless of their circumstances. Most noncitizen children and youth are removable by virtue of lacking lawful immigration status.

21

Note, however, that some states provide exceptions by allowing undocumented immigrants to attend state colleges at the much lower in-state tuition rate. See www.nilc.org for further information. 22 INA § 320. 23 Steve Coll, When ICE Tries to Deport Americans, Who Defends Them?, The New Yorker, Mar. 21, 2018, https://www.newyorker.com/news/daily-comment/when-ice-tries-to-deport-americans-who-defends-them; see also Victoria Bekiempis, Why Did Immigration and Customs Enforcement Detain a U.S. Citizen for Three and a Half Years?, Newsweek, Nov. 6, 2014, http://www.newsweek.com/why-did-immigration-andcustoms-enforcement-detain-us-citizen-3-and-half-years-282509; Amnesty International, Jailed Without Justice: Immigration Detention in the USA, (Mar. 2009), http://www.amnestyusa.org/immigrantrights/immigrant-detention-report/page.do?id=1641033. 24 Kevin Sief, U.S. Is Denying Passports to Americans Along the Border, Throwing their Citizenship into Question, Washington Post, Aug. 29, 2018, https://www.washingtonpost.com/world/the_americas/us-isdenying-passports-to-americans-along-the-border-throwing-their-citizenship-intoquestion/2018/08/29/1d630e84-a0da-11e8-a3dd2a1991f075d5_story.html?noredirect=on&utm_term=.a4aeda7205b2.

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The various noncitizen categories that a person can fall into include: •

Lawful permanent resident (“green card holder”). They are permitted to live and work permanently in the United States and are entitled to the most secure immigration status, short of being a U.S. citizen, as well as many benefits that U.S. citizens hold.

•

Refugee or asylee. They are granted refuge and status in the United States based on persecution they faced or will face in their home country or country of origin. They can become lawful permanent residents within a certain period of time.

•

Nonimmigrant visa holders. A nonimmigrant visa holder is a person who obtained a temporary visa allowing them to enter and remain in the United States legally for a specific period of time under specific conditions. Certain visa holders can obtain lawful permanent residency, while others can only be here for a certain period of time. Some common examples of visa holders include tourists, students, temporary workers, diplomats, religious workers, those who are victims of crimes and assisting with an investigation or prosecution of the crime (U visas), informants, and trafficking victims (T visas). Nonimmigrant visa holders who violate the terms of their visa (e.g., students who drop out of school or tourists who stay longer than permitted) become “undocumented,” meaning they no longer have lawful status in the United States and are subject to apprehension by immigration authorities and removal from the country.

•

Undocumented person. This is someone who does not have legal status under the immigration laws. Contrary to public perception, undocumented persons are not just those who crossed the border unlawfully, but also include persons whose visas have expired. Just because a person is undocumented, however, does not mean that person will be removed from the United States. Many undocumented people and children are eligible to apply for lawful immigration status through one of the avenues available under the immigration laws. However, undocumented persons are always at risk of apprehension, detention, and initiation of removal proceedings by immigration authorities. Crossing the border unlawfully or having contact with the juvenile justice system are common avenues by which undocumented youth are apprehended by immigration authorities.

•

DACA recipient. Deferred Action for Childhood Arrivals provides a work permit and relief from removal for two years to certain eligible undocumented people who came to the United States when they were under the age of 16 and meet certain other eligibility requirements. DACA is not an immigration status, nor does it lead to U.S. citizenship, but it does provide temporary protection from deportation. Further, DACA was not created by federal immigration law the way that many other forms of immigration relief were created. Rather, it is a use of prosecutorial discretion by the executive branch to provide protection from removal from the United States for a certain period of time. In September 2017, the Trump Administration issued a memorandum ending the DACA program. 25

25

DHS, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.

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However, at the time of this manual’s writing, DACA is the subject of much federal litigation; DACA holders are currently permitted to continue to renew their DACA, but the future of the program is uncertain. 26 •

B.

Those in the process of obtaining legal status. Many persons present in the United States do not have lawful status, but are in the process of obtaining lawful status, which often takes many years. Immigration authorities are aware of their presence in the United States and may defer their removal pending the outcome of their application. Depending upon the lawful status applied for, a person may receive a work permit or employment authorization document (EAD) to work lawfully for a specified period of time while the application is pending. Forms of immigration relief available to children and youth

There are many avenues within the categories discussed above available for undocumented youth to obtain lawful immigration status in the United States. The avenues for obtaining legal status are not only broader for children and youth compared to adults, but the standards for obtaining these forms of relief may be lower and take into account their unique status as minors. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457) (TVPRA) (discussed in § 1.4) made important procedural and substantive changes to broaden eligibility for immigration legal relief for youth and provide more child-sensitive procedures for those youth in immigration custody and at imminent risk of removal. Some of the avenues of relief available to children and youth, discussed in greater detail throughout this manual, are: •

Special immigrant juvenile status (SIJS). Youth can obtain lawful permanent residence if they are under 21 years old, not married, under the jurisdiction of a juvenile court (which may differ based on the state, but typically includes dependency, delinquency, guardianship, or family court) or committed to the custody of state agencies or departments or to court-appointed individuals or entities, the court has made a finding that the child cannot be reunified with one or both parents due to abuse, neglect or abandonment or a similar basis under law, and it is not in the minor’s best interest to be returned to their home country. To obtain this form of relief, an order from the juvenile court making the above findings is required. See Chapters 3–9.

•

Violence Against Women Act (VAWA). Youth are eligible for lawful permanent residence if they have been “battered or subject to extreme cruelty” (including purely emotional abuse) by a U.S. citizen or permanent resident spouse, parent, or step-parent. Youth may also qualify if their parent was a victim of domestic violence. See Chapter 11.

•

U and T nonimmigrant status for victims of serious crimes and trafficking. If the noncitizen child or youth or their parent is a victim of a serious crime or of trafficking, they can obtain a nonimmigrant visa that will put them on a path to permanent residence.

26

See, e.g., NILC, DACA Litigation Timeline (Aug. 28, 2018), https://www.nilc.org/issues/daca/dacalitigation-timeline/.

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U nonimmigrant status is available to noncitizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, possess information concerning the activity, and are helpful to the investigation of the criminal activity. 27 In order to qualify for U nonimmigrant status, a judge, prosecutor, investigator (for example, a police agency) or similar official must sign a certification regarding this requirement. See Chapter 10. T nonimmigrant status is available to victims of severe forms of trafficking in persons, 28 including sex or labor work, who must comply with reasonable requests for assistance in the investigation or prosecution of the offense (unless they are under the age of 18), and must show they will suffer extreme hardship if removed from the United States. See Chapter 15. •

Asylum. Youth who fear return to their home country because of an individualized fear of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group may be able to apply for asylum. If youth express fear of return, they are generally subject to specialized guidelines and procedures for youth in determining whether they have a valid asylum claim. See Chapter 12.

•

Cancellation of removal for non-permanent residents. Noncitizens who have lived in the United States for ten years or more and can show that they have a parent, spouse, or child who is a U.S. citizen or permanent resident who would suffer exceptional and extremely unusual hardship if the person were deported can qualify for this relief and obtain lawful permanent residence. See Chapter 16.

•

U.S. citizenship and family immigration. Some youth may be U.S. citizens without knowing their status, based on U.S. citizenship of parents and in some cases, grandparents. See Chapter 14. Additionally, some youth may have U.S. citizen or lawful permanent resident family members in the United States who can help them become a lawful permanent resident. See Chapter 13.

WARNING! Immigrant children and youth can be eligible for more than one type of immigration relief. To ensure that youth have the best chance of obtaining lawful immigration status, advocates should carefully screen youth for all forms of relief. A sample screening questionnaire to assist in flagging eligibility is provided at Appendix A. § 1.3

Immigration System Actors

Immigration laws are made by Congress and enforced by administrative agencies in the executive branch of the federal government. As part of the executive branch’s function as enforcer of immigration laws, it may also decide to exercise prosecutorial discretion favorably, and not remove (deport) certain people, for example, as it has done with the DACA program. Practically every immigrant child or youth will come into contact with at least one (and usually several) federal agencies if they decide to apply affirmatively for immigration relief or they are placed in removal proceedings (both discussed in § 1.6). These agencies and actors fall under three 27 28

INA § 101(a)(15)(U). INA § 101(a)(15)(T).

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different federal departments: the Department of Homeland Security (DHS), the Department of Health and Human Services (HHS), and the Department of Justice (DOJ). Each of these departments serves a different purpose within the immigration system, which can be analogized as the enforcer, the caretaker, and the adjudicator or decision maker. It is important to know that they often have conflicting perspectives as to how immigrant children and youth should be treated and thus, the actions of the federal agencies cannot always be easily reconciled. A.

Department of Homeland Security (DHS)

As a result of the Homeland Security Act of 2002, introduced in the aftermath of the September 11th attacks, the former Immigration and Naturalization Service (INS) ceased to exist as an independent agency within the Department of Justice and its functions were transferred to various agencies within the newly formed Department of Homeland Security (DHS). 29 The DHS now has primary responsibility for administering and enforcing immigration laws. Three agencies within the DHS handle these responsibilities: U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). 30 1. USCIS U.S. Citizenship and Immigration Services (USCIS). USCIS is responsible for processing and making decisions on all applications for immigration benefits, many of which are filed affirmatively. These include applications for Special Immigrant Juvenile Status, asylum, lawful permanent residency, and citizenship. USCIS can also initiate deportation proceedings by either issuing a Notice to Appear (NTA), or charging document, or referring cases to ICE to do so. USCIS revised its guidance in June of 2018 on when it will issue NTAs in immigration cases, greatly expanding the number of immigration cases it will refer to removal proceedings and increasing its role as an enforcer of immigration law. 31 2. ICE Immigration and Customs Enforcement (ICE). ICE is the “interior” enforcement arm of the DHS (i.e., not at the border) and has a goal of identifying and removing all removable persons located within the United States. One of its primary targets is “criminal aliens.” 32 It therefore has a strong presence in the criminal and juvenile justice systems, especially in jails, prisons, and sometimes, in youth detention centers. ICE has the authority to arrest, transport, and/or detain (except for certain juveniles) individuals in violation of immigration laws. Not only do ICE attorneys represent the government in removal proceedings, but ICE also coordinates the actual removal of noncitizens who are ordered deported.

29

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified in pertinent part in scattered sections of 6 and 8 USC); see H.R. Rep. No. 107-609, pt. 1, at 64 (2002). 30 See DHS, Department Components, http://www.dhs.gov/department-components. 31 USCIS, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 32 Pres. Donald Trump, Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017).

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It is important to emphasize that ICE’s goal is to enforce immigration laws and not to look out for the best interests of children or youth or ensure that they receive due process. Once ICE picks up a youth, it will not tell the youth about their immigration relief options; advocates have also reported that ICE may even dissuade youth from pursuing options available to them and encourage them to accept voluntary removal (deportation without a hearing). This is particularly critical as many children and youth have trouble distinguishing the roles of various persons in the immigration system, e.g., whether a person is their attorney or works for the government, and as such may confide and trust in ICE before realizing ICE’s intentions. There is also a misconception that ICE always has a primary role in the deportation process of minors. In reality, ICE’s role with juveniles may be limited where the child is considered “unaccompanied,” meaning where there is no parent or legal guardian able or willing to provide for the child’s care and custody. In these cases, ICE will handle the initial stages of deportation and detention by identifying and arresting juveniles for removal, but then will transfer these juveniles to the custody of the Office of Refugee Resettlement (ORR, described below). ICE usually only steps into the process again once the youth has accepted deportation or been ordered deported by a court by coordinating their physical removal from the United States. The vast majority of youth apprehended by ICE are deemed “unaccompanied” and are thus detained by ORR. Where the minor is deemed “accompanied,” ICE will take a greater role in the deportation process and may detain the minor pending the outcome of removal proceedings. This could be in a family detention center if the child was apprehended with a parent or legal guardian with whom they will be detained, or otherwise in a juvenile jail that ICE contracts with to hold “accompanied” children separate from adults. Outside of the family detention context, little is known about how many accompanied juveniles are detained by ICE and who they are. See Chapter 18 for more information. 3. CBP U.S. Customs and Border Protection (CBP). CBP is responsible for inspecting visitors and cargo at ports of entry and tries to secure the borders at the U.S. land, sea, and air ports of entry. CBP is also given the authority to arrest, transport, and detain noncitizens, but unlike ICE, it focuses on those who are caught in violation of immigration laws at the border and ports of entry. Note that CBP has authority to operate within 100 miles of any land or sea border, so many parts of the United States (such as Los Angeles, New York City, Houston, and all of Florida) are within CBP’s jurisdiction. Statistics show that so far in Fiscal Year 2018 alone, over 40,000 unaccompanied children were apprehended by CBP crossing the Mexico-U.S. border. 33 If these minors are from a bordering country, e.g., Mexico, and there are no red flags as to trafficking or persecution, they will generally be sent back in a process called “voluntary return,” and will never see a judge or an attorney. 34 CBP is also the agency that juvenile justice systems near the border interface with most often. CBP plays a role that is similar to ICE by initially detaining and effectuating the removal of minors. 33

U.S. Customs and Border Protection, Southwest Border Migrations FY 2018, (Aug. 6, 2018), https://www.cbp.gov/newsroom/stats/sw-border-migration. 34 TVPRA § 235(a)(2)(B).

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B.

Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR)

On March 1, 2003, DHS established that custody of “unaccompanied” immigrant children would be placed with the Office of Refugee Resettlement (ORR). ORR, which is a division of the U.S. Department of Health and Human Services, created “DCS”—the Division of Children’s Services—to provide care and services to this population pending the conclusion of the immigration case. 35 However, DHS through ICE continued to retain control and oversight of “accompanied” immigrant children. No definition of accompanied is provided by immigration law; there is only a definition of the term “unaccompanied.” See Chapter 18 for discussion on this classification. ORR’s philosophy towards minors is different than that of ICE—its mission is grounded in child welfare principles, so it is more concerned with the well-being of children and their particular vulnerabilities. Its work and programs should take into account the unique nature of each child’s situation in making placement and release decisions, though in recent years this has been called into question. 36 The agency is mandated to develop a plan to ensure timely appointment of legal representation for children in its custody 37 (although in practice many children do not receive legal representation in their removal proceedings). It also works towards reunifying all children in their custody with family members or other close friends where possible. ORR, like ICE, also has a role working with referring agencies such as the juvenile justice system, however, with different goals in mind. Although minors from the juvenile justice system are often detained upon arrest by ICE or CBP, ORR’s stated priority is to reunify all children with family members where possible, regardless of their record. Unfortunately, advocates currently report long delays in release for youth in secure ORR custody who may have a juvenile record or otherwise be accused of bad acts such as gang affiliation. In order to get reunification approved, social workers working with the minors must ensure that they will comply with their probation terms, participate in rehabilitative and other support programs when released into the community, and not re-offend. This requires working with probation officers to ensure that they know and are cooperating in the minors’ re-entry into the community. Tension between DHS (ICE) and HHS (ORR): Conflicting federal directives. As noted above, the missions of DHS and ORR are fundamentally at odds with one another and dictate the level of attention paid to the safety and well-being of immigrant children and youth in each agency’s respective custody. DHS’s mission (through its divisions of ICE and CBP) is to enforce immigration laws to ensure the departure from the United States of all removable noncitizens, including unaccompanied youth. For that reason, DHS, at the front end, often encourages the reporting of noncitizen minors for deportation. On the other hand, ORR’s mission is to care for and protect youth and to reunify them with their families where possible. Therefore, ORR, even 35

Women’s Refugee Commission, Orrick Herrington and Sutcliffe, LLP, Halfway Home: Unaccompanied Children in Immigration Custody, p. 1 (Feb. 2009) [hereinafter Halfway Home]. 36 See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (finding that all children in ORR custody have the right to request a Flores “bond” hearing before an immigration judge, which allows the child to advocate for placement in a less restrictive setting and to inspect the evidence that ORR may be using against the child to determine that they are dangerous). 37 Halfway Home, supra note 34, at 14.

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during the deportation process, often facilitates integration of the minor back into the community. Unfortunately, ORR has increased its cooperation with DHS in recent years, taking on more of an enforcement role. In May of 2018, ORR entered into a Memorandum of Agreement with ICE and CBP under which ORR will share sensitive information on unaccompanied immigrant children, including names, fingerprints, addresses, and phone numbers on the children’s parents or sponsors. 38 This Memorandum of Agreement is reprinted in Appendix RR. This ongoing tension between the dual goals of taking care of children and enforcing federal laws against them is due to the divided structure of the immigration system for children and youth as well as conflicting laws and policies. DHS exerts significant influence over the treatment of undocumented children who arrive or are initially arrested in the United States. Because DHS is the “gatekeeper,” it has the power to exercise its authority in ways that are not always in the child’s best interest. For example, even though the Homeland Security Act clearly intended that ORR become the legal custodian for “unaccompanied” children, in some instances, DHS has continued to retain custody of this category of children. See Chapter 18 on detention. Only once DHS decides to transfer custody to ORR will its more child-friendly approach govern. To compound this problem, there are conflicting directives from Congress and the Executive Branch. The immigration laws for children and youth passed by Congress, such as the TVPRA, have been more encompassing and protective of children’s rights as compared to adults. At the same time, President Trump’s administration, and former President Obama’s administration as well, have taken a hard line enforcement approach to immigrant youth, including expediting court hearings for a period of time, discouraging youth from applying for relief, building more detention facilities and processing centers, increasing border security, urging Central American leaders to discourage people from journeying north, 39 and narrowing interpretations of eligibility for immigration status for youth, 40 all in an effort to stem the flow of migration, despite ample evidence that a majority of children arriving unaccompanied to the United States are in need of international protection. 41 C.

Department of Justice, Federal Circuit Court of Appeals, and the U.S. Supreme Court 42

Although the Homeland Security Act transferred many of the Attorney General’s (AG) immigration functions to the Department of Homeland Security (DHS), the AG still retains the power to make definitive determinations on questions of law and to review many of the DHS decisions. More importantly, the Executive Office for Immigration Review (EOIR), which 38

Eli Hager, Trump’s Quiet War on Migrant Kids, The Marshall Project & New York Times, May 1, 2018, https://www.themarshallproject.org/2018/05/01/trump-s-quiet-war-on-migrant-kids. 39 See, e.g., Jerry Markon, Influx of unaccompanied immigrant children slowed again in September, The Washington Post, Oct. 9, 2014, http://www.washingtonpost.com/blogs/federaleye/wp/2014/10/09/influxof-unaccompanied-immigrant-children-slowed-again-in-september/. 40 See, e.g., Matter of A-B-, 27 I&N Dec. 316 (BIA 2018) (seeking to limit the instances of private persecution that can qualify an applicant for asylum); Liz Robbins, A Rule Is Changed for Young Immigrants and Green Card Hopes Fade, New York Times, Apr. 18, 2018, https://www.nytimes.com/2018/04/18/nyregion/special-immigrant-juvenile-status-trump.html. 41 Children on the Run, p. 6. 42 Thanks to Ann Benson for providing much of the original material in this section.

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consists of the immigration courts and the Board of Immigration Appeals (BIA), remains under the jurisdiction of the U.S. Department of Justice, headed by the AG. EOIR has the authority to review many DHS decisions, but the AG has the power to overrule decisions made by EOIR. Unfortunately, this setup can allow the immigration courts to be yet another political branch of the government. Attorney General Jeff Sessions has recently used this power to overrule key agency decisions to narrow eligibility for immigration relief,43 and undermine the authority of judges to continue, administratively close, or otherwise exercise discretion in individual immigration cases. 44 These decisions have spurred renewed calls from immigration judges and advocates to Congress to create an independent judicial court system for immigration cases. 45 EOIR is composed of the immigration courts and the BIA, the appellate body that reviews the decisions of these immigration courts. While USCIS oversees the paper process (i.e., applications), the immigration courts oversee judicial decisions regarding the immigration process as well as applications filed in court. ICE, USCIS, or the CBP arrest an individual and initiate formal “removal” (deportation) proceedings. These proceedings occur in immigration court and are presided over by an immigration judge (IJ). This judge determines whether the noncitizen should be ordered removed from the United States or, if they qualify, be granted “relief from removal” and permitted to remain. All noncitizens, as well as the government, have the right to appeal decisions of the IJ to the BIA. The BIA is located in Falls Church, Virginia, and is currently comprised of 15 Board Members, including a Chairman and Vice Chairman, 46 who have the power to issue decisions that are binding on all immigration judges, as well as ICE, USCIS, and CBP throughout the country. Information on EOIR and the BIA can be found online at http://www.usdoj.gov/eoir. The federal circuit courts of appeal (federal appellate courts) have the power to review decisions made by the BIA. The federal circuit wherein the case arose (i.e., where removal proceedings were concluded) will have the power to review the BIA decision (regardless of the physical location of the noncitizen at the time the appeal is filed). 47 Federal legislation passed in 1996 placed significant limitations on the powers of the appellate courts in relation to immigration appeals. However, despite these limitations, immigration appeals remain the largest category of cases in many federal appellate courts. Decisions of the federal circuit courts of appeal are binding on the BIA, the immigration judges, ICE, USCIS, and CBP within that circuit. Either party (the government or the noncitizen) can file a petition requesting the U.S. Supreme Court to review a decision by the federal appellate court. However, unlike the BIA or the federal appellate court, this is not an “appeal of right” (i.e., one that the court is required to hear), but rather is discretionary. The Supreme Court only agrees to review a fraction of the cases it is 43

See, e.g., Matter of A-B-, 27 I&N Dec. 316 (BIA 2018) (seeking to limit the instances of private persecution that can qualify an applicant for asylum). 44 See, e.g., Matter of L-A-B-R, 27 I & N Dec. 405 (BIA (2018) (limiting the reasons immigration judges can issue continuances in immigration cases). 45 See, e.g., American Immigration Lawyers Association, Stop the Corruption of USCIS and EOIR Missions: Ensure Fairness and Consistency in All Immigration Decisions (Aug. 1, 2018). 46 BIA, Board of Immigration Appeals Practice Manual, (Mar. 23, 2018), https://www.justice.gov/eoir/page/file/1079696/download. 47 8 USC § 1252(b)(2).

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requested to hear. However, decisions issued by the Supreme Court are binding on every court and every agency. Special note on USCIS Administrative Appeals Office (AAO) decisions. When an application is denied by USCIS, there is an administrative appeals process. The body that handles these appeals is the Administrative Appeals Office (AAO). Often, decisions regarding children and youth will appear as AAO decisions. See example at Appendix E. CLINIC’s “Index of Unpublished Administrative Appeals Office Decisions on Special Immigrant Juvenile Status” is a valuable resource to help assess a potential appeal of an SIJS denial.48 D.

U.S. consulates

U.S. consulates are part of the Department of State and at least one U.S. consular office exists in most foreign countries. U.S. consulates play a primary role in the processing and issuance of U.S. visas to foreign nationals who wish to come to the United States and qualify under some type of legal avenue to do so, such as student visas, tourist visas, employment visas, or refugee visas. Family members who are immigrating to the United States and foreign workers coming to work for companies in the United States all must have their visas issued by a U.S. consulate in their home country (or the closest U.S. consulate). § 1.4 A.

Immigration Legal Provisions

Immigration and Nationality Act and accompanying regulations and memoranda

Immigration law is controlled by a federal law—the Immigration and Nationality Act (INA). The INA appears at Title 8 of the United States Code, 8 USC § 1101 et seq. The INA is the subject of constant revision. The INA can be accessed on USCIS’s website at www.uscis.gov under “Laws.” Corresponding regulations to the INA are contained in 8 CFR § 1.1 et seq. These regulations interpret the meaning of the INA and are written by the governmental agency involved in their implementation. The purpose of the regulations is to clarify the laws and set procedures for implementation. Whereas the INA says what the law is, the regulations fill in a lot of details about how the DHS immigration agencies are going to apply the laws. You can access the 8 CFR, immigration regulations, on USCIS’s website at www.uscis.gov under “Laws.” Finally, there are memoranda or internal operation instructions written and issued by the various federal agencies who work with immigrants. These are internal instructions to the employees of the agency. Their purpose is to instruct the agency employees on agency protocol and practice. Some are numbered and put out in a collection in books, for example, the Foreign Affairs Manual of the Department of State (which can be accessed online at www.state.gov) and the USCIS Policy Manual (which can be accessed on the USCIS website at www.uscis.gov, and has special sections on special immigration juvenile status and SIJ-based adjustment of status at https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6.html and https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartF-Chapter7.html).

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You can request the index online at https://cliniclegal.org/index-unpublished-administrative-appealsoffice-decisions-special-immigrant-juvenile-status.

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Other times they are issued through policy memoranda authored by a government agency, which also can be accessed on the USCIS website at www.uscis.gov under “Laws.” B.

Cases

The case law governing immigration includes decisions written by various courts, from the BIA to the federal appellate courts to the U.S. Supreme Court. For better or worse, there are not many published cases regarding immigration issues for children and youth from the BIA or federal courts, although there is an emerging body of federal case law on SIJS. 49 The cases that do exist carry equal legal weight to statutes and regulations. In fact, cases can sometimes be more powerful than statutes and regulations because the cases can define and even overturn statutes and regulations. One such case relevant to children is Perez-Olano v. Gonzalez, a case that brought claims against USCIS for overstepping its authority by imposing additional SIJS requirements in regulations that were not stated in the statute. This case was resolved via settlement agreement in late 2010 50 and supersedes all “practices, policies, procedures and federal regulations to the extent they are inconsistent with the [Settlement] Agreement,” although it has now sunset. 51 See discussion in Chapter 4. C.

Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) passed the House and Senate on December 10, 2008, and was signed into law by the president on December 23, 2008. This legislation was designed to bolster federal efforts to combat trafficking and, in the process, to provide critical protections for the tens of thousands of unaccompanied minors who come to the United States each year. The law seeks to create better screening of unaccompanied minors who may be the victims of trafficking or who may fear return to their home country, safer repatriation of any youth removed from the United States, more compassionate environments for children in immigration custody, and broader legal protections and access to services for these youth. The TVPRA has been repeatedly challenged and criticized by the Trump administration, but unless or until it is overturned, the TVPRA remains good law. Of the thousands of children who enter the United States every year without a parent or guardian, many are victims of trafficking, persecution, or other abuse and violence. Some are fleeing wars and armed conflicts, gang recruitment, domestic violence and slavery. In the past, these youth were detained in overly secure facilities in immigration custody, afforded little legal representation in immigration proceedings, and often returned to their home countries with virtually no safeguards. The TVPRA created a multi-agency response to address these problems by recognizing the enormous vulnerability of these youth and providing special services tailored to their needs. A core tenet of the TVPRA’s changes to the treatment of unaccompanied minors is its emphasis on the child welfare principle of the “best interests of the child.” 49

See, e.g., C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018); Budhathoki v. Nielsen, 898 F.3d 504 (5th Cir. 2018); Osorio-Martinez v. Attorney General United States of America, 893 F.3d 153 (3d. Cir. 2018). 50 Settlement Agreement in Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, (C.D. Cal. Dec. 14, 2010) p. 7, ¶ 19, http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settlement%20Notices%2 0and%20Agreements/Perez-Olano%20v%20Holder/Signed_Settlement_Agreement.pdf [hereinafter PerezOlano Settlement Agreement]. 51 Id. at 5-6.

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Screening and repatriation. The TVPRA creates mandatory screening of children brought into federal custody at the border to determine whether they are victims of trafficking or fear persecution. In the case that the child is to be repatriated, the law provides a pilot repatriation program that works with Health and Human Services (HHS), the Department of State (DOS), and the Department of Homeland Security (DHS) to develop and implement best practices for saferepatriation and reintegration of youth to their home countries. 52 The agencies are required to report to Congress with data on minors removed from the United States—including age, gender, country of origin, and types of immigration relief requested. Detention. The TVPRA also provides that children be placed in the least restrictive setting that is in “the best interest of the child” and prohibits children from being placed in secure facilities unless a determination has been made that the child poses a danger to herself or others or has been charged with having committed a criminal offense. For children ultimately placed in secure detention facilities, HHS must review such placement on a monthly basis. Legal access. The TVPRA expands legal access for unaccompanied minors by requiring “to the greatest extent practicable” that these children have legal representation and authorizing HHS to appoint independent child advocates for trafficking victims and other vulnerable unaccompanied children. 53 For years following the implementation of the TVPRA, this was limited to the provision of pro bono legal representation for a small number of children, but did not result in representation in the vast majority of unaccompanied minor cases. More recently, ORR began pilot programs in Houston, Texas and Los Angeles, California to provide legal representation for a limited number of unaccompanied children after they were released from detention. This program was then expanded to provide legal representation for unaccompanied children in nine cities and who meet certain other criteria. 54 These funds to provide legal representation for children after release from ORR detention were abruptly ended in May of 2018. 55 The TVPRA also expanded the category of children eligible to apply for Special Juvenile Immigrant Status, a form of legal status for abused, neglected, or abandoned undocumented children. The legislation also exempted unaccompanied minors from the one-year filing deadline for asylum applications and allowed them to apply for asylum with USCIS in a non-adversarial system, rather than in front of an immigration judge in a courtroom. Further, the TVPRA provides no-cost voluntary departure for unaccompanied minors. While many advocates feel that the TVPRA still falls short of offering the types of legal protections that immigrant children need, the importance of the TVPRA cannot be understated. However, in order to have access to its protections, children need to be identified as children. If you have a client who is a child or youth who has been mistakenly identified as an adult, correct this classification with the appropriate agency (DHS if the child is in custody, EOIR if the child is in court) as soon as possible.

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TVPRA § 235(a)(5). TVPRA § 235(c)(5)–(6). 54 ORR, Services Provided, https://www.acf.hhs.gov/orr/about/ucs/services-provided. 55 Meredith Hoffman, Trump Has Quietly Cut Legal Aid for Migrant Kids Separated From Parents, Vice, May 31, 2018, https://www.vice.com/en_us/article/a3a798/trump-has-quietly-cut-legal-aid-for-migrantkids-separated-from-parents. 53

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Determining if and when a child is “unaccompanied,” for purposes of obtaining TVPRA protections. The TVPRA’s critical protections described above apply to “unaccompanied” minors in the United States. The term “unaccompanied alien child” is defined as a child who has no lawful status in the United States, is under the age of 18 and has no parent or guardian in the United States or no parent or legal guardian in the United States who is available to provide care and physical custody. 56 In an apparent effort to limit the number of youth who are classified as “unaccompanied” minors, DHS issued a memorandum directing USCIS, CBP, and ICE to develop “uniform written guidance and training” on who should be classified as “unaccompanied,” and when and how that classification should be reassessed. 57 This guidance has not yet been developed, but it could be issued at any time. NOTE: Publication of proposed Flores regulations. On September 7, 2018, the DHS and HHS published proposed regulations that would, once finalized, replace the Flores Settlement Agreement. A 60-day period for public comment is currently underway, and litigation arguing that the regulations are inconsistent with the Flores Settlement Agreement is likely to be filed. To review the proposed regulations, which would, among other things, impact the unaccompanied minor classification, as well as significantly expand detention of accompanied children in family detention centers and make other changes to the detention conditions for youth in ORR custody, see https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehensionprocessing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children. Jurisdiction and interpretation of the term “unaccompanied.” As mentioned above, DHS has directed USCIS, ICE, and CBP to issue uniform guidance on how to classify youth as “unaccompanied.” 58 Although this guidance has not yet been issued, it is expected to narrow the number of youth who will be classified as “unaccompanied,” and thus can benefit from the protections of the TVPRA. Currently, while both the TVPRA and Homeland Security Act of 2002 are ambiguous as to who has jurisdiction to make the “unaccompanied” child determination, in practice, it has been made principally by CBP and ICE, and to a lesser extent ORR, EOIR, and USCIS. Because children may come before all of these agencies, these agencies should all have authority to make such determinations. Unfortunately, interpretation of the term “unaccompanied,” has varied amongst these agencies and consequently, has led to inconsistent determinations. This confusion has sometimes resulted from the various shifts of a child’s physical custodial status (for example, release from ORR custody into the custody of a parent or non-parent sponsor). Additional issues around the unaccompanied child determination can also arise from the interpretation of a parent or legal guardian “available to provide care and custody.” For example, a child may have parents in the United States who may not want to live with the child because the parent and the child are estranged. Further, many children living with their parents are apprehended in the United States without their parents and their parents do not come forward out of fear for their own deportation. However, many of these parents are able and

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6 USC § 279(g)(2), as amended by the Homeland Security Act of 2002. Sec. John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, (Feb. 20, 2017), Sec. L; see also Pres. Donald Trump, Executive Order on Border Security and Immigration Enforcement Improvements, (Jan. 25, 2017), Sec. 11(e). 58 Id. 57

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willing to provide care and custody. Nonetheless, many of these children are classified as “unaccompanied.” For many years, the “unaccompanied” determination was particularly problematic for advocates, immigration judges, and USCIS officers trying to re-determine who was “unaccompanied” for purposes of the initial jurisdiction of USCIS over UAC asylum applications. Thankfully, in 2013, USCIS issued guidance on its jurisdiction over UAC asylum claims. As of June 10, 2013, asylum offices rely on the previous determination by CBP or ICE that an applicant is a UC, without making a separate factual inquiry into the applicant’s age or unaccompanied status (for example, whether the child is still under 18 or remains “unaccompanied” at the time they file the asylum application), and take jurisdiction over the asylum application. 59 The one exception to this policy is where there has been an affirmative act to terminate the UAC status by the HHS, ICE, or CBP before the filing of the asylum application (for example, when the child is transferred into ICE custody upon their 18th birthday). However, as noted above, although this Memorandum remains in place as of the time of this writing, additional guidance is expected that will implement changes and narrow the circumstances in which children are treated as unaccompanied minors. In addition, the proposed Flores regulations authorize continually reassessing UAC status: “When an alien previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such an alien, or when such alien has obtained lawful immigration status, the alien is no longer a UAC. An alien who is no longer a UAC is not eligible to receive legal protections limited to UACs.” 60 Although this proposed regulation has not yet been implemented and may be changed based on comments received or litigation, it indicates the administration’s goals in this area. Timing. The unaccompanied determination can be made at any time in the process of a child’s case, but in the vast majority of cases, it is made during the initial apprehension by DHS because the TVPRA requires that DHS refer an unaccompanied minor to HHS custody within 72 hours of apprehension. If a previous determination of unaccompanied status has not been made, asylum offices will make determinations at the time the child files their asylum application. 61 As stated above, under the proposed Flores regulations, UAC status could be reassessed throughout the child’s immigration process. Rescission of TVPRA protections based on change of unaccompanied minor classification. Advocates should argue that the protections of the TVPRA, once triggered, cannot be taken away from a child. The TVPRA’s retroactivity and effective date provide that the statute shall apply “to all aliens in the United States in pending proceedings” before DHS or EOIR or administrative or federal appeals, “on the date of the enactment of this Act.” With this language, advocates should argue that Congress provided TVPRA protections to all persons who have cases still pending 59

USCIS Memorandum, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (May 28, 2013), http://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves; USCIS Memorandum, Updated Service Center Operations Procedures for Accepting Forms I-589 Filed by Unaccompanied Alien Children (June 4, 2013), http://www.uscis.gov/humanitarian/refugeesasylum/asylum/minor-children-applying-asylum-themselves [hereinafter June 2013 Memorandum]. 60 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486, 45529 (Sept. 7, 2018) (to be codified at 8 CFR pts. 212 and 236, 45 CFR pt. 410). 61 June 2013 Memorandum, supra note 59.

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regardless of whether they still meet the definition of an unaccompanied minor. The BIA has agreed with this interpretation as it has remanded many cases where the child may have been an unaccompanied minor at some point in the proceedings, so that such cases can be adjudicated in accordance with the TVPRA. Further, USCIS’s policy guidance on unaccompanied minor asylum claims, discussed above, also supports the proposition that once a child has been classified as unaccompanied, that classification will stay with the child despite changes in age or custody, unless it is affirmatively terminated by ORR, ICE, or CBP. However, as noted above, this policy is expected to change in the near future. § 1.5 A.

Grounds of Inadmissibility and Deportability and Waivers

Grounds of inadmissibility (formerly grounds of exclusion)

Since 1798, Congress has used its plenary power to deal with foreign “undesirables.” Grounds of inadmissibility, found in INA § 212(a), were developed to identify the kinds of persons whom Congress did not want to admit to the United States. Whenever any non-citizen attempts to enter the United States, that person is subject to being barred from admission based on these categories. Until April 1, 1997 the grounds of inadmissibility were referred to as the grounds of exclusion. Example: Jaime, an unaccompanied minor, is attempting to enter the United States from Mexico. DHS determines that Jaime does not possess a valid unexpired immigrant visa, reentry permit, border crossing identification, or other valid entry document. Jaime may be found inadmissible and refused admission, unless DHS determines that he is a victim of trafficking or has a credible fear of persecution. The grounds of inadmissibility do not only apply at the border. Non-citizens already in the United States must prove that they are not inadmissible in order to qualify for many immigration benefits, including Special Immigrant Juvenile Status, immigration through a family visa petition, U or T nonimmigrant status, and temporary protected status. Fortunately, some immigration options for children and youth provide exemptions from certain grounds of inadmissibility. The exemptions depend upon the form of relief for which the child is applying. Even if the child is inadmissible, there are often broad waivers for inadmissibility available to them. Example: Tariq, who is 16-years-old, has lived in the United States for five years with no lawful status. He was abused by his mother and abandoned by his father and consequently, he entered the child welfare system as a dependent. Despite the fact that Tariq falls within several grounds of inadmissibility including being likely to become a public charge and being present in the United States without being admitted, he is still eligible to apply for Special Immigrant Juvenile Status because these grounds are automatically exempted for SIJS applicants. Chapters 5 and 17 provide a more thorough discussion of some of the grounds of inadmissibility. PRACTICE TIP: Many children and youth are exempt from certain grounds of inadmissibility, depending upon the relief for which they are applying. You should check the requirements for each form of immigration relief carefully.

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Grounds of deportation

The grounds of deportation provide bases for expelling persons from the United States once they have been admitted. Some grounds of deportation are similar, although not identical, to corresponding grounds of inadmissibility. The grounds of deportation are found in INA § 237(a). Example: Monique is a lawful permanent resident (“green card” holder). At the age of 19 she becomes deportable after she is convicted in adult criminal court of domestic violence. If Monique is placed in removal proceedings, an immigration judge can find her deportable and order her removal. She would lose her permanent resident status and be forced to leave the United States. (Note: If Monique’s criminal case was handled in juvenile court proceedings instead, she would not be deportable under this ground because it requires a conviction, and juvenile delinquency adjudications are not considered convictions for immigration purposes. See Chapter 17.) A discussion of some of the grounds of deportability is in Chapter 17. C.

Waivers of inadmissibility and deportability

Some grounds of inadmissibility and deportability can be waived under certain circumstances, at the discretion of an immigration judge, USCIS, or consular officials. Children and youth may have special waivers available to them depending upon the form of immigration relief for which they are applying and the act that they committed. Waivers are granted as a matter of discretion. The law governing which grounds may be waived and what standards apply may be located in the same sections of the Immigration and Nationality Act as the grounds of inadmissibility or deportability. Other waivers may be set forth in the law governing the specific form of immigration relief for which the person is applying. Waivers for each form of relief are discussed in their respective chapters. D.

When do the inadmissibility and deportability grounds apply?

While this area is complex, and each case must be individually researched and analyzed, there is a fairly simple way to visualize which grounds might apply in which circumstances. A noncitizen who wants to get something from the immigration authorities generally must be admissible. For example, if children want to be admitted at the border or obtain legal status, i.e., a green card, they generally will need to overcome the grounds of inadmissibility. Issues about the grounds of inadmissibility are usually what will affect undocumented children and youth the most. By contrast, a noncitizen child or youth who has some lawful immigration status and is trying not to lose it will immediately face the grounds of deportation. A lawful permanent resident (LPR) who is deportable can be placed in removal proceedings and removed, at which time the LPR will lose permanent resident status. On the other hand, an LPR who is inadmissible but not deportable can afford to sit tight. As long as the LPR does not leave the country (and therefore might have to apply to re-enter) and does not want to apply for any new benefit, such as U.S. citizenship, the fact that they have committed some act causing them to be inadmissible (but not deportable), will not cause them to lose the immigration status that they have: it may just block them from getting anything new.

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Analogy: The family dinner. Think of the United States as a family having dinner, when a stranger comes to the door claiming to be a long-lost cousin. The many questions that would be asked and strict standards that would be applied to the stranger before they are admitted to the house are like the grounds of inadmissibility. Once the stranger has been admitted to dinner, they probably would not be told to leave unless they behaved very badly (or it was discovered that they committed fraud to get in). This somewhat more generous standard represents the grounds of deportability. WARNING! It is important that advocates individually analyze each case. Some immigration applications have requirements beyond not being deportable or inadmissible. For example, an application for Violence Against Women Act (VAWA) or citizenship requires that the person possess good moral character. Some other immigration applications, such as DACA, do not necessarily require that the client not be deportable or inadmissible, but have entirely separate criteria. § 1.6 A.

Overview of the Immigration Process for Children and Youth

The affirmative immigration process

The affirmative immigration process generally involves an application for an immigration benefit, i.e., Special Immigrant Juvenile Status, asylum, and/or lawful permanent residence, for which a person may be eligible. Many immigration applications are submitted to U.S. Citizenship & Immigration Services (USCIS). The process generally involves submitting an application packet to USCIS, attending a biometrics appointment for children over a certain age (a background check), attending an interview if scheduled, possibly submitting any additional documentation needed by USCIS, and then issuance of a decision by USCIS. The processes for applying for the different forms of relief covered in this manual are provided in their respective chapters. Applying affirmatively for a form of immigration relief confers several benefits, including providing enough time to develop a strong case, allowing the youth to have their application adjudicated in a non-adversarial setting, and having control over the case overall, i.e., the information submitted and considered. The risk of submitting an affirmative application (that is, for a child or youth who is not in removal proceedings), however, is that if it is denied and the child has no other way to immigrate, ICE could place the child in removal proceedings and try to deport them. Under the updated Notice to Appear (NTA) guidance issued by USCIS in June of 2018, USCIS’s new policy is that it will refer any denied applicants to removal proceedings if they do not have lawful status. 62 Although it remains to be seen how the new USCIS guidance will be implemented, 63 this risk must be considered and factored into the decision whether or not

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USCIS, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTA) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 63 As of September 1, 2018, the new USCIS guidance was not yet in effect. USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum, (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum.

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to submit an immigration application. By applying for any form of immigration relief affirmatively, youth are making themselves known to the Department of Homeland Security. One downside for immigrant children not in removal proceedings is that they may not realize that they need to, and are eligible to, apply for immigration relief until they are already too old for some of the relief options specifically for youth. Remember to tell your clients that any undocumented younger siblings or family members will also need immigration relief, and could benefit by applying sooner rather than later. B.

Removal (or deportation) proceedings 1. Overview

Immigrant children and youth in the deportation process face overwhelming obstacles. They are held to the same standard of proof as adults in fighting their deportation. They are provided with very little information about their legal rights, such as viable defenses against deportation, for which many of them are eligible. They often do not understand the nature of the proceedings due to age, language and cultural barriers, and importantly, may lack access to counsel. Some improvements have been made, however, to these processes for children and youth. Unaccompanied children and youth in ORR custody are significantly more likely to receive representation due in part to federal, state, and local efforts to increase representation of unaccompanied children. There is also a program in a limited number of jurisdictions, run by the Young Center for Immigrant Children’s Rights, to provide child advocates, similar to guardians ad litem, to particularly vulnerable youth in custody. 64 The TVPRA also promotes greater access to legal counsel for unaccompanied immigrant children, encourages the appointment of child advocates for trafficking victims and other vulnerable children, and requires more expansive training of federal officials who work with unaccompanied immigrant youth. 65 Ultimately, what happens to a child or youth in removal proceedings will depend on various factors including: whether they are considered accompanied or unaccompanied as defined by immigration laws, where they are apprehended by immigration authorities, and the individual circumstances of their situation, including prior immigration and delinquency history, if any. This section will provide the authority for and standards governing removal proceedings and describe generally what happens to minors in the removal (or deportation) process once they have been apprehended. A map of the deportation process for children and youth is provided at Appendix B. An in-depth discussion of the apprehension/arrest phase and detention process is covered in Chapter 18. 2. Removal proceedings: Admission and the burden of proof The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 created removal proceedings. A removal proceeding is the court process that determines whether someone will be removed (also called deported) from the United States. Removal proceedings are

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For more information, see Young Center, Child Advocate Program, https://www.theyoungcenter.org/child-advocate-program-young-center/. 65 TVPRA § 235(c)(5)–(6); TVPRA § 235(e).

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initiated when DHS files a Notice to Appear (in other words, a charging document). 66 In removal proceedings, DHS may charge noncitizens with being inadmissible 67 or deportable. 68 Generally only those noncitizens who have been “admitted” to the United States will face the grounds of deportability in removal proceedings. Those who entered without inspection will face the grounds of inadmissibility. Thus, a key question in removal proceedings is whether the person has been admitted into the United States. To be considered admitted, a person must have made a “lawful entry … after inspection” by a DHS officer. 69 Noncitizens who entered the United States with inspection, pursuant to a visa of some kind, have been admitted. If the DHS brings them into removal proceedings, the DHS has the burden of proving that the individual comes within a ground of deportability. Noncitizens who have not been lawfully admitted into the United States are seeking admission. If challenged and placed in removal proceedings, these people have the burden of proving that they do not come within one of the grounds of inadmissibility. In some cases the persons simply have no immigration documents and are removed for being inadmissible on that basis. In other cases they may be inadmissible for other reasons. Who has not been admitted, and therefore is still seeking admission and is subject to the grounds of inadmissibility? Noncitizens who: • • • •

Entered the United States without inspection—for example, avoided a DHS checkpoint by wading across the Rio Grande River from Mexico with a smuggler or coyote; Arrived at the border or a port of entry hoping to be admitted but who are stopped and challenged by DHS; Are parolees—see INA § 101(a)(13)(B); or Are alien crewmen—see INA § 101(a)(13)(B).

A different rule applies to lawful permanent residents who travel abroad and return to the United States. Returning permanent residents are presumed not to be seeking admission, unless they come within certain exceptions set out in the statute. 70 There are a few types of removal proceedings. For purposes of children and youth, there are two removal procedures with which advocates should be primarily familiar. A non-citizen can be ordered removed by an immigration judge as described in Subsection 3 below. A person can also be removed through voluntary removal by agreeing to withdraw their application for admission. This often occurs at the border, although unaccompanied youth, under the TVPRA, should not be voluntarily removed unless they are from a contiguous country and there are no trafficking concerns or fear of return. Voluntary removal should not be confused with voluntary departure, 66 IIRIRA § 309(c)(1). IIRIRA applies to proceedings on or after April 1, 1997; before then, deportation proceedings were initiated by an Order to Show Cause. 67 INA § 212(a). IIRIRA renamed the former grounds of “exclusion” the grounds of “inadmissibility.” 68 INA § 237(a). Under IIRIRA INA § 237 replaced former INA § 241 grounds of deportation. 69 INA § 101(a)(13). 70 See INA § 101(a)(13)(C).

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which is a formal order granted by ICE or EOIR only to qualifying immigrants in lieu of a removal order. See Chapter 16. 3. The removal process Removal proceedings against an individual start when an immigration official issues a document called a Notice to Appear (NTA), files it with the immigration court, and gives a copy to the individual. 71 Often the person is arrested first and then receives the NTA. The person against whom the NTA is issued is called the respondent (the person who responds to the charges). The regulations implementing the removal procedures are found at 8 CFR § 239, § 240, § 1239, and § 1240. Generally the process for removal proceedings is as follows: 1. Arrest and detention. A person can be arrested and detained by an immigration official (usually a CBP or ICE official) on suspicion of not having lawful immigration status, or of having received a conviction that makes the person deportable. After the arrest, the official will interview the person. DHS is required by law to provide a notice of rights to children and youth. Nevertheless, few children understand what this interview is about, and information they give is often used against them. See Chapter 18 on apprehension/arrest. 2. The Notice to Appear. The Notice to Appear (NTA) is the formal legal document that charges the person with being removable. In the NTA, the government must state specific facts that show (1) the person is not a U.S. citizen and what their alleged country of citizenship is, (2) the acts or conduct that are allegedly in violation of the law, (3) the legal authority under which the government is conducting the proceedings, and (4) the provisions of the law that the person allegedly violated. The NTA must also contain the time and date of the hearing. 72 The BIA held that this requirement can be met by a twostep process: an NTA “that does not specify the time and place of [a respondent’s] initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Act, so long as a notice of hearing specifying this information is later sent to the [respondent].” 73 Example: In Gabriela’s case, the NTA will state that Gabriela is a citizen of Mexico and not a U.S. citizen. It will state that Gabriela entered the United States without inspection in June 2017 near Calexico, California. (Gabriela herself gave the immigration officer all of this information when she was arrested.) Based on these factual allegations, it will charge Gabriela with being present in the United States in violation of the Immigration and Nationality Act and thus removable.

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Certain designated officials of USCIS, CBP, and ICE have the authority to issue a Notice to Appear. See 8 CFR § 239.1. 72 Pereira v. Sessions, 138 S. Ct. 2105 (2018). 73 Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018).

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The government must serve the person with a copy of the NTA (give the person a copy). If the person is detained, the government may simply hand the person the NTA. If the person is not in detention, the government may serve the NTA by mail. 74 3. The bond hearing. Bond hearings are not common for children and youth. Children and youth who are deemed “unaccompanied” (under the age of 18 and who do not have a parent or legal guardian who is willing or able to provide for their care and custody), will be in the custody of ORR. For these youth, there is often no bond hearing, but instead a reunification process facilitated by ORR with family members, or a transfer to long-term foster care. Nevertheless, the ORR reunification process is opaque, and in some instances, the youth may want a bond hearing in front of an immigration judge. Previously, ORR’s position was that it had exclusive authority over the release of immigrant youth in its custody. In 2017, the Ninth Circuit disagreed and found that all detained immigrant youth have a right to a bond hearing before an immigration judge. 75 See Chapter 18. If the child or youth has been arrested and is considered “accompanied,” ICE Enforcement and Removal Operations may set an immigration appearance bond that the person (or a family member or friend) must post to secure the youth’s release from custody. ICE may also just release the youth on their own recognizance, or subject to an ankle-bracelet monitoring program called Intensive Supervision Appearance Program (ISAP). If a bond is issued, it is supposed to guarantee that the person will come to future hearings and interviews. If the person does not show up, the person will lose the bond money. More information on the bond and release process for unaccompanied and accompanied youth is in Chapter 18. 4. The master calendar hearing. The next stage in removal proceedings is called the master calendar hearing. At this hearing, the person must respond to the charges on the NTA. The judge will most often rule on two questions: a. Is the person really removable, as charged on the NTA? In other words, can ICE prove that the NTA charges are correct? b. If so, should the person be removed, or can the person apply for some kind of relief from removal or means of immigrating? If the child can apply for some relief (for example, adjustment of status), the judge may schedule another longer hearing to decide if the youth is eligible for the relief. In some cases, however, the judge may terminate (or end) proceedings for the youth to proceed with an immigration application before USCIS; this happens in some jurisdictions, for example, when a youth has been approved for Special Immigrant Juvenile Status applications. When proceedings are administratively closed, the person is still technically in removal proceedings, and the government could open up the case at any time. If removal proceedings are not terminated, the longer hearing is called the merits hearing or “individual hearing.” The judge will also schedule a merits hearing if the person challenges removability and attacks the government’s evidence as being insufficient.

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If the person cannot apply for any relief, and does not qualify for or fight for voluntary departure instead of removal, the judge will issue a final order of removal. If the person does not challenge the removal order, ICE will remove the person to their country of origin. While the TVPRA provided for a pilot program for the safe repatriation of children, it remains unclear to what extent any of these practices have been implemented. Voluntary departure. Voluntary departure is a form of discretionary relief that allows a person to depart the United States, instead of undergoing deportation or removal. The INA provides for a grant of voluntary departure at two distinct times. First, immigration authorities may grant voluntary departure prior to the conclusion of removal proceedings. 76 Second, the immigration judge may grant voluntary departure instead of removal at the conclusion of removal proceedings. 77 It is easier for the applicant to qualify for the type of voluntary departure that comes prior to the conclusion of proceedings. This fact unfortunately penalizes applicants who pursue relief. Legally, departing voluntarily is different from and better than having an order of removal on one’s record. A person who accepts voluntary departure is not subject to certain bars to re-entry and therefore, may be able to return to the United States if the person qualifies for immigration relief in the future. If the child or youth qualifies and is classified as an unaccompanied minor, then voluntary departure is available at no cost.78 If a child is considering voluntary departure in lieu of removal, it should only be requested if the child is actually going to leave the United States and/or the immigration judge denies relief and all appeals fail. Otherwise, the voluntary departure order will convert into a removal order if the child fails to depart and the child will be subject to additional penalties that can bar immigration relief in the future.79 Voluntary departure is discussed in greater detail in Chapter 16. 5. “Merits hearings” for relief. If the person has a defense to removal, the judge may set the case over for another hearing on that defense, called a “merits hearing,” or “individual hearing.” The defense could be an attack on the facts or law set out in the NTA, and/or it could be an application for relief. At the conclusion of the merits hearing, the judge may either issue a decision in court or “reserve” the decision to give the judge time to prepare a decision. If the person is ordered removed, the person may appeal the decision to the Board of Immigration Appeals. 6. Expedited removal process. Under the TVPRA, unaccompanied children must be placed in removal proceedings under INA § 240 and therefore, should not be subject to expedited removal proceedings. 80 Only in certain cases, such as when the youth is from a neighboring country and has been properly screened in accordance with the TVPRA, may the child be subject to voluntary removal (withdrawal of their application for admission)—but even here, the child is not subject to expedited removal proceedings. 81 A

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INA § 240B(a)(1). INA § 240B(b)(1). 78 TVPRA § 235(a)(5)(D)(ii). 79 INA § 240B(d). 80 TVPRA § 235(a)(5)(D). 81 TVPRA § 235(a)(2)(B)(i). 77

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youth over 18 years old, however, could be subject to expedited removal, as could an accompanied youth. After deportation. Once youth are deported, the government provides little to no resources to facilitate reunification with family members. Advocates have found that youth are often dropped off at the border, in the country’s capital, or with the country’s child welfare agency. The TVPRA attempted to change these practices and provided a pilot repatriation program that worked with several federal agencies to develop and implement best practices for safe-repatriation and reintegration of youth to their home countries. However, on the ground, not much appears to have changed. Many children are dropped off far from home, and their relatives in the home country are often not alerted to when, how, where, or even that the children are returning home. The best time to address what will happen to your clients after they are deported is before they actually leave the United States. Try to identify and contact family members before your clients are deported, and prepare a plan with your clients for what to do upon their arrival. PRACTICE TIP: Before you practice in any immigration court, read the regulations governing such practice and the Immigration Court Practice Manual (ICPM). The ICPM may be found on the EOIR website at http://www.usdoj.gov/eoir. The ICPM contains the rules that the EOIR has made for practice in the local courts. They supplement the general regulations concerning practice in immigration courts, and include important filing deadlines. You must follow the general regulations and the ICPM rules or you may have procedural problems—including missed filing deadlines—that injure your case. Immigration judges do still retain some discretion regarding setting, extending filing deadlines, motions to continue, and other issues that may arise. If you have questions about local practice, you can speak with an experienced local practitioner. You can also call the immigration court clerk and/or the clerk of the immigration judge before whom your case is pending to clarify how the ICPM is being implemented locally or inquire about your case. If you have filed a motion that is time-sensitive, you can follow-up on the motion with a call to the judge’s clerk to ask about the timing on the decision.

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CHAPTER 2 WORKING WITH CHILDREN AND YOUTH This chapter includes: § 2.1 § 2.2

§ 2.4 § 2.5 § 2.6

§ 2.1

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§ 2.3

Introduction .......................................................................................................... 29 Understanding a Child or Youth’s Developmental Stage and Background.................................................................................................... 30 General Practice Tips for Developmentally Appropriate Interviews and Working with Children and Youth ................................................................ 34 Special Considerations and Practice Tips for Working with Detained Children and Youth .............................................................................................. 38 Avoiding Re-Traumatization ................................................................................ 40 Ethical Issues in Representing Children ............................................................... 42

Introduction

Children and youth have different developmental levels and needs from adults, which means advocates must consider different approaches when working with them. The distinction between youth and adult clients, in particular, affects the relationship and communication between client and advocate as well as the legal strategies and decisions that may guide the advocate’s representation of the youth. Children are still developing critical cognitive, psychological, and biological functions, which impact and in some cases impair the ways in which they can communicate and respond. Furthermore, many children in need of or seeking immigration relief have suffered some form of trauma, including, for many, family separation and violence; in fact, this trauma may be the very reason that they are eligible for immigration relief. However, a child’s ability to communicate and participate in constructing a successful immigration case may be greatly compromised due to the past trauma. Nonetheless, eliciting information to identify potential relief and construct a compelling case is critical to achieving the best outcome in a child’s immigration case. This requires that advocates working with children possess a specialized skill set and consider the unique needs of their child clients. This chapter identifies critical issues and provides practical tips for working with immigrant children and youth to improve the effectiveness of communication between clients and advocates, avoid re-traumatization of children and youth, and develop strong cases for immigration relief. Most children and youth can be extremely helpful in the development of their own compelling and credible immigration cases. Special provisions in immigration law for children and youth. Immigration law recognizes some of the critical distinctions between adult and child petitioners. In 1998, the now defunct Immigration and Naturalization Service (INS) issued a memorandum providing specific guidelines for children’s asylum claims. The memorandum states, “[b]ecause of the unique vulnerability and circumstances of children, the Immigration and Naturalization Service (INS)

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considers it appropriate to issue guidance relating to our youngest asylum seekers.” 1 The memorandum goes on to address child-sensitive interview procedures and the legal analysis for children’s asylum claims. Concerned about the inherent conflict of interest in INS’s dual role in both housing and prosecuting immigrant children, child advocates successfully lobbied to add an amendment to the Homeland Security Act assigning custody of immigrant children to the Office of Refugee Resettlement. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457) (TVPRA), enacted on December 23, 2008, created additional protections for unaccompanied immigrant children, including placing youth in the least restrictive setting that is in their best interest and providing less adversarial settings for adjudication of asylum claims. A description of the TVPRA’s provisions is provided in § 1.4(C). In March 2009, U.S. Citizenship and Immigration Services (USCIS), through their Asylum Officer Basic Training Course, provided additional guidance to asylum officers in their adjudication of children’s asylum claims. 2 These USCIS guidelines reference the United Nations High Commissioner for Refugees’ “Guidelines on International Protection: Child Asylum Claims,” which highlight the specific rights and protection needs of children asylum seekers. 3 In further recognition of the diminished capacity of children, both the Department of Homeland Security and the Department of State recognized in 2013 that an affirmative defense to the false claim to citizenship inadmissibility ground at § 212(a)(6)(C)(ii) is that the individual was under eighteen years of age and at the time “lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship.” 4 These various sources of law or policy guidance show a basic recognition of the unique position of children, particularly as asylees/refugees. However, many gaps in laws, procedures, and practices for children still exist. § 2.2

Understanding a Child or Youth’s Developmental Stage and Background

This section provides background on particular developmental issues that are unique to children and youth, which may be helpful to consider when working with a child or youth client on an immigration case. Notion of cultural competency. It is important that advocates be aware of the American construction of “childhood.” What it means to be a child in the United States may be very different than what it means to be a child in a different country. The American concept of a child 1 INS Office of International Affairs, Jeff Weiss, Guidelines for Children’s Asylum Claims, 1 (Dec. 10, 1998), available at http://www.uscis.gov/sites/default/files/USCIS/Laws%20and%20Regulations/Memoran da/Ancient%20History/ChildrensGuidelines121098.pdf. 2 USCIS, Asylum Officer Basics Training Course Lesson Plan: Guidelines for Children’s Asylum Claims, 9 (Mar. 21, 2009), [hereinafter AOBTC Guidelines for Children’s Asylum Claims]. 3 UNHCR, Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convection and/or 1967 Protocol Relating to the Status of Refugee, HCR/GIP/09/08 (Dec. 22, 2009), available at http://www.unhcr.org/refworld/docid/4b2f4f6d2.html [hereinafter U.N. Guidelines for Child Asylum Claims]. 4 Letter from Brian de Vallance, Acting Assistant Secretary, Office of Legislative Affairs, DHS, to Senator Harry Reid (Sept. 12, 2013), available as AILA Doc. No. 13092060; see also Letter from Thomas B. Gibbons, Acting Assistant Secretary, Office of Legislative Affairs, U.S. Department of State to Senator Harry Reid (Aug. 29, 2013), also available as AILA Doc. No. 13092060.

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may include associations of children as dependents and as victims. We may presume that children go to school and do not work. Some immigrant child or youth clients, particularly older youth, may not share this conception. They may see themselves as very independent and may work instead of attending school. Their culture and family in their home countries may contribute to this sense of independence as it may be typical and expected for youth to work, support the family, and begin to start their own family at a younger than the age we associate with these activities in the United States. Because of these familial and cultural expectations, youth may have wanted and/or have been encouraged by family to come to the United States to work to make a better life for themselves or their family in the home country. Further, many immigrant youth have fled traumatic and dangerous conditions in their home countries, and may have been forced to take on other adult-like responsibilities, such as protecting and caring for themselves from a young age. Often, a smuggler will have brought the youth to the United States and they will owe some form of debt that they must work off. The family may have also spent its entire savings getting the child into the United States and that child may be expected to work to pay off the debt and support the family. It is also important to recognize that a child’s notion of themselves may conflict with what is best or necessary to achieve certain immigration relief. Immigration relief is often centered around the vulnerability and victimization of a child, but the child may not see themselves in that way. Advocates should be aware of this tension between their own “American” notions of childhood, their client’s notion, and what the law requires. Sense of time. Children and youth perceive time differently than adults. Generally speaking, short periods of time to adults can seem like eternities to children. Children’s sense of time is particularly critical in cases in which a child is detained. Time naturally passes more slowly for anyone who is detained and even more so for detained children. Most detained children want whatever immigration option gets them out of detention the quickest, which often conflicts with the best strategy to provide the child long-term immigration relief. This is because children and youth tend to discount long-term consequences over shortterm consequences. 5 For example, children may have a hard time recognizing that staying in detention to fight their immigration case may yield long-term benefits in their lives, while getting out of detention quickly may negatively impact them by barring them from ever obtaining legal status in the United States. Children and youth also have difficulties with chronology and dates. Many other cultures do not follow American linear chronology and the fact that the client may come from such a culture—as well as being a child—compounds this problem. Further, children are often inaccurate historians. This is particularly an issue for younger children and children who have experienced trauma. It may be useful to ask several questions to obtain more accurate information. For example, instead of asking a child for a specific date, ask if the child remembers in what season a certain event occurred, if the child was in school when it happened, if it was around someone’s birthday or a particular holiday, etc.

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E. S. Scott, N. D. Reppucci & J. L. Woolard, Evaluating Adolescent Decision Making in Legal Contexts, 19 LAW & HUM. BEHAV. 221, 231 (1995).

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It is also helpful to keep in mind for client interviews and meetings that children and youth generally have shorter attention spans than adult clients. Particularly younger children often become tired or distracted easily. Advocates should break interviews into several visits, if possible. At the same time, advocates should schedule sufficient time for an interview in case a child begins to open up about a traumatic experience and it would be inappropriate to cut the interview short.

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Disassociation. Children, especially those who have experienced trauma, may detach and clinically disassociate from their situation, shutting down and appearing closed off. 6 Children in general may take more time to open up to advocates. Advocates should work on developing trust with the child and not immediately ask about the trauma that the child suffered. It often will take time to get the full story from the child. In some cases, it may be easier to get this information from a person with whom the child has developed a close bond and has confided in, for example a social worker, guardian, friend, etc. It is especially difficult for a child to relive the trauma multiple times. See § 2.5 on working with child and youth victims of trauma. Susceptibility to offer the answer expected. Children and younger youth are particularly susceptible to suggestion. Children often aim to please and will respond with the answer they believe the person asking the question would like to hear. 7 Therefore, open-ended questions are a good way of eliciting more accurate information, because an open-ended question does not hint at an answer the questioner may have in mind. In particular with a detained child or youth, it is very important to elicit all the information they have given to authorities, including all officers, counselors, and caseworkers, 8 because generally records gathered in immigration detention by the various detention actors are available to the government. 9 Other children may not necessarily say what they think the advocates want to hear, but instead may respond with a story that a smuggler told them to tell. Children may have been heavily coached not to say anything or to recount a fabricated story. These false histories may be hard to catch. Developing a good rapport and trust with the child is the best way to dismantle the fabricated story. This often requires meeting with the child many times over an extended period so they can build trust and be more comfortable with you. It is also crucial to establish your role to the child—who you are (their lawyer) and who you are not (the government, their parent, etc.), 6

U.S. Conference of Catholic Bishops Migration and Refugee Servs., The Changing Face of the Unaccompanied Alien Child: A Portrait of Foreign-Born Children in Federal Foster Care and How to Best Meet Their Needs, 10 (Dec. 2012), http://www.usccb.org/about/children-and-migration/unaccompaniedrefugee-minor-program/upload/A-Portrait-of-Foreign-Born-Children-in-Federal-Foster-Care-and-How-toBest-Meet-Their-Needs_USCCB-December-2012.pdf. 7 T. Grisso, L. Steinberg, J. L. Woolard, E. Cauffman, E. Scott, S. Graham, F. Lexcen, N. Reppucci & R. Schwartz, Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 333, 357 (2003) (finding that younger children in detention scored higher on compliance with authority such as confessing to police, speaking to the attorney, and taking a plea). 8 Anne Chandler, Judy Flanagan & Kathleen A. Moccio, The ABCs of Working with Immigrant Children to Obtain Special Immigrant Juvenile Status for Those Abused, Neglected, or Abandoned, IMMIGR. & NAT’LITY LAW HANDBOOK 300, 302 (2006–07). 9 Jennifer L. Woolard, Presentation for Unaccompanied Minors “On Their Own” Conference, Symposium on Mental Competency, Privilege, and Confidentiality (Oct. 23, 2009).

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what confidentiality means, and any limits on your ability to help the child or keep their information confidential.

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Susceptibility to interrogation tactics. 10 Research suggests that children and youth are particularly vulnerable to questioning and will readily disclose information, even if contrary to their best interests. In the United States, children are encouraged by their parents and various systems (schools, juvenile justice system, etc.) to take responsibility for their bad acts or conduct and admit their mistakes in order to receive forgiveness, help, and/or rehabilitation. Consequently, many youth will disclose bad conduct to authorities, although it may be detrimental to them. This can happen with immigration authorities, since they may mistakenly believe that these acts will also be forgiven in the immigration system, when in fact the opposite is true—the information may be used against them to deny them immigration relief and deport them. Youth and children’s vulnerability to interrogation is a result of many factors. Children and youth are still developing the capacity to make decisions and do not function well under time pressure or stress. They may be less able to control impulses. Even the U.S. Supreme Court has recognized that youth have a “lack of maturity and an underdeveloped sense of responsibility [and] are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” 11 For example, they may admit some bad act in an immigration interview even when they were instructed not to. Children and youth are susceptible to coercive circumstances and may cave more quickly or more often than adults. Finally, children and youth are vulnerable to authority figures, and they may feel easily threatened and intimidated by them; this can lead to detrimental responses in an immigration interview or in court. Advocates need to be aware of these vulnerabilities and prepare their clients for interactions with immigration authorities, so that their clients understand the consequences of disclosing or sharing certain information. See § 2.6 for further discussion on difficulties in information gathering. Children and youth have difficulty distinguishing between different roles of adults. Children and youth often cannot tell apart the roles of the adults involved in the immigration process. This makes sense because many adults, including immigration authorities as well as social workers and legal advocates, may dress the same and all tell them that they are there to help. Children may not know who is their attorney versus who is an immigration authority. Children figure it out as the immigration process goes on, but advocates need to be aware that at first, it is very confusing to children and youth to determine who is on what side of the case and who may be representing their interests. Children and youth, particularly in detention, are lonely. Advocates should be aware of how isolated and lonely children feel in the immigration system. Constant contact can help mitigate this.

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For more on this topic, see J. L. Woolard, H. Cleary, S. Harvell & R. Chen, Examining Adolescents’ and Their Parents’ Conceptual and Practical Knowledge of Police Interrogation: A Family Dyad Approach, 37 J. YOUTH & ADOLESCENCE 685 (2008). 11 Graham v. Florida, 130 U.S. 2011, 2026 (2010) (internal quotations omitted); see also Miller v. Alabama, 132 S. Ct. 2455 (2010).

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Children and youth experience tremendous anxiety during the immigration process. As with adults, living with uncertainty for extended periods of time can cause tremendous anxiety for youth. Because attorneys and case workers can never guarantee the outcome of an immigration case, youth must live with uncertainty for months or ever years about whether they will be permitted to remain in the United States or will be returned to their home country.

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Children and youth often understand the basics of immigration proceedings, but get lost in the details of the case. Immigration law is exceedingly complex. Children and youth do benefit from legal information even if they receive it only once. However, repeating information as many times as possible helps the child or youth remember and retain the information. Depending on a child’s chronological age and/or developmental age, that child may have a more or less nuanced understanding of their immigration proceedings. Further, a child’s ability to understand their immigration case may depend upon their own background and cultural context. For example, a child brought to the United States at a young age may already be familiar with the general concept of our legal system and immigration laws, whereas a child from a rural part of Guatemala may previously not have been exposed to ideas of borders or a court system. Certain children and youth may have experienced specific marginalization. Because of certain factors related to the identity of a particular child or youth, they may be further marginalized. For example, indigenous youth have often experienced humiliation as a result of their language differences or literacy issues. LGBTQ youth may have experienced particular discrimination on account of their sexual orientation. Advocates should be sensitive to these issues and address them carefully. Many immigrant children and youth have post-traumatic stress disorder or other mental health issues. Immigrant youth are at particular risk for emotional and mental health issues. For example, a study of the mental health of unaccompanied migrant minors in Europe showed high rates of anxiety, depression, and Post-Traumatic Stress Disorder. 12 It is important for advocates to partner with mental health providers to address these issues and to take steps to avoid further exacerbating them in the course of representation. See § 2.5 for more mental health information. § 2.3

General Practice Tips for Developmentally Appropriate Interviews and Working with Children and Youth

This section provides practice tips for working with children and youth in light of the unique developmental issues that affect them, presented in the previous section. Advocates should be aware that some of these practices may not be feasible for working with youth in detention. For more information on interviewing children and youth, advocates should consult “Working with Refugee and Immigrant Children: Issues of Culture, Law & Development.” 13 Gather as much information in advance of your client interview as possible. To the extent possible, you should gather available information about your client in advance of your interview with them. Even though you may need to review this information with your client and seek 12

Marianne Vervliet et al., The Mental Health of Unaccompanied Refugee Minors on Arrival in the Host Country, 55 SCANDINAVIAN J. PSYCHOL. 33, 35 (2014). 13 Lutheran Immigration and Refugee Serv., Working with Refugee and Immigrant Children: Issues of Culture, Law & Development (1998), http://www.brycs.org/documents/upload/workingw.pdf.

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additional information in order to develop your client’s immigration case, being as informed in advance as you can be of any history of abuse, neglect, or trauma can help you approach these subjects with care. Learning about your client before you meet with them will also help you tailor your questions to the type of information you need most.

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Plan the interview. Have a plan of what you are going to talk about ahead of time, with back-up topics you can fall back on if anything in the interview becomes too stressful. Do not open up topics of conversation that you do not have time in your schedule to finish. Also, keep in mind that attention spans vary by age, and plan accordingly. Plan shorter and multiple interviews if possible, but also be prepared for the possibility of a long interview if a child begins to open up and share sensitive information. Choose an appropriate setting where the child feels comfortable. For very young children, if possible, have a smaller table and chairs for both the client and advocate (or the advocate may sit on the floor next to the child). Advocates are more likely to get information from a child if they are working at the child’s eye level. It may be effective to have a space or room in which the child or youth can get up and walk around while meeting with you. For older children, try not to sit across a desk from the child; rather sit at a table, with chairs arranged side-by-side, or, if you only have a desk to meet with the client, sit in a chair on the same side of the desk as them. Depending on the age of the child, you may want to have toys or something for the child or youth to have in their hands while talking with you (a ball, slinky, silly putty, etc.). Avoid being tense around children and youth clients. They are usually already very nervous and can sense if you are nervous or tense. Build trust and develop a rapport with the child. Spend time talking informally about things that interest the child. Give the child a chance to get to know you first before delving into the legal aspects of their case. Take the time to explain who you are and the role you play in the child’s life. Be transparent about information you already know about them and where you obtained it. Often it can be helpful to talk about the fact that you have children, grandchildren, nephews and nieces, or neighbors who are children. Remember children often take time to feel comfortable opening up to adults. Explain the purpose of working together. After you have explained your role in the child’s life, explain what legal status means for a child and the potential benefits and consequences of working together. Talk about confidentiality and what it means in a manner that the child can understand. Manage expectations and be honest. Children and youth want to be told the truth about the likelihood of them obtaining immigration relief. Also, be honest about timeframes. Advocates should steer clear of sugarcoating information. They should present information as kindly as possible, but be clear. Bad news will have to come out eventually, and it is best for advocates to be honest from the outset. Monitor the interview so that it is not too stressful. Ease into each interview with basic, easyto-answer questions; then address some of the more difficult issues; and then return to easier topics, such as scheduling a next appointment or signing documents, to finish the interview.

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Consider language barriers. Languages spoken within even a single family may vary, so it is important to take language considerations into account. When needed, use an appropriate interpreter. Be aware that some children from Central America, especially Guatemala, may speak indigenous languages rather than Spanish. Sometimes children may be hesitant or embarrassed to admit this because of discrimination in their home countries, but it is important to always identify your client’s best language rather than assume they speak a particular language.

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Phrase questions and sentences as simply as possible. Avoid complex sentences/questions and double negatives (unless it is typical in the language you are using to communicate with your client, e.g., Spanish). Ask one question at a time, and follow-up with more specific questions. Encourage the child to ask their own questions, too. Use child-friendly, accessible words and explain legal terminology. Particularly with younger clients, advocates should use simple, plain words and explain complicated legal vocabulary in words the child can understand. Try to avoid “legalese” even when you explain legal processes; replace or explain legal words such as “removal,” “eligible,” and “master calendar hearing” with terms that make sense to your client. Children or youth may repeat language they have heard from advocates or others, but they may not necessarily understand it means. Even with adolescents who appear to have good command of language, advocates need to explain legal vocabulary in an accessible manner. Explain the theory of the case and legal procedures in a way that the child can understand. One of the main ways legal workers can improve their clients’ experiences with the legal system is to make sure their clients understand what is happening to them. Share your understanding of the law and procedure with the client. The client can only do their part if they understand what the case is about and what the legal issues are. A client who understands these things will also be much better able to tell their story at an interview or hearing with an immigration official or judge. Consider using drawings to work with younger children. 14 Younger children may be able to express through drawings what they may be unable to express verbally. Asking children to draw certain things, such as their house in their home country with the people who lived there or how they crossed the border, may be a helpful tool in eliciting information from younger children who have trouble explaining their experience using words. You can then use the drawing as a jumping-off point to ask a child more about what they drew. Use maps. Maps help children and youth understand where they are now, where they came from, and perhaps where other important people in their life may be (e.g., you can explain to a child using a map that she is in Texas and her aunt is in New Jersey). Maps can also help older youth show advocates approximately where they may have entered the United States, which may be useful for certain immigration forms or for their case more generally. Let children and youth know that it is okay if they tell you something that is different from what they told you before. Do not highlight inconsistencies in the information a child is 14

For more information on the use of drawing and mapping to communicate with children clients in attorney-client interviews, see Am. Bar Ass’n, Child Clients Are Different: Best Practices for Representing Unaccompanied Minors (2007), http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocu ments/legalrep_10.authcheckdam.pdf.

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providing to you in an accusatory manner or assume that the child or youth is lying. Allow them the space to tell you information that may be different than how they originally reported it. Try not to judge. Avoid negative reactions to distressing information that the child tells you and resist the temptation to insert your own judgment into a child’s retelling of an experience. For example, if a child tells you that her mother hit her with a hot metal spoon, you would want to avoid labeling this as child abuse to the child if she has not identified it as such.

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Interview the child separate from their parent(s) or guardian(s). It is important to interview the child separately from their parent(s) or guardian(s), on at least one occasion, because often children will answer differently without their parents or guardians in the room. They may be nervous or ashamed to give certain information in the presence of their parents or other adults. When conducting an interview with a parent or guardian present, keep in mind when the child, not the adult, is your client. If the parent or guardian has legal or other needs, make appropriate referrals, but focus on the child as your client. Allow the child to take a break or end the interview if needed. Children often will not suggest taking a break or ending an interview on their own, so advocates need to monitor how a child is doing. If the discussion is re-traumatizing the child (see § 2.5 about re-traumatizing) or the child is too tired or uncomfortable during an interview, suggest a break. You can also change the subject and move to a different topic or task. Allow older youth to have some control and ownership over their case. When possible, allow older youth to have control and ownership over their case by giving them choices, soliciting their input, and asking them to take on certain parts of the preparation. For example, reviewing declarations with adolescents and giving them a chance to make changes to add their voice is an important way to give youth a sense of control and ownership in the process. Youth should also take part in preparing the case, in particular the oral testimony, because their testimony in an immigration interview or court is critical to the success of the immigration case. The more the youth is included in crafting the immigration case, the greater the chance that they will be able to effectively present their story/case in the immigration process. Prepare the child or youth for interviews and court appearances. As suggested above, children and youth want and need to be prepared for what to expect throughout their case. Explain to them what may happen, what the immigration interview setting or courtroom will look like, and who will be there and what their roles are. Prepare the child or youth for their part. Use role-play so that they can practice answering questions in front of you, acting as an immigration judge for example, the same way that they will in front of the actual judge. In some jurisdictions, advocates have been successful in implementing court tours for children and youth in detention to preview what the court and the court process looks like. End the meeting with something positive. No matter how much time you spend discussing sad or traumatic events with the child, save time to end with something lighter and more positive. Remind the child that you are here to support them. Praise children on their good judgment, strengths, and successful self-preservation. Make sure the child knows what will happen next. Before concluding the meeting, remind the child of the next steps in their case and of the next time you will meet. Try to save time for questions if the child has any confusion about what happens next.

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Follow up with the child and keep in regular contact to strengthen your relationship. Because short periods of time may seem like eternities for children, long periods between each visit with the child may also affect the attorney-client relationship. Staying in touch with a child client on a regular basis will build trust and help the child open up. Consistent presence means a lot to the child, even when the child may seem distant. § 2.4

Special Considerations and Practice Tips for Working with Detained Children and Youth

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Many of the practice tips in the prior section are not practical for advocates working with youth in detention. However, to the extent that the tips above are practicable, advocates should use them, but this section provides some additional tips and considerations for advocates specifically working with youth in detention. For more information on the immigration detention system for children, see Chapter 18.

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All children in immigration detention centers are in removal proceedings. Although the immigration relief they apply for may be the same as for clients who are not detained or not in removal proceedings, the fact that your clients are detained and facing hearings in immigration court will affect your representation of them in many ways. First, these youth need to find relief quickly because the judge will not continue the case forever. Second, because the youth have been apprehended, chances are that they have already had interactions with law enforcement that scared and/or confused them and you may have to spend time reassuring them and explaining to them what happened. Finally, many youth, especially those sent to the United States by family members hopeful that they could work and send back money, feel guilty for having been caught and despair at the prospect of having to return to their families empty-handed. They may be embarrassed about being in a detention center or anxious to take voluntary departure so that they can turn around and try to come again.

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Be aware that sometimes, the first thing on detained children’s minds is getting out of detention, not their immigration case. It is very difficult for a youth to fight their immigration case while in detention—particularly secure detention—for any amount of time. As such, wherever and whenever possible, advocate for less secure detention placements.

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Bear in mind that many youth in secure detention are there because they have had some interaction with the juvenile justice system. (See Chapter 17 on the immigration consequences of delinquency, particularly on how immigration enforcement is taking place within the juvenile justice system.) These youth are often very confused about why they are still detained, because many are referred to immigration authorities upon completion of their juvenile sentences. Advocates should explain to them the differences between the juvenile justice and immigration systems, even though the practical reality may be that there is little difference between the two for a youth in detention.

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Be mindful that children and youth in detention have been asked similar questions about their immigration and delinquency history by at least four adults: the caseworker, counselor, lawyer, and representative from their consulate. In addition, the child will also

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have been interviewed by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) and the child will be asked to answer questions, sometimes on their own, in immigration court. This can be extremely confusing for anyone. For children, it can be particularly difficult to understand why so many people are asking them the same questions. They may also be concerned about what they have said to another adult in the system and may be confused about whether these adult actors share their information. Furthermore, the child may have been very adversely impacted by the first interviewer, often ICE or CBP, and this experience can cause them to be hesitant to answer when the same techniques are used in questioning. Explain to youth that anything they say to facility workers and social workers goes into a file that immigration authorities have access to and may be used against them in their removal proceedings. Explain how this is different from your relationship with them, as attorney and client, which is protected by confidentiality.

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Be mindful of the fact that youth in detention have often received a lot of misinformation from other youth and other individuals about their immigration options. Give youth credit for the information they know, but also dismantle misinformation. Writing information down can help clarify information for literate children.

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Be mindful that children and youth in detention may be living in deplorable conditions. Investigations into the conditions of immigration detention centers have unearthed reports of “unpleasant and even dangerous conditions” in the facilities that have included freezing conditions, filthy toilets, inadequate or spoiled food and water, humiliating treatment, dangerous physical facilities, poor or lack of medical treatment, and more. Doctors who conducted these investigations concluded that the conditions in detention centers may cause permanent psychological harm including anxiety, depression, and post-traumatic stress. 15 For children in detention, it is critical to determine if they are being given sleep medications, psychotropic medications, or any other type of mental health treatment. This information is important for several reasons. Any mental health issues they may have will be important evidence of the trauma they have suffered, and may strengthen their immigration case. Additionally, any medication may impede their ability to remember details or affect the way that they interact with you or others.

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Remind youth to stay out of trouble while detained and that any trouble they get into while detained will likely be used against them—it may impact their ability to be stepped down to a less restrictive detention setting, might delay their release to a family member, and may be used against them in the immigration proceedings to deport them.

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Manage expectations and be honest. Discussions about children’s placement and reunification should be handled sensitively so that the children do not have misconceptions about the timing and process. This is especially true for children who are

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15

Miriam Jordan, Whistle Blowers Say Detaining Migrant Families ‘Poses High Risk of Harm,’ N.Y. Times (July 18, 2018), https://www.nytimes.com/2018/07/18/us/migrant-children-family-detentiondoctors.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-columnregion®ion=top-news&WT.nav=top-news.

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aging out of juvenile custody and are interested in learning what will happen to them and what their options might be. •

Prepare the child or youth for interviews with immigration officials and court appearances.

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For youth who are held in distant or isolated shelters, develop techniques to maintain communication, such as scheduled telephone calls, so that your interactions with them will not feel so spread apart and sporadic.

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Be cognizant of the other pressures on the children’s time. Be aware that you may be taking them out of class or recess when you meet with them. Try to take a break around mealtimes so that they do not miss eating with their peers. For shelters with large numbers of children that need to be screened, the children may have to wait for a long period of time to see you. They may be tired or frustrated by the time you are able to meet with them.

•

Explain the triage process to the children. If they are going to be reunified, this may be the only interview they have with a legal advocate before they go live with their family. If this is the case, remind the children that they should not miss their court dates and that they should find legal representation if you cannot represent them. If they are not going to be reunified immediately, tell the children the next time they can meet with you and how to contact you if something urgent comes up (such as by requesting that the detention center call you). § 2.5

Avoiding Re-Traumatization

Many immigrant youth who come into contact with the immigration system have experienced trauma. In recognition of this trauma, many forms of immigration relief are based on the child or youth petitioner having suffered some sort of harm. For example, Special Immigrant Juvenile Status (SIJS) applicants have to show that they suffered abuse, neglect, or abandonment by one or both of their parents. See discussion on SIJS in Chapters 3–9. Oftentimes the abuse, neglect, or abandonment is not the first or only trauma the youth has experienced. Many youth come from home countries where they have experienced gang violence, civil war, or extreme poverty. Many youth also had traumatic experiences migrating to the United States and faced violence or were the victims of crimes on their way to the United States. Once in the United States, for many, the violence and poverty may have continued. Youth who recently arrived may have debts that they owe to smugglers and fear the repercussions of that debt, including threats to their family back home. As such, immigration advocates working with these youth need to keep in mind the mental and physical health repercussions of such experiences. At the neurological level, the brains of children who have experienced trauma look different than the brains of children who have not experienced trauma. 16 Trauma alters neurodevelopment. 16

Christine Dobson, Presentation for Vera DUCS Legal Access Project, Interviewing Traumatized Children: Important Considerations (Feb. 2, 2010). Many reputable studies have shown that children who have suffered trauma lose the ability to distinguish between true threats and neutral events and to articulate their trauma. They may also have limited capacity to receive new information. For more information on the

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Traumatized children often have extraordinarily high resting heart rates in comparison to nontraumatized children. 17 In particular, early childhood trauma often makes children poor reporters of their stories. 18 As a result of the physical changes in brain development and heightened heart rate, traumatized children typically will have difficulty recounting their experiences and may have developed coping mechanisms, such as silence, to deal with the stress, thus making immigration advocates’ work with these children challenging. Traumatized children may also exhibit increased impulsivity and increased anxiety. They are more easily startled and may have sleep abnormalities. 19

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To the extent possible, immigration advocates should provide a list of accessible mental health care providers and services to child clients and their guardians. Encourage them to use these services. While advocating for these youth will always require taking into account the past trauma they have experienced, it takes time and particular expertise to effectively address the trauma. Immigration advocates are simply not trained to serve as the primary resource for youth on mental health issues. It is often ideal for clients with past trauma to have already gone to counseling before pursuing the immigration relief or to go to counseling in tandem with pursuing their immigration case. The counseling may help establish and document elements of certain immigration relief. For example, for U nonimmigrant status, evidence of counseling or mental health care can help establish that the client suffered substantial harm, a required element of the application. In addition, depending on the immigration relief sought, advocates will need to discuss the past trauma, sometimes in depth. The ability of children and youth who have been traumatized to tell their stories varies greatly. Many traumatized children and youth are unable to construct and share their experience in a way that the immigration system expects,20 while others can provide detailed, accurate accounts of what happened. Mental health services can help a child avoid being re-traumatized by recounting their initial traumatic experience. Alternatively, if the child is unable to recount the details of their trauma or provides inconsistent information, a report from a mental health professional can provide crucial context to the court or USCIS officer about the reasons for the lack of detail or conflicting information. PRACTICE TIP: When a case requires delving into past trauma, it is often helpful to plan out the tasks to be dealt with in the interview, so that the discussion of the trauma is sandwiched between neutral tasks. For example, ease into the interview with small talk, perhaps reviewing documents that the client brought in. Then, discuss the trauma as delicately and sensitively as possible. Change gears if the conversation is too upsetting or stressful and end the appointment again with something more neutral, for example, filling out forms, etc.

way that trauma can affect children in removal proceedings, see M. Aryah Somers, Vera Institute, Children in Immigration Proceedings: Concepts of Capacity and Mental Competency (Nov. 2014). 17 M. Aryah Somers, Vera Institute, Children in Immigration Proceedings: Concepts of Capacity and Mental Competency (Nov. 2014). 18 Id. 19 Id. 20 H. Sadruddin, N. Walter & J. Hidalgo, Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 STAN. L. & POL’Y REV. 379, 396-398 (2005).

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Special immigrant juvenile status (SIJS) applicants and questioning about abuse, neglect, and abandonment. Special immigrant juvenile status (SIJS) is a form of immigration relief that is available to children and youth who are generally under the jurisdiction of a juvenile court or who are in the custody of an entity or individual due to abuse, neglect, or abandonment. See Chapters 3–9. As part of an application for SIJS, the child will generally have to appear at an interview before U.S. Citizenship and Immigration Services (USCIS). The USCIS Policy Manual notes that children are often reluctant to share information with adults with whom they have not formed a trusting relationship, and instructs officers to “exercise careful judgment” in questioning children as part of their SIJS case. 21 If the officer attempts to question the youth about the details of their experience, advocates should remind the officer that these issues were already handled in juvenile court, applying state law, and refer the officer to the USCIS Policy Manual section on SIJS. 22 Furthermore, INA § 287(h), added by the Violence Against Women Act of 2005, provides that: An alien described in section 101(a)(27)(J) who has been battered, abused, neglected or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 101(a)(27)(J)(iii)(I) of such Act. 23 This prohibition is reiterated in the USCIS Policy Manual. 24 Again, if a USCIS officer attempts to do this, advocates should remind the officer that this is prohibited behavior and refer the officer to the statutory provision and Policy Manual. For a greater discussion on this topic see Chapter 4. Avoiding secondary (vicarious) trauma. Advocates should also be aware of their own trauma level. Some of the experiences that advocates learn about from their clients are horrific and traumatizing to the listener, and sometimes advocates become secondarily traumatized from working with victims of trauma. Oftentimes this happens gradually, after working with many, difficult cases. Other times, one particularly traumatizing case will cause the vicarious trauma. Advocates may experience nightmares about their client’s trauma experience. Some advocates may be more vulnerable because of their own direct trauma experiences and should be aware of how this experience may re-traumatize them. In the case of secondary trauma, it is important that advocates seek professional help when needed and take a break from work as necessary. 25 § 2.6

Ethical Issues in Representing Children

The child client. When representing children and youth, attorneys must keep in mind that the child is their client, not a parent or legal guardian. Attorneys owe the same duties of zealous 21

6-USCIS-PM J.3(B). See, e.g., 6-USCIS-PM J.2(D)(5) (“USCIS relies on the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if the child was subjected to abuse, neglect, abandonment, or a similar basis under state law.”). 23 INA § 287(h). 24 6-USCIS-PM J.3(B) (“…[O]fficers may not require or request an SIJ petitioner to contact the person or family members of the person who allegedly abused, neglected, or abandoned the SIJ petitioner.”). 25 For more information on preventing and managing vicarious trauma, see NSW Government, Family & Community Services, Self Care Tool Kit: An Introduction. 22

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advocacy and confidentiality to their child clients as they do to adult clients, and they are ethically obligated to follow the directions of a child client who has the capacity to effectively direct their own representation. 26 Further, consistent with traditional ethical canons, attorneys must represent the child’s expressed interest, even if the attorney believes that the child’s expressed interest may not be consistent with their best interest. 27

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The attorney is also ethically obligated to have undivided loyalty to the child’s interests, even if they conflict with those of other family members, including parents. In interactions with a child client’s family members, the attorney must make clear that the child is their client, they do not represent the family members, and they may be obligated to take actions on behalf of the child client that are adverse to the family’s interests or desires or opposed by the client’s family members. 28 Example: Felipe is your seventeen-year-old client. He comes to your office with his mother. They are both undocumented, and his mother asks you to help them find a form of immigration relief that will help them both. When you meet with him alone, he discloses that his mother has been beating him and he has been living with his aunt for the past month. His aunt wants to be his guardian, and Felipe asks you to help with the process. Felipe qualifies for SIJS, but if he applies for SIJS, you know that his mother will not be able to obtain lawful status through him. See Chapter 3. Because Felipe is your client, not his mother, you are ethically obligated to represent his interests in pursuing SIJS, not his mother’s interest in gaining lawful status for herself. Diminished capacity and very young clients. A child who is extremely young, nonverbal, extremely traumatized, or severely disabled may have diminished capacity to make decisions in their case and direct their own representation. In such cases, attorneys are still obligated to maintain as normal an attorney-client relationship as possible. 29 However, sometimes that is not possible. If the attorney is concerned about the child client’s capacity for decision-making, the child’s parents or other family members should be contacted to determine if a family member can direct representation in the best interest of the child. If that is not possible, it may be appropriate to seek appointment of a child advocate, the equivalent of a guardian ad litem in the immigration context pursuant to Model Rule 1.14(b). 30 Admissions of negative information. Immigration advocates must balance their professional duty of zealous advocacy for their client with their duty of candor to the courts and immigration agencies. Advocates must provide honest information to the government on behalf of their client if asked and must prepare the client for what may come up in the immigration process (e.g., the interview with a USCIS officer or the immigration medical examination) but want to avoid 26

MODEL RULES OF PROF’L CONDUCT r. 1.14 (AM. BAR ASS’N, Discussion Draft 1983). Christopher Nugent & Steven Schulman, Giving Voice to the Vulnerable: On Representing Detained Immigrant and Refugee Children, in Am. Bar Ass’n, Child Clients Are Different: Best Practices for Representing Unaccompanied Minors (2007), 132-133, http://www.americanbar.org/content/dam/aba/migr ated/child/PublicDocuments/legalrep_10.authcheckdam.pdf. 28 MODEL RULES OF PROF’L CONDUCT r. 1.14 (AM. BAR ASS’N, Discussion Draft 1983). 29 MODEL RULES OF PROF’L CONDUCT r. 1.14 (AM. BAR ASS’N, Discussion Draft 1983). 30 For more information on child advocates, see http://www.theyoungcenter.org. 27

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providing unnecessary and damaging information. This role may occasionally conflict with obtaining as much information as possible from child or youth clients.

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To best address this tension, advocates need to develop a good intake form. The intake form should elicit information that is necessary to answer questions on the relevant immigration applications as well as questions that may be raised in an interview or in court. The client will need to be prepared to answer these questions honestly, while avoiding excessive information that is detrimental to their application for relief. Often, an advocate’s ability to obtain the right amount of information is best facilitated by explaining the law and consequences as clearly and understandably as possible at the beginning of representation. This will enable the child or youth to understand the consequences of either failing to disclose, or disclosing, information. Advocates should also explain where certain legal admissions and questions come up in the immigration process (e.g., the USCIS interview, immigration court merits hearing, or the immigration medical examination). Advocates should thoroughly prepare their clients for these steps in order to avoid surprises or unexpected admissions at critical stages. Example: Your sixteen-year-old client Narissa asks you if you want to hear about all of the “bad stuff” that she’s done. You may want to explain to her first what things you need to know about, such as arrests and convictions. You may want to describe what other types of conduct will impact her immigration case and how they might impact it, such as that undisclosed violent conduct in the home country could make it more difficult to get relief. You may also want to remind her that you will keep the information confidential but that you cannot lie to the courts or agencies. By giving her information at the outset, you can help Narissa decide what information to tell you and what to keep to herself. Advocates should also conduct a background check—i.e., FBI, state background check, and Freedom of Information Act (FOIA) requests (discussed in Chapters 8 and 9) to obtain information about what the government knows about the client. Again, when working with a child who was detained at some point, advocates should thoroughly gather as much information as the child can possibly remember about what they disclosed to authorities while in detention. Finally, if a client makes a disclosure that clearly shows that they are ineligible for the benefit sought, the advocate must inform the client of that and decline to go forward with the case. Admissions of drug use. Drug use is prevalent among teenagers, especially teenagers who have suffered trauma and may be using drugs to self-medicate. At some point during your representation of youth clients, you will have to think through how to address whether your clients have used and/or currently use drugs. Most immigration forms ask about current drug abuse or addiction. The government also requires a medical exam before an individual obtains a green card. During these examinations, blood tests are taken and many drugs may show up in the blood even some time after use. Advocates should explain the law to their clients on this issue (see § 5.2 which addresses the drug abuse or drug addiction ground of inadmissibility), explain the process including the medical examinations and the questions that the civil surgeon and USCIS officer may ask (described in Chapter 8), and explain the consequences of admissions to drug use (see Chapter 5). In some cases, it will be obvious that the child or youth has a drug problem (e.g., because of their placement in a rehabilitation program, etc.). In these cases, depending on the type of relief sought, a waiver may be available (see § 5.3 which addresses this issue).

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PART II: SPECIAL IMMIGRANT JUVENILE STATUS FOR CHILDREN AND YOUTH UNDER JUVENILE COURT JURISDICTION CHAPTER 3 1 INTRODUCTION AND OVERVIEW TO SPECIAL IMMIGRANT JUVENILE STATUS This chapter includes: § 3.1 § 3.2

§ 3.3

§ 3.10

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§ 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9

Lawful Immigration Status: What Is It and Why Is It Important? The Stories of Julia, Martin, Eduardo, and Ramon ..................................................... 46 What Is Special Immigrant Juvenile Status and Who Is Eligible to Become a Permanent Resident Through Special Immigrant Juvenile Status? .................................................................................................................. 47 What Are the Benefits of Applying for Special Immigrant Juvenile Status? .................................................................................................... 57 What Are the Risks of Applying? ........................................................................ 58 Who Should Apply? ............................................................................................. 59 What Is the Application Procedure? ..................................................................... 59 Expeditious Adjudication ..................................................................................... 62 Talking with the Child Applicant and Child’s Attorney About SIJS ................... 62 Natural Parents, or Prior Adoptive Parents, and Maybe Siblings, Cannot Benefit Through Grant of SIJS to Child .................................................. 62 Children in Immigration Custody......................................................................... 63

Special Immigrant Juvenile Status (SIJS) is a federal law that helps certain undocumented children and youth in the state juvenile system obtain lawful immigration status. This chapter provides basic information about SIJS, and directs you to subsequent chapters that discuss different aspects of SIJS in more detail. For many child welfare or probation workers seeking to understand the basics of SIJS, this chapter will provide all the information you need. Chapters 4–9 are designed to answer more specific questions on the nuances of eligibility, risks and benefits of applying, general background on state juvenile court systems and how immigration interfaces with them, and the application process for both affirmative and defensive cases. In particular, Chapters 8 and 9 provide information on both the affirmative and defensive application processes and how to complete the forms. The appendices to this manual contain many useful items for SIJS cases, such as a sample court order and other papers that you can present to a juvenile court judge, a handout in English and 1

Portions of this chapter were reprinted with permission from Katherine Brady & David Thronson, Immigration Issues Representing Children Who Are Not United States Citizens, in CHILD WELFARE LAW AND PRACTICE MANUAL: REPRESENTING CHILDREN, PARENTS AND STATE AGENCIES IN ABUSE, NEGLECT AND DEPENDENCY CASES (Nat’l Ass’n of Counsel for Children 2d ed. 2004).

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Spanish that you can use to discuss the risks and benefits of this program with the child, a copy of the law, regulations, USCIS policy guidance, 2 and sample completed copies of application forms. See Appendices. Note that it is easy to obtain the immigration forms you will need for the application for Special Immigrant Juvenile Status from the USCIS website at www.uscis.gov, by calling a toll-free number, or from an immigration practitioner. See instructions in Chapter 8. § 3.1

Lawful Immigration Status: What Is It and Why Is It Important? The Stories of Julia, Martin, Eduardo, and Ramon

The Special Immigrant Juvenile Status law permits undocumented children who have come under the jurisdiction of a juvenile court and meet other requirements to become lawful permanent residents. Examples: The stories of Julia, Martin, Eduardo, and Ramon. When “Julia” was fourteen years old, she became a dependent of a juvenile court due to her parents’ abuse. The court terminated her father’s parental rights and provided reunification services to Julia’s mother. Her mother eventually successfully completed services and reunified with Julia (in other words, Julia was formally returned to her mother’s custody). Julia recovered from her abuse and adjusted well to life. She got good grades and was accepted to a state university.

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However, just before Julia’s eighteenth birthday and before completion of reunification, the county social workers discovered that she had been born in Mexico and was brought into the United States illegally. Although Julia spoke English perfectly and seemed very “American,” she was an undocumented immigrant. Because of this, it looked like everything Julia had worked for would be destroyed. As an undocumented person, at that time Julia was not eligible to pay instate tuition and so could not afford college. Further, she could not work legally, and so faced a future of being exploited in the underground economy or working with fake papers and hoping she would not be discovered. Finally, if immigration officials ever located her, they could deport her back to Mexico, where she had no one. Luckily, one of her social workers had heard of SIJS. Although right before Julia’s eighteenth birthday was a late date to apply and she was in reunification services with her mother, county social workers and local immigration attorneys working together were able to successfully complete the SIJS application process before Julia’s dependency case was terminated, based on a claim of abuse by her father. Julia became a lawful permanent resident through SIJS. The end of the story is that the real “Julia” went on to a successful college career, became an accountant, and has made a great life for herself!

2

In late 2016, USCIS updated sections of its Policy Manual, available online at https://www.uscis.gov/policymanual/HTML/PolicyManual.html, on SIJS and SIJS-based adjustment of status (see Volume 6, Part J for information on SIJS and Volume 7, Part F, Chapter 7 for information on SIJS-based adjustment). Per USCIS, this guidance supersedes all prior policy memoranda except for USCIS, Policy Memorandum: Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement (Jun. 25, 2015), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0624_PerezOlano_Settlement_Agreement_PM_Effective.pdf. However, we continue to include the prior policy memoranda on SIJS in Appendix D of this manual for their historical import.

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“Martin” was placed in juvenile delinquency proceedings when he was arrested after a school fight. The juvenile court ordered him placed home on probation, with a probation officer having regular check-ins with Martin. However, the probation department realized that there was an issue with Martin’s immigration status. Martin’s public defender had heard of Special Immigrant Juvenile Status and, after learning that Martin’s father had abandoned his family many years ago and had never provided support for Martin, realized that Martin might be eligible for SIJS. Martin’s public defender successfully requested that the juvenile court make the findings necessary to allow Martin to apply for SIJS. Martin is now a lawful permanent resident, which has contributed greatly to his rehabilitation by allowing him to plan for future education and employment.

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“Eduardo” came to the United States at the age of sixteen, traveling with a guide, or “coyote.” He was apprehended at the border, designated as an “unaccompanied alien child,” and placed in an Office of Refugee Resettlement (ORR) immigration detention facility in Harlingen, Texas. 3 Eduardo was sent to the United States by his abusive father who wanted Eduardo to find work and send money home to the family. Eduardo had no plan for where he would live or how he would find work. He was later released from ORR custody to a maternal aunt who resides in San Jose, California. After meeting with a local immigration non-profit in San Jose, Eduardo was identified as being SIJS-eligible based on the extreme physical and emotional abuse he suffered from his father, and his mother’s failure to protect him. Eduardo was also in need of an adult guardian in the United States since he was sixteen years old and residing in the United States without a parent. Eduardo’s attorney helped him file a petition to have his aunt appointed to be his guardian, and also to request that the court make the eligibility findings for SIJS. After a successful petition in probate (guardianship) court and a positive outcome from his SIJS application, Eduardo is safely residing in his maternal aunt’s care and well on his way to becoming a lawful permanent resident. After being assaulted and harassed by gang members in his neighborhood for months, “Ramon” fled Guatemala at the age of fourteen to reunite with his mother who resides in Los Angeles, California. Ramon’s father had physically abused both his mother and Ramon when he was a child. After his mother escaped to the United States, Ramon lived with his maternal grandparents. His father visited infrequently, usually while intoxicated, and never provided Ramon with emotional or financial support. Ramon has not seen his mother since he was five years old but successfully reunites with her after being apprehended by border patrol and placed in an immigration detention center for children. Ramon’s mother would like to request sole legal and physical custody of Ramon to protect him from any future abuse by his father. If a family court grants Ramon’s mother’s custody petition and also makes the eligibility findings for SIJS, Ramon will be SIJS-eligible. § 3.2 What Is Special Immigrant Juvenile Status and Who Is Eligible to Become a Permanent Resident Through Special Immigrant Juvenile Status? Special Immigrant Juvenile Status (SIJS) is a federal law that assists certain undocumented children in obtaining lawful permanent residency. The statutory basis for Special Immigrant 3

ORR is the federal agency responsible for detaining children who are apprehended by immigration agents and classified as “unaccompanied.” For further information, see Chapter 18.

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Juvenile Status can be found in the Immigration and Nationality Act (INA) at § 203(b)(4), which allocates a percentage of immigrant visas to individuals considered “special immigrants,” and § 101(a)(27)(J), which defines Special Immigrant Juveniles. 4 The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, enacted on December 23, 2008, clarified and expanded the definition of a Special Immigrant Juvenile and supersedes the previous statutory definition. Pursuant to the pre-TVPRA statute, federal regulations were promulgated and can be found at 8 CFR § 204.11. These regulations implement the federal statute, but have not been updated following significant changes to the SIJS statute made by the TVPRA. In 2011, updated regulations were proposed and public comment was received; however, at the time of this writing, revised regulations have not been finalized. To the extent that the federal regulations conflict with the current statute, they are superseded by the statute. Nonetheless, pending issuance of the revised regulations, the current regulations remain in effect to the extent that they do not conflict with the statute. In the absence of updated regulations, U.S. Citizenship & Immigration Services (USCIS, the agency that adjudicates applications for SIJS) issued SIJS-related portions of its Policy Manual on October 26, 2016. This guidance, contained in Volumes 6 and 7 of the USCIS Policy Manual (USCIS-PM) is more comprehensive than any prior guidance issued by USCIS on SIJS, and is crucial reading for anyone representing children applying for SIJS. However, the Policy Manual also contains guidance that in some places conflicts with or goes beyond the statutory or regulatory requirements for SIJS. 5 Because of this, it is important to read it in conjunction with the statute and regulations.

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Under the current law, persons who are declared dependent upon a juvenile court or committed to the custody of agencies or departments of a state or to court-appointed individuals or entities, whose “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” and whose return to their country of nationality or last habitual residence is not in their best interest, may be able to obtain Special Immigrant Juvenile Status and, based on that, apply for lawful permanent residency (a green card). 6 To do this, they must submit two applications and meet two sets of requirements: 1. They must apply for Special Immigrant Juvenile Status, and 2. Based on the Special Immigrant Juvenile petition, they also must apply for lawful permanent residency (a green card). In immigration terminology, applying for permanent residency is called applying for adjustment of status to that of a lawful permanent resident. Ideally, the two applications are filed at the same time in an affirmative application. Sometimes, however, individuals granted Special Immigrant Juvenile Status must wait to apply for permanent residency, because visas for Special Immigrant Juveniles are subject to an annual quota based on

4

INA § 101(a)(27)(J) was added by § 153 of the Immigration Act of 1990 (IA90) and amended most recently by the TVPRA in 2008. 5 For example, the TVPRA requires USCIS to adjudicate SIJS petitions expeditiously, within 180 days of the date on which the petition is filed. TVPRA, P.L. 110-457 at § 235(d)(2). However, the USCIS Policy Manual states that “USCIS generally adjudicates SIJ petitions within 180 days,” without acknowledging that this is a legal requirement. See 6-USCIS-PM J.4(B). 6 INA § 101(a)(27)(J); 8 USC § 1101(a)(27)(J).

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category 7 and country of origin. For the first time ever, in recent years the fourth preference category has been oversubscribed for immigrants from El Salvador, Guatemala, Honduras, and Mexico. This means that sometimes Special Immigrant Juveniles from these countries must wait until a visa is available before they can submit their application for permanent residency. In a defensive application (one in which the child is in removal (deportation) proceedings), the SIJS petition is always submitted first and the adjustment of status application is submitted later. A.

Petition for special immigrant juvenile status (SIJS)

A federal statute (law) provides that an applicant must meet the following criteria to qualify for SIJS. 8 1. Juvenile court proceedings

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The applicant must be a dependent of the juvenile court or the court must have legally committed the child to, or placed them under the custody of, an agency or department of a state, or an individual or entity appointed by a state or juvenile court. A juvenile court is defined as any “court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” 9 The name of the court is not determinant; rather the role of the court is what matters for purposes of SIJS eligibility. The broad definition of juvenile court and the jurisdiction it may have under federal law includes children in dependency (child welfare), guardianship, family court/custody as well as delinquency (alleged violations of the law by youth) proceedings. It also includes children who enter into dependency or are committed to the custody of individuals and are later adopted. Examples: • •

•

Dependency: Samy is a dependent of a juvenile court and placed in foster care due to neglect by his parents. Following his parents’ failure to comply with reunification services, Samy’s parents’ parental rights are terminated. Samy is eligible for SIJS. Guardianship: Miguel is living with a paternal uncle in New York after fleeing gang violence and parental abuse and neglect in his home country of Honduras. A state court appointed Miguel’s uncle to be his guardian, and also found that reunification with Miguel’s parents was not possible due to physical abuse and neglect and that it is not in his best interest to return to Honduras. Miguel is eligible for SIJS. Delinquency: Erika was brought to the United States at the age of two. As a teenager, she gets arrested for shoplifting, is charged in delinquency court and committed to the care, custody, and control of the probation department. She is ordered home on probation and resides with her father. Her mother is a drug addict and abandoned the family when Erika was seven years old. An advocate can argue that Erika is eligible for SIJS based on her mother’s neglect and abandonment and the fact that it would not be in Erika’s best interest to be returned to her home country of Mexico, where she has no one to provide care for her and where she has no other support system.

7

Visas for Special Immigrant Juveniles fall under the employment-based fourth preference category. See Chapter 5 for more on SIJS-based adjustment of status. 8 See INA § 101(a)(27)(J). 9 See 8 CFR § 204.11(a).

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•

Family/custody: Rosa is residing safely with her mother in Los Angeles after fleeing Guatemala. In Guatemala, her father had abused her when she was young, and then abandoned the family. Rosa’s mother seeks legal and physical custody of her in a family court in Los Angeles so that she can have full custodial rights and protect her daughter from any further harm. If the family court also finds that reunification with Rosa’s father is not viable due to abuse and abandonment and that it is not in Rosa’s best interest to return to Guatemala, she will then be eligible to apply for SIJS.

All four of these children may be eligible for SIJS if they can meet all the other requirements. For further discussion of dependency, delinquency, guardianship, custody, and adoption and their intersection with SIJS, see Chapter 4. For general background of these systems, consult Chapter 7. 2. The juvenile court must find that reunification with one or both parents is not viable For the child to qualify for SIJS, a judge must issue an order finding that the child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. 10

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A finding for SIJS purposes that reunification is not viable does not require formal termination of parental rights or a determination that reunification will never be possible. While short separations from parents likely would not qualify, the possibility of future reunification need not deter a finding that reunification presently is not viable as long as there is a significant separation. 11 The “one or both parents” language also signifies that the child need not be separated from both parents to be eligible for SIJS. In other words, the statute provides SIJS eligibility on the basis of the non-viability of reunification with one parent due to abuse, neglect, or abandonment, even while the child remains in the care of the other parent or while the court is actively trying to reunite the child with the other parent. Advocates should be aware, however, that the parent with whom the child remains or with whom they eventually reunify will not be eligible for legal status through the child at any point in the future, even after the child becomes a U.S. citizen. 12 There is very little legislative history on the meaning of this language and there has been some resistance from state courts to grant these “one-parent” SIJS claims. However, the plain language of the statute, various state court decisions, as well as USCIS’s official interpretation and implementation of the statute support the viability of these claims. Most significantly, the new USCIS Policy Manual guidance on SIJS explicitly recognizes that children can be eligible for

10

INA § 101(a)(27)(J); see also Manoj Govindaiah, Deborah Lee, Angela Morrison, & David Thronson, Update on Legal Relief Options for Unaccompanied Children Following the Enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, at 3-4, www.aila.org (AILA Doc. No. 09021830) (posted Feb. 19, 2009) [hereinafter TVPRA Practice Advisory]. 11 The USCIS Policy Manual (USCIS-PM) states that lack of viable reunification generally means the child cannot reunify with their parent(s) for the duration of the juvenile court jurisdiction, until the child ages out. See 6 USCIS-PM J.2(D)(2). 12 See INA § 101(a)(27)(J)(iii)(II).

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SIJS based on their inability to reunify with only one parent. 13 See Chapter 4 for further discussion of “one-parent” SIJS cases. NOTE: Expansion of the scope of SIJS beyond foster care. Advocates should note that the former SIJS statute required an applicant to have been “deemed eligible for long-term foster care” by the court, which in turn was interpreted to require that family reunification with both parents must no longer be a viable option. The TVPRA eliminated this requirement, which had been a source of confusion for both juvenile courts and USCIS. In essence, the TVPRA clarified the terminology in the statute and made clear that the child need not be in actual state foster care to be SIJS-eligible. 14 Example: Sara lived with both her father and mother. Sara was abused by her father and her mother failed to protect her from his abuse. Sara’s situation was reported to local child welfare authorities. Sara’s mother left Sara’s father. Subsequently, the juvenile court provided reunification services with Sara’s mother. For SIJS eligibility, the juvenile court only needs to find that family reunification with one parent—here, Sara’s father—is not viable and therefore, the court can enter SIJS findings even while reunification services are provided to Sara’s mother. Sara would be eligible for SIJS.

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While this example demonstrates the expansion of who may be eligible for SIJS while in dependency (child welfare) proceedings, there are additional avenues for children to come under the jurisdiction of a juvenile court and be eligible for SIJS. They include delinquency, guardianship, family/custody, and adoption proceedings. See examples in the prior section. For further discussion, see Chapter 4. 3. Due to abuse, neglect, abandonment, or similar basis under state law The court order must make it clear that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, as opposed to making the SIJS findings solely for the purpose of getting the child lawful immigration status or for some other reason. 15 Abuse, neglect, and abandonment are defined under the relevant state law and do not have to take place within the United States for the child to be eligible for SIJS. The relevant question for SIJS eligibility is whether a judge, under the applicable law of the state, has found abuse, neglect, abandonment, or some other, similar finding. While this language prohibits establishing SIJS eligibility via juvenile court jurisdiction for children not otherwise in need, it does not require that formal charges of abuse, neglect, or abandonment be levied against parents. For example, a child for whom the court appoints a guardian can qualify without a separate proceeding against the parents alleging abuse, neglect, or abandonment. Under changes by the TVPRA, the SIJS statute now allows for SIJS eligibility based on findings under state law “similar” to abuse, neglect, or abandonment. For example, some states use different legal terms, other than abuse and neglect, to describe the basis for refusing to reunify a 13

See 6 USCIS-PM J.2(D)(1). See 6 USCIS-PM J.2(D)(2). 15 See INA § 101(a)(27)(J)(i). 14

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child with their parents. Other courts, such as delinquency, may not normally enter abuse and neglect findings, but instead other findings for which they have jurisdiction. The TVPRA broadened the eligibility requirements such that these state law findings based on slightly different vocabulary may still meet the SIJS statutory requirements. However, the applicant must still establish that such a basis is in fact similar to a finding of abuse, neglect, or abandonment. To avoid this extra step, if the child was subject to juvenile court jurisdiction under some other legal term it is best to ask the judge to also include in the SIJS order (discussed below) one of the designated statutory terms: “abuse, neglect, or abandonment.” The judge should use the term whose plain meaning reflects what actually happened to the child.

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The juvenile court judge’s order should specifically identify whether abuse, neglect, or abandonment, or a similar basis in law, was the foundation for the determination that reunification with one or both parents was not viable and provide facts to support the finding. It is not sufficient for the order to simply track the language of the SIJS statute. For example, the judge’s order could state, “The minor’s reunification with the mother is not viable based on physical abuse he suffered in the form of weekly beatings which left bruises on the minor’s body. The minor’s reunification is further not viable based on emotional abuse he endured, with his mother calling him ‘good for nothing’ and ‘a burden’ on a regular basis” or “The above orders and findings were made due to abandonment and neglect of the minor by the father, in that the father failed to provide support for the child and has not contacted the child in seven years. During this time, the minor has attempted to contact his father to request support, but has been told that his father ‘does not care’ about him and that the minor should ‘go to hell.’” See sample judge’s order in Appendix J. According to USCIS guidance, the judge’s order, or other documents submitted, must provide a basic statement of the facts that supported the order, sufficient to establish that there was a factual basis for the court’s findings. 16 For further discussion, see § 4.5. PRACTICE TIP: Advocates who demonstrate that juvenile court proceedings are protected by state privacy/confidentiality laws should avoid giving USCIS any documents from the state court proceedings. 4. The court or an administrative agency must determine that it is not in the child’s best interest to be returned to their home country Generally, the juvenile court should include in its SIJS order (discussed below) that it is not in the child’s best interest to be returned to their country of nationality or last habitual residence. Both the downsides of the child returning to their home country and the upsides of remaining in the United States are relevant. The evidence for this finding may range from a foreign social service agency’s home study determining that a grandparent’s home is not appropriate, to simply interviewing the child to learn that there are no known appropriate family members in the home country or that no one is available to protect the child from harm in the home country. Other factors may include: family and friend support systems in the United States, the child’s emotional and physical well-being, and access to medical and educational resources that the child may require. If the juvenile court does not include this language in its SIJS order, the applicant must 16

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6 USCIS-PM J.3(A)(3).

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submit evidence that this finding has been made in another administrative or judicial proceeding. For further discussion, see § 4.6. 5. The juvenile court judge should sign an order making the above findings In order for a child to qualify for SIJS, the juvenile court judge must sign a special order, usually prepared by the child’s attorney or other advocate, stating that all the findings required for SIJS have been made. The child will submit this order to USCIS as part of the child’s petition for Special Immigrant Juvenile Status. For more on the SIJS application process, see Chapters 8 and 9. A sample judge’s order appears in Appendix J. PRACTICE TIP: Advocates should request input from SIJS experts before drafting the SIJS order. In recent years, USCIS has exercised increasing scrutiny of the SIJS state court order, and USCIS’s concerns with the orders change frequently. Accordingly, before submitting a proposed SIJS order to the juvenile court judge, get input from SIJS experts about the content of the order, as it will need to be acceptable not only to the juvenile court judge, but also to USCIS. 6. Consent to the grant of SIJS and specific consent There are two requirements of consent under the SIJS law: (1) consent to the grant of SIJS in any case; and (2) specific consent for a juvenile court determination on a child’s custody or placement status if the child is in federal custody during removal (deportation) proceedings.

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The first type of consent requires that the Secretary of Homeland Security, through USCIS, consent to the grant of Special Immigrant Juvenile Status. 17 According to USCIS, this consent is an acknowledgement that SIJS was not “sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment.” 18 USCIS conflates consent with the act of approving an SIJS petition and, therefore, there is no separate consent application that needs to be made. An approval of an SIJS application itself is evidence of this consent. 19 The second type of consent is more rare. It applies only to children in federal custody who seek a juvenile court determination of their custody status or placement. Children in federal custody who are deemed “unaccompanied” will be placed in the custody of the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) Division of Children’s Services (DCS) (hereinafter referred to as ORR). As such, children in federal custody seeking a juvenile court determination that changes their custody or placement status must first obtain “specific consent” from ORR. This is a notable change. Prior to the TVPRA, the specific consent had to be obtained from the Department of Homeland Security (DHS), which had policies and practices toward unaccompanied minors that were confusing, inconsistent, and detrimental for these youth. 20 For further discussion, see § 4.7.

17

INA § 101(a)(27)(J)(iii). See H.R. Rep. No. 105-405, at 130 (1997); 6 USCIS-PM J.2(D)(5). 19 6 USCIS-PM J.4(E)(1). 20 TVPRA Practice Advisory, supra note 10, at 4. 18

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7. Other requirements: Applicant must be under age twenty-one at time of filing with USCIS, juvenile court should retain jurisdiction (until further guidance is provided), and child should be unmarried a. Under the age of twenty-one Any person under the age of twenty-one who meets the other requirements can apply for SIJS. 21 Historically, this meant that applicants needed to complete the entire immigration adjudication process prior to turning twenty-one. However, under the TVPRA, as long as the applicant is a “child” (defined as an unmarried person less than twenty-one years of age) on the date the SIJS petition is properly filed with USCIS, USCIS cannot deny SIJS regardless of the applicant’s age at the time of the petition’s adjudication. 22 In other words, so long as the applicant is a “child” according to the immigration laws at the time of proper filing, the applicant’s age will be locked in for purposes of the SIJS petition.

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Note on applicants who are eighteen or older. State laws generally require that a child be under age eighteen at the time they are first under the jurisdiction of the juvenile court. State laws vary as to how long a child can remain under juvenile court jurisdiction once they have entered the system. Some states, for example, end dependency at age eighteen, others extend it to age nineteen (especially if the child must complete high school), and others potentially can extend dependency to age twenty-one or beyond. Similarly, different states have different laws on how old a young person must be to enter or stay under juvenile court jurisdiction in a delinquency case. In the guardianship and family law context, most state courts can only take jurisdiction of a minor who is under the age of eighteen, although there are some notable exceptions (for example, in New York and California, a guardian may be appointed past the age of eighteen). Under the regulations, any person under twenty-one who meets the SIJS requirements can apply for SIJS. 23 Thus, it is possible that a nineteen-year-old could become a juvenile court dependent for the first time at age nineteen and could file an SIJS petition and have it approved—so long as they meet the other SIJS requirements. In reality, however, this would be very difficult to achieve. Most jurisdictions will not declare a youth dependent, appoint them a guardian, or make a custody determination once they are eighteen or older. This misalignment between federal and state law creates a class of youth, ages eighteen to twenty-one, who are otherwise eligible for SIJS under federal law, but are effectively barred from applying for this status because no state court can take jurisdiction of them and make the SIJS findings. In fact, advocates report significant difficulties in obtaining juvenile court jurisdiction even for older children who are not yet eighteen but who are close to their eighteenth birthdays. Moreover, under a new interpretation of the SIJS statute, USCIS may also deny a case of a youth applying for SIJS who received the SIJS findings after the age of eighteen. 24

21

8 CFR § 204.11(c)(1). Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008), § 235(d)(6); see also 6 USCIS-PM J.2(C) (“USCIS considers the petitioner’s age at the time the SIJ petition is filed when determining whether the petitioner has met the age requirement.”). 23 8 CFR § 204.11(c)(1). 24 Prior to 2018, cases in which the youth was over eighteen when the SIJS findings were made were routinely approved by USCIS. In April of 2018, however, the New York Times published an article 22

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b. Continuing juvenile court jurisdiction until the entire immigration process is complete The SIJS regulations provide that the person applying for Special Immigrant Juvenile Status must remain under juvenile court jurisdiction throughout the entire immigration process—that is, until USCIS approves the petition for SIJS and the application for adjustment to lawful permanent residency. 25 This provision predates changes enacted by the TVPRA, and at this time it is unclear whether this requirement will continue to exist. 26 When this requirement is read in tandem with the TVPRA’s age-out protection (described above), however, it appears that this continuing jurisdiction requirement is eliminated altogether for children whose juvenile court cases close due to age. If USCIS cannot deny SIJS to any person on account of “age,” as long as they were under the age of twenty-one when the SIJS petition was filed, USCIS cannot then refuse to approve an SIJS petition or revoke an approved SIJS petition simply because the child’s juvenile court case has been closed if this closure is because of “age.” This issue comes into play, for example, under state law where dependency, delinquency, guardianship, family, or other juvenile court jurisdiction ends when a child turns eighteen years old. For these reasons, advocates believe that this regulation needs to be changed to reflect the age-out protections of the TVPRA.

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While it seems clear that the statute now intends to protect a child from aging out of SIJS eligibility, until USCIS provides further guidance advocates should proceed with caution in this area. Some juvenile court judges will want to, or must under state law, terminate juvenile court jurisdiction when the child reaches a certain age. Juvenile court jurisdiction may also end by operation of law when a child turns eighteen. It therefore remains best practice to proceed as expeditiously as possible in pursuing Special Immigrant Juvenile Status to complete processing describing a “rule change” that was resulting in mass denials of post-age-eighteen SIJS cases in New York. Liz Robbins, A Rule is Changed for Young Immigrants, and Green Card Hopes Fade, N.Y. TIMES, Apr. 17, 2018, https://www.nytimes.com/2018/04/18/nyregion/special-immigrant-juvenile-status-trump.html. This change occurred without USCIS issuing any public announcement about a change in policy or otherwise announcing a changed interpretation of the SIJS eligibility requirements. Soon thereafter, Politico reported on a “clarification” by the USCIS chief counsel’s office—never announced publicly—“which called in February for the agency to reject pending applications in cases where applicants could not be returned to the custody of a parent.” Ted Hesson, USCIS Explains Juvenile Visa Denials, POLITICO, Apr. 25, 2018, https://www.politico.com/newsletters/morning-shift/2018/04/25/travel-ban-at-scotus-182935. Since most courts cannot place a child back into the custody of their parent once the child reaches the age of majority, according to the new USCIS interpretation, those state courts “do not have power and authority to make the reunification findings for purposes of SIJ eligibility.” Id. At the time of writing, class action lawsuits have been filed in New York and California challenging USCIS’s denial of cases based on this unannounced policy change. M. et al v. Nielsen et al, No. 1:18-cv-05068 (S.D.N.Y. filed June 7, 2018); J.L. et al v. Cissna et al, No. 5:18-cv-04914 (N.D. Cal. filed Aug. 14, 2018). However, in the meantime, it seems clear that USCIS intends to deny many cases in which the SIJS findings were obtained after the youth turned eighteen, though this may depend to some extent on state law. See further information in Chapter 4. 25 8 CFR § 204.11(c)(5); 8 CFR § 205.1(a)(3)(iv)(C). 26 The proposed SIJS regulations, which have not been finalized, provide that an individual is eligible for SIJS classification so long as the dependency, commitment, or custody underlying the state court order is in effect at the time of filing and continues through the time of adjudication, “unless the age of the petitioner prevents such continuation.” Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011).

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while the child continues to be under court jurisdiction. If the court is considering termination of jurisdiction, advocates should fight to keep the child under juvenile court jurisdiction until the immigration process is complete. At the same time, immigration attorneys using the expeditious adjudication requirement can try to persuade USCIS to speed up (“expedite”) the process if the child is about to age out of the juvenile court system. 27 If continuing to retain jurisdiction in a case is not possible, advocates are best advised to obtain specific language in the juvenile court order terminating jurisdiction of the case that states that the case is being closed due to age. Continuing existence of this regulation creates a difficult situation and needlessly costs state systems time and energy by requiring children to stay in the juvenile court system longer than they otherwise would. We hope that better rules will appear in the future as a result of the TVPRA’s age-out protection. Advocates should keep abreast of developments. Example: Julia entered the child welfare system when she was fourteen years old. Because social workers had not heard about SIJS earlier and did not know about her immigration situation, Julia did not apply for SIJS until she was seventeen. The juvenile court retained jurisdiction over Julia until she was twenty and USCIS granted her SIJS and adjustment of status applications.

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Example: Mario entered the delinquency system when he was fifteen years old and resided in a foster care group home for years. Mario did not apply for SIJS until he was seventeen years old. The juvenile court terminated jurisdiction on Mario’s nineteenth birthday due to his age and the fact that he had completed probation. Mario should remain eligible for SIJS because he was under twenty-one on the date he applied for SIJS and a denial based on a lack of continuing juvenile court jurisdiction would be “based on age”—something the TVPRA prohibits. Note: if the court had terminated jurisdiction due to completion of probation and not because of age, Mario would be in jeopardy of having his SIJS application denied even if he filed it before the age of twenty-one. Example: Thelma arrived to the United States at the age of seventeen-and-a-half. She had been abandoned by both parents as a young child and was raised by a grandmother who was no longer able to care for her. She reunified with a loving maternal aunt who petitioned the court to be appointed her guardian. By the time Thelma’s hearing date in guardianship court came and her aunt was appointed her guardian, she was weeks away from her eighteenth birthday, when the court’s jurisdiction ends by operation of law. Thelma should remain eligible for SIJS because she was under twenty-one on the date she applied for SIJS and a denial based on a lack of continuing juvenile court jurisdiction would be “based on age,” which is prohibited by the TVPRA. c. The applicant cannot be married Under USCIS regulations, applicants for SIJS must remain unmarried until the entire immigration process is complete and USCIS grants permanent residency. An applicant’s being divorced or having their own children does not bar SIJS eligibility. 27

Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008), § 235(d)(2).

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B.

Application for permanent resident status

Besides meeting the above requirements for SIJS, the children must fulfill other requirements that apply to all persons who seek to become lawful permanent residents of the United States (green card holders). Applicants generally might have a difficult time gaining permanent residency or may even be barred from doing so if they have a record of involvement with drugs, prostitution, or other crimes, have engaged in alien smuggling, were previously deported, or have certain other “bad marks” against them. These children need advice from expert immigration counsel before applying. They may well win their case—but they need to get good advice to make sure of that before they apply. Immigration lawyers should note that children seeking SIJS-based adjustment of status are automatically exempt from many grounds of inadmissibility. Also, special waivers of inadmissibility are available to Special Immigrant Juveniles that do not require a qualifying relative. See discussion at § 5.3. More detailed information on all eligibility requirements for SIJS and adjustment of status is provided in Chapters 4 and 5. The following types of cases, discussed in Chapters 4 and 5, deserve special attention and expert advice:

• • • • •

Children who soon will turn eighteen, or are over eighteen Children who soon will be released from juvenile court jurisdiction Children who currently are in removal (deportation) proceedings Children who are or have been in juvenile delinquency proceedings or have a juvenile or adult criminal record Children who have encountered law enforcement even if they have never been formally arrested and/or placed in delinquency proceedings Children who have engaged in drug use or drug dealing Children who may be in a gang database or flagged as a gang member or associate Children who have been previously deported or removed Children who have been involved in alien smuggling § 3.3

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• • • •

What Are the Benefits of Applying for Special Immigrant Juvenile Status?

The most important benefit of applying for SIJS is obtaining lawful permanent resident status—a green card. Special Immigrant Juvenile Status might be the only route for an undocumented child to gain lawful permanent immigration status in the United States. (But see Part III of this manual for other important and, in some instances, more viable ways that some children can obtain lawful immigration status.) A lawful permanent resident has the right to live and work permanently in the United States and to travel in and out of the country. While access to public benefits (e.g., welfare, MediCare) for permanent residents has been drastically curtailed since 1996, permanent residents are eligible for some benefits initially and more as time goes on. In particular, youth may be eligible for Title IV-

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E funds and federal financial aid to go to college. Additionally, after five years (and in some cases sooner) permanent residents can apply for U.S. citizenship, which provides additional benefits such as the ability to vote and a more secure immigration status. Lawful permanent resident status is permanent—a Special Immigrant Juvenile who obtains permanent residency will keep it after they are no longer under juvenile court jurisdiction. They remain a permanent resident for their entire life (unless they choose to become a U.S. citizen). The only reason someone’s permanent residency might end would be if the person became deportable for some reason, such as violation of certain laws and convictions as an adult of certain criminal offenses. The above benefits come with the green card, but once applicants have submitted the adjustment of status application, they may be granted employment authorization until their case is decided. Counties also benefit when a child gains SIJS because they may be able to access federal foster care matching funds, which they cannot access for undocumented children. See Chapter 6 for a further discussion of these benefits. § 3.4

What Are the Risks of Applying?

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The greatest risk to the child is that, if an affirmative application is turned down, Immigration and Customs Enforcement (ICE) might attempt to remove (deport) the child from the United States. When a child files an affirmative petition for SIJS, the child is alerting immigration officials in USCIS to the fact that they are present in the United States unlawfully. Since these petitions are not confidential, if the SIJS petition and/or the adjustment of status application is denied, under a new USCIS policy memorandum, USCIS will issue the child a Notice to Appear (NTA), placing the child in removal proceedings for deportation. 28 It is crucial to make sure that the child is likely to gain SIJS and adjustment of status before submitting an SIJS packet to USCIS so that you do not unintentionally cause the child to be deported. Note that children who are not eligible for SIJS may still be eligible to get lawful status in some other way, such as through U nonimmigrant status (a visa for victims of crime) or through an abusive U.S. citizen or permanent resident parent under Violence Against Women Act (“VAWA”) provisions, even if the child does not come or remain under juvenile court jurisdiction. See Chapters 10 and 11.

28

USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens PM-602-0050.1 (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf [hereinafter USCIS NTA Memo]. On July 30, 2018, USCIS announced that implementation of USCIS NTA Memo is postponed until USCIS components “create or update operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum. It is unclear therefore when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same.

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In the cases where a child is already in removal (deportation) proceedings and applying for SIJS and adjustment of status defensively, this risk does not exist because immigration authorities are already aware of the child’s presence in the United States. In these cases, however, there may be significant barriers to obtaining SIJS and adjustment of status—including getting the children into juvenile court and time pressures created by immigration court deadlines. § 3.5

Who Should Apply?

Children who meet all of the statutory and regulatory requirements for SIJS and adjustment of status and who merit a favorable exercise of USCIS’s discretion should file for these forms of relief. If the children are not in removal proceedings, they should generally submit the SIJS petition and the adjustment of status application together, affirmatively, if visa availability allows them to. 29 Generally, children should not affirmatively apply if the advocate is not confident that the applications will be granted. In case of doubt, the advocate should be sure to consult with competent immigration counsel. For example, children with juvenile delinquent or adult criminal records or records of extensive immigration violations should consider their case strategy with an expert before filing.

§ 3.6

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There is one exception to this cautious advice: children who are already in removal (deportation) proceedings have nothing to lose by submitting an SIJS petition and a corresponding application for adjustment of status since ICE is already trying to deport them. 30 They should apply for SIJS if there is any chance of qualifying since approval of the SIJS petition and adjustment of status application would stop their deportation. Note that if these children are already in federal custody (ORR custody), juvenile courts will have to get permission (“specific consent”) from ORR if they make any determination that changes the child’s custody or placement status. No consent is needed if such a determination is not regarding custody or placement status and merely to enter SIJS predicate order findings. See § 4.7. What Is the Application Procedure?

The process for applying for SIJS and adjustment of status depends upon whether the child is applying affirmatively (not in removal proceedings) or defensively (while in removal proceedings, as a defense to deportation). Some steps are similar and others differ. The application procedure is discussed in greater detail in Chapters 8 (affirmative) and 9 (defensive). Sample application packets appear in Appendices M and S–W. Affirmative case. The child must file two applications, one for Special Immigrant Juvenile Status and one to adjust status to lawful permanent residency. Unlike many other bases of eligibility for 29

Note that in an affirmative SIJS case, both the I-360 and I-485 forms can be filed concurrently with USCIS assuming there is a visa available to the child, unless there is a reason to file the I-360 alone in advance of the I-485 (for example, if the child has a prior executed removal order and the approved I-360 is needed to prevent reinstatement of the removal order, or if it may be helpful for an applicant to have additional time to demonstrate rehabilitation if there are any negative factors in the case, such as a delinquency history). 30 If the child’s immigration attorney contests removability and puts DHS to its burden to establish the child’s alienage, however, then the attorney would not want to submit an SIJS petition on the child’s behalf until that issue is resolved since the SIJS petition does require the child to admit alienage.

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adjustment of status that require applicants to have been inspected and admitted or paroled into the United States in order to adjust status (or else they must travel outside the United States to apply for permanent residency at a U.S. consulate abroad), an applicant for lawful permanent residency based on SIJS never has to travel outside of the United States, but can apply while remaining in the United States. 31 Currently, both the SIJS and the adjustment of status applications are filed at the Chicago Lockbox. For the SIJS petition, besides the applicable immigration form (I-360), the applicant must submit the SIJS order and some proof of age such as a birth certificate. If also filing for adjustment of status, the applicant submits the applicable adjustment immigration forms (I-485, as well as I-765 if seeking employment authorization), two passport-style photographs, photo identification, birth certificate if available, the results of a medical exam conducted by a USCIS-approved doctor, and filing fees (unless waived). Applicants generally need to have a photo identification to complete their biometrics.

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Once the adjustment application is filed with USCIS, the child can obtain employment authorization. USCIS will schedule an appointment for the child to be photographed and fingerprinted (“biometrics”) at an Application Support Center (“ASC”), and the FBI will complete a check of any criminal or delinquency record or prior deportation for children ages fourteen and older. USCIS is required by the TVPRA to adjudicate SIJS petitions within 180 days of filing, however, in recent years USCIS is regularly failing to comply with this requirement. USCIS may adjudicate the SIJS petition with or without interviewing the child. When USCIS does decide to interview the child, the child often can have a social worker, and certainly an attorney, attend the interview with them if desired. USCIS might approve the SIJS petition at the interview, or might request further information. If USCIS denies the case, under the new USCIS guidance discussed above (once it is implemented), USCIS will issue the child an NTA, placing them in removal (deportation) proceedings. The child can appeal the SIJS petition’s denial to a higher unit at USCIS called the Administrative Appeals Office (AAO). They may also consider filing an action in federal district court challenging the denial. USCIS may also adjudicate the application for adjustment of status with or without an interview. If USCIS interviews the SIJ adjustment applicant, USCIS may approve the application at the interview, or may request additional information. As with the SIJS petition, if USCIS denies the adjustment application, under the new USCIS guidance discussed above (once implemented), USCIS will issue an NTA, placing the child in removal (deportation) proceedings. The child cannot appeal the denial of the adjustment of status application. Instead, the adjustment of status application can only be renewed before the immigration court. If desired and if visa availability allows, the child will submit two applications at the same time to USCIS if applying for SIJS affirmatively: one for Special Immigrant Juvenile Status (Form I-360) and one for adjustment of status to permanent residency (Form I-485).

31 Immigration practitioners should see INA § 245(h), which provides that SIJS applicants are deemed paroled in and therefore eligible for adjustment even if they entered without inspection. They do not have to qualify under § 245(i) or another special program, or pay a penalty fee; they are entitled to adjustment by virtue of their approved SIJS petition. Otherwise, immigration attorneys should note that an SIJS-based adjustment procedure is similar to a § 245(a) adjustment for an immediate relative.

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Defensive case. The child still must file two applications, one for Special Immigrant Juvenile Status and one to adjust status to lawful permanent residency. Unlike in affirmative cases, however, these applications are not filed together. Instead, the child first files their SIJS petition with USCIS at the Chicago Lockbox—since USCIS alone has the power to grant or deny a child’s SIJS petition. Besides the forms, the child must submit the SIJS order and some proof of age such as a birth certificate. USCIS may adjudicate the SIJS petition with or without interviewing the child. Again, this adjudication must happen within 180 days of the filing of the SIJS petition under the law, although USCIS routinely misses this deadline. If USCIS denies the child’s SIJS petition, the child can appeal to a higher unit at USCIS (the AAO). They can also consider filing an action in federal district court. If USCIS approves the child’s SIJS petition, they proceed to the next step.

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Once USCIS has approved the child’s SIJS petition, then the child’s immigration attorney will file the child’s adjustment of status application with the immigration judge—since the immigration judge alone has the power to grant or deny a child’s adjustment of status if the child is in removal proceedings, unless the immigration attorney is able to obtain a termination of the removal proceedings, in which case they can file the application for adjustment of status with USCIS. 32 Besides the forms, the child must submit the results of a medical exam conducted by a USCIS-approved doctor and filing fees (or a request for fee waiver). The child’s immigration attorney must also submit a biometrics packet to USCIS so that the child can have their background checks completed. After these steps are complete, the immigration judge will schedule a merits hearing for the child. At that hearing, the immigration judge will take testimony and will likely issue a decision on the child’s case. If the immigration judge approves the case, the child becomes a lawful permanent resident. If the case is denied, the child can file appeals with the Board of Immigration Appeals and then the federal courts, depending upon the circumstances. Note that if the immigration judge is willing to terminate the child’s removal proceedings upon the filing or approval of the child’s SIJS petition by USCIS, then the child can proceed affirmatively with their case and seek their adjustment of status before USCIS rather than in immigration court. This may be preferable because it allows the child’s adjustment of status application to be adjudicated in a non-adversarial setting. It is best practice to request that the attorney representing ICE either join or agree not to oppose the motion to terminate, although it is unlikely in the current environment that ICE will agree to either. See Chapter 9 for further information. The child will submit two applications at different times and to different entities if applying for SIJS defensively: one for Special Immigrant Juvenile Status (Form I-360) to USCIS, and then one for adjustment of status to permanent residency (Form I-485) to the immigration judge (or, if removal proceedings are terminated, USCIS)—but only if the SIJS petition is approved.

32

The only exception is if the child is charged as an “arriving alien” in her removal proceedings. In that case, USCIS has jurisdiction to adjudicate the child’s adjustment of status application. 8 CFR §§ 245.2(a)(1), 1245.2(a)(1).

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§ 3.7

Expeditious Adjudication

SIJS petitions are required to be adjudicated expeditiously, within 180 days after the date on which the application is filed. 33 USCIS interprets this expeditious requirement as only applying to the SIJS petition (I-360) and not the entire application packet, which includes the adjustment of status application (I-485). 34 In order to comply with this requirement, USCIS has the discretion to waive interviews with applicants under the age of fourteen or when it is determined that an interview is not otherwise necessary. Advocates should contact the National Benefits Center (the USCIS office responsible for adjudicating SIJS petitions and SIJS-based adjustment of status applications) if SIJS petitions are not adjudicated on time, and should then go up the chain of command at USCIS until the issue is resolved. Action in federal court may be possible if USCIS does not adjudicate a child’s SIJS petition within the 180-day timeframe. Currently, USCIS routinely fails to comply with the 180-day deadline. See Chapter 8 for further information. § 3.8

Talking with the Child Applicant and Child’s Attorney About SIJS

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Before a petition for Special Immigrant Juvenile Status is filed for a child, the child should understand what the application is about, and the risks and benefits of filing. Any attorney for the child must be consulted, and the child’s social worker, probation officer, CASA (court-appointed special advocate) volunteer, foster parent, or other interested advocate may be involved. A onepage form in Spanish and English that you can use to help explain Special Immigrant Juvenile Status to the child appears in Appendix F. A more in-depth discussion about working with immigrant children is in Chapter 2. § 3.9

Natural Parents, or Prior Adoptive Parents, and Maybe Siblings, Cannot Benefit Through Grant of SIJS to Child

A child who immigrates as a Special Immigrant Juvenile essentially ceases to be the “child” of their natural parents or prior adoptive parents for immigration purposes. 35 This means that the child will not be able to use their new lawful immigration status to help their original parents to get lawful status, even if parental rights were not terminated. For example, a Special Immigrant Juvenile who becomes a permanent resident and then a U.S. citizen will not be able to immigrate their natural mother (usually a U.S. citizen who is at least twenty-one years old has that right). Congress enacted this rule to make sure that parents who abused, neglected, or abandoned their children would not benefit from the fact that the children qualified for SIJS. These parents generally do not lose any immigration benefit that they otherwise would have had, because without SIJS their undocumented child usually could not have helped their parents to immigrate. Even though under the TVPRA a child may qualify for SIJS if only one parent is abusive, neglectful, or has abandoned them, the other, non-offending parent still faces this same bar. They cannot gain any immigration benefit through a child who obtains immigration status based on Special Immigrant Juvenile Status. In some cases where children want to help a non-offending parent to also obtain lawful immigration status, U or T nonimmigrant status, for example, may be 33

TVPRA, Pub. L. No. 110-457 at § 235(d)(2). See 6 USCIS-PM J.4(B). USCIS temporarily pauses the 180-day I-360 adjudication clock when it issues a request for additional evidence (RFE). 35 INA § 101(a)(27)(J)(iii)(II). 34

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better options because there is no bar to immigrating parents for these forms of relief, as there is with SIJS, and these options allow the child to include their parents as derivative beneficiaries. A U.S. citizen who is at least twenty-one years old can petition for permanent resident status for a sibling. Unfortunately, it may be that the child who gained lawful permanent residency through SIJS is barred from using their new status to assist a brother or sister to immigrate. Immigration law defines siblings as persons with a common parent. Since the SIJS recipient is no longer considered the “child” of the natural or prior adoptive parent, USCIS may assert that the child no longer has a sibling relationship with brothers and sisters for immigration purposes. Even if the child can apply for siblings, the main drawback is that the sibling’s petition falls under the family-based fourth preference category. These petitions generally have a long waiting period (anywhere from fourteen to upwards of twenty or more years after the petition is filed) before the sibling receives any legal rights. See Chapter 13 for more on family-based immigration. § 3.10 Children in Immigration Custody

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If an unaccompanied immigrant child is in immigration custody when they come to juvenile court, a juvenile court judge cannot make custody or care decisions that change the child’s custody status or placement without ORR’s permission. Specifically, the SIJS statute states that “no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction.” 36 This is referred to as the “specific consent” requirement. Importantly, specific consent is not required for a juvenile court to take jurisdiction over a child’s case or to enter SIJS findings. Custody or placement decisions are not always ones that arise in the process of obtaining the SIJS order. Specific consent is only required where a juvenile court will determine or alter a child’s custody or placement status. This would arise, for example, if the child was petitioning to be moved from a federal ORR facility to a local facility, such as a group home that is under local, and not federal, jurisdiction. Requests for consent for a juvenile court to order a change in custody or placement determination over a child in ORR custody must be made in writing to ORR. Instructions are found at § 7.6.

36

INA § 101(a)(27)(J)(iii)(I).

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CHAPTER 4 1 ELIGIBILITY FOR SPECIAL IMMIGRANT JUVENILE STATUS This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5

§ 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11

History and Statutory Authority ........................................................................... 65 Statutory and Regulatory Requirements............................................................... 67 Under the Jurisdiction of a Juvenile Court: Dependency, Guardianship, Custody, Delinquency, and Adoption ........................................... 68 Reunification with One or Both of the Immigrant’s Parents Is Not Viable ............................................................................................................ 75 Due to Abuse, Neglect, Abandonment, or a Similar Basis Found Under State Law: Legal Standards, USCIS Requests for Evidence and Documentation............................................................................................... 86 Not in the Child’s Best Interest to Be Returned to Country of Nationality or Last Habitual Residence................................................................ 92 Consent to the Grant of SIJS and Specific Consent ............................................. 94 Additional Regulatory Requirements: Age, Continuing Jurisdiction of the Juvenile Court, and Marriage ..................................................................... 98 Expeditious Adjudication ................................................................................... 103 Who Should Not Apply for Special Immigrant Juvenile Status: Weighing Affirmative and Defensive SIJS Cases .............................................. 103 How a Special Immigrant Juvenile Can Lose SIJS: Revocation of Approval ........................................................................................................ 104

This chapter takes a closer look at who is eligible to apply for special immigrant juvenile status. § 4.1

History and Statutory Authority

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Prior to 1990, undocumented children in state care routinely found themselves in an immigration predicament. They remained in state care until they reached the age of majority, and then found themselves turned out to face the world without legal immigration status and all its associated benefits. In 1990, Congress created Special Immigrant Juvenile Status to provide an avenue of immigration relief for undocumented children who are juvenile court dependents.2 Most recently, through the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Congress amended and expanded the definition of a Special Immigrant Juvenile. It was signed into law on December 23, 2008.

1

Portions of this chapter were reprinted with permission from Katherine Brady & David Thronson, Immigration Issues Representing Children Who Are Not United States Citizens, in Child Welfare Law and Practice Manual: Representing Children, Parents and State Agencies in Abuse, Neglect and Dependency Cases, National Association of Counsel for Children (2d. 2004). 2 INA § 101(a)(27)(J); 8 USC § 1101(a)(27)(J).

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The TVPRA, among other provisions aimed at helping unaccompanied youth, changed some of the SIJS requirements, codified several provisions that were in federal regulations, and streamlined SIJS procedures. See Chapter 1 for a description of non-SIJS related provisions of the TVPRA. The TVPRA became effective on December 23, 2008 for cases of children in the United States with proceedings already pending before the U.S. Department of Homeland Security (DHS), in immigration court, or at the administrative or federal appeals level. For new cases, the TVPRA became effective as of March 23, 2009. Between December 23, 2008 and March 23, 2009, the former SIJS law remained in effect. The statutory authority for Special Immigrant Juvenile Status is found in the Immigration and Nationality Act at § 101(a)(27)(J) and is codified at 8 USC § 1101(a)(27)(J). The original SIJS statute was implemented by standards set out in the Code of Federal Regulations at 8 CFR § 204.11. In 2011, regulations implementing the amended SIJS statute via the TVPRA were drafted, and public comment was received. However, at the time of this writing, the revised regulations have still not been finalized. It is USCIS’s position that the current regulations remain in effect to the extent that they do not conflict with the statute, pending issuance of the revised regulations. On October 26, 2016, USCIS issued policy guidance on SIJS and SIJS-based adjustment of status in the U.S. Citizenship and Immigration Services Policy Manual (USCISPM). Per USCIS, this guidance, contained in Volumes 6 and 7 of the USCIS-PM, supersedes all prior policy memoranda except for the Perez-Olano Policy Memo 602-0177. 3 The new guidance set forth in the USCIS-PM is more comprehensive than any prior guidance issued by USCIS on SIJS, and is crucial reading for anyone representing children applying for SIJS. However, the Policy Manual also contains guidance that in some places conflicts with or goes beyond the

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3 See USCIS, Policy Alert: Special Immigrant Juvenile Classification and Special Immigrant-based Adjustment of Status (Oct. 26, 2016), https://www.uscis.gov/policymanual/Updates/20161026-SIJEB4Adjustment.pdf (stating that “any related policy memoranda are rescinded and are no longer in effect”). The USCIS memoranda that provided field guidance in the interpretation and adjudication of SIJS cases prior to the October 2016 publication of the SIJS-related portions of the USCIS Policy Manual, despite having been superseded by the Policy Manual, may serve as important historical information about USCIS’s changing interpretation and guidance in SIJS cases. Three memoranda were issued before the TVPRA. The latter of these three, known as the 2004 Yates Memorandum, superseded all previous guidance. See INS Memorandum, Thomas E. Cook, Regarding Interim Field Guidance Relating to Public Law 105-119 (Sec. 113) Amending Section 101(a)(27)(J) of the INA, Special Immigrant Juveniles (Aug. 7, 1998); INS Memorandum, Thomas E. Cook, Regarding Special Immigrant Juveniles, Memorandum 2: Clarification Guidance, HQADN 70/6.1.7-P (July 9, 1999); USCIS Memorandum, William R. Yates, Regarding Field Guidance on Special Immigrant Juvenile Status Petitions, Memorandum #3, HQADN 70/23 (May 27, 2004). Since the TVPRA was enacted, USCIS issued one memorandum providing field guidance on the amended SIJS statute, known as the Neufeld Memorandum. The Neufeld Memorandum did not explicitly supersede the Yates Memorandum, although it did make substantial changes. Thus, the Yates Memorandum and Neufeld Memorandum were read together as policy guidance prior to the issuance of the Policy Manual. See USCIS Memorandum, Donald Neufeld and Pearl Chang, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions, HQOPS 70, 8.5, p. 2 (Mar. 24, 2009) [hereinafter, Neufeld Memorandum]. The Yates and Neufeld Memoranda are reprinted in Appendix D.

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statutory or regulatory requirements for SIJS. 4 Because of this, it is important to read it in conjunction with the statute and regulations. How pending regulations affect SIJS eligibility requirements under the TVPRA: At the time of this writing, the regulations implementing the amended SIJS statute under the TVPRA have not been issued. Once these regulations are issued, they will further clarify the eligibility requirements for SIJS and provide guidance as to whether certain past interpretations and requirements remain in effect. § 4.2

Statutory and Regulatory Requirements 5

The basic requirements for Special Immigrant Juvenile Status are as follows: 6 1. The child must be declared dependent on a juvenile court located in the United States, or the court must have legally committed the child to or placed the child under the custody of, an agency or department of a state, or an individual or entity appointed by a state or juvenile court (see § 4.3); 2. The juvenile court must find that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law (see § 4.4 and § 4.5); 3. A judge or administrative authority must have determined that return to the child’s or parent’s country of nationality or country of last habitual residence is not in the child’s best interest (see § 4.6).

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These enumerated findings should be set out specifically in an order signed by the juvenile court judge or other presiding judge. 7 The signed order, often referred to as the predicate order or the SIJS order, must be submitted to USCIS with the petition for Special Immigrant Juvenile Status. Sample SIJS orders appear at Appendix J. It may be necessary to explain the need for such an order to the judge, since the factors may go beyond the usual formal requirements of dependency, delinquency, guardianship, or custody proceedings. The expansion of the SIJS definition as a result of the TVPRA has made it clear that a wide range of courts can make these findings, so you may simply need to educate the judges that they are competent to make the determinations necessary for the SIJS order. You can cite to the federal regulations implementing the SIJS statute, which define a juvenile court broadly as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of 4

For example, the TVPRA requires USCIS to adjudicate SIJS petitions expeditiously, within 180 days of the date on which the petition is filed. TVPRA, P.L. 110-457 at § 235(d)(2). However, the USCIS Policy Manual states that “USCIS generally adjudicates SIJ petitions within 180 days.” 6-USCIS-PM J.4(B). 5 Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110–457, 122 Stat. 5044 (2008). Some of the prior provisions will be discussed in this chapter in as much as they guide the interpretation of the changed provisions. 6 These are the primary eligibility requirements for SIJS that should be set forth in a court order that will be presented with an SIJS petition to USCIS. There are additional requirements imposed by regulation for a grant of Special Immigrant Juvenile Status that are discussed in this chapter, but which are not essential for the court order. 7 8 CFR § 204.11(d)(2).

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juveniles.” 8 Please note that while you can cite to federal sources when educating the judges about their ability to make these special findings, the order itself should only refer to state law. Another strategy for obtaining an SIJS order is to partner with an attorney who already works within the juvenile or family court system that the child applicant is in. This partnership may make it easier for judges to understand SIJS and make it seem less like an outsider coming into the court solely to seek immigration relief. This is particularly helpful in the dependency and delinquency courts as children usually have appointed counsel already. Additional guidance on obtaining the SIJS order is found in Chapter 7, Part II. In addition to these findings for the SIJS order, federal regulations provide additional requirements for SIJS applicants. These requirements include: 1. Consent to the grant of SIJS (see § 4.7); 2. Specific consent from the Secretary of Health and Human Services (only in a narrow range of cases in which the child is in federal custody and seeking a change in placement or custody) (see § 4.7); 3. The applicant be under the age of 21 when they file the SIJS petition (see § 4.8); 4. Continuing juvenile court jurisdiction pending the completion of the entire immigration process (this provision is subject to challenge) (see § 4.8); and 5. The applicant remains unmarried pending the completion of the process (see § 4.8). Sections 4.3 through 4.8 examine these Special Immigrant Juvenile requirements in detail. Section 4.9 examines the TVPRA requirement for expeditious adjudication. Section 4.10 addresses who should not apply for SIJS and § 4.11 discusses situations in which SIJS can be revoked. Chapter 5 discusses eligibility for SIJS-based adjustment of status, the second part of the immigration process that results in lawful permanent residency for the child.

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PRACTICE NOTE: Centralization of adjudication of SIJS cases. In November of 2016, USCIS announced that it was centralizing adjudication of all SIJS petitions and SIJS-based adjustment of status applications at the National Benefits Center (NBC). This means that SIJS based petitions and applications filed after November 1, 2016 are no longer adjudicated in local field offices, but rather at the NBC. For inquiries related to SIJS cases pending at the NBC, advocates can contact the NBC at [email protected]. AILA Members can also request case liaison assistance from the AILA NBC Liaison Committee after making two inquiries to USCIS and not receiving an adequate response. Alternative sources of case liaison assistance are your client’s local congressperson or the ombudsman’s office. § 4.3

Under the Jurisdiction of a Juvenile Court: Dependency, Guardianship, Custody, Delinquency, and Adoption

In order to be eligible for SIJS, a child must be declared dependent on a juvenile court located in the United States, or the court must have legally committed the child to or placed the child under the custody of, an agency or department of a state, or an individual or entity appointed by a state or juvenile court. The term “juvenile court” means a court located in the United States having 8

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8 CFR § 204.11(a).

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jurisdiction under state law to make judicial determinations about the custody and care of juveniles. 9 In many states, this includes courts that handle dependency cases, guardianship cases, family law custody cases, delinquency cases or adoption cases. Whether a court is a “juvenile court” under the federal definition is not determined by the label that the state gives to the court, but rather the function of the court. For example, in the B.F. v. Superior Court case, the Second Appellate District of California considered whether a probate court hearing guardianship petitions constituted a “juvenile court” able to make SIJS findings, or whether only traditional juvenile courts in California could make such findings. 10 The court held that because the probate court makes judicial determinations about the care and custody of minors in considering and appointing guardians, it is a juvenile court within the meaning of the federal regulations. 11 The TVPRA clarified that a state or juvenile court may commit the minor to the custody of an individual or entity, thereby making clear that guardianships and custody determinations come within the meaning of the statute. There is also support in the statute for children in delinquency proceedings to be granted SIJS. A more detailed discussion about the various state juvenile courts and procedural guidance to obtain SIJS orders in these courts is provided in Chapter 7. NOTE: If the child you are assisting already has an open dependency, delinquency, guardianship, custody, or adoption case, you can file a request for SIJS findings in those proceedings. If the child does not have an open case, you may only be able to initiate certain types of proceedings, e.g., guardianship, custody, or adoption proceedings. In the event that you need to initiate proceedings in state court, you must evaluate whether you can file for and establish the guardianship, custody, or adoption based on the relevant state law in order to request SIJS findings. The juvenile court must have jurisdiction over your client for an independent state law purpose and not just to make the SIJS findings. See § 7.7 for additional information. A.

Dependency proceedings

The immigration statute makes it clear that a child who is a dependent of a juvenile court, and who meets the other requirements, is eligible for SIJS. (As discussed below, children who are not dependents but are under the jurisdiction of any juvenile court that makes care and custody decisions for them—such as delinquency or probate proceedings—are also eligible.)

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Dependency refers to the process by which decisions are made about the custody and care of a child who has come into the child welfare system because they are “dependent” upon government intervention to ensure their adequate care. In other words, the child welfare system handles reports of child abuse, neglect, and abandonment and administers the foster care system. When a child comes into contact with the child welfare system, a court process may be involved to determine who will care for and have custody of the child. When a juvenile court accepts jurisdiction to make a decision about the care and custody of a child, the child is dependent on a juvenile court and therefore the court can make SIJS findings. 12 Do not look to immigration law 9

8 CFR § 204.11(a). B.F. v. Superior Court, 207 Cal. App. 4th 621 (2nd Dist. 2012). 11 Id. at 629. 12 See, e.g., In re Y.M., 207 Cal. App. 4th 892 (4th Dist. 2012). 10

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to define which children the juvenile court can “take in.” The process may be different in each state or county and is governed by state law, not federal immigration law. PRACTICE POINTER: Note that you cannot generally affirmatively open a dependency case; rather, dependency cases are initiated by local government officials. Advocates concerned about the safety or well-being of a child they are assisting may consider, within the confines of whatever confidentiality obligations they may be bound by, reporting such concern to local child protective authorities. Some judges in dependency courts may be hesitant to make SIJS findings when reunification services have been terminated only as to one parent, but this is permissible under the federal statute. See discussion at § 4.4 below. See § 7.1 for more detail on dependency proceedings. B.

Guardianship proceedings

While children placed in dependency proceedings certainly satisfy the first prong of the SIJS statute, so too do children for whom a court has appointed a guardian. 13 Although guardianship may have different legal import depending on your state’s law, it is generally a legal action that gives someone other than the minor’s parents the “care, custody, and control” of the minor. A guardianship is sometimes needed when the child’s parents are unwilling or unable to care for them or when parental control is detrimental to the child. It gives the guardian almost complete rights to make decisions on behalf of the child, and the child’s parents lose the ability to make those decisions. 14 For example, guardianship typically transfers the following parental rights to the caretaker: protection, education, care and control of the child, custody of the child, and decision-making (for example, medical decisions), but does not necessarily preclude visitation by a parent. Pre-TVPRA, children placed in a guardianship with a non-parental family member through a guardianship or other relevant court had been granted Special Immigrant Juvenile Status. This longstanding interpretation of “state dependency” for SIJS purposes was confirmed by the TVPRA. Specifically, the amended statutory language specifies SIJS eligibility for children placed under the custody of “an individual … appointed by a state or juvenile court.” 15

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A child for whom a guardianship is established may qualify for Special Immigrant Juvenile Status even if they were never formally removed from a parent by the state or placed in foster care. For purposes of SIJS, a child who has had a guardian appointed is considered “placed under the custody of … an individual … appointed by [the] court.” 16

13 6 USCIS-PM J.3(A)(1). Note that in cases where the child is residing with a parent, a guardianship may not be appropriate, depending upon the law governing guardianships in your state. 14 Public Counsel Law Center, Guardianship of the Person Attorney Manual (2017), http://www.publiccounsel.org/publications?id=0032. 15 INA § 101(a)(27)(J)(i). 16 INA § 101(a)(27)(J)(i).

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Qualifying guardianships may be established through any court empowered under state law to make decisions regarding the care and custody of children. 17 For more information on requesting SIJS findings in the course of guardianship proceedings, see § 7.2. C.

Custody proceedings

Because the TVPRA provides SIJS eligibility for children placed under the custody of “an individual … appointed by a state or juvenile court” 18 and provides eligibility when reunification is not viable with “1 or both” parents, it has opened the way for children to seek SIJS findings in family law custody proceedings, where the court places the child in the physical and legal custody of one parent while making findings with regard to the other parent. 19 A custody determination is a judgment, decree, or other court order that provides for the legal custody, physical custody, or visitation with respect to a child. 20 Parents that separate, whether or not they were ever married, need a plan for the care and custody of their children, and a custody determination from a court is one way to achieve such a plan. In order to satisfy the statutory requirement for SIJS that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law,” most successful SIJS cases arising out of custody proceedings have been in cases where one parent, with whom the child was residing, requested and was granted sole legal and physical custody. An order of joint custody or with visitation rights for the non-custodial parent could be very problematic for a request for SIJS findings because it might indicate that reunification is viable with the non-custodial parent. Note that, as with all SIJS petitions, in order to be successful in state court and with USCIS, there must be a need for the underlying involvement of the family court via the custody petition, other than the need for immigration relief. Frequently, there is a justification under state law for a parent providing sole care for a child to seek full legal custody of that child when the other parent has abandoned, abused or neglected the child. For more information on requesting SIJS findings in the course of custody proceedings, see § 7.3. D.

Delinquency proceedings

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Often SIJS is seen as a form of relief available only for children in dependency and guardianship proceedings, and, increasingly, custody proceedings. As a result, relatively few children in delinquency proceedings apply for SIJS. However, there are various juvenile courts that make decisions about the care and custody of children and they can do so in a variety of ways. Among 17

In California, probate courts typically handle guardianships. In some other states, courts of general jurisdiction may entertain guardianships. You should investigate the relevant state laws to determine which courts hear guardianship petitions in your state. 18 INA § 101(a)(27)(J)(i). 19 Custody orders may be made in a range of different types of proceedings in state courts. For example, in California, they may be made in the course of custody, parentage, divorce, or domestic violence proceedings in family court. In connection with custody orders made in these types of proceedings, the findings required for SIJS may also be requested, assuming all other eligibility requirements are met. See California Courts, The Judicial Branch, Special Immigrant Juvenile Status, http://www.courts.ca.gov/selfhelp-sijs.htm. 20 Uniform Child-Custody Jurisdiction and Enforcement Act (1997), Article 1, Section 102(3).

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the courts that make decisions about the care and custody of children are those that adjudicate delinquency petitions. Delinquency courts handle alleged violations of law by individuals under a certain age, often 18 years of age. A decision adjudicating a child delinquent and making determinations about the custody of the child while detained or upon release can serve to establish the requisite jurisdiction of the juvenile court. The key here is that although the particular form or name of the proceeding may vary, a court is taking jurisdiction to make a decision about the care and custody of a child. Specifically, the statute provides SIJS eligibility for a child “whom such a court has legally committed to, or placed under the custody of, an agency or department of a State.” 21 State juvenile courts often place children under the custody of probation departments as a result of delinquency, which constitute agencies or departments of a state. In addition, statutory language providing that the child cannot be reunified with one or both parents “due to abuse, neglect, or abandonment, or similar basis found under state law” 22 further opens the door for a delinquency court to enter SIJS findings. Some juvenile delinquency courts had hesitated to enter the requisite SIJS findings because the former statutory language required courts to make findings exclusively regarding abuse, neglect, or abandonment. Some delinquency courts concluded that these findings were in the sole jurisdiction of dependency courts and, therefore, they did not have the authority to make them. The TVPRA, however, through the phrase “a similar basis found under state law,” gives delinquency courts broader leeway to enter similar findings within their jurisdiction. This requirement is discussed in further detail in § 4.5. Advocates should work closely with public defenders to find similar bases in state law that could provide the basis for the SIJS order if the court is reluctant to use the language of abuse, neglect, or abandonment. Beware that if the delinquency court does make a “similar basis” finding, USCIS requires that the petitioner establish “that the nature and elements of the state law are indeed similar to the nature and elements of laws on abuse, neglect, or abandonment.” 23

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There are state court opinions supporting the jurisdiction of juvenile delinquency courts to make SIJS findings. 24 It is also important to note that USCIS has acknowledged that delinquency proceedings are one type of juvenile court proceeding in which SIJS findings can be made. 25 Advocates report that children in delinquency who apply for SIJS do not appear to be at greater risk of being denied by USCIS than youth applying for SIJS who are in dependency or guardianship proceedings, for example. However, children in delinquency may be denied for other important reasons such as issues related to inadmissibility and discretion—see Chapters 5 and 17. If there is concern in your jurisdiction about pursuing SIJS for children in delinquency proceedings, it may be helpful to secure placement in dependency, concurrent dependency/delinquency status, or consider filing a guardianship or custody petition if this is viable and permitted under state law. This eliminates any legal question or potential policy 21

INA § 101(a)(27)(J)(i). Id. 23 6 USCIS-PM J.3(A)(2) (stating: “[p]etitioners are encouraged to submit the juvenile court’s findings of how the basis is similar to abuse, neglect, or abandonment and copies of the relevant laws.”) 24 See, e.g., Leslie H. v. Superior Court, 224 Cal. App. 4th 340 (4th Dist. 2014); In re Israel O., 233 Cal. App. 4th 279 (1st Dist. 2015); Eddie E. v. Superior Court, 234 Cal. App. 4th 319 (4th Dist. 2015); Matter of Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012). 25 6 USCIS-PM J.3(A)(1). 22

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concerns of a delinquency court (such as a concern that making SIJS findings for a youth who has been adjudicated delinquent is rewarding bad behavior) that might arise related to this SIJS requirement. Nonetheless, many children in delinquency proceedings have been granted SIJS. 26 Obtaining the assistance of a public defender in these cases is essential, so if your client is in delinquency proceedings, the first step is to contact their defense attorney. PRACTICE POINTERS: Note that you cannot open a delinquency case; such a case must be initiated by the government. Although some judges in delinquency courts may resist making SIJS findings because they feel that a child who has been found to have violated the law does not “deserve” an immigration benefit, such policy considerations are not relevant to the findings necessary for SIJS. 27 Dangers of delinquency. Note that a few types of delinquency findings are dangerous because they trigger “grounds of inadmissibility” that can make a child ineligible to adjust their status to that of a lawful permanent resident. The most dangerous findings are for drug trafficking (sale of drugs as opposed to simple possession). See further discussions in Chapters 5 and 17. However, many juvenile delinquency dispositions, including many offenses involving violence or theft, do not automatically cause immigration problems. Because of the danger that USCIS will not understand this legal issue and attempt to make a wrong ruling (e.g., try to deny a child based on a juvenile disposition of theft), we advise that any child with a delinquency record have an expert immigration attorney on their case. See § 7.5 for more detail on delinquency proceedings.

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Crossover children: Many children who have been abused, neglected, or abandoned are caught up in both the dependency and delinquency systems. Children who have “crossed over” from dependency proceedings to delinquency proceedings, or vice versa, are often strong candidates for SIJS. Some children start out in the delinquency system, but because of the severity of their abuse, neglect, or abandonment, may be transferred into dependency if they cannot be returned home safely. Others start out in dependency but move into delinquency. Often by the time one of these children is in delinquency proceedings, there has already been some finding of abuse, abandonment, or neglect by the dependency judge. Perhaps the dependency judge has already terminated reunification services to one or both parents. As such, the child would be coming into the delinquency system with these decisions in place and may be more likely and more quickly eligible for SIJS. Sometimes a child will begin the SIJS process while still in the dependency 26

As one former INS official remarked, “We took sociology. We know that a lot of kids end up in delinquency for the same reason they could have ended up in dependency: because of abuse in the home.” 27 Leslie H. v. Superior Court, 224 Cal. App. 4th 340, 351 (4th Dist. 2014) (stating, “the court concluded Congress could not have intended juvenile wards may qualify for SIJ status because Leslie “broke the law,” and “rewarding” her illegal conduct might motivate other undocumented alien children to commit offenses to gain eligibility for SIJ status and eventual nationalization. The juvenile court erred. A state court’s role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country”).

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system, but will cross over into delinquency before the process is complete. In this case, advocates need to be particularly watchful and ensure that the child completes the SIJS process. If not, it’s possible that the child may be placed in removal proceedings as a result of the juvenile delinquency, depending on state and local policies with regard to referrals to ICE. Whether a child is referred to immigration authorities from the juvenile justice system varies widely by jurisdictions. In some jurisdictions, referral from juvenile justice to immigration authorities does occur. E.

Adoption proceedings

Just as children in guardianship proceedings can qualify for SIJS, so too can some children who are in adoption proceedings and who have been placed under the custody of “an individual … appointed by a state or juvenile court.” 28 Many times before a juvenile court finalizes an adoption for a child, the juvenile court judge will place the child formally in the legal and physical custody of the prospective adoptive parents. If this happens, the child may be eligible for SIJS presuming all other requirements are met. The court handling the adoption is undoubtedly a “juvenile court” for SIJS purposes and the custody order clearly places a child in the custody of an individual (or individuals) appointed by the juvenile court. A child for whom an adoption proceeding is pending may qualify for Special Immigrant Juvenile Status even if they were never formally removed from a parent by the state or placed in foster care. Note, however, that the United States’ signing the Hague Convention substantially complicates adoption proceedings for children from countries that are also parties to the Convention. See Chapter 13 for more details on the Hague Convention and its implications. If the child and prospective adoptive parent are unable to comply with the Convention’s requirements for adoptions, they may choose instead to obtain SIJS for the child through guardianship proceedings as described above.

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Advocates should note that USCIS has long taken the position that children who are going to be, or have been, adopted can qualify for SIJS. The SIJS regulation specifically permits children who have been adopted to apply for SIJS and states that a child can apply if a juvenile court has found that family reunification is not viable and the child proceeds to long-term foster care, guardianship, or adoption. 29 Moreover, the automatic revocation provision in the regulation provides that an approved SIJS application will not be revoked in the case that the child is adopted. 30 Advocates throughout the country have obtained SIJS where the child was ultimately adopted. See § 7.4 for more detail on adoption proceedings and Chapter 13 for more information on immigrating an adopted child through family-based immigration rather than SIJS.

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INA § 101(a)(27)(J)(i). 8 CFR § 204.11(a). 30 8 CFR § 205.1(a)(3)(iv). 29

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§ 4.4

Reunification with One or Both of the Immigrant’s Parents Is Not Viable

For the child to qualify for SIJS, a judge must issue a finding that the child’s reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law. This section will discuss the viability of reunification requirement and § 4.5 will address the abuse, neglect, abandonment, and related findings. A.

Family reunification

Prior to enactment of the TVPRA, the SIJS statute required that a child applicant be deemed “eligible for long-term foster care.” In turn, the regulations at 8 CFR § 204.11(a) interpreted “eligible for long-term foster care” to mean that “family reunification is no longer a viable option.” This “eligibility for long-term foster care” requirement had been a source of confusion for USCIS and state court systems. The TVPRA eliminated the “eligible for long-term foster care” language and replaced it with “reunification with one or both of the immigrant’s parents is not viable.” 31 As such, the TVPRA clarified the terminology in the statute and made clear that the child need not be in actual state foster care to be SIJS eligible. A finding for SIJS purposes that reunification is not viable does not require formal termination of parental rights or a determination that reunification will never be possible. The USCIS-PM states however that “[l]ack of viable reunification generally means that the court intends its finding that the child cannot reunify with his or her parent (or parents) remains in effect until the child ages out of the juvenile court’s jurisdiction.” 32 Interpreting the previous statutory language, federal regulations note that a child who was “eligible for long-term foster care” would “normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation.” 33 See Chapter 7 for more information on when to request the SIJS order in relation to reunification efforts.

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NOTE: Parents outside the United States. For a juvenile court to enter a finding that reunification with parents is no longer viable and/or to terminate parental rights is, of course, a serious determination requiring notice to the parents. In practice, if a dependency court or children’s agency thinks the child has parents living in their home country it will go through a process of investigating conditions in the home country to evaluate whether the child can return there. For example, many county workers throughout the country have developed working relationships with the staff of the family welfare system in Mexico and may be able to obtain a home study of a parent or grandparent’s house. Other agencies depend upon interviewing the child and/or adults who know the situation to determine whether such family exists and can be notified, and for information about the family. Foreign consulates may provide help to agencies in locating the child’s parents in other countries to advise them of the proceedings. Child welfare

31 Manoj Govindaiah, Deborah Lee, Angela Morrison & David Thronson, Update on Legal Relief Options for Unaccompanied Children Following the Enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008: Practice Advisory, 3 (Feb. 19, 2009), http://www.ilrc.org/files/235_tvpra_practice_advisory.infonet.pdf [hereinafter, TVPRA Practice Advisory]. 32 6 USCIS-PM J.2(D)(2). 33 8 CFR § 204.11(a).

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workers normally will describe efforts to locate and evaluate close family in other countries in their reports to the court. This information also may be relevant to the court’s determination that it is not in the child’s best interest to return to the home country (see § 4.6 below). In guardianship and custody proceedings, the petitioner typically bears the burden of providing notice to family members, whether within or outside of the United States. Courts will normally require proper notice to parents and sometimes other close family members before ruling on a guardianship petition or making a child custody determination. * PRACTICE POINTER: Some guardianship and family courts require separate notice of the request for SIJS findings, in addition to the regular notice requirements of the underlying proceedings. 34 Many advocates have been successful in arguing that separate notice of the request for SIJS findings is not required because notice of the underlying proceedings has already been provided and the findings requested for SIJS do not alter or terminate parental rights under state or federal law and thus should not trigger separate notice requirements. The issue of notice is a matter of state law that will vary from state to state. B.

Pursuing SIJS when reunification with only one parent is not viable

Previously, the SIJS statute required a finding that the child was “eligible for long-term foster care” which under the regulations meant that “family reunification is no longer a viable option.” This was widely understood to mean that the court must find that the child could not be reunified with both of their parents—although reunification with other family members was acceptable. Under the TVPRA, the reunification language has been broadened to allow a finding that “reunification with one or both parents” is not viable. This shift in language was accomplished without a trace of legislative history. 35 By rejecting the use of “family reunification” in favor of “reunification with one or both parents,” the statutory language permits SIJS eligibility on the basis of the non-viability of reunification with one parent due to abuse, neglect, or abandonment, even while the child remains in the care of the other parent or is likely to return to the care of the other parent. This reading of the statute provides more avenues for children to be SIJS eligible.

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Example: Sara lived with both her father and mother. Sara was abused by her father and her mother failed to protect her from his abuse. Sara’s situation was reported to local child welfare authorities. Sara’s mother left Sara’s father. Subsequently, the juvenile dependency court provided reunification services to Sara’s mother while terminating the parental rights of Sara’s father. For SIJS eligibility, the juvenile court only needs to find that family reunification with one parent—here, Sara’s father—is not viable. The court can proceed to make the SIJS findings even while reunification services are being provided to Sara’s mother and therefore does not need to wait to make SIJS findings until there is a formal termination of parental rights as to both parents. 34

For example, California requires separate notice of the request for SIJS findings to be provided to parents and others in the context of guardianship proceedings. See Cal. R. Ct. 7.1020(c). 35 Similarly, there is “no contemporaneous legislative history … which explains why SIJ status was originally created in 1990.” Yu v. Brown, 92 F. Supp. 2d 1236, 1246 (D.N.M. 2000).

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Example: Angel was abused and neglected by his father in his home country. As a teenager, Angel traveled to the United States to reunite with his biological mother who had been residing in the United States for years, working, and sending money home to provide for Angel. Angel was apprehended while attempting to cross the border, transferred into ORR custody and later reunified with his mother in Los Angeles. Angel’s attorney filed a parentage petition in family court in Los Angeles based on his mother’s desire to establish sole custody over him. His mother is seeking sole custody because Angel’s father was abusive and she wants to be able to make decisions about his education, healthcare and welfare without his father’s involvement. In connection with the parentage petition, an order making the findings necessary for SIJS is requested based on the abuse and neglect that Angel suffered in his father’s care. Example: Eduardo was brought to the United States by his mother at the age of two years old. He has no recollection of the journey. He has only faint memories of his father, whom he has seen on only two occasions since arriving to Washington State. His father is now residing in Mexico, but his exact whereabouts are unknown. He has never provided any financial or emotional support for Eduardo. At age 14, Eduardo was arrested for burglary, his case was handled in juvenile offender proceedings (delinquency), and he was put on probation. The juvenile probation department referred Eduardo to immigration authorities. He was then transferred to ORR custody and later reunified with his mother. Eduardo’s immigration attorney worked with his public defender to request an SIJS predicate order from the juvenile offender court based on his father’s abandonment. While situations such as these ones may well fall within the plain language of the statute, they fall outside conceptions of children for whom Special Immigrant Juvenile Status was originally conceived in 1990 and in prior legislation before the passage of the TVPRA. C.

Federal support for one parent SIJS claims

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Federal SIJS regulations have not been updated following the TVPRA’s revision of the SIJS statute to address the “1 or both” clause. 36 Because of the dearth of guidance on this statutory change, advocates for many years were left in the dark as to USCIS’s interpretation of the statute, and whether a child who was safely residing with one parent but had been abandoned, abused, or neglected by the other parent would be considered eligible for SIJS. However, informal guidance from USCIS and the Executive Office for Immigration Review (EOIR, or the immigration court) began to emerge that suggested that USCIS and EOIR agreed with the viability of one parent SIJS claims. 37 Then, in 2016, the USCIS-PM guidance on SIJS was published. The Policy Manual 36

Proposed regulations were issued in 2011 and public comment was received. However, at the time of this writing, the proposed regulations have not been finalized and thus are not binding. 37 See, e.g., USCIS, Immigration Relief for Abused Children (April 2014), http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/I mmigration_Relief_for_Abused_Children-FINAL.pdf; In re: [Redacted], No. [Redacted] (U.S. Dept. of Just., Imm. & Nat. Serv., Admin. App. Ofc., June 3, 2013), http://www.uscis.gov/sites/default/files/err/C6 %20-%20Dependent%20of%20Juvenile%20Court/Decisions_Issued_in_2013/JUN032013_01C6101.pdf (a June 2013 Administrative Appeals Office decision reversed USCIS’s denial of an I-360 petition in a case where a juvenile court had determined that a young woman from Honduras was abused and abandoned by

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recognizes that children can be eligible for SIJS based on their inability to reunify with only one parent due to abuse, neglect, abandonment, or a similar basis under state law. 38 Accordingly, it is now clear that one parent SIJS claims are viable. 39 Advocates should stress this interpretation to state courts, as they owe deference to interpretations of the SIJS statute by the federal agencies charged with administering and interpreting the statute, including the Department of Homeland Security (under whose umbrella USCIS exists) and the Department of Justice (under whose umbrella EOIR exists). 40 D.

State court precedent on one parent SIJS claims

Notwithstanding the significant federal support for eligibility of youth for SIJS when they are residing with one parent, some state courts have been resistant to entering an SIJS order when a child has been reunified with or is residing with one parent. Many other state courts have interpreted the statute to allow for SIJS findings when a child is residing with one parent. Negative case precedent on one parent claims. At the time of writing, there is one published state court decision interpreting the statutory language to require failed reunification with both parents: the Nebraska Supreme Court’s decision in In re Interest of Erick M. 41 In In re Interest of Erick M., Erick was adjudicated delinquent and committed to the care and custody of a state agency. A petition for SIJS findings was made in the delinquency proceedings, alleging that Erick had been abandoned by his father, whose whereabouts were unknown. He did

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her father and placed her in her mother’s custody); Amy S. Paulick, Assistant Chief Counsel, Department of Homeland Security, DHS Line, In the Matter of [Redacted], on file with the author (a brief filed by Immigration and Customs Enforcement in the Baltimore Immigration Court stated USCIS’s position: “[C]ounsel for USCIS [] has confirmed that a child who enters the United States illegally to join his or her parent in the United States may be considered “abandoned” for the purposes of an I-360. However, a child who enters the United States illegally to join both parents may not be considered abandoned.”); Executive Office for Immigration Review, Special Immigrant Juveniles: All the Special Rules, Immigration Law Advisor, Vol. 8, No. 1 (January 2014), http://www.justice.gov/eoir/vll/ILANewsleter/ILA%202014/vol8no1.pdf (a January 2014 publication of EOIR, more commonly known as the Immigration Court, states that “[u]nder the current version of the statute, because it is only reunification with one parent that must not be viable, the alien child could potentially be living with one parent and still qualify for SIJ status.”); In re A.R.J. (Exec. Office Imm. Rev., San Antonio, Tex. Aug. 10, 2009), on file with the author (EOIR, sitting as the San Antonio Immigration Court, has held that the express language of the SIJS statute requires failed reunification with either one or both of the alien’s parents). 38 6 USCIS-PM J.2(D)(1) (“A qualifying court-appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent’s abuse, neglect, or abandonment of the petitioner.”) 39 Notwithstanding USCIS and EOIR’s position that children may be eligible for SIJS when reunification is not viable only as to one parent, USCIS may be more likely to question the bona fide status of these petitions (i.e., whether the state court’s jurisdiction was sought primarily for protection from abuse, neglect or abandonment, rather than primarily to obtain an immigration benefit). Advocates must be mindful that USCIS will engage in this analysis and thus should structure their state court petitions based on the legitimate need for protection under state law, rather than the need for an immigration benefit. See Chapter 8 for additional information. 40 See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984). 41 In re Interest of Erick M., 284 Neb. 340, 820 NW 2d. 639 (2012).

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not allege an inability to reunify with his mother, who participated in his delinquency case and with whom he intended to reunify. The lower court found that the facts failed to demonstrate that reunification with Erick’s mother was not viable due to abuse, neglect, or abandonment and on that basis held that the failed reunification component of the SIJS statute was not met. The lower court also found that there was no evidence of abuse or neglect by Eric’s father and did not make a finding as to whether Erick’s father had abandoned him. Because the reunification component was not met, the court did not consider whether it would not be in Erick’s best interest to return to his home country. In affirming the lower court’s holding, the Nebraska Supreme Court stated that, “when ruling on a petitioner’s motion for an eligibility order under Section 1101(a)(27)(J), a court should generally consider whether reunification with either parent is feasible.” 42 The Nebraska Supreme Court’s analysis is seriously flawed. First, the court found that the federal SIJS statute is ambiguous and thus turned to the legislative history of the statute. In summarizing the various changes to the federal statute, the court focused on what it thought to be the central purpose of the various amendments: ensuring that SIJS is sought primarily to obtain relief from abuse, neglect or abandonment and not for the purpose of obtaining immigration relief. 43 However, USCIS does not examine whether SIJS was sought primarily to escape abuse, neglect, or abandonment, but instead whether the initiation of the juvenile court action itself was sought for an immigration benefit. The court held that “Erick was not seeking SIJ status to escape from parental abuse, neglect, or abandonment.” 44 But this consent function is one relegated to USCIS, not to the juvenile court in its adjudication of an SIJS motion. The court also considered unpublished Administrative Appeals Office (AAO) 45 decisions in support of this proposition, ultimately finding that the appellant “could not satisfy the reunification component without showing that reunification with his mother was not feasible.” 46 However, many of the AAO decisions relied upon by the court addressed pre-TVPRA cases where the law required failed reunification with both parents, while other decisions involved cases where the petitioner could not reunify with both parents due to abuse, neglect, or abandonment and thus simply reflected the facts of those cases. Finally, the Nebraska Supreme Court did not consider the federal agencies’ interpretations of the statute (mentioned above), thus issuing its decision in ignorance of the agency’s own interpretation and implementation of the federal statute.

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Positive case precedent on one parent claims. There are now many published state court decisions interpreting the “one or both parent” language to require failed reunification with only one parent. Below we summarize a few notable decisions: a New York family court decision in Matter of Mario S., a New York appellate court decision in Marcelina M.-G. v. Israel S., a California First Appellate District decision in In re Israel O., a California Fourth Appellate District decision in Eddie E. v. Superior Court, and a New Jersey Supreme Court Case H.S.P. v. J.K. 47 These cases may be cited as persuasive authority even if they are not controlling in your 42

In re Interest of Erick M., 284 Neb. at 352. Id. at 347. 44 Id. 45 The Administrative Appeals Office is the office that reviews appeals of USCIS decisions, under authority delegated to USCIS by the Secretary of the Department of Homeland Security. 46 In re Interest of Erick M., 284 Neb. at 347. 47 Matter of Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012); Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 973 N.Y.S.2d 714 (N.Y. Fam. Ct. 2013); In re Israel O., 233 Cal. App. 4th 279 (1st Dist. 2015); Eddie 43

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jurisdiction. Many of these cases contain helpful language on SIJS even beyond the interpretation of the “one or both parents” language. PRACTICE POINTER: One-parent SIJS may be practically barred in your state despite growing positive treatment under state law and USCIS guidance. Despite the growing body of positive treatment of one-parent SIJS cases under state law and federal law and policy, these cases may be practically very difficult or unobtainable under your state’s law. For example, there may not be an accessible mechanism to file a case in state court when a child is safely residing with one-parent. Or, it may be impossible to serve an out-of-country parent with notice. Advocates should research the law in their state and reach out to children’s attorneys practicing in state court to understand the options. In the Matter of Mario S. case, Mario, a child brought to the United States when he was sixmonths old had been adjudicated delinquent for graffiti-related offenses, placed on probation and then placed into state custody after he violated probation. Mario’s mother was involved in his court case and no allegations of abuse or neglect were made against her. Further, Mario’s case plan anticipated his reunification with his mother and he was in fact returned to her custody upon discharge from agency custody. Mario’s father had been deported due to domestic violence. He was not involved in Mario’s court case, had not provided him with any financial support since he separated from Mario’s mother, and did not make any substantial effort to maintain a relationship with him. The court found that although reunification with Mario’s mother was possible, abandonment by his father was enough to satisfy the SIJS statute. Further, it found that it was not in Mario’s best interest to be returned to Mexico because of the length of time he had resided in the United States and the fact that there was no one to care for him in Mexico. Importantly, the court declined to follow the Nebraska Supreme Court’s decision in In re Erick M. (discussed above), stating that the state court’s role is limited to making factual findings, and it is not the state court’s role to determine a petitioner’s intent in seeking SIJS, whether that child might someday pose a threat to public safety, or whether USCIS might ultimately grant or deny an application for adjustment of status as a Special Immigrant Juvenile. The court further noted that nothing in the statute or regulations indicates that Congress intended that state courts pre-screen potential applicants for SIJS for potential abuse.

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In Marcelina M.-G. v. Israel S., the child Susy had initially filed for a guardianship to have her uncle appointed as her guardian although her mother lived nearby and she saw her regularly. That petition alleged that reunification was not viable with her father due to neglect and abandonment and that reunification was not viable with her mother because she had neglected and abandoned her by leaving her in Honduras and by failing to provide her with any substantial financial assistance since she arrived in the United States. Although the mother had initially supported her

E. v. Superior Court, 234 Cal. App. 4th 319 (4th Dist. 2015); H.S.P. v. J.K., 223 N.J. 196 (2015). Note that there are also unpublished decisions that support this interpretation of the SIJS statute. See, e.g., Matter of D.A.M., No. A12-0427, slip op. (Minn. Ct. App. Dec. 10, 2012) (holding that the SIJS statute requires a finding that reunification is not viable with only one of the child’s parents and finding that its legislative history supports this interpretation); Matter of E.G., 24 Misc.3d 1238(A) (N.Y. Fam. Ct. 2009) (holding that “a child may petition for SIJS even if there is a fit parent living abroad, so long as the minor has been abused, neglected, or abandoned by one parent.”)

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brother-in-law’s application for guardianship, she later filed a petition for custody of Susy. The mother’s petition for sole custody was granted by the Family Court and as a result, the guardianship petition dismissed. The Family Court proceeded to deny Susy’s motion for Special Immigrant Juvenile Status findings, stating that it was “a strained reading of a statute” to interpret it to mean that SIJS findings could be made when the child was residing with one parent. 48 On appeal, the court looked to the plain meaning of the statute, holding that the “1 or both” language provides SIJS eligibility “where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar basis under state law.” 49 The court, therefore, declined to adopt the Nebraska Supreme Court’s interpretation of the statute (discussed above). In In re Israel O., Israel was adjudicated delinquent for receiving stolen property. He was returned to his mother’s home, subject to conditions of probation. He had no memory of his father, had only limited telephone contact with him and had never received any physical or emotional support from him. Israel petitioned the court for an order making the findings necessary for SIJS, alleging that his father had abandoned him and that if he were returned to Mexico, he would have no place to live and his father would not provide for him. The juvenile delinquency court found that Israel’s father had abandoned him. However, relying largely on the In re Erick M. decision, the court interpreted the “1 or both” language of the SIJS statute as prohibiting SIJS findings if return to a custodial parent remained feasible. On appeal, the People originally filed a brief arguing that the statute was ambiguous and that legislative history failed to support Israel’s position that inability to reunify with either parent would support SIJS eligibility, again relying heavily on In re Erick M. Subsequently, the People withdrew their position in light of USCIS materials indicating that a child could be eligible for SIJS while residing with one parent. The People took the position that it would be inappropriate for “a state attorney general to urge an interpretation of federal immigration policy in a manner that would contradict with information provided by the federal agency tasked with enforcing such policy.” 50

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The appellate court considered the single issue of the meaning of the SIJS statute’s “1 or both” language. The appellate court stated that it agreed with In re Erick M. that the statute is ambiguous and susceptible to more than one interpretation, but it departed from Erick M. to the extent that that decision contemplated a state court role in effectuating federal immigration policy. The appellate court looked to agency interpretation of the “1 or both” language and found little doubt that USCIS interprets the federal statute to include children residing with a nonabusive parent. Although the agency interpretations cited in the case were not contained in formal regulations, the court found that they were entitled to respect, “but only to the extent those interpretations have the ‘power to persuade.’” 51 The appellate court found the agency interpretation of the statute to be persuasive and consistent with the purpose of the SIJS statute, and thus held that an eligible minor for SIJS includes a juvenile for whom a safe and suitable parental home is available in the United States. The court remanded for the lower court to consider whether it was not in Israel’s best interest to be returned to Mexico.

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Marcelina M.-G. v. Israel S., 112 A.D.3d at 106. Id. at 110. 50 In re Israel O., 233 Cal. App. 4th at 286. 51 Id. at 290. 49

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In Eddie E. v. Superior Court, Eddie was brought to the U.S. at the age of 5 and resided in the U.S. since that time. Eddie was adjudicated delinquent for unlawfully taking a vehicle and related offenses. He was referred to Immigration and Customs Enforcement by the Probation Department, placed in removal proceedings and later reunified with his father. His mother had abandoned the family when he was eight years old and later passed away. After a previous denial of SIJS findings on other grounds, a successful writ petition, and remand to the juvenile court to consider Eddie’s request for SIJS findings, 52 the juvenile court found that Eddie satisfied the first finding because he was in the custody of a state agency, but not the second or third findings. The juvenile court found that Eddie did not satisfy the second prong because he lived with his father, who did not abuse him. The court relied on In re Erick M. in holding that to satisfy this prong of the statute, Eddie had to prove he could not reunify with both parents, not just one. The juvenile court also held that alternatively, Eddie’s inability to reunify with his mother was not due to abandonment, but death, since his mother had passed away after abandoning him. Further, the juvenile court found that Eddie did not satisfy the third prong of the statute because it would be in his best interest to return to Mexico. On this point, the court speculated that a “fresh start” in Mexico might work to his benefit given his poor choices and violations of the law. 53

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On appeal, the court held that the SIJS statute is not ambiguous and that the plain language means that a petitioner can satisfy this finding by showing an inability to reunify with one parent due to abuse, neglect, abandonment, or a similar basis found under state law. The court then considered and rejected both the In re Erick M. and the lower court’s ruling in H.S.P. v. J.K (discussed below). The appellate court explicitly rejected In re Erick M.’s reasoning and holding, including its understanding of the role of the state court in the SIJS process. In considering the Erick M. decision, the appellate court disagreed with the Erick M. court’s conclusion that the statute was ambiguous, finding instead that “it is commonplace for statutes to provide alternative means of satisfying a condition using the disjunctive word ‘or.’” 54 The appellate court went on to find that even if it considered the statute to be ambiguous, the Erick M. court’s rationale for resolving the ambiguity as it did was not persuasive because none of the USCIS unpublished decisions that the court relied upon discussed the pertinent issue: “whether ‘1 or both’ can be satisfied by a showing applicable to only one parent when there is another known parent.” 55 Further, the appellate court disagreed with the Erick M. court’s understanding of the relative roles of the state court and USCIS, holding that “[t]he task of weeding out bad faith applications falls to USCIS, which engages in a much broader inquiry than state courts.” 56 The appellate court also explicitly rejected the lower court’s decision in the H.S.P. case, finding that it should not have delved into legislative 52

In December 2012, Eddie made his initial request for SIJS findings from the juvenile court. The juvenile court refused to make the findings because it found that his commitment to juvenile hall and placement on probation did not qualify as being a dependent of the court. The appellate court reversed, finding that an alternative basis to satisfy the statute could be: having been “legally committed to, or placed in the custody of, an agency or department of a State, or an individual or entity.” See Eddie E. v. Superior Court, 223 Cal. App. 4th 622 (4th Dist. 2013). The appellate court remanded for consideration of this alternative basis to satisfy the first prong of the SIJS statute and for the court to consider the second and third prongs of the SIJS statute. 53 Eddie E. v. Superior Court, 234 Cal. App. 4th at 323. 54 Id. at 328. 55 Id. at 329. 56 Id.

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history without a finding that the statute was ambiguous, and that the court fundamentally misunderstood the state court’s role in the SIJS process. The appellate court also found that Eddie’s mother’s death did not render her abandonment ineffective, stating that “[i]t would be a particularly parsimonious reading of the statute … to deny relief to a petitioner who had been fully abandoned just because his or her parents, by dint of circumstance, died after the abandonment.” 57 Lastly, the court held that Eddie satisfied the third prong of the SIJS statute regarding whether it is in his best interest to be returned to Mexico, finding uncontradicted evidence that Eddie has lived in the U.S. his entire life, has family here, and has no one in Mexico to turn to. Accordingly, the appellate court directed the lower court to issue an order making the SIJS findings. H.S.P. v. J.K., a New Jersey Supreme Court decision, arose out of a custody petition filed by an uncle seeking custody of his seventeen-year-old nephew. A request for SIJS findings was also included, based on facts alleging that he had been abandoned and neglected by his father and neglected by his mother and that it was not in his best interest to return to India. The lower court found insufficient evidence that the minor was neglected or abandoned by either of his parents. On appeal, the court considered whether the second prong of the SIJS statute was satisfied, that is, whether reunification with 1 or both parents was not viable. The court found that there were facts sufficient to demonstrate neglect and abandonment by the father, but nonetheless denied the request for SIJS findings, holding that “[w]e understand the ‘1 or both’ phrase to require that reunification with neither parent is viable because of abuse, neglect or abandonment of the juvenile.” 58 The court relied on legislative history to reach this conclusion, ultimately finding that the legislative and administrative history showed “two competing goals.” 59 According to the appellate court, on one hand, “Congress wanted to permit use of the SIJ procedure when necessary to prevent the return of juveniles to unsafe parents…,” but “[w]here such protection is unnecessary, Congress wanted to prevent misuse of the SIJ statute for immigration advantage.” 60 Based on its own interpretation of the legislative history, the appellate court found that its interpretation of the “1 or both” language requiring reunification not be viable with both parents achieved both of Congress’ goals. The court also found that the contrary interpretation of the “1 or both” language would render the words “or both” superfluous because it would always be sufficient that reunification with one of the child’s parents was not viable.

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On appeal, the New Jersey Supreme Court held that the family court “plays a critical role in a minor immigrant’s attempt to obtain SIJ status but that role is closely circumscribed.” 61 The Supreme Court ordered lower courts to simply make factual findings with regard to each of the requirements for SIJS, and when “analyzing whether reunification with ‘1 or both’ parents is not viable due to abuse, neglect, or abandonment, the Family Part shall make separate findings as to each parent.” 62 By taking this approach, the court declined to interpret the SIJS statute and whether it permits “one-parent SIJS,” but nonetheless left the door open for children in such a

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factual situation to remain eligible to seek SIJS with the federal government. 63 The Supreme Court also made clear that in making the factual findings, the New Jersey courts should apply state law, rather than the law of the child’s country of origin.64 NOTE: Parents with whom a child resides cannot obtain an immigration benefit through the child. Even if a child may qualify as a Special Immigrant Juvenile while still with one parent, the statutory provision remains that “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”65 This means that a child who receives lawful permanent resident status as a Special Immigrant Juvenile can never petition for a parent to receive such status, even a non-offending parent, and even later in life when the child has become an adult U.S. citizen. This reflects the origins of Special Immigrant Juvenile Status as a means to address the situation of children separated from parents. E.

Reunification language in the SIJS order

After March 23, 2009, USCIS requires that the state court order contain the current language that “reunification with one or both of the immigrant’s parents is not viable.” 66 If you encounter a judge who is still looking to the pre-TVPRA statutory language or superseded regulations, you may end up with a court order employing the “eligible for long-term foster care” language. Even though a former finding of eligibility for long-term foster care should be considered equivalent to a finding that reunification with one or both parents is not viable, USCIS officers have been directed to look for this new language on reunification. USCIS has issued Requests for Evidence (RFEs) in cases where the SIJS orders use the old “eligible for long-term foster care” language or where the new language is not clear on the face of the order. Advocates should obtain a new SIJS order where possible. If this is not possible or it is too burdensome to go back into state court, advocates can try explaining that USCIS has interpreted in the past “eligible for long-term foster care” to mean that “reunification with one or both parents is not viable” such that the original SIJS order satisfies the new requirements under the TVPRA. USCIS has rejected this argument in many cases, but other advocates may have success.

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Some states, such as California and New York, have official state court forms used to make SIJS findings. See Appendix J. These state court forms may help streamline the process and give legitimacy to the role of state courts in entering these SIJS findings. Due to the rise in SIJS petitions, advocates should consider contacting their state or local judicial council to request that these forms be created for their state and/or locality. F.

Reunification findings for over-18 youth

Although 8 CFR § 204.11(c)(1) specifies that a youth can be eligible for SIJS up until the age of 21 years old, practically speaking, the requirement of a juvenile court order making the SIJS 63

Id. at 212. Id. at 212-213. 65 8 USC § 1101(a)(27)(J)(iii)(II). 66 6 USCIS-PM J.2(D) (stating, “[t]o be eligible for SIJ classification, a juvenile court in the United States must have issued order (or orders) with the following findings … [d]eclares, under the state child welfare law, that the petitioner cannot reunify with one or both of the petitioner’s parents…”). 64

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findings has meant that in many states, youth cannot apply for SIJS after the age of 18, when juvenile courts often lose jurisdiction over young people. However, in recent years many states have passed laws extending the jurisdiction of juvenile courts past the age of 18. For example, many states have extended the jurisdiction of their dependency or child welfare courts, and now offer extended foster care services. 67 Some states have also extended the jurisdiction of other juvenile courts, including delinquency courts and courts that grant guardianships and other types of custody orders. 68 Because of these changes in state law, it has become possible for more youth between the ages of 18 and 21 to seek and receive SIJS findings from state courts, opening the door for older youth to apply for SIJS. Prior to 2018, these cases were typically approved by USCIS. 69 In April of 2018, however, the New York Times published an article describing a “rule change” that was resulting in mass denials of post-18 SIJS cases in New York. 70 This sea change occurred without USCIS issuing any public announcement about a change in policy or otherwise announcing a new interpretation of the SIJS eligibility requirements. Soon thereafter, Politico reported on a “clarification” by the USCIS chief counsel’s office—never announced publicly— “which called in February for the agency to reject pending applications in cases where applicants could not be returned to the custody of a parent.” 71 Since most courts cannot place a child back in the custody of their parent once the child reaches the age of majority, according to the new USCIS interpretation, those state courts “do not have power and authority to make the reunification findings for purposes of SIJ eligibility.” 72 At the time of writing, class action lawsuits have been filed in New York and California challenging USCIS’s denial of cases based on this unannounced policy change. 73 The New York and California litigation both argue, among other things, that USCIS’s change in policy violates the Administrative Procedure Act, 5 USC § 706(2), in that the agency is acting arbitrarily and capriciously, not in accordance with law, and in excess of its statutory authority by denying cases of children between the ages of 18 and 21.

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See Child Welfare Information Gateway, Extension of Foster Care Beyond Age 18 (Feb. 2017), https://www.childwelfare.gov/pubPDFs/extensionfc.pdf. 68 For example, post-18 guardianships are possible in California under Section 1510.1 of the California Probate Code, and post-18 guardianships are possible in New York under Section 661(a) of the New York Family Court Act. 69 Denials of post-18 cases based on SIJS orders made in the state of Texas were being denied earlier than this, but on different legal grounds. 70 Liz Robbins, A Rule is Changed for Young Immigrants, and Green Card Hopes Fade, N.Y. TIMES, Apr. 17, 2018, https://www.nytimes.com/2018/04/18/nyregion/special-immigrant-juvenile-status-trump.html. 71 Ted Hesson, USCIS Explains Juvenile Visa Denials, POLITICO, Apr. 25, 2018, https://www.politico.com/newsletters/morning-shift/2018/04/25/travel-ban-at-scotus-182935. 72 Id. 73 M. et al v. Nielsen et al, No. 1:18-cv-05068 (S.D.N.Y. filed June 7, 2018) and J.L. et al v. Cissna et al, No. 5:18-cv-04914 (N.D. Cal. filed Aug. 14, 2018).

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§ 4.5 Due to Abuse, Neglect, Abandonment, or a Similar Basis Found Under State Law: Legal Standards, USCIS Requests for Evidence and Documentation A.

Requirement to show abuse, neglect, abandonment, or a similar basis found under state law

Under the SIJS statute, reunification with one or both parents must not be viable “due to abuse, neglect, abandonment, or a similar basis found under State law.” 74 The words “due to abuse, neglect, or abandonment” were added to the statute in 1997 to prevent entry of an SIJS order merely to help the child gain lawful immigration status. 75 While this language prohibits establishing SIJS eligibility via juvenile court jurisdiction for children not otherwise in need, it does not require that formal charges of abuse, neglect, or abandonment be levied against parents. For example, a child for whom the court appoints a guardian can qualify without a separate proceeding against the parents alleging abuse, neglect, or abandonment. In 2008, the TVPRA added the language, “or a similar basis found under State law.” 76 This accommodates the range of statutory language employed in various jurisdictions to determine when a juvenile court can intervene to make decisions about the care and custody of children and, consequently, who now may be eligible for SIJS. An SIJS applicant must establish that the similar basis in state law is similar to a finding of abuse, neglect, or abandonment. 77 The effect of “a similar basis found under state law” and legal terms other than “abuse, neglect, or abandonment.” Some states use different legal terms to describe the basis for refusing to reunify a child with their parents. 78 The TVPRA broadened the eligibility requirements such that these state law findings based on slightly different vocabulary meet the statutory requirements of SIJS.

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INA § 101(a)(27)(J)(i). Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, §§ 111, 113 Stat. 2440, 2460. The House Conference Report on this amendment states that “[t]he language has been modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children.” 105 H. Rpt. 405, Section 113 (1997), reprinted in 1997 USCCAN 2941, 2981. 76 TVPRA § 235(d)(1). 77 6 USCIS-PM J.3(A)(2) (“If a juvenile court order makes the findings based upon a state law similar to abuse, neglect, or abandonment, the petitioner must establish that the nature and elements of the state law are indeed similar to the nature and elements of laws on abuse, neglect, or abandonment. Petitioners are encouraged to submit the juvenile court’s findings of how the basis is similar to abuse, neglect, or abandonment and copies of the relevant laws.”). 78 The 2011 proposed revised SIJS regulations (which, as of the time of this writing have not been finalized) include this helpful example: “For example, under Connecticut law, a child may be found ‘uncared for’ if the child is ‘homeless’ or if his or her ‘home cannot provide the specialized care that the physical, emotional or mental condition of the child requires.’ See Conn. Gen. Stat. Ann. section 46b– 120(9). ‘Uncared for’ may be similar to abuse, abandonment, or neglect because children found ‘uncared for’ are equally entitled to juvenile court intervention and protection. The outcomes for children adjudged ‘uncared for’ are the same as they are for children adjudged abused, abandoned, or neglected. See Conn. Gen. Stat. Ann. section 46b–120(8), (9); 121(a).”

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The phrase “similar basis found under state law” 79 also provides support for delinquency-related SIJS findings. Many juvenile delinquency courts do not regularly make findings regarding abuse, neglect, or abandonment because these findings may be in the typical jurisdiction of dependency courts. (Note, some state courts are unified courts and they hear both delinquency and dependency cases, and thus, this may not be an issue.) Delinquency courts, however, do make decisions regarding the care and custody of children who are under their jurisdiction. They assess whether it is safe and appropriate to return a child to their parents although they may not use the precise terms “abuse” or “neglect.” The TVPRA gives delinquency courts greater leeway to enter similar findings under state law and within their jurisdiction. USCIS, nonetheless, seems wary of broadening the class of eligible SIJS petitioners too much, and, as a result, imposes an additional burden on applicants seeking to establish eligibility tied to a “similar basis found under state law.” These applicants must establish that such a basis is in fact similar to a finding of abuse, neglect, or abandonment. 80 To avoid this extra step, if the child’s reunification with one or both parents was found not viable under some other legal term it still may be best to ask the judge to include in the SIJS order one of the designated statutory terms of “abuse, neglect, or abandonment.” The judge should use the term whose plain meaning reflects what actually happened to the child. Abuse, neglect, and abandonment are defined under state law. The state juvenile court decides—consistent with state law—whether to take jurisdiction over a child and order nonreunification due to abuse, neglect, or abandonment or a similar basis under state law. USCIS, therefore, cannot assert that it disagrees with a state’s definition of abuse, neglect, or abandonment. It cannot attempt to impose some federal definition. Rather, the crucial determination is whether a judge, under the applicable law of the state, has found abuse, neglect, or abandonment or some other similar finding that justifies not reunifying the child with one or both of their parents. 81

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NOTE: Advocates may be able to argue that death constitutes a similar basis to abandonment. When a child is unable to reunify with one or both parents because of a parent or parents’ death, it may be possible to argue that death constitutes a similar basis to abandonment under state law. Many practitioners in California, for example, have been able to successfully argue that the death of a parent constitutes a similar basis to abandonment under state law because it similarly leaves the child without that parent’s support, which is consistent with the definition of abandonment in the California Welfare & Institutions Code § 300(g). Practitioners should research their relevant state laws to determine if this is a possible argument in their state.

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INA § 101(a)(27)(J)(i). 6 USCIS-PM J.3(A)(2). 81 6 USCIS-PM J.2(D) (“To be eligible for SIJ classification, a juvenile court in the United States must have issued order (or orders) with the following findings … [d]eclares, under the state child welfare law, that the petitioner cannot reunify with one or both of the petitioner’s parents…”). In the H.S.P. v. J.K. case discussed above, the New Jersey Appellate Court applied the law of India—the child’s country of birth— rather than New Jersey law. On appeal, the Supreme Court held that whether reunification is not viable with a parent due to abuse, neglect, or abandonment must be determined under New Jersey law. H.S.P. v. J.K, 223 N.J. at 215. 80

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Where the child’s mistreatment occurred. There is no requirement in the statute or regulations that the abuse, neglect, or abandonment occurred in the United States. The USCIS-PM states that “[c]hildren who have been abused prior to their arrival in the United States, or while in the United States” may be eligible for SIJS. In reality, many immigrant children lost parents or escaped abusive parents in the country of origin and came to the United States alone. Some state juvenile dependency courts may be open to accepting these unaccompanied or abandoned children (as they may be open to accepting U.S. citizen children who are living on the street, as opposed to children directly removed from families). The only legal issue is whether the court has made its determinations based on abuse, neglect, or abandonment of the child as defined under state law. Advocates should be aware that there are many jurisdictions where the dependency system has opposed accepting these children. They have argued that they do not have jurisdiction over abuse, neglect, or abandonment that occurs outside of their jurisdiction (whether it occurs out of their county, state, or outside of the country). In many of these jurisdictions, other factors drive the decision to not accept these children—including bias against immigrants, limited resources, and the age of the unaccompanied children when they come to the state’s attention (many of whom are older teenagers).

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Abuse, neglect, abandonment, or a similar basis found under state law language in the SIJS order. To people involved in juvenile court, it seems obvious that abuse, neglect, or abandonment would be the basis for SIJS orders, but the statute requires judges to make this finding explicit. For that reason, every SIJS order submitted to USCIS should include a statement identifying the basis for the order. It is not sufficient to simply track the language of the statute; some individualized facts should be included. 82 Some examples of fact-based findings that could be included in the order include: •

“On January 4, 2017, reunification with both parents was determined not viable due to abandonment, in that the parents have not provided any financial or emotional support, nor attempted to communicate with the child for the prior eleven years. Therefore, under California state law, minor’s parents abandoned her. Cal. Welf. & Inst. Code § 300(g).” or

•

“The above orders and findings were based on the physical and emotional abuse of the child by the father, including weekly beatings with a belt, calling him “good for nothing,” and employing corporal punishment when he didn’t work hard enough, even at the young age of 7 years old. The court determined that reunification with the father is not viable due to his physical and emotional abuse of the child under Section 300(a) of the California Welfare & Institutions Code.”

See sample SIJS orders in Appendix J. If you are an AILA member, you can access their practice pointer and samples here: https://aila.org/infonet/practice-pointer-crafting-sij-findings-with-state.

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6 USCIS-PM J.3(A)(2) (“The order (or orders) should not just mirror or cite to immigration law and regulations.”).

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Evidence and documentation regarding abuse, neglect, abandonment, or a similar basis found under state law

For years, there has been controversy and confusion about what kind of evidence USCIS can require about abuse, neglect, or abandonment of the child. Prior to the issuance of the Policy Manual and the increase in Requests for Evidence (RFEs) and/or Notices of Intent to Deny (NOIDs) seeking additional evidence, the best course was often to provide an SIJS order with the minimum amount of information needed to meet the legal elements of SIJS and not to supply a host of unnecessary details about the mistreatment, family, living situation, or other topics. The reason for this was simple: USCIS officers are in no way trained to evaluate or interpret whether a child has been abused, neglected, or abandoned, to analyze facts under governing state law concerning children, or to draw their own conclusions from facts presented by children. Moreover, giving the information to USCIS may violate state legal and ethical rules regarding confidentiality. 83 However, in the last few years, there has been a steep increase in the number of RFEs and NOIDs indicating that cases without additional evidence regarding abuse, neglect, or abandonment will not be approved. Although USCIS has not made this blatant, it seems clear that USCIS’s concern is that youth are filing underlying petitions in state courts solely to seek SIJS findings. Unfortunately, the portion of the statute relating to USCIS “consent” to the grant of SIJS is vague and could be read to support some USCIS inquiry. USCIS has stated that in consenting to the grant of SIJS, it will evaluate whether the request is bona fide. In order to make this determination, USCIS requires that the child provide a reasonable factual basis for the state court order, which demonstrates that the juvenile court order was sought primarily for protection from abuse, neglect, or abandonment rather than primarily to obtain an immigration benefit. 84 USCIS has issued some public guidance indicating what evidence it expects to demonstrate the reasonable factual basis, 85 however, this information is in some ways inconsistent with its internal 83

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USCIS has recognized this. See 6 USCIS-PM J.3(B) (“USCIS is mindful that there are often confidentiality rules that govern disclosure of records from juvenile-related proceedings. For this reason, officers generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.”). 84 6 USCIS-PM J.2(D)(5) (“In order to consent, USCIS must review the juvenile court order to conclude that the request for SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit.”). See also USCIS Memorandum, Response to Recommendation 47, Special Immigrant Juvenile (SIJ) Adjudications: An Opportunity for Adoption of Best Practices, 4 (Jul. 13, 2011), http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses% 20to%20Formal%20Recommendations/cisomb-2011-response47.pdf; USCIS, Immigration Relief for Abused Children, http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Thro ugh%20a%20Job/Immigration_Relief_for_Abused_Children-FINAL.pdf [hereinafter, Immigration Relief for Abused Children]. 85 See 6 USCIS-PM J.2(D)(5) (“The evidence needed does not have to be overly detailed, but must confirm that the juvenile court made an informed decision in order to be considered ‘reasonable.’ USCIS generally consents to the grant of SIJ classification when the order includes or is supplemented by a reasonable factual basis for all of the required findings.”); Immigration Relief for Abused Children, supra note 84 (“[t]he court order should include the factual basis for the findings on parental reunification, dependency/custody, and best interests. Alternatively, the child or the child’s attorney may submit separate

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guidance requiring that USCIS “relies on the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if the child was subjected to abuse, neglect, abandonment, or a similar basis under state law.” 86 In the event of RFEs, advocates need to decide how to proceed if USCIS requires information or documents beyond the SIJS order. See Chapter 8 for more information on responding to an RFE that questions the reasonable factual basis for the state court order. If it is not possible to resolve the issue with the NBC, you may elevate these issues to the USCIS Ombudsman. 87 Evidence in the SIJS order and accompanying findings of fact. In many cases, the SIJS order itself—with a brief version of the underlying findings of fact included—should be sufficient evidence of abuse, neglect, or abandonment. The USCIS adjudicator generally should not secondguess the court rulings or question whether the court’s order was properly issued. 88 The USCISPM provides, “The evidence needed does not have to be overly detailed, but must confirm that the juvenile court made an informed decision in order to be considered ‘reasonable.’ USCIS generally consents to the grant of SIJ classification when the order includes or is supplemented by a reasonable factual basis for all of the required findings.” 89 Some advocates feel a legal or ethical obligation to disclose only the legal basis for the juvenile court’s jurisdiction and not to give further factual information. For example, a court order could state that “the minor was made a dependent of this court and reunification with one or both parents is not viable due to abuse under Cal. Welf. & Inst. Code § 300(a) (physical abuse) and § 300(d) (sexual abuse).” Yet this is evidence that the juvenile court deemed reunification with one or both parents not viable due to abuse, neglect, or abandonment. Other advocates include the factual basis in the state court order itself, and are prepared to submit a declaration to USCIS in the event of an RFE expressing concern that the state court did not have sufficient facts before them to make the findings. If USCIS challenges your case and demands more evidence, you should closely examine the USCIS-PM. Although somewhat vaguely written, it suggests that if the SIJS order provides the basic information, the USCIS adjudicator will “consent” to accepting the order as the basis for SIJS. If the order does not provide the necessary information, the USCIS-PM discusses alternative ways to establish the factual basis for the court order that are acceptable to USCIS. These include:

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“Any supporting documents submitted to the juvenile court, if available; The petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings;

findings of fact, records from the judicial proceedings, or affidavits summarizing the evidence presented to the court.”) 86 6 USCIS-PM J.2(D)(5). 87 See www.uscis.gov for current contact information. 88 6 USCIS-PM J.2(D)(5). 89 6 USCIS-PM J.2(D)(5). See also 6 USCIS-PM J.3(A)(3) (“Orders that have the necessary findings or rulings and include, or are supplemented by, the factual basis for the court’s findings (for example, the judicial findings of fact) are usually sufficient to establish eligibility.”).

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Affidavits summarizing the evidence presented to the court and records from the judicial proceedings; and Affidavits or records that are consistent with the findings made by the court.” 90

We recommend that information about all of the SIJS requirements should be provided in the SIJS order, where possible. However, if it is not possible to obtain a juvenile court order with information establishing all the SIJS requirements and the factual bases for each requirement, you may need to submit additional evidence of the factual bases. We do not recommend providing the documentation in the first or second bullets above in most cases; rather, it is the ILRC’s position that it is best to submit the types of evidence suggested in the third and fourth bullets. Where possible to do so without violating state confidentiality laws, we suggest that attorneys or the client or family member provide an affidavit summarizing the evidence presented to the court. Where this is not possible or preferable, we suggest providing affidavits that are consistent with the findings made by the court. Nonetheless, advocates will have to make an individualized determination in each case about whether it is in their client’s interest to disclose any documents from the state court proceedings. Always keep in mind though that confidentiality provisions in many states limit who can see and obtain juvenile court records and provide that court permission is needed to disseminate records to unauthorized parties. Thus, before turning over documents to USCIS or other federal immigration authorities including the immigration court, ensure that you are complying with applicable state and local confidentiality provisions. There may be civil or criminal sanctions under state law for unauthorized disclosure. In the context of DACA, USCIS agreed that juvenile court records need not be submitted where they are protected from disclosure without court authorization. This rule should apply across the board to juvenile records. 91 The USCIS-PM also acknowledges that “there are often confidentiality rules that govern disclosure of records from juvenile-related proceedings. For this reason, officers generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.” 92 For more information about confidentiality see § 17.12.

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Evidence from the child himself or herself. In general, following the centralization of adjudication of SIJS cases at the National Benefits Center (NBC), USCIS no longer conducts interviews for purposes of adjudicating the SIJS petition. However, they retain discretion to interview a petitioner “when an interview is deemed necessary.” 93 USCIS states that it generally will “not require an interview if the record contains sufficient information and evidence to approve the petition without an in-person assessment.” 94 When an interview is required, USCIS has acknowledged that they will “avoid questioning the petitioner about the details of the abuse, neglect, or abandonment suffered, because these issues are handled by the juvenile court.” 95 90

6 USCIS-PM J.3(A)(3). See Form I-821D, Part 4, Question 1 (stating: “Have you EVER been arrested for, charged with, or convicted of a felony or misdemeanor, including incidents handled in juvenile court, in the United States? Do not include minor traffic violations unless they were alcohol- or drug-related. [Yes] [No] If you answered “Yes,” you must include a certified court disposition, arrest record, charging document, sentencing record, etc., for each arrest, unless disclosure is prohibited under state law) (emphasis added). 92 6 USCIS-PM J.3(B). 93 6 USCIS-PM J.4(C)(1). 94 Id. 95 6 USCIS-PM J.4(C)(2). 91

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Furthermore, the USCIS officer cannot require the child at any stage in the SIJS process to contact “the individual (or family members of the individual) who allegedly abused, abandoned, or neglected the juvenile.” 96 Advocates should halt interviews in which USCIS officers are asking inappropriate questions and ask to speak with a supervisor. They should bring copies of the portion of the USCIS-PM addressing interviews to support their position that this questioning has no place in a child’s interview. § 4.6

Not in the Child’s Best Interest to Be Returned to Country of Nationality or Last Habitual Residence

The juvenile court or an administrative body must find that it is not in the child’s best interest to return to their home country. The TVPRA did not change this requirement and petitioners are still bound to follow it. Specifically, the immigration statute states that to qualify for SIJS, the child must be a person for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence. 97 The SIJS regulations do not specify what factors the juvenile court or administrative body must take into account in making this determination. The “best interest of the child” determination is one to be made by the juvenile court or agency officials based on applicable state law. The court or agency determination should be made on the wide range of factors usually considered in a “best interest of the child” finding, and is not limited merely to factors relating to abuse, neglect, or abandonment. Both the downsides of the child returning to their home country and the upsides of remaining in the United States are relevant. Often the factors that weigh into the decision include family and friend support systems, the child’s emotional and physical well-being, as well as medical and educational resources that the child may require. Some specific factors that may be relevant include:

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Child fears retaliation by abusive family members in home country. Child has no responsible family members to provide them with care and protection in home country or conditions of generalized violence or war are such in the home country that the family members would be unable to protect the child. Child will have inadequate access to medical, educational, or social services in home country. Child is receiving specific medical, psychological, and/or educational services in the United States. Child is acculturated to life in the United States, has been educated in the United States, etc. Child’s personal ties, e.g., guardian, siblings, supportive relatives, and friends in the United States.

INA § 287(h). INA § 101(a)(27)(J)(ii).

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PRACTICE POINTER: In Leslie H. v. Superior Court, the Fourth District Court of Appeals in California held that the lower court had erred in concluding that repatriation was in the minor’s best interest, noting “[t]he court based its finding on anecdotal impressions, untethered to any evidence in this case, that parents of troubled immigrant children may sometimes ‘send their children back to Mexico to get them of [sic] out of the negative environment that has placed them in the juvenile court.’ But the juvenile court ignored that Leslie as an unaccompanied minor had no one to return to safely in Mexico.” 98 Advocates should cite to this language if confronted with a judge attempting to take into consideration inappropriate or irrelevant factors in making a best interests determination. The easiest course is to have the juvenile court judge include this finding along with the others in their order that will be submitted to USCIS. See sample judge’s orders at Appendix J. 99 However, the law also contemplates that other judicial or administrative bodies (not judges) authorized or recognized by the juvenile court may make such a determination.100 If a particular juvenile court establishes or endorses an alternate process for this finding, a ruling from that process may satisfy the requirement. The USCIS-PM states that the order or other supporting evidence should indicate “[t]he factual basis for the determination that it is not in the petitioner’s best interest to return to (a placement in) the petitioner’s or his or her parents’ country of nationality or last habitual residence (for example, addressing family reunification with family that remains in the child’s country of nationality or last habitual residence).” 101 Obviously, the court or other administrative body must base this “best interest” finding on evidence, so court investigators, social workers, probation officers, or others writing reports to the court or attorneys petitioning the court for these findings should discuss their efforts to determine the conditions for the child in the home country, the conditions for the child in the United States, and the basis for their recommendation that it is not in the child’s best interest to leave the United States and return to their country of origin. It is possible that USCIS may demand details about the situation in the child’s home country. Such a demand conflicts with the plain language of the statute. The statute, quoted above, requires evidence that a judicial or administrative body has determined that it is not in a child’s best interest to return, not direct evidence about the conditions in the home country itself. 102

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98 Leslie H. v. Superior Court, 224 Cal. App. 4th 340, 352 (4th Dist. 2014); see also Eddie E. v. Superior Court, 234 Cal. App. 4th 319 (4th Dist. 2015) (stating, “[t]he court’s conclusion—that sending petitioner to a foreign country with no support at all is better than him remaining here—finds no support in either reason or evidence”). 99 It may be necessary to explain the need for such an order to the judge, since a specific finding that it is not in the child’s best interest to return to the home country may go beyond the usual formal requirements of dependency or delinquency proceedings. It is often most efficient to draft and bring the court order to the hearing ready for the judge to use and sign. A sample order appears at Appendix J. 100 8 CFR § 204.11(c)(6). 101 6 USCIS-PM J.3(A)(4). 102 See INA § 101(a)(27)(J)(ii). See also the regulation at 8 CFR § 204.11(c)(6), which simply repeats the statutory language that a court or administrative body must have made the finding. In California, a Judicial Council Memorandum regarding the implementation of SB 873 (a September 2014 California law clarifying the SIJS process in California superior courts) states: “It is not necessary for the superior courts

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Again, advocates will have to decide what information is legal, ethical or advisable for them to disclose in the face of inappropriate USCIS demands. See discussion in § 4.5. § 4.7

Consent to the Grant of SIJS and Specific Consent

The SIJS law provides for two types of consent. One type involves USCIS consent to the grant of Special Immigrant Juvenile Status. This type of consent, required in every SIJS case and evidenced by the approval of the SIJS petition, replaces the concept of “express consent” in place before the TVPRA. 103 The other type of consent involves the fairly unusual case in which a child is in the custody of the Office of Refugee Resettlement (ORR) during removal proceedings because they are deemed “unaccompanied” and seeks a change in custody status or placement to a local jurisdiction. This is referred to as “specific” consent. Both types of consent are discussed below. A.

USCIS consent to the grant of SIJS

USCIS consent to the grant of SIJS is an additional requirement for an SIJS applicant. The statute specifically provides that a Special Immigrant Juvenile is someone “in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status.” 104 This consent requirement results from the TVPRA’s aim to simplify the requirement formerly known as “express consent.” 105 According to USCIS, this consent is no longer consent to the dependency order serving as a precondition to a grant of SIJS, but rather an acknowledgment that the request for SIJS classification is bona fide. 106 The now-superseded Neufeld Memorandum states, This means that the SIJ benefit was not ‘sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment.’ See H.R. Rep. No. 105-405, at 130 (1997). An approval of an SIJ petition itself shall be evidence of the Secretary’s consent. 107 The USCIS-PM contains a similar explanation of consent, stating:

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In order to consent, USCIS must review the juvenile court order to conclude that the request for SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit. The court ordered dependency or custodial placement of the child is the relief being sought from the to develop expertise on the living conditions in multiple foreign countries. The court can focus on circumstances shown by the evidence presented to be directly connected to the child’s life and relationship in the United States and in his or [her] country of origin.” See Memorandum to the Presiding Judges and Court Executive Officers of the Superior Courts: Senate Bill 873 and the Special Immigrant Juvenile Process in the Superior Courts, 15-16 (Sept. 30, 2014), http://www.ncjfcj.org/sites/default/files/SIJ%2BMemo%2Bfor%2BCourts%2BSeptember%2B2014.pdf. 103 Neufeld Memorandum, supra note 3, at 3. 104 INA § 101(a)(27)(J)(iii). 105 Neufeld Memorandum, supra note 3, at 3. 106 Neufeld Memorandum, supra note 3, at 3. 107 Neufeld Memorandum, supra note 3, at 3.

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juvenile court, and the factual basis of each of the required findings is evidence that the request for SIJ classification is bona fide. 108 How this consent requirement differs in practice from the old express consent requirement is unclear. Advocates have taken issue with USCIS’s statement that the juvenile court order must not be sought primarily for the purpose of obtaining status. Of course, youth seeking an order from the state court with the SIJS findings are doing so in order to seek immigration status. In reality, USCIS examines whether the initiation of juvenile court action itself was sought for an immigration benefit, a very different inquiry. A discussion of the prior consent requirement before the TVPRA’s enactment may help shed light on this provision’s potential impact. The original express consent requirement, imposed by a 1997 statutory amendment, was intended to give USCIS the authority to deny SIJS if the SIJS order and child welfare proceedings underlying the order were suspected of being a sham. 109 The legislative history to the amendment stated that to consent, USCIS must find that the court’s actions were made due to abuse, neglect and abandonment of the child, rather than primarily for the purpose of obtaining SIJS. 110 In practical terms, USCIS interpreted this law to mean that it would “consent” to (i.e., accept) the dependency order serving as a basis for SIJS if the applicant established the required legal elements and was bona fide—and that it would not consent if the applicant did not. USCIS, however, conflated consent with an SIJS grant. USCIS made this “consent” just in the act of approving the SIJS petition. There was no separate application for consent. For that reason, in the majority of cases the consent issue did not come up. USCIS just “consented” when it granted the SIJS petition.

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The current consent requirement no longer requires consent to the juvenile court judge’s order serving as a precondition for SIJS, but merely consent to a grant of SIJS itself. The current language arguably cuts back on the right of USCIS to second guess state court findings and go behind SIJS orders to question abuse, neglect, or abandonment or similar findings. Nonetheless, this provision appears to leave USCIS room to deny cases that otherwise meet the SIJS requirements. For example, at the time of writing, advocates report that this consent function is being used to question whether petitions are bona fide in many “one-parent” cases where the child resides with one parent, or came under juvenile court jurisdiction close to the age of eighteen in jurisdictions where state juvenile court jurisdiction ends when youth reach the age of eighteen, or came under juvenile court jurisdiction after the age of eighteen in jurisdictions where state court jurisdiction extends up to the age of twenty-one. Overall, it is unclear how far this provision cuts back on USCIS’s previous authority to question the SIJS findings. Advocates might receive a decision where a USCIS officer questioned the validity of the SIJS order or wrongly asserted that USCIS “consent” can be based on anything, such as the fact that the child is in delinquency rather than dependency proceedings, or other reasons unrelated to the bona fides of the SIJS claim. If this occurs, advocates should argue against this approach in their

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6 USCIS-PM J.2(D)(5). See INA § 101(a)(27)(J)(iii) (as originally enacted as of November 26, 1997, P.L. 105-119, Title I, § 113). 110 See 105 H. Rpt. 405, Section 113 (1997), reprinted in 1997 USCCAN 2941, 2981. 109

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response to the RFE or NOID and appeal adverse decisions if they are issued. If necessary, advocates may also consider federal court litigation. B.

Specific consent to determine or alter custody status or placement of children in ORR custody

The second type of consent that may be required in a very limited number of cases is known as “specific consent.” Specific consent comes into play when the child is placed in the custody of ORR during removal proceedings because they were deemed “unaccompanied,” and now seek a change in custody status or placement to a local jurisdiction by going into state court. The law provides that in the case of an unaccompanied immigrant child who is already in ORR custody before coming to juvenile court, a juvenile court judge cannot determine or alter the child’s custody status or placement without ORR’s permission. This would arise, for example, if the child was petitioning to be moved from a federal ORR facility to a local facility, e.g., a group home that is under local and not federal jurisdiction. Since March 23, 2009 (the date of enactment of the TVPRA for new cases), juveniles in federal custody seeking a state juvenile court determination on their custody or placement status must first obtain “specific consent” from ORR. 111 Importantly, specific consent is not needed in every case to enter into a state juvenile court to obtain an SIJS order. Custody or placement is not always an issue that arises in the process of obtaining the SIJS order. The USCIS-PM provides that If a petitioner is currently in the custody of the U.S. Department of Health and Human Services (HHS) and seeks a juvenile court order that also alters his or her custody status or placement, HHS must consent to the juvenile court’s jurisdiction. HHS consent is not required if the order simply restates the petitioner’s current placement. 112 Requests for consent for a juvenile court to order a change in custody or placement determination over a child in ORR custody must be made in writing to ORR. Sample forms are provided in Appendix Q. Further information on seeking specific consent is found in § 7.6.

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Transfer of specific consent authority from DHS to ORR. The TVPRA transferred specific consent authority from the Secretary of the Department of Homeland Security (DHS) to the Secretary of the Department of Health and Human Services (HHS) (which in turn delegates this authority to ORR). 113 This is a notable change. Prior to the TVPRA, the specific consent had to be obtained from DHS, which had policies and practices toward unaccompanied minors that were confusing, inconsistent, and detrimental for these youth. 114 Specifically, DHS refused to grant specific consent in the majority of cases to allow a child to proceed to state court to obtain an

111 INA § 101(a)(27)(J)(iii)(I). The statute provides, “no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction.” 112 6 USCIS-PM J.2(E). 113 See Neufeld Memorandum, supra note 3, at 3. 114 TVPRA Practice Advisory, supra note 31, at 4.

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SIJS order. This led to a class action lawsuit in 2008, Perez-Olano v. Gonzalez, which was eventually resolved via a Settlement Agreement in December 2010. 115 In Perez-Olano, the U.S. District Court of Central California enjoined Immigration Customs and Enforcement (ICE) from limiting the rights of immigrant children to go into state court unless the state court’s decision would alter the physical or legal custody of the child. The order enjoined the government from requiring specific consent in the case that a minor was in federal custody and was simply seeking a SIJ-predicate order in state court. 116 The certified class included plaintiffs whose requests for specific consent had been denied or not adjudicated before they turned 18. On April 11, 2008, defendants filed an appeal with the U.S. Court of Appeals for the Ninth Circuit, and plaintiffs cross-appealed. The TVPRA was enacted on December 23, 2008 and among other things, codified Perez-Olano’s original holding that specific consent is only needed if the juvenile court is seeking to alter the physical or legal custody of the child, while also transferring specific consent authority from DHS to ORR. This transfer in authority resulted in more children being able to access state juvenile courts while in ORR custody. On December 14, 2010, the parties entered into a nationwide settlement agreement, dismissing the action with prejudice and seeking dissolution of the court’s permanent injunction order of January 8, 2008. The Settlement Agreement required, among other things, that all undocumented persons who, on or after May 13, 2005, apply or applied for SIJS or SIJS-based adjustment of status only need to obtain HHS “specific consent” if they are in HHS custody and seek a juvenile court order determining or altering their custody status or placement. An enforcement action was brought in this case in mid-2014, but did not deal with the specific consent provision, as this process has proved far less problematic post-TVPRA. The Settlement Agreement sunset on December 13, 2016, but thankfully the specific consent provision has been clarified by the TVPRA.

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“Actual or constructive” immigration custody. The TVPRA simplified the specific consent language to refer simply to children in HHS “custody.” 117 Previously, the SIJS statute required specific consent for children in “actual or constructive” federal custody. 118 These terms reflected the various custody situations of children in removal proceedings, including secure detention, shelters, and sponsored foster care settings. It also arguably encompassed children who never were in the federal government’s physical custody, but who had outstanding removal orders, but this was never perfectly clear. The TVPRA has removed this element of uncertainty and narrowed the pool of children requiring specific consent.

115

Settlement Agreement in Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, 7, ¶ 19 (C.D. Cal. Dec. 14, 2010), http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settlement%20Notices%20and %20Agreements/Perez-Olano%20v%20Holder/Signed_Settlement_Agreement.pdf. 116 Id., at 2. 117 See Neufeld Memorandum, supra note 3, at 3. 118 See INA § 101(a)(27)(J)(iii) (as originally enacted as of November 26, 1997, P.L. 105-119, Title I, § 113).

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§ 4.8

Additional Regulatory Requirements: Age, Continuing Jurisdiction of the Juvenile Court, and Marriage

The federal statute sets out requirements a child must meet in order to qualify for SIJS. USCIS, in its own regulations, adds more requirements. Until regulations implementing the TVPRA are issued, requirements under these regulations that do not conflict with and are not addressed by the SIJS statute arguably remain in place. These USCIS-imposed requirements will be discussed in this section. Advocates should make every possible effort to comply with these USCIS requirements. However, if compliance is impossible, keep in mind that these requirements (in particular the continuing jurisdiction requirement) may be eliminated under new regulations whenever they are finalized (proposed regulations were issued in 2011 but, as of the time of this writing, have not been finalized). Further, these USCIS requirements are sometimes vulnerable to change, as was the case in an enforcement action brought in Perez-Olano v. Gonzalez. 119 This enforcement action, filed in 2014, argued that under the Perez-Olano Settlement Agreement and the TVPRA, SIJS applicants need only be under 21 years of age at the time they apply for SIJS, and not the subject of valid dependency orders at the time of application. The government stipulated to this interpretation in 2015, but that Stipulation recently expired on June 15, 2018, so it remains to be seen how the government will treat these types of cases now that the Stipulation is no longer in force. 120 For more information on this enforcement action and Stipulation, see Chapter 7. A.

The age of 21

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Under USCIS regulations, any person under 21 years of age who meets the requirements can apply for SIJS. 121 Historically, this meant that applicants needed to complete the entire immigration adjudication process prior to age 21. The TVPRA, however, provided age-out protection to Special Immigrant Juvenile applicants.122 Beginning December 23, 2008, so long as an applicant is under 21 years of age on the date on which an SIJS petition is properly filed, USCIS cannot deny SIJS to a person based on age. As such, officers must consider the petitioner’s age at the time of filing to determine whether the petitioner has met the age requirement.123 The Neufeld Memorandum (now superseded, but which provides helpful historical information about changes made by the TVPRA) directs that “[o]fficers must not deny or revoke SIJ status based on age if the alien was a child on the date the SIJ petition was properly filed if it was filed on or after December 23, 2008, or if it was pending as of December 23, 2008.” 124 Although the SIJS regulations have not been updated to reflect the statutory changes made by the TVPRA in 2008, the proposed SIJS 119

Memorandum of Points & Authorities in Support of Motion for Class-Wide Enforcement of Settlement, Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, (C.D. Cal. Dec. 14, 2010) (Aug. 25, 2014), http://www.centerforhumanrights.org/PDFs/PerezEnforceMemo.pdf. 120 Perez-Olano et al. v. Gonzalez et al., No. 2:05-cv-03604-DDP-RZ (C.D. Cal. filed Mar. 4, 2015) (stipulation settling motion for class-wide enforcement of settlement). 121 8 CFR § 204.11(c)(1). 122 Trafficking Victims Protection Reauthorization Act of 2008, § 235(d), Pub. L. No. 110-457, 122 Stat. 5044 (2008), § 235(d)(6). 123 6 USCIS-PM J.2(C) (“USCIS considers the petitioner’s age at the time the SIJ petition is filed when determining whether the petitioner has met the age requirement”). 124 Neufeld Memorandum, supra note 3, at 2-3.

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regulations (issued in 2011, but not yet finalized) provide that an individual is eligible for SIJS classification if they are “under 21 years of age at the time of filing” (emphasis added). 125 This age-out protection, however, is in tension with the regulation requiring that until the end of the immigration processing the child must “continue[] to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended.” 126 For more discussion on this requirement see Subsection B below. In the past, this provision meant that for many applicants in jurisdictions where courts did not maintain jurisdiction over them until age 21, the de facto age limit was set by the age at which the court relinquished jurisdiction. Moreover, courts have been urged to delay finalization of adoptions, termination of probation, or continuing juvenile court jurisdiction for children with pending Special Immigrant Juvenile petitions to ensure continuing court jurisdiction until the immigration process is complete. While it seems clear that the statute now intends to protect a child from aging out of eligibility, the lack of updated regulations means that this tension between the statute and regulations continues to exist. The proposed revised regulatory eligibility requirements, set forth in the 2011 proposed regulations, state that an individual is eligible for SIJS classification so long as the dependency, commitment, or custody underlying the state court order is in effect at the time of filing and continues through the time of adjudication, “unless the age of the petitioner prevents such continuation.” 127 Although these regulations do not have the force of law, they provide insight into DHS’s thinking on this issue, which is consistent with the TVPRA’s age-out protection. Until clarification or regulatory reform is achieved it remains best practice to proceed as expeditiously as possible in pursuing Special Immigrant Juvenile Status to complete processing while the child continues to be under juvenile court jurisdiction. B.

Continuing juvenile court jurisdiction until the entire immigration process is complete

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As mentioned above, the current regulations provide that the person applying for SIJS must remain under juvenile court jurisdiction throughout the entire application process, i.e., until USCIS approves the petition for Special Immigrant Juvenile Status and the application for adjustment of status. 128 Because the TVPRA does not explicitly address whether this regulatory requirement remains in place and the regulations have not been updated post-TVPRA, it is unclear whether an applicant has to remain under juvenile court jurisdiction until the entire application is adjudicated in order to continue to be eligible for SIJS. As noted above, the proposed SIJS regulations issued by USCIS, which have not been finalized, provide that an individual is eligible for SIJS classification so long as the dependency, commitment, or custody underlying the state court order is in effect at the time of filing and continues through the time of adjudication, “unless the age of the petitioner prevents such continuation.” 129 Although these regulations do not have the force of law, they provide insight into DHS’s thinking on this issue, which is consistent with the TVPRA’s age-out protection, discussed below. Until further 125

Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011). 8 CFR § 204.11(c)(5). 127 Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011). 128 8 CFR § 204.11(c)(5); 8 CFR § 205.1(a)(3)(iv)(C). 129 Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011). 126

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guidance is provided by new, finalized regulations, advocates should proceed in this area with caution. When this requirement is read in tandem with the TVPRA’s age-out protection, however, it appears this continuing jurisdiction requirement is eliminated altogether for children whose juvenile court cases close due to age. If USCIS cannot deny SIJS to any person on account of “age,” as long as he or she was under the age of 21 when the SIJS petition was filed, USCIS cannot then refuse to approve an SIJS petition or revoke an approved SIJS petition simply because the child’s juvenile court case has been closed if this closure is because of “age.” This issue comes into play, for example, under state law where dependency, delinquency, guardianship, family, or other juvenile court jurisdiction ends when a child turns 18 years old. For these reasons, advocates believe that this regulation needs to be changed to reflect the age-out protections of the TVPRA, in a manner similar to how it has been amended by the proposed SIJS regulations.

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One of the benefits of the now-expired Perez-Olano Settlement Agreement was protection against “aging-out” of SIJS eligibility. Specifically, the Settlement requires that defendant USCIS “shall not deny a[n] … application for SIJ classification or SIJ-based adjustment of status on account of age or dependency status, if, at the time the [applicant] files or filed a complete application for SIJ classification, he or she was under 21 years of age or was the subject of a valid dependency order that was subsequently terminated based on age.” 130 The 2014 enforcement action alleged that for two and a half years following approval of the Settlement, USCIS practice conformed with these terms, i.e., USCIS regularly granted SIJS petitions to applicants even if they were no longer subjects of valid dependency orders at the time they filed SIJS petitions provided they were under 21 when they filed for SIJS. It alleged however that in mid-2013 USCIS abruptly changed its practice and began requiring that youth be both under 21 and subject to a valid dependency order at the time of filing their SIJS applications, even if the court’s jurisdiction terminated due to age. 131 If applicants did not meet both of these requirements, USCIS began denying such applications and revoking approvals issued prior to the change in practice. In 2015, the government stipulated that USCIS would not “deny, revoke, or terminate a class member’s application for Special Immigrant Juvenile (SIJ) classification or SIJ-based adjustment of status if, at the time of filing an application for SIJ classification (Form I-360), (1) the class member is or was under 21 years of age, unmarried, and otherwise eligible, and (2) the class member either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing.” 132 Unfortunately, this Stipulation also sunset on June 15, 2018, so advocates are left to argue the language of the TVPRA and the proposed regulations if this issue arises. 130

Settlement Agreement in Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, 7-8 (C.D. Cal. Dec. 14, 2010), http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settlement%20Notices%20and%20 Agreements/Perez-Olano%20v%20Holder/Signed_Settlement_Agreement.pdf. Note that the Settlement Agreement sunset on December 13, 2016. 131 Memorandum of Points & Authorities in Support of Motion for Class-Wide Enforcement of Settlement, Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, (C.D. Cal. Dec. 14, 2010) (Aug. 25, 2014), http://www.centerforhumanrights.org/PDFs/PerezEnforceMemo.pdf. 132 Perez-Olano, et al. v. Gonzalez et al., No. 2:05-cv-03604-DDP-RZ (C.D. Cal. filed Mar. 4, 2015) (stipulation settling motion for class-wide enforcement of settlement).

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See the following discussion on strategies to keep the case open with the juvenile court and to proceed expeditiously with USCIS. If continuing to keep jurisdiction in a case is not possible, as may be the case given the visa backlog for youth applying for SIJS-based adjustment of status from El Salvador, Guatemala, Honduras and Mexico, advocates are best advised to obtain specific language in the juvenile court order terminating jurisdiction of the case that states the case is being closed due to age. For more information on the visa backlog, see Chapter 5. Strategies for retaining juvenile court jurisdiction and for expeditious adjudication of immigration cases. This regulatory provision has caused tremendous problems in the past by requiring juvenile courts to retain jurisdiction over older youth longer than the courts normally would solely for immigration purposes. This problem has only been worsened by the extensive delays in being able to adjust status caused by the visa backlog. Hopefully new regulations will change the rule so that the applicant only needs to be under juvenile court jurisdiction at the time she files the application with USCIS (unless jurisdiction has been terminated due to age). But until the rule is changed, you must attempt to comply. Advocates who are running out of time should pursue three strategies simultaneously: 1. Ask the juvenile court judge to retain jurisdiction over the child until their immigration advocate informs the court that their immigration case has been successfully resolved. Advocates report that in some instances, judges have agreed to retain jurisdiction to allow for the immigration process to be completed. In some state courts, e.g., dependency or delinquency, it may be possible for the court to retain jurisdiction and keep the child as a dependent while stopping other forms of services, support, or probation. 2. Ask USCIS to expedite the immigration process. Section 235(d)(2) of the TVPRA 2008 requires USCIS to adjudicate SIJ petitions within 180 days of filing. Currently, USCIS is routinely not complying with this statutorily-imposed deadline for adjudication, but advocates can continue to advocate with USCIS on this point, including by contacting the USCIS Ombudsman Office, asking the member of the United States Congress that represents the district where your client lives to intervene on your client’s behalf with USCIS, or by filing federal court litigation if necessary, as discussed below.

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3. Ask the juvenile court to explicitly state in its juvenile court order terminating jurisdiction that the reason for closing the case was the juvenile’s age. If this is done, then at least you can argue to USCIS that the child’s SIJS petition cannot be denied for lack of juvenile court jurisdiction because that lack of jurisdiction is based upon age— and the TVPRA prevents denials based upon age. In some areas, immigration and children’s agencies and civic organizations have formed ongoing local task forces on SIJS to exchange information and discuss problems. This may be useful in policy work, as both USCIS and the local county systems may be responsive to considering concerns raised by a taskforce. Mandatory injunction and/or writ of mandamus. If the applicant can establish that USCIS has not complied with the 180-day adjudication rule (discussed in further detail at § 4.9) and has taken an unreasonable amount of time to process the application, a lawyer acting on behalf of the client may ask a federal court to order a mandatory injunction and/or writ of mandamus to force

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USCIS to act on the case. Unfortunately, there is currently no other remedy provided for violation of the 180-day rule. Whether USCIS has taken an unreasonable time in processing an application will depend on the facts of the particular case. It will be the court’s discretion to decide if the agency delay is unreasonable. 133 In the case of Yu v. Brown, the plaintiff filed an application for SIJS and adjustment to legal permanent residence. The immigration agency (at that time, the INS) had taken no action on the application for more than a year. As a result, the plaintiff alleged that the INS had unreasonably delayed the processing of the SIJS application and sought a writ of mandamus and an injunction to compel the INS to act on the application. 134 The court in this case found that the delay was unreasonable. Further, the court determined that whether a delay is unreasonable will depend on the facts of the particular case. However, a writ of mandamus and an injunction were determined to be an appropriate remedy for the unreasonable delay. In at least two recent mandamus actions filed when USCIS had not adjudicated a child’s I-360 in well over 180 days, USCIS took action quickly on the case by sending a NOID and subsequent denial in the case. Practitioners are currently challenging this apparently retaliatory action through class-action lawsuits challenging over-18 denials of SIJS, discussed in § 4.4 above. Continuing jurisdiction and adoptions. While federal law allows children who have been adopted to apply for SIJS, federal regulation seems to impose the requirement that the juvenile court retain jurisdiction over the case until USCIS finally approves the application. Usually a juvenile court would terminate its jurisdiction over a child’s case once an adoption was completed. To comply with the USCIS regulation, some juvenile courts have either delayed completing the final step of the adoption until USCIS granted its approval, or simply retained jurisdiction over the case despite the completion of the adoption. However, under existing regulation and pending issuance of new regulation, this may be unnecessary to continue this practice.

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A part of the regulations provides that, for purposes of maintaining eligibility for classification as a Special Immigrant Juvenile, a child who is adopted or placed in guardianship after having been found dependent upon the juvenile court is still considered “eligible for long-term foster care.” 135 (The term used before the TVPRA’s “reunification with one or both parents is no longer viable.”) The USCIS-PM states that the continuing jurisdiction requirement does not apply if the juvenile court jurisdiction ended solely because the “petitioner was adopted, or placed in a permanent guardianship.” 136 Moreover, the regulation referring to automatic revocation provides that if an adoption or being placed in guardianship brings on the change in status of which the regulation is concerned, then the child is not disqualified from obtaining permanent residency through SIJS. 137

133

See Yu v. Brown, 36 F.Supp.2d 922 (D.N.M. 1999). See Yu v. Brown, 36 F.Supp.2d 922 (D.N.M. 1999). 135 8 CFR § 204.11(a). 136 6 USCIS-PM J.2(D)(4). 137 8 CFR § 205.1(a)(3)(iv). 134

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C.

The applicant cannot be married

Under USCIS regulation, if the child marries prior to receiving SIJS the petition will be denied. 138 This requirement remains unchanged by the proposed SIJS regulations. 139 If the child marries after receiving SIJS but before receiving permanent residency, the status automatically will be revoked. (See § 4.11 for discussion of revocation.) If marriage comes up as an issue, advocates should investigate whether the marriage has a legal effect in the jurisdiction in which it arose. If it is not a legal marriage, it arguably does not bar the client from SIJS eligibility. In addition, note that a divorced person can qualify for SIJS. The child must be “unmarried,” not “never married.” These arguments are best used only if absolutely needed and the best practice is to advise your clients not to marry until after being granted permanent residence. § 4.9

Expeditious Adjudication

The TVPRA requires USCIS to adjudicate SIJS petitions expeditiously, within 180 days of the date on which the petition is filed. 140 Advocates have been informed that USCIS interprets this expeditious adjudication requirement to apply only to the SIJS petition (I-360) and not the SIJS-based adjustment of status application (I485). 141 The USCIS-PM also notes that the 180-day timeframe begins on the Notice of Action receipt date, but will stop running if USCIS issues an RFE and resume the day that USCIS receives the RFE response. 142 Oddly, though, the USCIS-PM does not make clear that USCIS is required to adjudicate the SIJS petition within 180 days. Instead, it states that “USCIS generally adjudicates SIJ petitions within 180 days.” 143 Practitioners should challenge this interpretation as being in conflict with the statute. § 4.10 Who Should Not Apply for Special Immigrant Juvenile Status: Weighing Affirmative and Defensive SIJS Cases

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A child who is not already in removal (deportation) proceedings and who is ineligible either for Special Immigrant Juvenile Status or for adjustment of status (discussed in Chapter 5) should not even apply, since they will be risking deportation for no reason. If a child would be eligible for adjustment if they could obtain a waiver of inadmissibility or deportation (as discussed in Chapter 5), or there are other arguments that the child would not fall within a ground of inadmissibility, the risks should be carefully weighed before filing either the SIJS petition or the adjustment of status application. Very recently, USCIS issued updated guidance on when it will refer a person to Immigration & Customs Enforcement (ICE) or issue a Notice to Appear (NTA,

138

8 CFR § 205.1(a)(3)(iv)(B). See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011). 140 TVPRA, P.L. 110-457 at § 235(d)(2). 141 6 USCIS-PM J.4(B). 142 Id. 143 Id. 139

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the charging document that begins a case in immigration court). 144 Advocates must consult this memorandum in evaluating the risk of referral in individual cases. Notably, the new guidance now requires USCIS to issue an NTA in any case in which, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” 145 Unfortunately, this appears to include children who have submitted an unsuccessful application for SIJS or SIJS-based adjustment of status. 146 A child who is already in removal proceedings and for whom Special Immigrant Juvenile Status is the only possible avenue towards legal immigration status should apply for SIJS, even if they may not be able to adjust status to lawful permanent residence. Since the child has already been brought to the attention of immigration authorities, a denial of the petition will not further prejudice the child. Advocates may be able to argue that a Special Immigrant Juvenile cannot be removed from the United States even if they are deportable and are not eligible for adjustment of status, although the statutory basis for this argument is not strong. 147 A more thorough consideration of the risk assessment that should go into deciding whether or not a child should seek SIJS and adjustment of status can be found in Chapter 6. § 4.11 How a Special Immigrant Juvenile Can Lose SIJS: Revocation of Approval Current regulations provide that SIJS is automatically revoked if one of a number of things happens between the time the child’s I-360 SIJS petition is approved and their I-485 application for adjustment of status is adjudicated. They include if the Special Immigrant Juvenile: • • •

Marries; Ceases to be under juvenile court jurisdiction (but see discussion at § 4.8); Turns 21 (but see discussion at § 4.8);

144

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USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens PM-602-0050.1 (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf [hereinafter USCIS NTA Memo]. On July 30, 2018, USCIS announced that implementation of the USCIS NTA Memo is postponed until USCIS components “create or update operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum. It is unclear therefore when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same. 145 Id. at 7. 146 The USCIS NTA Memo does not specifically address SIJS petitions, nor are SIJS petitioners protected by the confidentiality protections that apply to applicants for the U visa, T visa, or VAWA, as discussed in Section VI.D of the USCIS NTA Memo. USCIS NTA Memo, supra note 144, at 9. 147 Some advocates have attempted to argue that children granted SIJS cannot be charged as removable based on the grounds of inadmissibility being inapplicable to Special Immigrant Juveniles. This has met with little success, however, since the statute is clear that those inadmissibility grounds are inapplicable in the context of INA § 245, which governs adjustment of status not removability. See INA § 245(h).

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• •

Ceases to be deemed “eligible for long-term foster care” (note that the regulation has not yet been amended to reflect the TVPRA’s statutory changes); or Is the subject of a determination in an administrative or judicial proceeding that it is in the person’s best interests to return to his or his parents’ country of nationality or last habitual residence. 148

The regulations specify that SIJS will not be revoked if any of these conditions exist because of the child’s adoption or placement in a guardianship situation. The 2011 proposed SIJS regulations, which have not yet been finalized, propose to remove the provisions requiring automatic revocation upon the beneficiary turning 21 and upon termination of the beneficiary’s dependency upon the juvenile court, in accordance with the TVPRA’s age out protections. 149 Further, the proposed regulations would modify the automatic revocation provision dealing with termination of the beneficiary’s eligibility for long-term foster care to track the TVPRA’s language, meaning that revocation would apply if a court deems reunification with one or both parents a viable option. 150 As discussed in § 4.8 above, if the court is about to lose juvenile court jurisdiction for the child, advocates should work hard to persuade the judge to retain juvenile court jurisdiction, persuade USCIS to adjudicate the case more quickly, and/or at the very least try to get an explicit statement that the juvenile court closed the case because of the child’s age. Advocates should be very careful to ensure that an approved SIJS petition is not revoked under these provisions. If SIJS is revoked, the child cannot proceed with an SIJS-based adjustment of status and may face placement into removal proceedings if not already in them.

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8 CFR § 205.1(a)(3)(iv). See Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978 (Sept. 6, 2011). 150 Id. 149

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CHAPTER 5 ELIGIBILITY FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCY FOR SPECIAL IMMIGRANT JUVENILES This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5

Statutory Requirements for Adjustment of Status .............................................. 107 Grounds of Inadmissibility and Deportability .................................................... 108 Waivers of Inadmissibility: INA § 245(h)(2)(B) and INA § 212(h) .................. 123 Availability of an Immigrant Visa...................................................................... 124 Discretion to Grant or Deny Adjustment of Status ............................................ 130

§ 5.1

Statutory Requirements for Adjustment of Status

The second step in a Special Immigrant Juvenile Status case is adjustment of status. Adjustment of status is the procedure through which a person becomes a lawful permanent resident (green card holder) without leaving the United States. Lawful permanent residence, once granted, confers upon the person the right to live and work indefinitely in the United States, subject to some exceptions. (The other procedure for obtaining a green card, called consular processing, requires the person to travel to his or her home country and have an interview at the U.S. consulate there). Becoming a lawful permanent resident is a necessary step to ultimately becoming a U.S. citizen. Some people who entered the United States illegally and immigrate through family members are not permitted to adjust status in the United States. Instead, they must go to their home country to do consular processing. Consular processing poses significant risks and barriers to undocumented individuals because of the hassle of leaving the country, the grounds of inadmissibility that are often triggered by leaving the country, and the possibility of needing to apply for a waiver to pardon those grounds of inadmissibility. Generally, there is no guarantee that a needed waiver will be granted and that the person will be able to re-enter the United States (although persons who are eligible for and receive a provisional “stateside” I-601A waiver prior to leaving the United States have some level of certainty that they will be able to return to the United States following a successful consular interview in their home country, assuming there are no other grounds of inadmissibility). 1 This is not a problem for Special Immigrant Juveniles, however, because the statute provides an exception allowing them to apply for adjustment of status at the U.S. Citizenship and Immigration Services (USCIS) in the United States despite having entered without permission or having worked here illegally. 2

1

8 CFR 212.7(e). See INA § 245(h); 8 USC § 1255(h). The statute as passed in November 1990 in the Immigration Act of 1990 was inadvertently written in a way that would have required most children to travel outside of the United States in order to apply for permanent residency. This error was corrected in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (§ 302(d)(2)), adding § 245(h).

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In order to adjust status, your client must: 1) be eligible to adjust status, 2) have an immediately available visa, and 3) demonstrate that they merit a favorable exercise of discretion. 3 To satisfy the first requirement, your client will need to show that they were approved for SIJS and are admissible (or eligible for a waiver), as discussed in §§ 5.2 and 5.3. In order to satisfy the second requirement, your client will need to show that they have an immediately available visa, which will be determined based on the date they filed their petition for SIJS (Form I-360), and their country of origin. This element of adjustment of status is discussed in § 5.4. Lastly, your client will need to show that they merit a favorable exercise of discretion, as discussed in § 5.5. This chapter will focus only on adjustment of status to permanent resident based on Special Immigrant Juvenile Status under INA § 245(h). All of the rules discussed here apply to this form of adjustment application. Consult other ILRC manuals for more information about the adjustment process for those applying based on a U visa, VAWA, asylum, and family-based immigration, at http://www.ilrc.org/publications. § 5.2

Grounds of Inadmissibility and Deportability

The Immigration and Nationality Act (INA) creates grounds of removability that provide a lawful basis to remove (deport) someone from the United States. These grounds are divided into grounds of deportability and inadmissibility, as described below. Most grounds seek to remove persons who have committed or been convicted of certain crimes, have committed certain immigration offenses, have committed fraud, have certain diseases, cannot financially support themselves (the “public charge” ground), or are seen as national security risks. Inadmissibility, Deportability, and Parole: The grounds of inadmissibility (formerly called grounds of exclusion) are contained in INA § 212(a). These grounds are a list of the reasons a person can be refused admission to and/or removed from the United States. A person who comes within a ground of inadmissibility is inadmissible. A person who does not come within any inadmissibility ground is admissible. The grounds of inadmissibility apply both at the border and in removal proceedings for persons seeking admission. They are also relevant to establishing eligibility for many immigration benefits, including adjustment of status (for Special Immigrant Juveniles and others), registry, TPS, and non-immigrant visas. The grounds of deportability are contained in INA § 237(a). The grounds of deportability are a list of reasons that a person can be removed from the United States. A person who comes within a ground of deportability is deportable. In general, once someone has been “admitted,” (e.g., been granted certain forms of immigration status, like a tourist visa, a green card, a U visa, etc.), they are subject to the grounds of deportability.

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Parole. The Department of Homeland Security (DHS) has the power to “parole in” persons who are outside the United States or at the border and are charged with being inadmissible. A person who is paroled in can physically enter the United States, but legally their situation is the same as if they were waiting at the border, applying for admission. DHS’s position is that once in the United States all of these persons are still deemed to be seeking admission. If placed in removal 3

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proceedings, they are subject to the grounds of inadmissibility. Immigration law also provides that some individuals who are already present unlawfully in the United States are deemed paroled into the United States for purposes of adjustment of status, although they may never have had contact with DHS. Special Immigrant Juveniles are such individuals. This legal designation is important because it allows SIJs to adjust status under INA § 245(a) (instead of being subject to consular processing). The statute requires that someone be “inspected and admitted or paroled” to adjust status; for SIJS applicants who entered without inspection (i.e. unlawfully), this “parole” entry allows them to be “paroled” for purposes of adjusting status. * Special SIJS Provisions for Adjustment of Status. All Special Immigrant Juveniles are by law deemed to be paroled into the United States and therefore eligible for adjustment of status. 4 They do not need to qualify for adjustment under INA § 245(i) or pay a penalty fee; they are eligible to adjust by virtue of being Special Immigrant Juveniles. Noncitizens who qualify as Special Immigrant Juveniles are exempted from the grounds of deportability that relate to unlawful presence. 5 Therefore, even Special Immigrant Juveniles who were wrongly admitted or who were admitted and are now out of status cannot be charged under those grounds. This could lead to an interesting argument in an unusual situation: arguably a child who was admitted to the United States and has been granted SIJS but for some reason cannot adjust status—for example, because the government had “reason to believe” the child was a drug trafficker and therefore inadmissible—cannot be deported just for unlawful status. The grounds of deportability are discussed in the next section. Special immigrant juveniles and inadmissibility and deportability. Children applying for SIJS-based adjustment of status are most concerned with the grounds of inadmissibility because they are seeking admission to the United States. The grounds of inadmissibility are considered during the adjustment of status phase of the SIJS process. It is important to note that a child who is inadmissible can be granted SIJS (through approval of an I-360 petition), but can be denied lawful permanent residence at the adjustment of status phase. At this point, if the child is proceeding in an affirmative SIJS case, it is possible that the child will be placed in removal proceedings. If a child is already in removal proceedings and no other relief exists, the child will likely be ordered removed from the United States. In other words, an approved SIJS petition by itself does not currently provide protection from deportation. The child would need to adjust status or find another form of relief from removal. Thus, if inadmissibility is an issue that could later bar adjustment of status, advocates should carefully consider whether they should proceed to apply for SIJS and adjustment of status in affirmative cases. Generally, the grounds of deportability are not a central concern for Special Immigrant Juveniles since those grounds only apply to people who have already been admitted to the United States. Most children granted SIJS were never formally admitted into the United States (for example, through formal presentation of a visitor’s visa) and thus the grounds of deportability simply do not apply. Once a Special Immigrant Juvenile has been granted lawful permanent residence, 4

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See INA § 245(h). See INA § 237(c), excepting various grounds of deportation, including grounds relating to entry without proper documents, termination of conditional residency, and failure to report change of address.

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however, they will be deemed to have made an admission and may subsequently be deportable for commission of certain acts. Even lawful permanent residents can be deported if the government can prove they fall within a ground of deportability. These grounds include numerous acts such as illegal voting, false claim to U.S. citizenship, and criminal convictions. Some grounds of deportation relating to crimes are not waivable and persons with criminal or drug problems might face serious immigration consequences. See Subsection A.3, below and Chapter 17. If a child is in removal proceedings based on a ground of deportability that is automatically waived for Special Immigrant Juveniles and the child is prima facie eligible for SIJS, the child’s attorney should ask the immigration judge to terminate proceedings. Even if the child is charged with inadmissibility rather than deportability, and thus cannot get this automatic waiver, they can ask the judge to terminate the proceedings, or at least continue proceedings pending a decision on the petition. 6 Comparing immigration through SIJS to immigration through family members. Many grounds of inadmissibility and deportability do not apply to Special Immigrant Juveniles.7 This is an advantage that Special Immigrant Juveniles have over children who immigrate through their natural or adoptive parents pursuant to family-based immigration. Children immigrating through their parents are subject to most grounds of inadmissibility, including the public charge ground. A person immigrating through SIJS can also apply to have certain grounds of inadmissibility waived that a person immigrating through family is not eligible to waive, and the waiver standard for Special Immigrant Juveniles is comparatively generous. A.

Grounds of inadmissibility for special immigrant juveniles

The Immigration and Nationality Act at § 245(h) provides a list of inadmissibility provisions that do not apply in Special Immigrant Juvenile cases. The statute at § 245(h) states: In applying this section to a special immigrant described in section 101(a)(27)(J) [8 USC 1101(a)(27)(J)] … (2) in determining the alien’s admissibility as an immigrant (A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A) and (9)(B) of section 212(a) shall not apply, and

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Some advocates have attempted to argue that children granted SIJS cannot be charged as removable based on the grounds of inadmissibility that are inapplicable to Special Immigrant Juveniles. This has met with little success, however, since the statute is clear that those inadmissibility grounds are inapplicable in the context of INA § 245, which governs adjustment of status not in the context of removability. See INA § 245(h). 7 See INA § 237(c) (excepting various grounds of deportation, including grounds relating to entry without proper documents, termination of conditional residency, and failure to report change of address); INA §§ 245(h)(1), (2)(A), added by Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 § 302(d)(2) and amended by the Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110–457, 122 Stat. 5044 (2008) (creating eligibility for adjustment of status by deeming Special Immigrant Juveniles to have been paroled into the United States and exempting them from the public charge ground of inadmissibility, among others).

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(B) the Attorney General may waive other paragraphs of section 212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. The relationship between an alien and the alien’s natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). (Emphasis added). This statute currently includes seven exemptions from inadmissibility for approved SIJS petitioners. This statutory provision also includes a list of waivable grounds and a list of grounds that cannot be waived at all. These are discussed in greater detail below. 1. Grounds of inadmissibility inapplicable to special immigrant juveniles The TVPRA amended INA § 245(h) to include four additional exemptions from inadmissibility for approved SIJS petitioners, for a total of seven exemptions. These amendments mean that as of March 23, 2009, the following grounds of inadmissibility automatically do not apply to SIJSbased adjustment of status applicants and no application for a waiver need be submitted: Example

INA § 212(a)(4)

Public charge

Persons whom the government believes are likely to become primarily dependent on the government, as demonstrated by receipt of cash assistance or institutionalization for long-term care at government expense

INA § 212(a)(5)(A)

Labor certification

Individuals who enter the United States to perform work without a labor certification

*INA § 212(a)(6)(A)

Aliens present without admission or parole

Persons who entered the United States without inspection

*INA § 212(a)(6)(C)

Misrepresentation, including false claim to U.S. citizenship

Use of a forged U.S. passport or green card or someone else’s U.S. birth certificate

*INA § 212(a)(6)(D)

Stowaways

Persons who board a vessel without consent of the owner or person in command of the vessel

INA § 212(a)(7)(A)

Immigrants not in possession of a Persons who arrive at the border valid unexpired immigrant visa, without any documents, or who reentry permit, border crossing possess a defective visa identification card, or other valid entry document

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Inadmissibility Ground Legal Definition Automatically Inapplicable to Special Immigrant Juveniles

*INA § 212(a)(9)(B)

Individuals unlawfully present: three year and ten year bar Note that unlawful presence does not accrue while a noncitizen is under 18 years of age, is the beneficiary of Family Unity, or comes within the VAWA battered spouse or child provisions. It also does not accrue while the person has a bona fide asylum claim pending, or if the person demonstrates that she was a victim of a severe form of trafficking in persons and the trafficking was at least one central reason for the unlawful presence in the United States.

A person who is present in the United States without status for a period of more than 180 days but less than a year, then voluntarily departs (either under DHS order or on their own), then applies for admission to the United States is inadmissible for three years. A person who is present in the United States without status for a period of one year or more, leaves the United States voluntarily or by a deportation/removal order, and then applies for admission to the United States is inadmissible for ten years.

* Exemptions added by the TVPRA. Example: Beth and her guardian receive means-based cash assistance that they qualify for under state law. Beth is applying for SIJS-based adjustment of status and is therefore automatically not subject to the public charge ground of inadmissibility. New public charge guidelines, or any other policy guidance from the President, cannot change this— the exemption is statutory and can only be changed by Congress. Again, these grounds of inadmissibility automatically do not apply to Special Immigrant Juveniles. 8 For a further discussion of some of these grounds, please see the Immigrant Legal Resource Center’s manual, Inadmissibility & Deportability (ILRC 2016). 2. Grounds of inadmissibility applicable to special immigrant juveniles but waivable as a matter of discretion Most of the remaining inadmissibility grounds that do apply to Special Immigrant Juveniles may be “waived.” 9 The child must submit a special waiver application (Form I-601) asking USCIS to “forgive” the ground of inadmissibility. These waivers are considered as a matter of discretion. It is probable, but not guaranteed, that USCIS will approve such waiver applications. The waiver standard is relatively generous and is “for humanitarian purposes, family unity, or when it is

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Adjustment of status applications filed after December 23, 2008 but decided before March 23, 2009 are subject to the prior statutory exemptions. As such, only the following exemptions to grounds of inadmissibility for Special Immigrant Juveniles applied to them: INA § 212(a)(4) (public charge); § 212(a)(5)(A) (labor certification); and § 212(a)(7)(A) (immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification, or other valid entry document). If the child’s application for adjustment of status was denied during that period based on one of these now-inapplicable grounds, you may choose to re-file the child’s adjustment of status application. 9 See INA § 245(h)(2)(B), as amended by the Miscellaneous and Technical Corrections Act of 1991 § 301(d)(2); USCIS Memorandum, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions, HQOPS 70, 8.5, 4–5 (Mar. 24, 2009) [hereinafter Neufeld Memorandum]; 7 USCIS-PM F(7)(C)(4).

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otherwise in the public interest.” 10 Some of the common waivable inadmissibility grounds include: 11 Inadmissibility Ground Which May Be Waived for Special Immigrant Juveniles

Legal Definition

Example

INA § 212(a)(1)

Health-related grounds:** Communicable diseases, vaccinations, mental or physical disorder that poses a threat to self or others, drug abuser or drug addict

Tuberculosis, lack of certain required vaccines, certain mental or physical disorders (such as those related to suicide and alcoholism) and nonmedical drug use in the prior year

INA § 212(a)(2)(D)

Prostitution and commercialized vice (this is discussed in greater depth in Chapter 17)

People who have been prostitutes or procurers (“pimps” or “Johns”)

INA § 212(a)(6)(B)

Failure to attend removal proceedings** A noncitizen who fails to show up at their removal hearing in immigration court

INA § 212(a)(6)(E)

Smugglers**

A noncitizen who has assisted others in entering the United States unlawfully, including paying for a coyote to take their family member to the United States

INA § 212(a)(9)(A)

Certain individuals previously removed**

A noncitizen removed from the United States for being inadmissible or deportable

INA § 212(a)(9)(C)

Individuals unlawfully present after previous immigration violations**

A person who was removed and reenters the United States without admission

INA § 212(a)(10)

Miscellaneous grounds (polygamists, unlawful voters, etc.)

A person who is coming to the United States to practice polygamy or who unlawfully votes, etc.

** See further discussion on these grounds of inadmissibility below. As noted above, if a child comes within any of these grounds, they will need an I-601 waiver. If there is any doubt that the child comes within a ground of inadmissibility, you may wish to hold off on filing the Form I-601 until it clear it is needed. If you are not an immigration attorney, you must seek help in this area. A discussion about applying for waivers of inadmissibility for SIJSbased adjustment of status applicants is found at § 5.3 below and more procedural information is contained in Chapter 8. Since it is possible the waiver will not be granted, the application carries some risk. This may be especially true for children with problems related to drugs and 10

See INA § 245(h)(2)(B). Note that this list is not exhaustive. All grounds of inadmissibility apply to Special Immigrant Juveniles, except for the seven listed in the prior section that automatically do not apply. The remaining grounds of inadmissibility are waivable except for the grounds discussed in the following section. 11

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delinquency since USCIS takes a severe approach to these issues. See further discussion in Chapter 17. a. INA § 212(a)(1): Health related grounds Communicable diseases. Under INA § 212(a)(1)(A)(i), people who have certain communicable diseases are inadmissible. The Department of Health and Human Services (HHS) determines which diseases make a person inadmissible. HIV/AIDS was removed from this list of diseases that make a person inadmissible in 2010. 12 However, tuberculosis and sexually-transmitted diseases such as gonorrhea and syphilis are still bases for inadmissibility. 13 A person testing positive for these illnesses can have the disease treated and cured and then qualify for adjustment (or apply for a waiver). Vaccinations. Under INA § 212(a)(1)(A)(ii), people who fail to present evidence of vaccination against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization practices (ACIP) are inadmissible. 14 The current vaccine tables for children and adults based on the ACIP recommendations for the U.S. population can be found at http://www.cdc.gov/vaccines/schedules/index.html. For further information, see the Technical Instructions for Civil Surgeons and Panel Physicians, http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. See Appendix FF for the Revised Fact Sheet from the Centers for Disease Control and Prevention (CDC). The vaccination requirements can be quite onerous and financially burdensome. (Note, however, that many unaccompanied children who were in ORR custody may have received certain vaccinations while detained.) The vaccination requirements may be waived if a civil surgeon or similar official certifies that the vaccination would not be medically appropriate, or if the vaccination would be contrary to the person’s religious or moral beliefs. 15 Mental or physical disorder posing a threat to self or others. Under INA § 212(a)(1)(A)(iii), people are inadmissible if they have a mental or physical disorder and related behavior which may pose a danger to themselves or others, or have had such a disorder in the past that is likely to recur. This ground may affect people who have been committed to mental institutions for violent behavior or for suicide attempts or show a history of sexual predator activity. Alcoholism can be a basis for inadmissibility under this ground and drunk-driving adjudications or convictions can serve as evidence of alcoholism. 16 However, in order to trigger this ground based on alcoholism, there must be 1) a diagnosis of mental disorder of alcohol abuse, and 2) associated current harmful behavior or a history of harmful behavior relating to the disorder that is likely to recur. This ground of inadmissibility is discussed in greater detail in Chapter 17.

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74 Fed. Reg. 210 (Nov. 2, 2009) (amending 42 CFR Part 34). See 42 CFR § 34.2(b). 14 For a short period of time, the Centers for Disease Control and Prevention (CDC, an agency within the Department of Health and Human Services) required that girls and women of a certain age receive the human papillomavirus (HPV) vaccination, but as of December 14, 2009, this requirement is no longer mandatory. 15 INA § 212(g)(2). 16 For further information, see 8 USCIS-PM B.7(B).

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Since many children seeking SIJS may suffer from post-traumatic stress disorder (PTSD), this ground of inadmissibility may come up in severe cases where there is a history of violent behavior or suicide attempts. PTSD may arise because these children have come from countries where they experienced violence, because of the parental abuse, neglect, or abandonment they have suffered, or because of trauma experienced on the journey to the United States. Beyond seeking a waiver for children with PTSD, if needed, advocates should refer these children to mental health workers since these issues can cause greater problems for the child later in the immigration process and, obviously, in life in general. Drug abuse and addiction. Under INA § 212(a)(1)(A)(iv), drug addicts and drug abusers are inadmissible. Specifically, the statute deems inadmissible any person “who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict.” 17 Because the statute uses the present tense, this ground applies to current, not past, abuse or addictions; “current” is considered abuse or addiction within the last year. (Note, however, a person who has been an addict or abuser at any time since admission into the United States is deportable.) 18 CDC has updated its Technical Instructions to provide clarification that the diagnosis of physical and mental disorders with associated harmful behavior and substance-related disorders is made based on existing medical standards, as determined by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 19 Further, “experimentation” is no longer defined in the Technical Instructions, and determinations of drug abuse and dependence are made based on existing medical standards as set forth in the DSM. In practice, however, advocates report that the civil surgeon will sometimes make a finding of “drug abuse” even if the applicant admits to only using drugs on a couple occasions. The issue of drug use can be a major concern for advocates in the course of representation of youth. Advocates should prepare their clients on this issue before the medical examination and any interview with immigration authorities by explaining the law and how and when drug use may come up in the adjustment process. Generally, the drug abuse/addiction assessment is made on the basis of self-reporting. Advocates should explain this to their clients and prepare them to answer any questions about drug use. If the advocate is working with the client and their guardian or caregiver, the advocate should speak to the client privately about this issue. For more discussion on this inadmissibility ground, see Chapter 17. PRACTICE TIP: Talking to your clients about drug use. You must have a frank conversation with your clients about the impact that drug use could have on their immigration case, including a possible diagnosis of drug abuse or addiction and the possibility of a drug-related arrest and adjudication or conviction that may render your client inadmissible. This is particularly important as relates to marijuana, which is now legal in many states but continues to be unlawful under federal law. For more information about talking to clients about the risks of marijuana use, even 17

INA § 212(a)(1)(A)(iv). INA § 237(a)(2)(B)(ii). 19 Centers for Disease Control and Prevention, Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (Oct. 23, 2017), http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html; see also 8 USCIS-PM B.8. 18

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in states where it is legal, see ILRC, Warning for Immigrants About Medical and Legalized Marijuana (Jan. 8, 2018), https://www.ilrc.org/warning-immigrants-about-medical-and-legalizedmarijuana. b. INA § 212(a)(6)(B): Failure to attend removal proceedings Noncitizens who without reasonable cause fail to attend their removal proceedings are inadmissible for a period of five years following their subsequent departure or removal from the United States under INA § 212(a)(6)(B). This provision took effect on April 1, 1997. This only applies to removal hearings; it does not apply to noncitizens who failed to attend their deportation or exclusion hearings (as these terms became obsolete on April 1, 1997 and were replaced with the term “removal” hearing). Noncitizens who fail to attend removal proceedings after receiving notice may be further punished beyond this ground. They can be ordered removed in absentia because they are absent from the hearing. Youth who inadvertently miss a removal hearing and receive a final removal order should work with an experienced immigration attorney to resolve the issue immediately because there may be legal grounds to challenge the underlying in absentia order. For information on motions to reopen removal proceedings to allow children to seek SIJSbased adjustment of status, see Chapter 9. c. INA § 212(a)(6)(E): Alien smuggling A person who at any time helps to bring other noncitizens illegally into the United States is inadmissible under the alien smuggling ground of inadmissibility found in INA § 212(a)(6)(E). In order to trigger this ground of inadmissibility, no admission or criminal conviction is needed. Rather, mere evidence within DHS’s possession that the person was an alien smuggler can suffice. Because of the potential harshness of this provision, advocates should inform clients on the law and the consequences of telling DHS that they have helped family members or others come to the United States illegally. The statute defines an alien smuggler as any person who knowingly has “encouraged, induced, assisted, abetted, or aided” any other person, including family members, to enter or try to enter the United States in violation of law. 20 These provisions are worded very broadly and include sending money to someone to pay a smuggler, as well as merely encouraging someone to enter the United States illegally. Several courts have interpreted this definition. The Ninth and Sixth Circuits have held that alien smuggling requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get noncitizens across the border, or providing false information and documents to immigration authorities. Mere presence during the actual act of alien smuggling with knowledge that it is being committed is not enough, at least in the Sixth and Ninth Circuits. 21 Nor is “reluctant acquiescence” sufficient in the Ninth Circuit.22 Other courts 20

INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i). Altamirano v. Gonzales, 427 F.3d 586, 591-96 (9th Cir. 2005); Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005). 22 Gonzalez v. Mukasey, 534 F.3d 1204, 1206 (9th Cir. 2008) (finding that reluctant acquiescence to her father’s repeated requests to use her U.S. citizen son’s birth certificate did not mean that she had assisted in alien smuggling).

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have also held that transporting undocumented persons within the United States does not necessarily create inadmissibility for alien smuggling. 23 Note, however, that knowingly participating in a prearranged plan to bring people to the border and then meeting them on the other side to transport them within the United States or providing other forms of affirmative assistance after the person enters the country may constitute alien smuggling. 24 In addition, the Fourth Circuit has held that sending financial assistance directly to a child at a hotel on the border constituted alien smuggling, where the parents knew that the funds would be used for the child to cross the border illegally. 25 In this case, the parents sent money separately to four different children over the years, and each time right after the money was sent, the child immediately crossed the border illegally and joined the parents in the United States. This pattern, together with the father’s admission that he believed he was helping his children “to enter into this country illegally” contributed to this finding. 26 The inadmissibility ground will be triggered when the act is committed at any time. WARNING! Special concerns for sponsors of unaccompanied minors. Although alien smuggling has been a longstanding concern for immigrant clients, President Donald Trump’s administration has prioritized enforcement based on alien smuggling, particularly for sponsors of unaccompanied minors. On February 20, 2017, the administration released a memorandum directing DHS to take action against parents, family members, and any other individual who “directly or indirectly … facilitates the illegal smuggling or trafficking of an alien child into the United States.” 27 This provision is so broad that it could include persons who help to arrange the child’s travel to the United States, help pay for a guide for the child’s journey to the United States, or otherwise encourage the child to enter the United States. The memorandum directs that enforcement against parents, family members, or other individuals involved in the child’s unlawful entry into the United States could include (but is not limited to) placing such person in removal proceedings if they are removable, or referring them for criminal prosecution. 28 For additional information about the Trump Administration’s enforcement actions against sponsors, as well as tips for mitigating risks to family members as a result of their participation in a child’s immigration case, see Catholic Legal Immigration Network, Inc. & Public Counsel, Practice Advisory: Working with Child Clients and Their Family Members in Light of the Trump Administration’s Focus on “Smugglers” (July 2017), https://cliniclegal.org/resources/workingchild-clients-and-their-family-members-light-trump-administrations-focus-smugglers. For most people, a waiver of the alien smuggling ground typically is only available for people who helped to smuggle their parent, spouse, or son or daughter. However, because the SIJS 23

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Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n.3 (5th Cir. 1995); Matter of I-M-, 7 I & N Dec. 389 (BIA 1957). 24 Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007); Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). 25 Ramos v. Holder, 660 F.3d 200 (4th Cir. 2011). 26 Id. at 204. 27 Sec. John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), Sec. M; see also Donald J. Trump, Exec. Order No. 13767, Border Security and Immigration Enforcement Improvements (Jan. 25, 2017). 28 Id.

waiver allows for a pardon for humanitarian purposes, family unity, or when it is otherwise in the public interest, this required relationship to the person smuggled is not required. Example: Carla saved up money and paid for her younger brother to be smuggled into the United States. As a Special Immigrant Juvenile, she can apply for an SIJS-based waiver and argue that is in the public interest and for purposes of family unity that she be granted a waiver. Before you concede that your client is inadmissible (or deportable in other cases) for alien smuggling, make sure that they knew that the person they were helping or encouraging did not have the legal right to enter the United States. If a violation was not knowing, then it does not trigger this ground. For more information on alien smuggling, see the ILRC’s practice advisory. 29 d. INA § 212(a)(9)(A): Certain individuals previously removed The following persons are inadmissible for ten years following their departure from the United States: a. People who were removed under INA § 240, not arising from time of arrival (i.e., in any removal proceedings except those initiated at arrival); b. People who left the United States after an order of removal had been issued and was outstanding; and c. People who were ordered excluded or deported (i.e., under prior law in which there were exclusion and deportation proceedings). In 1996, this ground of inadmissibility imposed a new retroactive penalty on people in the third category who at the time they were excluded or deported would have been inadmissible only for one or five years. A person who is subject to an expedited removal order at the border or a removal order from an immigration judge after proceedings initiated immediately upon the person’s arrival in the United States relating to the person’s “admissibility,” is then subsequently inadmissible for a period of five years after the date of removal. 30 Anyone with a prior order is inadmissible for twenty years if they have been ordered removed more than once. People who were removed and who have an aggravated felony conviction are permanently inadmissible. 31 Note that this inadmissibility ground is triggered by a departure after a removal order; if someone has an outstanding removal order and has not left, this ground does not apply. If an SIJS-based adjustment applicant has a prior outstanding order of removal, they would have to re-open the immigration case and either terminate the proceedings to apply before USCIS or apply for adjustment before the court. This ground of inadmissibility may or may not apply to children or persons who may have been removed while children, depending upon the circumstances of the removal. Many children who have been arrested at the border and returned to their home country have not received a removal

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ILRC, Alien Smuggling: What It Is and How It Can Affect Immigrants (2017), https://www.ilrc.org/aliensmuggling-what-it-and-how-it-can-affect-immigrants. 30 INA § 212(a)(9)(A)(i). 31 INA § 212(a)(9)(A).

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order, but merely were voluntarily returned. 32 Advocates should file a Freedom of Information Act (FOIA) request to determine exactly how the child was removed. Where there is a final order of removal and the applicable inadmissibility period has not elapsed, this ground of inadmissibility can be waived for Special Immigrant Juveniles. Many SIJS-based adjustment of status applicants who have final orders of removal have been granted waivers of this inadmissibility ground. e. INA § 212(a)(9)(C): Individuals unlawfully present after previous immigration violations This ground of inadmissibility punishes people who have problems with their immigration status, leave the United States, and then reenter or try to reenter illegally instead of applying for admission. A noncitizen is inadmissible under this ground who: a. has been unlawfully present in the United States for an aggregate period of more than one year beginning on April 1, 1997, and then enters or attempts to reenter the United States without being admitted; 33 OR b. was ordered deported or removed (regardless of how much unlawful presence the person has), and then enters or attempts to re-enter the United States without being admitted after April 1, 1997. 34 The DHS will count any unlawful re-entry after April 1, 1997, even if the deportation occurred before that date. People who fall in either category are subject to a “permanent bar.” The bar is referred to as “permanent” because it never lapses; but people may apply for a discretionary waiver after spending ten years outside of the United States. Luckily, Special Immigrant Juveniles can apply to waive this ground at any point. 35 3. Grounds of inadmissibility that cannot be waived or are subject to higher waiver standards: criminal issues and national security Other grounds of inadmissibility are either not waivable or subject to much higher waiver standards than the SIJS standard discussed in Subsection 2, supra. These grounds can be found at

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Pre-TVPRA, children from Mexico who crossed the border were subject to immediate repatriation through a form of expedited removal. This repatriation program arose out of an agreement between the United States and Mexico, where these children were given “voluntary removal,” with no special protections, e.g., screening for abuse or neglect. They were held by ICE anywhere from two days to three weeks. These children were then returned to DIF (the CPS equivalent in Mexico) upon return to Mexico. It is unclear whether these youth were removed as children or adults. Post-TVPRA, unaccompanied children from contiguous countries can be voluntarily returned at the border unless there are trafficking concerns, the child expresses a fear of return, or CBP determines the child is not able to make an independent decision to withdraw their application for admission. See TVPRA § 235(a)(2). If children are returned at the border pursuant to this provision of law, they have not received a removal order. 33 INA § 212(a)(9)(C)(i)(I). 34 INA § 212(a)(9)(C)(i)(II). 35 An important difference between the permanent and the three/ten-year bars (a ground of inadmissibility from which applicants for SIJS-based adjustment of status are automatically exempt) is that the person must enter or attempt to re-enter illegally to come within the permanent bar.

INA §§ 212(a)(2)(A)–(C). 36 A child who comes within one of these grounds should not submit an affirmative application to USCIS without seriously considering the risks and whether there is a waiver for which the child may qualify. In many of these cases, the application will likely be denied and the child will be placed in removal proceedings. These grounds of inadmissibility include: Inadmissibility Legal Definition Grounds Which Cannot Be Waived for Special Immigrant Juveniles or Are Subject to Higher Waiver Standard

Example

Waivers

INA § 212(a)(2)(A)

Fraud, theft, intent to inflict great bodily harm, some offenses involving lewd conduct, any offense relating to a controlled substance (possession, sale, under the influence)

Crimes involving moral turpitude may fall into an exception for inadmissibility 38 or may be waivable with an INA § 212(h) waiver All controlled substance offenses other than a first time simple possession of 30 g or less of marijuana are not waivable

Conviction or admission of certain crimes (adult convictions only and not delinquency) 37 A crime involving moral turpitude (CIMT) or offense relating to a controlled substance

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The security and related grounds of inadmissibility set forth in INA §§ 212(a)(3)(A)-(C), (E) are also not waivable, but are much less common in SIJS cases as they deal with espionage, sabotage, terrorism, foreign policy, Nazi persecution, etc. However, concerns are emerging that the terrorism ground could be used to bar persons who were previously affiliated with gangs, or who were forced by gangs to engage in certain acts, such as acting as look-outs, transporting drugs or guns, or paying “renta” to the gangs. 37 INA § 212(a)(2) non-waivable bars do not include the part of the paragraph related to a single offense of simple possession of 30 grams or less of marijuana. INA § 245(h)(2)(B). In addition, adjudications in juvenile proceedings are not considered “convictions” for immigration purposes. See Matter of DevisonCharles, 22 I & N Dec. 1362, 1365-66 (BIA 2000); Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981). See Chapter 17 for further discussion on juvenile delinquency issues. 38 There is an automatic exception to inadmissibility for a crime involving moral turpitude (CIMT) if it comes within: 1) the Petty Offense Exception (only CIMT ever committed, has a maximum possible sentence of one year or less, and the sentence imposed was six months or less); or 2) the Youthful Offender Exception (convicted as an adult of only one CIMT, committed while under 18, and the conviction or resulting imprisonment occurred at least five years ago). See INA § 212(a)(2)(A)(ii).

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Multiple criminal convictions for which the aggregate sentences to confinement were five years or more (adult convictions only)

Any type of criminal convictions whose sentences in jail/prison together add up to five years or more

INA § 212(h)

INA § 212(a)(2)(C)

Controlled substance traffickers (as adult or minor) 39

Anyone who the Attorney General has “reason to believe” is a trafficker or has engaged in drug trafficking “Reason to believe” does not require a “conviction” in adult court or a juvenile delinquency disposition

No waiver (only U & T nonimmigrant status visas potentially allow for waiver of this ground of inadmissibility)

INA § 212(a)(3)(A), (B), (C) & (E)

Persons considered harmful to the security of the U.S. including: People entering the U.S. to engage solely, principally, or incidentally in unlawful activity Terrorists or people engaging in terrorist activities Those who pose adverse foreign policy consequences for the U.S. Participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing

Terrorists and people who have provided material support to terrorists; entry into the U.S. to conduct unlawful activity; membership in a Communist or totalitarian party; persons who participated in genocide or Nazi persecution

No waiver, but INA § 212(d)(3)(B)(i) authorizes the Secretary of State or Homeland Security to exempt certain people or groups from the terrorism-related grounds of inadmissibility

If an SIJS-eligible child might come within any of these categories, do not file anything with USCIS until you have consulted with an expert in this area. A more in-depth discussion of the immigration consequences of delinquency and crimes is at Chapter 17. B.

Conviction of certain crimes and juvenile delinquency dispositions

Adult criminal convictions can trigger devastating consequences for any person. Like all other applicants for adjustment of status, Special Immigrant Juveniles are likely to be inadmissible if they have been convicted of any number of adult offenses—for example, crimes involving moral turpitude and drug-related offenses. In many adjustment cases, these convictions are not waivable at all. In others, they may be waivable, but not under the generous SIJS waiver standard. Instead, they may have waiver standards that have a much higher burden than the SIJS waiver standard 39

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The “reason to believe” means that USCIS should have reasonable, substantial, and probative evidence that the person engaged in trafficking. Matter of Rico, 16 I & N Dec. 181, 185-86 (BIA 1977). See Chapter 17 for further discussion of this ground of inadmissibility as well as a number of arguments to challenge this finding for minors.

and therefore are very difficult to obtain. The analysis is complicated for adult convictions and is discussed in further detail in Chapter 17. It is important not to conflate criminal convictions with juvenile delinquency or youthful offender adjudications. Juvenile delinquency adjudications are distinct from criminal convictions in that they do not trigger conviction-based grounds of inadmissibility. 40 However, some juvenile adjudications may trigger inadmissibility grounds under the conduct-based grounds of inadmissibility. Advocates should be particularly careful with applicants who have drug offenses, especially drug sales, as there is no waiver for the reason to believe drug trafficker ground for Special Immigrant Juveniles. See the discussion below on drug-related issues as well as Chapter 17. Juvenile delinquency findings of prostitution or of behavior that indicates a “mental or physical disorder” or drug abuse or addiction also can support a finding of inadmissibility. But unlike drug trafficking, these grounds of inadmissibility can be waived (forgiven) in USCIS’s discretion. Finally, although most juvenile offenses do not trigger inadmissibility grounds, all adjudications and especially serious juvenile adjudications and findings relating to gang activity or affiliation, sex offenses, and violent offenses can and often will serve as negative evidence in the discretionary component of adjustment of status, leading to denial unless mitigated by significant positive equities. WARNING! If your client is charged in juvenile court or adult criminal court, you must be proactive and consult an expert immediately. The way that the criminal matter is resolved could make or break your client’s case. This is especially true if their immigration applications are already pending. C.

Drug-related issues

The ground of inadmissibility for “reason to believe” that the child is or has been involved in drug trafficking is especially dangerous. Unlike most of the other grounds of inadmissibility, the reason to believe ground is conduct based, not conviction based. Thus, even though immigration authorities recognize that a disposition in juvenile court is not a “conviction” for any purpose, 41 some actions can be the basis for inadmissibility (disqualification from immigrating) even if there is no conviction. 42 Drug trafficking can be grounds for inadmissibility if there is strong evidence that it occurred, such as a juvenile court adjudication and disposition. In some cases, USCIS or the immigration court becomes aware that the child has participated in trafficking without any juvenile or criminal justice record. For example, the child may admit this in their interview with CBP or ICE, in the adjustment of status interview, or on the application form.

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Although there are a number of emerging arguments that advocates may advance to try to refute the reason to believe ground of inadmissibility, such as that the act did not constitute drug trafficking or that a minor cannot form the intent necessary to commit drug trafficking, USCIS or 40 See Matter of Devison-Charles, 22 I & N Dec. 1362, 1365-66 (BIA 2000); Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981). 41 See Matter of Devison-Charles, 22 I & N Dec. 1362, 1365-66 (BIA 2000); Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981). 42 Matter of Favela, 16 I & N Dec. 753 (BIA 1979).

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the immigration court may nonetheless decide that they have “reason to believe” that the child has ever been a drug trafficker, and thus find that the child is ineligible for SIJS-based adjustment of status. If the child just possessed or used drugs, this should not be a basis for inadmissibility under the reason to believe ground but may serve as evidence of drug abuse or addiction, a separate ground of inadmissibility that can be waived through the discretionary waiver. See Subsection A.2 above and Chapter 17. This area is quite complex and this information is only introductory. A more in-depth discussion of the immigration consequences of delinquency and crime are provided at Chapter 17. If you are at all unsure of the implications of a specific criminal disposition, consult with an expert in the area. Children who were involved with prostitution, drugs, gangs, or other serious crimes such as violent and sex related offenses or who have been deported in the past may face special problems. An experienced immigration attorney must handle these types of cases. § 5.3

Waivers of Inadmissibility: INA § 245(h)(2)(B) and INA § 212(h)

Special waiver for SIJS-based adjustment of status applicants. Congress provided a special waiver of many of the grounds of inadmissibility for Special Immigrant Juveniles.43 See § 5.2. Unlike traditional inadmissibility waivers such as INA §§ 212(i) or 212(h), the SIJS waiver does not require that the child have a qualifying relative with lawful status. USCIS and the immigration court are authorized to waive the designated grounds for “humanitarian purposes, family unity, or when it is otherwise in the public interest.” 44 This is a broad standard for which any and all evidence should be submitted in support of the application. In order to apply for such a waiver, the child needs to submit Form I-601, available on the USCIS website at www.uscis.gov. Advocates should only file for a waiver if the child clearly falls into a ground of inadmissibility for which a waiver is necessary. If there is doubt about whether the child falls within a waivable ground of inadmissibility, you should consult with an expert before filing the waiver with the SIJS application. Alternatively, you may file it at a later date if it becomes necessary. More discussion on preparing and filing the I-601 waiver for Special Immigrant Juveniles is found in Chapters 8 and 9. Waiver for certain crimes under INA § 212(h). Some people who are inadmissible for criminal offenses are eligible for a discretionary waiver. These include SIJS applicants who are inadmissible because of a conviction as an adult of a crime involving moral turpitude or two or more criminal convictions as an adult when the convictions have a total sentence of five years or longer. There are two ways to get this waiver.

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See inadmissibility waiver at INA § 245(h)(2)(B), as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 302(d)(2) and INA § 245(h)(1), (2)(A), added by the Miscellaneous and Technical Immigration and Naturalization of 1991 § 302(d)(2), creating eligibility for adjustment of status by deeming special immigrant juveniles to have been paroled into the United States and exempting them from the public charge ground of inadmissibility, among others. 44 INA § 245(h)(2)(B).

1. The person must be the spouse, parent, or child of a U.S. citizen or lawful permanent resident, and establish that denial of the person’s admission would result in extreme hardship to that relative; or 2. The person must have committed the crime at least 15 years ago (or at any time, if the person is only inadmissible for prostitution), must be able to show that granting his admission would not hurt the national welfare or safety; and must be able to show that he is rehabilitated. In many cases, an SIJS applicant will not be eligible for the § 212(h) waiver because they cannot meet either requirement prong. In all likelihood the child does not have a qualifying relative (unless they have a U.S. citizen child to whom they can demonstrate extreme hardship). Moreover, due to Special Immigrant Juveniles’ young ages, they will inevitably never meet the second requirement prong that the crime be committed 15 years before the time of application. It is important to consider and investigate with your SIJS client, nonetheless, how each element of a waiver may or may not apply to them. § 5.4

Availability of an Immigrant Visa

In order for an individual to adjust status, “an immigrant visa” must be “immediately available to them at the time their application is filed.” 45 Prior to 2016, this requirement for adjustment of status rarely came up in SIJS-based adjustment of status cases because there were typically enough visas for all children to have a visa immediately available. In other words, children were able to get a green card through SIJS as soon as their application for SIJS (the Form I-360) was approved. However, there has always been a limit on the number of children per country who can get a green card through SIJS in a given fiscal year, this limit was just not reached in most years prior to 2016. With an increase in the number of children applying for SIJS-based adjustment of status, both because of the increased numbers of unaccompanied children coming to the United States and the rise in the availability of legal services for children, this all changed in the spring of 2016. At that time, visas ran out for children applying for SIJS-based adjustment of status from Northern Triangle countries (El Salvador, Guatemala, and Honduras). In the summer months, visas also ran out for children from Mexico and India. Currently, there continues to be a visa backlog for children from Northern Triangle countries and Mexico.

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Due to the backlog in visa availability for children applying for SIJS-based adjustment of status from Northern Triangle countries and Mexico, children from these countries currently experience a significant wait between the time that their Form I-360 is approved and the time that they are able to file and have adjudicated their Form I-485 application for adjustment of status. During this time, children remain in an unresolved state with respect to their immigration status. While Special Immigrant Juvenile Status creates eligibility to apply for adjustment of status, it does not in and of itself convey actual immigration status or protection from deportation. Nor does it provide the opportunity to apply for work authorization, which can only be done once the application for adjustment can be filed. This leaves children in a precarious state, for years in some cases. Further advice on how to talk to clients about the delay caused by the visa backlog

45

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INA § 245(a).

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and how to advise them while waiting for a visa to become available is provided in Subsection B below. A.

Using the State Department Visa Bulletin to estimate when your client can adjust status

Each month the U.S. State Department (DOS) issues a visa bulletin. 46 With the right information, you can consult the State Department Visa Bulletin to see if your client is eligible to adjust status. For example, below is the visa bulletin for July 2018. As you can see, it lists the preference categories on the far left column and then shows the priority dates that are current for each category. Note the eight countries that are assigned their own queues of chargeability (generally because demand is higher from these countries and creates backlogs), listed along the top. Everyone else goes into the queue for all other chargeability areas. See more information below. Visa Bulletin: July 2018 Employment All

China: El Salvador India Chargeability mainland Guatemala Areas Except born Honduras Those Listed

Mexico

Philippines Vietnam

1st

C

01JAN12

C

01JAN12

C

C

C

2nd

C

01JAN15

C

15MAR09 C

C

C

3rd

C

01JAN13

C

01NOV08 C

01JAN17

C

Other Workers

C

01MAY07 C

01NOV08 C

01JAN17

C

4th

C

C

08FEB16

C

08FEB16

C

C

Certain Religious Workers

C

C

08FEB16

C

08FEB16

C

C

-based

5th NonC Regional Center (C5 and T5)

01AUG14 C

C

C

C

01AUG14

5th Regional C Center (I5 and R5)

01AUG14 C

C

C

C

01AUG14

In late 2015 DOS changed the organization of the Visa Bulletin, to show not only which priority dates are current, but also which are close to being current. Previously, the Visa Bulletin only showed “current” priority dates. Now, one chart is entitled “Final Action Dates for EmploymentBased Preference Cases,” and the other is entitled “Dates for Filing of Employment-Based Visa Applications.” The Visa Bulletin also has these same two charts for family-based cases. “Final Action Dates” shows priority dates that are “current.” The other chart, “Dates for Filing,” serves The Visa Bulletin can be accessed through the State Department’s website at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.

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two purposes. First, it can be helpful to see what the DOS views as priority dates that are “close” to being current, and second, in some months USCIS may allow people who will be filing applications for adjustment of status to file early, based on the “Dates for Filing” chart, even though their priority dates are not yet current. Soon after the upcoming month’s Visa Bulletin is posted, USCIS will announce whether it will allow use of the second chart. Visit http://www.uscis.gov/visabulletininfo to find out whether USCIS has stated that the “Dates for Filing” chart may be used for a particular month. The benefit of being able to apply for adjustment of status early is that applicants can get employment authorization more quickly, once they have a pending adjustment application, while they continue to wait for their priority date to become current. When a backlog exists, predicting exactly when the client will be able to adjust status is impossible. But the Visa Bulletin may be used to make a very rough estimate of when the client might be able to apply for adjustment of status in the future. To do this you need to know the following information: 1. 2. 3. 4.

The priority date of the I-360 petition The country of chargeability The preference category How fast the preference category has been advancing in the last 2–3 years 1. Priority date

The date that the I-360 petition is filed with USCIS—the date USCIS received the petition— becomes the “priority date” in the preference system, not the date the petition was approved. 47 That date establishes the person’s place in line to wait for a visa and to determine when they can adjust status. The filing date is important because in some cases the petition might not be approved for several months or even years after filing it. 2. Country of chargeability Sometimes a question comes up about the country to which the person’s visa will be charged. This can make a tremendous difference, since the visa backlog from one country may be a few months, while the wait may be several years from another. As a general rule, a person’s place of birth is the country or territory to which a visa will be charged. This is true even if the person has become a citizen of another country. Example: Enrique was born in Mexico but has acquired citizenship in Guatemala. His country of chargeability is Mexico.

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In some situations, an exception may apply, and applicants can “cross-charge” to a different country, as in general family-based immigration. For example, spouses who are immigrating together, but were born in different countries, can pick the most beneficial country of chargeability. And, children can cross-charge to the country of chargeability of the parent with whom they are immigrating or following to join. For Special Immigrant Juveniles, it may be helpful to consider that if they were born in a country where neither parent had citizenship or 47

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permanent residence, their country of chargeability can be either their mother’s or father’s country of birth. 48 3. Preference category This is the category of the visa petition. For Special Immigrant Juveniles, the preference category is always the employment-based fourth preference category, by law. 49 It may seem odd that visas for Special Immigrant Juveniles come from the employment-based preference categories. This is because there are other forms of Special Immigrants that are more closely tied to employment, such as religious workers. NOTE: File the Form I-360 as Expeditiously as Possible! Although a backlog exists for youth applying for SIJS-based adjustment of status from certain countries, there is NO limit on the number of Form I-360s that can be filed, and filing of this petition should not be delayed. Because the date that the I-360 is filed will secure your client a place in line for a visa, it is incredibly important to file it as soon as possible. This also means that the state court predicate order should be sought as expeditiously as possible. HOW TO READ THE VISA BULLETIN Look at the “Final Action Date” chart in the Visa Bulletin for Employment-Based immigrants below. Visa Bulletin: July 2018 Employme All China: ntChargeabil mainland based ity Areas born Except Those Listed

El India Salvador Guatemala Honduras

Mexico

Philippines Vietnam

1st

C

01JAN12

C

01JAN12

C

C

C

2nd

C

01JAN15

C

15MAR09

C

C

C

3rd

C

01JAN13

C

01NOV08

C

01JAN17

C

Other Workers

C

01MAY07

C

01NOV08

C

01JAN17

C

4th

C

C

08FEB16

C

08FEB16

C

C

Certain Religious Workers

C

C

08FEB16

C

08FEB16

C

C

01AUG14

C

C

C

C

01AUG14

5th NonC Regional Center (C5 and T5)

49

See INA § 202(b); 22 CFR § 42.12. See INA §§ 201(d), 202(a)(2), 203(b)(4).

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48

5th C Regional Center (I5 and R5)

01AUG14

C

C

C

C

01AUG14

First, notice the date at the top. This shows the month to which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month, posting the upcoming month’s visa bulletin about two weeks in advance. Most of the information in the bulletin changes from month to month, so checking it each month is incredibly important. Along the left side of the bulletin chart are all the categories of preference visas. Across the top is a list of countries called the “areas of chargeability.” The first category says, “All Chargeability Areas Except Those Listed.” Known as the “worldwide” category, it includes all countries besides the ones that are listed separately (China, El Salvador, Guatemala, Honduras, India, Mexico, the Philippines, and Vietnam). For example, Argentina does not have a separate listing in the bulletin. Therefore, a person from Argentina should use the numbers listed in the “All Chargeability” column. The countries that fall into this category usually have the smallest backlogs and thus the shortest waiting periods. If the person is from a country that has its own listing, such as El Salvador or Mexico, they must consult that country’s column of information. You will note there are two separate charts for employment-based preference categories. One is entitled the “Final Action Dates for Employment-Based Preference Cases” and the other is entitled “Dates for Filing of Employment-Based Visa Applications.” You read both the charts the same, drawing a line from the relevant preference category across to the corresponding country of chargeability to where you will find a date. The difference is the significance of the date. The date in the “Final Action Date” chart is the priority date of persons from that country, and in that preference category, for whom immigrant visas are available now, or “current.” The date in the “Dates for Filing” chart is the priority date of persons from that country, and in that preference category, for whom DOS has determined immigrant visas will soon be available. Most of the time the “Final Action Dates” chart will govern, but occasionally USCIS may announce in a given month that people who are applying for adjustment of status can use the “Dates for Filing” chart to file early, even though according to the “Final Action Dates” chart their priority date is still not current. The rule to reading the Visa Bulletin is: In the “Final Action Dates” chart, if your client’s priority date falls before the date listed, a visa is now available, and they can immediately apply for lawful permanent resident status. If your client’s priority date falls on or after the date listed, no visa is available to them that month and they must wait longer. Remember that the Visa Bulletin is just about when a visa is available, not about whether someone is eligible in the first place.

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Example: Albert is from Mexico and filed an SIJS-based I-360 with USCIS on June 3, 2016. His I-360 has been approved and he would like to file his application for adjustment of status. Can he do so based on the above chart?

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No, Albert cannot file his I-485 at this time because the category his visa will come from is backlogged, and his priority date (June 3, 2016) falls after the date listed in that category (February 8, 2016). Example: Lucinda is from El Salvador. She filed an SIJS-based I-360 on January 1, 2016. Her I-360 has been approved and she would like to apply for a green card. According to the above chart, can she file her I-485? Yes, Lucinda can file her I-485. Even though the category that her visa will come from is backlogged, her final action date (January 1, 2016) is earlier than the date listed in that category (February 8, 2016). Sometimes, categories show the letters “C” or “U” instead of a date. The letter “C” means that the category is current and there is no waiting for a visa, no matter when the petitioner filed the petition. The letter “U” means that the category is unavailable. All the visas in that category and country have been used up for the current year. Some visas may become available at the end of the fiscal year or the beginning of the next year’s accounting in October (USCIS operates on a fiscal year basis, which begins every October 1st). Until then, the person cannot immigrate no matter when their visa petition was filed. B.

Advising your client about visa availability

Predicting exactly when a visa will become available for a person waiting to adjust status under the preference system is impossible. The priority dates in the Visa Bulletin do not advance consistently because the number of people who apply in a particular preference category can vary from month to month and the number of people who are on the waiting list who still want to immigrate is unknown. Some people may have died, changed preference categories, or changed their minds. The dates in one category may jump ahead several months from one month to the next; they may freeze for several months; or they may even go backwards (“retrogress”). Review past Visa Bulletins and read the comments to get an idea of where a preference category may be moving, and how quickly. For example, over the course of one month, from June 1, 2018 to July 1, 2018 (comparing June 2018 and July 2018 Visa Bulletins), the employment-based preference category for Mexico retrogressed approximately 8 months, from October 22, 2016 to February 8, 2016. In that same time, the employment-based preference category for El Salvador, Guatemala, and Honduras advanced approximately 2 months, from December 15, 2015 to February 8, 2016. This demonstrates how wildly the visa bulletin can jump from one month to the next. You must explain this uncertainty to clients. With experience, rough estimates can be made, but changing worldwide visa demands or changes in the law can create drastic changes. You must also warn your client that if they trigger any of the grounds for automatic revocation of their SIJS while waiting for a visa, their I-360 will be revoked, and they will lose their place in line for a visa. 50 These grounds include marriage, ceasing to be under the juvenile court’s

50

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The USCIS Policy Manual indicates that USCIS will verify the underlying basis to adjust status and determine ongoing eligibility at the time of adjudication of the application for adjustment of status. It further states that USCIS may revoke an approved SIJS petition upon notice for what it deems to be good and sufficient cause, such as conflicting information in the record, by issuing a Notice of Intent to Revoke

jurisdiction, ceasing to be deemed “eligible for long-term foster care” (note that the regulation has not yet been amended to reflect the TVPRA’s statutory changes), and having it be determined that it is in the young person’s best interest to return to their country of nationality. For further discussion of how a Special Immigrant Juvenile can lose SIJS, see Chapter 4. In addition, this potentially long delay in cases makes it even more important for advocates to stay in close contact with clients and ensure that they know how to update you on their contact information. You must also warn clients about the risks of becoming inadmissible, especially those clients who may be approaching or already be over the age of 18 such that any alleged violations of criminal law would be handled in criminal court and potentially create serious barriers to adjusting status. If you learn that your SIJS client has been arrested, be sure to contact their public defender right away so you can work with them on negotiating a plea that protects the client’s future ability to adjust status. For further information about the immigration consequences of delinquency and criminal convictions, see Chapter 17. § 5.5

Discretion to Grant or Deny Adjustment of Status

As the discussion has made clear thus far, there are some scenarios in which Special Immigrant Juveniles may be barred from adjusting status. There are also many situations in which they might trigger a ground of inadmissibility, but nonetheless qualify for a waiver. Even presuming that the child overcomes all of the inadmissibility issues, they still face an additional hurdle: USCIS or the immigration court’s discretion to grant or deny adjustment of status. 51 Special Immigrant Juveniles, like all other adjustment of status applicants, must establish that they merit a favorable exercise of discretion. When considering whether or not to grant adjustment in an exercise of discretion, USCIS or the immigration court should engage in a factspecific analysis and determine whether there are adverse factors in the case. If there are not, then “adjustment will ordinarily be granted.” 52 If there are adverse factors, then “unusual or even outstanding equities” may be needed and factors such as family ties, hardship, and length of residence in the United States will be considered. 53 In the past, most SIJS-based adjustment of status cases have been granted, meaning that USCIS or the immigration court exercised discretion to grant the child’s adjustment of status. Some cases, however, present cause for concern—that is, adverse factors. For example, if the child has a long history of delinquency offenses or a gang-riddled past, USCIS or the immigration court may have reservations about exercising discretion to grant adjustment.

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In cases where there are adverse factors, it is important to present evidence of the child’s rehabilitation and of other factors that weigh in the child’s favor. If there is a link between the child’s behavior and the abuse, neglect, or abandonment (which there almost undoubtedly will be), you should submit proof of this connection in the form of a letter from a therapist or other (NOIR), and will automatically revoke an approved SIJS petition if any of the conditions under 8 CFR § 205.1(a)(3)(iv) are triggered. See 7 USCIS-PM F.7(C)(2). 51 INA § 245(a) provides that status “may” be adjusted, not that it “shall” or “must” be adjusted. 52 Matter of Blas, 15 I & N Dec. 626, 628-629 (BIA 1976) (citing Matter of Arai, 13 I & N Dec. 494, 496 (BIA 1970)). 53 Id. at 629.

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professional working with the child and argue this connection to the USCIS officer or immigration judge. You should also document other equities in the child’s favor. The effort you spend to collect and present this evidence now will save you and the child the stress and uncertainty that would arise if USCIS or the immigration judge were to deny the child’s adjustment in an exercise of discretion. A greater discussion on how to overcome delinquency in juvenile cases is found at Chapter 17.

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CHAPTER 6 RISKS AND BENEFITS OF APPLYING This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7

Overview ............................................................................................................ 133 Pending Affirmative SIJS Cases ........................................................................ 134 Employment Authorization for Adjustment of Status Applicants...................... 134 Limited Eligibility for Public Benefits for Special Immigrant Juveniles ........................................................................................... 135 Benefits of Lawful Permanent Residency Through SIJS ................................... 135 Risks of Applying in Affirmative SIJS Cases: Placement in Removal Proceedings Based on Denial or Revocation of Status ...................................... 137 People Who Obtain Lawful Permanent Residence Through SIJS Cannot Petition for Natural or Prior Parents to Immigrate; They Can Petition for New, Adoptive Parents ............................................................ 139

§ 6.1

Overview

Children who obtain Special Immigrant Juvenile Status (SIJS, the first step toward becoming a lawful permanent resident) are entitled to certain benefits. These benefits include eligibility for adjustment of status, eligibility for employment authorization once their applications for adjustment of status are pending, and eligibility for limited public benefits. These benefits are discussed in §§ 6.2–6.4. Children who complete the entire immigration process and become lawful permanent residents enjoy far greater benefits. These benefits are described in § 6.5. The risk of submitting an affirmative SIJS application (that is, for a child who is not in removal proceedings) is that if either SIJS or lawful permanent residency is denied, the child could be placed in removal proceedings. Once in removal proceedings, if the child has no other way to immigrate, Immigration and Customs Enforcement (ICE) could deport the child. Although USCIS rarely referred denied SIJS applicants to immigration court in the past, it is much more likely to happen under new guidance released by the Trump Administration in June of 2018, as discussed in § 6.6. The risk of being placed in removal proceedings must be considered and factored into the decision whether or not to file for SIJS. By applying for SIJS affirmatively, the child is making themselves known to the Department of Homeland Security (DHS). The pros and cons of applying requires a case-by-case analysis for each client and is addressed in more detail in § 6.6. A child who already is in removal (deportation) proceedings, on the other hand, and for whom SIJS is a possible avenue towards legal immigration status does not take a risk in applying. Since the child has already been brought to the attention of immigration authorities and currently faces possible deportation in immigration court, SIJS is a possible defense to deportation—and a denial of the petition will not endanger the child further because the child is already in immigration court. The only exception is if the child and their immigration attorney have decided to employ a

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strategy of challenging the entire immigration court proceedings through what is called a Motion to Suppress and/or Motion to Terminate. This process includes, for example, refusing to admit to the child’s alienage in immigration court, challenging the child’s removability based on an unconstitutional arrest, and forcing the government to meet its burden in court of establishing the child’s alienage. If that is the strategy, the attorney will want to delay filing the SIJS petition since the petition does require that the child admit where they were born. This process could also include challenging the Notice to Appear as insufficient under a new U.S. Supreme Court decision, Pereira. 1 If the child and attorney decide to challenge the NTA as insufficient, they may wish to delay filing of the SIJS petition depending upon the facts of the case, as it could result in the issuance of a new NTA if the case is denied. § 6.2

Pending Affirmative SIJS Cases

Filing an affirmative application for SIJS does not provide any formal protection from removal, nor does it provide deferred action. However, if your client has a pending affirmative application and gets referred to ICE or is apprehended and placed in removal proceedings, a pending I-360 petition has typically been a strong basis for a motion to continue in immigration court. Denials and appeals. If U.S. Citizenship and Immigration Services (USCIS) denies the affirmative application for either SIJS or for SIJS-based adjustment of status to permanent residency, the child can be referred to an immigration judge for removal proceedings. At the hearing, the child has an opportunity to apply for any form of relief from deportation for which the child may qualify. For children who have already been granted SIJS but were denied adjustment of status, they may be able to apply again for permanent residency. The immigration judge cannot hear an appeal of, or grant an SIJS petition. If the immigration judge denies the child’s application for adjustment of status, the child can appeal. See Chapters 8 and 9 on denials and appeals. If the immigration judge denies the child’s application for another form of relief, appeal may also be available, depending on the form of relief. See Chapters 10, 13, and 15. The child also has the right to appeal a denial of the application for SIJS to an administrative review body, the Administrative Appeals Office. If an appeal is necessary and the state or county is working with the child, the state or county agency working with the child should immediately retain or assign an immigration attorney with experience with SIJS if this has not been done already. USCIS and immigration court decisions often are reversed on appeal, and it would be a violation of the agency’s duty to the child to not fully investigate appeal possibilities. See Chapters 8 and 9 for more information on denials and appeals. § 6.3

Employment Authorization for Adjustment of Status Applicants

A person who files an application for adjustment of status is eligible for employment authorization during the time it takes USCIS or the immigration judge to adjudicate the application. 2 The application for work authorization (Form I-765) can be submitted along with the application for adjustment of status. As discussed in Chapter 5, the existence of a visa backlog for children applying for SIJS-based adjustment of status from certain countries has created significant delays before some youth are able to file their applications for adjustment of 1 2

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Pereira v. Sessions, 585 U.S. __, 138 S.Ct. 2105 (2018). 8 CFR § 274a.12(c)(9).

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status. Since eligibility for employment authorization for SIJS is premised on filing the application for adjustment of status (Form I-485), 3 this means that youth who cannot file their I485 because of the visa backlog are also not able to file the application for employment authorization while they await a visa. This creates significant hardship for young people, especially older youth who may need to work in the months or years while they wait to be eligible to adjust status. For youth from countries that are not currently experiencing a visa backlog, they can file the application for employment authorization in affirmative cases at the same time they submit the Form I-360 and adjustment application; in these “one-step” cases, the EAD application can be approved relatively quickly. The process is different for youth who are in removal proceedings and thus proceeding in a defensive posture. All such youth, even from non-backlogged countries, will have to wait to be able to file the Form I-765 until the Form I-360 has been approved and they can proceed with the adjustment application. For youth in removal proceedings, they may adjust before USCIS if the immigration judge terminates the proceedings, or before the immigration judge. In both instances, they will not be able to file their application for adjustment of status (and thus the I-765) until there is a visa available. If the youth are pursuing adjustment in court, they can still submit the I765 to USCIS. For more information about this procedure in defensive cases, see Chapter 9. For more information about the visa backlog, see Chapter 5. Even a child who is very young or does not plan on working may want to obtain an employment authorization card. It enables the child to get a valid social security number and is an additional form of government-issued identification. § 6.4

Limited Eligibility for Public Benefits for Special Immigrant Juveniles

Children who have applied for or been granted SIJS but who are not yet lawful permanent residents are not eligible for federal public benefits that were once available to individuals who are “permanently residing in the United States under color of law” (PRUCOL). Federal welfare legislation enacted in 1996 generally eliminated the PRUCOL category for federal benefits purposes. However, some states and localities continue to make benefits available to these children. Other states have benefits available to all children, regardless of immigration status. If you have questions about public benefits eligibility, you can contact a resource center. The National Immigration Law Center (213-639-3900) has special expertise in this area. They also have resource materials available on their website at www.nilc.org. § 6.5

Benefits of Lawful Permanent Residency Through SIJS

As noted above, children who complete the entire SIJS immigration process and become lawful permanent residents are entitled to far greater benefits. They include: Permanent lawful status. Once a person obtains lawful permanent resident status (a “green card”), that person is allowed to live and work in the United States permanently. A lawful permanent resident (LPR) can petition for certain family members (see § 6.7), travel lawfully, and apply for citizenship if they meet certain criteria. LPRs can lose their status only if they 3

Id.

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voluntarily relinquish their status, or are determined to be deportable by an immigration judge. LPRs are deportable if the government can prove they did something to come within a ground of deportation (for example, if the person is convicted of a drug offense), traveled while they were inadmissible because of a crime, or abandoned U.S. residency by moving to another country. Once a Special Immigrant Juvenile becomes a permanent resident, they will not lose permanent resident status by becoming an adult, marrying, or by being emancipated from juvenile court jurisdiction. Permanent employment authorization. LPRs automatically are entitled to employment authorization. Travel outside of the United States—but with caution! LPRs may travel in and out of the United States. However, if an LPR travels and attempts to re-enter the United States under certain circumstances, such as after a trip of 180 days or more or after committing certain crimes (an offense listed in INA § 101(a)(2)), the grounds of inadmissibility apply. 4 An LPR who is subject to the grounds of inadmissibility AND is inadmissible upon reentry could be barred from reentering or later found deportable for being inadmissible at last entry. Example: Phil, an LPR, has no criminal record but has a drinking problem. He leaves the country for two weeks. Even though he may be inadmissible for alcoholism, he is not subject to the grounds of inadmissibility on his return because he does not fall within any of the categories in INA § 101(a)(13). Example: Bill, an LPR, has a felony theft conviction which is a crime involving moral turpitude (CIMT). He leaves the country for two weeks. Because he has committed a crime in INA § 101(a)(2), he is subject to the grounds of inadmissibility when he returns. He could be found inadmissible based on his CIMT and barred from reentering; or if he is accidentally let in, he could later be found deportable for being inadmissible at last entry. DHS officers at all entry points, including airports, will take a returning LPR’s fingerprints, so if the LPR has any delinquency or criminal record that could make that person inadmissible or deportable, travel is risky. A court dependent youth should consult with an immigration expert before leaving the United States. Public benefits. Permanent residents are eligible for some public benefits, although this was severely curtailed by the Welfare Reform Act of 1996. If you have questions about public benefits eligibility, contact a resource center. The National Immigration Law Center (213-6393900) is especially expert in this area, as is the National Center for Youth Law (510-835-8098). Ability to become a U.S. citizen. A person over the age of 18 can apply for U.S. citizenship if they have been a permanent resident for five years (or possibly less time, if the person marries a U.S. citizen or is in the U.S. armed forces) and meets other requirements. Thus, a person who became a permanent resident through SIJS at age 14 can apply for naturalization to U.S. citizenship five years later, at age 19, assuming they are otherwise eligible. Note that if the child who gained lawful permanent residency through SIJS is adopted by a U.S. citizen or citizens, she might become a citizen much sooner. A child automatically becomes a 4

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U.S. citizen if, while under the age of 18, they (1) are a permanent resident, through SIJS, family immigration, or any means; (2) are legally adopted by a U.S. citizen before they reach the age of 16, and have resided at any time in the legal custody of the citizen for two years; 5 and (3) are residing in the legal and physical custody of the U.S. citizen parent. 6 Advocates should note that where the Hague Convention rules of adoption apply, compliance is essential to meet the second prong requiring a legal adoption. For more on citizenship and adoption, see Chapters 13 and 14. § 6.6

Risks of Applying in Affirmative SIJS Cases: Placement in Removal Proceedings Based on Denial or Revocation of Status

Denial of the applications and possible deportation. A person who affirmatively applies for SIJS is identifying themselves to USCIS. If the person is undocumented, ICE can bring removal (deportation) proceedings if USCIS denies the SIJS petition or adjustment of status application. For this reason, an affirmative SIJS packet should only be submitted if you believe that it will be granted. If you have any doubts, you should consult with an immigration expert. In the past, advocates reported that some ICE offices did not initiate deportation proceedings against children who were juvenile court dependents, even if USCIS denied SIJS or adjustment. Note, however, this was not true throughout the country. Children, even young children, have been placed in removal proceedings after denial of their applications. However, very recently, USCIS issued updated guidance on when it will refer a person to ICE or issue a Notice to Appear (the charging document that begins a case in immigration court). 7 Advocates must consult this memorandum in evaluating the risk of referral in individual cases. Notably, this new guidance now requires USCIS to issue an NTA in any case in which, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” 8 Unfortunately, this appears to include children who have submitted an unsuccessful application for SIJS or SIJS-based adjustment of status, meaning that they will be issued an NTA by USCIS upon denial, unless DHS exercises prosecutorial discretion, which the memorandum indicates will only occur in “very limited circumstances.” 9 (USCIS has always had the authority to refer an applicant to ICE or place that person in proceedings; what has changed is

5

There are different rules for someone who was adopted as an orphan. See INA § 101(b)(1)(F). See INA § 320 and the ILRC’s manual entitled Naturalization and U.S. Citizenship: The Essential Legal Guide (ILRC, 2016). 7 USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens PM-602-0050.1 (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. On July 30, 2018, USCIS announced that implementation of the USCIS NTA Memo is postponed until USCIS components “create or update operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/aler ts/updated-guidance-implementation-notice-appear-policy-memorandum. At the time of this writing, it is thus unclear when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same. 8 Id. at 7. 9 Id. at 10. 6

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that USCIS is now required to place someone in proceedings if that person 1) has an application that is denied, and 2) lacks immigration status.) The NTA guidance, issued June 28, 2018, also authorizes referral to removal proceedings BEFORE adjudication for groups of cases where fraud is suspected, or where the person is under investigation for an aggravated felony. 10 This newly-updated NTA guidance was issued to align USCIS policy with the immigration enforcement priorities put in place by the Trump Administration. Thus, advocates should also consult the new DHS memorandum on immigration enforcement priorities, effective February 20, 2017, which sets forth incredibly broad and sweeping policies for the apprehension, detention, and removal of noncitizens from the United States. 11 These enforcement priorities are worrisome for essentially all noncitizens living in the United States, but a few particularly worrisome enforcement priorities of which advocates should be aware are persons who “(1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense.” 12 This language is so broad as to include not only adult convictions, but also any kinds of arrests or unarrested unlawful conduct, whether committed as an adult or child, and whether handled in adult criminal court or juvenile delinquency court. In addition, the enforcement priorities also call out “removable aliens … who are involved in gang activity.” 13 Advocates should be aware that the Trump Administration has targeted many immigrant youth based on alleged gang involvement, often based on flimsy or nonexistent evidence of gang involvement. For more information, see ILRC, Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members (May 21, 2018), https://www.ilrc.org/deportation-by-anymeans-necessary, as well as Chapter 17. Note, however, that in evaluating the risk of referral to immigration authorities in an affirmative SIJS case, it is never possible to know with certainty when USCIS might deny a case (unless the child is in fact ineligible), and it is always a risk that must be discussed with your client. If a case presents facts that suggest a risk of denial and referral, but the case overall involves a strong claim for SIJS, recall that the immigration court can hear the adjustment of status application, so a denial of adjustment of status by USCIS and referral to the immigration court may not mean ultimate denial for your client. Consult an expert if you encounter a case where you believe the risk of referral might be high. Possible deportation after special immigrant juvenile status is granted then revoked. Current USCIS regulations at 8 CFR § 205.1(a)(3)(iv) outline circumstances in which a child’s approved SIJS petition is deemed automatically revoked, although several of these grounds have been superseded by statute, as described below. An SIJS petition can be revoked in any of the following situations:

10

Id. at 5-6. Secretary John Kelly, DHS, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/publication/enforcement-immigration-laws-serve-national-interest. 12 Id. at 2. 13 Id. 11

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1. The beneficiary reaches the age of 21 (inoperative, see Chapter 4); 2. The beneficiary marries; 3. The beneficiary’s dependency upon the juvenile court is terminated (arguably inoperative, see Chapter 4); 4. The beneficiary’s eligibility for long-term foster care is terminated (inoperative, see Chapter 4); or 5. The determination in administrative or judicial proceedings that it is in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. Note, however, that USCIS has not yet amended the regulation governing automatic revocations to conform to the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). As a result, some of the grounds listed in the regulation (as noted above), are now inoperative. If the child falls into any of these categories (that have not been changed by statutory amendments made by the TVPRA), their I-360 will be deemed automatically revoked and they will lose their ability to proceed with an SIJS-based adjustment of status application. ICE may then place them into removal proceedings. Consult a practitioner with SIJS expertise if you are concerned about automatic revocation of your client’s I-360. § 6.7 People Who Obtain Lawful Permanent Residence Through SIJS Cannot Petition for Natural or Prior Parents to Immigrate; They Can Petition for New, Adoptive Parents Generally, a U.S. citizen who is over 21 years of age can file a petition to immigrate their mother or father, child, spouse, and brothers and sisters. A child who becomes an LPR as a Special Immigrant Juvenile loses the right to file a visa petition to immigrate their natural parents or original adoptive parents (i.e., the parents whose relationship with the child the juvenile court judge analyzed for purposes of SIJS eligibility), as well as possibly their siblings. The child cannot apply for any natural or prior adoptive parent, even if that parent did not commit the abuse, abandonment, or neglect. While this is not a “risk” of applying, the child should understand this consequence. This issue may be of particular concern in a case in which the attorney is making an argument that the child is SIJS-eligible because reunification with only one parent is not possible and the child is living with the other parent. In these circumstances, this limitation needs to be thoroughly discussed with the child before moving forward with the SIJS process. See Chapter 4 for further discussion on the “one-parent” argument. If the child is eligible for U or T nonimmigrant status, for example, applying for U or T nonimmigrant status may be preferable for the family instead of filing for SIJS since the remaining parent could be a derivative on the child’s U or T Visa application. See Chapters 10 and 15. Because undocumented people are permitted to adopt children in many parts of the United States, the question may arise whether the SIJS recipient can file a petition to immigrate their new, adoptive parents (i.e., parents who adopted them after the court made the SIJS findings that they could not be reunified with their natural or prior adoptive parent or parents). The answer is yes, as long as the family meets various requirements. First, a “parent/child” relationship for immigration purposes must be established. This means that the adoption must have occurred before the child’s

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16th birthday, 14 and the child has resided in the adoptive parent or parents’ legal custody for two years (unless the child was an orphan—which has a specific legal meaning—when adopted). 15 Advocates should note that where the Hague Convention rules of adoption apply, compliance is essential to ensure that the adoption is legal. See further discussion in Chapter 13. Once the parent/child relationship is established, the regular rules of family immigration apply; the child must be a U.S. citizen and be over 21 years of age in order to immigrate a parent.

14 If the same adoptive parents adopt a sibling of an adopted child, the second child must meet the same requirements but can be considered an adopted child if the adoption took place while they were under the age of 18 (rather than 16). 15 For the definition of orphans and special rules pertaining to orphans, please see INA § 101(b)(1)(F), as well as Chapter 13.

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CHAPTER 7 STATE JUVENILE COURTS AND OBTAINING SIJS FINDINGS IN JUVENILE COURTS This chapter includes:

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Part I: State Court Systems § 7.1 Dependency Proceedings ................................................................................... 142 § 7.2 Guardianship Proceedings .................................................................................. 149 § 7.3 Custody Proceedings .......................................................................................... 151 § 7.4 Adoption ............................................................................................................. 154 § 7.5 Delinquency Proceedings ................................................................................... 157 Part II: Obtaining SIJS Findings in Juvenile Courts (By Kristen Jackson) § 7.6 Obtaining Specific Consent When Needed ........................................................ 162 § 7.7 Establishing Juvenile Court Jurisdiction if Not Already Existent ...................... 164 § 7.8 Deciding When to Request the SIJS Findings .................................................... 166 § 7.9 Determining Who Should Request the SIJS Findings ........................................ 167 § 7.10 Preparing the Proposed SIJS Findings and SIJS Motion.................................... 169 § 7.11 Presenting the Proposed SIJS Findings and SIJS Motion to the Juvenile Court .................................................................................................... 172 § 7.12 Maintaining the Child’s SIJS Eligibility After the Juvenile Court Has Made the SIJS Findings...................................................................................... 174

The process of obtaining Special Immigrant Juvenile Status (SIJS) is a unique and hybrid process of state and federal collaboration, incorporating state court child welfare expertise into federal decision-making on immigration matters. Federal immigration law places critical fact finding functions about the child’s best interests and the possibility of family reunification with state “juvenile courts,” which are defined in the federal immigration regulations as “court[s] located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles.” 1 Historically, SIJS was most commonly sought for children who enter the state child welfare system and dependency court systems (commonly known as foster care). However, SIJS is also available and is increasingly sought for children in state probate and family court systems through guardianship or custody, in state juvenile delinquency systems, and for children who are adopted. Part I of this chapter is a primer on the various state court systems that may play a role in SIJS findings; each varies widely by state. They may include dependency, delinquency, custody, guardianship, and adoption. Part II of this chapter provides procedural guidance in obtaining SIJS findings in juvenile courts. It covers how to obtain specific consent if a youth is in federal custody and is seeking a change in placement or custody. It also covers how to establish juvenile court jurisdiction if it does not already exist. Finally, it provides information as to how to prepare 1

8 CFR § 204.11(a).

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and file the motion for SIJS findings and attend the hearing on the motion, with a special focus on collaboration between those within the juvenile court system and immigration advocates.

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WARNING! Dependency, delinquency, custody, guardianship, and adoption proceedings will differ by state and by locality. In some states they may all fall under the jurisdiction of a single unified family court, while in most states these various types of cases are heard in different courts. The following discussion in Part I is intended only to provide advocates with general background of these systems and how they may operate. Advocates not already working in these systems should familiarize themselves with the system they intend to proceed in on an SIJS case and ideally should partner with an advocate who is already working in the system, e.g., a dependency attorney, domestic relations lawyer, or a juvenile public defender. In-depth national, state, and local guides on these various systems and proceedings exist. Please see the footnotes of this chapter for good resources. PART I: STATE COURT SYSTEMS § 7.1 A.

Dependency Proceedings

What is child welfare and dependency?

The child welfare system is designed to protect children by ensuring their safety, achieving permanency, and strengthening families to successfully care for their children. The system is responsible for responding to reports of child abuse and neglect, helping families solve problems caused by abuse and neglect, helping children be safe and secure, preventing separation of children from their families, helping families reunite with their children, ensuring adequate care while the child is in state custody, and finding another suitable permanent home for children who cannot reunify. 2 While the primary responsibility for child welfare services rests with states, the federal government plays a major role in supporting states in the delivery of services through funding of programs tied to federal legislative mandates on improving how cases are handled. 3 Dependency refers to the process by which decisions are made about the custody and care of a child who has come into the child welfare system; these children are seen as “dependent” upon government intervention to ensure their adequate care. When a child comes into contact with the child welfare system, a court process may be involved to determine who will care for and have custody of the child. The names of these courts vary from state to state; some may be called juvenile, dependency, probate or family courts. Regardless of their title, these courts are civil, not criminal, courts. 4 States, tribes and counties have child welfare agencies that work in tandem with the court process. Courts often rely on these agencies to make assessments, develop plans for the child and 2

Jan McCarthy, et al., A Family’s Guide to the Child Welfare System, 11 (2005), http://gucchd.georgetown. edu/products/AFamilysGuide_English.pdf [hereinafter, A Family’s Guide to the Child Welfare System]. 3 This information is taken from the Child Welfare Information Gateway, How the Child Welfare System Works (Feb. 2013), https://www.childwelfare.gov/pubs/factsheets/cpswork/ [hereinafter, How the Child Welfare System Works]. 4 But note that in cases of severe child abuse or neglect, criminal proceedings based upon the child’s maltreatment may also be involved, separate and distinct from the dependency court and SIJS orders.

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parents, and oversee implementation of these plans for the families involved. These agencies typically provide clinical expertise and case management to the family through social workers sometimes referred to as child welfare workers or child protection services or CPS workers, prepare service plans for ultimate reunification or alternative permanent placement, identify potential relative caretakers, find and recruit foster parents, administer the foster care system, and help identify prospective adoptive parents or permanent adult guardians, for children where that is the appropriate goal. 5

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The dependency process itself consists of, first, a factual determination of whether a child has been abused or neglected, or meets the definition of a dependent child. This is followed by a series of assessments and hearings to determine the child’s needs and, when the child cannot be safely cared for at home, safe placement of the child once a child has been taken into state custody. There are periodic review hearings, which review the child’s permanency goal, and, in some cases, a separate proceeding initiated to terminate parental rights. Through this often lengthy process, a child may be returned to their parents, be placed with relatives, or may remain in foster care, depending on the outcomes of the hearings and agency decisions. While each state has a different system and set of laws and procedures to address dependency, federal law guides these systems. For example, the Child Abuse Prevention and Treatment Act (CAPTA) of 1974, which has been amended several times, most recently in 2016, aims to improve state child protective services (CPS) (discussed in more detail in the section below) and make state CPS programs more uniform nationally. 6 CAPTA also provides guidance for the investigation of CPS reports, the prosecution of child abuse, support for child abuse prevention work, guidance on training for CPS workers, and referral for early intervention services for any child under age three. 7 CAPTA also provides key definitions of abuse and neglect, which states receiving CAPTA funding must generally follow in their own laws. 8 In general, state laws define abuse as causing physical or emotional harm to a child, including sexual abuse. A parent may be held legally responsible for abusing a child even when someone else in the home commits the abusive acts. Child neglect is typically defined in state legislation as a failure to provide for a child’s basic needs, including physical, educational, medical, and emotional needs. Often this may occur when a parent has a substance abuse problem or some form of mental incapacity or illness. Neglect allegations can also arise when there is domestic violence by one parent against the other, and the victim parent is deemed to be failing to protect the child by not leaving the abusive relationship.

5

Diane Reed & Kate Karpilow, Understanding the Child Welfare System in California, California Center for Research on Women and Families (CCRWF) (2nd ed. 2009) [hereinafter, Understanding the Child Welfare System in California]. 6 Child Welfare Information Gateway, About CAPTA: A Legislative History (2017), https://www.childwelfare.gov/pubs/factsheets/about.pdf; Leonard Edwards, Reasonable Efforts: A Judicial Perspective 37 (2014). 7 A Family’s Guide to the Child Welfare System, supra note 2, at 23. 8 A Family’s Guide to the Child Welfare System, supra note 2, at 14.

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Actions of state and county child welfare agencies are also guided by requirements in Titles IV-B and IV-E of the Social Security Act. 9 These federal laws provide essential funding to state and tribal child welfare systems, but are conditioned on following federal legal requirements set forth in such statutes as the Adoption Assistance and Child Welfare Act of 1980, the Adoption and Safe Families Act of 1997, the Fostering Connections to Success and Increasing Adoptions Act of 2008, the Child and Family Services Improvement and Innovation Act of 2011, and the Preventing Sex Trafficking and Strengthening Families Act of 2014.

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Tension between child welfare and immigration goals: There are potential underlying tensions between child welfare and immigration advocates due to differing mandates. As noted above, child welfare aims to ensure the safety of children, particularly by strengthening families, providing safe and secure alternative homes for children where necessary, and achieving permanency for children removed from the home as quickly as possible. As such, an underlying premise in child welfare, mandated by federal law, is that a child’s reunification with their family is the preferred goal where appropriate for children who enter the child welfare system. 10 It is also important to note the standards that govern decision-making in child welfare. When a child has been removed from the home by a state or Title IV-E eligible tribe, the child must be returned if their home is “safe.” 11 Regarding other goals, such as relative placements or adoptions, decisions are governed by “the best interests of the child,” a standard which considers a broad array of factors. Further, the model of representation for children in court varies by state/tribe. In some jurisdictions, attorneys employ a traditional client-focused model where the attorney advocates according to the child’s expressed interests. In other jurisdictions, the attorney (or, in certain states, a lay court-appointed advocate or guardian ad litem) advocates for the child’s best interests, based on their own substituted judgment after review and investigation. In the immigration system, the goal and duty of advocates is to zealously advocate on behalf of a child’s expressed interests, which most often means advocating on the child’s behalf so they can obtain legal immigration status. In order to obtain legal status through SIJS, the child must reach a point in the dependency process such that a finding of reunification with one or both parents is not possible. Getting this far in the dependency process, where parental reunification is not seen as possible and parental rights are often (but need not be) terminated, is precisely what the child welfare system generally 9

Child Welfare Information Gateway, Major Federal Legislation Concerned with Child Protection, Child Welfare, and Adoption (Mar. 2015), https://www.childwelfare.gov/systemwide/laws_policies/statutes/define.pdf. 10 Child Abuse Prevention and Treatment Act, P.L. 93-247 (1974), as amended by The CAPTA Reauthorization Act of 2010, P.L. 111-320. 11 45 CFR § 1356.21(b); see also, 45 CFR § 1355.25 (stating: “The following principles … should guide the States and Indian Tribes in developing, operating, and improving the continuum of child and family services. (a) The safety and well-being of children and of all family members is paramount. When safety can be assured, strengthening and preserving families is seen as the best way to promote the healthy development of children”). Title IV-E jurisdictions must make reasonable efforts to “improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care.” See Pub. L. No. 96–272, 94 Stat. 500 (June 17, 1980) (under definitions); 42 USC 675(1)(B).

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seeks to avoid. However, this very outcome of non-reunification (at least with one parent) is often what immigration attorneys seek because it could result in eligibility for legal status for the child.

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It should be noted that in many dependency cases, a non-custodial parent will have shown little or no interest in the child, although they will still be entitled to notice and an opportunity to be heard in these cases, as will their kin. That parent may be living outside of the state where the dependency court case is being held, which will complicate the process of factually determining whether they are “unfit” to care for the child. It is, however, far more likely in these situations that the court will make a finding of neglect or abandonment against a long-absent and uninvolved parent, especially if there is evidence of past acts of violence. Advocates in both systems should recognize that there is often overlap between their duties and goals. For example, legal status may be an important consideration for permanency and the safety of a child, and the best interest of the child may be a consideration in whether to pursue immigration legal relief at all. In any given case, all relevant factors should be considered and inform the ultimate outcome. Team decision-making should be employed, where child welfare, immigration advocates, and other stakeholders together can discuss the best outcomes in a child’s case. B.

How does the dependency court system work?

Typically, the court process begins when police or a social worker removes the child from the care of their parents and places the child in protective care. This may happen for a wide variety of reasons. Someone may have reported abuse or neglect to CPS. This includes the child himself or herself, neighbors or family acquaintances, or mandated reporters such as law enforcement, healthcare, childcare, social service providers, educators, mental health providers, etc., who have contact with a child. CPS is one arm of the child welfare system charged with investigating child abuse and neglect. Each jurisdiction has its own laws about how the CPS system operates. If CPS is investigating a report of child abuse, neglect, or a child found to be without parental care (e.g., if a custodial parent is arrested and detained), the agency may decide to file a child protective petition with the court that handles juvenile or family matters to request a preliminary or emergency protection order. This is also done in cases where a child may have had to be removed for emergency protection, or where parents have been uncooperative in a CPS investigation. If a petition is filed in court, CPS will usually either seek a court order for temporary custody of the child or CPS will simply seek to have court oversight of the case because of the seriousness of the maltreatment and/or the parents’ unwillingness to fully cooperate. Generally, an initial hearing is held within a few days of the filing of the petition to determine whether the emergency protection removal, or preliminary court order removing the child, was justified and whether there is an ongoing need to have the child out of the parent’s custody. In other cases, CPS may respond less drastically and allow the family to keep the child at home, while CPS further assesses the situation or provides services to the child and family. Generally, the court will not become involved unless it becomes necessary for court intervention to protect the child. At the very onset of a report of child abuse or neglect, CPS in an increasing number of jurisdictions can respond to the report with either an “investigation” or with a family assessment, the latter often called “differential” or “alternative” response. The route chosen by CPS will

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depend on the severity of the report, the level of danger to the child, and the willingness of the family to voluntarily participate in services and make changes that will better assure the child’s proper care and safety. 12

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When CPS has responded with an investigation, and upon their conclusion that the maltreatment report is “substantiated” or “founded” they may remove the child from the home. Note that in most cases of child maltreatment the child is not removed from the home, but rather the child welfare system provides home-based family support services. If, upon removal, the child is not quickly returned home, a child protective court petition will generally be necessary. After the adjudicatory hearing that decides if there is enough evidence to support a finding of maltreatment (i.e., whether abuse or neglect actually occurred based on state law), the court must then hold a disposition hearing to determine who will have custody and control of the child, and where the child will live. This may occur at the end of the adjudicatory hearing, or at a separate hearing. 13 For children and youth who are placed in foster care, child welfare agencies work with the child and their family to develop a “case,” “permanency,” or “reunification” plan (the name can vary), unless the maltreatment was so egregious that no reunification efforts are justified. 14 The family should be given the opportunity to participate in the development of a case plan that will guide the agency’s work. As articulated earlier, in most cases, this plan is primarily focused on reunification. However, there is a secondary or back up plan if efforts towards reunification should fail (this is called “concurrent planning”), so that permanency can be achieved for a child more rapidly. 15 This includes options such as adoption or guardianship. If the child is in foster care, there will be periodic review hearings to check in on how the parent and child are doing. These generally must happen at least every six months, and ideally more frequently. The court and/or agency usually considers the following: if the child is safe and well in the current placement, whether the child needs to continue in that placement, if the parents are following the court and agency’s guidelines, what type of progress is being made, and whether the plan for the parent and child should be changed. 16 This hearing may occur in court or before an administrative review panel. Distinct from a review hearing is a “permanency hearing,” which ultimately determines where the child’s permanent placement will be and sets a date for achieving that final placement. This is when the ultimate decision concerning reunification will likely be made, based on whether the court determines that the child can safely return home. Finally, the agency may move to terminate parental rights. This is almost always done if the agency’s case goal is to have the child adopted. Federal law mandates that the court begin proceedings to terminate parental rights in the following situations: a child has been in foster care for 15 of the most recent 22 months; a court has determined that a child is an abandoned infant; or a court has determined that a parent has murdered, seriously injured, or attempted to murder 12

A Family’s Guide to the Child Welfare System, supra note 2, at 17. How the Child Welfare System Works, supra note 3, at 4-5. 14 See Child Welfare Information Gateway, Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children, 2 (Mar. 2016), https://www.childwelfare.gov/pubPDFs/reunify.pdf. 15 How the Child Welfare System Works, supra note 3, at 6-7. 16 A Family’s Guide to the Child Welfare System, supra note 2, at 49. 13

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another one of their children. 17 A termination hearing may occur much earlier than mandated by federal law. This often happens when a parent has abandoned his child, the family has not made efforts to improve the initial situation that brought the child into state care, or where the abuse and/or neglect was particularly severe.

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At the end of the dependency court process, the following outcomes are possible: reunification with parents, adoption, guardianship/kinship care, or for older youth in foster care, independent living. Because this manual is focused on SIJS, which requires a finding that reunification with one or both parents is not possible, the subsequent sections in Part I of this chapter will provide more detail on the possible non-reunification outcomes. Consult Chapters 3 and 4 for further information on potential SIJS eligibility in the case in which a child or youth has been reunited with one parent (but not both). Reunification and potential immigration relief for families who are reunited. Reunification generally means that a child returns home to their family after being placed in foster care. 18 This decision can be made early in the case, or as late as the permanency hearing. In some cases, parent(s) will get full custody of their child immediately, while in other cases, they will only first get physical custody and the child welfare agency will retain legal custody. Reunification is typically based on the family meeting certain conditions, with ongoing monitoring of the child and family’s home by the child welfare agency for some period of time. In other situations where the child has been reunified successfully and there is no fear of the child continuing to be at risk, the court may dismiss the case entirely, leaving the family free of government oversight and intervention. In a child abuse or neglect case in which reunification with both parents is the outcome, the child will not be eligible for SIJS. However, they may be eligible for other forms of relief such as that under the Violence Against Women Act or U nonimmigrant visa. See Chapter 1 for an overview. Even in cases where reunification was not successful with only one parent (meaning that the child may still be eligible for SIJS), a form of relief other than SIJS may be preferable for the long-term stability of the child. This is because, unlike SIJS, some other forms of immigration relief allow a parent to be a derivative on their child’s application and even primary petitioners in certain circumstances. Pursuing immigration status for both a parent and child may be in the best interests of the child long-term. Independent living. Independent living is a type of plan for youth who will be leaving foster care and state custody entirely through emancipation (aging out of care). The exact age at which a foster youth will “age out” of care varies. In many states and tribes the age is 18, but increasingly youth may remain in care as late as until their 21st birthday. 19 The Chafee Foster Care Independence Act established a federal program that provides funds to states for services to support youth who are likely to remain in foster care until age 18, youth who are aging out of foster care, and youth who have already left foster care, are between the ages of 18 and 21, and who were in foster care on their 18th birthday. 20 As of October 2010, through the Fostering 17

Id. at 51. Id. at 65. 19 Child Welfare Information Gateway, Extension of Foster Care Beyond Age 18 (Feb. 2017), https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/extensionfc/. 20 A Family’s Guide to the Child Welfare System, supra note 2, at 75. 18

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Connections to Success and Increasing Adoptions Act of 2008, states and tribes now have the option of receiving federal support for costs of eligible foster youth through their 21st birthday. Independent living is generally a plan for youth who cannot return to their families and are not going to be adopted. The child welfare agency provides this special assistance for youth in foster care to help prepare them for adult independence. Youth with independent living plans should still be eligible for SIJS as long as they are under 21 years of age, but in light of a recent USCIS policy change regarding state court orders issued after the age of 18, it may be best practice to ask that the dependency court issue the SIJS findings before the child turns 18 if possible. See Chapter 4 for additional information about post-18 orders. C.

How immigration-related issues impact the child welfare system 21

While a state court’s collaboration is needed for the SIJS findings (see discussion in Part II of this chapter), the child welfare system and dependency courts do not have the power to confer any immigration benefits on a child. However, immigration issues may develop throughout the child welfare process that can affect both the child and their family. Advocates in the child welfare system should be aware of these issues as they can significantly impact the outcomes of any given case. One of the predominant immigration issues that surfaces in the child welfare system is undocumented parents’ and relatives’ reluctance to cooperate in the process for fear of being reported to immigration authorities and/or deported. For example, undocumented parents may have trouble working with CPS, or, in the case that law enforcement is involved, undocumented parents may be even more wary of working with the child welfare system, particularly as law enforcement increasingly cooperates with immigration authorities to target immigrants for apprehension and deportation. Undocumented relatives may have the same fears regarding stepping forward to provide a placement for a foster child, or to themselves become licensed as the child’s foster parents. 22 A critical prerequisite in the child welfare assessment is building trust with the family so they understand that obtaining the actual immigration facts is necessary for the assessment and case plan. It is important to emphasize that the information will be used within the construct of the child welfare agency’s confidentiality guidelines, and workers should check 21

There are resources available on the role of immigration issues in the child welfare system. Child welfare advocates should consult the Center on Immigration and Child Welfare (CICW), A Social Worker’s ToolKit for Working with Immigrant Families – Healing the Damage: Trauma and Immigrant Families in the Child Welfare System (Feb. 2015), and A Social Worker’s ToolKit for Working With Immigrant Families -Immigration Status and Relief Options (June 2015). Both can be downloaded at http://cimmcw.org/resources/training-tools/toolkits-handbooks-guides-books/. Other useful websites on the intersection of child welfare and immigration are Annie E. Casey’s Family to Family Initiative in the Pacific region website at http://www.f2f.ca.gov/Immigrants.htm, and the American Bar Association’s Center on Children and the Law at https://www.americanbar.org/groups/child_law.html. The ILRC also creates resources for child welfare workers on immigration issues, including ILRC, Immigration Enforcement & Child Welfare (Dec. 2017), https://www.ilrc.org/immigration-enforcement-child-welfare, and ILRC, Child Welfare Screening Sheet: Determining Potential Avenues for Legal Status (Sept. 2017), https://www.ilrc.org/child-welfare-screening-sheet-determining-potential-avenues-legal-status. 22 In California, for example, the state passed the Reuniting Immigrant Families Act to address these concerns. Among other things, this law mandates that immigration status cannot play a role in the decision of whether to place a child with relatives (including parents). SB 1064 (Sept. 30, 2012).

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their agency’s policies to ensure that employees and contractors are prohibited from reporting any members of the family to immigration authorities, such that they can provide this assurance to families at the outset of their interactions.

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Cultural norms and child-rearing practices of immigrant families may differ from practices in the United States. 23 In these cases, it may be difficult for families to understand that certain treatment of their children was unlawful and that the child welfare system would allow children to be taken from them. In other cases, parents may give up custodial rights altogether due to fear of the consequences of involvement of the child welfare system and their belief that they have no rights in the process. Finally, another critical immigration-related issue that may develop in child welfare cases is language access and cultural competency. Often there is a lack of appropriate translation and culturally-competent services which may lead to inaccurate or insufficient information about a child’s case and misunderstandings as to why the family is acting in a certain way. 24 This is based on both the language and cultural barriers the child or parents may face. § 7.2 A.

Guardianship Proceedings

What is guardianship?

Guardianship is a legal tool that typically gives someone other than a child’s biological or adoptive parents the care, custody, and control of the child. In the majority of states, guardianship decisions occur in family or probate courts and provide an alternative solution to foster care and the child welfare system. In other states, juvenile dependency or delinquency courts can make guardianship decisions. In some states, any one of these courts will have authority to issue guardianship orders. A guardianship is sometimes needed when the child’s parents are unwilling or unable to care for them or when parental control is detrimental to the child. In some states, parents can also consent to a guardianship if it is necessary and convenient for the care of the child. It gives the guardian almost complete rights to make decisions on behalf of the child, and the child’s parents lose the ability to make those decisions. 25 For example, guardianship typically transfers the following parental rights to the caretaker: protection, education, care and control of the child, custody of the child, and decision-making (for example, medical decisions). 26 Guardianship of the person, however, does not permanently terminate parental rights; it only suspends those rights while the guardianship is in place. Guardianship of the person, in contrast to guardianship of the estate, does not give the guardian control over the child’s property or other assets. In most states, the guardianship remains in place 23

CICW, A Social Worker’s ToolKit for Working with Immigrant Families, Healing the Damage: Trauma and Immigrant Families in the Child Welfare System (Feb. 2015), http://cimmcw.org/resources/trainingtools/toolkits-handbooks-guides-books/. 24 For an interesting read on this subject, see Anne Fadiman, The Spirit Catches You and You Fall Down (Jonathan Galassi & Elisheva Urbas eds., Farrar, Straus and Giroux 2012) (1997). 25 Public Counsel Law Center, Guardianship of the Person Attorney Manual (2017), http://www.publiccou nsel.org/tools/publications/files/0032.pdf [hereinafter, Guardianship of the Person Manual]. 26 A Family’s Guide to the Child Welfare System, supra note 2, at 71.

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until the child turns 18—unless the child marries, emancipates, is adopted, or unless someone petitions the court for termination of guardianship and that petition is granted. 27 Guardianship is sometimes used for older youth who cannot return home, who do not want to be adopted, and who wish to maintain ties with their families.28 Typically, the parents may still have contact with their children. 29 B.

How does guardianship work?

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The petitioner for the guardianship (the person who files the request that the guardianship be established) can be the proposed guardian, the child (depending on their age), or some other person interested in the child’s well-being (such as a grandmother, aunt, or family friend). 30 Parents can suggest someone to be their child’s guardian, in which case a court or social service agency will typically conduct a home study and a criminal background check to help assure the guardian’s fitness. Relatives may be guardians, and, in fact, this is encouraged. Sometimes, if the child has been abused or neglected, a relative is appointed as a child’s temporary custodian or guardian. This is called “kinship care.” Close family friends are also often considered for the guardianship process. The court will consider all the information about the proposed caretaker and then make a decision as to who the guardian will be. 31 Generally, the proposed guardian’s immigration status is not relevant to the guardianship proceeding, but if the proposed guardian has specific concerns about her immigration status, she should consult a local immigration attorney. 32 The effect of the court appointing a guardian for a child who was in foster care is to shift the custody of the child from the state to the guardian. (Note some children, whose parents have died, may have a guardian appointed only for preservation and management of their property, not for purposes of assuming the child’s custody). Usually, once a guardian has been appointed, ongoing court or agency supervision may not be required, although many states provide, for children who have been in foster care, continued financial support and follow-up services for both the child and guardian. 33 Even for children who have not been in foster care, some states require continued court involvement via the filing of an annual guardianship status report for the court to assess the current status of the guardianship. 34 In the case of an SIJS applicant, advocates may enter the case at the stage in which the guardianship is being requested or once a guardian has already been appointed. In either case, advocates should help the petitioner for the guardianship ask the court to enter the requisite SIJS findings for that child. See Part II of this chapter for procedural steps. Temporary guardianship. Temporary guardianship is a type of guardianship that can be obtained in a very short period of time and often with limited or no notice to the parents, 27

Guardianship of the Person Manual, supra note 25, at 1. In some states, a guardianship can continue until the ward turns 21 years old. Id. 28 A Family’s Guide to the Child Welfare System, supra note 2, at 72. 29 Id. at 72. 30 Guardianship of the Person Manual, supra note 25, at 11. 31 A Family’s Guide to the Child Welfare System, supra note 2, at 71. 32 Guardianship of the Person Manual, supra note 25, at 18. 33 A Family’s Guide to the Child Welfare System, supra note 2, at 72. 34 See, e.g., Cal. Prob. Code § 1513.2.

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depending on the facts and court, versus a longer wait for a general guardianship hearing. The petition may require that the petitioner disclose the urgent need for a temporary guardianship. Even if the petition does not require this information, the judge will certainly request it at the hearing. Good reasons for a temporary guardianship traditionally include authorization for an urgent medical procedure or an immediate safety threat to the child. Practice varies by jurisdiction, but it may not be possible to obtain the SIJS findings at the temporary hearing because, at this point, no investigation/home study/background checks have been completed to support the findings you will be asking the court to make. In addition, the USCIS Policy Manual states that “[c]ourt-ordered dependency or custodial placements that are intended to be temporary generally do not qualify for the purpose of establishing eligibility for SIJ classification. A courtappointed custodian that is acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent, is not considered a custodian for purposes of SIJ eligibility.” 35 Although some states may use the term “temporary” to refer to a guardianship put in place on an emergency basis until permanent orders can be entered, be aware that USCIS may take issue with this label. Permanent guardianship. Typically, in order to appoint a permanent guardian for a child, a court needs to determine that the parent(s) will be unable to provide for the child in the long term and the proposed caretaker is suitable and able to provide a safe and permanent home. The permanent guardianship will have to be found in the child’s best interest. Regarding the SIJS requirement that the child continue to be “under juvenile court jurisdiction,” a family or probate court continues to exercise jurisdiction over a child as long as the court has the power to modify the guardian’s powers regarding custody or, as in another common scenario, as long as the court retains the authority to terminate the guardianship if it is no longer in the child’s best interests. There may be other indications and arguments that a family or probate court should retain jurisdiction over the child. State court jurisdictional requirements on guardianship vary widely, but many states require that guardians notify the court in the case of a change of address or submit annual status reports to the court.36 § 7.3 A.

Custody Proceedings

What is custody?

A custody determination is a judgment, decree, or other court order that provides for the legal custody, physical custody, or visitation with respect to a child.37 A custody determination is sometimes needed when parents separate, divorce, or experience domestic violence. Parents that separate, whether or not they were ever married, need a plan for the care and custody of their children. Sometimes parents can mutually agree to a plan for their child, but other times the assistance of the court is needed to ensure a plan that is in the best interest of the child(ren). If that is the case, a request for a custody determination may be appropriate in order to set forth an agreement for such a child’s care and residence. The custody order will answer such questions as: With whom will a child reside? Will the child visit with the other parent? If so, how often? Which parent will be in charge of major medical or educational decisions about the child? 35

6 U.S. Citizenship and Immigration Services Policy Manual (USCIS-PM) J.2(D)(1). See, e.g., Cal. Prob. Code § 1513.2; Cal. Prob. Code § 2352; Cal. R. Ct. 7.1013. 37 Uniform Child-Custody Jurisdiction and Enforcement Act (1997), art. 1, § 102(3). 36

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A custody determination from a court may be temporary or permanent and may be an initial order or a later modification. It may determine legal and/or physical custody, and may provide that parents have either joint custody or sole custody. Legal custody typically allows parents to make important decisions about their children’s school or childcare, medical treatment, travel, and other important issues. Physical custody refers to where the child lives. A custody arrangement may give parents any combination of legal and/or physical custody; for example, parents may have joint legal custody, but not joint physical custody. If a court determines that giving custody to either parent would not be in the children’s best interest, the court can give custody to someone other than the parents. (Usually, this is achieved through a guardianship. See § 7.2 for more information.) In most states, a permanent custody order remains in place until the child turns 18, unless it is modified by the court. B.

How does custody work?

The petitioner for a custody order (the person who files a request that the custody determination be made) can be a parent or the child (depending on the child’s age). Any case involving the custody of a child is governed by standards for determining when a state or country can appropriately exercise jurisdiction. All states and the District of Columbia adopted the Uniform Child Custody Jurisdiction Act (UCCJA). Most states have since replaced the UCCJA with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to make such determinations.38 The reason for these uniform acts and the concern over when a state may exercise jurisdiction over custody matters is to decrease confusion about which state (or country) should make or modify custody decisions when parents relocate either to perpetrate or escape abuse. Thus, before filing any request for a custody determination, advocates must determine whether their state has initial jurisdiction over the child’s custody. 39 If a custody order from another state or country already exists, advocates must determine whether their state has jurisdiction to modify the other state or country’s custody judgment. 40 Assuming that the court has jurisdiction, it will consider all of the information contained in the pleadings as well as the court history of the parties. If the court determines that the situation requires it, it may appoint a third-party professional, such as a guardian ad litem, mental health professional, or court appointed special advocate (CASA). Many jurisdictions require a pretrial conference where the parties meet to settle those issues that they agree upon and narrow the issues for the court. Many family courts also automatically refer a dispute regarding children to some form of mediation. If you are handling a case where you do not expect the other parent to participate in the proceedings, either because they reside in another country, or because they have abandoned the child and are non-responsive, the parent and child will likely still need to attend mediation, but it may be a very quick conference without the other parent present. There may be a hearing, or multiple hearings, before the court decides who will have custody of the child. 38

National Council of Juvenile and Family Court Judges, A Judicial Guide to Child Safety in Custody Cases, 14 (2008), http://www.ncjfcj.org/sites/default/files/judicial%20guide_0_0.pdf [hereinafter A Judicial Guide to Child Safety in Custody Cases]. 39 See generally Uniform Child-Custody Jurisdiction and Enforcement Act (1997), art. 2, § 201. Note that advocates must look to the law as implemented in their own state for specific guidance. For example, the UCCJEA is incorporated into California law at Cal. Fam. Code § 3400 et seq. 40 A Judicial Guide to Child Safety in Custody Cases, supra note 38, at 16.

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Whether governed by statute, case law, or custom, all state courts employ some version of the “best interest of the child” standard in making these decisions. 41 Generally, the petitioner’s immigration status is not relevant to the custody proceedings, but this may vary by state (and even by individual judges), so if the petitioner has specific concerns about her immigration status, she should consult with a local immigration attorney. 42

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In order to satisfy the statutory requirement for SIJS that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law,” most successful SIJS cases arising out of custody proceedings have been in cases where one parent, with whom the child was residing, requested and was granted sole legal and physical custody. 43 An order of joint custody or with visitation rights for the non-custodial parent could be very problematic for a request for SIJS findings because it might indicate that reunification is viable with the non-custodial parent. Consult Chapter 4 for further information on SIJS eligibility in the case in which a child or youth is living with one parent (not both). Uncontested cases. If you plan to file a request for SIJS findings in connection with a request for a custody determination, in most cases it is best to file when you are certain that the case will be uncontested. If the non-custodial parent requests joint custody or visitation rights, it could thwart your SIJS request. Advocates should keep in mind that because courts are governed by the best interest of the child standard, and frequent and continuing contact with both parents is generally considered to be in the child’s best interest, a case wherein the non-custodial parent contests the other parent’s request for sole legal and physical custody could derail the request for SIJS findings. Of course, if joint custody is ultimately in the best interest of the child, it would not be appropriate to request sole legal and physical custody in the first place. If an advocate determines that it is appropriate to file a request for sole legal and physical custody of a child and it is anticipated that the request will be uncontested, advocates should bear in mind that courts are not relieved of their obligation to review requests in light of the best interest of the child, even when a non-custodial parent fails to appear in a case. In a case where one parent does not appear, the court might inquire into the following: 44 • • • • •

Whether actual service was made on the non-appearing parent; Whether the non-appearing parent has made any kind of response; If a response was made, ask to review any written response or have the other parent or counsel state on the record the substance of the communication with the non-appearing parent; Whether the non-appearing parent has means to hire counsel, particularly if there is an income disparity; and Whether the court should continue the hearing for the appearance of the other parent.

41

A Judicial Guide to Child Safety in Custody Cases, supra note 38, at 5. See, e.g., Cal. Fam. Code § 3040(b). 43 Depending on your state’s law, it may also be possible for the child to petition the court to be placed in the sole custody of one parent. 44 A Judicial Guide to Child Safety in Custody Cases, supra note 38, at 30. 42

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Given that a grant of sole legal and physical custody to one parent may attract the court’s heightened attention, advocates must be prepared to address such questions. It is crucial to keep in mind that in any successful SIJS case, there must be a basis under state law for the court to declare a child dependent or place the child in the custody of an agency, department, individual, or entity. Consult Chapter 4 for additional information on pursuing SIJS claims when a child is residing with one parent. § 7.4

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A.

Adoption

What is adoption?

Adoption is the permanent transfer of parental rights and responsibilities for a child to another individual, making that person the child’s parent. In other words, it is when a child, who will no longer live with their biological parents, becomes a full and permanent legal member of another family. 45 The two main ways in which adoption may occur are discussed in the following section. B.

How does adoption work?

Adoption can only occur either when a court terminates all parental rights against the parent’s wishes or when a birth parent voluntarily gives up parental rights. If a child is in dependency proceedings, a court may decide to terminate parental rights if it believes that a child will not be able to return home safely within a reasonable amount of time. This decision generally occurs at what is called the “termination hearing.” As discussed earlier, federal law requires that a child welfare agency generally begin proceedings to terminate parental rights in the following cases: a child has been in foster care for 15 of the most recent 22 months, a court has determined that a child is an abandoned infant, or a court has determined that a parent has murdered, seriously injured, or attempted to murder another one of their children. 46 The decision to voluntarily surrender all parental rights is permanent, and extremely different than temporarily giving up custody. The process for surrendering parental rights varies state by state. In some states, a parent can surrender parental rights by signing a voluntary surrender agreement without court involvement. Other states require that a judge approve the voluntary surrender agreement and still others require that the agreement be signed in front of a judge. Once parents have terminated their parental rights, some children are adopted immediately, while others remain in foster care until they are placed in a potential adoptive home. 47 Data from 2014 indicate that achieving adoptions in fewer than 24 months continues to be a challenge for most states. 48 Whether the child has a say in the adoption process varies state by state and usually hinges on the age of the child. Whether the parent may still have contact with the child once adopted also varies. For example, in an “open,” “cooperative,” or “fully disclosed” adoption, typically the birth family may have contact with the child once adopted. In many states, an open adoption may be 45

A Family’s Guide to the Child Welfare System, supra note 2, at 99. Id. at 51. 47 Id. at 68. 48 U.S. Department of Health and Human Services, Child Welfare Outcomes 2010-2014: Report to Congress Executive Summary, 4, https://www.acf.hhs.gov/sites/default/files/cb/cwo10_14_exesum.pdf. 46

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obtained through a formal, written agreement. Informal agreements may also permit contact, but may not be enforceable in court. 49

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Prior to adoption (or other permanent placement for an abused or neglected child), issues regarding the non-custodial father will also need to be resolved. No adoption can occur until the rights of both biological parents are terminated unless the child’s paternity is unknown or the father lacks legal standing as a parent. How the courts address the absent father, including what are known as “putative” fathers who were never married to, and may never have lived with, the child’s mother, vary from state-to-state. 50 Children’s legal availability for adoption may also be complicated by situations where one or both parents live in another country, or are detained by immigration authorities. Adoption by undocumented individuals. There is no federal law that prohibits adoption based upon a prospective parent’s citizenship or immigration status. Moreover, many states do not have provisions that explicitly prohibit adoption based on immigration status. Advocates should check the relevant laws and child welfare agency policies in their state. 51 Nonetheless, there are different kinds of rules imposed by states that may make such an adoption difficult or impossible. One obstacle for undocumented individuals is the legal clearances or background checks necessary for adoption. This may be difficult where they have no form of identification that is acceptable to a child welfare agency, including a social security number. Another and significant obstacle is that many child welfare agencies may not make the necessary recommendations in support of the adoption due to the issue of permanency for the child in the event of an adoptive parent’s apprehension and deportation. The governing standard in these types of cases, however, should not be the parents’ immigration status, but rather the “best interests of the child.” In these cases, child welfare agencies should look at many factors including: the relationship between the child and the potential adoptive parents, including the strength of the emotional connection between the child and potential adoptive parents, whether the prospective parents have a backup plan if apprehended and deported, and whether there is support and resources in the home country if they were to be deported. These decisions should be made in a team decision-making setting with the social worker and family where the pros and cons of the adoption can be assessed. Children in foster care may be eligible to have their adoptive parents receive federally-supported adoption subsidies that will help support their care, but this is not available where the child is an undocumented immigrant. Even if there is no eligibility for a federal adoption subsidy, many states use state money to help support adoptive parents caring for former foster children, and those state adoption subsidy funds likely have no immigration status-related restrictions.

49

Child Welfare Information Gateway, Openness in Adoption: Building Relationships Between Adoptive and Birth families, 7-8 (Jan. 2013), https://www.childwelfare.gov/pubPDFs/f_openadopt.pdf#page=1&view=Introduction. 50 For more information, see Child Welfare Information Gateway, The Rights of Unmarried Fathers (Aug. 2017), https://www.childwelfare.gov/systemwide/laws_policies/statutes/putative.pdf. 51 For further information on barriers undocumented individuals may face in foster care licensure, see ABA Center on Children and the Law, Immigrant Caregivers: The Implications of Immigration Status on Foster Care Licensure (Aug. 2017), https://www.americanbar.org/content/dam/aba/administrative/child_law/Immi g-FosterLicensing-August%202017.authcheckdam.pdf.

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If you encounter problems with this issue anywhere in the country, contact Casey Family Programs, which has field offices all around the U.S. (www.casey.org) and has obtained adoptions for undocumented prospective adoptive parents. The National Immigration Law Center (www.nilc.org) has also brought successful legal action against California on this matter. 52 C.

The Hague Convention

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The Hague Convention on the Protection of Children and Cooperation in Respect of InterCountry Adoption (“Convention”) is a multilateral treaty that entered into force in the United States on April 1, 2008. As of August 2013, approximately 89 nations were parties to the Convention. 53 The Convention establishes international standards of practices for intercountry adoptions to prevent the abduction, sale, or trafficking of children for the purposes of adoption. The Convention emphasizes the best interests of children and provides increased protections to children, birth families, and adoptive families. The Convention also recognizes intercountry adoption as a valid means of finding homes for children who cannot be placed with families in their home country. 54 Through the Convention, both children abroad and those already in the United States can be adopted by persons located within and outside of the United States. A child who is already in the United States as a parolee, nonimmigrant, or even in unlawful status may be able to be adopted under the Convention. While the Convention provides more protections for children, it does significantly alter and complicate the rules of adoption and immigration for noncitizen youth in the United States and abroad. It is now more difficult for a child who is present in the United States and from a Hague Convention country to immigrate through adoption, and, consequently, SIJS is a preferable route to immigrate, if it is available. A general discussion of these rules for SIJS cases is in Chapter 4, and for family immigration cases is in Chapter 13. In the United States, the U.S. Department of State (DOS) is the U.S. central authority for intercountry adoptions. 55 It delegates some of its central authority responsibilities to certain departments within DOS as well as the Department of Homeland Security. Under federal law, U.S. adoption service providers who handle Convention adoption cases must be accredited or approved by the DOS’s designated Accrediting Entity, supervised by an accredited or approved agency, or exempted. All incoming and outgoing adoptions handled by these agencies are required to be reported annually to Congress. The Immigration and Nationality Act (INA) also has provisions regarding Convention Adoptions. INA § 101(b)(1)(G) defines a Convention adoptee as a child under age 16, who is adopted from a country that is a party to the Convention, whose parents are unable to provide proper care, or a sole or surviving parent or guardian is unable to provide care, and all parents or guardians have irrevocably released the child for adoption and possible emigration. 52

Rodriguez-Mendez v. Anderson, No. 948348 (Cal. Sup. Court, Feb. 9, 1993), Dep’t of Soc. Servs., All County Letter 93-16 (Mar. 2, 1993). 53 For country-specific information, see the State Department’s Website at https://travel.state.gov/content/travel/en/Intercountry-Adoption/Intercountry-Adoption-CountryInformation.html. 54 This information is taken from www.adoption.state.gov. 55 The Intercountry Adoption Act of 2000, P. L. 106-279.

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The Hague Convention is extremely complex. Any advocate representing a child who may be affected by the Convention should consult an attorney with expertise in Convention adoptions and more in-depth texts on this topic. See Chapter 13 for a list of resources. § 7.5 A.

Delinquency Proceedings

What is delinquency?

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Generally, delinquency refers to the judicial process and juvenile justice agencies that handle alleged violations of law by individuals under a certain age, generally 17 or 18. Delinquency cases are handled in juvenile courts or family courts. There are 51 different juvenile justice systems in the United States and each system is guided by its own laws, policies, and a different manner of providing services for youth. 56 Under federal law, “juvenile delinquency” is defined as the violation of a law by a person prior to their 18th birthday, which would have been a crime if committed by an adult. 57 A youth who has an offense adjudicated in juvenile court does not have a “criminal conviction” on their record. Not every youth, however, who commits an offense while they are under the age of 18 will be tried in juvenile court. Depending upon the offense committed, states will often treat older minors, seen as particularly dangerous, as adults and have their trials occur in adult court (called “waiver” or “transfer”), which may then result in a criminal conviction and adult criminal sanctions, instead of juvenile delinquency adjudication and disposition. See Chapter 17 for further information on the immigration consequences of delinquency and criminal convictions. B.

How does the delinquency process work?

A child’s experience in the delinquency system typically begins with police questioning when law enforcement believes that a child has violated the law. The child may have been stopped by law enforcement on the street, or may have been referred to law enforcement by a family member, school official, social worker, or other individual. If the officer believes there is “probable cause” that the child violated the law, the child may be arrested. In other instances, the child may be immediately released, issued a citation, or their parents called. If the police detain the child, the child has the right to know if they are under arrest or free to leave. The child also has the right to a lawyer, to ask the police to stop asking questions, and the right to remain silent (the same Miranda rights as adults). Immediate immigration-related issues upon contact with police: Any contact with police can be dangerous for noncitizen youth in terms of immigration consequences. In many jurisdictions, youth are racially profiled by police and targeted due to more complex societal problems. Police are generally not trained on immigration issues and may bring their own biases and misconceptions about immigration into law enforcement. Spanish-speaking youth in particular 56 Melanie King, Guide to the State Juvenile Justice Profiles, National Center for Juvenile Justice, Technical Assistance to the Juvenile Court Bulletin (Apr. 2006). For more in-depth and comparative information about different states’ juvenile justice systems, consult the National Center for Juvenile Justice’s State Juvenile Justice Profile (2006), http://www.ncjj.org/pdf/1State_Juvenile_Justice_Profiles_2005.pdf. 57 18 USC § 5031.

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may encounter this profiling and bias (including suspected Latino gang membership) from officers. In some cases, the police may contact Immigration and Customs Enforcement (ICE), the interior immigration enforcement arm of the federal government, even before arresting the child, if the officer believes the child to be undocumented, or shortly after arrest. The Trump Administration has placed significant pressure on local law enforcement agencies to cooperate with its mass deportation goals, making this issue even more prevalent. These practices undermine law enforcement’s role of keeping communities safe because they lead to situations where non-native populations will not actively cooperate with police. As advocates, it is important to be aware of these practices and advise youth of the potential consequences of any interaction with law enforcement. Even if a child is arrested without referral to ICE and charges are never brought, the arrest may later show up in background checks for a child and negatively impact their chances of receiving discretionary immigration benefits, including a green card based on Special Immigrant Juvenile Status. If the police detain a child and they claim to be 18 or older, typically the youth will be processed through the adult system. This generally means the youth is taken back to the police station and booked on the charge. Increasingly, at this stage, ICE is being informed about suspected undocumented persons. ICE may place a request for notification of release date, or in special circumstances a hold or detainer, requesting that they be notified when the person is released so they can assume custody to initiate deportation. Different states and localities have very different laws and/or policies governing their cooperation with ICE, some limiting cooperation with ICE and others encouraging or requiring it. It is important to research the law in your state and county to understand the potential exposure that immigrants face if they are arrested and/or detained by local law enforcement. If the police detain a child and determine that they are a minor, the child may be referred to the juvenile or family court system, where they are typically presented to the Probation Department for an intake process. Though the process may differ in different states, the child is normally first interviewed by a probation officer who will gather information about the youth including home, family life, school, and extracurricular activities. They may ask about immigration-related information such as place of birth, time and place of entry into the United States, and legal documentation depending upon their agency’s policy and the youth’s native language, appearance, and/or name. After intake, the probation officer, or other person doing such intake, will make the initial decision as to the charging and detention of the youth. The officer may decide to release or divert the youth out of the system with no conditions. The youth also may be released back to their family and home with conditions. Sometimes, this release will involve alternative detention programs, especially where parents do not appear to pick up their children. The officer may also refer the case to the juvenile court system (through a local district or county attorney serving as a prosecutor), issue a citation to the youth, and release him pending a possible court hearing. Finally, the youth may be referred to the juvenile court system and be placed in detention pending an appearance before the court. If referred through the system, all of the information gathered at this stage as well as the police report goes into a report to the court and the prosecutor. This

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information is often used to make a detention recommendation and other case recommendations to the judge, especially if the initial decision is to detain the youth. 58

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If there is an initial decision to place the child in custody, there will be a detention hearing to address the need for continuing custody of the child. At this hearing, probation will present its recommendations to the court and the prosecutor and the juvenile public defender will present their arguments for or against continued detention. The court will then decide whether to keep the child in secure detention or to release the child. Some potential outcomes of the hearing include: release with no conditions, release to family or alternative program with conditions (when parents do not show up at hearings, the child may also be referred to child protective services), or an order of detention. The decision to detain is based on whether the child is a danger to themselves or others and will appear for future court hearings. If the child is referred to the juvenile court system, earlier in the process, the prosecutor will look at the reports provided by police and probation to determine whether a petition may be filed or formal charges brought against the child. As part of this process, the prosecutor will consider whether the youth is eligible for diversion and if so, recommend release of the child. The prosecutor may ultimately file a petition or formal charges against the child. If the prosecutor does not ultimately file a petition, the youth will be released. The time period in which this decision must be made varies state by state. For example, in California, the petition is usually filed within two days after the arrest if the child is detained. 59 If the prosecutor files a petition, there are several paths the case may take. The prosecutor may file directly in the adult system (criminal court) or file a petition to transfer the youth’s case to criminal court, if the youth faces serious allegations. 60 In adult court, the youth will face much more serious criminal sanctions, as well as immigration consequences. In other instances, the youth’s case will remain in the juvenile court even if the offense is serious. There is often a lot of discretion in whether and how to prosecute a juvenile. Advocates can play a critical role in providing mitigating information to probation and the courts to help ensure that any positive equities (such as a good school record, community service, etc.) or sympathetic factors (such as being a victim of trauma, domestic violence, etc.) are communicated. If a petition is filed charging the youth in juvenile court, adjudication of charges will typically occur within a short period of time, especially if the youth is detained. The youth’s attorney (often a juvenile public defender) will meet with the youth and their family to develop a defense strategy to mitigate an adverse adjudication and disposition. The juvenile public defender in most circumstances will negotiate with the prosecutor regarding potential admissions that the youth may agree to in order to resolve the case quickly. The youth may decide to admit to the offense(s) or go to trial on the allegations against them. If the youth goes to trial, the allegations could be 58

Interagency Coordinating Council on Youth, A Parents Resource Guide: Understanding the Maze: If Your Child Has Contact with the Law (Oct. 2009), https://www.vera.org/publications/understanding-themaze-if-your-child-has-contact-with-the-law. 59 See Judicial Council of California, Juvenile Delinquency, http://www.courts.ca.gov/selfhelpdelinquency.htm. 60 In some states, the prosecutor may file a petition directly in adult court, while in other states they must file a request to transfer the case to adult court with the juvenile court. See, e.g., Cal. Welf. & Inst. Code § 707(a).

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dismissed. If the youth admits to the offense or is found to have committed the offense(s) in a trial, they will likely be adjudicated delinquent and this will appear on their juvenile record.

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If the youth is adjudicated delinquent, the next phase of the case is the disposition, where specific sanctions may be imposed. This is equivalent to the sentencing phase of an adult criminal case. The youth may be ordered into the custody of the juvenile corrections agency and incarcerated, sent to a group home placement, released with probation and other conditions, or released with no conditions. If ordered to probation, a probation officer will monitor the youth on an ongoing basis for compliance and progress. If the youth is ordered incarcerated, he may serve time in a juvenile residential facility. If ICE has filed a request for notification of release date, or if the youth has an ICE detainer, they will likely be transferred to ICE or picked up by ICE upon release from juvenile custody, and will be placed into removal proceedings. An overview of the deportation process appears in Chapter 1, and of the detention process in Chapter 18. Special immigrant juvenile status requests in criminal court: Practitioners have reported some limited success in requesting SIJS findings in criminal court. The earliest of these cases arose in New York State, where some cases of youth who committed alleged violations of law were being handled in criminal court rather than juvenile delinquency court, but as “youthful offender” cases. The practical result for any such youth who may have been eligible for SIJS had their case been handled in a traditional juvenile court was that they were being foreclosed the opportunity to request SIJS findings. Concerned about this injustice, advocates began filing requests for SIJS findings in these courts even though they were not traditional “juvenile courts.” Multiple requests were granted, and the resulting SIJS petitions were approved by USCIS. Later, advocates in New York State also requested SIJS findings in criminal court in multiple cases where a youth under the age of 21 was charged in criminal court, not as a youthful offender. In these cases, advocates argued that the court had placed such youth under the custody of “an agency or department of a State.” See 8 USC § 1101(a)(27)(J)(i). In at least one such case, the criminal court made the factual findings for SIJS. While this approach is relatively new and untested, it provides some hope for transition-aged immigrant youth caught up in the criminal justice system and in need of immigration relief as they pursue rehabilitation. However, USCIS is exercising ever-increasing scrutiny in SIJS cases, including on the issue of whether the court that made the SIJS findings is a “juvenile court” under its state’s laws, so these may be very challenging or impossible cases moving forward. C.

Immigration enforcement in the juvenile justice system

In recent years, there has been an unprecedented targeting of noncitizen youth in the juvenile justice system. ICE has aggressively attempted to enter the juvenile justice system to identify noncitizen youth for deportation. Many juvenile justice decision-makers mistakenly believe that they are required to cooperate with ICE and turn over noncitizen youth. Local officials, such as police, probation officers, judges, and prosecutors, have also been voluntarily using various points in the juvenile justice system as an avenue to enforce immigration laws and collaborate with immigration officials against noncitizen youth. 61 They do so for many reasons including: the belief that they are required to enforce immigration laws under federal law; to solve crime such as 61

Note that depending upon the law in your state, this kind of information-sharing with ICE may violate state confidentiality laws that govern the juvenile court system.

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gang issues via deportation since they attribute noncitizen youth as the root of the problem; and to save local and county resources and money and reduce their caseloads. Advocates should be aware of the potential for a youth to be referred to ICE at any point in the delinquency process. This can often jeopardize efforts to affirmatively pursue immigration relief such as SIJS for an undocumented child. For more information on immigration enforcement and for strategies to counter these practices see Chapter 17. D.

Crossover between SIJS, delinquency, and dependency

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While dependency and guardianship proceedings have been the source of the majority of SIJS cases, potential SIJS applicants may also come from states’ juvenile delinquency systems. The Immigration and Nationality Act provides support for the availability of SIJS to children in juvenile delinquency proceedings. It states that the court must have legally committed the child to or placed the child under the custody of, “an agency or department of a state.” 62 State juvenile courts often place children under the custody of probation departments, or a youth corrections agency, as a result of delinquency, which constitute “agencies or departments of a state.” In addition, statutory language providing that the child cannot be reunified with one or both parents “due to abuse, neglect, abandonment or a similar basis found under state law,” 63 opens the door for a delinquency court to enter SIJS findings. Some juvenile delinquency courts have been resistant to enter the requisite SIJS findings because the former statutory language required courts to make findings exclusively regarding abuse, neglect, or abandonment. Delinquency courts sometimes argued that these findings were in the sole jurisdiction of dependency courts and, therefore, that they did not have the authority to make them. The TVPRA, however, through the phrase “a similar basis found under state law,” gives delinquency courts broader leeway to enter similar findings within their jurisdiction. For further discussion on eligibility for SIJS for children and youth in the delinquency system see Chapter 4. Many children who have been abused, neglected, or abandoned are caught up in both the dependency and delinquency systems. Youth who have “crossed over” from once having a dependency proceeding to now having a delinquency proceeding, in particular, may be strong candidates for SIJS. Often by the time one of these children is in delinquency proceedings, there has already been some finding of abuse, abandonment, or neglect by a dependency judge, and perhaps the dependency judge has already terminated reunification services with one or both parents. As such, the youth would be coming into the delinquency system with these decisions having already been made and may therefore be more likely and more quickly eligible for SIJS. In other instances, a child will begin the SIJS process while still in the dependency system, but because of an arrest will cross over into delinquency before the process is completed. In this case, advocates must be particularly watchful and ensure that the child completes the SIJS process, because the child’s immigration application will be complicated as a result of delinquency, or the child may be placed in removal proceedings because of referral to ICE. It is crucial that a child with a delinquency record have a skilled immigration attorney to assist them in their immigration case. Whether a child is referred to ICE from the juvenile justice system varies widely by jurisdictions. Also note that if an SIJS order was issued by the dependency court and then

62 63

INA § 101(a)(27)(J)(i). INA § 101(a)(27)(J)(i) (emphasis added).

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jurisdiction was transferred to delinquency court, or vice versa, you may need to obtain a new SIJS predicate order. 64 WARNING! There are immigration consequences of juvenile delinquency that may significantly affect an SIJS application and applications for other forms of immigration relief. See Chapter 17 for an in-depth discussion on this topic. PART II: OBTAINING SIJS FINDINGS IN JUVENILE COURTS

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By Kristen Jackson § 7.6

Obtaining Specific Consent When Needed

As covered in Chapter 4, a child “in the custody of the Secretary of Health and Human Services,” also referred to as the Office of Refugee Resettlement (ORR) must obtain specific consent from ORR before any “juvenile court has jurisdiction to determine the [child’s] custody status or placement.” 65 Thus before you attempt to open a juvenile court case for a child, much less obtain SIJS findings for them, you must determine whether they need specific consent. Determining whether the child needs ORR’s specific consent. In order to determine whether the child needs specific consent, first, you must ask whether the child is in ORR custody. A child is considered to be in ORR custody if they are in an ORR or ORR contracted facility or in a federal foster care placement. A child is not considered to be in the custody of ORR if they were formerly in ORR custody but have since been released to a sponsor, for example, family or friends. A child also is not necessarily considered to be in ORR custody simply by virtue of having an outstanding removal order (unlike those children with outstanding removal orders who needed DHS specific consent before the TVPRA’s passage). If the child is in ORR custody, then you must ask the second question: Will you or another attorney or advocate be requesting, on the child’s behalf, that the juvenile court determine or alter the child’s custody status or placement? If you propose that the juvenile court order the removal of the child from an ORR or ORR-contracted facility and place her in state- or county-run foster care or in a legal guardian’s home, then this does trigger the specific consent requirement. If, however, the juvenile court will simply affirm the placement ORR has already made, such as

64 6 USCIS-PM J.2(D)(4). (“A petitioner with a juvenile court order who moves to the jurisdiction of a different juvenile court may need to either submit evidence that the petitioner is still under the jurisdiction of the court that issued the order or submit a new court order. A juvenile court order does not necessarily terminate because of a petitioner’s move to another court’s jurisdiction. In general, a court maintains jurisdiction when it orders the child placed in a different state or makes a custody determination and the legal custodian relocates to a new jurisdiction. If, however, a child relocates to a new jurisdiction and is not living in a court ordered placement or with the court ordered custodian, then the petitioner must submit: •Evidence that the court is still exercising jurisdiction over the petitioner; or •A new juvenile court order from the court that has jurisdiction. If the original order is terminated due to the relocation of the child but another order is issued in a new jurisdiction, USCIS considers the dependency or custody to have continued through the time of adjudication of the SIJ petition, even if there is a lapse between court orders.”) 65 INA § 101(a)(27)(J)(iii)(I).

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through an entity guardianship for a child in ORR long-term foster care, specific consent should not be required.

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If you have answered “yes” to both of these questions, then the child needs specific consent and you must follow the process outlined in this section. If the answer to either question is “no,” then the child does not need specific consent and you can continue directly to § 7.8. Note that in most cases, you will not need to obtain specific consent. Most children are unlikely to remain in ORR custody longer than a month or two (unless they are in a secure or staff-secure ORR facility, where children have been facing increasingly long detention times prior to release), and thus will not petition a juvenile court for a custody determination and SIJS findings until after their release from custody. If you have difficulty determining whether the child needs specific consent, reach out to more experienced SIJS advocates in your area or to national SIJS experts listed at the back of this publication. If you are still in doubt, you can request specific consent from ORR; if it is not needed, ORR will tell you. Applying for specific consent from ORR. If you have determined that the child should seek specific consent, you must help her to do so. Currently, the instructions and form for requesting specific request are on the ORR website. 66 Both documents are also found at Appendix Q. As the ORR instructions state, you should fully complete the “Request for Specific Consent to Juvenile Court Jurisdiction” form. The first table on page one asks for your basic information; it is important to provide all of this information, particularly your email address. The box also asks if the request is “urgent.” Mark this if your request is indeed urgent—for example, if the child will be turning 18 very soon and could lose the ability to proceed in juvenile court. Note that even “non-urgent” requests should be adjudicated within 30 business days, according to ORR guidance. Complete Section 1 with the child’s information. Keep in mind that ORR’s instructions state that it may review its own files in making specific consent decisions, so the information you provide should match that found in ORR files or, if it does not match, an explanation should be given. To receive a copy of the child’s ORR file, follow the procedure set forth at http://www.acf.hhs.gov/programs/orr/resource/requests-for-uac-case-file-information. If the child is in removal proceedings, include the child’s upcoming immigration court date. If there has already been a petition filed in juvenile court and the child has an upcoming juvenile court date, include that as well. Complete Section 2 of the form with the reasons for the request to change the child’s custody status or placement. In doing so, keep in mind that ORR’s instructions state that it will not be making a prima facie determination of the child’s eligibility for SIJS. Instead, ORR will simply consider whether the child’s continued ORR custody is needed for the child’s or the community’s safety or to prevent the child’s flight. Advocates with substantial experience making specific consent requests to ORR advise that the Section 2 explanation should be very brief and to the point. Finish the form by printing and signing your name on Page 2.

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The instructions and form are found at http://www.acf.hhs.gov/programs/orr/resource/unaccompaniedchildrens-services.

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In accordance with ORR instructions, you should also prepare a Form G-28 (found at the USCIS website at www.uscis.gov under “Forms”), EOIR-28, or other form of authorization to act on behalf of the child (for example, a juvenile court order to this effect). Scan it along with the Request form and save as a PDF, then email the PDF to [email protected]. If you marked your request “urgent” in Section 1 of the Request form, include the word “urgent” in the email’s subject line and copy or blind copy yourself so that you have ready proof you submitted the request to ORR.

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ORR will acknowledge the request by email within two business days and will email a decision within 30 business days, unless the request is marked “urgent.” In determining whether to grant specific consent, ORR was required by the now-expired Perez-Olano Settlement Agreement to comply with § 235(c)(2) of the TVPRA. 67 Though this is no longer required, it should still serve as the standard for ORR’s specific consent decisions. If ORR has approved the request, proceed to § 7.7 below. If ORR has denied the request, it will provide you with the documentation it reviewed in making its decision. You will then have 30 business days from the date ORR emailed you the decision to submit a request to the Assistant Secretary of the Administration for Children and Families (ACF) for reconsideration. The ACF Assistant Secretary will send their decision on the reconsideration within 15 business days. This will be considered a final administrative decision. If a material change in circumstances later occurs, you may submit a new Request form. § 7.7

Establishing Juvenile Court Jurisdiction if Not Already Existent

As Chapter 4 made clear, a child can qualify for SIJS only if a juvenile court has made particular findings regarding the child. Thus, in order for a child to pursue SIJS they must have an open juvenile court case in which these findings can be made. If the child you are assisting already has an open juvenile court case—for example, a dependency, delinquency, guardianship, custody, or adoption case—you can continue directly to §§ 7.8 through 7.11 for information on obtaining the SIJS findings. If, however, the child you are assisting is not already under juvenile court jurisdiction but would qualify for SIJS if they were, you should evaluate whether the child is in need of a protective action in state court in which a request for SIJS findings may also be made. This section provides an overview on establishing juvenile court jurisdiction for a child. Note that it is written in the most general terms, as the legal requirements and procedures for working with juvenile courts vary by state. It is crucial that you consult or partner with someone with expertise on juvenile courts in your state if you lack that expertise. This section also presumes that either specific consent was not needed for the child or that it was obtained as described in § 7.6 above. In many states, California being one example, only state or county officials can petition juvenile courts to open traditional dependency and delinquency cases. 68 That is, the child or some other 67

Settlement Agreement in Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, (C.D. Cal. Dec. 14, 2010) 7, ¶ 19, http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settlement%20Notices%20a nd%20Agreements/Perez-Olano%20v%20Holder/Signed_Settlement_Agreement.pdf. 68 In California, there is also a process where it is possible to formally request that a child welfare social worker investigate a potential dependency case by filing what is known as a 329 petition (so-called because it is a procedure found in California Welfare and Institutions Code section 329). See Cal. Welf. & Inst. Code § 329.

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adult private party cannot, on the child’s behalf, file a request directly with the court to have the child made a court dependent or ward and placed into a foster care or group home setting. If that is the law in the state where the child you are assisting lives, then you have two options. The first is to try to convince the state or county officials to open a juvenile case on the child’s behalf. The second is to forgo a “traditional” dependency or delinquency case and instead opt for a juvenile court case that a private party can file under your state’s laws—for example, a guardianship, adoption, or family law custody case. Both options are discussed below.

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Some advocates have been successful in convincing state or county officials to open juvenile dependency cases on their clients’ behalf. For instance, if a child is found living in a homeless shelter without parents or guardians to care for her then an advocate may place a call to her local state or county child abuse or child welfare hotline. An investigation may be launched, the child taken into protective custody, and a petition in juvenile court filed. Another example might be of an abused child living in an ORR facility in a state or county that will accept children from federal into state custody; often a call to the hotline may result in an investigation and a juvenile court petition as well. If a hotline call is made but no investigation is instituted or petition filed, your state law may have a mechanism for you to file a motion to compel the state or county to open a juvenile case. If you are successful, you have achieved juvenile court jurisdiction over the child. WARNING! Seeking to open delinquency and dependency cases. Perhaps it goes without saying, but advocates should be cautious in ever advocating having a delinquency or criminal case opened for a child. Encouraging a child to get arrested to secure an open juvenile court case would be clearly unethical and could have substantial harmful consequences for your client, including incarceration and denial of immigration benefits—as outlined in Chapter 17. Similarly, trying to convince a state or county official to open a dependency case for the child should only be done after serious consideration and consultation with the child and a legal expert on those types of proceedings. Becoming involved with the child welfare system can also have serious long-term consequences for the child, not all of them positive. If the child is living with a caregiver who is providing a safe home for the child then alternative approaches described below (e.g. guardianship) will almost always be preferable. Seeking jurisdiction through a guardianship, custody, or adoption proceeding. In lieu of convincing a state or county official to open a dependency case on the child’s behalf, many SIJS cases now originate through a guardianship, custody, or adoption case that your state’s laws allow private parties to initiate. In such a case, either the child or their caregiver/parent would typically be the petitioner in the proceeding. They would have to submit numerous documents to the court requesting that the court take jurisdiction over the matter. Usually, they would have to explain in these documents why the child needs to have the guardianship, custody order, or adoption approved. Depending on the type of proceeding, a court may order an in-home investigation of the child and caregiver. Next, the court will hold a hearing to determine whether or not to move forward with or grant the requested relief. These proceedings may take anywhere from a few weeks to a few months or more to complete, especially if parental rights have not been terminated earlier.

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Seeking local guidance. As previously discussed, the laws governing these procedures vary by state, and the policies and practices may even vary by county or courtroom. It is imperative that you reach out for assistance from experienced juvenile court practitioners if you lack that expertise. In some cases, juvenile court practitioners may be willing to provide you with advice and guidance. In others, they might be willing to represent the child in the juvenile or family court proceedings and even obtain the SIJS findings as described in the following section. Either way, their guidance may be invaluable. If you do not know juvenile court practitioners in your area, you can search for leads in your state or local bar associations’ juvenile or family law sections. You can contact local non-profit agencies that practice in family or juvenile court. You can contact the National Association of Counsel for Children (www.naccchildlaw.org) for information on its members in your state. You can also use state court self-help centers on family, probate, or juvenile law if you cannot find others to guide you. Juvenile court practitioners should be able to provide you with guidance on the nuts and bolts of opening a juvenile court case for your client. They may also be able to give you insight into some of the “unwritten rules” of the juvenile court. For example, how might the juvenile court respond to a request to appoint an undocumented person as a guardian or adoptive parent? How might the court respond to a request to open a juvenile court case for a child who is quickly approaching their 18th birthday? How might the court treat an attorney with immigration expertise but no juvenile court experience? What kind of appeal can be taken if the juvenile court refuses to open a case? Each of these areas is potentially thorny. Having local guidance to help you navigate the juvenile court system will hopefully result in the child having an open juvenile court case and either being adjudicated as dependent or being committed to the custody of a state or county agency or department, or being placed in the custody of an individual or entity—and thus paving the way for your request for SIJS findings. As noted in Chapter 4, without these findings the child cannot apply for SIJS. It is therefore crucial that you think carefully about precisely when the request for SIJS findings should be made, who should make the request, what should be included in the request, and how the request should be presented at the juvenile court hearing. Each of these topics is addressed below. § 7.8

Deciding When to Request the SIJS Findings

Timing can be everything in SIJS cases. On one hand, you may have a child in immigration court proceedings or who may soon have her juvenile court case closed and thus you want to move swiftly to request the court’s SIJS findings. On the other hand, you may have a juvenile court system that must work through its proscribed steps before it can determine whether the child will reunify with one or both of their parents. The key is to request the SIJS findings as soon as possible, but not so soon that the child does not yet qualify for the benefit. Dependency and delinquency cases. In traditional dependency and delinquency cases where a child has been removed from their home, the juvenile court generally must order reunification services for the child and their parents for a set amount of time—anywhere from about 6 to 18 months. If the child and parent or parents do not reunify during that period, then the custodial agency will hopefully develop, through its case plan, a permanent placement, which often will be placement for guardianship or adoption, independent living prior to emancipation from care, or what federal law calls “Another Planned Permanent Living Arrangement” (APPLA). If you are

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working with a child in a dependency or delinquency case, you must be aware of whether family reunification services are ongoing.

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If services are being provided to both parents, then a request for SIJS findings would be premature (and likely denied). If reunification services have been halted for both parents, a request for SIJS findings would be timely and have a greater chance of being granted. If, however, reunification services have been terminated for one parent but are ongoing for another, you will likely want to make the request for SIJS findings without waiting for the outcome of the reunification services with the other parent. USCIS has issued guidance indicating that it will approve SIJS petitions in cases in which a child has experienced abandonment, abuse, or neglect from one parent and is safely residing with the other parent (provided the other eligibility requirements are met). 69 See Chapter 4 for more information about one-parent SIJS cases. Once the reunification question has been answered and the child meets all of the other SIJS requirements, a motion for the court to enter SIJS findings may be filed before one of the child’s regularly scheduled review hearings. That way, the juvenile court can consider the motion at that hearing. Alternatively, the SIJS motion can be filed and a special hearing can be set for the motion alone. In either event, you should follow the juvenile court’s rules for filing and service of motions to ensure that the court will not reject or delay your request. Guardianship, custody, and adoption cases. In these cases, the question of timing is a bit more straightforward. In guardianship, custody, and adoption cases—assuming that the state itself has not removed the child from their home—the juvenile court may have no obligation to order family reunification services for a set amount of time, if at all. As a result, the motion for SIJS findings can be filed concurrently with the original state court petition if you believe the child meets all of the SIJS eligibility requirements—or will, after the court has made its guardianship or custody orders—or once the court has preliminarily approved the guardianship, custody arrangement, or adoption. Note that in adoption cases, you should request that the SIJS findings be made once an initial custody order related to the adoption is issued, but before the adoption itself is finalized and the child has new parents. Your approach may be dictated by whether you have time constraints that urge quick resolution of the case. § 7.9

Determining Who Should Request the SIJS Findings

The federal statute, regulations, and memoranda governing SIJS do not specify who needs to make the request for SIJS findings. Thus, in theory nearly anyone involved in the case—the immigration practitioner, the dependency attorney or guardian ad litem, the juvenile public defender, the state or county counsel, the attorney representing the potential guardians or adoptive parents, the child’s social worker, or the child’s probation officer—may file the request for SIJS findings. Think very carefully about this choice: Who will be the best messenger for this request to the juvenile court?

69 See 6 USCIS-PM J.2(D)(1) (“A qualifying court-appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent’s abuse, neglect, or abandonment of the petitioner.”) Despite USCIS’s interpretation of the “1 or both parents” language, at least one state has issued a published decision interpreting this language to require failed reunification with both parents. See In re Interest of Erick M., 820 NW 2d. 639 (Neb. 2012).

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Before making the choice, find out everything you can about how SIJS findings are obtained in your local juvenile courts. Seek out information from immigration practitioners and those who work in the juvenile courts. Learn whether your local juvenile courts have ever issued SIJS findings before. If they have, find out who typically makes the requests and then follow suit, if possible. Simply have the request in your case made the same way it was in the previous, successful cases. For example, if a child’s guardian ad litem is typically the one who files the SIJS motion, work with that person to obtain SIJS findings in your case. If the child’s social worker typically includes the request for SIJS findings in their court report, try this approach in your case. If you are unable to work with the person who typically makes the request, you may need to consider who would be the next best person to file the motion. If you do not believe an SIJS motion has been filed in your juvenile court before, the choice may be a bit more complicated. As a general rule, we suggest having the attorney with the closest working relationship with the court file the SIJS motion. If you are the immigration practitioner assisting the child, and another attorney is representing the child in the juvenile court proceedings, consider having that attorney file the SIJS motion. Alternatively, you could speak with the state or county counsel and ask that they file the motion. The upsides of proceeding this way are several. First, these attorneys with extensive juvenile court experience will be more familiar with the rules governing the proceedings generally. Second, they may be seen as “repeat players” within the juvenile court system who already have the trust or respect of the juvenile court judge who will be hearing the motion. Third, they are less likely than an immigration practitioner to be seen as simply working the juvenile court system for an immigration benefit; the court may view them more favorably as acting in furtherance of the child’s best interests. In any event, if this is the first SIJS motion ever presented, the court may need some education on SIJS and the court’s role in the process. USCIS has produced a fact sheet for juvenile court judges that may be helpful to attach to initial filings in a court where an SIJS motion has not before been filed. 70 It is important to reach out to local practitioners not only to find out about local rules and procedures, but also to learn about the cultures of certain courts. It may be that certain players (including attorneys or judges) in the juvenile court are resistant to SIJS motions. If there is resistance from the court, counsel presenting the motion should provide information from other jurisdictions and statements from other judicial officers who regularly issue SIJS orders. Approach the state or county attorneys in the spirit of collaboration. Come to them armed with an authorization from the child allowing them to speak to you about the child’s case. Be very clear and explain the benefits the child would gain through obtaining lawful permanent residence through SIJS. Offer to draft the SIJS motion and supporting materials described in § 7.10. If the attorney lacks experience with SIJS cases, offer to attend the juvenile court hearing on the motion so that you can answer any questions the judge may have. If this approach does not work, or if you are not comfortable that the attorney you spoke with would zealously pursue the SIJS motion for the child, or if you yourself are representing the child 70

USCIS, Immigration Relief for Abused Children, Special Immigrant Juvenile Status: Information for Juvenile Court Judges and Child Welfare Professionals (Apr. 2016), https://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job /PED.SIJ.1015_Brochure_M-1114B_Revised_05.19.16.pdf.

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in the juvenile court proceedings, then you should file the SIJS motion. But simply because you file the SIJS motion yourself does not mean that you must do it alone. Reach out to those who also work with the child. Ask the child’s social worker, probation officer, court investigator, or CASA (in dependency cases) to include in their court report a recommendation for SIJS findings. Ask other attorneys involved in the case to join, or at least not oppose, the SIJS motion. Try as best you can to present a united front to the juvenile court in support of the request for SIJS findings. § 7.10 Preparing the Proposed SIJS Findings and SIJS Motion

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Once you have determined who will file the SIJS motion and when it will be filed, you must then decide what exactly will be filed. This section covers how to prepare proposed SIJS findings and an SIJS motion for consideration by the juvenile court. It and the following sections presume that you are preparing, filing, and presenting the SIJS motion yourself. WARNING! USCIS policies and practices on SIJS have changed significantly in recent years. If you have not handled an SIJS case in recent years, you may not be aware of significant changes in the procedures and policies of how USCIS handles these cases. The changes are the combined effect of at least three major shifts in recent years: 1) in November 2016, USCIS centralized adjudications of all SIJS petitions and SIJS-based applications for adjustment of status at the National Benefits Center, meaning that SIJS cases are no longer adjudicated by the local USCIS field offices; 2) in October 2016, USCIS released new guidance on SIJS cases in Volumes 6 and 7 of the USCIS Policy Manual that provided significantly more insight into USCIS adjudications processes than before, and in many ways introduced new standards in SIJS cases; and 3) in spring of 2016, a visa backlog began for youth applying for SIJS-based adjustment of status from El Salvador, Guatemala, Honduras, and Mexico that has created long waits for these youth to be able to apply for their green cards, significantly altering the process for these youth to become lawful permanent residents based on SIJS and leaving them in limbo for months or years with only a pending or approved I-360. For more information on centralization and the USCIS Policy Manual, see Chapters 4 and 8. For more information on the visa backlog, see Chapter 5. If you are assisting a child in obtaining SIJS findings from a juvenile court, but do not regularly handle SIJS cases, please obtain the assistance of an immigration attorney with expertise in SIJS before doing so. Proposed SIJS findings. Having already reached out to local experts, you should know by now whether SIJS findings have been issued by your juvenile court in the past. Try to obtain copies of the SIJS findings issued in these cases and, if your state has a form proposed order for SIJS findings, obtain a copy of that as well. Review them carefully. Note their format and content. Confirm with local and national experts that the National Benefits Center has accepted SIJS findings presented in this fashion. If USCIS has accepted the format and level of detail found in these orders, then craft your proposed findings to appear like those the court has issued in the past—but of course, make certain they track the current SIJS statutory language created by the TVPRA, not the old language of “eligible for long-term foster care.” A discussion of the TVPRA

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is in Chapter 4. USCIS has instructed its adjudicating officers to make certain that the SIJS findings now reflect this current language or else the order will be rejected. 71

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Some states have created official juvenile court forms to be used for SIJS findings. For example, the California State Judicial Council has issued the FL-357/GC-224/JV-357 Order Regarding Eligibility for Special Immigrant Juvenile Status for use in juvenile, family, and probate courts. Find out if your state has such a form. If so, you should consider using it, provided it reflects the current SIJS statutory language and allows sufficient space or allows for an attachment for the court to include the factual bases for each finding that it makes, as now required by USCIS. You will need to include enough facts regarding the dependency or custody, the abandonment, abuse, or neglect, and the best interests finding to provide a reasonable factual basis to support the order, as required by USCIS. A sample FL-357/GC-224/JV-357 setting forth a summary of the facts supporting the court’s order is found in Appendix J. If your state has no official SIJS form and you cannot locate SIJS findings made by your juvenile court and accepted by USCIS, you will need to draft your own. A sample set of SIJS findings to use as a starting point is found at Appendix J. The sample includes the current SIJS statutory language and references only the SIJS regulations unaffected by the TVPRA. Before the TVPRA, USCIS wanted advocates to provide “[s]pecific findings of fact in support of the [SIJS] Order” so that USCIS could consider whether to grant “express consent” to the dependency order serving as a precondition to a grant of SIJS. Following the TVPRA’s “simplification” of consent, the Secretary of Homeland Security must now consent to the grant of SIJS, but an approval of an SIJS-based I-360 petition is itself evidence of this consent. 72 USCIS has interpreted this provision to mean that the consent determination by the Secretary is an acknowledgement that “the request for SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit.” 73 USCIS has stated that in order to make this determination, it “requires that the juvenile court order or other supporting evidence contain or provide a reasonable factual basis for each of the findings necessary for classification as a SIJ. The evidence needed does not have to be overly detailed, but must confirm that the juvenile court made an informed decision in order to be considered ‘reasonable.’” 74 Further, USCIS has stated that it “generally consents to the grant of SIJ classification when the order includes or is supplemented by a reasonable factual basis for all of the required findings.” 75 Accordingly, advocates should include a brief (2-3 sentence) statement of the facts underlying the state court findings, ideally in the order itself, but if that is not possible, in a separate case summary, attorney 71

USCIS Memorandum, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions, HQOPS 70, 8.5, p. 2 (Mar. 24, 2009) [hereinafter Neufeld Memorandum]. Note that the Neufeld Memorandum has been superseded by the USCIS Policy Manual, as discussed in Chapter 4, but is referenced here for its historical import. 72 8 USC § 1101(a)(27)(J)(iii); Neufeld Memorandum, id. at 3. 73 6 USCIS-PM J.2(D)(5). 74 Id. 75 6 USCIS-PM J.2(D)(5); see also USCIS Memorandum, Response to Recommendation 47, Special Immigrant Juvenile (SIJ) Adjudications: An Opportunity for Adoption of Best Practices, 4 (Jul. 13, 2011), http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20F ormal%20Recommendations/cisomb-2011-response47.pdf.

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affidavit, or client declaration. Despite this relatively simple explanation of what is required in order for USCIS to consent to (or in other words, grant) an SIJS petition, increasingly advocates have seen USCIS use the consent function as a basis for the issuance of requests for evidence (RFEs), notices of intent to deny (NOIDs), or denials citing a range of different reasons beyond the reasonable factual basis. See Chapter 8 for additional information about the increase in RFEs, NOIDs, and denials.

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In addition, be sure to include citations to the relevant provisions of your state’s law (for example, those defining dependency, abuse, neglect, abandonment, or best interests) that the court relies upon in making the SIJS findings, and do not include citations to the federal immigration law. USCIS wants to see that the state court made the SIJS findings pursuant to state law, and not in reliance upon the INA. 76 Lastly, be sure to include the parents’ names in the SIJS order, if known. This will simplify any lack of clarity around who the court considered to be the child’s parents, especially if there are discrepancies between the birth certificate and who the court considered to be the child’s parent(s), as when a parent’s name has been left off of the birth certificate. 77 SIJS motion. Just as you did with the proposed SIJS findings, obtain copies of SIJS motions already submitted to and granted by your juvenile court. Some states now have form motions that can be submitted to request the SIJS findings. Use these motions as a template for your own. Make certain, as you did with the proposed SIJS findings, that your motion uses the current SIJS statutory language created by the TVPRA, not the old language of “eligible for long-term foster care.” You should attach a copy of the current SIJS statutory language to your motion so that the juvenile court can see clearly why you are asking for SIJS findings different from those that they may have issued in the past. If you cannot locate an SIJS motion that was used successfully in your juvenile court, you will need to draft your own. A sample SIJS motion is found at Appendix I. The sample includes the current SIJS statutory language and references only the SIJS regulations unaffected by the TVPRA. It was written for use in a California family court. PRACTICE TIP: Using SIJS motion templates. If you use the motion in Appendix I or any other motion not from your jurisdiction as a template, keep in mind that you must incorporate references to your state law—including any state statutes, regulations, or binding court decisions on SIJS. You must modify the motion if it is being used in another type of juvenile court proceeding—such as a dependency, delinquency, guardianship, or adoption case. You must make 76

6 USCIS-PM J.3(A)(2) (“The order (or orders) should use language establishing that the specific findings (conclusions of law) were made under state law. The order (or orders) should not just mirror or cite to immigration law and regulations.”) 77 The USCIS Policy Manual requires that the SIJS findings be based upon the petitioner’s parents under state law. This is a new requirement that was not previously an issue for advocates. See 6 USCIS-PM J.2(D)(2) (“The findings must be based upon the person (or persons) who is the petitioner’s parent (or parents) under state law. If the juvenile court order establishes that the person (or persons) is the petitioner’s parent (or parents), USCIS generally considers this requirement met. However, if the record does not establish that the person (or persons) is the petitioner’s parent (or parents), USCIS may request additional evidence. For example, if the findings are based on a father not listed on the petitioner’s birth certificate, a determination that the claimed father is the father under state law should be established in the juvenile court order.”).

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the SIJS motion very specific to your client and provide an overview of the facts that support each requested SIJS finding. Also make certain you are following any state or local juvenile court rules on motions—including formatting and page limits. A well-crafted SIJS motion will convince the juvenile court that it has the power to issue SIJS findings and that it should do so in this particular child’s case.

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Advocates should be aware that in some areas, attorneys do not file formal written SIJS motions. Instead, they rely upon oral motions in juvenile court or requests made from social workers, probation officers, or court investigators. If that is the local practice in your area, follow suit. If SIJS is new to your area, however, we suggest that you prepare and file a formal SIJS motion. This will provide the juvenile court with the detailed information and supporting case law and statutes it may need to make an informed decision on the request. It will also create a clear record for use on appeal if the juvenile court denies your SIJS motion and you want to have the case heard by a higher court. Evidence supporting the SIJS motion. You should follow local practices regarding evidence filed in support of the SIJS motion. In many areas, advocates include supporting declarations. Declarations from the child and their caregiver can provide a very clear factual basis for the SIJS findings. They may also reduce the chances that the juvenile court judge will require the child to testify in court—an experience that, as outlined below, may be difficult for the child and lead to re-traumatization. When appropriate, advocates can rely upon the evidence already amassed and included in the juvenile court file. For example, the court file in a dependency or delinquency case may contain police reports, medical and psychological evaluations, statements from the child and their parents, home studies of the child’s current placement, and the like. These documents may already establish the facts that the juvenile court needs as the basis for the SIJS findings, and additional documentation may not be necessary. However, in guardianship or custody proceedings, the onus will likely be on the advocate to introduce sufficient evidence into the record to support the request for SIJS findings. If you do not have established local practices to rely on, we suggest that you both submit supporting declarations and cite to documents already in the juvenile court file, if any. Make certain that you are not creating inconsistencies between these two types of documents, or if there are inconsistencies make certain they are explained. You may also wish to include some information about conditions in the child’s country of origin to support the court’s best interest finding, or any other types of evidence that exist, such as medical records documenting abuse. Additionally, if this is the first SIJS motion your local juvenile court is hearing, you may want to supplement your motion with redacted SIJS findings from other juvenile courts in your state. This may help the judge to see that the request you are making is not unusual and that motions like the one you are filing have already been considered and granted. § 7.11 Presenting the Proposed SIJS Findings and SIJS Motion to the Juvenile Court Your next task is to serve and file the SIJS motion and proposed SIJS findings with the juvenile court. As noted in § 7.8, you should follow the juvenile court’s rules for filing and service of

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motions. In some states, motions must be filed a set number of days before a scheduled hearing and copies of the motion must be served on all interested parties, including the child’s parents in some instances. Follow all state and local juvenile court rules to ensure that the court will not reject or delay your request for SIJS findings.

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Once the SIJS motion is filed and scheduled for a hearing, you must prepare carefully. Talk to other attorneys, if any, who have participated in hearings on SIJS motions and solicit their advice. Review the SIJS motion and proposed SIJS findings in detail. Prepare extra copies of the proposed SIJS findings to bring to the hearing in the event the court grants your motion. Schedule a time for your client and any other people who have submitted declarations to come to your office. Prepare each person one-by-one to testify as to the contents of their declaration. Also prepare each person to be cross-examined in court. Keep in mind that it may be especially difficult for the child to testify about the abuse, neglect, or abandonment they have suffered. Make every effort not to re-traumatize your client while at the same time being sure they are ready for the hearing. Give your client a copy of all of your filings so that they can know what the court knows and be better prepared for questions. In many instances, children are not required to testify during the hearings on their SIJS motions—but they must be ready. On the day of the hearing, be certain that you and the child and any other witnesses arrive early. Check in with the courtroom clerk. Because in some states juvenile court proceedings are closed to the public, be prepared to wait outside in the hallway until your case is called. Once the judge is ready to hear your case, take your place at the counsel table with the child. If the hearing is for a decision on the guardianship, custody, or adoption petition, the judge may want to make decisions on that petition first. When the judge turns to the SIJS motion, offer to answer any questions that the judge might have and let the judge know that you have brought witnesses in case they are necessary. If the judge has never heard an SIJS motion before, she may have many questions for you about the request and the process. Be sure to answer completely and respectfully. If the judge has entertained SIJS motions before, their questions may focus less on the SIJS process and more on the particular facts of your client’s case. During the hearing, if you get the sense that the judge is uncertain about their ability to make SIJS findings, offer to more fully brief the issue to address the judge’s concerns. Many judges are unfamiliar with SIJS and may need to be given more information, and more time, before making a decision. It is nearly always better to take a continuance for further briefing rather than an outright denial of your SIJS motion. Typically, the SIJS motion will be heard unopposed. The judge will be listening to your legal arguments and evidence, but no attorney on the other side will be opposing your request. The one exception to this general rule may arise in juvenile delinquency cases. From time to time, prosecutors oppose SIJS motions for a variety of reasons—including the misconception that SIJS is available only to children in foster care or that granting the SIJS motion rewards a child for breaking the law, despite the abuse, abandonment, or neglect they suffered. If you are seeking SIJS findings in delinquency courts, reach out to local or national experts in this area for guidance and for sample replies to written oppositions. Hopefully, the juvenile court will grant your SIJS motion at the conclusion of the hearing. If that happens, be sure to obtain a certified copy of the SIJS findings to present to USCIS. Increasingly

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USCIS is also asking for the underlying custody order that the court issued, so be sure to obtain certified copies of those orders as well.

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If the court denies your motion, you may have a few options. You might re-file the motion with additional evidence or file a motion for reconsideration. You might also choose to appeal the decision to a higher state court. Consult attorneys with experience in juvenile court appellate practice. Pay careful attention to any deadlines for these post-decision actions—some may fall as soon as 15 days following the juvenile court’s denial of your motion. If you choose to appeal the juvenile court’s decision, please be aware that your case conceivably could establish precedent binding upon others seeking SIJS findings in your state. Proceed cautiously and consult with local SIJS experts about the best strategy to protect your client while preserving others’ ability to obtain SIJS findings in the future. § 7.12 Maintaining the Child’s SIJS Eligibility After the Juvenile Court Has Made the SIJS Findings Once the court has made the SIJS findings you have requested, your most difficult task in juvenile court is over. You are now ready to proceed to Chapter 8 to file an affirmative SIJS case with USCIS or to Chapter 9 to file a defensive SIJS case with USCIS and the immigration court. Be aware, however, that you must keep a watchful eye on the child’s juvenile court case. You will want to maintain the child’s SIJS eligibility through the juvenile court and also keep the court abreast of developments in the child’s immigration case. Maintaining continued juvenile court jurisdiction. Prior to the TVPRA’s passage, advocates tried to keep each child’s juvenile court case open until their SIJS petition and lawful permanent residence were granted. This was due in large part to the combination of the regulations at 8 CFR § 204.11(c)(5) and 8 CFR § 205.1(a)(3)(iv)(C), which had required a child to be under continued juvenile court jurisdiction until they became a lawful permanent resident. This requirement has been called into question in recent years given the TVPRA’s statutory changes as well as the 2010 Perez-Olano Settlement Agreement. The TVPRA provides that a youth “may not be denied special immigrant status under such section [8 USC 1101(a)(27)(J)] after the date of enactment of this Act based on age if the alien was a child on the date on which the alien applied for such status.” 78 Given that an SIJS petition may not be denied “based on age,” a petition should also not be denied or revoked based on a child aging out of juvenile court jurisdiction while in the process of seeking SIJS and SIJS-based adjustment of status. This understanding was confirmed by the now-expired Perez-Olano Settlement Agreement, which required that USCIS not deny SIJS classification or SIJS-based adjustment of status on account of age or dependency status so long as the applicant was under 21 years of age when the application for SIJS was filed, or was the subject of a valid dependency order that was subsequently terminated based on age. 79 Still, your safest bet is to keep the child’s juvenile court case open until their entire immigration process is complete. With this approach, there will be no question about your client’s continuing SIJS eligibility related to juvenile court jurisdiction. If this is not possible, request that the court 78

TVPRA § 235(d)(6). Settlement Agreement in Perez-Olano, et al. v. Holder, et al., No. CV 05-3604, (C.D. Cal. Dec. 14, 2010), 7-8, http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settlement%20Notices%20and %20Agreements/Perez-Olano%20v%20Holder/Signed_Settlement_Agreement.pdf. 79

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indicate that it is terminating jurisdiction due to the client’s age. As discussed above, under the TVPRA, no person shall be denied SIJS on the basis of age as long as they were younger than 21 when they filed their SIJS petition with USCIS. In addition, the USCIS Policy Manual states that the continuing jurisdiction requirement does not apply if the juvenile court jurisdiction ended “solely because … [t]he petitioner was the subject of a valid order that was terminated based on age before or after filing the SIJ petition (provided the petitioner was under 21 years of age at the time of filing the SIJ petition).” 80 If a child’s juvenile court case closed because of age—that is, because they turned 18, 21, or some other age—then the TVPRA’s age-out provision should protect their eligibility. Similarly, if a juvenile court is closing a child’s case because they are over 18 and are ready to move to independent living or be emancipated from foster care, be certain that the court’s order terminating jurisdiction reflects that it is being done because of “age.” This should help the case to fit within the TVPRA’s age-out provision. If the child you are assisting is ready to be adopted, and given that the juvenile court typically does not retain juvenile court jurisdiction after an adoption is finalized, you can take one of two approaches. The first is to put off finalizing the adoption until the child’s immigration process is complete. The second is to ask the juvenile court to finalize the adoption but keep the court case open for monitoring until the child is a permanent resident. Other issues to consider in maintaining SIJS eligibility: reunification, arrests, and violations of the law. Maintaining SIJS eligibility, however, is not all about keeping an open juvenile court case. From time to time, juvenile courts that have made SIJS findings nonetheless change course and reconsider whether the child should reunify with their parents or whether it is in the child’s best interest to remain in the United States. If the juvenile court is poised to reconsider these issues in your client’s case, consult local or national SIJS experts immediately for advice. You may need to oppose any changes in juvenile court, or to obtain revised SIJS findings if the child reunifies with only one parent. Even if juvenile court jurisdiction or reconsideration of the SIJS findings is not at play, the child may still risk her SIJS-based adjustment of status eligibility if she is arrested for breaking the law or engaging in other conduct that renders her inadmissible. Please consult Chapters 5 and 17 for more details. If your client is arrested or ticketed by the police, seek expert advice immediately. You will need to take an active role in keeping the child’s case out of adult criminal court and in helping her juvenile public defender to craft a disposition in delinquency proceedings with the least harmful immigration consequences. Keep the juvenile court abreast of the status of the immigration case. Given all of the possible ways, outlined above, that further action in the juvenile court may implicate the child’s SIJS eligibility, you would be wise to keep the juvenile court updated on your progress in the child’s immigration case. Prepare and submit status reports to the court for each of the child’s juvenile court review hearings. Alert the juvenile court when the child has finally become a lawful permanent resident. Keeping the court informed about the immigration proceedings may prevent the court from making decisions with unintended immigration consequences. Additionally, it may cause the juvenile court judge to recognize the significance of their SIJS findings and grant other SIJS motions in the future. 80

6 USCIS-PM J.2(D)(4).

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CHAPTER 8 AFFIRMATIVE SPECIAL IMMIGRANT JUVENILE STATUS CASES By Kristen Jackson and Sara Van Hofwegen

This chapter includes:

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Part I: Creating the SIJS Packet § 8.1 Assessing the Child’s Immigration History ....................................................... 178 § 8.2 Determining Which Applications to File ........................................................... 179 § 8.3 Understanding the Risks of Applying for SIJS and Helping Your Client Reach an Informed Decision ................................................................... 180 § 8.4 General Guidelines for Forms to File in a Special Immigrant Juvenile Status Packet ...................................................................................................... 181 § 8.5 Completing Each USCIS Form .......................................................................... 182 § 8.6 Meeting with the Child to Complete and Review Each Form............................ 187 § 8.7 Obtaining Supporting Materials ......................................................................... 187 § 8.8 Drafting a Cover Page, Cover Letter, and Case Summary ................................. 196 § 8.9 Assembling the SIJS Forms for Filing ............................................................... 197 Part II: The Affirmative SIJS Process Step-by-Step § 8.10 Filing the SIJS Packet......................................................................................... 199 § 8.11 Completing the Biometrics Appointment and Obtaining the Work Permit ....................................................................................................... 200 § 8.12 Keeping Addresses Current ................................................................................ 201 § 8.13 Common Adjudication Issues ............................................................................ 202 § 8.14 Interviews ........................................................................................................... 207 § 8.15 Notice of Decision: Approvals, Denials, and Appeals ....................................... 210

This chapter will discuss how to handle affirmative SIJS cases—that is, cases in which the child is not in immigration court removal proceedings and does not have an outstanding removal order issued by an immigration judge. If the child you are assisting is in removal proceedings, or does have an outstanding removal order, please proceed to Chapter 9 for information on handling defensive SIJS cases. In brief, the affirmative SIJS process involves assessing the child’s immigration history; obtaining the necessary SIJS findings in state court (see Chapter 7); submitting the SIJS packet to U.S. Citizenship and Immigration Services (USCIS); submitting any additional documentation needed by USCIS; and finally receiving a decision. If the child’s application for SIJS is denied, they can file an appeal. If the child is granted SIJS, they are eligible for adjustment of status once an immigrant visa is available to them. In some cases, your client may be eligible to apply for adjustment of status and submit the adjustment application along with the initial SIJS packet. After submitting the adjustment of status application, the child will be required to attend a biometrics appointment and may be scheduled for an interview before USCIS. If the adjustment

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application is approved, the child becomes a permanent resident. If the adjustment application is denied, the child can renew their adjustment of status application in immigration court. Part I discusses in detail how to create the SIJS packet for filing with USCIS. This includes obtaining all of the supporting materials, preparing all of the immigration applications and petitions, and packaging them together with a cover letter and case summary. Part II of this chapter provides a step-by-step overview of the affirmative SIJS process.

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NOTE: Social workers, probation officers, and other case workers. Please note that this chapter is written presuming that an attorney or paralegal will complete the immigration portion of the child’s case. Traditionally, some non-lawyers have handled the entire affirmative SIJS process; in several cities, for example, social workers have become experienced in SIJS and have had large and successful caseloads with USCIS. As this chapter discusses, USCIS has recently changed its interpretations of the SIJS statue and is issuing an increasing number of Requests for Evidence (RFEs) and denials. In July 2018, USCIS also announced that it will be initiating removal proceedings in many cases when an application is denied. Non-lawyers should be aware of current adjudication trends, risks to applicants, and new challenges in the SIJS process. They should secure legal representation for the child wherever possible and should not submit an SIJS application for a child without consulting with an attorney. Still, this chapter is relevant in order for you to understand the application process and explain it to the child. You can also provide a tremendous service by helping to collect some of the materials needed for the child’s SIJS packet including: birth certificate and translation; results of a medical exam that must be performed by a USCIS-approved doctor; two passport-style photos; application fees; and juvenile court documents, including the SIJS findings and any dispositions of juvenile delinquency cases. These materials are all described in Part I of this chapter. PART I: CREATING THE SIJS PACKET § 8.1

Assessing the Child’s Immigration History

Before filing any application with USCIS, it is important to have a complete understanding of a child’s immigration history. If you learn that the child has never had any contact with the Department of Homeland Security (DHS), their case may prove relatively straightforward. If you learn that someone previously filed immigration applications on the child’s behalf, you want to make sure the information you include in the child’s SIJS packet is consistent with those applications or that discrepancies are properly explained. If you learn that the child has a prior removal order, you will need to file a Motion to Reopen in immigration court (as described in § 9.24) before the child is eligible to adjust status. To gain this background information, you should consider requesting the following information from the federal government. • •

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An FBI background report request to obtain a child’s arrest history by both federal and local authorities; A Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) to obtain records of a child’s apprehension at the border;

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• • •

A FOIA request to USCIS to obtain copies of any immigration forms previously filed on a child’s behalf and their Alien File (A file), if any; A FOIA request to the Executive Office for Immigration Review (EOIR) to obtain the record of proceedings against a child in immigration court; and A request to the Office of Refugee Resettlement (ORR) 1 to obtain copies of materials maintained by any federal shelter or other facility where a child was detained for immigration purposes.

Links to the FOIA websites for these entities can be found at http://www.fbi.gov/foia/ and https://www.justice.gov/oip/make-foia-request-doj. Please keep in mind that some of these requests can take a while to be processed, so the sooner this step is begun, the better. If you are not an attorney or paralegal, you should obtain assistance in filing a FOIA request. § 8.2

Determining Which Applications to File

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Before you submit the SIJS packet, you should determine whether your client is able to submit an application for adjustment of status along with the initial SIJS application. A child can only apply for adjustment of status at the same time as the SIJS application if the child is not in removal proceedings, if the child does not have a prior removal order, and if an immigrant visa is immediately available for SIJS holders from the child’s country of origin. As discussed above, you can determine whether your client is in removal proceedings or has a prior removal order by speaking with your client and submitting FOIA requests. SIJS-based immigrant visas are part of the “fourth employment preference category” (EB-4)—a category of visas that has an annual cap and that includes other types of visas besides those for SIJS children. 2 To determine whether an immigrant visa is immediately available for your client, you should consult the Department of State’s monthly visa bulletin found at https://travel.state.gov/content/travel/en/legal/visalaw0/visa-bulletin.html. USCIS announces each month whether it will accept applications for adjustment of status based on the Visa Bulletin’s “Final Action Dates” chart or “Dates for Filing” chart. You can access the USCIS monthly announcement at https://www.uscis.gov/visabulletininfo. 3 If the Visa Bulletin lists a “C” under the EB-4 category for your client’s country of origin, then the preference category is “current” and your client may apply for adjustment of status along with their SIJS application. If the Visa Bulletin has a date listed, your client may not apply for adjustment of status with the SIJS application. Instead, they must wait until their “priority date” is “current,” in other words, earlier than the date listed on the Visa Bulletin. The “priority date” is found on your client’s SIJS receipt notice sent from USCIS and is the date that USCIS received your client’s SIJS petition (Form I-360). For more detailed information about visa availability and how to read the Visa Bulletin, see Chapter 5. Recently, children from El Salvador, Guatemala, Honduras, and Mexico have been unable to apply for

1

To receive a copy of the child’s ORR file, follow the procedure set forth at http://www.acf.hhs.gov/programs/orr/resource/requests-for-uac-case-file-information. 2 See INA § 203(b)(4). 3 USCIS allows adjustment of status applications under the “Dates for Filing” chart if there are more visas available then there are known applicants. Given the high number of children seeking SIJS, it is unlikely that USCIS will use the “Dates for Filing” chart for the foreseeable future.

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adjustment of status at the same time they apply for SIJS and often have to wait several years to submit their adjustment of status applications. § 8.3

Understanding the Risks of Applying for SIJS and Helping Your Client Reach an Informed Decision

After assessing your client’s immigration history and eligibility to apply for adjustment of status, it is important to advise your client about the SIJS process and risks associated with applying for SIJS. USCIS is the federal immigration agency responsible for processing and making decisions on applications for immigration benefits, many of which are filed affirmatively. These include petitions for SIJS and, in affirmative cases, applications for adjustment of status to lawful permanent residency. As discussed in Chapter 6, USCIS recently announced a new policy to issue Notices to Appear (NTAs) and initiate removal proceedings in many circumstances, including “where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the [applicant] is not lawfully present in the United States.” 4 Under this policy, SIJS applicants who do not have other lawful status in the United States will be placed in removal proceedings and face removal from the United States if their applications are denied. It is critical that you assess the strength of your client’s case and advise your client that they will be placed in removal proceedings if they are not granted SIJS or adjustment of status.

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As your client’s advocate, it is important to help your client reach an informed decision about whether to apply for SIJS in light of these risks. It is especially important that your client understand the risks of applying for SIJS because, since 2016, USCIS has regularly implemented new policies and interpretations of the SIJS eligibility requirements that make it more difficult to obtain SIJS and more challenging to assess the likelihood of approval of your client’s case. Recent trends are discussed below, but USCIS continues to implement new policies and practices, and you should be prepared for new issues to emerge after you file your SIJS packet. On July 13, 2018, USCIS issued a new Policy Memorandum, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), 5 that makes it easier for adjudicators to deny SIJS and adjustment of status applications without first providing the applicant an opportunity to respond to the adjudicator’s concerns. Prior to this guidance, USCIS’s adjudicators were instructed to “issue an RFE unless there was ‘no possibility’ that the 4 USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf [hereinafter USCIS, NTA Memo]. On July 30, 2018, USCIS announced that implementation of the USCIS NTA Memo is postponed until USCIS components “create or update operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum. It is unclear therefore when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same. 5 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_ NOIDs_FINAL2.pdf [hereinafter RFE Memo].

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deficiency could be cured by submission of additional evidence.” 6 Now, officers may deny SIJS and other applications if there is no legal basis for the application or if the officer determines the applicant “failed to establish eligibility based on lack of required initial evidence.” 7 If you are not an attorney, we strongly recommend that your client consult with an attorney who can provide them with legal advice about the risks of applying for SIJS. Some clients, even with strong SIJS cases, may choose not to apply for SIJS in light of this risk, while others may still want to move forward with their applications. § 8.4

General Guidelines for Forms to File in a Special Immigrant Juvenile Status Packet

As you work to create the child’s SIJS packet for filing with USCIS, be sure to follow the general guidelines described in this chapter about preparing USCIS forms. Additional information and instructions on how to fill out each of the specific forms for the SIJS packet (G-28, I-360, and perhaps the I-485, I-765, I-601, and I-912) are found in § 8.5, Appendices K and L, and online at www.uscis.gov. A.

How to get USCIS forms

B.

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Luckily, it is not difficult to get USCIS forms. Go to www.uscis.gov and click on the “Forms” link. You can download all the forms needed for SIJS and adjustment of status free of charge. Most can be filled in online using Adobe Acrobat (PDF) and saved on your computer. On the USCIS website you can also obtain up-to-date information about fees and about which dated versions of the forms are acceptable. Alternatively, you can obtain forms from USCIS by calling 1-800-870-3676. A description of the immigration forms you will need for SIJS and adjustment of status applications is in § 8.5. Use the most current versions of the forms

It is best to use the most recent version of immigration forms. USCIS regularly updates versions of its forms, and it may only accept certain, recent versions for filing. A description of each of the most recent forms for filing is provided in § 8.5. It is best to check the USCIS website or order new forms from the 1-800 line (1-800-870-3676) if you are unsure which version of each form is most current. C.

Answer all questions completely, clearly, and consistently

Be sure to answer all questions on the forms and provide information in the answer blanks and the check boxes, unless a form specifically indicates that you should leave a field blank if the answer is “None.” If an item is not applicable, write “N/A.” If an answer is none, write “None,” again, unless the form indicates otherwise. If extra space is needed to complete any item, attach a continuation sheet, indicate the item number, and include the date, appropriate signature, A number (if the client has one), and name of the applicant. Print or type information using black ink only.

6

Id. at 2. Id. at 3. Required initial evidence is described in the USCIS instructions to the USCIS form that corresponds to the relevant application. 7

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Make sure that the information you provide is consistent across forms and supporting materials. Always use the same name and the same version of the name on all forms that pertain to the same person, and make certain it matches the child’s birth certificate. USCIS instructs that “Place of Birth” on its forms always means country of birth unless otherwise indicated, and that the date of birth on all forms should be presented in MM/DD/YYYY format. While it is important to answer questions completely, caution should be used. If the child does not know the answers to certain questions and there is no documentary or other evidence to establish the answers, it is better to state that the information is “Unknown” or “Approximate” rather than to guess at a specific answer. Remember, if USCIS were to deny the I-360 or I-485 and place the child in removal proceedings, anything the child admits on their USCIS forms might be used against them in court. If you have concerns, please contact a practitioner with SIJS expertise for advice. Note that the forms often will not allow you to type in an approximate date (for example in MM/YYYY format without a day of the month); if you are not certain of the exact date, it is better to write in the date by hand. D.

Consider a confidential address

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SIJS applicants are not required to include their physical address in their SIJS or adjustment of status applications. You should discuss with your client whether to use an alternative mailing address, such as your office address, on their forms. A client may not want to share their physical address with USCIS for many reasons, including protecting themselves and others in their home from enforcement actions by the Department of Homeland Security. E.

Include proper signatures

USCIS forms must include original signatures unless the form is filed electronically and its instructions specifically allow for electronic signatures. The child can sign their own forms if they are able. USCIS instructs that parents and legal guardians may sign for children under age 14, and legal guardians may sign for individuals who are incompetent to sign. USCIS notes that it “requires documentation that establishes the legal guardian’s authority to sign a request on behalf of the child.” 8 If an adult is the “petitioner” for the child on the I-360, that adult may sign the immigration applications for the child. For more information on this, see § 8.5 below. § 8.5

Completing Each USCIS Form

Below is an overview of each form in the SIJS and adjustment of status applications, the purpose of each, and anything special you might need to know about completing it. Use Appendices K and L to assist you in completing each USCIS form. Appendix K is a set of line-by-line instructions for filling out the forms. Appendix L is a set of annotated USCIS instruction sheets for each of the forms. The forms and supporting evidence required depends on whether you are submitting the adjustment of status application at the same time as the SIJS petition. If you are only applying for SIJS, the required forms are Form G-28 (if you are an attorney or accredited representative) and 8

See USCIS, Signatures on Paper Applications, Petitions, Requests, and Other Applications Filed with U.S. Citizenship and Immigration Services (Feb. 15, 2018), https://www.uscis.gov/news/newsreleases/uscis-finalizes-guidance-signature-requirements.

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Form I-360. If you are also applying for adjustment of status, you must also submit Form I-485, Form I-693, and, if you are applying for a fee waiver, Form I-912. A.

Form G-28/Notice of Entry of Appearance

The Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative provides notice that an attorney or accredited representative of a religious, charitable, social service or similar organization will appear before USCIS on behalf of the child. If neither an attorney nor a BIA-accredited representative (paralegal who has been certified by the government to handle immigration matters) is representing the child—for example, if a social worker is handling the application—do not file the G-28. 9 If you are an attorney or accredited representative, make certain that both you and the child (or if the child prefers, their legal guardian if they are younger than 14) sign the G-28. Although not required, G-28s have typically been filed on blue paper to make them easier to locate in the child’s A file. If you do not have a G-28 on file, you will not be allowed to make inquiries to USCIS about the status of the application or accompany the child to the adjustment of status interview, if one is scheduled. Some USCIS offices may allow you to bring and submit one on the day of the interview, but it is best practice to file the G-28 along with the application so that you are mailed copies of all official correspondence and can communicate with USCIS about the application.

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Note that if you are completing the most recent version of the form on a computer, the data that you enter will be captured using 2D barcode technology. A unique barcode will appear on the bottom of the form, based on the information that you enter. Accordingly, it is important not to damage the barcode (for example by puncturing, stapling or writing on the barcode) as USCIS will use it to extract data from the form. There is no fee for this form and no supporting materials are required. B.

Form I-360/Petition for Special Immigrant Juvenile Status

The Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant is used to classify the child as a Special Immigrant Juvenile. You must file the I-360 for the child. Without the approval of the I-360, the child will not receive special immigrant juvenile status and is not eligible for adjustment of status (or lawful permanent residence) through the I-485. Note that the “petitioner” on the I-360 can be the child—thus making them a “self-petitioner.” The USCIS regulations governing SIJS, however, state that “any person acting on the alien [juvenile]’s behalf” can also be the petitioner. This would include a child welfare worker. The person filing the petition does not have to be a citizen or permanent resident. 10 However, it is not recommended that an undocumented person be the petitioner. There is no fee for the I-360 if it is filed for a child seeking SIJS. In support of the I-360 you must submit the juvenile court’s SIJS findings as well as proof of the child’s age. You may also want 9

Due to increased scrutiny of SIJS petitions and the possibility of placement in removal proceedings if a petition is denied, we do not recommend that non-attorneys file SIJS petitions for children unless they are working very closely with an experienced immigration attorney. 10 8 CFR § 204.11(b).

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to submit a case summary describing the factual basis for the state court’s order. Consult Chapter 7, Part II and § 8.7 below for information on obtaining these supporting materials. C.

Form I-485/Application for Adjustment of Status to Lawful Permanent Resident

The Form I-485 Application to Register Permanent Residence or Adjust Status is used to apply to adjust the child’s status to that of a permanent resident of the United States. You must file the I485 for the child before the child can become a lawful permanent resident. Although it is not required that you file the I-360 and I-485 together, this is recommended if the child is eligible to immediately adjust status and there are no concerns about potential inadmissibility issues (discussed in Chapter 5). Without the approval of the I-485, the child will not be a lawful permanent resident of the United States—even if their I-360 is approved. The approved I-360 itself does not provide the child with work authorization, protection from removal, or the many other benefits that come with lawful permanent residency; it simply makes the child eligible to apply for lawful permanent residence. If the child is not eligible to immediately apply for adjustment of status, you should file Form I-485 as soon as your client’s priority date becomes current, regardless of whether your client’s I-360 has been approved or is still pending. As of July 2018, the fee for this form is $1140.00 if the child is younger than 14. If the child is 14 or older, the fee is $1225.00 because it also includes the $85.00 biometrics fee. These fees are waivable. See § 8.7(E) below for information on fee payment and fee waivers.

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In support of the I-485 you must submit two passport-style photographs, a copy of a governmentissued identity document, and a birth certificate or other proof of age (translation into English is required). The Form I-693 Medical Examination Report is also required in support of the I-485 but may be filed at a later date, typically upon receipt of an RFE. This is due to the time-limited validity of the I-693. If your client’s I-360 has already been filed, you should also include the I360 receipt notice or approval notice, if available. If applicable, you may also need to file a copy of a passport or Form I-94 showing lawful entry into the United States if such an entry was made, certified copies of court dispositions for each arrest or letters showing no charges were filed if the child has been arrested, and Form I-601 with supporting documents if the child needs a waiver of a ground of inadmissibility. Consult the following discussions on the I-601 and consult § 8.7 below for information on obtaining the other supporting materials. PRACTICE TIP: If your client does not have a government-issued identify document, you may want to help them obtain a passport or consulate ID from their country of origin. You should contact the closest consulate for your client’s home country to determine the procedures to obtain a consulate ID or passport. This may be difficult if your client is a minor and their parents or legal guardians are unable to give permission for them to obtain an ID or if the child does not have a birth certificate. Also, if the child is also applying for asylum, you should weigh carefully whether seeking a foreign ID will undercut your client’s ability to obtain asylum. Alternatively, if your client lives in a state that allows undocumented individuals to obtain driver’s license or state IDs, your client may pursue a state ID. Some advocates have also had success submitting the “Verifications of Release” form given to a child when they were released from the custody of the Office of Refugee Resettlement, if the child has been detained in immigration custody.

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D.

Form I-765/Work Permit Application

The Form I-765 Application for Employment Authorization is used to apply for an Employment Authorization Document (EAD or work permit). USCIS can grant EADs to, among others, SIJSeligible children with pending I-485s. Filing this form for the child is optional. Yet even children who cannot or do not want to work (for example, children who are too young to work) may benefit from applying for employment authorization, since it will provide them with the ability to obtain a Social Security Number. If you want to obtain employment authorization for the child, USCIS does not require that you file the I-765 at the same time that you file the I-485, but it is recommended. There is no fee for this form if it is filed with, or after, an I-485. 11 In support of the I-765 you must submit two additional photographs as well as a copy of the child’s government-issued identity document showing the child’s picture, name and date of birth. Consult § 8.7 below for information on obtaining these supporting materials. E.

Form I-601/Inadmissibility Waiver

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The Form I-601 Application for Waiver of Grounds of Inadmissibility is used to excuse, or “waive,” the grounds of inadmissibility that would otherwise bar the child’s adjustment of status. For a detailed discussion of the grounds of inadmissibility as they relate to SIJS-based adjustment of status, see Chapter 5. If there is any doubt about whether the child falls into a waivable ground of inadmissibility, you can but do not need to file the I-601 with the I-485. Some practitioners wait until the child attends the adjustment of status interview or receives an RFE and file the I-601 only if it is needed. Other practitioners choose to file the I-601 with the SIJS packet because it can be easier to get a fee waiver for the I-601 when it is filed along with the other forms. Submitting the I-601 with the I-485 may be especially prudent in light of USCIS’s recent policy change, discussed in § 8.3, allowing adjudicators to deny applications without issuing an RFE. 12 Note that the judgment whether the child falls into a ground of inadmissibility is not yours alone. For example, a USCIS-approved doctor, not you, must decide whether the child falls into a health-related ground of inadmissibility. This process is described below in § 8.7(B) and also in Chapter 5. If the doctor finds that the child triggers a health-related ground of inadmissibility, you must file the I-601 for the child. Similarly, if the adjudicating USCIS officer determines that an I-601 is required on another ground of inadmissibility, you should file one. The failure to file the I-601 will lead, in all likelihood, to the I-485’s denial. Be aware that USCIS has made clear that an approved I-601 waives only the grounds of inadmissibility identified on the form itself. If the child falls into a ground of inadmissibility that is not formally waived before the I-485 is approved, the government might later find that the 11 See USCIS, Instructions for I-765, Application for Employment Authorization (May 31, 2018), https://www.uscis.gov/i-765. 12 Since the I-601 is not “required initial evidence” in support of the I-485, it is likely that USCIS will continue to issue RFEs in cases where it finds that a waiver is necessary. However, since the RFE Memo is new and has not yet been implemented at the time of this writing, we suggest this cautionary approach until additional clarity on USCIS’s new policy is provided.

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child was not eligible to adjust their status, take away their green card, and place them into removal proceedings. For protection, you can list a number of grounds of inadmissibility in the I601, but you need to submit evidence for all of the grounds. The current fee for this form is $930.00. This fee is waivable for children seeking SIJS-based adjustment of status because they are not subject to the public charge ground of inadmissibility (see Chapter 5 for more information on the grounds of inadmissibility). See § 8.7(E) below for information on fee payment and fee waivers. Remember that to qualify for an inadmissibility waiver, the child must establish that it is “for humanitarian purposes, family unity, or … otherwise in the public interest” and that the child merits a favorable exercise of discretion.13 Consult § 8.7 below for information on obtaining materials in support of the I-601. The instructions for the I-601 specifically address the waiver standard for SIJs and generally set forth the types of evidence that USCIS typically considers in assessing waiver applications; you should consider submitting the types of materials described there, particularly those tied to the health-related grounds of inadmissibility if applicable. F.

Form I-912/Request for Fee Waiver

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The Form I-912 Request for Fee Waiver is used to ask USCIS to allow the child to file forms without paying the USCIS fees. If the child is unable to pay the fees (which is true in nearly every case), you should file a fee waiver request on their behalf. 14 There are three scenarios which support a fee waiver with USCIS: 1) the applicant or a relevant member of their household is currently receiving a means-tested benefit; 2) the household income is at or below 150% of the Federal Poverty Guidelines; 3) the applicant has a financial hardship. 15 Children with SIJS-based applications typically will fall within at least the latter two scenarios. Consult the USCIS website at www.uscis.gov/feewaiver for more information. To support an I-912 under the 150% theory for a child seeking or already having obtained SIJS, include a receipt or approval notice on a Form I-797 Notice of Action for an SIJS-based I-360. 16 If you are filing the I-485 and I-360 concurrently, you may want to submit an additional copy of the state court order as an attachment to the I-I92 and indicate that you are submitting the I-360 with the I-485. You can also request a fee waiver without filling out Form I-912 by instead providing an affidavit explaining why the child cannot pay and attaching an accompanying detailed budget of the household income. Note that completing Form I-912 and providing its required documentation is likely less onerous than documenting an entire household’s income and expenses, or documenting humanitarian and compassionate concerns—but you do need to follow the Form I-912 instructions. If you do not submit a fee waiver request, you must pay the fees for each application form, as set forth on www.uscis.gov. For more information about fee payment and fee waiver requests, see § 8.7(E). 13

INA § 245(h)(2)(B). See 8 CFR § 103.7(c). USCIS does not require using the I-912 to request a fee waiver; another written request may suffice. You should strongly consider, however, using the I-912 for simplicity’s sake and to take advantage of the form’s SIJS-specific instructions. 15 See USCIS, Instructions for Request for Fee Waiver (Mar. 13, 2018), https://www.uscis.gov/i-912. 16 Id. 14

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§ 8.6

Meeting with the Child to Complete and Review Each Form

Before submitting the SIJS packet to USCIS, you must meet with the child to complete and review all of the USCIS forms with them. You should do this whether or not they will sign the forms on their own behalf. Presuming they are old enough to be interviewed, they are old enough for you to explain in an age-appropriate way what the forms are for and what information they contain. It is best practice to meet with the child alone, out of the presence of their guardian, caregiver, social worker or probation officer, at least initially. The child may be more reticent to disclose certain information you need for the forms—particularly answers to the questions regarding the grounds of inadmissibility in the I-485—if another adult is in the room. Use your best judgment when conducting this meeting, but keep in mind that the child is your client. You should prioritize getting accurate information from the child over possibly offending the adult by asking that person to leave the room.

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Before the meeting with your client, you may want to draft the forms for the SIJS packet (G-28 and I-360, and perhaps the I-485, I-765, I-601, and I-912). To do so, you can use the information you gathered from the child in your intake, as well as information from their juvenile court documents, from materials released by the federal government, and from documents such as the child’s birth certificate or passport. By doing this, you can be more efficient because you will know what additional information you must obtain from the child at your meeting and what information you simply need to review with them for accuracy. During this meeting, review each question on each form carefully with the child. Make sure that the child understands the importance of providing accurate information in the USCIS forms. If the child reveals that they are now married or that they have reunified with both of their parents or are no longer under juvenile court jurisdiction, you must re-evaluate SIJS eligibility. If the child answers yes to any of the questions in part 8 of the I-485—particularly if the child reveals that they have had prior contact with immigration officials or if the police have arrested or cited them—and you did not already know that the answer was yes, you must re-evaluate the child’s adjustment of status eligibility. If you suspect that the child is not being forthright with you, remind the child that USCIS will have its own records related to their case, as well as those of U.S. Immigration and Customs Enforcement (ICE) and EOIR, and that if they are 14 or older, they will be fingerprinted by USCIS and their arrest record will then also be known. If you run into either of these situations and are uncertain about the child’s continuing eligibility for immigration relief, you should seek help. If you learn that the child is no longer eligible for SIJS, do not file for SIJS. This is unethical and will place your client at risk down the line, even if the application is approved. WARNING! If you have any difficulties, concerns or questions in filling out the SIJS forms or in determining the child’s continued eligibility for SIJS or adjustment of status, you should contact practitioners with SIJS expertise. § 8.7

Obtaining Supporting Materials

As the instructions for the USCIS applications make clear, you must submit certain supporting materials as part of the SIJS packet. For the SIJS petition, they include the SIJS findings and Chapter 8

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proof of age; for the adjustment of status application they include photographs; an I-693 medical examination; other juvenile court documents as needed; proof of age; fees or a fee waiver request; and documents in support of an I-601 if needed. Each of these items and how to obtain it is discussed below. Please note that some of these items may take time to secure. As a result, you should start collecting these materials (with some exceptions, as noted below) as early in the process as you can. We do not suggest that you file either the I-360 or the I-485 packet until you have all of the supporting materials that you need, especially in light of USCIS’s new policy which provides more discretion for USCIS officers to deny applications without first issuing an RFE (discussed in § 8.3). A.

Photographs

If you are filing Form I-485, you must include two identical color photographs of the child taken recently (we recommend no more than 30 days before filing the SIJS packet). They should be passport-style 2” by 2” photos showing a full-face, frontal view of the child. These passport photos can be taken at many pharmacies or copy centers. Once your client gets the photos, you should lightly print the child’s name and A number, if any, on the back of the photos with a pencil or felt-tip pen. (This is especially important if you are filing multiple I-485s for siblings— USCIS has been known to swap photos of children inadvertently.) See the I-485 instructions found at Appendix K for more details. Note that if you are filing an I-765 for the child, you must include an additional two photographs for a total of four.

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B.

I-693 Medical Examination Report

In support of the I-485, you must include a Form I-693 Medical Examination Report in a sealed envelope. This can be submitted with the I-485, or later upon USCIS request. 17 A doctor specially approved by USCIS (often referred to as a “civil surgeon”) must complete the I-693. The child, the child’s parent or guardian, or the advocate or attorney for the child needs to schedule an appointment with a civil surgeon to fill out this form. The purpose of the I-693 is to inform USCIS whether the child falls into any of the health-related grounds of inadmissibility. These grounds of inadmissibility are found at INA § 212(a)(1) and discussed in detail in Chapter 5. To find a USCIS-approved doctor, go to www.uscis.gov, click on “Tools,” and then “Find a Doctor,” and search using the child’s zip code. You will be given the names, addresses, and phone numbers of authorized civil surgeons who either are located in that zip code or may serve that area. The list may be quite extensive. You can also get this information through the USCIS National Customer Service Center phone service (1-800-375-5283). Note, however, that the list you get on the phone may be shorter than the one you receive online. Once you have obtained a list of authorized civil surgeons, you may want to call around and compare prices. USCIS does not regulate the cost of the medical examinations and they may cost upwards of $200.00. Once you have settled on a doctor and scheduled an appointment for the child, we suggest that you download the I-693 from the USCIS website, complete Part One for the child consistent with how you have completed their other immigration applications, and print a full copy. You should also download and read the instructions for the form so that you are

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See 8 USCIS-PM B.4(C), fn. 28.

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familiar with the process the child will go through. The form you prepare should be provided to the civil surgeon for their completion. Preparing the child for the medical examination. Before the medical examination, meet with the child and explain what the medical examination is for and what will happen at the appointment—namely, that the doctor will ask them questions, review their medical documents, and perhaps perform some tests. Make sure to tell the child that it is important that they answer the doctor’s questions honestly. Be certain that the child takes the I-693 you have created as well as their complete vaccination record and government-issued photo identification to the appointment. If the child does not have this form of identification, a birth certificate with translation or an affidavit should suffice. See the I-693 instructions at www.uscis.gov for more details. Do not have the child sign the I-693; they will do so at their medical appointment. The medical examination. At the medical exam the doctor will take tests and ask questions to see if the child has certain conditions. These include, among other things, chronic alcoholism, mental disorders accompanied by harmful behavior, drug addiction, venereal disease, Hansen’s disease, and tuberculosis. The doctor will also check to see if all required immunizations have been provided. The doctor will recommend follow-up steps if needed, such as getting further evaluation or treatment for TB, obtaining a psychological or psychiatric evaluation for a suspected medical condition, or obtaining needed vaccinations. All of these things may come with additional fees.

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Note that to determine whether the child is a drug abuser or addict, the doctor may simply begin by asking the child if they have taken any drugs or medicines within the last few years. Make the child aware of this issue. Under the 2017 Center for Disease Control instructions, “diagnoses of substance-related disorders are to be made in accordance with existing medical standards as determined by the current edition of the DSM.” 18 Currently, doctors must screen for both substance use disorders and substance-induced disorders. If the doctor suspects such a disorder exists, the child may be required to obtain a psychiatrist’s evaluation or other testing. At that point, advocates should obtain expert advice about USCIS standards and what is required. PRACTICE TIP: Talking to your clients about drug use. You must have a frank conversation with your clients about the impact that drug use could have on their immigration case, including a possible diagnosis of drug abuse or addiction and the possibility of a drug-related arrest and adjudication or conviction that may render your client inadmissible. This is particularly important as relates to marijuana, which is now legal in many states but continues to be unlawful under federal law. For more information about talking to clients about the risks of marijuana use, even in states where it is legal, see ILRC, Warning for Immigrants About Medical and Legalized Marijuana (Jan. 8, 2018), https://www.ilrc.org/warning-immigrants-about-medical-and-legalizedmarijuana. USCIS requires a re-examination by a civil surgeon if there are alcohol-related driving incidents that were not considered by the civil surgeon during the original medical evaluation. A re18

See CDC, Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (Oct. 23, 2017), https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

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examination for alcoholism will be required if the applicant has: one or more arrests or convictions for alcohol-related driving incidents while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident; one or more arrests or convictions for alcohol-related driving incidents where personal injury or death resulted; one or more convictions for alcohol-related driving incidents that resulted in a felony conviction or sentence of incarceration; a single alcohol-related arrest or conviction within the last five years; or two or more alcohol-related arrests or convictions within the last ten years. 19 This standard shows that the government is taking alcohol-related offenses much more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a civil surgeon has made two findings: (1) that there is a diagnosis or mental disorder (alcohol abuse) and (2) current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. 20 You should work with your client to explore whether these might be concerns before they go for the I-693 examination. 21

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Once the doctor has completed the I-693, they should provide the child with a complete copy of the form as well as the original form in a sealed envelope. Do not open the envelope. Instead, carefully review the copy and make certain that the form is filled out completely and accurately. If the I-693 is lacking something—such as the doctor’s signature—send the child back to the doctor to have this corrected. If the I-693 indicates that a ground of inadmissibility is present (that is, a Class A or Class B condition as described on the I-693)—despite any challenges to this finding you may have made after receiving expert advice—you will need to complete and submit an I-601 as discussed above if you and the child want to go forward with the case. Note, again, that all health-related grounds of inadmissibility can be waived for children adjusting status as Special Immigrant Juveniles. If you have concerns about the child’s health-related inadmissibility, seek expert assistance. Please be aware that the medical examination results recorded on the I-693 are generally valid for only 12 months. As a result, you should have the child’s I-693 completed relatively close to the time you plan to file it with USCIS. Some practitioners file it with the I-485, and some wait until they are issued an RFE. C.

Juvenile court documents

In support of the I-360 and, in some cases, the I-485, you must include certified documents from the juvenile court. The procedures for obtaining and disseminating these documents vary by state. The discussion below highlights some common issues. Be sure to consult local juvenile court practitioners about how best to obtain these documents in your state. Juvenile court SIJS findings. In all SIJS cases, you must submit the juvenile court’s SIJS findings to USCIS in support of the child’s I-360. Because the juvenile court issued the SIJS findings specifically to be submitted to USCIS, you should be able to obtain a certified copy of 19

See 8 USCIS-PM B.7. 9 FAM 40.11 N8.3. 21 Any drunk driving arrest or conviction may be relevant to the exercise of discretion by the USCIS officer. You should consult with practitioners with SIJS expertise if your client has any alcohol related arrest, even if it does not make your client inadmissible. 20

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the SIJS findings from the court clerk and hand over these findings to USCIS without running afoul of any state law provisions governing confidentiality of juvenile court documents. If, however, there is any doubt about your ability to share these findings with USCIS under state law, you may need to file a formal petition with the juvenile court (often the presiding judge of the juvenile court) specifically requesting permission to do so. Many juvenile courts have special forms you must use to request this permission. Juvenile delinquency court dispositions. In some SIJS cases, you may be required to submit juvenile delinquency court dispositions in support of the child’s I-485. The I-485 instructions state that an applicant “must submit certified police and court records for any criminal charges, arrests, or convictions.” 22 Even if the child was charged and adjudicated in juvenile delinquency court, the instructions provide that the applicant “must disclose all arrests and charges, even if the arrest occurred when you were a minor.… An adjudication of juvenile delinquency could also be relevant to the exercise of discretion. If you claim that an arrest resulted in adjudication of delinquency, and not in a conviction, you must submit a copy of the court document that establishes this fact.” 23

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Many advocates take the position that children need not submit juvenile court dispositions for each charge, but instead simply proof that the charges were handled in juvenile court. This is based on the principle that juvenile delinquency dispositions are not considered “convictions” for immigration purposes, as discussed in Chapter 17, and thus cannot trigger criminal grounds of inadmissibility. Other advocates attempt to obtain and submit the juvenile delinquency dispositions to USCIS. If you are planning to submit these documents to USCIS, it is particularly important that you follow any state law confidentiality rules and procedures. 24 It is very possible that the juvenile court will deny your petition to submit juvenile delinquency dispositions and/or arrest records to USCIS. If this happens, and USCIS requests these records, you will need to explain to USCIS your inability to provide these documents under state law. Practitioners that do not submit any juvenile court records due to state confidentiality laws have had varying success; some have received approvals without any further inquiry from USCIS, while others have had to respond to RFEs on this point. Contact practitioners with expertise in SIJS and delinquency issues for advice on how to proceed. Also note that in some SIJS cases, USCIS may require you to submit “an official statement by the arresting or detaining agency or prosecutor’s office OR an applicable court order that indicates” no charges were filed after your client was detained or arrested but never charged. 25 Often, you can simply obtain a letter from the relevant police or sheriff’s department, district attorney’s office, or juvenile court clerk. If an official juvenile court order exists and is 22

See USCIS, Instructions for I-485, Application to Register Permanent Residence or Adjust Status (Dec. 13, 2017), https://www.uscis.gov/i-485. 23 Id. 24 If you obtain juvenile court permission to give USCIS confidential documents, be sure to file a cover page with USCIS that makes clear that the documents cannot be further disseminated without a juvenile court order. This should prevent ICE from attempting to give copies to the immigration judge should the child wind up in removal proceedings. 25 See USCIS, Instructions for I-485, Application to Register Permanent Residence or Adjust Status (Dec. 13, 2017), https://www.uscis.gov/i-485.

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needed, you will need to follow the same procedures you did to get permission to disseminate other juvenile court orders. Be aware that it may be time-consuming to obtain these juvenile court documents and you should start any required processes early on in your case. D.

Proof of age

In support of the SIJS-based I-360, you must submit some documentary proof of the child’s age. Under the USCIS regulation governing SIJS, this evidence can take the form of a “birth certificate, passport, official foreign identity document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion of the director establishes the beneficiary’s age.” 26

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Note that the requirement is for some proof of age, a much looser standard than the usual proof of birth. There is no requirement that the child submit a birth certificate. Children have been granted SIJS who did not even know what country they were born in, and did not personally know their year of birth. The statute recognizes that these children come from abusive, chaotic, or interrupted homes, and does not impose the strict requirements of proof of birth that appear in regular family immigration. However, advocates have reported that USCIS often requests the birth certificate when an alternative proof of age is submitted. If you do not have the birth certificate or do not want to submit it to USCIS, you should be prepared to argue that the birth certificate is not required. Foreign birth certificate. A foreign birth certificate, if you can obtain it, is the ideal proof of age. Note that many children come to the United States with a copy of their birth certificate. The easiest way to obtain a foreign birth certificate is to contact helpful family or friends in the home country who will travel to the local or national registry to obtain a certified copy. If, however, the child has a fear of returning to their home country or may otherwise have an asylum claim, you want to exercise caution in contacting government agencies in the child’s home country or in contacting family members who themselves might be put in danger. Consult an experienced asylum practitioner if this issue arises in your case. You can also send away for the birth certificate yourself. Usually, you will need a letter written in the language of the child’s home country and addressed to the registrar in the town where the child was born (or, more importantly, where they believe their birth was registered) or to a state or national registry. The letter should state the name, birth date, and birthplace of the child and if possible the names of both parents. You will also need an international money order to cover the costs of the birth certificate and mailing it to you. If you go this route, the Foreign Affairs Manual (FAM) of the Department of State is an important resource. The FAM provides information on how to obtain foreign birth certificates from various countries. If birth certificates from a particular country appear in a different form, such as family registration certificates, or if they are generally unavailable and therefore not

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required, the FAM will state this. To find the FAM, go to http://www.state.gov/m/a/dir/regs/fam/, visit a local law library, 27 or contact a local immigration agency or attorney. You can also contact the local consulate from the child’s country and ask for its assistance in obtaining a birth certificate. Ideally, you should submit a written request including as much detailed information about the minor’s birth as possible, such as date of birth, name of parents, place of birth, and province, town and name of hospital where the minor was born. Often a designated consular staff person helps with these requests, and you may find it worthwhile to develop a good relationship with that person to assist on your SIJS cases. Finally, if you cannot obtain a birth certificate for the child, you could request a certificate referred to as a “delayed registration of birth” from the state in which the child resides. For example, in California the Office of Vital Records would issue this document. This is used in lieu of a birth certificate. In order to obtain this document, a court order may be needed stating that the birth certificate is unobtainable. Because this process may be quite onerous and most documents proving the age of the applicant will suffice for USCIS, this may be used as a last resort.

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Foreign passport or identity document. If the child came to the United States with a passport or other foreign identity document—including a military document or perhaps a school identification card bearing the child’s birth date—you can submit a copy of this as proof of the child’s age. If the child entered the United States on a visa issued by a United States embassy or consulate abroad, you should submit a copy of the passport, the visa, and the I-94 card, if any, in support of the I-485. Unfortunately, if the child came to the United States without a birth certificate and cannot obtain one, it is nearly impossible to get a foreign passport or foreign identity document from a foreign consulate located in the United States. Although it cannot hurt to try, you may quickly learn that consular officials are reluctant to issue identity documents without a child’s original birth certificate—and, in some cases much to an SIJS-eligible child’s detriment, without the consent of both of the child’s parents. Even if you have a child’s birth certificate, and thus can already prove their age, it is still wise to help them obtain a government-issued photo identification such as a foreign passport or consular identification card. This identification will help them, as described above, to obtain their work permit and complete both their biometrics appointment and their medical examination. It may also assist them as another form of identification to obtain their Social Security number and any state driver license or identification to which they may be entitled once they have their work permit or lawful permanent resident card. Other substitute documents. If you cannot obtain a birth certificate, passport, or foreign identity document, the regulation provides that the applicant can submit any “other document which in the discretion of the director establishes the person’s age.”28 The regulation creates a generous standard because it is well known that some of these children will not have necessary information or will have a hard time obtaining documents. 27

This part of the FAM is reproduced in 19 Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada, Immigration Law and Procedure, § 1.1 (Matthew Bender, Rev. Ed.). Ask your county law library if they have this multi-volume set. 28 8 CFR § 204.11(d)(1).

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One good guide for what definitely must be acceptable substitute documents is the USCIS regulation defining substitute documents for birth certificates in family visa petitions. See 8 CFR § 204.1(f) and (g)(2). This is a fairly strict standard for substitute documents that is imposed in regular family immigration cases. Substitute documents may include: (1) a baptismal certificate with the seal of the church, showing date and place of birth and date of baptism; (2) affidavits from people who are personally aware of the birth; 29 or (3) early school records showing date of admission to the school, the child’s date and place of birth, and the name and place of birth of the parent or parents. In those cases, you must also describe the efforts you made to locate the birth certificate. The best proof is a statement from the registrar explaining that the child’s birth certificate cannot be found. 30 But that guide is not a requirement for SIJS. USCIS can accept any document in its discretion to prove age in an SIJS case. If you have nothing else, offer a state court order on the child’s age; remember that regular civil courts can make all kinds of findings, including age. With a state court order like this, you may even be able to obtain a state birth certificate reflecting the child’s birth outside the United States. Also consider offering an official doctor or psychologist’s evaluation to establish age. Always remind USCIS that the regulation purposely gave USCIS wide discretion on what documents will suffice as proof of age.

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Regardless, when submitting “substitute” documents, be sure to demonstrate that you diligently searched for and tried to obtain original documents establishing the child’s age and were unable to find them. Be prepared to show correspondence with a registrar in the child’s home country, or a declaration by the child’s social worker recounting the steps taken to locate these documents. Translations. Any document not in English must be accompanied by a certified translation in English. USCIS no longer accepts abbreviated translations. The entire document must be translated. Anyone who is competent to translate (for example, the child’s social worker, paralegal, or volunteer) can certify the translation by signing and dating the following statement, accompanied by their address: I [type name] certify that I am fluent (competent to render translation) in the English and [type language of original document] languages, and that the above/attached document is an accurate translation of the document attached entitled [type name of document]. WARNING! Review documents for errors and inconsistencies. It is important that you carefully review the documents establishing the child’s age and other relevant information for errors and 29

The regulations for substitute documents in regular family visa petitions may provide some guidelines here. See 8 CFR § 204.1(g)(2). In that context, a third party who was aware of the birth should state in the affidavit that they were alive at the time of the birth and had personal knowledge of it. The affidavit should include the person’s full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant knows of the birth. In fact, it is a good idea to include other details that the affiant knows about the person’s life. For instance, the affiant can say that they knew the parents, were present at the wedding, visited the mother when she was pregnant, knew the neighborhood the family lived in, and saw the family and the child on a regular basis. 30 These are the “secondary evidence” acceptable under federal regulation to prove birth in the United States in family visa cases when “primary evidence” (birth certificate, etc.) is not available. See 8 CFR § 204.1(f), (g)(2).

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correct them if possible. For example, you may obtain a child’s birth certificate that lists their aunt and uncle as their mother and father. If the child is living with their aunt and uncle and you submit a birth certificate listing them as their parents, USCIS may doubt the legitimacy of the entire SIJS case. You should take steps to work with the consulate of the child’s country of origin, or with attorneys in that country, to amend the birth certificate. If that is impossible, you should consult with experienced SIJS practitioners and assess whether to submit the inaccurate birth certificate. An erroneous birth certificate may place the client’s caretaker at risk of criminal prosecution or a finding of fraud, particularly if they have held themselves out as the child’s parent in the past. It may be wise to submit a consular ID or other proof of age besides the birth certificate. If you do decide to submit the birth certificate, you should document your efforts to correct or amend the birth certificate to USCIS. If the relationship of the child to their caregivers is in doubt as the result of an inaccurate birth certificate, you may need to pursue DNA testing to prove that the child is not living with both of their biological parents. E.

Fee payment or fee waiver request

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USCIS generally charges application fees for those seeking immigration benefits. Some forms, such as the SIJS-based I-360 as well as the I-693 and G-28, have no filing fees. Others, such as the I-485, I-765, I-601 and biometrics processing fees, have steep fees. The current filing fee for an I-485 is $1140.00, and if the I-765 is filed with or after the I-485, it has no separate fee. The biometrics fee of $85.00 is required for a child 14 and older, bringing the total for their I-485 to $1225.00. If the child needs an I-601 waiver, the cost is an additional $930.00. These fees, luckily, are waivable for children seeking SIJS. Paying the fees and requesting fee waivers are addressed below. Forms of payment. Fees may be paid by check or money order, drawn on a bank or other financial institution located in the United States, payable in U.S. currency to “U.S. Department of Homeland Security.” You can use one or more checks or money orders to pay the fees. We suggest you write the child’s name and A number, if any, in the “memo” section of the check or money order and make a copy for your records. If you are filing at a USCIS Lockbox, you can also pay by credit card using Form G-1450. Before you pay the filing fees, check the USCIS website at www.uscis.gov to make certain you are submitting the correct fee amount. If you submit the correct fee amount to USCIS with your SIJS packet, USCIS will issue you a filing receipt. If you submit forms with the incorrect filing fees (too much or too little money), USCIS will not consider the forms properly filed and will return the SIJS packet to you. Additionally, if you use a personal check to pay the fees you must be absolutely certain there are sufficient funds in the account. If a check bounces, USCIS not only will consider the applications improperly filed, but also may turn the check over to Debt Management for collection and levy substantial penalties up to and including the full cost of the applications if a new payment is not submitted in time. To be safe, consider using a cashier’s check or a money order. Submitting a fee waiver. See § 8.4(G) for information on grounds for requesting a fee waiver and supporting documentation to include. When you include a fee waiver request, we recommend that you write “Fee Waiver Requested” on the top your cover letter. You may also want to write this on the top of the first page of each application for which you want the fees waived and on the

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filing envelope. To avoid confusion, you can also write “SIJS: No Fee Required” on the top of the first page of the I-360. If USCIS approves the fee waiver request, it will issue you a filing receipt. If USCIS denies your fee waiver request, it will return the SIJS packet to you. You can then resubmit the SIJS packet with an “improved” fee waiver request or find some other way to pay the fees. If you are under a tight deadline, you may consider paying the fees rather than submitting a fee waiver request. This will prevent USCIS from denying the fee waiver request and returning the SIJS packet to you with too little time for you to correct the problems and re-file. F.

Documents supporting an I-601 waiver

If you need to file an I-601 for your client, you may want to include documents to support this request that USCIS waive your client’s ground/s of inadmissibility. Recall, as discussed in Chapter 5, that to qualify for a waiver you must establish that it is “for humanitarian purposes, family unity or when it is otherwise in the public interest” and that the child merits a favorable exercise of discretion. 31

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Ordinarily, the facts underlying the SIJS findings themselves—the child’s abuse, abandonment, or neglect and the best interest determination that the child remain in the United States—may be enough to show that granting the waiver would be for humanitarian reasons and in the public interest. Nonetheless, you may want to include a declaration from the child and letters of support from social workers, probation officers, school counselors, therapists, or other community leaders that address the inadmissibility ground in particular or the humanitarian/public interest factors in general. Note that if the ground of inadmissibility is health-related, you may want to submit medical or psychological records, subject to confidentiality and privacy concerns. For example, if the child has been found to be a drug abuser, you may want to show their progress in a drug treatment program. You should also consult the I-601’s instructions and consider submitting the types of materials described there. In some SIJS cases, you may want to submit this type of documentation even if you need not file an I-601. For example, you might represent a child with an extensive delinquency history or a drunk driving arrest. Even though their delinquency adjudications may not bar their eligibility for immigration relief, they can factor into USCIS’s discretion. See Chapter 17. As a result, you should consider submitting support letters or documents that show rehabilitation and progress— including good grade reports, evidence of completing high school or a GED, or documentation of community service. § 8.8

Drafting a Cover Page, Cover Letter, and Case Summary

A cover page, cover letter, and case summary are not required for the I-360 or I-485 filings. Nonetheless, they may help in the initial processing and in the adjudication of the applications themselves. Samples of all three of these documents are found in Appendix M. Suggestions for creating them are presented below.

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INA § 245(h)(2)(B).

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A.

Cover letter

The cover letter should identify you as the child’s representative and explain that the child is seeking immigration benefits as a Special Immigrant Juvenile. If you choose to submit a case summary, then you need not include many facts in the cover letter. If you prefer not to submit a case summary and instead rely solely on the juvenile court’s findings of fact, you may want to give some overview of the child’s history in the cover letter. The cover letter should also list, in order, all of the documents and materials in the SIJS packet. This can serve as a checklist for you as you assemble the packet. Perhaps more importantly, it will memorialize what you are giving USCIS. Sometimes, photos, medical exams, or other documents may be misplaced or buried in a USCIS file. If you have proof of having submitted the missing materials—and particularly a complete copy of the materials—this may aid in reconstructing the packet or motivating the USCIS officer to look harder for the missing materials. B.

Case summary

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A case summary filed along with the I-360 packet will personalize the case and give the adjudicating USCIS officer context for the child’s claim for immigration relief. This may be particularly helpful if you were not able to obtain a juvenile court order with the level of detailed findings of fact that you wished. The summary can share an overview of the child’s history, their time in the United States, and their involvement with the juvenile court. It should cover the basic SIJS eligibility requirements, but need not contain a host of details about the child. Providing this information to USCIS up front may decrease the likelihood that officers feel the need to issue an RFE or ask about these issues in detail during the interview (if an interview is scheduled for adjudication of the I-360 and/or the I-485). Some advocates prefer not to include a case summary and instead rely upon the applications and the juvenile court’s SIJS findings to speak for themselves. If you choose not to submit a case summary, be sure that the order contains enough information to establish the factual basis for the state court’s findings, as required by USCIS. If you do choose to include one, be certain that the summary is consistent with the rest of the filing, including the immigration applications, supporting materials, and juvenile court findings. It is better not to include a case summary than to include a case summary that raises more questions than it answers. § 8.9

Assembling the SIJS Forms for Filing

Finally, you need to put together the SIJS packet for submission to USCIS, whether you are filing a stand-alone I-360 or filing the I-485 concurrently with the I-360 (if the child is not in removal proceedings and has an immigrant visa immediately available, as discussed above). If you are filing the I-360 and I-485 concurrently, you should review the sample affirmative SIJS packet at Appendix M before you do so, and follow the tips below. If you are filing a stand-alone I-360, you should review the sample I-360 filing at Appendix S. You can also access USCIS’s most upto-date packet assembly instructions by going to http://www.uscis.gov/forms/forms-andfees/general-tips-assembling-applications-mailing. USCIS does not have hard and fast rules governing the order in which you must assemble the documents or how they must be bound. We suggest that you compile them in the following order:

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Case Summary, Order Regarding Eligibility for Special Immigrant Juvenile Status, Form G-28, Form I-360, Copy of Birth Certificate and English Translation, and if filing concurrently with the I-485, Form I-912, Form I-485, Form I-765, four photographs, and Form I-693 in sealed envelope. You can clip all of the documents and materials, including the cover page, together with a binder clip. If you are paying the filing fee, attach the fee by paper clip in the upper left corner of the I-485. USCIS recommends using clips (or ACCO fasteners if the filing is bulky) and discourages the use of heavy-duty staples, binders or folders that cannot be easily disassembled. USCIS also recommends two-hole punching the documents at their tops and using bottom, not side, tabs to separate them. If you do use tabs, you may also want to include a table of contents. Avoid submitting oversized documentation when possible; shrink 8-1/2 by 14 inches or larger documents down to 8-1/2 by 11 inches.

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Submit the originals of all of the immigration forms, photographs and medical exam, as well as your cover letter and case summary. Submit photocopies of all other original documents because USCIS does not require these documents in the original, and indeed discourages their submission. Generally, USCIS will not return an original to you if you submit it. This means you should submit a photocopy of any birth certificate, foreign passport or identity document, juvenile court document, or support letter. Note that a copy certified by a government office in the child’s home country is considered an original (i.e., a photocopy with an original government stamp on it is acceptable as an “original”). You do not need to certify that the photocopy you are submitting is an accurate copy. USCIS views the signing of the application form as certification that the copy is accurate. If the case is scheduled for an interview, you should plan to bring the original documents to the interview so that the USCIS officer handling the case can examine them, if requested. Once you have assembled the SIJS filing, make a complete copy set for yourself. (You will need this complete set to help you prepare the child for their adjustment of status interview, and to reassemble the packet in case it is lost.) You should also make a copy for the child and review it with them. Then place the SIJS packet within an envelope and mark the outside “Fee Waiver Requested” if applicable. USCIS also recommends marking the envelope with the type of case you are filing. Make sure to include the proper USCIS filing address on the envelope, as discussed in the next section. Be certain that you prepare it for mailing in a way that can be tracked—either overnight mail, certified mail with a return receipt, or some other type of tracking and delivery confirmation—so that you can keep tabs on the SIJS filing. Follow the detailed instructions on filing outlined below in Part II of this chapter. NOTE: e-Notification. In late 2009, USCIS introduced a form that, if submitted, will generate electronic notification (e-Notification) that your USCIS forms have been accepted. If you wish to use this service, complete the G-1145 and clip it to the front of the SIJS filing. You will receive a separate e-mail and/or text message for each accepted immigration form. The G-1145 has no fee. Additionally, if you wish to track the progress of the SIJS case at USCIS you can sign up for email or text message notification by going to www.uscis.gov, clicking on “Check Your Case Status,” and then signing up for case status updates once you have the receipt numbers for the submitted USCIS forms. Note, however, that case status information may not be available online for SIJS-based I-360s since they are submitted in connection with parental abandonment, abuse, or neglect and contain sensitive information.

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PART II: THE AFFIRMATIVE SIJS PROCESS STEP-BY-STEP § 8.10 Filing the SIJS Packet Part I of this chapter covers how to create the SIJS filing(s) to be filed with USCIS. You should follow all of its instructions once you have assessed the child’s immigration history, as noted in § 8.1, and obtained the SIJS findings, as outlined in Chapter 7, Part II. Once you have finished creating the SIJS packet (which includes the I-360, potentially the I-485, and all supporting materials), you must file it with USCIS. Timing can be very important. It is imperative to file the I-360 and supporting materials while the child is under 21. As described in Chapter 4, there is ambiguity related to the continuing validity of the regulations governing SIJS, which require that the child be under the juvenile court jurisdiction to be eligible for SIJS. Although the USCIS Policy Manual is clear that a child can submit the I-360 even if the child aged out of the juvenile court’s jurisdiction, you should try to file the child’s SIJS packet while the child is still under the court’s jurisdiction, given USCIS’s past inconsistency on this issue, as described in Chapter 4.

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Timing is important in another respect. As discussed in Chapter 4, the I-360 is the SIJS petition that, when approved, allows your client to have their I-485 (adjustment of status application) adjudicated and their status adjusted based on an available visa number corresponding to the approved I-360. If an immigrant visa is not immediately available, your client cannot file the I485 until their priority date is “current” in the U.S. Department of State Visa Bulletin. The priority date is based on the date your client’s I-360 is received by USCIS. For children from El Salvador, Guatemala, Honduras, and Mexico, the priority date often moves very slowly and so it is important to file your client’s I-360 application as soon as possible to secure their priority date. Current USCIS procedure is that regardless of where the child resides in the United States, you mail the SIJS packet to a centralized location known as the Chicago Lockbox at: USCIS PO Box 805887 Chicago IL 60680-4120 If you are using a courier or other service that cannot deliver to a post-office box, you should send the SIJS packet to: USCIS Attn: AOS 131 South Dearborn, 3rd Floor Chicago IL 60603-5517 USCIS changes filing procedures and addresses from time to time. Before filing the SIJS packet, consult www.uscis.gov to make sure this information is still correct. Remember that when you mail in the SIJS packet, you should use a method that allows tracking—either overnight mail, certified mail with a return receipt or some other type of tracking and delivery confirmation—so that you can keep tabs on the SIJS packet. NOTE: Alternative filing methods. USCIS has instituted an electronic filing option for some of its forms. As of July 2018, the forms needed for the SIJS packet are not among them. If you are

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interested in electronic filing, check the USCIS website at www.uscis.gov and click on “Forms” and then “E-Filing” to see if USCIS has changed its policy. After the SIJS packet arrives at the Chicago Lockbox, USCIS reviews it for completeness— including signatures and any required initial evidence. USCIS will then either process the fee payment or adjudicate the fee waiver. More information on the fee payments and fee waiver processing is found in § 8.7(E). If USCIS finds the SIJS packet complete and the fee payment or fee waiver acceptable, it will send you an e-Notification if you have requested one. It will also send you a receipt for each of the USCIS applications filed: one for the I-360, one for the I-485, if included, and one for the I765, if filed along with the I-485. Once you have the receipts, you can sign up for electronic case status updates on the USCIS website. A note on e-Notification and case status updates is found above. § 8.11 Completing the Biometrics Appointment and Obtaining the Work Permit

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Biometrics is a standard procedure employed by immigration authorities to check the criminal and immigration record of an individual and ensure that there are no red flags that may affect the application or case. Biometrics are not typically taken for I-360 petitions, but they are completed for adjustment of status applications. Shortly after USCIS issues the filing receipts for the I-485 packet—usually within a month— USCIS will mail the child’s biometrics appointment notice. At the biometrics appointment, USCIS takes data including fingerprints, a photo and a signature. The FBI then will inform USCIS of any criminal record (often including juvenile delinquency record) or record of prior deportation or removal. Only children 14 and older must pay the biometrics fee and have complete biometrics taken. USCIS has, however, been scheduling many children under age 14 for appointments even if full biometrics are not required. Until further notice, we suggest that children attend all scheduled appointments regardless of their ages. Failure to attend an appointment may result in denial of the child’s applications. USCIS should schedule the biometrics appointment at the Application Support Center (ASC) closest to the child’s home. (For a listing of ASCs, go to www.uscis.gov, click on “Tools,” then click on “Office Locator,” and finally click on “Application Support Centers.”) Before the appointment, consider going to the local ASC and obtaining a copy of the data form used there. You can then create a “biometrics packet” for the child to use at their biometrics appointment. This is optional, but it prevents the child from inadvertently filling out the biometrics packet incorrectly and creating identity issues. This packet can include a cover letter with instructions on the appointment, the original appointment notice, and the data form completed consistently with the child’s SIJS packet. A sample is found at Appendix O. Be sure the child brings their government-issued photo identification, such as a passport or consular ID card, to be allowed into their appointment. If the child lacks this type of identification, reach out to local practitioners with SIJS experience. Find out what alternative forms of identification, like a school ID, are accepted at the child’s ASC. In some areas, advocates have created special procedures with USCIS for SIJS-eligible children who lack

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official identification documents. If you have concerns, you can go to the appointment with the child. Each ASC has its own USCIS officer on site; ask to speak with that person or their supervisor if the child is denied access to their appointment. WARNING! It is not advisable to send an undocumented person to accompany the child to the biometrics or any other immigration-related appointments. However, if no documented adult is available to transport the child and you are not available to attend, ensure that you have informed the undocumented parent or guardian of the potential risks associated with attending such appointments. Once the child completes their biometrics appointment, USCIS will stamp their appointment notice. Keep this stamped copy in the child’s file in case you need it at the child’s adjustment of status interview. Obtaining the work permit. USCIS normally will adjudicate the child’s I-765 (employment authorization form) and mail out the work permit after the child completes their biometrics appointment. You can track the creation and mailing of the work permit on the USCIS website, using the I-765 receipt number. Once the child has their work permit, they can apply for a Social Security number. The child can then, in many states, apply for a state identification card.

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In some cases, it can take six months or longer for your client to receive their work permit and advocates have reported significant delays in the issuance of EADs. If your client’s I-765 has not been adjudicated within six months, consider making a service request through the National Customer Service Center by calling 1-800-735-5283. If the service request does not result in adjudication of your client’s work permit, you may want to make a case assistance request with the USCIS Ombudsman. You can access more information about making an Ombudsman request at https://www.dhs.gov/case-assistance. § 8.12 Keeping Addresses Current You must inform USCIS if the child changes their address. However, if the child moves from one confidential foster home to another, and the mailing address you are using remains the same since the confidential address cannot be shared, this may not be necessary. Additionally, you do not need to inform USCIS of your client’s new address if you used your office address as a safe address for your client on the I-360. USCIS should be informed of the child’s change of address on Form AR-11 Alien’s Change of Address Card, which may be submitted using USCIS’s Online Change of Address process. To complete an Online Change of Address, go to www.uscis.gov and click on “Tools” and then “Change Your Address on File.” If you update your client’s address by completing Form AR-11 online, the system will also provide you the opportunity to update the child’s address on all pending or recently approved applications. You can also mail in the form, but the process is more complicated because it requires two steps. First, you will have to download the form from the same website or request a copy by calling 1-800-870-3676 and mail it via certified mail, return receipt requested to the address listed on the form. Because this only changes the child’s address in the USCIS master database, you will have to take an additional step. You must also file a Change of Address online or call USCIS’s National Customer Service Center at 1-800-375-5283

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to change the child’s address for the specific applications you have submitted. There is no fee to file the Change of Address form. Advocates must also inform USCIS if they have submitted a G-28, a Notice of Entry of Appearance as Attorney, and they change their business address. This can be done by filing an updated G-28, calling the National Customer Service Center (NSCS) at 1-800-375-5283, or by writing to: USCIS-NBC PO Box 648006 Lee’s Summit MO 64002 Note, a change of address must be submitted for each client of an attorney or representative. § 8.13 Common Adjudication Issues Prior to issuing a decision, USCIS may issue an RFE or Notice of Intent to Deny (NOID) regarding your client’s application. USCIS may also fail to comply with the 180-day deadline for adjudicating the I-360 that is mandated by the TVPRA. Further, USCIS may revoke a previouslyapproved I-360 petition based on the regulations governing automatic revocation. These common issues that may arise after applications are submitted are discussed in this section.

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Requests for evidence and notices of intent to deny

If USCIS decides that it needs additional evidence to adjudicate the child’s applications, it may issue an RFE or NOID with a deadline for document submission. You must comply with any deadline the USCIS officer sets for the RFE or NOID’s submission. Some common RFE and NOID topics are outlined here. Please note that USCIS has announced that, beginning September 11, 2018, USCIS may deny more applications without first issuing an RFE or NOID. 32 1. Continuing juvenile court jurisdiction As discussed in Chapter 4, USCIS has been inconsistent in its position on whether continuing juvenile court jurisdiction is required in order to qualify for SIJS and SIJS-based adjustment of status. As a result, some advocates report that USCIS officers have been issuing RFEs for evidence that children are still under the jurisdiction of the juvenile court. If you get this type of RFE and the child’s juvenile court case is open, you can provide a copy of their upcoming hearing notice or other evidence of continuing jurisdiction, if available. If you cannot release these documents because they are confidential, explain this in your response to the RFE. If the child’s juvenile court case is closed due to age (18 or 21), you can inform USCIS of this fact and note that the TVPRA amendments and USCIS Policy Manual mean that this element is no longer required. 33 If the child has a juvenile delinquency record, particularly one that developed since you filed the I-485, you may get an RFE for juvenile delinquency dispositions or police reports. See § 8.7(C) on these types of materials. If confidentiality laws in your state allow disclosure, you may choose to comply with this RFE and submit the requested documents, or you may take the position that 32 33

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the child need not submit juvenile court dispositions for each charge, but instead simply submit proof that the charges were handled in juvenile court. This is based on the principle that juvenile delinquency dispositions are not considered “convictions” for immigration purposes and thus cannot trigger criminal grounds of inadmissibility. See Chapter 17. If you do submit the requested documents, be aware that they may contain information (such as indication of additional drug use or gang affiliation) that could generate additional RFEs or negatively factor into USCIS’s decisions on the child’s case. Also look out for any information that could conflict with information you have already submitted, such as an indication of alcohol or drug abuse that conflicts with the answers given to the I-485 or in the medical exam. It is always best to exercise caution. 2. Reasonable factual basis for the state court order and state court documents

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USCIS has interpreted its consent function post-TVPRA in adjudicating SIJS petitions to require that the “SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit.” 34 In order to make this determination, USCIS requires that the child provide a reasonable factual basis for the state court order, which demonstrates that the court order was sought primarily for protection from abuse, abandonment or neglect, rather than primarily to obtain an immigration benefit. 35 Recently, USCIS has begun issuing RFEs requesting additional factual information to support the reasonable factual basis for the state court order. Practitioners report that USCIS has also been issuing frequent RFEs requesting the underlying custody order issued by the juvenile court even though the SIJS findings reflect that the court has declared the child dependent on the court or placed the child in the custody of an individual or entity. In some cases, USCIS has even requested the entire juvenile court file. These RFEs are troubling because they indicate that USCIS is questioning the state court process, which is outside of its purview. If you receive an RFE that you feel is requesting inappropriate information in light of the different roles that the state court and USCIS are intended to play in the SIJS process, argue in your response to the RFE that it is neither appropriate under USCIS’s own policy nor necessary for USCIS’s adjudicatory process for the agency to request the documents underlying the state court petition when the child has already provided the factual basis for the state court order. In support of the argument that USCIS should not go behind the state court order, consider citing to the 2004 Yates Memorandum (which has been superseded by the USCIS Policy Manual but provides historical context), 36 the USCIS response to the 2011 34

6 USCIS-PM J.2(D)(5). Id. See also USCIS, Memorandum: Response to Recommendation 47, Special Immigrant Juvenile (SIJ) Adjudications: An Opportunity for Adoption of Best Practices, p. 4 (Jul. 13, 2011), https://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20 Formal%20Recommendations/cisomb-2011-response47.pdf [hereinafter Scialabba Memorandum]; USCIS, Immigration Relief for Abused Children (Apr. 2014), https://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job /Immigration_Relief_for_Abused_Children-FINAL.pdf. 36 See USCIS, William R. Yates, Interoffice Memorandum: Memorandum #3 -- Regarding Field Guidance on Special Immigrant Juvenile Status Petitions, HQADN 70/23 (May 27, 2004). 35

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Ombudsman Recommendation, 37 and the Policy Manual, which provides that USCIS “relies on the expertise of the juvenile court” and “does not reweigh the evidence.” 38 You should also carefully evaluate whether there are any confidentiality laws that would prevent you from sharing the state court documents with USCIS, and if so, brief that issue in your cover letter responding to the RFE. Nonetheless, even if you have included legal arguments protesting the request for additional documents, you may determine that it is in your client’s interest to provide some limited, additional documentation from the state court proceedings. This is a case-by-case determination that you will have to make in light of the specific facts of your client’s case, but do keep in mind the desire not to “raise the bar” for how much factual evidence USCIS should expect in connection with SIJS petitions. For example, if you receive an RFE requesting the entire juvenile court file, you may consider providing only the original petition in state court or your client’s declaration from the state court proceedings to avoid setting an expectation that USCIS can expect to receive this in other cases. 3. Custody orders for youth between the ages of 18 to 21

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As discussed in Chapter 4, USCIS has recently adopted a new interpretation of the SIJS statute that is particularly troubling to youth who were between the ages of 18 and 21 when the state court made its orders. USCIS now takes the position that a juvenile court cannot make a valid finding that reunification with a parent is not viable unless the juvenile court has the legal authority to reunify the child with their parents. 39 If a youth would otherwise be treated as an adult under state law, USCIS takes the position that a juvenile court could not then order the over18 year old to reunify with their parents, in light of their status as an adult. On this basis, USCIS has denied SIJS petitions for youth who received guardianships in California and New York between the ages of 18 to 21. To respond to an RFE or NOID on these grounds, argue in your response that this new legal requirement is unfounded in the law and contrary to Congress’s intent to allow youth to receive SIJS orders from a wide-range of juvenile courts. In many NOIDs and RFEs, USCIS has cited to the outdated regulation requiring that a youth be found eligible for long-term foster care before SIJS findings are made. You should point out that the regulation has been superseded by the TVPRA of 2008, which eliminated the long-term foster care requirement, and that USCIS may not ignore the expansion of SIJS in the TVPRA. In some cases, you may also be able to argue that the juvenile court that issued your client’s SIJS order does have the authority to reunify the child with their parents. If so, we recommend arguing that reunification is possible while still asserting that USCIS’s requirement is unlawful. As of July 2018, litigation is pending in federal court challenging the validity of this requirement. However, the future of SIJS petitions for children who received their SIJS orders after their 18th birthday remains unclear. You should consult with an experienced SIJS practitioner if your client received the juvenile court order after their 18th birthday. 37

Scialabba Memorandum, supra note 35, at 4–5. 6 USCIS PM J.2(D)(5). 39 Hesson, Ted, USCIS Explains Juvenile Visa Denials, POLITICO, Apr. 25, 2018, https://www.politico.com/newsletters/morning-shift/2018/04/25/travel-ban-at-scotus-182935. 38

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4. Waivers of inadmissibility If your client is applying for adjustment of status, USCIS may determine that the child falls into a waivable ground of inadmissibility and ask that you file an I-601, if you have not done so already. The reasons for the need for a waiver may include that the civil surgeon determined the child is a drug abuser or addict or the USCIS officer decided that the child triggered the ground of inadmissibility related to prostitution or alien smuggling. See Chapter 5 and § 8.5(F) on the I601 (including the correct form version and fee) and § 8.7 on compiling its supporting materials. Be sure to comply with any deadline the USCIS officer sets for the I-601’s submission. 5. Prior removal orders You should know whether your client has a prior removal order before you decide to file their SIJS petition. Consult § 8.1 for details on gathering that information. Sometimes, however, this information may elude you and USCIS may be the one to give you the bad news. The child may be unaware of the order because they received it when they were very young or the immigration judge issued it in absentia when they failed to appear for a scheduled immigration court hearing. If an immigration judge issued the order and the child did not subsequently leave the United States, you must file a Motion to Reopen the removal proceedings to allow the child to adjust status. See Chapter 9 for guidance on how to do that.

B.

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If the child did leave the United States after receiving a removal order from an immigration judge or from DHS and then re-entered, you may need an I-601 filed on their behalf. Luckily, the TVPRA prevents DHS from executing the prior removal order against the child—presuming they meet the definition of an unaccompanied alien child—and summarily removing them from the United States. 40 If you are concerned that this order will be reinstated (that is, that DHS will use the same removal order to deport the child for a second time), consult with practitioners with SIJS expertise on how to prevent the child from being detained and removed. I-360s pending after 180 days

As discussed above, the TVPRA dictates that USCIS must adjudicate SIJS-based I-360s within 180 days of filing. However, USCIS regularly fails to adjudicate I-360 petitions within the 180 days. Recently, I-360 petitions have taken upwards of one year to be adjudicated. Do your part to assist in expeditious adjudication. Respond to RFEs as soon as possible, particularly if they relate to the child’s eligibility for SIJS as opposed to their eligibility for adjustment of status. USCIS takes the position that the RFE tolls the 180-day adjudication timeframe until a response is received. Do keep in mind that most of the issues discussed in this section—including I-601s and prior removal orders—are not legitimate reasons for USCIS to delay adjudicating the I-360 (unless they result in issuance of an RFE). If you do not have a decision on the child’s I-360 within 180 days, request in writing that USCIS issue a decision. You may e-mail the National Benefits Center at [email protected]. Contact practitioners with SIJS expertise for advice on how to proceed, including obtaining contact information for officials at USCIS headquarters in Washington, DC who may help to resolve the delay. You may even go so far as to file a mandamus action in federal court to force the I-360 40

See TVPRA § 235(a)(5)(D).

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adjudication, but remember that a successful mandamus action may result in approval or denial of your client’s application. 41 You should consult with experienced SIJS practitioners and federal litigators before filing a mandamus action. C.

I-360 revocations

Even if your client filed the I-360 and I-485 concurrently, USCIS will likely adjudicate your client’s I-360 prior to adjudicating the I-485 because of background checks, I-601s, or RFEs. If this happens, or if your client has not filed their I-485 because their priority date was not current, you should be aware that the I-360 is not “permanently” approved—it can be revoked before an adjustment of status is granted if the child falls into any of the categories listed at 8 CFR § 205.1(a)(3)(iv):

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(A) Upon the beneficiary reaching the age of 21 (inoperative, see below); (B) Upon the marriage of the beneficiary; (C) Upon the termination of the beneficiary’s dependency upon the juvenile court (arguably inoperative, see Chapter 4); (D) Upon the termination of the beneficiary’s eligibility for long-term foster care (inoperative, see below); or (E) Upon the determination in administrative or judicial proceedings that it is in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. You will want to make sure your client does not fall into any of these categories. If they do, their I-360 will be deemed automatically revoked and they will lose their ability to proceed with their SIJS-based I-485. This is even more crucial now that youth from countries experiencing a visa backlog may have to wait years to adjust status. During that time, they must not trigger any of the conditions set forth in the automatic revocation regulation, for example, by getting married. Note, however, that USCIS has not yet amended the regulation governing automatic revocations to conform to the TVPRA. As a result, some of the grounds listed there (for example, the child’s turning 21 or becoming ineligible for long-term foster care) are now inoperative. In its Policy Manual, USCIS also states that it revokes I-360 approvals if the child reunifies with the parent or “on what it deems to be good and sufficient cause, such as, if the record contains evidence or information that directly and substantively conflicts with the evidence or information that was the basis for petitioner’s eligibility for SIJ classification.” Practitioners report that USCIS has begun revoking I-360s based on its changing interpretation of the eligibility requirements for SIJS. For example, USCIS has revoked I-360s for children who received juvenile court orders over the age of 18 from juvenile courts that lacked the ability to reunify the child with their parents. Consult a practitioner with SIJS expertise if you are concerned about revocation of your client’s I-360 or if you receive a notice of intent to revoke.

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The decision whether to file a mandamus action may be especially fraught if your client is already in removal proceedings. You should weigh carefully whether a prompt decision on the I-360 is in your client’s best interests, especially given the likelihood of removal if the mandamus action leads to denial of the I-360 petition, and you should discuss the potential risks and benefits with your client.

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§ 8.14 Interviews Prior to 2016, SIJS-based-adjustment of status applications were adjudicated by the local USCIS field offices and all applicants over 14 were scheduled for interviews. However, in late 2016, USCIS centralized adjudication of SIJS-based I-360s and I-485s to the National Benefits Center (NBC). USCIS announced that it will generally not interview SIJS-based adjustment applicants. 42 USCIS still retains discretion to interview applicants, and your client may be scheduled for an interview with the local field office. Your client is more likely to receive an interview if they have a delinquency record or if the case presents another unique circumstance; nonetheless, any applicant may be scheduled for an interview, and you should prepare your client for the possibility that they will be interviewed.

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Scheduling of the interview. The local USCIS office is responsible for setting the date for the child’s interview. USCIS should notify you by mail of the interview date. Be aware that you may only get a few weeks’ notice of the interview once the date is set. When you receive the interview notice, check it for accuracy. Make certain that the child’s name is noted correctly and that their A number (immigration identification number) on the notice corresponds to that on the USCIS receipts you have. If either you or the child is unable to attend the interview, follow the notice’s instructions for requesting a rescheduled date. It is imperative that the child attend the scheduled interview or confirm a rescheduled date with USCIS. If the child fails to appear at the appointment without notice, USCIS may deny the child’s applications for abandonment and might place them into removal proceedings. If your client is younger than 14 or has a disability, consider asking USCIS to waive the child’s interview. USCIS’s memorandum implementing the TVPRA changes, referred to as the “Neufeld Memorandum,” 43 reminded adjudicating officers that under federal regulation at 8 CFR § 245.6, an “interview may be waived in the case of a child under the age of 14 … or when it is determined that an interview is unnecessary.” 44 Consult experts to find out if a process for waiving interviews has been established, or reach out to your local USCIS office to assist in setting one up. Preparing the child for the interview. There are two important tasks if an interview is scheduled: preparing the child for the adjustment of status interview and attending the interview with the child. You should reach out to local practitioners with SIJS experience before doing either of these things if you have not handled an SIJS case in the past. The information that follows is intended as general guidance; be aware that the practices at your local USCIS office may vary from what is described below.

42

7 USCIS-PM F.7(E)(2). USCIS Memorandum, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions, HQOPS 70, 8.5, p. 4 (Mar. 24, 2009), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA _SIJ.pdf [hereinafter Neufeld Memorandum]. 44 Although the Neufeld Memorandum has been superseded in whole or in part by the USCIS-PM, the Policy Manual provisions on SIJS and SIJS-based adjustment do not discuss waiver of interviews. Thus, the Neufeld Memorandum is arguably still in effect on this point; regardless, the regulation itself is still in force and thus can form the basis of your request for waiver of the interview. 43

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If an adjustment of status interview is set, call and send a letter to the child informing them of the date and time of the interview and the importance of attending. Also inform the child of the date and time when you want them to come to your office to prepare for the interview. A sample letter is found at Appendix O. We recommend that you meet with the client to prepare at least one week before the interview date if the case is fairly straightforward, to allow yourself time to deal with any issues that may have come up since you filed the immigration packet. If the child has a delinquency history or other complicating facts, we recommend that you meet with the client to prepare several weeks before the interview, and as many intervening times as necessary to properly prepare your client. You should set aside approximately an hour to meet with the child to prepare for the interview—more if the case is particularly complicated, less if the child is very young.

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Read the description of the adjustment of status interview below and be prepared to give the child a clear idea of all of the things that will happen on the day of the interview. We suggest that you go through a mock interview with the child so that they are prepared for all of the questions that the USCIS officer might ask. Typically questions asked by an officer track those on the I-360 and the I-485 forms that are filed as part of the SIJS packet. You should go over the questions on these forms with your client to ensure that their oral responses are consistent with the written ones. You also should review the reasons why the questions are on the application and the reasons why the USCIS officer will be asking the questions they ask during the interview. It is important to share with the child what the officer is looking for to grant or deny the case. Generally, applicants will do better during the interview if they know what an officer is looking for and why they are looking for it. If this is your first SIJS case, or your first SIJS-based interview, and you would like help preparing the child for their interview, contact local practitioners with SIJS expertise. Keep in mind that although this interview may seem straightforward to you, it can be very anxiety-inducing for your child client. Your client may be concerned that USCIS might take them into custody or that something bad will happen to them. They may have had bad experiences with “officials” in the past—whether in their home country or here in the United States—and you should be sensitive to that possibility. Reassure the child that you will be there with them at the interview and that they can turn to you if they have any questions or problems, but make clear that the interview is the time for them—not you—to answer the officer’s questions. This is true even if the child is as young as five or six years old. If you learn at the preparation meeting that some significant event has taken place since you filed the immigration packet—for example, police have arrested the child—consult with SIJS experts to find out the best way to proceed. Prepare the child for the possibility that their applications will not be approved on the date of the interview. Assure them that if this happens, it does not mean anything bad about their particular case. It simply means that the government needs more time to do its job. Make sure that the child and their caretaker understand this may happen so that they are not surprised or alarmed. You should do the same if you check the visa bulletin again and learn that no SIJS-based visa numbers are going to be available on the day of the interview. Remind both the child and the adult responsible for them that it is very important that the child attend the interview on the scheduled date. We recommend that you provide the child with your cell phone number or suggest that they leave you a voicemail at work if some emergency comes

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up and they will not be able to attend the interview—for example, if the adult caretaker’s car breaks down or they are in an accident. If you know why the child is not present for the interview, it will be much easier to reschedule with USCIS for a later date. Attending the adjustment of status interview. On the interview date, the child will meet at the local USCIS office with the USCIS officer. The interview may be scheduled on a special date for children’s cases, or the child may be scheduled in with a mix of other cases. Make sure to meet the child at the USCIS office ahead of the scheduled interview time in case they have any questions or any additional issues have come up since you last met. Be aware that the interview itself should be short, but the wait may be long. We suggest you set aside the whole morning or afternoon, as the case may be, for this process. After you have checked in for the interview, eventually a USCIS officer will appear and call the child for the interview. At that point, you and the child (and an interpreter, if needed) will follow the officer back to their office. An attorney can be present at the interview, and it is almost never a problem for a social worker or “next friend” to be present as well. 45 If the officer attempts to bar a non-attorney from accompanying the child in the interview, ask to see a supervisor. Note, however, that it is never wise to have an undocumented person attend the interview with the child. If the child is not fluent in English, you will need to bring an interpreter to the interview to translate for the child. As the child’s attorney, you are not allowed to interpret for your client.

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Once you all reach the officer’s desk, they will ask the child to raise their right hand and swear to tell the truth during the interview. You and then child can then sit down across the desk from the officer. The officer then will begin to review the child’s file. The officer will typically open the child’s sealed I-693 Medical Examination Report and review it. If it is not filled out properly, then you will have to arrange with the child and their USCIS-approved doctor to correct any deficiencies. The officer then likely will let you know if the child’s background clearances are completed (if they are 14 or older). If the clearances are not completed, the officer will let you know that the I-485 cannot be approved that day. The result will be the same if no SIJS-based visa numbers are available on the day of the interview. The officer then typically will start to ask the child questions from the forms in their SIJS petition and/or application for adjustment of status. If the child is very young, the questions may be limited to very simple ones: the child’s full name, date and place of birth, parents’ names, whether the child is in school and how they are doing in school. If the child is older, the questions also likely will address when and how they came to the United States, whether they have been arrested or ticketed or have used or sold illegal drugs, and what their plans are for the future. The officer usually will not focus on the details of the abuse, abandonment or neglect that the child has suffered. Indeed, the USCIS-PM instructs its officers that, “[d]uring an interview, USCIS avoids questioning the applicant about the details of the abuse, neglect, or abandonment suffered because these issues are handled by the juvenile court. USCIS generally focuses the interview on resolving issues related to eligibility for adjustment of status.” 46 The officer may however ask the client questions to ensure that the client is under the jurisdiction of the juvenile court or has agedout of the court’s jurisdiction. 45 46

7 USCIS-PM F.7(E)(2). Id.

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Hopefully the interview will be short and courteous, and just cover basic information on the form. In some cases, however, over-zealous officers have tried to ask about the details of abuse or abandonment, or about other family issues such as when the parents last visited the child. While we hope that this does not occur, you should be prepared in order to avoid re-traumatizing the child at the USCIS interview. Such questioning is not appropriate and is not legally relevant and, therefore, attorneys should object to these lines of questioning. 47 Again, bad interviews are relatively rare, and most USCIS officers understand the need not to interrogate the child. To prevent and mitigate bad USCIS interviews, you may wish to establish a relationship with the local USCIS office or participate in local USCIS liaison meetings where you can raise this issue. Most importantly, make sure that you attend the interview with the child. If the officer insists on asking the child about sensitive subjects, speak with a supervisor and if needed, end the interview. It can be rescheduled. When you are deciding whether to object to a question or end the interview, keep your client in mind. If you think it would not be harmful to your client or their case to answer the objectionable question, you may decide to let the interview continue. If you do this, you can still report the incident to USCIS or a USCIS liaison at a later date. On the other hand, if you think it could be traumatizing for your client to have to answer the objectionable question, you will want to step in. Consider requesting a meeting with a higherlevel USCIS officer to work out a system for these interviews. If you do this, it is a good idea to get other interested stakeholders on your side to meet with USCIS.

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In some cases, the USCIS officer may be able to approve the child’s I-360 and I-485 at the interview and the child will leave the local USCIS office as a lawful permanent resident. Information on approvals is found in § 8.15. If the USCIS officer does not resolve the child’s case on the interview date, any one of several issues discussed in § 8.13 might arise before a final decision on the child’s applications. § 8.15 Notice of Decision: Approvals, Denials, and Appeals USCIS will eventually make decisions on the child’s I-360 and I-485. USCIS will mail you its decisions, unless an interview is conducted and a decision is issued at the interview. Approvals, denials, and appeals are discussed below. A.

Approval of the I-360

As discussed above, it is likely that your client’s I-360 will be approved before their I-485. If your client is from Guatemala, Honduras, El Salvador, or Mexico it may be several years before your client is able to submit their I-485 and adjust status. It is critical that your client understand that SIJS does not grant them immigration status in the United States. SIJS is an immigrant 47

Note that a USCIS officer not familiar with SIJS could easily become confused. In most of their interviews, the USCIS officer is the original fact-finder: they conduct an intense interview to decide if a marriage is real or fake, or if an asylum applicant is telling the truth about persecution. The officer may be accustomed to “cracking” fraud, i.e., getting tough on an individual who they think is lying. The USCIS officer might not understand that Special Immigrant Juvenile law is different. The statute says that the important legal issue is the juvenile court’s decisions and orders, and the basis for those decisions. See INA § 101(A)(27)(J)(1)–(2). A maltreated child’s being forced to give statements, opinions, or memories to a USCIS officer who lacks any training in interviewing or interpreting the answers of such a child is not appropriate, relevant, or probative.

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classification that allows them to adjust status when their priority date is current. Remind your client that they cannot marry until they adjust status and that they must remain in their court ordered placement until they age out of the court’s jurisdiction. Although DHS does not typically remove children who have approved I-360s, it is possible that this practice could change, and your client must understand that they are not protected from removal until they adjust status. B.

Approval of the I-485

If the I-360 and I-485 are approved, your client is a lawful permanent resident as of the date of approval reflected on the I-485 notice. Sample approval notices are found at Appendix P. With some convincing, the child should be able to use the form to obtain lawful permanent resident benefits, such as in-state tuition or student loans only available to permanent residents, until the actual lawful permanent resident card (“green card”) arrives in the mail. This card will arrive via U.S. Postal Service Priority Mail within a few weeks to a few months after the approval. You can track the creation and mailing of the card on the USCIS website, using the I-485 receipt number.

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Once the child’s case is approved and their green card arrives at your office, examine it to make sure that all of the information is correct. If it is not, you will need to file a Form I-90 (discussed in the note below) to obtain a corrected card. Please note, however, that incorrect information on the green card does not change the child’s status as a lawful permanent resident. When you have an accurate green card, set up a time for the child to come in and pick it up personally. Before that meeting, review the child’s file and extract all original documents. Prepare a closing letter for the child. A sample is found at Appendix Z. It is critical that you advise your client of their rights and responsibilities as a permanent resident and that you warn them of the ways they might place their permanent residency in jeopardy. When you meet with the child, give them all originals, the green card, a USCIS “Welcome to the United States” guide (found at www.uscis.gov), an ILRC “Living in the United States: A Guide for Immigrant Youth” pamphlet (found at www.ilrc.org), and the closing letter. Congratulate yourself on a job well done. NOTE: Replacing or renewing a lawful permanent resident card. If USCIS issues the child’s green card with incorrect information due to administrative error, you can file the Form I-90 at no cost to obtain a corrected card. Please review the I-90 and its filing instructions at www.uscis.gov. If the incorrect information was due to an error on the forms that you or the client submitted, you will have to pay for a new card. You can also use the I-90 to replace a card that the child has lost, was stolen, is expiring, or needs to be updated to reflect the child’s name change (perhaps after an adoption). The fee for the I-90 in these circumstances is $455.00, including the $85.00 biometrics fee. The fee is waivable. USCIS also requires that a lawful permanent resident child file an I-90 within 30 days of turning 14 if their green card was issued before they turned 14, and they should do this by submitting an I-90 with the biometrics fee only. In any of these circumstances, if the child has received any adult criminal convictions or may otherwise have engaged in deportable conduct since becoming a lawful permanent resident you should consult an expert immigration practitioner before filing the I-90 for the child. C.

Approval of the I-360 and denial of the I-485

If USCIS grants the child’s I-360 but denies the I-485, the child is classified as a Special Immigrant Juvenile but is not a lawful permanent resident. The client loses their ability to use

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their work permit and may face removal from the United States. If this occurs, review USCIS’s written decision carefully. You may choose to file a Motion to Reopen or a Motion to Reconsider the denial. Either of these motions must be filed with USCIS on Form I-290B within thirty calendar days of service of the adverse decision (thirty-three calendar days if the decision is mailed). Form I-290B is available at www.uscis.gov and its fee is $675.00. You may also choose to submit an improved I-485 packet to USCIS along with the I-360 approval and try again. You cannot file an administrative appeal of the I-485 denial. Consult with a practitioner with SIJS expertise to explore your options. If USCIS denies the child’s I-485, and the child has no lawful immigration status (which, as discussed above, does not include Special Immigrant Juvenile Status), DHS will issue a Notice to Appear placing the child in deportation proceedings (which are officially called “removal” proceedings) before an immigration judge. Once this happens, USCIS loses the ability to adjudicate any pending or subsequently filed I-485. Instead, the child would need to renew their I-485 and any waiver requests before the immigration judge. Chapter 9 discusses in detail the process of representing an SIJS-eligible child in removal proceedings. It also outlines the appeals that can be taken if the immigration judge issues a removal order for the child. D.

Denial of the I-360 and the I-485

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If USCIS denies the child’s I-360 and I-485, they are neither classified as a Special Immigrant Juvenile nor granted lawful permanent residency. Instead, they revert back to the immigration status they had prior to your filing the applications, which in most circumstances is undocumented status. The child loses their ability to use their work permit and may face removal from the United States. If USCIS denies both of the child’s applications, review USCIS’s written decisions carefully. You should consider promptly filing a Motion to Reopen or Motion to Reconsider the denials as well as an appeal of the I-360 denial. (As noted above, you cannot file an administrative appeal of the I-485.) Follow the appeal instructions on your denials carefully. Generally, an appeal must be filed on Form I-290B within thirty calendar days of service of the adverse decision (thirty-three calendar days if the decision is mailed). Form I-290B is available at www.uscis.gov and its fee is $675.00. You should look at your denials, the I-290B instructions, and 8 CFR § 103.3 for more details, including information on additional evidence, briefs, and oral argument before the Administrative Appeals Office (AAO). Be sure to consult with a practitioner who has pursued AAO appeals in SIJS cases for guidance. CLINIC’s “Index of Unpublished Administrative Appeals Office Decisions on Special Immigrant Juvenile Status” is another valuable resource to help you assess a potential appeal. 48 You may also consider filing a federal court action under the Administrative Procedures Act (APA). Federal court litigation is beyond the scope of this manual; you should consult with experienced SIJS practitioners and federal litigators before filing an APA action. USCIS will issue your client an NTA, placing them in removal proceedings, after denying the I360 and I-485 if they have no other lawful status. If the I-360 is approved through your appeal, the immigration court will need to terminate your client’s removal proceedings before you can 48

You can request the index online at https://cliniclegal.org/index-unpublished-administrative-appealsoffice-decisions-special-immigrant-juvenile-status.

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then re-file the I-485 packet before USCIS or ask that the I-485 be reopened and approved. Alternatively, you can renew the I-485 and any waiver requests before the immigration judge. If USCIS does not approve the I-360 on appeal to the AAO, there is no further administrative appeal you can take. As discussed above, your next step at this point would be to pursue federal litigation. Also, you will need to pursue other forms of relief because the immigration judge has no power to hear an appeal of the denial of the I-360 or approve an I-360 for the child. If you choose to pursue appeal to the AAO or federal court litigation, please keep in mind that a precedent decision in your case might affect other children besides your client. Reach out to practitioners with SIJS expertise for guidance and support to make certain your appeal helps, rather than hurts, the chances for other children to obtain this immigration relief.

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CHAPTER 9 DEFENSIVE SPECIAL IMMIGRANT JUVENILE STATUS CASES By Kristen Jackson and Sara Van Hofwegen

This chapter includes:

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Part I: The Defensive SIJS Process Step-by-Step § 9.1 Immigration Court and Obtaining Copies of the Child’s Immigration Files .................................................................................................................... 217 § 9.2 Preparing for the Master Calendar Hearing........................................................ 218 § 9.3 Attending the Master Calendar Hearing ............................................................. 222 § 9.4 Filing the I-360 Packet with USCIS ................................................................... 224 § 9.5 Keeping Addresses Current ................................................................................ 224 § 9.6 Obtaining a Decision on the I-360 from USCIS ................................................ 225 § 9.7 Moving to Terminate the Removal Proceedings if Desired ............................... 226 § 9.8 Obtaining the I-485 Fees or Fee Waiver ............................................................ 228 § 9.9 Completing the Biometrics Requirement ........................................................... 229 § 9.10 Filing the I-485 Packet with the Immigration Court .......................................... 230 § 9.11 Obtaining a Work Permit ................................................................................... 231 § 9.12 Preparing for the Merits Hearing........................................................................ 232 § 9.13 Attending the Merits Hearing ............................................................................. 234 § 9.14 The Immigration Judge’s Decision: Approvals, Denials and Appeals............... 237 Part II: Creating the I-360, I-485, and I-765 Packets § 9.15 General Guidelines for USCIS Forms ................................................................ 239 § 9.16 Preparing the I-360 Packet for Filing with USCIS ............................................. 239 § 9.17 Preparing the I-485 Packet for Filing with the Immigration Court .................... 240 § 9.18 Preparing the I-765 Packet for Filing with USCIS ............................................. 243 Part III: Reopening Removal Proceedings for an SIJS-Eligible Child § 9.19 Obtaining a Copy of the Child’s Immigration Court File .................................. 246 § 9.20 Preparing an I-246 Stay of Removal Packet....................................................... 247 § 9.21 Assessing Whether, Where, and When to File the Motion to Reopen ............... 248 § 9.22 Preparing the Motion to Reopen ........................................................................ 251 § 9.23 Convincing ICE to Join the Motion to Reopen .................................................. 252 § 9.24 Filing the Motion to Reopen and Obtaining a Decision ..................................... 253 § 9.25 Completing the Child’s SIJS-Based Adjustment of Status ................................ 254

This chapter will discuss how to handle defensive SIJS cases—that is, cases in which the child is in immigration court removal proceedings or has an outstanding removal order issued by an immigration judge. If the child you are assisting is not in removal proceedings, or does not have an outstanding removal order, please turn to Chapter 8 for information on handling affirmative SIJS cases.

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IMPORTANT NOTE: If the child you are assisting is in removal proceedings but ICE has charged them as an “arriving alien” by checking Box 1 on their Notice to Appear, then U.S. Citizenship and Immigration Services (USCIS) alone has jurisdiction to adjudicate an arriving alien’s application for adjustment of status (Form I-485). 1 An arriving alien is defined as, among other things, “an applicant for admission coming or attempting to come into the United States at a portof-entry.” 2 You should follow the procedure in Chapter 8 while seeking continuances in immigration court until USCIS completes the child’s adjustment of status. In brief, the defensive SIJS process involves obtaining copies of the child’s immigration files; attending the immigration court master calendar hearing(s); submitting the I-360 (SIJS) packet to USCIS; submitting a biometrics packet to USCIS; attending a biometrics appointment; submitting an I-485 (green card) packet to the immigration judge; attending an immigration court merits hearing; and finally receiving a decision. If the case is approved, the child becomes a lawful permanent resident (LPR). If the case is denied, the child can file appeals with the Board of Immigration Appeals (BIA), and then the federal appellate courts, depending upon the circumstances. Part I of this chapter provides a step-by-step overview of the defensive SIJS process. Part II discusses in detail how to create the I-360 packet for filing with USCIS and the I-485 packet for submitting to the immigration judge. This includes obtaining all of the supporting materials, preparing all of the immigration applications and petitions, and packaging them for filing. Many of the steps in the creation of the packet are the same as for an affirmative SIJS case, discussed in Chapter 8. Part III of this chapter instructs how to file a Motion to Reopen for an SIJS-eligible child who has a prior removal order issued by an immigration judge.

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Just as juvenile court proceedings vary substantially state-by-state, so too do procedures vary depending upon which immigration court is presiding over your client’s removal proceedings and adjudicating the child’s I-485 packet. You must make special efforts to reach out to practitioners in your area with experience handling SIJS cases and with your local immigration court. The information in this chapter provides a general idea of how the child’s case will be handled but must be supplemented by your own research into local practices and preferences. It must also be informed by a careful reading of the Immigration Court Practice Manual (ICPM) (available at http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm) that governs removal proceedings. WARNING! This chapter extensively references the Immigration Court Practice Manual (ICPM), which contains a nationwide set of requirements binding on the parties that appear before immigration courts. You must follow the ICPM’s requirements unless the immigration judge “directs otherwise in a particular case.” 3 *

1

See 8 CFR § 245.2(a)(1). 8 CFR § 1001.1(q). 3 ICPM 1.1(b). 2

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NOTE: Social workers, probation officers, and other case workers. Please note that this chapter is written presuming that an attorney will represent the child in removal proceedings and complete the immigration portion of the child’s case. Still, you should read Part I of this chapter so that you can understand the immigration process and explain it to the child. You can also provide a tremendous service by helping to collect some of the materials needed for the child’s I360 and I-485 packets, including: birth certificate and translation; results of a medical exam that must be performed by a USCIS-approved doctor; passport-style photos; application fees; and juvenile court documents, including the SIJS findings and any dispositions of juvenile delinquency cases. These materials are all described in Part II of this chapter. PART I: THE DEFENSIVE SIJS PROCESS STEP-BY-STEP § 9.1

Immigration Court and Obtaining Copies of the Child’s Immigration Files

Before making an appearance in immigration court or filing anything with USCIS or the immigration judge, it is important to have complete copies of the child’s immigration files. You will need copies of certain documents to proceed in immigration court. You also want to make sure the information you include in the child’s I-360 and I-485 packets is consistent with these files or that discrepancies are properly explained. Follow the instructions below to obtain copies of the child’s files. Executive Office for Immigration Review. The Executive Office for Immigration Review (EOIR) is the branch of the U.S. Department of Justice containing the immigration courts and the BIA. EOIR has an immigration court file on every person in removal proceedings. You need to review this file on your client before you make an appearance in immigration court with the child. As the child’s legal representative, you can “inspect the official record of proceedings by prior arrangement with Immigration Court Staff.” 4

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Read ICPM 1.6(c) for information on how to request a file review and obtain copies of documents as well as prior hearings recorded on audiotapes. Also contact local immigration court practitioners to find out how your immigration court handles file review requests. When you conduct your file review, you must obtain a copy of the child’s Notice to Appear (NTA) if you do not already have it. Get copies of any other documents in the file that you lack. Listen to the audio recording of any prior hearings and pay special attention to whether the child has already pled to the allegations and charge on the NTA. Do all of this as soon as possible. U.S. Department of Homeland Security. The U.S. Department of Homeland Security (DHS) will be involved in the child’s case in two ways. First, an attorney from U.S. Immigration and Customs Enforcement (ICE), the interior enforcement arm of DHS, will represent the government in the child’s removal proceedings. Second, U.S. Citizenship and Immigration Services (USCIS), the DHS agency that processes and decides applications for immigration benefits, will adjudicate the child’s I-360. You therefore must know exactly what DHS has in the child’s alien file (A file). 4

ICPM 12.2(a)(i)(A). You can also access your client’s EOIR file through a Freedom of Information Act request with EOIR. However, it is likely much faster to contact the immigration court directly and request to inspect your client’s file.

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To get this information, submit a FOIA request to USCIS for a copy of the child’s Alien Registration File (A file). 5 Complete a Form G-28 (Notice of Entry of Appearance of Attorney or Accredited Representative discussed in Part II of this chapter) as well as a Form G-639. 6 Draft a cover letter asking that USCIS place the request on its Track Three (an expedited track for people in removal proceedings) and include a copy of the immigration court notice showing the client’s upcoming hearing. A sample FOIA request is found at Appendix R, and a step-by-step FOIA guide is found at Appendix G. Once you have the FOIA request completed, mail it to: U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office PO Box 648010 Lee’s Summit, MO 64064-8010 You can also submit it by fax to (802) 288-1793 or (816) 350-5785 or by email with scanned attachments at [email protected]. More information on USCIS FOIA requests, including Track Three processing, can be found by going to www.uscis.gov and clicking on the “USCIS Freedom of Information Act and Privacy Act” link at the bottom of the page. 7 File this request as soon as possible. Once USCIS issues a receipt for your FOIA request, you can track it online through the USCIS website. A month or two may pass before USCIS mails you a copy of the file, which will arrive either in paper format or on a CD. WARNING! If you do not ask USCIS to put the FOIA request on Track Three, you may wait a year or two for the FOIA response. § 9.2

Preparing for the Master Calendar Hearing

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As soon as you agree to represent an SIJS-eligible child in immigration court proceedings, it is essential that you determine when the next immigration court hearing will be held. Your client may have a hearing notice or they may not. Call the EOIR’s automated system at 1-800-898-7180 and follow the instructions, including entering the child’s A number, to learn where and when the next hearing will be held.

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If you practice within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, first consider taking advantage of Dent v. Holder, 627 F.3d 365, 374-75 (9th Cir. 2010), which requires ICE to make A files available for clients. Contact your local ICE Office of Chief Counsel and request a copy of your client’s A file under Dent. In some cases, ICE has provided the Dent copies in a matter of days or weeks. 6 If you plan not to admit to the factual allegations in the NTA (as discussed in § 9.2 below), take caution when completing portions of the G-639 that ask for the child’s place of birth or anything regarding their entry into the United States. If you leave those questions blank, USCIS may reject the FOIA request as incomplete. To avoid admitting your client’s alienage, write “Alleged” at the beginning of questions regarding the client’s place of birth or immigration history. 7 USCIS is in the process of implementing an online portal to file FOIA requests and access responses. USCIS, USCIS to Implement Online Processing of FOIA Requests (May 30, 2018), https://www.uscis.gov/news/uscis-implement-online-processing-foia-requests. You should check the USCIS website to see if you are able to submit your FOIA request or access your client’s records through the portal.

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Hopefully, the child’s next hearing is a master calendar hearing—that is, a hearing held for “pleadings, scheduling, and other similar matters.” 8 If the child’s next hearing scheduled is for a merits hearing (also called an “individual hearing”), you should consider filing a Motion to Continue as soon as possible in compliance with ICPM 5.10(a). See § 9.12 for more information about the merits hearing. A Motion to Continue asks the immigration court to “continue” the case by postponing the hearing to a later date. Otherwise, the immigration judge will expect you to be prepared to hold a final hearing on the child’s case—and without an approved I-360 and I-485 packet already filed, you will not be ready. If the next hearing is a master calendar hearing, you should read ICPM 4.15, which describes this type of hearing in detail, and go to immigration court to view a few master calendar hearings on your own. If your local immigration court has a special children’s docket, observe hearings there. From July of 2014 until January 2017, EOIR expedited the cases of some children classified as Unaccompanied Alien Children (for additional information on this classification and this phenomenon, see Chapter 1) and placed many children’s cases on expedited dockets referred to as rocket dockets.9 In January 2017, EOIR rescinded its policy to expedite unaccompanied children’s cases and instead requires that judges complete all cases. 10 Now, children’s cases will be expedited if the child is currently in the custody of the Department of Health and Human Services (HHS) as an unaccompanied child; you should consult with local practitioners about the expedited practices in your jurisdiction if your client is in HHS custody. 11 Nonetheless, you should anticipate that the immigration judge will want to complete your client’s case as soon as possible; in January 2018, EOIR implemented performance metrics for immigration courts, seeking the completion of non-detained cases within 365 days of filing of the NTA. 12 Once you have reviewed the child’s immigration court file, and before the next master calendar hearing, you must prepare your client for their appearance in immigration court. Be prepared to give the child a clear idea of all of the things that will happen on the day of the hearing. Make sure that the client knows when and where to meet you and the importance of attending the hearing (i.e., that they could receive an in absentia removal order if they fail to show up for the hearing). We suggest this information be given to the client in writing.

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If the child has not already done so, they must be prepared to concede or deny proper service of the NTA, plead to the allegations in the NTA, and identify what immigration relief they will be seeking. Answering these questions in court is referred to as “taking pleadings.” You must, therefore, review the NTA carefully with your client to determine if it is deficient in any way (for example, by failing to state the time and place of the client’s removal hearing), whether service was proper and which, if any, of the allegations they will admit. Note that DHS has the burden of 8

ICPM 4.15(a). EOIR, Memorandum: Docketing Practices Relating to Unaccompanied Children Cases in Light of the New Priorities, 2 (Sept. 10, 2014), https://www.justice.gov/eoir/statspub/Docketing-Practices-Related-toUACs-Sept2014.pdf (rescinded January 2017). 10 EOIR, Memorandum: Case Processing Priorities, 1 (Jan. 31, 2017), https://www.justice.gov/sites/default/files/pages/attachments/2017/01/31/caseprocessingpriorities.pdf. 11 Id. 12 EOIR Memorandum, Case Priorities and Immigration Court Performance Measures (Jan. 17, 2018), https://www.aila.org/infonet/eoir-updates-its-case-priorities-and-immigration. 9

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establishing your client’s removability. 13 Your client has no obligation to concede their removability to the immigration judge, and you can put DHS to its burden through a contested removability hearing. You may want to do this if, for example, your client suffered mistreatment at the border, DHS violated its own regulations in the course of the enforcement proceedings (for example, by failing to issue Form I-770, Notice of Rights and Disposition), your client suffered constitutional violations such as coercive interrogation, or you believe that the government improperly obtained evidence or does not have sufficient evidence of your client’s alienage. 14 Some advocates choose never to concede removability. If, however, the allegations are correct, you are convinced DHS has admissible evidence to back up the allegations, and your client is eligible for immigration relief, it may be in your client’s best interest to concede removability and move on to identify the relief your client will be seeking. Contact an immigration attorney with expertise in representing children in removal proceedings for guidance if you decide to proceed with a contested removability hearing. WARNING! Multiple forms of immigration relief and voluntary departure. This chapter covers SIJS only. You have a duty, when representing a child in removal proceedings, to investigate all possible forms of immigration relief and present them to the immigration judge if and when removability has been established. You should not rely upon SIJS alone when your client may also have, for example, eligibility for a U visa and for asylum (discussed in Chapters 10 and 12). If you fail to identify these other forms of immigration relief and inform the court, your client may be seriously prejudiced if they later lose eligibility for SIJS-based adjustment of status—for example, through an adult criminal conviction. Pursuing all possible forms of relief is especially critical because the government’s policies and procedures regarding SIJS frequently change. USCIS may deny an I-360 petition that appears strong when you file it, or the immigration judge may deny you a continuance while you wait for a visa to be available to your client so that they can adjust status.

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You may choose to seek voluntary departure for your client as a backup plan in the event that the immigration judge denies all forms of relief to your client, if it is available to them. Please review the provisions governing voluntary departure at INA § 240B. If the child qualifies and is classified as an unaccompanied minor under 6 § USC 279(g)(2), then voluntary departure is available to them at no cost. 15 If you are considering voluntary departure in lieu of removal for your client, keep in mind that you should request it only if the child is actually going to leave the United States. Otherwise, the voluntary departure order will convert into a removal order if the

13

8 CFR § 1240.8(c). A full discussion of contesting NTA service and removability is outside the scope of this manual, but if you believe that your client’s NTA was improperly served, that they suffered regulatory or constitutional violations, or that DHS cannot otherwise establish your client’s removability, you must evaluate this option. For additional information, see Helen Lawrence, Kristen Jackson, Rex Chen, & Kathleen Glynn, Strategies for Suppressing Evidence and Terminating Removal Proceedings for Child Clients (2015). For additional information on the Supreme Court’s decision in Pereira v. Sessions, ___ U.S. ___, No. 17-459 (June 21, 2018) and filing a motion to terminate based on the NTA’s failure to list the time and place of the respondent’s removal hearing, see Dan Kesselbrenner, Elizabeth Simpson, Andrew Wachtenheim, & Manny Vargas, Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). 15 See TVPRA § 235(a)(5)(D)(ii). 14

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child fails to depart and they will be subject to additional penalties that can bar immigration relief in the future. 16 See Chapter 16 for a more thorough discussion of voluntary departure. Keep in mind that although the master calendar hearing may seem straightforward to you, it can be very intimidating for your child client. They may be concerned that the immigration judge might order them into custody or that something bad might happen to them. They may have had bad experiences with “officials” in the past—whether in the home country or here in the United States—and you should be sensitive to that possibility. Reassure the child that you will be there with them at the hearing and that they can turn to you if they have any questions or problems. 17 Before the hearing, you will need to register with the EOIR using the eRegistry system. 18 As of December 2013, attorneys and accredited representatives must be registered in order to practice before EOIR’s immigration courts and the BIA. EOIR may subject them to administrative suspension for failure to register. Registry is a two-step process. The first step is an online registration, and the second step is an in-person identity validation. Once both steps are completed, EOIR will notify the registrant that their account has been activated and will assign the registrant an EOIR ID number. The EOIR ID number must be included when an attorney or representative files a Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals or Form EOIR-28, Notice of Entry of Appearance of Attorney or Representative Before the Immigration Court. For more information on the EOIR registration process and to access the online registration, visit http://www.justice.gov/eoir/engage/eRegistration.htm. Before the hearing, you should also prepare a Form G-28, the Notice of Entry of Appearance as Attorney or Accredited Representative, to give to the ICE attorney in immigration court. Prepare it as described in Part II below except: (1) mark the box for “ICE” not “USCIS” and (2) write “removal proceedings” rather than “I-360.” Note that you must give the original G-28 to ICE to enter an appearance before DHS. You do not need to give the immigration judge a copy.

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Also prepare a Form EOIR-28, available on the EOIR website at http://www.justice.gov/eoir/eoirforms/eoir28.pdf. Make sure the information you provide about the child matches up with the information in the immigration court file, or be prepared to address any discrepancies. The EOIR-28 may be filed online once you have registered with EOIR as described above. Even if you file the EOIR-28 online, you must still serve a paper copy on ICE, by mail or in person at the child’s hearing. It is also best practice to bring a paper copy of the EOIR-28 to the child’s hearing even if you filed it in advance online, as it can take some time for the e-filed version to make it into the child’s physical immigration court file. Print the EOIR-28 on green paper and two-hole punch the top. Bring a copy to give to the ICE attorney and the original to give to the immigration judge or their clerk. If the child’s most current address is not reflected in the immigration court file, prepare a Form EOIR-33/IC, as described in § 9.5, to serve on ICE and give to the immigration judge. 16

See INA § 240B(d). For information on accommodations that can be made for children in immigration court proceedings, see EOIR, Memorandum: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children (Dec. 20, 2017), https://www.justice.gov/eoir/file/oppm17-03/download; ICPM 4.22. 18 ICPM 2.3(b)(i). 17

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§ 9.3

Attending the Master Calendar Hearing

On the day of the master calendar hearing, you should meet your client and their guardian or caseworker outside the courtroom where the hearing will be held or in the waiting room on the same floor where the hearing will be held. We recommend that you meet with your client and their guardian or caseworker at least a half hour before the hearing will begin. Depending on your local immigration court, we suggest that you consider telling your client to be at the court and in line to enter at least an hour before the hearing starts in case there are crowds. Your client must call you and call the immigration court if they have an emergency and are going to be late for the hearing. Failure to do so could result in your client’s being ordered removed in absentia. If your client is in federal custody, you may need to make other arrangements to meet up with them since ORR staff will be transporting them to the hearing. If your client is living with an undocumented parent or guardian, that person should consider not attending the court hearing with your client. It could be very risky for that person to come to court. Some judges order adult caretakers to attend court with a child respondent, but there is no provision of law that requires your client to bring their parent or guardian with them to court. You should consult with local practitioners prior to the master calendar hearing regarding the expectations of your client’s judge. If your client’s parent or guardian chooses not to attend the hearing, you should be prepared to argue to the court that your client’s caretaker is not required to attend and to remind the court that you represent the client not their parent or guardian and cannot ensure the caretaker’s presence at the hearing. Enter the courtroom as early as possible and have your client and their guardian or caseworker take a seat. You should check in on the case—typically by giving the clerk the last three digits of your client’s A number.19 You should also provide the clerk with the original EOIR-28 (if you did not file it electronically in advance or if the e-filed copy has not yet made it to the judge’s file) and the original EOIR-33/IC if needed (copies of which you must have already served on the ICE attorney). Usually, the sooner you check in, the sooner your case will be called. If you are a pro bono attorney, mention this. It may bump your client’s case to the beginning of the calendar.

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When the immigration judge enters the courtroom, everyone rises. Once the immigration judge takes the bench and everyone is sitting, they will begin calling cases in the order designated by their preferences. When your client’s case is called, approach the table with your client and client’s guardian or case worker and have a seat. If your client needs an interpreter and one is not there, alert the immigration judge since the immigration court is required to provide interpretation services for all hearings. 20 When you are ready to proceed, the immigration judge should begin recording the hearing. 21 Your client will also have to state their name and may be sworn in for the hearing. The immigration judge will ask for appearances. The ICE attorney will identify themselves for the record, and you should do the same, by providing your name and law office. If it has not already been done, the immigration judge will inquire if you are prepared to enter pleadings. If it is your first appearance with the child and you have recently initiated 19

ICPM 4.15(d). ICPM 4.15(f). 21 ICPM 4.11; 4.15(f). 20

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representation, you may request a continuance for attorney preparation time before you plead, but you should be prepared to move forward if the judge denies your request. If you have already appeared with the child, or you are otherwise prepared to plead, you will be asked to do so. This includes being asked, among other things, whether your client concedes proper service of the NTA, waives a formal reading of the NTA, and admits or denies the NTA’s factual allegations and charges. If you believe the NTA is legally deficient, tell the immigration judge you would like to file a motion to terminate based on these deficiencies before pleading to the NTA. See ICPM 4.15(i)(i) for details on what you should be prepared to address and ICPM Appendix M for a sample oral pleading. The immigration judge will then ask what relief your client will be seeking. At that time, you should state that your client is seeking Special Immigrant Juvenile status before USCIS and adjustment of status as a Special Immigrant Juvenile. If your client is eligible for any other immigration relief—for example, asylum—you must identify that relief as well. You should always state all the possible forms of relief your client might possibly be eligible for so you preserve their right to apply for them. The ICE attorney should provide you with biometrics instructions. 22 You should tell the immigration judge where you are in the SIJS procedure. If you have not yet received the SIJS findings, explain to the immigration judge where you are in the process and how much time you think it will take. Ask the judge for a continuance so that you can continue to pursue SIJS. Try to get a long continuance in case there is a delay on the state-court side.

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NOTE: Continuances in immigration court. An Immigration Judge “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. Traditionally, immigration judges have routinely granted continuances for adjudication of an I-360 petition or to wait for an immigrant visa to become available. However, recent policies—including the imposition of case completion “quotas” on immigration judges—have led many judges to be reticent to grant continuances. On July 31, 2017, the Chief Immigration Judge issued Operating Policies and Procedures Memorandum 17-01: Continuances. 23 While the memorandum confirmed the good cause standard, it also cast doubt on the need for continuances in many instances, including attorney preparation. 24 On August 16, 2018 the Attorney General—the head of EOIR and the Board of Immigration Appeals—issued a precedential decision in Matter of L-A-B-R-. 25 In the decision, the Attorney General also affirmed the good cause standard but held “that the immigration judge’s principal focus [must] be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.” 26 The Attorney General also held that “the immigration judge should not grant a continuance merely because the respondent expresses the intention to file for collateral relief at some future date,” 27 and “good cause does not exist if the [respondent]’s visa priority date is too remote to raise the prospect of adjustment of status above the speculative level”. 28 As of this writing, it remains unclear how immigration courts will 22

ICPM 4.15(k)(i). Available at https://www.justice.gov/eoir/file/oppm17-01/download. 24 Id. 25 27 I & N Dec. 405 (A.G. 2018). 26 Id. at 406. 27 Id. at 415-16. 28 Id. at 418. 23

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apply Matter of L-A-B-R-. You should be prepared to argue why good cause exists for a continuance in your client’s case and that your client’s adjustment of status is not speculative. We also recommend filing the I-360 petition prior to client’s hearing, if possible. Check with local practitioners to determine how your client’s judge responds to requests for continuances. If you already have the SIJS finding and have not yet filed the I-360 application, tell the immigration judge and explain that you will be filing an I-360 packet with USCIS. Ask the immigration judge for another master calendar hearing where you can update the court on the status of the I-360 application. Try to get as much time as you can, as I-360 adjudication times are currently over a year, far beyond the 180-day adjudication period mandated by statute. Ask the judge to waive your client’s presence at the next hearing so they do not need to miss school or experience the stress of attending court. Once the next hearing date has been set, the immigration judge or their clerk will hand you two copies of the hearing notice for the next hearing date; keep one and hand the other to the ICE attorney. Be sure not to leave the courtroom without your next hearing notice! You and your client are then free to go. § 9.4

Filing the I-360 Packet with USCIS

Section 9.16 of this chapter covers how to create the I-360 packet to be filed with USCIS. You should follow all of its instructions once you have gotten a copy of the child’s immigration files, as noted above, and obtained the SIJS findings, as outlined in Chapter 7, Part II. A sample I-360 packet is found at Appendix S. Once you have finished creating the I-360 packet (which includes Form I-360 and all supporting materials), you must file it with USCIS. Detailed instructions for filing the I-360 packet with USCIS can be found in § 8.10. Remember timing can be very important. You should file the child’s I-360 packet while the child is under 21, and ideally while still under juvenile court jurisdiction to preserve their eligibility for immigration relief. See Chapter 4 for more details. § 9.5

Keeping Addresses Current

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EOIR, ICE and USCIS must be notified if the child changes their address or if the attorney on record changes their business address. Note that this might not be necessary if the child moves from one confidential foster home to another, and the mailing address you are using remains the same since the confidential address cannot be shared. If the child is detained by ORR and changes addresses while in ORR custody due to an internal transfer, you do not have to inform EOIR or ICE of the change of address. ORR will report the address change. USCIS. Inform USCIS of the child’s change of address on Form AR-11, Alien’s Change of Address. For instructions on filing Form AR-11 with USCIS consult § 8.12. If you are using your firm address as the client’s safe address on the I-360 application, you do not have to notify USCIS about a change in the client’s address. EOIR. Inform EOIR of the child’s change of address on Form EOIR-33/IC Alien’s Change of Address Form/Immigration Court. You can download the form from EOIR at http://www.justice.gov/eoir/eoirforms/eoir33/ICadr33.htm. File the EOIR-33/IC in person at your local immigration court, or mail it via certified mail, return receipt requested, to the address of your local immigration court listed on the form.

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You must inform EOIR if you have submitted an EOIR-28 and you change your business address. Do this by updating your registration information in the EOIR eRegistry to include your new address and/or telephone number. Once the new address is added to your registration information, you must submit a new electronic or paper copy of the Form EOIR-28 with the “New Address” box checked. 29 ICE. Inform ICE of the child’s change of address by serving ICE with Form EOIR-33/IC before you file that form with the immigration court. Inform ICE of your change of address by serving ICE with a new EOIR-28 before you file that form with the immigration court. WARNING! An attorney must inform USCIS, EOIR and ICE of their change of business address for each case they have pending. Changing your address in EOIR’s eRegistry does not change it in any individual cases, nor does changing it in one client’s case automatically change it in the others. If an attorney changes jobs, they must withdraw from each case on which they are the attorney of record (assuming they are not taking the cases with them). § 9.6

Obtaining a Decision on the I-360 from USCIS

As of late 2016, all I-360 petitions are adjudicated by the National Benefits Center (NBC). USCIS will adjudicate your client’s I-360 in the same way, regardless of whether your client is in removal proceedings or filing an affirmative application. Please consult § 8.13 for common issues that may arise during adjudication. A.

I-360 adjudication issues

In many cases the USCIS officer may be able to adjudicate the child’s I-360 based on the information in the I-360 packet, but it is also possible that the officer may issue a Request for Evidence (RFE). This means that the USCIS officer may decide that they need additional evidence before they can adjudicate the child’s application. As of September 11, 2018, USCIS officers will have more authority to deny cases without issuing RFEs, so it is important that you submit all required initial evidence with your I-360 filing. 30 A discussion of the common issues that come up in RFEs is in § 8.13. Or you may have a pending I-360 after 180 days. This issue is also discussed in § 8.13. Notice of decision: Approvals, denials, and appeals

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B.

The USCIS officer will eventually make a decision on the child’s I-360 and typically will mail that decision to you. Approvals, denials and appeals are discussed below. Approval of the I-360. If USCIS grants the child’s I-360, they are classified as a Special Immigrant Juvenile as of the date of approval reflected on the approval notice. A sample I-360 approval notice is found at Appendix S. Note that the child is not yet a lawful permanent 29

ICPM 2.3(h). On July 13, 2018, USCIS issued a new Policy Memorandum, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_N OIDs_FINAL2.pdf. The memo makes it easier for adjudicators to deny SIJS and adjustment of status applications without first providing the applicant the opportunity to respond to the adjudicator’s concerns. 30

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resident. They will only become a lawful permanent resident if the I-485 is approved by USCIS or the immigration judge. Denial of the I-360 and appeal. If USCIS denies the child’s I-360, they cannot be classified as a Special Immigrant Juvenile. If this occurs, review USCIS’s written decision carefully. You may choose to file a Motion to Reopen or a Motion to Reconsider the denial. Either of these motions must be filed with USCIS on Form I-290B within 30 calendar days of service of the adverse decision (33 calendar days if the decision is mailed). Form I-290B is available at www.uscis.gov and its fee is $675.00. If you decide to file an appeal of the I-360 denial, this appeal must be filed with the USCIS Chicago Lockbox on Form I-290B within 30 calendar days of service of the adverse decision (33 calendar days if the decision is mailed). Please see the I-290B instructions and 8 CFR § 103.3 for more details, including information on additional evidence, briefs and oral argument before the Administrative Appeals Office (AAO). Also consult the AAO Practice Manual. Note that as discussed in § 8.14 you may also want to consider filing an action in federal court challenging the denial. If you choose to pursue appeal to the AAO or federal court litigation, please keep in mind that a precedent decision in your case might affect other children besides your client. CLINIC’s “Index of Unpublished Administrative Appeals Office Decisions on Special Immigrant Juvenile Status” is a valuable resource to help you assess a potential appeal. 31 Also, reach out to practitioners with SIJS expertise for guidance and support to make certain your appeal helps, rather than hurts, the chances for your client and other children to obtain this form of immigration relief. If the I-360 is approved through your appeal, you can then proceed to file the I-485 packet with the immigration judge, or seek termination of your client’s proceedings so that you can file the I485 with USCIS. If USCIS does not approve the I-360 on appeal to the AAO, there is no further administrative appeal you can take. You may choose to file an action under the Administrative Appeals Act in federal District Court (as mentioned above), but you will also need to pursue other forms of relief for the child in removal proceedings since the immigration judge has no power to reconsider the I-360 for the child.

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Administrative appeals office practice manual: In January 2015, the AAO introduced its first practice manual. The AAO Practice Manual describes rules, procedures and recommendations for practice before the AAO. It includes information regarding appeals, motions and certifications, and an overview of the office. The AAO Practice Manual can be found online at http://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-officeaao/practice-manual. § 9.7

Moving to Terminate the Removal Proceedings if Desired

Once USCIS has approved the child’s I-360, you may consider asking the immigration judge to terminate the child’s removal proceedings so that they can adjust status before USCIS. This approach can have real benefits for your client: they will not have the stress of immigration court 31

You can request the index online at https://cliniclegal.org/index-unpublished-administrative-appealsoffice-decisions-special-immigrant-juvenile-status.

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hearings and the threat of imminent removal, their adjustment of status application can be adjudicated in a less adversarial setting, and the case may be resolved more quickly with USCIS than with EOIR. Termination of removal proceedings by the immigration court may be the standard practice in your jurisdiction in these types of cases. However, many immigration judges will not terminate removal proceedings until an SIJS-based immigrant visa is available to your client. Please see Chapter 5 for more information on how to determine if an immigrant visa is available to your client. If you are considering trying to terminate the removal proceedings, reach out to local immigration court practitioners to discuss this option. Note that historically some advocates pursued this option earlier in the case, such as after they had the juvenile court’s SIJS findings but before they had an approved I-360. However, many immigration judges have changed their practice and will not terminate proceedings in this posture. Even if the immigration judge terminates your client’s proceedings over the ICE attorney’s objection, the Board of Immigration Appeals is likely to overturn the judge’s decision. If you plan to seek termination in your client’s case, it may be wiser to pursue termination strategies discussed in § 9.3 from the beginning of your client’s proceedings. Also note that if your client is in ORR care, and the immigration judge terminates removal proceedings, the child may be required to leave the ORR facility where they are living, thereby possibly losing important benefits. Thoroughly investigate this possibility and what other options might be available for the child before taking any action to terminate the proceedings. Finally, be aware that some advocates prefer to keep their client’s cases before immigration judges—particularly if they have a favorable judge who is particularly sensitive to SIJS cases.

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Practically speaking, most immigration judges will not terminate removal proceedings to allow for adjustment of status over the ICE attorney’s objection. Although ICE’s current policy is to oppose motions to terminate until a priority date is current, you may still want to ask the ICE attorney to join in your motion or agree not to oppose it. You can remind the attorney that under a recent memorandum, decisions regarding prosecutorial discretion “shall be made on a case-bycase basis.” 32 Sample language for an email to ICE regarding a proposed joint motion is found at Appendix CC. If the ICE attorney agrees that the case is appropriate for termination without prejudice, you or the ICE attorney should file the joint motion with the immigration judge at a master calendar hearing or at the immigration court clerk’s office. If the ICE attorney simply agrees not to oppose your motion, you should file an unopposed motion. In that motion, indicate that the ICE attorney informed you of their non-opposition; include the specific date, time, and method by which the ICE attorney communicated this. Do not plan on filing this motion on the day of your merits hearing without preparing for this hearing, since there is no guarantee that the immigration judge will grant the motion and you may have to go forward. Instead, file the motion at least fifteen days before the hearing, as required by the ICPM, and preferably much further in advance to allow enough time for you to receive a response before you need to begin preparing for the merits hearing. If the immigration judge terminates the child’s removal proceedings, you should immediately prepare and file an affirmative SIJS packet with USCIS as outlined in Chapter 8. Rather than 32

DHS, Memorandum: Enforcement of the Immigration Laws to Serve the National Interest, 4 (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-ImmigrationLaws-to-Serve-the-National-Interest.pdf.

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filing a new I-360, however, you would simply file a copy of the I-360 approval notice USCIS has given you. Proceed to complete the child’s case before USCIS using Chapter 8 as your guide. § 9.8

Obtaining the I-485 Fees or Fee Waiver

If you do not have your client’s removal proceedings terminated, you must move forward to file the I-485 packet with the immigration court. Before you can do so, you must pay the I-485 fee by mail to USCIS or you must obtain a fee waiver from the immigration judge. The current I-485 filing fee is $1140.00. You must also pay an additional biometrics fee of $85.00, bringing the total to $1125.00. The fees, luckily, are waivable for children seeking SIJS. Paying the fees and requesting fee waivers are addressed below. Fee payment. Fees may be paid by check or money order, drawn on a bank or other financial institution located in the United States, payable in U.S. currency to “U.S. Department of Homeland Security.” You can use one or more checks or money orders to pay the fees. We suggest you write the child’s name and A number in the “memo” section of the check or money order. Before you pay the filing fees, check the USCIS website at www.uscis.gov to make certain you are submitting the correct fee amount. If you submit the incorrect filing fees (too much or too little money), USCIS will return the check or money order to you. Additionally, if you use a personal check to pay the fees, be absolutely certain there are sufficient funds in the account. If a check bounces, USCIS not only will consider the applications improperly filed, but also may turn the check over to Debt Management for collection and levy substantial penalties up to and including the full cost of the applications if a new payment is not submitted in time. While personal checks are okay, to be safe, consider using a cashier’s check or a money order.

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Motion for a fee waiver. If the child is unable to pay the $1140.00 fee for the I-485, you may choose to file a Motion for a Fee Waiver on their behalf with the immigration judge. 33 According to the ICPM, the immigration judge cannot waive the $85.00 biometrics fee. 34 A sample is found at Appendix T. In this Motion, you should explain that the fee is waivable, the child is unable to pay the fee, and that the child merits a favorable exercise of discretion. The ICPM states that the “request for a fee waiver must be accompanied by a properly executed affidavit or unsworn declaration made pursuant to 28 USC § 1746, substantiating the filing party’s inability to pay the fee.” 35 Note that if the child will need to file an I-601 with the immigration judge to waive a ground of inadmissibility, you should include in your motion a request that the I-601’s $930.00 fee also be waived. Be certain to follow the ICPM’s rules on the filing of motions with the immigration court, including serving ICE with a copy of the motion and providing the immigration judge with a proposed order.

33

ICPM 3.4(d). ICPM 3.4(e)(iii). Nonetheless, advocates in some jurisdictions report that immigration judges will waive the biometrics fees when a request is made. 35 ICPM 3.4(d). 34

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We suggest that you file the Motion for a Fee Waiver as soon as the child’s I-360 is approved and a visa number becomes available for your client. 36 You need to have the immigration judge’s order granting the fee waiver before you can send in your biometrics packet, as outlined below; otherwise, you must pay the fee. If you do not receive a decision on your motion within several weeks, call the immigration judge’s clerk to check on the request. With luck, the motion will be granted quickly. § 9.9

Completing the Biometrics Requirement

If you have the full fee payment ready or have the immigration judge’s order granting your Motion for a Fee Waiver and the $85.00 biometrics fee, you are ready to prepare and file the biometrics packet with USCIS. Note that “[f]ailure to timely comply with [the DHS biometrics] instructions will result in the application for relief not being considered unless the applicant demonstrates that such failure was the result of good cause.” 37 You should follow the DHS biometrics instructions carefully. Prepare the I-485 as outlined in Part II of this chapter, and include a full copy in the biometrics packet. Also include the full fee payment or the immigration judge’s fee waiver order and the biometrics fee, a copy of the EOIR28, a copy of the DHS biometrics instructions and a cover letter summarizing the packet’s contents. A sample biometrics packet is found at Appendix U. Once you have finished creating the biometrics packet, you must file it with USCIS. Note that you do not need to serve the immigration judge or ICE attorney with a copy of the biometrics packet. Mail the biometrics packet using a method that allows tracking—either overnight mail, certified mail with a return receipt or some other type of tracking and delivery confirmation—to: USCIS Texas Service Center PO Box 852463 Mesquite, TX 75185-2463

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The USCIS Texas Service Center will then issue you a receipt notice that you will later file with the immigration judge. Shortly afterwards, USCIS will send you a biometrics appointment notice for the child. At the biometrics appointment, USCIS takes data including fingerprints, a photo and a signature. The FBI and several other law enforcement agencies then can inform ICE of any criminal record (often including any juvenile delinquency record) or record of prior deportation or removal. The DHS biometrics instructions state that if you do not receive the appointment notice within three weeks, you should call USCIS at 1-800-375-5283. USCIS should schedule the biometrics appointment at the Application Support Center (ASC) closest to the child’s home. For a listing of ASCs, go to www.uscis.gov, click on “Tools,” then click on “Office Locator,” and finally click on “Application Support Centers.” Before the appointment, consider going to the local ASC and obtaining a copy of the data form used there. 36 It is also possible that an immigration judge may allow your client to file their adjustment of status application and conduct a hearing on eligibility before a visa is available for your client, although this is not the current practice. Filing an adjustment application would make your client eligible for employment authorization. You should consult with local practitioners about the practice in your local immigration court and to assess whether you should try to file your client’s adjustment application. 37 ICPM 4.15(k)(i).

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You can then create a packet for the child including a cover letter with instructions on the appointment, the original appointment notice, and the data form completed consistently with the child’s SIJS packet. A sample is found at Appendix U. Be sure the child brings their government-issued photo identification, such as a passport or consular ID card, to gain entrance to the appointment. If the child lacks this type of identification, reach out to local practitioners with SIJS experience. Find out what alternative forms of identification, like a school ID, are accepted at the child’s ASC. In some areas, advocates have created special procedures with USCIS for SIJS-eligible children who lack official identification documents. If you have concerns, you can go to the appointment with the child. (Note that it is not advisable to send an undocumented person to accompany the child to this or any other immigration-related appointments.) Each ASC has its own USCIS officer on site; ask to speak with that person or their supervisor if the child is denied access to their appointment. Once the child completes their biometrics appointment, USCIS will stamp their appointment notice. Keep this stamped copy in the child’s file; you will need to submit a copy in the I-485 packet to the immigration judge. § 9.10 Filing the I-485 Packet with the Immigration Court Section 9.17 of this chapter covers how to create the I-485 packet to be filed with the immigration court. You should follow all of its instructions once you have obtained the I-360 approval. A sample I-485 packet is found at Appendix V. Once you have finished creating the I-485 packet (which includes Form I-485 and all supporting materials), you must file it with the immigration court. Filing the I-485 packet at the immigration court clerk’s office and filing the I-485 packet with the immigration judge are described below.

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Filing the I-485 packet at the immigration court clerk’s office. The ICPM notes that “[d]ocuments are filed either with the Immigration Judge during a hearing or with the Immigration Court outside of a hearing.” 38 Unless the immigration judge informed you that you must file the I-485 packet in open court, you can file it with the immigration court clerk any time before the 15-day deadline prior to the child’s merits hearing. 39 If you file it fewer than 15 days before the child’s merits hearing, it must be accompanied with a Motion to Accept Untimely Filing. 40 You first must serve the ICE attorney with the I-485 packet. 41 You then can mail the I-485 packet to your local immigration court or you can hand deliver it. Make sure that the immigration court clerk stamps a copy for your file; you will later use it when filing the child’s I-765 Application for Employment Authorization. 42

38

ICPM 3.1(a). ICPM 3.1(b)(ii)(A). 40 ICPM 3.1(d)(iii). 41 ICPM 3.2. 42 ICPM 3.1(f). 39

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PRACTICE TIP: EService. In 2017, ICE implemented “ICE EService,” an online portal to allow electronic service of documents on ICE. 43 In order to use EService you will need to register for an online account and, for each case where you would like to use EService, register that case in the portal. You will also need to accept electronic service of ICE filings through the portal for all registered cases. Please note that participation in EService is voluntary and that paralegals and legal assistants are not allowed to use the service. If you choose not to use EService, you should consult with local practitioners on the best way to serve ICE; in some jurisdictions, ICE no longer accepts in-person service and you may be required to serve by mail. You can register for ICE EService at https://eserviceregistration.ice.gov/. Filing the I-485 packet at the master calendar hearing. If the immigration judge has informed you that you must file the I-485 packet at a master calendar hearing, or if you prefer to file it with the immigration judge rather than at the immigration court clerk’s office, meet again with your client to prepare for their next master calendar hearing. Give them information in writing about the hearing and go over what will happen at this hearing, just as you did for the first master calendar hearing. This master calendar hearing will be much like the previous one, except that now you are prepared to file the I-485 packet. When you are before the immigration judge and have stated that you are prepared to file the documents, hand a copy of the I-485 packet to the ICE attorney and note this service on the record (for example, by stating “serving the government” as you hand a copy of the filing to the ICE attorney). Then, after requesting permission to approach the immigration judge, hand the original I-485 packet to the immigration judge. Tell the immigration judge if any materials are missing from the I-485 packet that you intend to provide before the merits hearing. The immigration judge should then set a merits hearing for the child. Note that merits hearings can be set far out, even as far as several years, depending on the immigration judge’s schedule. Once the hearing is set, take your copy of the hearing notice and give the ICE attorney theirs. You and your client are then free to go. § 9.11 Obtaining a Work Permit

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Section 9.18 of this chapter covers how to create the I-765 packet to be filed with USCIS. You should follow all of its instructions once you have received the filing receipt from USCIS and have filed the I-485 packet with the immigration court. A sample I-765 packet is found at Appendix W. Once you have finished creating the I-765 packet (which includes Form I-765 and all supporting materials), you must file it with USCIS. Mail the I-765 packet using a method that allows tracking—either overnight mail, certified mail with a return receipt or some other type of tracking and delivery confirmation—or send by courier to the USCIS Chicago Lockbox. See the USCIS website for more information at http://www.uscis.gov/i-765. Note that you do not need to serve the immigration judge or ICE attorney with a copy of the I-765 packet.

43

ICE, What is EService? (2017), http://ailadc.org/downloads/ICE/ice_eservice_brochure_2017.pdf.

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NOTE: e-Filing. USCIS has instituted an electronic filing option for some of its forms. As of July 2018 however, USCIS will not allow electronic filing of an I-765. You therefore must submit the I-765 by mail or courier as outlined above. After the I-765 packet arrives at the USCIS Chicago Lockbox, USCIS reviews it for completeness—including signatures and any required initial evidence. If USCIS finds the I-765 packet complete, it will send you an e-Notification if you have requested one. It will also send you a receipt for the I-765. Once you have the receipt, you can sign up for electronic case status updates on the USCIS website. A note on e-Notification and case status updates is found at the end of § 8.9. USCIS normally will adjudicate the child’s I-765 and mail out the work permit after they complete their biometrics appointment. In some cases, it can take six months or longer for your client to receive their work permit and advocates have reported significant delays in the issuance of EADs. If your client’s I-765 has not been adjudicated within six months, consider making a service request through the National Customer Service Center by calling 1-800-735-5283. If the service request does not result in adjudication of your client’s work permit, you may want to make a case assistance request with the USCIS Ombudsman. You can access more information about making an Ombudsman request at https://www.dhs.gov/case-assistance. Once the child has their work permit, they can apply for a Social Security number. The child can then, in many states, apply for a state identification card. § 9.12 Preparing for the Merits Hearing

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Begin to prepare for the child’s merits hearing well in advance of the hearing date. Read ICPM 4.16 for a detailed description of this type of hearing, and go to immigration court to view a few merits hearings on your own—on the juvenile docket if possible. Be aware that although you have already filed the child’s I-485 packet, you must submit any supplemental materials to the immigration court no later than 15 days before the merits hearing unless the immigration judge gives you a different deadline. 44 This can include any applications for additional relief your client is seeking, any motions you want the immigration judge to consider (such as one for telephonic testimony or for a closed hearing), a witness list if you are calling witnesses besides the child, and a criminal history chart if the child has an arrest record. 45 It can also include a brief addressing the child’s eligibility for SIJS-based adjustment of status. See ICPM 4.19 for information on prehearing briefs. Pre-hearing conference. Consider requesting a pre-hearing conference with the immigration judge and the ICE attorney. The pre-hearing conference is a time to “narrow issues, obtain stipulations between the parties, exchange information voluntarily, and otherwise simplify and organize the proceeding.” 46 Also consider filing a pre-hearing statement together with the ICE attorney to narrow and reduce the case’s factual and legal issues. ICPM 4.18 discusses how to do both. If you are interested in pursuing these options, reach out to local immigration court

44

ICPM 3.1(b)(ii)(A); ICPM 4.16(b). See ICPM 3.3(c) & (f); ICPM 4.16(b); Appendix O. 46 ICPM 4.18(a). 45

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practitioners to find out how they are handled in your area. Advocates report varying levels of success in pursuing these pre-hearing measures. If you are not able or choose not to have a pre-hearing conference, consider calling the ICE attorney to narrow the issues in advance of the hearing. Such a conversation has several advantages. First, you can learn what questions and concerns the ICE attorney has about the case, which will allow you to better prepare. Second, the immigration judge may be pleased if you can report at the beginning of the merits hearing that you and the ICE attorney have spoken and narrowed the issues. This will save the immigration judge time, and it never hurts to start out with the immigration judge in a better mood. Finally, having a shorter hearing that focuses only on the necessary issues will decrease the stress on your client and reduce your own preparation time. Ensuring that the I-360 is valid and visa number is available. Note that you should also be certain that the child still has a valid approved I-360 and that a visa number corresponding to that approval will actually be available on the day of the merits hearing. If not, the immigration judge will not be able to adjust the child’s status that day. To ensure that the I-360 is still valid make sure your client does not fall into any of the I-360 revocation categories found at 8 CFR § 205.1(a)(3)(iv). See § 8.13 for a discussion of the revocation categories. If the client does, their I-360 will be deemed automatically revoked. Note, however, that USCIS has not yet amended 8 CFR § 205.1(a)(3)(iv) to conform to the TVPRA. As a result, some of the grounds listed there (such as the child’s turning 21 or becoming ineligible for long-term foster care) are now inoperative. Consult a practitioner with SIJS expertise if you are concerned about automatic revocation of your client’s I-360.

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Second, ensure that a visa number is available so that your client can adjust status on the day of the merits hearing, if approved. Check the U.S. Department of State Visa Bulletin at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html to make sure that the “fourth employment preference category”—a category of visas that has an annual cap and that includes the visas for Special Immigrant Juveniles and others outlined in INA § 203(b)(4)—is “current” (available). See Chapter 5 for more information on reading the visa bulletin. Even if your client had a “current” priority date at the time the immigration judge scheduled your client’s merit’s hearing, it’s possible that one is no longer available: the priority dates sometimes retrogress. If you check and learn that SIJS-based visas are not currently available, please contact practitioners with SIJS expertise to discuss how to proceed. Most likely the immigration judge will need to continue the child’s merits hearing until a visa number becomes available. They may, however, be willing to take testimony and set the case for a subsequent hearing to issue a decision once the child’s visa is current. The same is true if DHS has not completed the child’s background checks. Preparing the child for the merits hearing. Call your client and send them a letter informing them of the date and time of the merits hearing and the importance of attending. Also inform the child of the date and time when you want them to come to your office to prepare for the hearing. If the case is fairly straightforward, we recommend that you meet with the client to prepare at least one week before the hearing date so that you have time to deal with any new issues that may have come up since the last hearing. If the child has a delinquency history or other complicating facts, we recommend that you meet with the client to prepare at least one month before the hearing, and as many intervening times as necessary to properly prepare your client. You should

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set aside at least a couple of hours to meet with the child to prepare for the hearing—more if the case is particularly complicated, perhaps less if the child is very young. Also be sure to meet with and prepare the other witnesses, if any, that you plan to present. Ideally, an advocate should meet with the child multiple times to prepare the case. See Chapter 2. Read the description of the merits hearing below, and be prepared to give the child a clear idea of all of the things that will happen on the day of the hearing. Prepare a sample direct examination for your client and practice it with them multiple times to make sure they are comfortable answering your questions. Remember that this direct examination should focus on the child’s eligibility for adjustment of status, not on the underlying facts supporting the I-360. USCIS has already approved the I-360 and neither the immigration judge nor the ICE attorney can undo that approval in the hearing. Also prepare your client for cross-examination by the ICE attorney or questioning by the immigration judge, and run through a mock cross-examination with your client. If possible, have someone else, perhaps another attorney in your office or a legal assistant, play the role of the ICE attorney or immigration judge so that the child understands the seriousness of the hearing and does not feel attacked, even in a mock cross-examination, by their attorney. Alert the child to the possibility that their I-485 will not be approved on the date of the merits hearing if a visa number is unavailable or if ICE has not completed their background checks. Assure them that if this happens, it does not mean anything bad about their particular case. It simply means that the government needs more time to do its job. Make sure that the child and their family members understand this may happen so that they are not surprised or alarmed. If this is your first SIJS case and you would like help preparing the child for their hearing, please contact local practitioners with SIJS expertise. If you have identified other forms of relief for your client—for example, asylum—you must also prepare your client to put on the merits for those forms of relief unless the immigration judge has instructed you otherwise. That preparation is outside the scope of this chapter.

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Before the hearing, remind both the child and their adult caretaker that it is very important that the child attend the merits hearing on the scheduled date and time. Just as you did with the master calendar hearing, we recommend that you provide the child with your cell phone number or suggest that they leave you a voicemail at work if some emergency comes up and they will be late for the hearing—for example, if the guardian’s car breaks down or they are in an accident. If you know why the child is not present for the hearing on time, it will be easier to have the case put off until a second call. The child and their adult caretaker must be aware that their failure to appear at the hearing can result in an in absentia removal order—an order that can be difficult to rescind. 47 § 9.13 Attending the Merits Hearing At the merits hearing, the immigration judge evaluates the case before them and makes the decision whether or not to grant the child immigration relief. Because you have prepared your client carefully, both you and your client should be ready for nearly anything that may happen at this hearing. As with the master calendar hearings, meet the child at immigration court well in advance of the hearing time and check in promptly on the date of the merits hearing. Make sure that the child has access to food and the restroom before the hearing. Some advocates meet with 47

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their client at a café near or in the court building to make sure that the child has something to eat before the hearing, as the case may take several hours. When the immigration judge calls your case, proceed with your client to the appropriate table in the front of the courtroom. We suggest that the child’s adult caretaker remain seated in the courtroom to minimize the possibility that they will become involved in the substance of the child’s case if you do not want that to happen. If you want the courtroom cleared because of the sensitive nature of your client’s testimony, alert the immigration judge. 48 Although it should not be necessary given the guidelines found in ICPM 4.9(a)(i), you can consider filing a Motion for Closed Hearing in compliance with ICPM 4.9(a)(iii) before the hearing. Many advocates report, however, that it is sufficient simply to inform the clerk that you would like a closed hearing when you check in. How the merits hearing will proceed depends upon the immigration judge, the ICE attorney, and you and your client. No two merits hearings are the same. Typically, the immigration judge will go on the record, identify the proceedings, take appearances and confirm the child’s current address. 49 Although the ICPM notes that both opening and closing statements may be made, this is rarely done in immigration court. 50 If you are used to practicing in state or other federal courts, you will see that the immigration court proceedings are usually much less formal than those to which you are accustomed. The immigration judge will usually review their file and identify what evidence has already been submitted. They will then admit certain documents into evidence. This is your chance to object to any inappropriate documentary evidence that the ICE attorney has filed (for example, juvenile records obtained from a probation department in violation of state confidentiality laws). At this point, you should also turn over the I-693 Medical Examination Report in the sealed envelope to the ICE attorney. See Part II below on obtaining this document and ensuring that it is completed correctly. The ICE attorney will open it and confirm that it is acceptable. The immigration judge will also ask the ICE attorney if the child’s background checks have cleared and if a visa number is available and has been reserved. If the answer to both questions is yes, the case should go forward. If either answer is no, then the immigration judge may reschedule the hearing. Alternatively, the immigration judge may proceed but reserve decision until the background checks have cleared and/or a visa is available.

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If the hearing is going forward, the immigration judge may then do one of several things: They may ask if you have additional information—including testimony from your client or other witnesses—that you would like to present, they may take over the hearing and begin to question your client about their adjustment eligibility, or they may ask the ICE attorney if they have any questions for your client. If the questions have been narrowed by a pre-hearing conference, remind the immigration judge. If the questions have been narrowed by a pre-hearing telephone call with the ICE attorney, inform the immigration judge. If the immigration judge asks you for additional information, alert them that you have prepared a full direct examination for your client that you would like to get into the record. Proceed to ask 48

ICPM 4.9. ICPM 4.16(c). 50 ICPM 4.16(d). 49

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your client the questions you have prepared. If, instead, the immigration judge takes over the questioning, allow your client to answer and step in if your client becomes confused. Often the immigration judge’s line of questioning will mirror the one you prepared as a direct exam. If at the end of the immigration judge’s questioning, important topics remain unaddressed, ask the immigration judge for permission to ask several questions. If the immigration judge first gives the ICE attorney the opportunity to ask questions, be alert and object if necessary to prevent badgering or confusion. Ask the immigration judge for permission to ask follow-up questions if the ICE attorney’s cross-examination does not allow full and accurate information to come out. You will then do the same with any other witnesses you have. The witnesses will need to wait outside of the courtroom during the testimony of your client and any other witnesses. At some point in the merits hearing, the immigration judge may express concern about some issues in the case. For example, the immigration judge may take the position that your client falls into a ground of inadmissibility. If that ground is waivable for SIJS petitioners as outlined in INA § 245(h), point out the I-601 you have filed in your I-485 packet. If that ground is not waivable, for example the “reason to believe drug trafficker” ground, direct the immigration judge to the pre-hearing brief that you filed arguing that it does not apply in your case, and be prepared for oral advocacy on the issue. (See Chapter 17 for further discussion of this ground of inadmissibility.) If you have not prepared a pre-hearing brief on an issue the immigration judge raises, try to orally advocate for your client as best you can. Remember that you cannot testify on behalf of your client. If the immigration judge’s concern goes to facts in the case, you may be able to call your client back up to provide additional testimony. Some judges will allow a brief recess so that you can first discuss the issue with your client.

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Alternatively, the immigration judge may ask why your client is eligible to adjust status in the United States, rather than having to go abroad to adjust. In that situation, you can direct the immigration judge to INA § 245(h), which treats approved SIJS petitioners as paroled into the United States for adjustment of status purposes. The immigration judge may raise these and other issues and also allow the ICE attorney to be heard. In some cases, the ICE attorney may question whether the child is still eligible for SIJS-based adjustment of status if they are already 21 or their juvenile court case is already closed. Respond to the ICE attorney using the same arguments outlined in § 9.6 and § 8.13 related to I-360 RFEs. Although some SIJS-based adjustment of status hearings have been known to go on for hours and include multiple witnesses (particularly if the child has a serious delinquency record), many of these hearings are relatively short—thirty minutes or less. If the child has no inadmissibility issues and no serious factors that weigh against a favorable exercise of discretion, you may be pleasantly surprised at how quickly this part of the case may go. Note, however, that if you have other forms of relief you are seeking for your client, you will need to put on evidence to support them as well, and this may substantially increase the length of the hearing. After all of the evidence has been entered into the record, the immigration judge will indicate whether they are ready to issue a decision. Typically, immigration judges rule from the bench on SIJS-based adjustment of status cases. If the immigration judge indicates that they will make a decision at a later date rather than rule from the bench, they will either schedule the child for a follow-up hearing or indicate that they will mail you a decision. Keep your eye out for a decision in the mail, and check the EOIR automated number (1-800-898-7180) weekly to see if a decision 236

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has been issued. This is key since motions and appeals deadlines begin to run when the immigration judge issues their decision. § 9.14 The Immigration Judge’s Decision: Approvals, Denials and Appeals Whether it is at the merits hearing or later, the immigration judge will eventually make a decision on the child’s I-485. Approvals, denials and appeals are discussed below. Approval of the I-485. If the immigration judge grants your client’s I-485 and the order becomes final by ICE’s either waiving appeal or failing to file an appeal within 30 days of the judge’s order, your client is now a lawful permanent resident. A sample order granting this relief is found at Appendix Y. You should follow the instructions found on the USCIS “Notice to Individuals Granted Immigration Benefits by Immigration Judge or Board of Immigration Appeals (BIA).” These instructions should be given to your client in court or found at http://www.uscis.gov/benefitbyjudge. The instructions indicate that you should schedule an Infopass appointment for the child at the local USCIS office, which you can do at www.uscis.gov by clicking on the “Make an Appointment” link under the “Tools” tab. The child should bring a copy of the final order they received from the immigration judge and documents that establish their identity (such as their passport, work permit or state identification card) to the appointment. The “green card” (which is no longer actually green in color and instead may be different colors including pink) should arrive in the mail within 30 days of this appointment. If the card does not arrive within 60 days, follow the instructions at http://www.uscis.gov/benefitbyjudge to make an email or phone inquiry.

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Once the child’s green card arrives, examine it to make sure that all of the information is correct. If it is not, you will need to file a Form I-90 (discussed in the note below) to obtain a corrected card. Please note, however, that incorrect information on the green card does not change the child’s status as a lawful permanent resident. When you have an accurate green card, set up a time for the child to come in and pick it up personally. Before that meeting, review the child’s file and extract all original documents. Prepare a closing letter for the child. A sample is found at Appendix Z. It is critical that you advise your client of their rights and responsibilities as a permanent resident and that you warn them of the ways they might place their permanent residency in jeopardy. When you meet with the child, give them all originals, the green card, a USCIS “Welcome to the United States” guide (found at www.uscis.gov), an ILRC “Living in the United States: A Guide for Immigrant Youth” pamphlet (found at www.ilrc.org) and the closing letter. NOTE: Correcting, replacing, or renewing a lawful permanent resident card. If USCIS issues the child’s green card with incorrect information due to administrative error, you can file the Form I-90 at no cost to obtain a corrected card. Please review the I-90 and its filing instructions at www.uscis.gov. If the green card has an error not attributable to USCIS (e.g., the child’s name was spelled incorrectly on the application), you can still obtain a corrected card by filing Form I90, but you will have to pay the normal fee or obtain a fee waiver. You can also use the I-90 to replace a card that was lost, stolen, is expiring or needs to be updated to reflect the child’s name change (perhaps after an adoption). The fee for the I-90 in these circumstances is $455.00, not including the $85.00 biometrics fee. The fee is waivable. USCIS also requires that a lawful

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permanent resident child must file an I-90 within 30 days of turning 14 if their green card was issued before they turned 14, and they should do this by submitting an I-90 with the biometrics fee only. In any of these circumstances, if the child has received any adult criminal convictions or may otherwise have engaged in deportable conduct since becoming a lawful permanent resident, you should consult an expert immigration practitioner before filing the I-90 for the child because there may be a risk that they could be placed into removal proceedings. Denial of the I-485 and appeal. If the immigration judge denies the child’s I-485, the child is not a lawful permanent resident. Although their classification as a Special Immigrant Juvenile is not revoked, it does nothing to prevent the immigration judge from issuing a removal order against the child. This is exactly what the immigration judge will do if they deny the I-485 and any other forms of relief the child sought. If, however, you asked for voluntary departure for the child, the immigration judge may issue a voluntary departure order in lieu of a removal order. At this point, you should strongly consider filing an appeal with the Board of Immigration Appeals (BIA) if there are legitimate grounds to do so. Move swiftly. This appeal must be filed with the BIA on Form EOIR-26. The BIA must receive the appeal no later than 30 calendar days after the immigration judge’s oral decision or the mailing of their written decision. 51 The EOIR26 is available at the EOIR website at http://www.justice.gov/eoir/eoirforms/eoir26.pdf and its fee is $110.00. The fee can be waived. Please see the EOIR-26 instructions and the BIA Practice Manual (available at http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm) for more details, including information on briefs and oral argument before the BIA. If the immigration judge granted your client voluntary departure, consult an immigration expert about whether various appeals and motions you may file will stay the voluntary departure period.

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You can also consider filing a Motion to Reopen or a Motion to Reconsider the immigration judge’s decision if there are grounds to do so. This is distinct from filing an appeal. Consult ICPM 5.7 and 5.8 for information about these motions. Note that filing either of these motions does not stay or extend the deadline for filing an appeal and “[o]nce an appeal is filed with the Board of Immigration Appeals, the Immigration Judge no longer has jurisdiction over the case. Thus [these] motions [] should not be filed with the Immigration Court after an appeal is taken to the Board.” 52 Consult with a practitioner with immigration court expertise to explore your options. The BIA may grant the child’s I-485 on appeal or the immigration judge may reopen or reconsider the case and grant the I-485 before you file the BIA appeal. If this happens, follow the USCIS “Notice to Individuals Granted Immigration Benefits by Immigration Judge or Board of Immigration Appeals (BIA)” discussed above to obtain the child’s lawful permanent resident card. If the BIA denies your appeal, you may then be able to file a petition in federal court. Pursuing the case before the federal courts is outside the scope of this manual. You should immediately consult immigration experts with experience in federal court litigation. Keep in mind that there are strict filing deadlines following the BIA’s decision and that the federal courts may have jurisdictional limits on reviewing denials of I-485s.

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See 8 CFR § 1003.38. ICPM 5.7(g)–(h); ICPM 5.8(g)–(h).

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If you choose to pursue an appeal to the BIA or the federal courts, please keep in mind that a precedent decision in your case might affect other children besides your client. Reach out to practitioners with SIJS expertise for guidance and support to make certain your appeal helps, rather than hurts, the chances for your client and other children to obtain this form of immigration relief. PART II: CREATING THE I-360, I-485, AND I-765 PACKETS Many of the steps in creating the I-360, I-485 and I-765 packets for a defensive SIJS applicant mirror those procedures in an affirmative SIJS case, although there are filings at different times and in some instances, with different entities and/or locations. The procedures for creation of an affirmative SIJS packet are discussed in Chapter 8, Part I. Much of the following discussion will refer you to relevant sections in Chapter 8 that apply to defensive SIJS cases. § 9.15 General Guidelines for USCIS Forms As you work to create the child’s I-360 and I-765 packets for filing with USCIS, and the child’s I-485 packet with the immigration court, you should follow certain general guidelines about preparing USCIS forms. This includes using the most current versions of the forms (found at www.uscis.gov), answering all questions in the forms completely, clearly, and consistently, and including proper signatures. For an in depth discussion of each of these points consult § 8.4. Additional information on the forms to fill out for each of these packets and how to fill out each of the specific forms for these packets is found in Appendices K and L. § 9.16 Preparing the I-360 Packet for Filing with USCIS As outlined in Part I, you must file an I-360 packet with USCIS. The packet should provide USCIS with all of the materials it needs to classify your client as a Special Immigrant Juvenile. The following documents need to be included: Cover Letter Case Summary (optional) Order Regarding Eligibility for Special Immigrant Juvenile Status Form G-28 Notice of Entry of Appearance Form I-360 Petition for Special Immigrant Juvenile Status Proof of age

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1. 2. 3. 4. 5. 6.

Chapter 8 contains a thorough analysis of each of these documents with practice tips on how to prepare and assemble them. Please refer to Chapter 8 for more details. You may also use Appendices K and L to assist you in completing each USCIS form. Appendix K is a set of lineby-line instructions for filling out the forms. Appendix L is a set of annotated USCIS instruction sheets for each of the forms.

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§ 9.17 Preparing the I-485 Packet for Filing with the Immigration Court After USCIS approves your client’s I-360, you must file an I-485 packet with the immigration court. 53 The packet should provide the immigration judge with all of the materials they need to grant your client adjustment of status as a Special Immigrant Juvenile. Each step in the process is covered below. Please note that you must follow USCIS instructions when completing the forms, but you must also follow all of the rules found in the Immigration Court Practice Manual in preparing the packet for filing. A.

Complete each USCIS form

As noted earlier, please use Appendices K and L to assist you in completing the forms for the I485 packet including Forms I-485 and I-601 if needed. They contain a set of line-by-line instructions for filling out the forms and annotated USCIS instruction sheets for each of the forms. Please contact practitioners with SIJS experience if you have any questions. Form I-485/Application for Adjustment of Status to Lawful Permanent Resident. The Form I-485 Application to Register Permanent Residence or Adjust Status is used to apply to adjust the child’s status to that of a permanent resident of the United States. Without the approval of the I485, the child will not be a lawful permanent resident of the United States—even if their I-360 is approved. As of August 2018, the December 13, 2017 Form I-485 must be used. In support of the I-485, you must submit a birth certificate or other proof of age (translation into English is required), and Form I-693 Medical Examination Report. If applicable, you may also need to file a copy of a passport or Form I-94 showing lawful entry into the United States if such an entry was made, certified copies of court dispositions for any arrests or letters showing no charges were filed if the child has been arrested, and Form I-601 with supporting documents if the child needs a waiver of a ground of inadmissibility. Consult the following discussions on the I-601 and the information on obtaining the other supporting materials.

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NOTE: Changes to the Form I-485. USCIS recently updated the Form I-485, Application to Adjust Status. Among other notable changes, the new form has increased in length from six pages to 18 pages, the form instructions are now 42 pages, and the section on eligibility and inadmissibility has been expanded to include entirely new questions. For more information and guidance, see ILRC, Changes to the Form I-485, Application for Adjustment of Status (Jan. 4, 2018), https://www.ilrc.org/changes-form-i-485-application-adjustment-status-0. Form I-601/inadmissibility waiver. The Form I-601 Application for Waiver of Grounds of Inadmissibility is used to excuse, or “waive,” the grounds of inadmissibility that would otherwise bar the child’s adjustment of status. For a detailed discussion of the grounds of inadmissibility as they relate to SIJS-based adjustment of status, see Chapter 5. If there is doubt about whether the child falls into a waivable ground of inadmissibility, you may want to file an I-601 in an exercise 53

Note that in an affirmative SIJS case, both the I-360 and I-485 may be filed concurrently with USCIS, unless there is a reason to file the I-360 alone in advance of the I-485 (for example, there is no current SIJS-based immigrant visa available to the child, or the child has a prior executed removal order and the approved I-360 is needed to prevent reinstatement of the removal order).

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of caution. You can also either prepare and bring an I-601 to court and file it if needed or be prepared to request a continuance date to get one filed. (Note that unlike affirmative SIJS cases, the immigration judge may not be as flexible as USCIS in giving sufficient additional time to complete and submit the I-601 that is needed, so it is important to be prepared.) Note that the judgment whether the child falls into a ground of inadmissibility is not yours alone. A USCIS-approved doctor, not you, must decide whether the child falls into a health-related ground of inadmissibility. This process is described in Subsection C, below. If the doctor finds that the child triggers a health-related ground of inadmissibility, you must file the I-601 for the child. Similarly, if the immigration judge determines that an I-601 is required on another ground, you will be glad you either filed one or prepared one to be filed. The failure to file a needed I-601 will lead, in all likelihood, to the I-485’s ultimate denial. As noted above, however, many immigration judges may give short continuances to allow attorneys to prepare and file I-601s rather than deny the I-485s outright. Be aware that an approved I-601 waives only the grounds of inadmissibility identified on the form itself. If the child falls into a ground of inadmissibility that is not formally waived before the I-485 is approved, the government might later find that the child was not eligible to adjust status and the child could face renewed removal proceedings. Remember that to qualify the child for a waiver you must establish that it is “for humanitarian purposes, family unity, or when it is otherwise in the public interest” and that the child merits a favorable exercise of discretion. 54 Consult the discussion below for information on obtaining materials in support of the I-601. You should consult the I-601 instruction forms and consider submitting the types of materials described there, particularly those tied to the health-related grounds of inadmissibility if applicable. B.

Meet with the child to review each form

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Before submitting the I-485 packet to the immigration court, you must meet with the child and review the USCIS forms as you did when you prepared the I-360 packet. During this session, it is best practice to meet with the child alone, out of the presence of their parent, guardian, caregiver, social worker or probation officer. The child may be more reticent to disclose certain information you need for the forms—particularly answers to the questions regarding the grounds of inadmissibility in the I-485—if another adult is in the room. Use your best judgment when conducting this meeting, but keep in mind that the child is your client. You should prioritize getting accurate information from the child over possibly offending the adult by asking that person to leave the room. As you did with the I-360, review each question carefully with the child. Make sure that the child understands the importance of providing accurate information in the USCIS forms. If the child answers yes to any of the questions on pages ten through fourteen of the I-485—particularly if the child reveals that the police have arrested or cited them—and you did not already know that the answer was yes, you may need to re-evaluate the child’s adjustment of status eligibility. If you suspect that the child is not being forthright with you, remind the child that they will be fingerprinted by DHS and their arrest record will then be known and in all likelihood it will be brought up in immigration court against them. Remind them that your role is to advocate for and defend them and that you will not be able to fully do so unless they are honest with you. 54

INA § 245(h)(2)(B).

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C.

Obtain supporting materials

As noted above, the I-601, if needed, supports the I-485. In addition to these forms, you will also need the proof of age described in § 9.16, the I-485 USCIS receipt described in §§ 9.9 and 9.10, the biometrics appointment notice with the completion stamp described in § 9.9, and the I-360 approval described in § 9.6. In addition, you must obtain an I-693 Medical Examination Report (described below). You may also need additional juvenile court documents and materials to support an I-601, depending upon the facts of your client’s case. These last three items are discussed below. I-693 Medical Examination Report. You must submit a Form I-693 Medical Examination Report in a sealed envelope to the ICE attorney before the immigration judge can grant the child’s I-485. A doctor specially approved by USCIS (often referred to as a “civil surgeon”) must complete the I-693. The purpose of the I-693 is to inform the immigration judge whether the child falls into any of the health-related grounds of inadmissibility. These grounds of inadmissibility are found at INA § 212(a)(1) and discussed in detail in Chapter 5. To read about the procedures for the medical examination and tips in preparing your client for such an examination, consult § 8.7. Please be aware that the medical examination results recorded on the I-693 are generally valid for only 12 months. As a result, you should have the child’s I-693 completed relatively close to the time you plan to submit the I-485 packet to the immigration court. Juvenile court documents. In addition to the SIJS findings you already submitted to USCIS, you may also need additional juvenile court documents in support of the I-485. The I-485 instructions state that an applicant “must submit certified police and court records for any criminal charges, arrests, or convictions.” 55 Even if the child was charged and adjudicated in juvenile delinquency court, the instructions provide that the applicant, “must disclose all arrests and charges, even if the arrest occurred when you were a minor.… An adjudication of juvenile delinquency could also be relevant to the exercise of discretion. If you claim that an arrest resulted in adjudication of delinquency, and not in a conviction, you must submit a copy of the court document that establishes this fact.” 56 Guidelines on juvenile delinquency court documents are found in § 8.7.

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Documents supporting an I-601 Waiver. If you need to file an I-601 for your client, you should include documents to support this request that the immigration judge waive your client’s ground/s of inadmissibility. Recall, as discussed in Chapter 5, that to qualify for a waiver you must establish that it is “for humanitarian purposes, family unity, or when it is otherwise in the public interest” and that the child merits a favorable exercise of discretion. 57 Guidelines for the documentation you should present in support of an I-601 are in § 8.7. D.

Assemble the I-485 packet for filing with the immigration court

Unlike USCIS, the immigration court has very specific rules on how filing packets must be organized. Be certain to read ICPM Chapter 3 very carefully and follow all of its requirements 55

See USCIS, Instructions for I-485, Application to Register Permanent Residence or Adjust Status (Dec. 13, 2017), https://www.uscis.gov/i-485. 56 Id. 57 INA § 245(h)(2)(B).

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when assembling your I-485 packet—unless instructed otherwise by the immigration judge. A sample I-485 packet that complies with the ICPM is found at Appendix V and the main rules from the ICPM are highlighted here. The I-485 packet should contain, in this order: 1. 2. 3. 4. 5.

A cover page, Fee receipt or motion for a fee waiver, The I-485, Proposed exhibits with a table of contents, and The proof of service.

The cover page should include the caption (with the case name and A number) as specified at ICPM 3.3(c)(vi). You should use alphabetic tabs, starting with A, along the right side of the packet to divide the documents. You must paginate all documents by consecutive numbers placed at the bottom center or bottom right hand corner of each page. The table of contents for the supporting documents should identify the tab and page numbers of each document. You must two-hole punch the I-485 packet at the top. You should staple it or use removable binder clips. The packet should not be bound on the side or commercially bound, and the use of ACCOfasteners and paper clips is discouraged. All documents should be submitted on standard 8-1/2” by 11” paper, legibly copied, and singlesided. They must be in English or accompanied by an English language translation and certification of translation. If you are submitting a declaration in English by a person who does not understand English, you must include a certification of interpretation. You should submit the originals of the I-485 and I-601 as needed. You should submit photocopies, not originals, of supporting documents in the I-485 packet, but you must bring the originals to court for inspection.

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Once you have assembled the I-485 packet, make a complete copy set for the ICE attorney and a complete copy set for yourself. Then follow the detailed instructions on serving and filing the I485 packet outlined in Part I. Note that if the I-485 packet filing does not meet the specifications described above, it may be considered “defective” and be returned to you. If this happens, you will have to resubmit it correctly in order to get it considered by the immigration judge. The ICPM provides examples of improper submissions, including failure to file a fee receipt or fee waiver, failure to file a proof of service, and failure to comply with the language, signature, and format requirements. 58 § 9.18 Preparing the I-765 Packet for Filing with USCIS You may file an I-765 packet with USCIS once your client’s I-485 is on file with the immigration judge. 59 The packet should provide USCIS with all of the materials it needs to grant the child an Employment Authorization Document (EAD or work permit), including Forms I-765, I-912 and G-28. All of the documents necessary for the packet and each step in the process are covered below. 58 59

ICPM 3.1(d). Note that in an affirmative SIJS case, the I-765 is generally filed concurrently with the I-485.

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A.

Complete each USCIS form

As noted earlier, please use Appendices K and L to assist you in completing the G-28, I-765 and I-912 needed for this packet. They contain a set of line-by-line instructions for filling out the forms and annotated USCIS instruction sheets for each of the forms. Form G-28/Notice of Entry of Appearance. Complete the G-28 as outlined in § 8.5. Make sure to mark the “USCIS” box at the top of page two and insert “I-765” in the line provided for the form number(s). Form I-765/work permit application. The Form I-765 Application for Employment Authorization is used to apply for a work permit. USCIS can grant work permits to, among others, SIJS-eligible children with pending I-485s. There is no fee for this form if it is filed on the basis of a pending I-485 for which a fee has already been paid. Otherwise, the fee is $410.00. Form I-912/Request for Fee Waiver. The Form I-912 Request for Fee Waiver is used to ask USCIS to allow the child to file their I-765 packet without paying the USCIS fee. In the past, USCIS would accept an I-765 without a fee or fee waiver request upon proof that the immigration judge waived the filing fee for the underlying I-485. The current I-765 instructions, however, indicate that “If you did not pay the appropriate Form I-485 filing fee because your filing fee was waived or you are exempt from paying it, you must pay the Form I-765 filing fee or request that the filing fee be waived.” So unless your client paid the I-485 filing fee, you should include an I912 and supporting materials in the I-765 packet. 60 Children with SIJS-related applications typically will fall within at least two scenarios in which USCIS may grant fee waivers—those persons who earn below 150% of the Federal Poverty Guidelines and those with special “humanitarian or compassionate” concerns. Consult the USCIS website at http://www.uscis.gov/feewaiver for more information. To support an I-912 under the 150% theory for a child seeking or already having obtained SIJS, include a receipt or approval notice on a Form I-797 Notice of Action for an SIJS-based I-360. 61 Note that providing this required documentation is likely less onerous than documenting an entire household’s income and expenses, or documenting humanitarian and compassionate concerns—so do follow these instructions.

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B.

Meet with the child to review each form

Before submitting the I-765 packet to USCIS, you must meet with the child and review the G-28, I-765 and I-912 just as you did when you prepared the I-360 packet. See § 8.6 for more information on this step. C.

Obtain supporting materials: Photographs, identity document, proof of I-485 filing

In support of the I-765, you must include two identical color photographs of the child taken recently (we recommend no more than 30 days before filing the I-765 packet). They should be passport-style 2” by 2” photos showing a full-face, frontal view of the child. You should lightly 60

See 8 CFR § 103.7(c). USCIS does not require using the I-912 to request a fee waiver; another written request may suffice. You should strongly consider, however, using the I-912 for simplicity’s sake and to take advantage of the form’s SIJS-specific instructions. 61 See USCIS, Instructions for Request for Fee Waiver, 7 (Mar. 13, 2018), https://www.uscis.gov/i-912.

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print the child’s name and A number on the back of the photos with a pencil or felt-tip pen. See the I-765 instructions found at Appendices K and L for more details. You also must submit a copy of the child’s government-issued identity document showing the child’s picture, name and date of birth. Finally, you must submit a copy of the child’s I-485 receipt as well as evidence that you have filed the I-485 with the immigration judge. Information on these items is found in § 9.9 and § 9.10 above. D.

Draft a cover letter

A cover page is not required for the I-765 packet. Nonetheless, one may help in the initial processing and in the adjudication of the I-765 itself. The cover letter should identify you as the child’s representative and explain that the child is seeking employment authorization on the basis of a pending I-485. It should also list, in order, all of the documents and materials in the I-765 packet. This can serve as a checklist for you as you assemble the packet and will memorialize what you are giving to USCIS. E.

Assemble the I-765 packet for filing

Finally, you need to put together the I-765 packet for submission to USCIS. You should review the sample I-765 packet at Appendix W before you do so. Follow the tips found in § 8.9. Remember to submit the originals of the immigration forms as well as the cover letter and photographs. Submit photocopies of the child’s identity document and the I-485 receipt. For more information, you can also access USCIS’s most up-to-date packet assembly instructions by going to http://www.uscis.gov/forms/forms-and-fees/general-tips-assembling-applicationsmailing. Also note that you can submit a G-1145 and set up electronic case status updates for the I-765. PART III: REOPENING REMOVAL PROCEEDINGS FOR AN SIJS-ELIGIBLE CHILD

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This part instructs you how to file a Motion to Reopen for an SIJS-eligible child who has an unexecuted prior removal order issued by an immigration judge. The beginning parts of this chapter described how to apply for SIJS for a child in removal proceedings. A child with a prior removal order is not currently in removal proceedings. In fact, if a child with a prior unexecuted removal order is picked up by immigration authorities, they could be deported. Thus, in order to proceed with SIJS, you will first need to re-open the prior removal proceedings. Most times, a child with this type of removal order was placed into immigration court proceedings and received a removal order from either failing to appear for their hearing or appearing and having been denied all forms of immigration relief. If the child was simply stopped at the border and sent back outside of the United States without seeing an immigration judge, they would not have the type of removal order that can be reopened in this fashion. If you do not know whether your client has an unexecuted prior removal order, you can find out by filing a Freedom of Information Act Request (FOIA) described in § 9.1. If the immigration judge grants your Motion to Reopen, the child will be able to pursue adjustment of status in removal proceedings as described in Part I of this chapter. The child would be able to pursue adjustment of status before USCIS as described in Chapter 8 if the immigration judge goes one step further and terminates removal proceedings. This section covers

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how to assess whether to file a Motion to Reopen in your particular client’s case and step-by-step instructions on how to file if you do go forward. NOTE: Expiration of the Perez-Olano settlement agreement. Until December 13, 2016, ICE was required to join in motions to reopen for most children with approved I-360s under the PerezOlano Settlement agreement. However, this provision of the agreement expired on December 13, 2016 and ICE is no longer required to agree to reopen proceedings. You may still want to contact the Office of the Chief Counsel to see if ICE counsel will join in a motion to reopen; however, you should consult with local practitioners about ICE’s procedures and practices in joining motions to reopen in your jurisdiction. You should also pursue other means of reopening your client’s proceedings, described in detail in the remainder of this chapter. § 9.19 Obtaining a Copy of the Child’s Immigration Court File During your assessment of the child’s immigration case, as outlined in § 8.1, you may have discovered that the child has an outstanding removal order issued by an immigration judge. You could have learned this from the child herself or from the FOIA response that EOIR sent at your request. This means that the child is subject to removal from the United States at any time if DHS discovers them here. Be sensitive in explaining this to the child if they do not already know. Understandably, this news can be very distressing. You need a complete copy of the child’s immigration court file in order to assess whether, where, and when to file their Motion to Reopen. You must request a copy through a FOIA to EOIR if you have not done so already; it is not likely that you can simply request a file review as outlined in § 9.1. EOIR does not have a special FOIA form. 62 The Department of Homeland Security Freedom of Information/Privacy Act Request (Form G-639) should not be used to file such requests. We suggest that you submit the FOIA with a cover letter signed by the client and a DOJ-361 attached. A sample EOIR FOIA is found at Appendix AA. Review ICPM Chapter 12 and https://www.justice.gov/eoir/foia-facts for more information. Once you have the FOIA request completed, mail it to: 63

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United States Department of Justice Executive Office for Immigration Review Office of the General Counsel: FOIA/Privacy Act Requests 5107 Leesburg Pike, Suite 2600 Falls Church, VA 22041 File this request as soon as possible. EOIR will issue a receipt for the FOIA request and then will mail you a copy of the file in a month or two. Although it would be helpful to have a copy of the child’s A file from DHS before assessing the wisdom of filing a Motion to Reopen, unfortunately the Track Three FOIA process described in § 9.1 does not apply to people whose immigration court cases are already completed. This means that if you decide to submit a FOIA request to DHS, you may not receive the results for a year or two! Do not wait for these results; you need to act more quickly to prevent the child’s removal. 62 63

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§ 9.20 Preparing an I-246 Stay of Removal Packet Although we hope that ICE would not take steps to execute the child’s removal order before you can file the Motion to Reopen, you must not rule this out. As a result, you should prepare an I-246 stay of removal packet to halt the child’s deportation. Consult with local practitioners with SIJS expertise—particularly those who are familiar with the ICE Juvenile Coordinator for your region—to decide whether you should file this I-246 immediately or whether you should wait and only file it if ICE takes the child into custody. In the current environment of increased immigration enforcement, we generally recommend waiting to file the I-246 unless or until the child is actually picked up by ICE. Either way, be certain that the child has your business card and that they know to ask to speak with you immediately if they are arrested by the police or taken into ICE custody. You should prepare a letter for them to keep with them at all times, along with a copy of the G-28, that explains that they are eligible for SIJS and that you must be contacted before any actions are taken to remove them from the United States. The current Form I-246 is from October 2017. You can find it at https://www.ice.gov/sites/default/files/documents/Document/2017/ice_form_i_246.pdf, along with its instructions. As you will see, you must fill out the one-page I-246 with the child’s information and an explanation of why you are seeking the stay. You must put this together with: (1) a current and valid passport for the child; (2) a copy of the child’s birth certificate or other identity document; and (3) copies of dispositions for any arrests the child might have. Information on how to obtain these types of documents is found in Chapter 8. You must also submit “[e]vidence to support your claim that you should not be deported/removed from the United States,” which could include the juvenile court’s SIJS findings or the I-360 approval if you have one. You should also include a cover letter, with an explanation of why the child merits a stay and why any of the materials (1)–(3) are missing. The fee for the I-246 is $155.00 and must be paid in cash or by cashier’s check or money order to “Immigration and Customs Enforcement” or “Department of Homeland Security.” A sample I-246 packet is found at Appendix BB.

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The I-246 must be filed in person with your local ICE Enforcement and Removal Operations office (ERO). A list of these offices is found at http://www.ice.gov/contact/ero/index.htm. If the child is already in federal custody, you can file the I-246 with the ICE Juvenile Coordinator for your region; the local ERO can connect you with this person. ICE will review the I-246 for completeness and may reject it for a number of reasons spelled out in the instructions, such as failure to submit any of the required documentation or inclusion of any inaccurate or untruthful information. If ICE accepts the I-246, it will photograph the child. It will also run criminal background checks on them if they are 14 or older. If ICE denies the I-246, it will very likely take steps to remove the child. If ICE grants the I-246, it will issue the child an Order of Supervision and require them to comply with its conditions. Note that ICE may revoke the stay for several reasons, including if the child is arrested or convicted of any crimes. As you can see, filing the I-246 puts the child directly on ICE’s radar—where they may not have been before. You must consult with local experts to determine whether and when you should file the I-246. Obviously if the child is already in ICE custody and awaiting removal, file the I-246 immediately with the ICE Juvenile Coordinator for your region to prevent their deportation and allow them to pursue SIJS-based adjustment of status.

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§ 9.21 Assessing Whether, Where, and When to File the Motion to Reopen Now that you have the EOIR FOIA results and an I-246 either granted or ready to be filed if needed, you must assess whether, where, and when to file the child’s Motion to Reopen. This analysis is very important. Reach out to experienced immigration practitioners if you have doubts about how to proceed after reading this section. A.

Answer a series of questions

Carefully review the copy of the child’s immigration court file provided by EOIR. Find the immigration judge’s final order. A sample order is found at Appendix Y. Answer the following questions: What type of order was issued? Read the final order carefully. Most likely it is a final removal order. Consult an immigration expert immediately if the immigration judge granted voluntary departure in lieu of removal. You will want to assess your client’s options and any creative legal arguments you might use in their favor, since if the child did not depart in time, the voluntary departure order converted into a removal order and they will be barred from adjustment of status for ten years. If so, you may be limited to filing the Motion to Reopen for adjustment of status only if ten years have already passed. 64 Was the removal order issued in absentia? If the child did not appear for their removal hearing, the final order will reflect that it was issued in absentia, meaning out of the child’s presence. You can still file a Motion to Reopen this type of removal order, but special rules apply. Additionally, if your client received an in absentia order you must demonstrate that the client did not receive proper notice or that “exceptional circumstances,” such as ineffective assistance of counsel, prevented their appearance in court to overcome a ten-year bar to immigration relief. See ICPM 5.9 and 8 CFR § 1003.23 for more details. Note that the filing of a Motion to Reopen an in absentia order stays the child’s removal automatically. 65 Thus if you file a Motion to Reopen based on an in absentia order, you need not file the I-246 stay of removal packet discussed in § 9.20.

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When was the removal order issued? Find the date on the final order. Motions to Reopen generally must be filed within 90 days of the immigration judge’s final order. If the Motion to Reopen was issued in absentia, the limit is 180 days. If the in absentia order was issued because the child did not receive proper notice of the hearing or was in state or federal custody and the failure to appear was not their fault, there is no time limit. Similarly, there is no time limit on Joint Motions to Reopen or ICE Motions to Reopen. You may also be able to argue that the time limit is subject to equitable tolling based on your client’s age or other circumstances, depending 64

Advocates are nonetheless encouraged to advance creative legal arguments should this situation arise. For an analysis of when the consequences of failing to timely depart pursuant to an order of voluntary departure should not apply, including, e.g., when the government has not followed its own regulations or when the failure to depart was not voluntary, see American Immigration Council, Voluntary Departure: When the Consequences of Failing to Depart Should and Should Not Apply (Dec. 20, 2017), https://www.americanimmigrationcouncil.org/practice_advisory/voluntary-departure-when-consequencesfailing-depart-should-and-should-not-apply. 65 8 CFR § 1003.23(b)(4)(ii).

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on the location of the immigration court that issued your client’s removal order. 66 In most cases, the child’s removal order was issued more than 180 days ago. As a result—unless the child falls into the exceptions for in absentia orders—you will need ICE to join the Motion to Reopen or argue equitable tolling to get around the time bar. NOTE: NTA service on minors. Make sure to carefully review the NTA’s certificate of service to ensure that it complied with NTA service requirements applicable to children. In the cases of children under 14, 8 CFR § 103.8(c)(2)(ii) mandates that the NTA shall be served upon the person with whom the child resides and whenever possible the “near relative, guardian, committee, or friend.” When the child’s parent is in the United States, the parent must also be served. 67 If the child is under 14 and in federal custody, DHS must serve the head of the ORRfunded facility where the child “resides,” 68 and upon release, the child’s ORR sponsor should be served. 69 In the Ninth Circuit, the service requirement for ORR sponsors applies to children up to the age of 18 years. 70 If your client was not properly served with the NTA, they are entitled to rescission of the in absentia order due to lack of notice. 71 Where was the removal order issued? Find the immigration court location on the final order. This is where you must file the child’s Motion to Reopen. This is true even if the immigration judge who issued the removal order has left the job or has moved to another immigration court. If the immigration court that issued the order is not your local immigration court, you will want also to add a request to change venue in the Motion to Reopen. That way, the child’s reopened removal proceedings will take place near where they live and where you can represent them. For example, if the child is living in Los Angeles, but their removal order was issued in San Antonio, you must file the Motion to Reopen with the San Antonio Immigration Court—but you can request that the case be transferred to the Los Angeles Immigration Court if it is reopened. Was a Motion to Reopen already filed in the child’s case? Review the complete immigration court file carefully. The child generally can only file one Motion to Reopen. If they have already filed one, you can get around this number bar through a Joint Motion to Reopen. You may also be able to allege ineffective assistance of counsel on the first motion. Consult an immigration expert if you suspect this was the case; ineffective assistance of counsel claims are outside the scope of this manual.

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66 For more information on equitable tolling, see American Immigration Council, The Basics of Motions to Reopen EOIR-Issued Removal Order (Feb. 7, 2018), https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/the_basics_of_motions_t o_reopen_eoir-issued_removal_orders_practice_advisory.pdf. We recommend arguing equitable tolling of the time limit even if your case is in a jurisdiction that does not explicitly recognize equitable tolling for motions to reopen. 67 See Matter of Mejia-Andino, 23 I & N Dec. 533, 536 (BIA 2002). 68 See Matter of Amaya, 21 I & N Dec. 583, 584-85 (BIA 1996). 69 See Mejia-Andino, 23 I & N Dec. at 536. 70 See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1163 (9th Cir. 2004). 71 See INA § 240(b)(5)(C)(ii). For additional information on NTA service requirements, see Helen Lawrence, Kristen Jackson, Rex Chen, & Kathleen Glynn, Strategies for Suppressing Evidence and Terminating Removal Proceedings for Child Clients (2015).

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B.

Evaluate the child’s options

Having answered all of these questions, you should be able to assess your next steps. This is an area where consulting with practitioners with SIJS expertise is essential. Whether to file. If your client was not properly served with the NTA, the INA is clear that they are entitled to rescission of the in absentia order due to lack of notice. 72 The ICPM and 8 CFR § 1003.23 also provide authority for the immigration court to reopen proceedings when there is new, material evidence. The regulations state that: A motion to reopen will not be granted unless the Immigration Judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. A motion to reopen for the purpose of providing the alien an opportunity to apply for any form of discretionary relief will not be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her by the Immigration Judge and an opportunity to apply therefore was afforded at the hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. 8 CFR § 1003.23. Read the INA and these regulations very carefully to assess the child’s chances of having their Motion to Reopen approved. For more information on the requirements, see § 9.22 below.

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In many cases, filing a Motion to Reopen for an SIJS-eligible child will be advisable. DHS often fails to comply with service requirements for children and thus your client may be able to rescind their in absentia order and reopen proceedings due to lack of service. In the rare case where service was proper, your client may still be eligible to reopen proceedings under the regulations and ICPM. 73 The child’s juvenile court involvement and the SIJS findings are the new facts justifying the motion; they are material and could not have been presented at the earlier hearing. 74 You may not want to file, however, if the child is barred from immigration relief because of a prior voluntary departure order that the child did not comply with, is in serious danger of losing SIJS or adjustment eligibility (for example, has a pending adult criminal case), or has such substantial negative equities that the child would more likely be removed rather than allowed to pursue reopened proceedings. You must involve the child in this decision-making process. To do this, you must make sure to apprise the child of the law, procedures, and decisions every step of the way so the child can make an informed decision. See Chapter 2 for tips on working with child and youth clients. Keep in mind that even if you believe reopening is warranted, the child may not want to go forward with the motion.

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See INA § 240(b)(5)(C)(ii) (referencing INA § 239(a)(1)). You may also want to argue that reopening is warranted under the Supreme Court’s recent decision in Pereira v. Sessions, ___ U.S. ___, No. 17-45, if your client’s NTA did not list the time and place of their proceedings. Although the BIA has sought to limit the applicability of Pereira (Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018)), litigation is ongoing and we anticipate that the Circuit Courts of Appeal will provide additional clarification on the scope of Pereira. 74 ICPM 5.7(b)(ii). 73

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Where to file. As outlined above, you must file the Motion to Reopen in the immigration court where the final removal order was issued. If you are asking ICE to join the motion, you will need to reach out to the local ICE Office of Chief Counsel connected to that immigration court. When to file. If the child is still within the 90-day window following their final removal order (or the 180-day window following their in absentia removal order), consider filing the Motion to Reopen immediately. This will save you the step of convincing ICE to join the Motion to Reopen or establishing an exception to the deadline. If the child is outside of their 90 or 180-day window, you face a decision. First, you can present the Motion to Reopen to ICE and then file it with the immigration court before you have an approved I-360 but presumably after you have the SIJS findings from the juvenile court. Second, you can file and get the approval of the I-360 before you present the motion to ICE and the immigration court. The benefit of the first approach is that you avoid delay; the benefit of the second approach is that you increase the chances of having the motion granted with an approval already in hand. If ICE refuses to join your motion, you should consider arguing that the time limit is subject to equitable tolling in your client’s case. To inform your decision, consult with practitioners with SIJS experience in the region where your motion will be filed. § 9.22 Preparing the Motion to Reopen If you and the child agree that you will file a Motion to Reopen, the next step is to prepare that motion following the governing regulations and the ICPM. In this discussion, we presume that you have already filed the I-360 packet and obtained an I-360 approval as outlined in § 9.4 and § 9.6. You also may have filed an I-246 packet as described in § 9.20.

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The motion. You should draft a concise motion that covers the basic facts of the case and all of the legal elements you need to establish. It is essential that you consult the INA and 8 CFR § 1003.23, the regulation that governs these motions, before you begin. Essentially, you will need to show that the evidence the child hopes to present and the relief they seek were not previously available to them; that they have complied with procedural requirements (including time and number limits and that they are submitting their proposed application for relief); that their removal order is not the subject of judicial proceedings and they are not the subject of a pending criminal prosecution; and that they merit a favorable exercise of discretion. If you seek to reopen an in absentia removal order based on lack of notice you should demonstrate that the child did not receive proper notice of their proceedings or that “exceptional circumstances,” such as age or ineffective assistance of counsel, prevented them from attending the hearing. Note that you may want to include a request to terminate the case without prejudice in your Motion to Reopen, to allow the child to adjust status before USCIS. Consult § 9.7 for the pros and cons of doing this. In addition, you may want to style your motion as a Joint Motion to Reopen Removal Proceedings and Terminate Without Prejudice or, Alternatively, Change Venue if the immigration court that issued the removal order is not your local immigration court. If venue is not changed, you and the child will be responsible for attending all hearings at the original immigration court, no matter where it is. See ICPM 5.10(c) for information on changing venue. Additional materials. In addition to the motion itself, you will need to file supporting materials. The ICPM lists the following materials for the motion packet: (1) Form EOIR-28; (2) cover page; (3) fee receipt or motion for fee waiver if applicable; (4) motion to reopen; (5) copy of the

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immigration judge’s decision; (6) a motion brief if applicable; (7) a copy of the application for relief if applicable; (8) supporting documentation with a table of contents; (9) Form EOIR-33/IC; (10) a proposed order; and (11) a proof of service. 75 In these cases, we suggest that you file all of these things except for the brief. You can typically include all of the information you need to convey in the motion itself. Alternatively, you can do a short motion and attach a brief. You should include a copy of the child’s Form I-485 in the packet, prepared according to the instructions in § 9.17. In addition, we suggest that you include declarations from you, the child and their caseworker (if applicable) as well as copies of the child’s birth certificate, their Notice to Appear, the juvenile court’s SIJS findings and the I-360 approval notice. Examples of all of these materials are found in the Appendices. When formatting the Motion to Reopen packet, keep in mind the ICPM rules. The supporting materials should be on 8-1/2” by 11” paper, separated by lettered side tabs, paginated in the bottom center or bottom right, and organized with a table of contents. 76 See § 9.17 for more details on preparing documents for filing. It is a good idea to submit your proposed Joint Motion to Reopen packet to ICE in the form that you would file it with the immigration court. § 9.23 Convincing ICE to Join the Motion to Reopen As discussed in § 9.21, in some cases you will need to convince ICE to join the Motion to Reopen in order to get around the time limits on filing. Remember, however, that there is no time limit if the motion to reopen is based on improper service, and you may be able to argue for equitable estoppel of the time limit in other situations. Even if filing a joint motion is not required, you may want to reach out to ICE. The immigration judge may look more favorably on the motion if ICE has already given its approval.

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In the past, it was not uncommon for ICE to agree to join motions to reopen for SIJS-eligible children. However, as of the time of this writing, ICE is opposing essentially all motions made by respondents in removal proceedings. If you decide to reach out to ICE regarding your motion to reopen, consult with local experts or call the ICE Office of Chief Counsel connected to the immigration court that issued the child’s removal order to find out the correct procedure for requesting that ICE join the Motion to Reopen. Some local offices require that you submit your request to a designated ICE attorney; others require that you submit it to the ICE attorney who handled the child’s case in immigration court. Usually you can get the ICE Office of Chief Counsel’s contact information by calling the related immigration court. The immigration court contact information is found at http://www.justice.gov/eoir/sibpages/ICadr.htm. We suggest that you draft a cover letter to ICE to accompany your proposed Joint Motion to Reopen packet. In this letter, give an overview of the case and focus on the factors ICE is supposed to consider when deciding whether to join your request. These factors are spelled out in a memorandum called Motions to Reopen for Consideration of Adjustment of Status issued by the former INS on May 17, 2001 and available at http://www.aila.org/Content/default.aspx?docid=16962. Be sure to review this memorandum before submitting your request to ICE. You may also consider citing to the February 20, 2017 75 76

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DHS memorandum, Enforcement of the Immigration Laws to Serve the National Interest, and highlight that it still allows for prosecutorial discretion and mandates that decisions “shall be made on a case-by-case basis.” 77 Also be sure to prepare a proposed stipulation and a G-28 to submit to ICE with your request. Instructions on the G-28 are found at § 9.2 and § 9.16. Consult with local practitioners about the best way to submit your request to ICE. Some jurisdictions require you to email your request to an email address used only for joint motions to reopen, while others allow you to submit your request to ICE by mail or by hand delivery. If you hand deliver the documents, you may be able to talk briefly with the assigned ICE attorney about the case. Realize, however, that the ICE attorney likely cannot make a decision until they have requested the child’s A file and had a chance to review it. Your request may be pending for weeks or months. If ICE agrees to join your motion, the ICE attorney may sign your proposed stipulation and return it to you. Alternatively, they may send you a short motion of their own for you to sign and return to them. Either way, the motion should be filed with the immigration court promptly as outlined in the following section. If the ICE attorney refuses to join your motion, talk to local immigration experts about how best to deal with this situation. Remember, you still may be able to file the motion without ICE’s joining it if the child fits into one of the time-limit exceptions. You may also file the motion and ask the immigration judge to exercise their sua sponte power to reopen the proceedings. 78 § 9.24 Filing the Motion to Reopen and Obtaining a Decision This section describes how to file the Motion to Reopen, how you will receive a decision on the motion, and what to do if the motion is denied. If you signed and returned ICE’s short joint motion to the ICE attorney, confirm that they will file it with the immigration court. Once they have, you should file an EOIR-28 with the immigration court on the child’s behalf. That way, the immigration court will notify you when a decision is made on the motion. Instructions on preparing the EOIR-28 are found at § 9.2. You can also check the EOIR automated system at 1-800-898-7180 to check on the progress of the motion.

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If ICE signed and returned the stipulation to you, you are responsible for filing the motion with the immigration court. See § 9.17 for general information on preparing documents for filing with the immigration court. You must include a proposed order with the motion. 79 You must also assemble the motion in the order stated in ICPM 3.3(c)(i)(D). There is no filing fee for a joint motion. There is also no fee for a motion to reopen an in absentia order based on lack of notice or the child’s having been in state or federal custody. Otherwise, you will need to pay the $110.00 fee to DHS and provide the immigration court with proof of having paid, or file a fee waiver. 80 You must serve the ICE attorney with a copy of the motion. 81 You then can mail the motion to 77

Available at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf. 78 ICPM 5.7(e)(vii). 79 ICPM 3.3(c)(i)(D). 80 ICPM 3.4(e)(i). 81 ICPM 3.2.

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the immigration court or you can hand deliver it; either way, you must include a proof of service. Make sure that the immigration court clerk conforms a copy for your file.82 Remember, again, that the motion must be filed with the immigration court that issued the child’s removal order; this may not necessarily be the immigration court closest to you. Once a Motion to Reopen an in absentia removal order is filed with the immigration court, a person’s removal is stayed pending resolution of the motion regardless of whether an I-246 has been filed. 83 The immigration judge typically will decide the Motion to Reopen on the papers alone. If they grant the motion, follow the instructions in § 9.25. If they deny the motion, you should consider filing an appeal with the BIA. See § 9.14 for details on BIA appeals. Be aware that you must act quickly; the BIA must receive your appeal no later than 30 days after the immigration judge mails their decision. If the BIA reopens the case on appeal, proceed to the instructions in the following section. If the BIA denies your appeal, you may then be able to file a petition in federal court. Pursuing the case before the federal courts is outside the scope of this manual. You should immediately consult immigration experts with experience in federal court litigation. If you are ultimately unsuccessful in reopening the child’s case, you will be unable to help them complete SIJS-based adjustment of status. As noted earlier, please keep in mind that a precedent decision from the BIA or federal courts in your case might affect other children besides your client. Reach out to practitioners with SIJS expertise for guidance and support to make sure that you present the best possible case to the appellate bodies. § 9.25 Completing the Child’s SIJS-Based Adjustment of Status

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Once the child’s removal proceedings are reopened—either by the immigration judge or by the BIA on appeal—you can then proceed to complete the child’s adjustment of status. Follow the instructions found in § 9.7 and Chapter 8 if the immigration judge has terminated proceedings against the child. Their SIJS-based adjustment of status case will now be an affirmative one. Follow the instructions found in § 9.8 through § 9.14 if the child’s removal proceedings are ongoing. Their case will continue to be a defensive one. Hopefully, in a short time the removal order formerly hanging over the child’s head will have been transformed into a green card with your help.

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PART III: OTHER FORMS OF IMMIGRATION RELIEF CHAPTER 10 U NONIMMIGRANT STATUS (“U VISA”) This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8

Overview of Benefits and Eligibility.................................................................. 255 Victim and Derivative Beneficiary Definitions .................................................. 258 Victim of Criminal Activity ............................................................................... 263 Suffered Substantial Physical or Mental Abuse ................................................. 264 Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution................................................................ 265 Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States .............................................................. 267 Admissible to the United States ......................................................................... 268 Other Documentation Requirements .................................................................. 270

§ 10.1 Overview of Benefits and Eligibility Another form of relief that certain children and youth may be eligible for is called U nonimmigrant status (often called a “U visa”). 1 Generally speaking, U nonimmigrant status is an immigration option for undocumented immigrant children and youth who have been the victims of certain serious crimes and suffered substantial abuse as a result; and who cooperated with the detection, investigation or prosecution of the crime. It may also provide immigration benefits for certain family members of the crime victim. U nonimmigrant status is available to children and adults alike; however, special considerations and strategies should be taken into account in petitions for children and youth. This chapter aims to serve as a primer on the substantive law for obtaining U nonimmigrant status and the special considerations in cases for children and youth. For more detailed information, particularly step-by-step procedural instructions, trouble-shooting, and sample petitions, declarations, cover letters and more, please see the Immigrant Legal Resource Center’s manual entitled, The U Visa: Obtaining Status for Immigrant Victims of Crime, available at www.ilrc.org. If granted U nonimmigrant status, an immigrant victim of crime will get the following benefits: • •

A nonimmigrant (temporary) immigration status for four years that allows non-citizen victims of crime to stay in the United States,2 Employment authorization to work legally in the United States, 3

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In this chapter, the terms “U visa” and “U nonimmigrant status” are used interchangeably. The “U visa” terminology has taken hold among advocates, although it can be slightly misleading as the statutory provision provides for a type of legal, nonimmigrant status, rather than a visa. 2 INA § 214(p)(6). 3 INA § 214(p)(3)(B); 8 CFR §§ 214.14(c)(7), (f)(7).

• • •

The ability to apply for lawful permanent resident status (a green card), 4 Eligibility to waive many of the inadmissibility grounds that would otherwise prevent most immigrants from obtaining any immigration benefits, 5 and The ability to help certain family members obtain immigration status as well.6

In some states, U nonimmigrant status petitioners may also be eligible for some forms of public benefits as soon as they file a petition. Refer to the U Visa Manual for information on eligibility for public benefits, which varies largely state by state. When Congress created the U nonimmigrant status in 2000, its intention was to protect victims of certain crimes who have gathered the courage to come forward, report the crime, and assist in the investigation or prosecution. The purpose is two-fold. First, it enhances law enforcement’s ability to investigate and prosecute crimes. Second, it furthers humanitarian interests by protecting victims of serious crimes. 7 Thus, it is important to remember that U nonimmigrant status is not only helpful to law enforcement but also intended to protect victims. There are five basic eligibility requirements for U nonimmigrant status. (Note that although these requirements apply to adults and children alike, with some distinctions which will be highlighted, the language below is tailored for advocates working with child and youth petitioners.) • • • •

•

The child or youth has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; The child (or in the case of a child under the age of 16, the parent, guardian, or next friend of the child) possesses information about the criminal activity; The child (or in the case of a child under the age of 16, the parent, guardian, or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; The child (or in the case of a child under the age of 16, the parent, guardian, or next friend of the child) has a certification from a federal, state, or local law enforcement authority certifying his or her helpfulness in the investigation or prosecution of the criminal activity; and The criminal activity violated the laws of the United States or occurred in the United States. 8

Each of these requirements will be discussed in greater detail in the following sections. There is an annual limit of 10,000 U visas per year. 9 This cap applies to principal petitioners and not to their derivative beneficiaries. See the discussion on derivative beneficiaries in § 10.2. This annual cap has created a backlog, as there are not enough U visas each year available for the 4

INA § 245(m). INA § 212(d)(14). 6 INA § 101(a)(15)(U)(ii). 7 See USCIS News Release, USCIS Publishes New Rule for Nonimmigrant Victims of Human Trafficking and Specified Criminal Activity, (Dec. 8, 2008). 8 INA § 101(a)(15)(U). 9 INA § 214(p)(2)(A).

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number of people who can be approved. As a result, current petitioners must wait years to have their cases adjudicated. Principal petitioners and their derivative beneficiaries in the United States who are adjudicated subsequent to the cap being reached are placed on a “waitlist” and can receive deferred action until the release of new visas in the following fiscal year. However, at the time of this manual’s writing (July 2018), even the wait to be placed on the waitlist is several years. We anticipate the trend to continue wherein the cap is reached early in the fiscal year and new U nonimmigrant petitioners will have to wait many years before they can receive deferred action and later U nonimmigrant status. PRACTICE POINTER: Filing U nonimmigrant status petitions. The building block for a U nonimmigrant petition is a Form I-918 “Petition for U Nonimmigrant Status.” 10 Petitioners for a U nonimmigrant visa must submit a completed Form I-918 with initial evidence. There is no filing fee for Form I-918. Biometrics for the background check require the correct fees. 11 However, the USCIS service center that adjudicates U nonimmigrant cases can grant fee waivers for U petitioners’ biometrics. All petitions for U nonimmigrant status—including those submitted from abroad, those with final orders of removal, and those who are currently in removal proceedings—must be sent by mail to the USCIS Vermont Service Center (VSC). The mailing address is: U.S. Citizenship and Immigration Services Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001 Special units at either the VSC or the Nebraska Service Center adjudicate all U nonimmigrant status petitions, no matter where the petitioner resides. Always make sure to check the USCIS website at www.uscis.gov for the most current form, fees, and filing instructions. For more information on completing Form I-918, the required biometrics, filing fees, and fee waivers please see the ILRC’s U Visa Manual. * PRACTICE POINTER: Distinguishing U nonimmigrant relief from other immigration options compared to special immigrant juvenile status (SIJS). Unlike SIJS, children and youth who are eligible for a U visa are not barred from helping their parents (unless the parents were the perpetrators of the qualifying crime). Children who petition for a U visa can apply for derivative status for their parents, as well as for their siblings and children. They can also petition for status for their family members after they receive U nonimmigrant status, or even after they apply for a green card. In fact, U nonimmigrants may help their family members obtain immigration status even if the family members are abroad and do not possess information about the qualifying criminal activity. Compared to the Violence Against Women Act (VAWA). Unlike VAWA (discussed in Chapter 11), for U nonimmigrant status, there is no requirement that the victim be related to the

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Form I-918 is available at www.uscis.gov under Forms. 8 CFR § 214.14(c)(1).

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perpetrator of the crime or that the perpetrator have any particular immigration status (i.e., for U nonimmigrant status the perpetrator of the abuse may be undocumented). Example: Sapna is an undocumented child under the age of 21. A doctor in her rural area of Alabama sexually abused many children. Sapna is participating in a criminal investigation and prosecution of the doctor for sexual assault. Sapna may be eligible for U nonimmigrant status, even though she is not related to the doctor and regardless of the doctor’s citizenship or immigration status. Compared to asylum. Unlike asylum (discussed in Chapter 12), in which an individual fears persecution in his or her home country, to qualify for U nonimmigrant status, generally petitioners must be the victim of certain crimes in the United States or crimes that are prosecutable under U.S. law. Therefore, victims of past persecution in the home country or crimes committed outside the United States on the journey to this country may find that those acts do not suffice for U nonimmigrant eligibility. Compared to family-based immigration. Unlike family-based immigration, to be eligible for U nonimmigrant status an individual does not have to have the requisite family relationships with relatives who are U.S. citizens or lawful permanent residents. There are significant distinctions in the bars to eligibility amongst the different forms of immigration relief, which may ultimately dictate which form of relief an advocate pursues for an individual client. U nonimmigrant status is one of the most “forgiving” forms of relief in that it potentially may waive most grounds of inadmissibility for U petitioners and can cancel an expedited removal order. See discussion in § 10.7 for more details. § 10.2 Victim and Derivative Beneficiary Definitions Noncitizen children and youth may benefit from U nonimmigrant status in one of four different ways. First, an immigrant child or youth who has been the direct victim of a crime may qualify as a principal petitioner. Second, an immigrant child or youth who has been the indirect victim of a crime may qualify as a principal petitioner. Third, an immigrant child or youth who has a family member that has been the immigrant victim of a crime may qualify as a derivative beneficiary of that family member’s petition. And fourth, an immigrant child or youth who has a family member with U nonimmigrant status may be petitioned for immigration status as a qualifying family member. The third and fourth methods require certain family relationships with the principal, discussed below. In addition, U.S. citizen children and youth who are the victims of qualifying crime may pave the way for their undocumented family members to apply for U nonimmigrant status. See the discussion at the end of this section. Direct Victims (Principal Petitioners). Children and youth may qualify as the direct victim of qualifying crimes if they suffered direct harm or were directly or proximately harmed as a result of the criminal activity. 12

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substantial injuries. Edwin was helpful in the criminal investigation and prosecution of his assailant in the felonious assault he suffered. Edwin’s friend Tony saw what happened that day and was also helpful to law enforcement. Edwin was the direct victim in this situation, as he suffered a direct harm as a result of the crime. Although Tony was also helpful in the criminal investigation and prosecution, he will likely be considered only a witness—not a victim—because he was not directly or proximately harmed. Therefore, Edwin may qualify for U nonimmigrant status while Tony likely will not. However, contrast that with the possibility provided by USCIS that some bystander witnesses may be considered direct victims in certain, unique situations. Included in the definition of direct victims are bystanders who suffer “unusually direct injury as a result of a qualifying crime.” 13 Example: Eighteen-year-old Bianca was 13 weeks pregnant when she witnessed a group of strangers in an altercation on her street. During this altercation, some of the men savagely beat another man. Although she was not targeted by or physical involved in the altercation, Bianca was terribly frightened and distraught by what she witnessed. As a result, she had a miscarriage. Because she was helpful in the criminal investigation and prosecution of the perpetrators, and she suffered an unusually direct injury as a result of the crime, USCIS has the discretion to grant Bianca U nonimmigrant status. 14 Indirect victims (principal petitioners). The second way in which children and youth may be eligible as victims is that they may be the indirect victims of qualifying crimes if they are the family member of a direct victim of a crime and that direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated.15 The definition of an “indirect victim” includes only certain family members in certain situations. To qualify as an indirect victim, the child or youth must be: • •

The child or spouse (which may happen in the case of older youth) of the direct victim; 16 or In the case that the direct victim is under 21 years of age, the indirect child or youth victim may qualify if he or she is the parent (most likely in the case of older youth) or unmarried sibling of the direct victim and under 18 years of age. 17

In addition to the requisite family relationship with the direct victim and the requirement that the direct victim is deceased due to murder or manslaughter or incompetent or incapacitated, the indirect victim must have also suffered substantial abuse from the crime and assisted in the investigation. A direct victim may be considered “incompetent” or “incapacitated” due to his or her physical condition, mental condition, or age. Therefore, if the direct victim was a minor at the time of the crime, other family members have generally been able to qualify as indirect victims 13

See Preamble at Federal Register, Vol. 72, No. 179, p. 53016-53017 (Sept. 17, 2007). Note that the above example was based on one provided by USCIS in the preamble to the U nonimmigrant status implementing regulations. Some advocates have been successful in these types of cases. DHS has stated in the preamble that they do not anticipate approving a significant number of such cases but will analyze them on a case-by-case basis. 15 8 CFR § 214.14(a)(14)(i). 16 Id. 17 Id. 14

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because the victim is “incompetent” or “incapacitated” due to age. Indirect victims qualify to petition for U nonimmigrant status as principal petitioners. Example: Jose is an undocumented 20-year-old. Jose’s four-year-old daughter, Katrina, was killed during a home invasion robbery. Although Jose was not the victim of the murder, he is the parent of a murder victim and can therefore be considered an indirect victim and apply for U nonimmigrant status as a principal petitioner if he is helpful in the criminal investigation or prosecution of Katrina’s murder. See the Practice Pointer below for information on how undocumented parents may be able to apply for a U visa based on crimes their U.S. citizen children suffered. Victims of crimes who are themselves culpable for the qualifying criminal activity are excluded from the definition of a victim. 18 Potential petitioners in those situations should be analyzed carefully. Example: Seventeen-year-old Tae was recently shot by another boy, making him the victim of felonious assault and attempted murder. However, he was shot in the middle of a dispute between two gangs (one of which he belonged to) that erupted into gunfire. In his case, he may be considered culpable for the crime of which he was a victim and therefore not qualify for U nonimmigrant status. Note that this scenario was the exact one given by USCIS officials when asked for an example of what constitutes culpability for a qualifying criminal activity. Derivative beneficiaries. Finally, children and youth may be eligible for U nonimmigrant relief as derivative beneficiaries of a principal petitioner when: • •

The principal is the child or youth’s parent or spouse (may happen with older youth); 19 or In the case that the principal is under the age of the 21 years, the youth may qualify as a derivative if he or she is the parent of the victim (who may be juveniles or children under immigration law themselves) or the sibling of the victim and under 18 years of age. 20

Section 805 of VAWA 2013 ensures that children who were under 21 at the time of filing will continue to be classified as children even if they turn 21 while the principal’s (or their own) application is pending. 21 Please note that derivatives who marry before their petitions are approved will no longer be eligible for U derivative status, no matter how old they are. USCIS also has the authority to revoke derivative status for derivatives who marry before they have adjusted status. 22 It is important to advise youth who qualify for U derivative status of the severe consequences marriage can have on their U visa petition and status.

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Unlike indirect victims, derivative beneficiaries do not need to have helped in the criminal investigation or prosecution; they do not need to have suffered substantial physical or mental 18 DHS, U Visa Law Enforcement Certification Resource Guide, available at http://www.dhs.gov/xlibrary/assets/dhs_u_visa_certification_guide.pdf. 19 8 CFR § 214.14(a)(10). 20 Id. 21 See Violence Against Women Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (Mar. 7, 2013). 22 8 CFR 214.14(h)(2).

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abuse; and they do not have to have been present in the United States when the principal nonimmigrant applied for status. Example: Twelve-year-old Carolina was the victim of felonious assault by gang members on her way home from school one day. Her jaw was broken in the attack, and she suffered substantial emotional trauma from the incident. She assisted the police in the investigation of the assault by giving a description of her perpetrators and identifying them. Carolina has two undocumented siblings—an older sister Jasmine, who is 16 years old, and a younger brother Anthony, who is eight years old. Their parents are also undocumented. Her mother is in the United States, but her father, Raul is still in Honduras. Carolina’s sister, brother, and parents may all qualify as derivative beneficiaries on her U nonimmigrant petition. Note, however, that if a family member committed the crime on which the principal petitioner’s U nonimmigrant eligibility was based, that family member cannot receive U nonimmigrant derivative status. 23 Example: Twenty-year-old Constanza was helpful in the criminal investigation of her husband Luigi in a domestic violence case. Both of them are undocumented. Constanza would like to apply for U nonimmigrant status and include her husband as a derivative. However, because Luigi was the perpetrator of the crime upon which Constanza’s U nonimmigrant status eligibility is based, he does not qualify for U derivative status. The requisite familial relationship between the principal and the derivative beneficiary must exist at the time of the filing of the U nonimmigrant status petition and its adjudication. 24 There is an exception to this rule in the case of derivative children who are born to principal petitioners after the filing of the petition. 25 Derivative beneficiaries may apply for status at the same time or after the principal’s U nonimmigrant status petition has been filed. Petitioning for qualifying family members. Finally, certain family members who were not previously included as derivative family members at the U nonimmigrant petition stage, and were not indirect victims themselves, can also obtain immigration status through a petitioning process for qualifying members. This process takes place at the time the principal U nonimmigrant holder is ready to adjust status and will allow some family members to enter the United States and adjust too. Note that siblings may be able to obtain U nonimmigrant status if they qualify as “indirect victims” and therefore apply as principal U nonimmigrant status petitioners, or if they qualify as derivatives at the U nonimmigrant status petition stage. They cannot be petitioned at the stage in which the principal U nonimmigrant adjusts. For more information about petitioning for qualifying family members please refer to the ILRC’s U Visa Manual.

8 CFR § 214.14(f)(1). 8 CFR § 214.14(f)(4). 25 8 CFR § 214.14(f)(4)(i). 24

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PRACTICE POINTER: U.S. citizen youth as victims with parents and other family members as principal petitioners/victims. Certain family members of U.S. citizen victims of crimes may qualify as the principal petitioner for U nonimmigrant status. This may be an important immigration option for undocumented family members of U.S. citizens, since they otherwise would also not qualify as derivatives, as a U.S. citizen victim could not apply as a principal U visa petitioner. Current USCIS policy is that the definition of a “victim” extends to include certain family members of “incompetent” and “incapacitated” victims, including family members of direct victims who are under 21 and are therefore “considered to be incapacitated due to their status as a child.” 26 USCIS headquarters officials have also stated in several public forums that the parents of U.S. citizen crime victims who are children could apply as indirect victim/principal petitioners and should mention that the direct victim is “incompetent” or “incapacitated” due to age. 27 Example: Hortencia’s 12-year-old daughter Elizabeth was the victim of abusive sexual contact by another family member—an uncle named Hugo. Elizabeth is a U.S. citizen so does not need and cannot qualify for U nonimmigrant status. She therefore cannot apply for it and include her undocumented mother Hortencia as a derivative. However, Hortencia was helpful in the criminal investigation of Hugo. She also suffered substantial mental abuse as a result of this crime because, as a childhood sexual abuse survivor herself, she experienced tremendous guilt and recurring nightmares when she discovered her daughter had been victimized. Elizabeth is a “child” under the immigration definition, and because of her age she can be considered “incapacitated.” Her mother Hortencia can be the principal petitioner for U nonimmigrant status as an “indirect victim.” This possibility of status for undocumented parents is particularly important for children and youth, as a parent’s undocumented status can be just as difficult for children as their own undocumented status. Parents’ undocumented status is a tremendous weight on children, regardless of whether they themselves are U.S. citizens. Children are often burdened and limited by their undocumented parents’ vulnerability and employment situations. Thus, obtaining legal status for undocumented parents can be a great alleviation even for U.S. citizen children and youth. Victim’s statement. Petitioners for U nonimmigrant status are required by the regulations to submit a signed statement with their Form I-918 filing that describes the facts of their victimization. 28 Petitioners who are under the age of 16, incapacitated, or incompetent do not have to submit a victim’s statement. In such cases, a parent, guardian, or next friend must submit one with as much of the requested information as possible. However, in the case that the youth is 16 or over, or the advocate decides to go ahead with a declaration from a client who is under 16 years of age, see Chapter 2 on working with children and youth for information on effective communication, building positive relationships, and avoiding re-traumatization with child and youth clients. Also

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Questions & Answers from USCIS Ombudsman’s Teleconferences, (Oct.17, 2008). USCIS Office of Policy and Strategy, Training by Anne-Marie Mulagha, The U Visa Eligibility & Certification Requirements, San Francisco, CA (Aug. 2008). 28 8 CFR § 214.14(c)(2)(iii). 27

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note that, although a statement from a parent, guardian, or next friend is required for children who cannot submit one of their own behalf, that does not mean that the parent, guardian or next friend is necessarily eligible for U nonimmigrant status himself or herself. § 10.3 Victim of Criminal Activity Qualifying crimes. In order to qualify for U nonimmigrant status, a child or youth must have been the victim of one of the crimes listed in the statute. This list of crimes includes: 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, or any similar activity in violation of federal, state, or local criminal law.29 Example: Twenty-year-old Abigail found out that she was the victim of theft when $20 cash and her laptop were stolen from her backpack. Abigail is probably not eligible for U nonimmigrant status because theft is not one of the crimes listed in the statute. Furthermore, she may not be able to show that she suffered “substantial physical or mental abuse” as a result of the crime, as is required for U nonimmigrant status. For the most part, the designated crime for U nonimmigrant status need not be a felony. It should generally be sufficient that the case is a misdemeanor because the statute does not require that a crime be considered a felony crime in order to qualify (with the exception of the statutorily listed “felonious assault”). Some of the statutorily listed crimes—namely, witness tampering, obstruction of justice, and perjury—carry a set of additional requirements under the regulations. 30 The statute contains language that “any similar activity in violation of federal, state, or local criminal law” can qualify because some criminal statutes will have different names from those listed in the U nonimmigrant status statute. 31 For example, in California, the state penal code does not include a crime called “domestic violence.” However, “corporal injury on a spouse” is a similar activity that law enforcement agencies in California can investigate and prosecute. When the crime occurred. Victims of past crimes are also still eligible for U nonimmigrant status assuming that the petitioner meets the other requirements. 32 As of this manual’s writing (July 2018) USCIS has been approving petitions in which the crimes occurred before the passage of the U nonimmigration status provisions in the statute in 2000, as long as a law enforcement 29

INA § 101(a)(15)(U)(iii). For one of those three crimes, a victim can qualify for U nonimmigrant status if the perpetrator committed the offense: 1) to avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring him or her to justice for other criminal activity; or 2) to further his or her abuse or exploitation or undue control through manipulation of the legal system. Because these crimes are written directly into the statute, there is no requirement that they be connected to any other statutorily listed criminal activity. 31 INA § 101(a)(15)(U)(iii). 32 USCIS Memorandum, Centralization of Interim Relief for U Nonimmigrant Status Applicants, p.4 (Oct. 8, 2003), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Mem oranda/Archives%201998-2008/2003/ucntrl100803.pdf (hereinafter the “Yates Memorandum”). 30

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agency can certify the victim’s helpfulness. In older cases, the bigger challenge will be in getting a law enforcement agency to certify the victim’s helpfulness. In some cases, law enforcement agencies may simply not have retained the old records. § 10.4 Suffered Substantial Physical or Mental Abuse An individual seeking U nonimmigrant status either as a direct or indirect victim must have suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity. 33 It is important to note that the abuse is not confined to physical abuse, but also includes mental abuse, which is defined as impairment of emotional or psychological soundness. 34 Example: Twenty-year-old Wang was an innocent bystander when he was shot in the spine on the street. As a result of this felonious assault, he is paralyzed from the chest down and has become clinically depressed. He has helped the police identify his assailant and is willing to help in the investigation and the prosecution of the crime. He can show that he suffered substantial physical and mental abuse with medical reports, psychological evaluations, and his own declaration. In determining whether or not the abuse suffered was “substantial,” USCIS will consider the severity of the injury suffered and the abuse inflicted. Substantial factors may include: • • • • •

Nature of the injury; Severity of the perpetrator’s conduct; Severity of the harm suffered; Duration of infliction of harm; and Permanent or serious harm to appearance, health, physical or mental soundness. 35

No single factor is determinative or a prerequisite. Furthermore, USCIS can take into consideration any aggravation of a victim’s pre-existing conditions. USCIS will consider abuse in its totality to determine whether or not it is substantial, recognizing that abuse may involve a series of acts or occur repeatedly over a period of time. 36 A series of acts taken together may constitute substantial physical or mental abuse where no single act alone rises to that level. 37 Documentation of substantial physical or mental abuse. As part of the U nonimmigrant status petition, petitioners must provide evidence of the substantial abuse they suffered. The most important evidence of the substantial physical or mental abuse suffered by a petitioner is their own detailed declaration. Again, advocates should tread carefully when working with clients on this part of the declaration, especially with children, to avoid re-traumatizing victims. Remember that children under 16 years of age do not have to provide their own declaration. A parent,

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INA § 101(a)(15)(I)(i)(I). 8 CFR § 214.14(a)(8). 35 8 CFR § 214.14(b)(1). 36 See Preamble at Federal Register, Vol. 72, No. 179, p. 53018 (Sept. 17, 2007). 37 Id.

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guardian or next friend may provide it. Also see § 2.5 on avoiding re-traumatization of children and youth. Petitions for the U nonimmigrant status are adjudicated using the “any credible evidence” standard. 38 This means that the immigration authorities may not insist upon primary source documents, but instead must consider all credible evidence submitted by the petitioner. Advocates and clients should be creative in providing evidence of the abuse suffered. When mental health records such as counselor’s reports or medical records are available, they should also be included with the U nonimmigrant petition if referenced in the petitioner’s declaration. Example: Fifteen-year-old Bita is the victim of abusive sexual contact by her neighbor. The police are investigating her neighbor, and Bita wants to press charges against him. She mentions in her declaration that she has sought the help of a therapist to help her deal with the substantial mental abuse she has suffered from the abuse. Because she mentions this in her declaration, she should also submit any corroborating evidence of the therapy she received, such as a letter from her therapist. Other helpful documentation includes declarations of witnesses to the abuse from family, friends, neighbors, teachers, coworkers, health care workers, etc.; medical and hospital reports documenting the effects of physical or mental abuse to the petitioner; reports or evidence of appointment with counselors, shelters etc.; or photographs that document the abuse. Any statements from counselors and therapists should explain why the facts as related to them are credible in light of their experience. Particularly in the case of children and youth, teachers and coaches who witnessed the child or youth recovering from the trauma experienced may be excellent sources for declarations to help document abuse. If the child’s school performance and/or grades declined as a result of being a victim of a crime, this may be worth highlighting, documenting, and explaining in the petition. § 10.5 Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution 39 In order to qualify for U nonimmigrant status, immigrant crime victims must provide proof from a U.S. law enforcement agency on Form I-918 Supplement B that they provided help to the criminal investigation or prosecution. The statute does not require that the criminal investigation have led to a conviction, or even a prosecution, of the case. 40 Being helpful with the criminal investigation alone should be sufficient as long as the victim remained helpful and responsive to requests from law enforcement. The statute does not require anything specific, such as the victim serving as a witness at trial or providing testimony. However, the case must have led to an investigation or prosecution in which the victim was helpful. In other words, if the police or other law enforcement agency were not contacted about the crime, the victim is likely not eligible for U nonimmigrant status yet. Example: Aida tells you that her husband had been physically abusing her 15-year-old child for years, so she left him six months ago. She would like to apply for the U visa as INA § 214(p)(4); 8 CFR §§ 214.14(c)(4), (f)(5). INA § 101(a)(15)(U)(i)(II). 40 Yates Memorandum, p. 4. 39

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the indirect victim of child abuse. However, she never contacted police to report the crime because she had always been afraid that if she contacted a law enforcement agency she could be deported. Aida is currently not eligible for U nonimmigrant status because she has not yet been helpful in a criminal investigation or prosecution. If she contacts the police now, it is unclear whether they will investigate the crime at this point in time. If they will, and they are willing to certify her helpfulness in the case, she may qualify for U nonimmigrant status. Example: Farhad was the victim of kidnapping ten years ago, many years before Congress created U nonimmigrant status. Farhad helped police in the investigation and prosecution of the crime, and his kidnapper went to prison. Farhad only found out about the U visa recently. He wants to know if he can apply for a U nonimmigrant status now. If Farhad can get a law enforcement official to certify his helpfulness in the case years ago, he may qualify for a U visa. Currently, USCIS is accepting and approving old cases, even if they occurred years ago, as long as the petitioner is otherwise eligible. The petitioner has an ongoing responsibility to cooperate with law enforcement. USCIS can, and sometimes does, contact the certifying law enforcement agency for more information about the petitioner’s helpfulness. The petitioner cannot refuse to provide reasonably requested assistance through the duration of the U nonimmigrant status. 41 Furthermore, the certifying official can withdraw certification any time while the U nonimmigrant status petition is pending or after it is approved if he or she believes the victim has not continued to be helpful. The law enforcement certification is essential to the U nonimmigrant status petition and required by statute. 42 Every request for U nonimmigrant status must include certification from a U.S. government official that the victim is being helpful, has been helpful, or is likely to be helpful in the criminal investigation or prosecution. 43 This certification can come from a federal, state or local prosecutor; a federal or state judge; a police investigator; or the District Attorney’s office or other local authority charged with investigating or prosecuting criminal activity. Child Protective Services, the Equal Employment Opportunity Commission (EEOC), the Department of Labor, and others also qualify as a certifying agency if they have criminal investigative jurisdiction in their respective area of expertise. 44 This certification must be submitted on a specific immigration form called “Form I-918, Supplement B.” This form is available on the USCIS website and must be signed by the U.S. law enforcement official within the six months prior to the date the U visa petition is filed. In addition, the certifying official must be the head of the certifying agency or a designated supervisor. 45 However, USCIS officials have stated that there is no specific form or letter from the law enforcement agency that must be included to indicate a designated staff

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8 CFR § 214.14(b)(3). INA § 214(p)(1). 43 INA § 101(a)(15)(U)(i)(III). 44 8 CFR § 214.14(a)(2). Sometimes these agencies conduct criminal investigations, and sometimes they do not. For example, some state or county child protective services agencies conduct criminal investigations while others do not. 45 8 CFR § 214.14(a)(3).

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member’s authority to sign the Form I-918, Supplement B. They will rely on the agency’s signature as proof of meeting this requirement. 46 PRACTICE POINTER: Helpfulness requirement for victims under 16 years of age. There is an important exception to the helpfulness requirement for victims who are under 16 years of age. These young victims can satisfy the helpfulness requirements if their parent, guardian or next friend provides the required assistance. 47 For the purposes of this exception, the victim’s age is established as the age of the victim on the day that the qualifying criminal activity first occurred. 48 A similar exception exists for victims who are incapacitated or incompetent. In those cases, a parent, guardian or next friend may fulfill the helpfulness requirement. 49 Example: Dot was two years old when her father murdered her mother and then killed himself. All three of them were undocumented. Dot was an indirect victim of the murder, as her mother was the direct victim. She was too young to be helpful to the criminal investigation. Her aunt, also undocumented, was able to be helpful to the criminal investigation and prosecution. Because Dot was under 16, her aunt’s helpfulness met the requirement under INA § 101(a)(15)(U)(i)(II) and (III) such that Dot can still apply as a principal petitioner for U nonimmigrant status. Note that unfortunately, although Dot’s aunt was helpful, she would not be eligible for the U nonimmigrant status unless she is able to show an injury to herself that is so unusual and direct she would qualify as a bystander direct victim of the crime. § 10.6 Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States To be considered a qualifying criminal activity for U nonimmigrant status, the crime must have violated the laws of the United States or occurred in the United States.50 This includes Native American reservations and lands, 49 military installations, 51 and U.S. territories and possessions. If the crime is one of the statutorily listed crimes but it occurred outside the United States, a Native American reservation, military installation, or U.S. territory or possession, it will only be considered a qualifying criminal activity if it violates a federal statute that specifically provides for extraterritorial jurisdiction. In such cases, it is not required that the prosecution actually occur—only that the petitioner be helpful in the investigation or prosecution. Example: Twenty-year-old Jamal was abducted in Culiacan, Sinaloa in Mexico. He was held by members of the local drug cartel for three weeks and suffered substantial mental 46

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U Visa Question & Answer Session with DHS Officials, National Network to End Violence Against Women National Conference, Lexington, KY (Nov. 14, 2007). 47 The regulations define “next friend” as “a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as legal guardian.” 8 CFR § 214.14(a)(7). 48 INA § 101(a)(15)(U)(i)(III); 8 CFR § 214.14(b)(3). 49 8 CFR § 214.14(b)(3). 50 INA § 101(a)(15)(U). 51 INA § 101(a)(15)(U)(i)(IV); 8 CFR § 214.14(b)(4).

abuse as a result. He would like to know if he can qualify for U nonimmigrant status since abduction is one of the crimes listed in the U nonimmigrant status statute. Although abduction is one of the crimes listed in the statute, the crime did not occur in the United States, and Jamal will need certification of his helpfulness in the criminal investigation or prosecution from a law enforcement agency in the United States. Because no local, state, or federal law enforcement agency in the United States has authority to investigate or prosecute the crime, he will not be eligible for U nonimmigrant status. However, contrast his case with the example that follows. Example: Chea was 12 years old when she began receiving tutoring at an American charitable organization located in her village in Cambodia. Soon after going to the organization for tutoring, the organization’s American founder began sexually assaulting Chea and was raping several other girls as well. Although Chea has never been to the United States and the crime occurred in Cambodia, she may qualify for U nonimmigrant status. Under the PROTECT Act, a U.S. law that makes sexual offenses committed against minors abroad by U.S. citizens punishable in U.S. courts, Chea may be helpful in a criminal investigation or prosecution that is conducted by a U.S. law enforcement agency. § 10.7 Admissible to the United States Finally, in order to qualify for U nonimmigrant status, U visa petitioners must be admissible. 52 Those who are inadmissible or become inadmissible must have the ground of inadmissibility waived. 53 A U nonimmigrant-specific waiver does exist and must be filed on Form I-192. Under this waiver, any ground of inadmissibility may be waived in the public or national interest for U nonimmigrant status petitioners, except for the inadmissibility ground applicable to perpetrators of Nazi persecutions, genocide, acts of torture or extrajudicial killings. 54 In this respect, U nonimmigrant status is extremely “forgiving” in terms of inadmissibility issues in comparison with other immigration options. However, a waiver for a U visa is ultimately a discretionary decision, based on a balancing of equities and negative factors, including inadmissibility grounds.

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Example: Twenty-year-old Lupe has been afraid to seek any immigration benefit because she has a number of immigration violations from her past. She originally entered the United States without permission, remained here for several years before returning to Mexico to visit her boyfriend, reentered the United States again without permission, and made arrangements to have her boyfriend smuggled into the country. Despite her fears about her immigration status, Lupe was helpful in the criminal investigation of her soccer coach when he began abusing her. If she meets the requirements for a U visa, she could apply for the visa and a waiver of all of the grounds of inadmissibility that she may have triggered. This is because under INA § 212(d)(14) she may be eligible for the special U visa waiver to waive those grounds. 52

INA § 214(a)(1); 8 CFR § 214.1(a)(3)(i). INA § 212(a); INA § 212(d)(3)(B). 54 INA § 212(d)(14). 53

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Because of its generous waiver, the U visa is one of the only forms of immigration relief available to people who have previous deportation orders and/or prior convictions that are inadmissible or deportable offenses. The waiver request must be filed on a Form I-192, “Application for Advanced Permission to Enter as a Nonimmigrant,” along with its filing fee or a filing fee waiver request. 55 The regulations do not outline any specific requirements for demonstrating “public or national interest,” but USCIS officials have noted that each Form I-192 should include a statement explaining the discretionary grounds for granting the waiver, details of the victimization, the reasons and circumstances for needing the waiver, and any supporting documentation. 56 In addition, USCIS often looks for the cover letter to address the three main criteria outlined by the BIA for determining whether to approve a waiver under INA § 212(d)(3): 57 the risk of harm to society if the applicant is admitted; the seriousness of the applicant’s prior violations; and the reasons for wishing to enter the United States. 58 As it is a discretionary waiver, it will be adjudicated on a case-by-case basis. For complete, detailed information on admissibility issues for U nonimmigrant status petitioners and waivers, please see the ILRC’s U Visa Manual. See also Chapter 5 on eligibility for adjustment of status for SIJS applicants, reviewing many of the grounds of inadmissibility, and also Chapter 17, addressing the immigration consequences of delinquency, which often affect admissibility. PRACTICE POINTER: U status and confidentiality protections. Petitioners for U nonimmigrant status are afforded protections under IIRIRA § 384 that prohibit government employees from making an adverse determination of admissibility or deportability using information provided solely by the perpetrator of the substantial physical or mental abuse and the criminal activity. 59 Government employees are also prohibited from using or disclosing any information about such cases in violation of IIRIRA § 384 unless the petition has been denied and all opportunities for appeal have been exhausted. 60 The penalty for such disclosure includes disciplinary action and a civil money penalty of up to $5,000 for each violation. 61 Officials from the Department of Homeland Security (DHS) and its related branches, including Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (USCIS), are prohibited from disclosing any information about a U nonimmigrant status relief request to anyone, especially a potential abuser or perpetrator in the case, unless the petition has been denied and all opportunities for appeal have been exhausted. 62 Therefore, a client’s request for U nonimmigrant

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8 CFR § 212.17(a); 8 CFR § 214.14(c)(2)(iv). U Visa Question & Answer Session with DHS Officials, National Network to End Violence Against Women national conference, Lexington, KY (Nov. 14, 2007). 57 The BIA’s expectation of these arguments is arguably erroneous since these factors stem from the case law regarding the INA § 212(d)(3) waiver—not the INA § 212(d)(14) waiver under which most U petitioners apply. 58 Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). 59 IIRIRA § 384(a)(1); see also ICE Memorandum, John P. Torres & Marcy M. Forman, Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005, p. 2 (Jan. 22, 2007). 60 IIRIRA § 384(a)(2). 61 Id. 62 8 USC § 1367(a). 56

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status relief is generally not public information that could be obtained by the perpetrator or other person. Example: Lin-Hua has filed a U nonimmigrant status petition after helping the police to investigate her stepfather’s criminal domestic abuse of her. Lin-Hua’s stepfather suspects she might contact USCIS for help, so he also calls them to tell them she has made up the charges against him. USCIS and other DHS agencies cannot make any adverse determination on Lin-Hua’s case based on information solely provided by her abusive stepfather. § 10.8 Other Documentation Requirements There are other documents and pieces of evidence that must or should accompany a U nonimmigrant status petition. For example, generally speaking, petitioners will need to have a valid, unexpired passport 63 (although a waiver for this requirement is available). 64 Most petitioners will need to file copies of their birth certificate and may need certain documents to be translated. For more detailed information on documentation and evidence necessary in a U nonimmigrant status petition, please see the ILRC’s U Visa Manual. In general, to be considered complete by USCIS, the U nonimmigrant petition should include: • • •

• •

Completed Form I-918, Form I-918, Supplement B, “U Nonimmigrant Status Certification” Evidence to establish: o The petitioner is a victim of a qualifying crime; o The petitioner has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime; o The petitioner possesses information concerning the qualifying criminal activity of which they were a victim; o The petitioner has been, being, or is likely to be helpful to a certifying agency; and o The criminal activity is qualifying and occurred in the United States or violated a U.S. federal law. A statement by the petitioner describing the facts of the victimization; and If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant,”65 with accompanying documentation and fee or fee waiver.

Advocates should also submit a cover letter with the U visa petition to provide a roadmap of the evidence that is being submitted in support of the client’s eligibility.

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PRACTICE POINTER: Federal foster care benefits and U nonimmigrants. On March 7, 2013 the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), combined with the 63

INA § 212(a)(7)(B); 8 CFR § 212.1. 8 CFR § 212.1(g). 65 8 CFR § 214.14(c)(2). 64

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Trafficking Victims Protection Reauthorization Act (TVPRA), was signed into law, extending access to federal foster care and unaccompanied refugee minor (URM) benefits for certain U nonimmigrants. Section 1263 of VAWA 2013 extends these federal foster care and URM benefits to “unaccompanied alien children” (UCs) who obtain U nonimmigrant status. UCs in Department of Children Services custody are eligible for the URM program. Advocates should notify the Office of Refugee Resettlement (ORR) about U-eligible youth and ensure these children are not kicked out of federal foster care upon turning 18.

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CHAPTER 11 VIOLENCE AGAINST WOMEN ACT RELIEF This chapter includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6

Overview of VAWA Provisions......................................................................... 273 Requirements for VAWA Self-Petitioning Children ......................................... 274 Children of the Self-Petitioner May Qualify for Derivative Status .................... 282 VAWA and the Child Status Protection Act (CSPA) ........................................ 283 Conditional Permanent Residence and Abused Immigrants .............................. 285 Cancellation of Removal for Abused Immigrants .............................................. 288

§ 11.1 Overview of VAWA Provisions The Violence Against Women Act (VAWA) provides critical immigration benefits to immigrant children and youth who are abused by a U.S. citizen or lawful permanent resident parent. The VAWA immigration provisions benefit abused spouses and children of U.S. citizens (USCs) and lawful permanent residents (LPRs), and abused parents of USCs. 1 Even if the parent was abused and that parent’s child was not, the child may still qualify for VAWA. Similarly, if the child was abused and the child’s parent was not, the noncitizen parent may also qualify for VAWA. 2 U.S. immigration law permits USCs and LPRs to petition for lawful status for certain relatives through a “family visa petition.” Too often, abusive spouses use this family visa process to control undocumented family members. Some refuse to file the family visa petition. Others threaten to withdraw the petition or even to call immigration authorities to deport a spouse or child who leaves, objects to the abuse, or calls the police to report the abuse. Congress did not want U.S immigration laws to be used as a weapon in an abuser’s arsenal, so it created VAWA to permit victims in this situation to gain lawful status on their own without having to rely on abusive spouses or parents to start and complete the immigration process. Under VAWA’s major immigration provision, an abused spouse or child of a USC or an LPR or an abused parent of a USC can file a VAWA self-petition for lawful status in the United States. Once a self-petition is approved, the self-petitioner will not be deported, will be qualified to work 1

Violence Against Women Act of 1994, Pub.L.No. 103-122, 108 Stat. 1902-1955 (hereinafter “VAWA”). On October 28, 2000, President Clinton signed into law the Battered Immigrant Women Protection Act of 2000 (“VAWA 2000”), as part of the Victims of Trafficking and Violence Protection Act of 2000. Pub. L. No. 106-386, 114 Stat. 1464 at §§ 1501-1513. On January 5, 2006, President Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”). Pub. L. No. 109-162, 119 Stat. 2960. VAWA was reauthorized again by President Obama in 2013. See Violence Against Women Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (Mar. 7, 2013). 2 In addition, parents who are being abused by a USC son or daughter may also self-petition. Although the VAWA immigration provisions may benefit the abused parents of USC children, this chapter will not focus on that category of eligible immigrants. For a more detailed discussion on VAWA for all eligible categories of individuals, please see the ILRC’s VAWA Manual available at www.ilrc.org.

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legally in the United States, may be eligible for some public benefits, and will be eligible to eventually adjust status (get a green card). Another VAWA provision allows for a conditional permanent residency waiver to waive the requirement that abused spouses or children need to jointly petition with the abuser to remove conditions of their resident status. Finally, an additional VAWA provision creates special rules to make it easier for an abused spouse or child of a USC or LPR to qualify for VAWA cancellation of removal while in removal proceedings. Cancellation of removal is only for people who are in immigration court proceedings and are facing removal (deportation) from the United States. This chapter provides a basic overview of eligibility for VAWA self-petitioners, termination of conditional status, and VAWA cancellation of removal, with a focus on how this relief affects noncitizen children and youth. In particular, this chapter will focus on how children and youth may qualify for relief as children of abusive USCs or LPRs; however, it is important to remember that there are other ways in which children and youth may benefit from VAWA provisions. Particularly in the case of older youth, they may qualify as abused spouses of LPRs or USCs themselves, or as parents of abused children. Thus, advocates should keep in mind that there are many nuances in eligibility for VAWA relief and should explore all options. For more detailed information, particularly step-by-step procedural instructions, trouble-shooting, and sample applications, please see the Immigrant Legal Resource Center’s manual, The VAWA Manual available at www.ilrc.org. VAWA relief can provide critical benefits to help abused noncitizens escape abuse. However, in the case of VAWA self-petitioners in particular, some people who may qualify for relief under VAWA may be hesitant to do so. They may feel that the process is too complex and requires them to relive what they have already been through. The process of describing the abuse may be re-traumatizing. Others may be concerned that applying under VAWA will cause their abusers to be arrested or deported, or that they will be criticized by their families or communities for talking to people outside of family about the abuse. Partnering with domestic violence advocates is critical to the success of a VAWA case. Individuals who are eligible for VAWA relief have often been extremely traumatized. As such, it is critical for advocates to be aware of the sensitivity in working with clients on these claims. See Chapter 2 on working with children and youth for other tips on effective communication, building positive relationships, and avoiding re-traumatization with child and youth clients. See also the ILRC’s VAWA Manual for in-depth advice on working with VAWA clients. § 11.2 Requirements for VAWA Self-Petitioning Children This section addresses the specific VAWA self-petitioning requirements as they pertain to children and youth. Each of these requirements is discussed in greater detail below. In order to self-petition under VAWA, a child or youth must prove the following: • •

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The self-petitioning child meets the definition of a “child” under immigration laws; The abuser is (or was) an LPR or USC; 3

INA § 204(a)(1)(A)(iv) (children of USCs); INA § 204(a)(1)(B)(iii) (children of LPRs).

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The LPR or USC subjected the self-petitioning child to battery or extreme cruelty; 4 The self-petitioning child is residing in the United States at the time the self-petition is filed, or if filing from abroad meets certain requirements; 5 The self-petitioning child lives or lived with LPR or USC parent; and The self-petitioning child is a person of good moral character. 6 The self-petitioner meets the definition of a “child” under immigration law

In order to self-petition as a “child,” the self-petitioner must be unmarried, be under 21 years of age or fall under certain exceptions (see more below), and have a qualifying relationship to the abuser. In immigration law, qualifying “child” relationships generally include: • • • •

Children born in wedlock; Step-children, whether born in or out of wedlock, if the marriage creating the steprelationship occurred before the child’s 18th birthday; Adopted children, if the adoption was finalized before the child’s 16th birthday and the child has been in the adoptive parent’s physical and legal custody for two years 7 (or is the sibling of an adopted child, adopted by the same parents before the age of 18); and Children born out of wedlock, if legitimated or acknowledged by the father.

The self-petitioning child does not have to be in the abuser’s legal custody at the time of filing the self-petition, nor will changes in parental rights or legal custody affect the status of the child’s self-petition. 8 Example: Armand and his mother Celeste are both abused by Celeste’s USC husband Rory. Armand is not Rory’s biological son, but Celeste married Rory when Armand was 10 years old, so he is considered Rory’s stepchild. At the age of 17, Armand moves out of the house because he cannot tolerate the abuse. Even though she is eligible, Celeste does not want to file a VAWA self-petition. Armand can file one on his own behalf as the stepchild of an abusive USC. There are two important exceptions to the above rules regarding child self-petitioners. One affects “children” who are over the age of 21 and the other impacts adopted children. “Children” who are over 21, but under 25. Individuals who are now over the age of 21 and were eligible to self-petition before they turned 21, but did not, can still file a VAWA selfpetition up to the age of 25 if they can show that the abuse was “at least one central reason” for the filing delay. 9 USCIS has clarified some of these requirements in an internal policy

4

Id. INA § 204(a)(1)(A)(v) (spouses, intended spouses and children of USCs); INA § 204(a)(1)(B)(iv) (spouses, intended spouses, and children of LPRs). 6 INA § 204(a)(1)(A)(iv) (children of USCs); INA § 204(a)(1)(B)(iii) (children of LPRs). 7 This definition was amended by VAWA 2005 to include exceptions to the two-year requirement for children adopted by abusive parents, as explained further in this chapter. 8 8 CFR § 204.2(e)(1)(ii). 9 INA § 204(a)(1)(D)(v). 5

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memorandum 10 to include the following: The qualifying abuse must have taken place before the self-petitioner turned 21 years old. “One central reason” for the self-petitioner’s delay in filing must be “one that is caused by or incident to the battery or extreme cruelty to which the selfpetitioner was subjected. The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but to be considered central, the nexus between the battery or extreme cruelty and the filing delay must be more than tangential.” 11 And under this provision, the self-petitioner must be unmarried at the time of filing. Adopted children. VAWA 2005 amended INA § 101(b)’s definition of a “child” by removing the two-year custody and residency requirement for abused and adopted children. This allows adopted children who have been battered or subjected to extreme cruelty by an adoptive parent (or by a family member of the adoptive parent residing in the same household) to self-petition as an “adopted child” without having to reside in the legal and physical custody of the adoptive parent first. 12 VAWA self-petitioners should know that if they succeed in self-petitioning as an adopted child, later they will not be able to help any “natural” or biological parent with an immigration benefit. 13 Example: Gina was adopted by her USC aunt Genova when Gina was 14 years old. Because Genova was abusive, Gina self-petitioned under VAWA. Later Gina was able to get her green card and eventually become a U.S. citizen. Now Gina would like to petition her biological mother with whom she always maintained a relationship. Unfortunately, Gina cannot petition her biological mother because she obtained an immigration benefit under her adoptive mother. “Aging out” of status. A self-petitioning child will not “age-out” (that is, lose status as a “child” by turning 21). Instead they are automatically considered a petitioner in the appropriate visa category for “sons or daughters” (that is, a child over 21 of a USC or LPR) if the self-petition is filed or approved before the child turns 21. 14 The self-petition of a son or daughter of a USC may be moved to the first preference category (for unmarried sons and daughters of USCs), while the self-petition of a son or daughter of an LPR is moved from the 2A (unmarried children of LPRs) to the 2B category (unmarried sons and daughters of LPRs). The self-petitioner does not have file any additional paperwork, and their priority date remains the original self-petitioning date. 15 Although it will take these self-petitioners longer to get their immigration visas (due to longer backlogs in visas in the sons and daughters category), they will maintain deferred action status and eligibility for work authorization during the entire waiting period. 16

10

USCIS, Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21; Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.14 (AFM Update AD07-02), (Sept. 6, 2011) available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/Sept/PM_VAWA_090211.pdf. 11 Id. 12 INA § 101(b)(1)(E)(i). 13 Id. 14 INA § 204(a)(1)(A)(iv) (children of USCs); INA § 204(a)(1)(B)(iii) (children of LPRs). 15 INA §§ 204(a)(1)(D)(i)(I) & (II). 16 Id.

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In addition, the Child Status Protection Act of 2002 (CSPA) may protect an individual from aging out and moving into a slower immigration category. See § 11.4 for more information on CSPA. Death of the abusive family member. If the abusive family member dies and the child is the self-petitioner, the child is no longer eligible for VAWA. The situation is different for children who are derivatives. Children of VAWA self-petitioners may continue to be eligible for derivative VAWA benefits even if the abuser dies while the principal’s/parent’s VAWA selfpetition is pending or approved. 17 See § 11.3 of this chapter for more information about qualifying as a VAWA self-petitioner’s derivative. Marriage of self-petitioning children. VAWA provides that the marriage of a self-petitioning child after approval of the self-petition shall not serve as a basis for revoking an approved selfpetition. 18 Otherwise, VAWA self-petitioning children must be unmarried at the time of filing the self-petition. Therefore, children and youth who are considering marriage should be advised to wait until after the approval of their self-petition to retain VAWA eligibility. B.

The abuser is (or was) an LPR or USC19

Self-petitioning children will qualify for VAWA only if they were abused by a USC or LPR parent, stepparent, or adoptive parent. If the abuser was deported or otherwise loses immigration status because of the abuse, the abused child may self-petition as long as they do so within two years of the abuser’s deportation. 20 If the abuser loses immigration status for any other reason after the VAWA self-petition is filed, that loss of status will not affect the self-petitioner’s case for self-petitioning or adjustment of status purposes. 21 Example: Carmen was abused by her stepfather, Kevin, an LPR. Kevin physically and emotionally abused Carmen. Carmen’s mother left Kevin, and Carmen filed a VAWA self-petition in April 2017 (her mother does not want to file one for herself). After the self-petition was filed, Carmen’s mother called the police for protection during a subsequent incident of domestic violence. The police arrested Kevin and notified ICE. ICE placed him in removal proceedings based upon a prior drug conviction, and he was ordered removed on October 15, 2017. His loss of LPR status does not affect Carmen’s self-petition since her self-petition was filed before Kevin’s loss of LPR status. Carmen does not need to show that the loss of status was connected to the abuse. Showing loss of status was due to an incident of domestic violence. In order to self-petition after an abuser has lost his lawful immigration status, the act or conviction must be considered sufficiently related to or due to an incident of domestic violence in order for the abused spouse to still qualify for VAWA self-petitioning. Example: Look at the example above, and this time assume that Carmen did not file her self-petition prior to Kevin’s losing his LPR status. She may file her self-petitioner up to 17

INA § 204(l). INA § 204(h). 19 INA § 204(a)(1)(A)(iv) (children of USCs); INA § 204(a)(1)(B)(iii) (children of LPRs). 20 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (USC abuser); INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (LPR abuser). 21 INA § 204(a)(1)(A)(vi); INA § 204(a)(1)(B)(v)(I). 18

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October 14, 2019, if she can show that Kevin’s loss of LPR status was due to an incident of domestic abuse. Carmen should argue to USCIS that, although Kevin was not deported due to a domestic violence conviction, it was an arrest during an incident of domestic violence that ultimately led to his removal. Naturalization of abusive LPR parent (or spouse). If an abusive LPR parent (or spouse) naturalizes, a pending VAWA self-petition may be reclassified as a self-petition of a child (or spouse) of a USC, even if the naturalization occurs after the divorce or termination of parental rights. 22 The result is that the self-petitioner will be immediately eligible to adjust their status to that of a lawful permanent resident, instead of having to wait for a priority date to be current in the family-based preference categories. C.

The LPR or USC parent subjected the self-petitioning child to battery or extreme cruelty 23

Battery or extreme cruelty includes behavior such as the following: • • • • • • •

Threatening to beat or terrorizing; Hitting, punching, slapping, kicking or hurting the person in any way; Emotionally abusing the person, including insults at home or in public; Forcing the person to have sex; Threatening to deport the person or turn them over to ICE, as part of a larger pattern of control and abuse; Forcibly detaining the person; or Engaging in a pattern of behavior that would not appear abusive if considered individually.

Abusive acts that may not initially appear violent but are part of an overall pattern of violence are also part of the definition of abuse. A person who has suffered no physical abuse may still be eligible to self-petition under VAWA.24 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty. 25 There is no exhaustive list of acts that constitute “battery or extreme cruelty,” and the definition of battery provided in the regulations is a flexible one that should be applied to claims of extreme cruelty as well as to claims of physical abuse. 26 Examples of abuse that may constitute extreme cruelty include extreme social isolation of the victim, interrogating their friends, coworkers, teachers or others, threatening the victim or the victim’s family, threatening to not feed or house the victim, treating the victim as a second

22

INA § 204(a)(1)(B)(v)(II). Id. 24 8 CFR § 204.2(c)(1)(vi) (abused spouses); 8 CFR § 204.2(e)(1)(iv) (abused children). 25 INS Memorandum, T. Alexander Aleinikoff, Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents, HQ 204-P, pp. 9–10 (Apr. 16, 1996). 26 Id. 23

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class citizen compared to other family members by making them sleep in the garage or eat after others have eaten, not allowing the victim any independence, and degrading the victim. 27 Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution would also be considered to be extreme cruelty for this purpose. 28 Violence against another person (other than the self-petitioner) or thing may be considered abuse if it can be established that the act was deliberately used to perpetrate extreme cruelty against the victim. 29 Proving extreme cruelty. The key to claims of extreme cruelty is to include evidence of the selfpetitioner’s subjective perception of the abuse. The self-petitioner must document in the selfpetition not only the acts and behavior of the abuser but also that the self-petitioner perceived those acts or behavior as extreme cruelty. This can be addressed in the self-petitioner’s declaration. Also, because acts of extreme cruelty often go unreported to police and medical personnel and happen without a witness, self-petitioners may have to rely solely on their own detailed declaration to describe the abuse suffered. It is therefore extremely important that the selfpetitioner comes across as credibly as possible. Facts should be checked to make sure they are consistent throughout the declaration, and corroborating evidence should be provided when available. For example, if the self-petitioner mentions that their sister witnessed the extreme cruelty, they should provide a declaration or affidavit from that sister. Or if the self-petitioner mentions they sought counseling from a therapist as a result of the extreme cruelty, they should provide a letter from the therapist. Example: Annette came as a child to the United States from the Philippines when her mother married Greg, a U.S. citizen. Greg began to fill out the forms for family visa petitions for Annette and her mother, but he never completed them. Now Annette is 18 years old, and Greg does not allow Annette to use the telephone or computer nor does he allow her to leave the house to go to school, to work, or to see her friends or family. Instead he expects her to clean the house and do the cooking all day. One day, about a month ago, while Greg was at work, Annette left to find out about online classes available through the nearby community college. Greg came home early and was waiting at the house when Annette returned. He yelled at her, threatening to turn her in to the immigration authorities and have her deported. When Annette’s mother spoke up in her defense, Greg threatened to slap Annette’s mother for interfering. Greg then told Annette, “You both better just shut up and do as I say if you know what’s good for you.” This is not the first time Greg has threatened either of them. Because of Greg’s controlling behavior and mistreatment, Annette became depressed and despondent.

27

See Gail Pendleton and Ann Block, Applications for Immigration Status Under the Violence Against Women Act, Vol. II, p. 436, AILA Annual Meeting Materials (2001). 28 Id. 29 Id.

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Greg’s behavior should qualify as extreme cruelty to Annette. The advocate should work with Annette to describe in detail Greg’s controlling behavior, his threats to call ICE, his threats of physical violence, and how Annette suffered from the abuse. D.

The self-petitioning child is residing in the United States at the time the self-petition is filed, or if filing from abroad meets certain requirements 30

The VAWA self-petitioning child does not need to have continuous physical presence in the United States to file the petition. A self-petitioning child who recently moved to the United States can qualify. Furthermore, noncitizen children living abroad can self-petition where: • •

The abusive parent is an employee of the U.S. government or member of the U.S. armed services; or The abusive parent subjected the self-petitioning child to battery or extreme cruelty in the United States. 31

For example, if the child was abused in the United States by a USC or LPR parent but then returned to her home country to seek the safety and comfort of other family members, she may still qualify for VAWA self-petitioning and be able to file her self-petition from abroad. E.

The self-petitioning child lives or lived with an LPR or USC parent

The self-petitioning child does not need to be currently living with the abusive parent. They must merely have lived with the abusive parent at some point. There is no specified amount of time the child must have lived with the abusive parent. For children, residence with the abusive LPR or USC parent includes any period of visitation in the United States. 32 Thus, a child can qualify even if she or he only lived with the abusive parent for a short time. The self-petitioning child is a person of good moral character 33

F.

To qualify for VAWA, self-petitioners must show that they have “good moral character.” The immigration laws do not define good moral character per se. However, INA § 101(f) states that a person will be barred from showing good moral character if they are or were: • • • • •

A habitual drunkard; Engaged in prostitution within the last ten years before filing the application; Engaged in any other commercial vice, whether or not related to prostitution; Involved in smuggling people into the United States; Convicted of, or have admitted to, committing acts involving moral turpitude (CIMT), other than (1) purely political crimes or (2) crimes that fall within the petty offense exception (for one CIMT, with a maximum sentence of 1 year or less, and an actual sentence of 6 months or less) or the youthful offender exception (for crimes committed

30 INA § 204(a)(1)(A)(v) (spouses, intended spouses and children of USCs); INA § 204(a)(1)(B)(iv) (spouses, intended spouses, and children of LPRs). 31 INA § 204(a)(1)(A)(v) (spouses, intended spouse, and children of USCs); INA § 204(a)(1)(B)(iv) (spouses, intended spouses, and children of LPRs). 32 INA § 204(a)(1)(A)(iv) (children of USCs); INA § 204(a)(1)(B)(iii) (children of LPRs). 33 Id.

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both when the self-petitioner was under 18 years of age and more than five years before applying for a visa or admission, but juvenile delinquency does not amount to a conviction or admission); Convicted of two or more offense for which the aggregate sentences to confinement were five years or more; Convicted of, or have admitted to, violating laws relating to controlled substances (except for simple possession of 30 grams or less of marijuana); Earning income derived principally from illegal gambling; Convicted of two or more gambling offenses; Given false testimony for the purposes of obtaining an immigration benefit; Incarcerated for an aggregate period of 180 days or more as a result of conviction; or Engaged in polygamy. 34

There are certain permanent bars to establishing good moral character as well, including a conviction for an aggravated felony, as defined in INA § 101(a)(43), where the conviction was entered on or after November 29, 1990 (except for a conviction for murder, which is a bar to good moral character regardless of the date of conviction) (again juvenile delinquency does not amount to a conviction); persecution of others; or participation in Nazi persecution or genocide. 35 Children under 14 years of age are presumed to be of good moral character and are not required to submit separate documentation to prove their good moral character. However, if the child is 14 years or older, then the self-petitioner must demonstrate good moral character for the past three years, 36 by showing that none of the bars to good moral character listed in INA § 101(f) applies. There are certain exceptions for VAWA self-petitioners to the good moral character bars. If any of the bars do apply, the self-petitioner will need to show that they are eligible for the special VAWA exceptions found at INA § 204(a)(1)(C). Under this provision, even if the self-petitioner has committed an act or has a conviction listed under INA § 101(f), that act or conviction does not bar USCIS from finding that the self-petitioner is a person of good moral character if (1) the act or conviction is waivable with respect to the self-petitioner for purposes of determining whether the self-petitioner is admissible or deportable, and (2) the act or conviction was connected to the abuse suffered by the self-petitioner. This bar is unique to VAWA and provides a way for some applicants to qualify despite certain convictions or conduct. Juvenile delinquency. It is important to note that juvenile delinquency dispositions are not considered criminal convictions or admissions and therefore usually do not qualify as statutory bars to good moral character. However, USCIS can consider them in the discretionary balance test for the good moral character determination. Care should therefore be exercised in cases of juvenile dispositions related to drug sales or prostitution, which might bar good moral character. 34

INA § 101(f). INA § 101(f). 36 USCIS may also investigate the self-petitioner’s background beyond the three-year period to determine good moral character, “when there is reason to believe that the self-petitioner may not have been a person of good moral character during that time.” USCIS Memorandum, William Yates, Determinations of Good Moral Character in VAWA-based Self-petitions, HQOPRD 70/8.1/8.2 (Jan. 19, 2005). 35

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A discussion of the immigration consequences of delinquency and crime is at Chapter 17. For more information on how to qualify for the exceptions to the good moral character requirement, please refer to the ILRC’s VAWA Manual available at www.ilrc.org. PRACTICE TIP: Assessing the risks for submitting a VAWA self-petition. It is important to check to make sure a VAWA applicant is indeed eligible to self-petition. Under USCIS guidance released in July of 2018, USCIS will likely refer a denied applicant to removal proceedings if that person is here unlawfully. 37 If you are unsure, do not file anything with USCIS until you have consulted with an expert in this area. § 11.3 Children of the Self-Petitioner May Qualify for Derivative Status Abused children are not the only ones who qualify under VAWA. VAWA also allows certain abused spouses and parents to self-petition for permanent residency in the United States. This section will discuss who qualifies to self-petition as an abused spouse, and how that person’s children can be included as derivatives. The self-petitioning spouse must prove: 1. Status of the abuser: The abuser is (or was) a USC or LPR; 2. Marriage: The self-petitioner is (or was) legally married to the USC or LPR abuser; and the marriage that forms the basis of the self-petition was a “good faith” marriage. 38 3. Abuse: The USC or LPR spouse subjected the self-petitioner to “battery or extreme cruelty” during their marriage; 39 4. Residence: The self-petitioner lived with the abuser; 40 and the self-petitioner is either residing in the United States, or if living abroad, was subjected to abuse by the USC or LPR spouse in the United States, or the USC or LPR spouse is an employee of the U.S. government or armed forces; 41 5. The self-petitioner is a person of good moral character. 42 Children of VAWA self-petitioners who are unmarried and under age 21 qualify for derivative status. 43 A VAWA self-petitioning spouse should list her children (unmarried, under 21 years of age) on the self-petition so that the derivative children can obtain the same benefits the principal VAWA self-petitioner (parent) receives, including deferred action status, work authorization, and eligibility to adjust to LPR status. The derivative child does not have to show that they have been abused. A derivative child of a self-petitioner will not “age out” by turning 21, and instead will automatically be considered a VAWA self-petitioner upon turning 21 for the preference category 37

USCIS, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, (June 28, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 38 INA § 204(a)(1)(A)(iii)(I)(aa) [spouses of USCs]; INA § 204(a)(1)(B)(ii)(I)(aa) [spouses of LPRs]. 39 INA § 204(a)(1)(A)(iii)(I)(bb) [spouses of USCs]; INA § 204(a)(1)(B)(ii)(I)(bb) [spouses of LPRs]. 40 INA § 204(a)(1)(A)(iii)(II)(dd) [spouses of USCs]; INA § 204(a)(1)(B)(ii)(II)(dd) [spouses of LPRs]. 41 INA § 204(a)(1)(A)(v) [spouses of USCs]; INA § 204(a)(1)(B)(iv) [spouses of LPRs]. 42 INA § 204(a)(1)(A)(iii)(II)(bb) [spouses of USCs]; INA § 204(a)(1)(B)(ii)(II)(bb) [spouses of LPRs]. 43 INA § 204(a)(1)(A)(iii) (children of abused spouses and “intended spouses” of USCs); INA § 204(a)(1)(B)(i) (children of abused spouses and “intended spouses of LPRs).

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of unmarried sons and daughters and will retain the parent’s original self-petition date as their priority date. 44 Similarly, if the child of a VAWA self-petitioning spouse of a USC abuser marries after being approved for VAWA derivative status, they will automatically be considered a petitioner for third preference (married sons and daughters of USCs). 45 No new petition need be filed. 46 Example: Luciana was abused by her LPR husband, Nelson. He did not abuse Luciana’s daughter, Sandra, and Sandra did not live with Luciana and Nelson. Luciana’s situation met all the requirements for VAWA, so she submitted a self-petition and included 19year old Sandra’s name on it. Luciana and Sandra both received “deferred action” (see Practice Pointer on process in § 11.4) and employment authorization and were put on a list to receive a second preference immigrant visa when it becomes available. When Sandra turns 21, USCIS will automatically move her from second preference “A” list (for spouses and unmarried children (under 21) of LPRs) to the second preference “B” list (for unmarried sons and daughters (over 21)). Although it will take Sandra longer to get her immigrant visa in this new category, she will maintain her legal permission to live and work under deferred action in the United States until an immigrant visa is available to her. For more information on VAWA self-petitioning spouses and their derivatives, please see the ILRC’s VAWA Manual available at www.ilrc.org. § 11.4 VAWA and the Child Status Protection Act (CSPA) For VAWA self-petitioning children and VAWA derivative children who were under 21 when the self-petition was filed, attaining 21 years of age will not prevent the applicants from getting a green card. It may, however, delay the process, since turning 21 may change the applicant’s preference category and, therefore, the date on which a visa will be available for the applicant. Congress ameliorated this problem considerably in the Child Status Protection Act of 2002 (CSPA), 47 which contains special provisions on “aging out” for principal beneficiaries who are children of USCs or LPRs and for derivative beneficiaries. VAWA 2005 clarified that the Child Status Protection Act extends to VAWA and self-petitioner and derivatives. 48 Under the CSPA, if a USC files an I-130 for their child while the child is under 21, the child will remain an immediate relative, and thus not subject to the preference quota and resulting waiting period as long as the beneficiary does not marry. 49 In the VAWA context, this means that if an abused child of a USC self-petitions before the child turns 21, the child will not move from the immediate relative category to the first preference upon turning 21, but will instead remain an immediate relative, thus allowing the self-petitioner to adjust earlier. Similarly, where an abused 44

INA § 204(a)(1)(D)(III). Id. 46 Id. 47 Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002). 48 VAWA 2005, § 805(b), amending INA § 201(f) (for immediate relatives of USCs and their derivatives) and § 203(h) (for self-petitioners in the second preference and their derivatives). 49 INA § 201(f). 45

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spouse of a USC self-petitions and includes their minor child as a derivative beneficiary, the child will not only have the pre-VAWA 2005 benefit of not aging out of derivative eligibility, but in addition, under the CSPA, will not move from the immediate relative category to the first preference category upon turning 21. The requirements for maintaining preference status under the CSPA for children of LPRs and for derivatives of VAWA self-petitioners are more complicated. For purposes of determining whether a beneficiary has aged out, the person’s age is considered to be the age as of the date the beneficiary’s priority date becomes current (or, for derivative beneficiaries, the age on which the beneficiary’s parent’s priority date becomes current), less the number of days that the petition was pending before the adjudication. In addition, the beneficiary may take advantage of this provision only if they apply for a visa within one year of the priority date becoming current. 50 Example: In March 2012, Ernesto, the abused son of an LPR, filed a VAWA selfpetition. At the time, Ernesto was 18 (born March 1994) and fell under the family 2A preference category. USCIS approved the visa petition in November 2012, and the 2A priority date became current in March 2015, when Ernesto was 21. Under the law as it existed prior to the CSPA, Ernesto would have “aged out” and moved from the family 2A category (children of LPRs) to the family 2B category (unmarried sons and daughters of LPRs), resulting in a longer wait for his priority date to become current. Under the CSPA, however, Ernesto’s age for purposes of determining his preference category is deemed to be his age on the date the priority date became current (21), minus the time USCIS took to adjudicate the I-130 petition (six months), so that Ernesto’s “adjusted age” would be calculated to be 20. This allows him to remain under the family 2A preference category for the purposes of determining when his priority date becomes current. In order to take advantage of this provision, however, Ernesto must apply for a visa, through adjustment of status or consular processing, within one year of the priority date becoming current. Example: Now assume that Ernesto is not the principal self-petitioner, but is instead the son of Maria, the abused wife of an LPR. Maria files her self-petition in March 2012, when Ernesto is 18. The other dates given in the prior example remain the same. The calculation of Ernesto’s age for purposes of retaining the derivative status works the same way at the calculation for retaining the 2A preference category. Thus, Ernesto remains a derivative beneficiary under Maria’s self-petition, even though his chronological age is over 21. For more information on CSPA, please see the ILRC’s VAWA Manual and Families and Immigration Manual available at www.ilrc.org. PRACTICE TIP: Process and benefits for VAWA self-petitioners. Unlike most family-based immigration, and SIJS applicants, VAWA self-petitioners may be eligible for work authorization and certain public benefits and protected from deportation during the waiting period before they adjust status to lawful permanent residence. VAWA self-petitions are filed using Form I-360 and

50

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INA § 203(h).

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are adjudicated by a special VAWA Unit at USCIS’ Vermont Service Center (VSC).The mailing address for the VSC is: U.S. Citizenship and Immigration Services Vermont Service Center VAWA Unit, Box 1000 75 Lower Welden Street St. Albans, VT 05479-0001 There are special confidentiality provisions to protect VAWA self-petitioners from their abusers finding out about the VAWA self-petition. If the VAWA self-petition is apparently approvable, USCIS will send a “Notice of Prima Facie Eligibility” that may qualify the self-petitioner as a “qualified alien” for eligibility for government aid like Medicare and Temporary Assistance for Needy Families (TANF). Once USCIS approves the self-petition, the VAWA self-petitioner may be eligible for deferred action and work authorization. When a VAWA self-petition has been approved, the self-petitioner moves to the second step of the immigration process, that is, actually obtaining LPR status. This is done either by filing an application for adjustment of status (a green card) with USCIS in the United States or applying for an immigrant visa (permanent resident visa) at a U.S. consulate abroad (“consular processing”). For detailed, step-by-step information on the VAWA self-petitioning process, employment authorization, adjustment of status, inadmissibility issues and waivers, and consular processing, please see the ILRC’s VAWA Manual available at www.ilrc.org. § 11.5 Conditional Permanent Residence and Abused Immigrants Much of this chapter has discussed the provisions and process for VAWA self-petitioners and their derivatives. Another situation that may affect abused children is conditional permanent residence. The two-year conditional residence is granted to spouses (and their children) who obtain immigration status based on a marriage that is less than two years old.51 The general rule is that both spouses (the petitioning spouse and the immigrant spouse) together must file a joint petition to remove the condition on the residence status within two years after the foreign spouse obtains conditional residence. 52 If the conditions are not removed, the immigrant’s status expires at the end of the two years, and that person could be deported. This requirement of a joint petition to remove the condition gives rise to problems where domestic abuse exists as it may lead the abused spouse and her children to remain in the abusive situation, rather than leave and risk the abuser’s refusal to sign the joint petition. Example: Elvia, a citizen of Egypt, marries Ron, a USC, in 2017. Ron files an I-130 Petition for Alien Relative on Elvia’s behalf in 2018, and USCIS approves Ron’s petition as well as Elvia’s application for adjustment of status. Because the marriage is less than two years old when Elvira adjusts status, she obtains conditional permanent residence, rather than full permanent residence. After the marriage, Ron becomes abusive to Elvia, 51 52

INA § 216. INA §§ 216(c), (d).

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but she continues to live with him and does not report the abuse, because he threatens that, if she leaves or goes to the police, he will not join the petition to remove the condition and she will be deported. To prevent this sort of situation, the immigration laws provide special waivers of the joint petition requirement. See section entitled “Form I-751” below. Children as conditional residents. Noncitizen children who immigrate to the United States within two years of the parent’s marriage may also receive conditional residence. Like their immigrating parent, these children are admitted to the United States as conditional residents and will need to petition at the end of two years for removal of the condition. 53 Whether the children enter as conditional residents depends on how and when they immigrate. If the noncitizen parent immigrates based on marriage to a USC, the noncitizen’s children cannot enter with derivative status because the immigration laws do not provide for derivative beneficiaries of immediate relatives. Thus, the noncitizen’s children may immigrate in one of three possible ways. First, the citizen spouse can adopt the children if they are under 16 years of age and have resided with the adopting parent for at least two years. 54 In this case, the child would enter with no conditions since the child would immigrate based on a direct relationship with the adoptive parent. Second, the citizen can file a stepparent petition on behalf of their stepchildren, if the marriage occurred before the children turned 18 years of age. 55 In this case, if the child immigrates before the marriage is two years old, the child would be subject to conditional permanent residence. As a third alternative, after the noncitizen parent becomes a conditional resident, they can file a second preference visa petition on behalf of their child. In this case, the child also enters with no conditions, since the child is entering based on their direct relationship to an LPR parent. If the noncitizen parent is married to an LPR, the noncitizen’s children may immigrate as derivatives, either at the same time as the parent or later.56 Because of the delay in priority dates, spouses of LPRs will not receive immigrant status until the marriage is more than two years old. Thus, as a practical matter, children immigrating through their parents’ marriage to an LPR will enter as full permanent residents, rather than as conditional residents. Some dependent children who acquire immigration status through their parents’ marriages are not subject to the conditional residence requirements because the parent is not an “alien spouse” as defined by the statute. 57 For example, if the noncitizen parent marries a USC but acquires LPR status by a means other than the marriage (e.g., they immigrate on an employment-based visa), the parent does not fall within the category of “alien spouse” and is therefore not subject to conditional residency. The USC spouse in such a marriage could file a stepparent petition for the 53

INA §§ 216(a)(1), (g)(2). Note that in order to qualify as a “child” for purposes of immigrating as an immediate relative, the adopted child has to have lived in the custody of the adoptive parent for two years. But in order to qualify as a “child” for purposes of being a VAWA child self-petitioner, the adopted child does not have to meet the two-year residency requirement if the adoptive parent was the abuser. 55 INA § 101(b)(1)(B). 56 INA § 204(d). 57 INA § 216(g)(1). 54

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noncitizen spouse’s children. Even though the children would gain immigrant status based on the parent’s marriage to a citizen that took place within two years of the marriage, the children would not be considered “alien sons or daughter” because the parent does not meet the definition of an “alien spouse.” Children can (but don’t have to) be included in their parents’ application to have the conditions removed if they received conditional residency at the same time or within 90 days after their parent. Children must file their own petition to remove the conditions if they received conditional residence more than 90 days after the immigrating parent did or if the immigrant parent died. Sons and daughters who immigrate as conditional residents must follow requirements similar to those of their noncitizen parents to remove the conditional status after the two-year period. 58 If the noncitizen parent’s status is terminated during these two years based on divorce, annulment, or a determination by USCIS that the marriage is fraudulent, the conditional resident status of the children will also terminate. Form I-751. Within 90 days before the second anniversary of the date on which the person obtained conditional residence, the conditional resident must file a Petition to Remove the Conditions on Residence (Form I-751). 59 If the conditional resident is still lawfully married to the USC or LPR spouse, and if that spouse agrees to cooperate in completing the petition, then the couple will file a Form I-751 as a joint petition. However, if the marriage has ended due to death of the USC or LPR spouse or through divorce or annulment, or if the joint petition should not be filed because of an abusive situation, then the conditional resident must file Form I-751 without the abuser, as an application for a waiver of the joint filing requirement. 60 Failure to file the petition or failure to comply with the interview requirements will lead to automatic termination of conditional resident status and the initiation of removal proceedings. 61 In removal proceedings, the noncitizen will bear the burden of proof to establish that they have complied with the prerequisites for having the condition removed. 62 The immigration judge is authorized to stay removal proceedings to allow the conditional resident to file the joint petition.63 In lieu of the couple’s completing the joint petition, the conditional resident can request that the joint filing requirement be waived, based on one of four grounds: 1. The marriage was entered into in good faith, but the spouse has died; 2. The marriage was entered into in good faith, but the marriage has been terminated by divorce or annulment; 3. The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or 4. Termination of permanent residence and deportation would result in extreme hardship. 64

58

8 CFR § 216.4(a)(2). INA § 216(c)(1)(A). 60 8 CFR § 216.4(a)(1). 61 8 CFR § 216.4(a)(6). 62 INA § 216(c)(2)(B); 8 CFR § 216.4(a)(6). 63 INA § 216(d)(2)(C). 64 INA § 216(c)(4); 8 CFR § 216.4(a)(1). 59

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The conditional resident indicates that they will be filing Form I-751 as a waiver application and indicates the basis or bases for the waiver (by checking boxes on the form). The possible grounds for a waiver on Form I-751 are not mutually exclusive, and the conditional resident should claim all applicable grounds. This is critical if the individual is placed in removal proceedings, because the immigration judge may consider only the grounds originally checked on the Form I-751. If the conditional resident is asking for a waiver based on abuse, they will need to prove that they have suffered battery or extreme cruelty. See § 11.2 above for more information on what constitutes battery and extreme cruelty. For more information on each of the four waiver grounds and the procedure for termination of conditional status, please see the ILRC’s VAWA Manual available at www.ilrc.org. § 11.6 Cancellation of Removal for Abused Immigrants Another form of VAWA immigration relief is called VAWA cancellation of removal. 65 A grant of cancellation of removal “cancels” the removal of an applicant who would otherwise be removable and grants the applicant lawful permanent residence. The application must be made in removal proceedings before an immigration judge, as a form of relief from removal. 66 The eligibility requirements for VAWA cancellation are as follows. 1. The applicant must be the abused spouse or child, or non-abused parent of an abused child, of a USC or LPR; 2. The applicant must have been physically present in the United States for at least three years; 3. The applicant must have been of good moral character during that time; 4. The applicant must show that they or their child or parent would suffer extreme hardship if the applicant had to leave the United States; and 5. The case must warrant a favorable exercise of the Attorney General’s discretion. A comparison of VAWA self-petitions with VAWA cancellation. Both VAWA self-petitions and applications for VAWA cancellation of removal lead to LPR status for the abused immigrant. In most cases, VAWA self-petitions have less onerous requirements, since a self-petitioner does not have to show the VAWA cancellation requirements of three years’ continuous presence or that departure from the United States would cause extreme hardship. Some abused immigrants, however, will only be eligible for VAWA cancellation and will not be eligible to self-petition under VAWA. Here are some examples: •

Parents of abused children of USCs and LPRs who are not married to the abuser are not eligible to self-petition but may be eligible for VAWA cancellation of removal.

65

INA § 240A(b)(2). Note that prior to the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), there was a form of relief called VAWA suspension of deportation. For more on this and other forms of cancellation of removal, see the ILRC’s Hardship in Immigration Law Manual. 66 8 CFR §§ 1240.20(b), 1240.11(a)(1).

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Spouses of USCs and LPRs who were divorced more than two years ago, or whose USC or LPR abusive spouse or parent lost immigration status more than two years ago, are no longer eligible to self-petition under VAWA, but can still apply for VAWA cancellation. An individual who is eligible to self-petition under VAWA or who has an approved VAWA self-petition, but is placed in removal proceeding before their priority date becomes current may be eligible for VAWA cancellation. In such a case, an approved VAWA self-petition will lend credence to the VAWA cancellation claim, but it will not allow the applicant to adjust status until the priority date becomes current. Abused sons and daughters of USCs or LPRs who do not file the self-petition before they turn 21 67 or meet the special exception requirement of a “child” under 25 years of age are no longer eligible to self-petition under VAWA, but they may be eligible for VAWA cancellation.

Applications by abused sons and daughters of USCs and LPRs. An applicant for cancellation who has been abused by a parent need not be under 21 to qualify for VAWA cancellation. This is because the statute speaks in terms of an immigrant who has been abused by a spouse or parent, 68 rather than referring to the term “child,” defined as some who is under 21 and unmarried. 69 In other words, the statute states that the applicant must be abused by a “spouse or parent,” not that the applicant be a child. This is in contrast to the VAWA self-petition, under which a selfpetitioner whose petition is based upon abuse by a parent must be a child (under 21 and unmarried) at the time of the application. See § 11.2. Example: Alejandra is a citizen of Spain and the stepdaughter of Michael, a USC who was very abusive to her during her childhood. Michael never filed any visa petition for Alejandra. Alejandra is now 26. She can no longer self-petition, as she would have had to file a self-petition prior to her 21st birthday. If she is placed in removal proceedings, however, she can apply for VAWA cancellation of removal, even though she is over 21. Application for VAWA cancellation by the parent of a child who has been abused by a USC or LPR parent. An important feature of VAWA cancellation is that the parent of a child who has been abused by a USC or LPR parent may apply for cancellation, even if the parent was not married to the USC or LPR parent. For this type of case, the abused child must meet the INA definition of “child” under INA § 101(b)(1), that is the abused child must be unmarried and under 21 years of age. Example: Winnie is a citizen of Zimbabwe and is married to Eric, a USC. Eric has never been abusive to Winnie, but was very abusive to their son, Arnold, now 20 years of age. If Winnie is placed in removal proceedings, she can apply for VAWA cancellation of removal, even though she has not been abused herself, because she has a child (Arnold) who was abused by a USC or LPR parent (Eric). Once Arnold turns 21, however, Winnie will no longer be able to file an application for cancellation since Arnold would no longer be a child. Note that the protections described regarding VAWA “age-out” and the CSPA 67

Under VAWA 2005, children of USCs may file their self-petition prior to age 25, if the abuse was at least one central reason for the filing delay. VAWA 2005, § 805(c), amending INA § 204(a)(1)(D). 68 INA § 240A(b)(2)(A)(i). 69 INA § 101(b).

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do not apply to VAWA cancellation. Arnold’s age is not frozen in time. Even if Arnold is under 21 at the time that Winnie files an application for cancellation with the court, if he is over 21 at the time that her case is heard by the immigration judge, she will not qualify for VAWA cancellation because she no longer has an abused “child.” No derivative beneficiaries for purposes of VAWA cancellation; parole of children and parents. There are no “derivative beneficiaries” for purposes of VAWA cancellation of removal. This means that children cannot be included in a grant of cancellation to their parent. This is so even in the case of a person applying as the parent of an abused child. Under the VAWA 2000 amendments, however, immigration authorities are required to grant parole into the United States to the VAWA cancellation grantee’s children and, for a child VAWA cancellation grantee, the grantee’s parent. 70 The parole will last until the adjudication of the parolee’s application for adjustment of status. 71 In addition, it may be possible to obtain permanent residence or other relief for the child of a potential VAWA cancellation of removal applicant in one of the following ways: •

• •

•

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A parent who is eligible to VAWA self-petition should do so, so that the child could be included as a derivative. The parent could ask the immigration judge to continue or administratively close the proceedings pending the Vermont Service Center’s decision on the self-petition. A child who is in proceedings and meets the requirements for VAWA cancellation should file a separate application. The immigration judge could then consolidate the child’s case with the parent’s case. If the child is not in proceedings, and if the child meets the requirements for VAWA cancellation, the advocate and parent might consider asking ICE to place the child in proceedings to allow them to file an application for cancellation. This should be done only after very careful consideration, because of the risks inherent in removal proceedings. The child might be eligible for other relief based on the abuse, such as a U visa. See Chapter 10.

INA § 240A(b)(4). Id.

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CHAPTER 12 ASYLUM, WITHHOLDING OF REMOVAL AND CONVENTION AGAINST TORTURE PROTECTION 1 This chapter includes: Overview of Asylum and Related Protections ................................................... 291 Well-Founded Fear of Persecution ..................................................................... 295 Nexus and the Protected Grounds ...................................................................... 305 Bars to Asylum and Related Protections ............................................................ 329 The Asylum Process ........................................................................................... 339 Withholding of Removal .................................................................................... 351 Convention Against Torture ............................................................................... 352

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§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7

§ 12.1 Overview of Asylum and Related Protections Children and youth are often more vulnerable to persecution than adults. Many noncitizen children and youth may have left their home countries and come to the United States because they experienced or fear persecution. These individuals may be eligible for asylum and other related protections. Child and youth asylum seekers face unique challenges in showing that they qualify for protection. In particular, children may experience persecution differently than adults, and may require special assistance to articulate their experience. This chapter provides an overview of substantive asylum law and related protections, with a focus on child and youth asylum claims. Asylum law is very complex, and, by its very nature, may be a question of life or death, so advocates should proceed carefully with asylum applications. For more information on asylum law generally please see the ILRC’s manual, Essentials of Asylum Law. A.

Sources of law and basic overview

U.S. asylum law derives from international law. Attorneys can and should cite these international instruments, particularly when there is no case law on point. However, advocates may encounter some resistance from asylum adjudicators, who view these as merely informative sources. Sources of international law. The primary sources on international refugee protection are the 1951 U.N. Convention Relating to the Status of Refugees 2 (“Refugee Convention”) and the 1967 U.N. Protocol Relating to the Status of Refugees, 3 which define a refugee 4 and create the non1

Thanks to Kristen Jackson, Senior Staff Attorney at Public Counsel, and Lisa Frydman, Vice President, Regional Policy and Initiatives, Kids in Need of Defense, for reviewing and giving input on earlier versions of this chapter. 2 U.N. Convention Relating to the Status of Refugees [hereinafter Refugee Convention], 189 U.N.T.S. 150 (entered into force Apr. 22, 1954). 3 U.N. Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967).

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refoulment obligation not to expel or return (“refouler”) a refugee a country where their life or freedom would be threatened on account of a protected ground. 5 Both of these definitions are incorporated into U.S. asylum law. Additionally, the U.N. Convention Against Torture (CAT) of 1984 6 bars the return of a person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 7 Finally, the U.N. Convention on the Rights of the Child (CRC) 8 provides that “the best interests of the child shall be a primary consideration” in all actions involving children, 9 and children’s viewpoints should be considered in an age and maturity-appropriate manner. 10

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The U.N. High Commissioner for Refugees (UNHCR) has created resources to guide asylum advocates in interpreting international protections. One primary resource is the Handbook on Procedures and Criteria for Determining Refugee Status, referred to as the “UNHCR Handbook.” 11 Further, advocates should consult the Asylum Officer Basic Training Course’s (AOBTC) current on children’s claims 12 and UNHCR’s 2009 guidelines for child asylum, which highlight the specific rights and protection needs of child asylum seekers. 13 Sources of domestic law. The Refugee Act of 1980 was intended to bring U.S. law into conformity with established international refugee law and is incorporated at Immigration and 4

Refugee Convention, 189 U.N.T.S. 150, Article 1 (defining a refugee as a person who, “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country”). 5 Id. at Article 33. 6 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (Dec. 10, 1984). 7 Id. at Article 3. 8 U.N. Convention on the Rights of the Child [hereinafter CRC], G.A. Res. 44/25, U.N. G.A.O.R. (Nov. 20, 1989); see also Vienna Convention on the Law of Treaties, Art. 18(a) (entered into force Jan. 27, 1980). The United States has not ratified this treaty; but as a signatory to the treaty is still obligated under international treaty law to refrain from acts that would defeat the object and purpose of the Convention. U.S. Citizenship and Immigration Services (USCIS) has also acknowledged this concept. See USCIS Asylum Officer Basic Training Course: Guidelines for Children’s Asylum Claims, p. 9-10 (Mar. 21, 2009), https://cliniclegal.org/sites/default/files/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum_Claims_0 .pdf [hereinafter AOBTC Guidelines for Children’s Asylum Claims]. 9 CRC, G.A. Res. 44/25, U.N. G.A.O.R., Article 3(1). 10 Id. at Article 12(1). 11 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, (reissued Dec. 2011), http://www.unhcr.org/publ/PUBL/3d58e13b4.pdf [hereinafter U.N. Handbook]. The U.S. Supreme Court has approved the use of the UNHCR Handbook as a source in interpreting U.S. asylum and refugee law. See INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987). 12 See AOBTC Guidelines for Children’s Asylum Claims at p. 8 (“In the absence of caselaw, or when caselaw does not specifically address an issue, international instruments can provide helpful guidance and context on human rights norms.”). 13 UNHCR, Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08 (Dec. 22, 2009), http://www.unhcr.org/refworld/docid/4b2f4f6d2.html [hereinafter “U.N. Guidelines for Child Asylum Claims”].

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Nationality Act (INA) § 207 and § 208. Section 208 provides the eligibility requirements and procedural framework for people who are physically present in the United States to apply for asylum. Asylum law has generated extensive case law in the Board of Immigration Appeals (BIA), the U.S. Courts of Appeals, and the U.S. Supreme Court. Additionally, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), enacted on December 23, 2008, created new procedural protections for unaccompanied minors seeking asylum. These protections are discussed below at § 12.5.

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Elements of asylum. The requirements for asylum are a well-founded fear of persecution because of a protected ground (race, religion, nationality, membership in a particular social group, or political opinion) by the government or by those the government is unable or unwilling to control. These legal elements are discussed in depth in § 12.2 and § 12.3. Beyond meeting these requirements, asylum applicants must not fall under certain other bars to asylum discussed in detail in § 12.4. Finally, the applicant must also demonstrate that asylum should be granted in the exercise of discretion. Children and youth may be eligible for asylum and related protection as principal applicants, or as derivatives on their parents’ applications. Asylum offers many benefits to the recipient, in comparison with other forms of immigration relief such as SIJS, and this may be preferable, depending on the client’s goals. These benefits include a path to permanent residence, and the ability to petition for their parents in the future. 14 Withholding of/restriction on removal under INA § 241(b)(3). Withholding of removal protects individuals who fear a threat to life or freedom on account of one of the five protected grounds in the refugee definition. It tracks the U.N. Refugee Convention’s Article 33 nonrefoulment provision and may be an option if an individual is barred from asylum. A grant of withholding of removal does not entitle the person to apply for lawful permanent residence nor to include family members in their case. Unlike asylum, withholding of removal is not discretionary, although there are still bars to eligibility. Withholding of removal is discussed in § 12.6. Convention Against Torture. There are two types of protection under the Convention Against Torture (CAT): 1) CAT withholding of removal, and 2) CAT deferral of removal. 15 These two types of CAT relief protect individuals who specifically fear torture. Unlike asylum and withholding of removal, CAT protects those who specifically fear torture, not just persecution generally (although they may overlap). It does not require that the persecutor harmed the applicant based on one of the five protected grounds. CAT is also non-discretionary and must be granted to an eligible individual even if they are otherwise barred from asylum and withholding of removal, including for an aggravated felony. CAT protection is discussed in § 12.7. B.

Overseas refugee program

Asylum, withholding of removal, and CAT protection are available only to individuals physically present in the United States. The United States, on a very limited basis, provides protection for 14

By contrast, SIJS recipients may now wait many years to become permanent residents and cannot petition for their parents. 15 The federal regulations provide for CAT relief at 8 C.F.R. § 208.18.

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individuals who qualify as refugees who have not yet reached U.S. soil, through the overseas refugee program (ORP). 16 Under this program, individuals are pre-screened abroad and, if they qualify, are given the necessary travel documents to come to the United States. The ILRC advises practitioners to understand how and if the Trump Administration’s “Muslim Ban” affects their clients. 17 The full extent of this additional screening and the countries affected is beyond the scope of this chapter. If your client falls within one of these categories, it is important to understand how their refugee applications may be affected. 18

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Central American Minors (CAM) Parole Program. In 2014, the U.S. Departments of State and Homeland Security launched a refugee-processing program for children in El Salvador, Guatemala, and Honduras in response to the influx of youth crossing the U.S.-Mexico border. This program was only available to children in these three countries who have parents lawfully present in the United States. Although children from these countries continue to be at risk, the Trump Administration ended the CAM Parole program in November 2017. 19 U.S. Citizenship and Immigration Services (USCIS) stopped interviewing CAM cases on January 31, 2018. As of the publication of this manual, there is pending class action litigation to challenge the termination of CAM. 20

16 The relevant statute for ORP is INA § 207. Note that in 2017, the Trump Administration reduced the annual numerical cap on refugee admissions to its lowest level in more than three decades to 45,000 refugees. See Fact Sheets, White House, President Donald J. Trump is Taking a Responsible and Humanitarian Approach on Refugees, (Sept. 29, 2017) available at https://www.whitehouse.gov/briefingsstatements/president-donald-j-trump-taking-responsible-humanitarian-approach-refugees/. 17 See Exec. Order No. 13815, 82 Fed. Reg. 50,055 (Oct. 24, 2017), available at https://www.federalregister.gov/documents/2017/09/27/2017-20899/enhancing-vetting-capabilities-andprocesses-for-detecting-attempted-entry-into-the-united-states-by. In 2017, the Trump Administration issued a series of executive orders affecting the entry of individuals from certain countries as refugees to the United States. Individuals from eleven countries may undergo additional screening before being admitted to the United States. On January 31, 2018, these eleven countries were Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, Republic of South Sudan, Sudan, Syria, and Yemen, and stateless individuals who last habitually resided in one of these countries. See Dept. of Homeland Security, Memorandum to the President: Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities (Oct. 23, 2017), available at https://www.dhs.gov/sites/default/files/publications/17_1023_S1_RefugeeAdmissions-Program.pdf; see also Press Release, Dept. of Homeland Security, DHS Announces Additional, Enhanced Security Procedures for Refugees Seeking Resettlement in the United States (Jan. 31, 2018) available at https://www.dhs.gov/news/2018/01/29/dhs-announces-additional-enhanced-securityprocedures-refugees-seeking-resettlement. 18 See International Refugee Assistance Project, Know Your Rights (last visited: Sept. 11, 2018) https://refugeerights.org/know-your-rights/. 19 See, USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors-CAM), https://www.uscis.gov/CAM (last updated: Nov. 15, 2017). 20 See Urban Justice Center, International Refugee Assistance Project, Litigation: S.A. v. Trump: Challenging the termination of the Central American Minors parole program (last updated: June 14, 2018), available at https://refugeerights.org/litigation/.

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§ 12.2 Well-Founded Fear of Persecution A.

Definition of persecution for children

Applicants for asylum must have a well-founded fear of persecution in their home country. Persecution is commonly analyzed based on the severity of harm a person faces.21 Children may experience “child-specific manifestations and forms of persecution” 22 due to their age, maturity, development, and often dependence on adults. 23 The U.N. Committee on the Rights of the Child has stated that the refugee definition:

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… must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to …[race, religion, nationality, membership of a particular social group or political opinion]. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee state-determination procedures. 24 Neither the INA nor the BIA has fully defined the term “persecution.” Case law has described it as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” 25 This definition encompasses many forms of harm beyond physical harm, such as psychological harm, 26 the deliberate imposition of economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life. 27 Severe

21

Although Matter of A-B-, 27 I&N Dec. 316, confusingly provides a definition of “persecution” that conflates other aspects of the asylum analysis, the decision does not present any new standard beyond the persecution analysis courts have widely adopted. See, e.g., Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011). 22 UNHCR ExCom, Conclusion on Children at Risk, No. 107 (LVIII, 2007), ¶ (g) (Oct. 5, 2007) available at http://www.unhcr.org/4717625c2.html. 23 U.N. Guidelines for Child Asylum Claims, ¶ 2. 24 U.N. Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, ¶ 74 (Sept. 2005) available at http://www.unhcr.org/refworld/docid/42dd174b4.html. 25 Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985); see Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)). 26 Knevzevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004) (citing Kovac v. INS, 407 F.2d 102, 105-07 (9th Cir.1969)) (noting that “persecution comes in many forms,” including severe harassment, threats, violence, discrimination and harassment, and mental, emotional, and psychological harm); but see Halim v. Holder, 590 F.3d 971, 973 (9th Cir. 2009) (“[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive … mere discrimination, by itself, is not the same as persecution”). 27 In re T-Z-, 24 I&N Dec. 163, 171 (BIA 2007) (quoting H.R. Rep. No. 95-1452, at 5, as reprinted in 1978 U.S.C.C.A.N. 4700, 4704, 1978 WL 8575).

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economic deprivation threatening an individual’s life or freedom, and cumulative forms of discrimination or harassment have also been recognized. 28 Physical harm is, therefore, not an essential feature of persecution. 29 Also, “some physical harm may not be sufficient” either, “but harm need not be life-threatening to constitute persecution.” 30 In determining whether something amounts to persecution, the BIA and the courts should evaluate the harmful incidents “cumulatively,” and determine whether the combination of those actions rises to the level of persecution. 31

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Harm that may not amount to persecution for adults may nevertheless constitute persecution for children. The AOBTC Guidelines for Children’s Asylum Claims state, “[t]he harm a child fears or has suffered may still qualify as persecution despite appearing to be relatively less than that necessary for an adult to establish persecution.” 32 The Guidelines continue, “[t]his is because children, dependent on others for their care, are prone to be more severely and potentially permanently affected by trauma than adults, particularly when their caretaker is harmed.” 33 Therefore, the child’s age is “a factor that … may bear heavily on the question of whether an applicant was persecuted,” and some circuits have emphasized that immigration judges must take this into account. 34 PRACTICE TIP: Advocates should use factors such as age, vulnerability, and development level in cases where the harm to the child may not rise to the level of persecution for adults. It is worthwhile to explore other types of human rights violations, such as denial of the right to education. For example, preventing a child from attending school could be motivated by one of

28

In re O-Z- & I-Z, 22 I&N Dec. 23 (BIA 1998). Haider v. Holder, 595 F.3d. 276, 286 (6th Cir. 2010). 30 Id. 31 See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (“The key question is whether, looking at the cumulative effect of all the incidents Petitioner has suffered, the treatment she received rises to the level of persecution”); Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (“while a single incident, in some instances, may not rise to the level of persecution, the cumulative effect of several incidents may constitute persecution”); Matter of O-Z- & I-Z-, 22 I&N Dec. at 26 (“We find that these incidents constitute more than mere discrimination and harassment [that i]n the aggregate, [] rise to the level of persecution as contemplated by the Act”). 32 AOBTC Guidelines for Children’s Asylum Claims, p. 37 (Sept. 1. 2009). 33 Id. 34 See Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th Cir. 2008) (citing Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004)); see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (“Age can be a critical factor in the adjudication of asylum claims and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution.”) (internal quotation marks and citation omitted); Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (criticizing the lower court for “fail[ing] … to address the harms [the child] and his family incurred cumulatively and from the perspective of a small child.”). 29

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the protected grounds. 35 Furthermore, the denial of the right to education may expose children and youth to persecution, as they are generally at higher risk outside of school. 36 Child-specific persecution. Examples of child-specific persecution include: •

•

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• • • •

Under-age recruitment, e.g., forced recruitment for direct participation in hostilities of a child in the armed forces of a state; 37 Early marriage; Child trafficking (note that victims of trafficking may also be eligible for a T-visa); Forced child labor; 38 Child abuse (including neglect, deprivation of food and medical treatment); 39 Child pornography; and Deprivation of fundamental rights, including the right to education. 40

General forms of persecution. There are also other forms of persecution that are not childspecific and would constitute persecution regardless of age. However, they may be more prevalent among children or impact them more or differently. They include: • • • • • • • •

Sexual assault; 41 Female genital mutilation (“FGM”) (disproportionately affects girls); 42 Domestic violence (including sexual abuse, incest, and severe parental abuse); 43 Forced marriage; Forced prostitution; Gang violence and recruitment, including forced sexual relationships with gang members; Harm to a close relative (discussed further below); and Discrimination, harassment, and violence based on sexual orientation or gender identity.

Some of these forms of persecution and how they can be articulated as viable claims for asylum are discussed in greater detail at § 12.3. Harm to a close relative. Children are deeply affected when they experience harm to close relatives, even when the child was not the direct target of the harm. 44 Children depend upon their

35

U.N. Guidelines for Child Asylum Claims, ¶ 14. Id. 37 See UN Guidelines for Child Asylum Claims, ¶ 21, p. 11. 38 See id. at ¶ 26, p. 12. 39 See id. at ¶ 35-36, p. 15. 40 See id. at ¶ 36, pp. 15-16. 41 See generally Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc). 42 See Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); see also UN Guidelines for Child Asylum Claims, ¶ 31, p. 13. 43 See UN Guidelines for Child Asylum Claims, ¶ 33, p. 14. 36

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families for care and protection, and families are less able to protect their children when the adults are subject to persecution. 45 In fact, infants may be the victim of persecution even if the baby has no present recollection of the relevant events. 46 Therefore, it is important to explore harm to the child’s relatives to understand the full scope of persecution. Finally, a child’s forced separation from their parents also may constitute persecution for the child. 47 B.

Persecution by whom? State and non-state agents of persecution and the failure of state protection

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In general, either the government, or persons or organizations the government is unable or unwilling to control must inflict the persecution. 48 “[T]here is no distinction between the direct actions of the government and the actions of a group that is recognized and sponsored by the government.” 49 When the government is responsible for persecution, “no inquiry into whether the persecution was reported to police is necessary.” 50 A “state” actor is one who is a member of the government, or a part of a government-supported organization. When a non-state actor is the persecutor, an applicant need not establish that the government “is sponsoring or promoting or condoning the violence”—just that it is unable or unwilling to control it. 51 Note that an applicant need only show either that the government is 44

See id. at ¶ 17; see also Rusak v. Holder, 734 F.3d 894, 896-897 (9th Cir. 2013) (child’s persecution claim based on abuse suffered by parents due to their religious beliefs as Seventh Day Adventists in Bearus); Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2013) (child’s claim based on persecution by Guatemalan Army against mother’s Mayan village); Hernandez-Ortiz, 496 F.3d 1042 (affirming that “injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claim were perceived when the petitioner was a child”). 45 The Second, Sixth, Seventh, and Ninth Circuits have recognized this. See, e.g., Hernandez-Ortiz v. Gonzales, 494 F.3d 1042, 1045 (9th Cir. 2007) (“[A] child’s reaction to injuries to his family is different from an adult’s. The child is part of the family, the wound to the family is personal, the trauma apt to be lasting.”); Rusak, 734 F.3d at 897 (“The abuses endured by Ms. Rusak’s parents constituted persecution of them, and Ms. Rusak was entitled to rely on these events to establish her own claim of past persecution because she was a child at the time.”); see also Mendoza-Pablo, 667 F.3d at 1313; Jorge-Tzoc, 435 F.3d at 150. 46 See Mendoza-Pablo, 667 F.3d at 1312-15. 47 See U.N. Guidelines for Child Asylum Claims, ¶ 17. 48 See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). 49 Montoya-Ulloa v. INS, 79 F.3d 930, 931 n.1 (9th Cir. 1996) (holding that an applicant who was harassed, threatened, and beaten by the Sandinista Youth, a group that was recognized and sponsored by the Sandinista government, suffered persecution); see also 8 C.F.R. § 208.13(b)(3)(ii) (“In cases in which the persecutor is a government or is government-sponsored … it shall be presumed that internal relocation would not be reasonable”). 50 Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004); Chanchavac v. INS, 207 F.3d 584, 589-90 (9th Cir. 2000) (determining that attacks by military personnel constituted persecution). 51 Thomas v. Ashcroft, 359 F.3d 1169, 1179-80 (9th Cir. 2004), vacated on other grounds by Gonzales v. Thomas, 547 U.S. 183 (2006) Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (“[T]he Truongs’ professed belief that the Italian government was complicit in or unwilling to stop their harassment is undermined by the fact that the Truongs repeatedly sought assistance from the Italian police, who dutifully made reports after each incident and indicated they would investigate. Without more, we are reluctant to

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unable or unwilling, not both. An applicant can do this by showing that the government, despite efforts, is unable to protect the applicant, or by showing the government did not attempt to protect the applicant. This may be easiest to establish if the child has reported the persecution to the government. But reporting the persecution is not required, particularly if the applicant can show that it would have been futile or may have led to further harm.

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PRACTICE NOTE: Attorney General Jefferson Sessions’s (AG) 2018 decision, Matter of A-B-, attempts to raise the standard of the government protection element for persecution by non-state actors. While the decision cites the well-established “unable or unwilling standard,” it also states that government inaction alone is insufficient. 52 The AG asserts that the government needs to “condone the private actions ‘or at least demonstrate[] a complete helplessness to protect the victims.’” 53 It is unclear whether this standard will be upheld on appeal, but advocates should be prepared to address this heightened standard. 54 For further information, contact the Center for Gender and Refugee Studies. In the case of children and youth, the persecutor may often be a non-state actor, including militarized groups, gangs, parents, other caregivers, community groups, and religious leaders. 55 Note that “[t]here is no exception to the asylum statute for violence from family members; if the government is unable or unwilling to control persecution, it matters not who inflicts it.” 56 Children face unique obstacles accessing state protection even when it exists. For example, it is typically out of children’s control whether they report a crime since they depend on their parents or guardians to help them to exercise their rights. 57 This limitation is heightened when the persecutor is the child’s parent or someone in the same household. Furthermore, there is no requirement that the applicant report harm to the government if reporting would be futile or dangerous. 58 Try to explain this inability to report “by demonstrating that a country’s laws or

infer government complicity or indifference from the mere fact that Italian police were unable to locate the Truongs’ unknown assailants”). 52 See Matter of A-B-, 27 I&N Dec. 316, at 320, 337-38, 343-44 (A.G. 2018). 53 Matter of A-B-, 27 I&N Dec. at 337 (citing Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)). 54 Also note that USCIS and ICE issued related memos on how to apply A-B-. See generally U.S. Immigration and Customs Enforcement, Memorandum: Litigating Domestic Violence-Based Persecution Claims Following Matter of A-B- [hereinafter ICE Memo] (July 11, 2018) available at https://www.aila.org/infonet/ice-guidance-on-litigating-domestic-violence; USCIS, Policy Memorandum: Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B- [hereinafter USCIS memo] (July 11, 2018) available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-18-PM-602-0162USCIS-Memorandum-Matter-of-A-B.pdf. 55 U.N. Guidelines for Child Asylum Claims, ¶ 37. 56 Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004). 57 U.N. Guidelines for Child Asylum Claims, ¶ 39. 58 Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017), Afriyie v. Holder, 613 F.3d 924, 930 (9th Cir. 2010); see e.g., Vitug v. Holder, 723 F.3d 1056, 1063-64 (9th Cir. 2013) (“While Vitug did not report these attacks, he credibly testified that it is well known in the Philippines that police harass gay men and turn a blind eye to hate crimes committed against gay men.”).

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customs effectively deprive the petitioner of any meaningful recourse to governmental protection.” 59 For example, harm by a parent or other relative may be culturally acceptable and viewed as a “private” issue within the domain of the family.

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It may be difficult for children to approach police or other protective services on their own based on physical, emotional, psychological or developmental limitations. Even where children are able to communicate their fears or experiences, authorities may not take the child seriously or the authorities may lack the skills necessary to communicate effectively with the child. 60 Abandoned or orphaned children may have particular difficulty accessing state protection.61 Where a child has not attempted to report the harm they experienced, include sufficient objective evidence through country conditions reports to demonstrate that the government is unable or unwilling to control the specific non-state actor. For example, include evidence that reporting would have been futile because the government fails to investigate or prosecute such crimes. Note that the AOBTC Guidelines for Children’s Asylum Claims state, “[t]he fact that a child did not seek protection in his or her country or origin does not necessarily undermine his or her case.” 62 C.

Past persecution or well-founded fear of persecution

Beyond harm rising to the level of persecution, U.S. asylum law requires a well-founded fear of persecution, which may encompass both past and future persecution. An applicant has two different and independent paths to establish eligibility for asylum: 1. The applicant has suffered past persecution; or 2. The applicant has a well-founded fear of future persecution. 63 Establishing either will meet the requirement for persecution. Past persecution. A finding of past persecution creates a rebuttable presumption of a wellfounded fear of future persecution. 64 Once established, the burden shifts to the government to show either that there has been a fundamental change in circumstances (such that future persecution is unlikely), or that internal relocation (within the asylum seeker’s home country) is possible. 65 If the government succeeds, the burden shifts again to the noncitizen to show that they nonetheless face other significant harm. In the case of severe past persecution or other serious harm, asylum-seekers may be granted humanitarian asylum even if the government proves that there has been a fundamental change in circumstances or that internal relocation is possible. 66 Humanitarian asylum is available in

59

Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). U.N. Guidelines for Child Asylum Claims, ¶ 39. 61 Id. 62 AOBTC Guidelines for Children’s Asylum Claims, p. 40. 63 8 C.F.R. § 208.13(b). 64 See 8 C.F.R. § 208.13(b)(1). 65 See 8 C.F.R. § 208.13(b)(1)(i). 66 Id. 60

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limited circumstances where a petitioner establishes asylum eligibility on the basis of past persecution without a well-founded fear of future persecution. 67 Future persecution. A child need not have experienced past persecution to qualify for asylum. Well-founded fear of future persecution is demonstrated in one of two ways. If they demonstrate they suffered past persecution, they are presumed to have a well-founded fear of future persecution. Otherwise, when past persecution cannot be shown, an applicant can establish a “well-founded fear” by showing a “reasonable possibility”—or ten percent chance—they will suffer persecution in the future. 68

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1. Establishing objective and subjective well-founded fear A well-founded fear of persecution requires both a subjective and an objective element. That is, the asylum-seeker must have a subjectively genuine fear AND the fear must be objectively reasonable. 69 Both of these requirements must be analyzed through a child-focused lens. a. Objective fear The objective factor concerns the child or youth’s fear in the context of their own past experiences, those of similarly-situated children, and conditions in the home country. One demonstrates well-founded fear by showing that a reasonable person—in this case, a child—in similar circumstances would fear persecution if returned to their country of nationality. 70 An applicant need not provide evidence that there is a reasonable possibility of individual persecution if they are able to establish that there is a pattern or practice in her country of nationality (or, if stateless, last habitual residence) of persecution of similarly situated people. 71 The Ninth Circuit intermediate standard falls between individual persecution and membership in a group suffering from persecution. This “disfavored group” analysis presumes the greater the persecution suffered by the group, the less individual persecution needs to be demonstrated. 72 All other circuits have rejected or declined to adopt the “disfavored group” test. 73

67

See 8 C.F.R. § 208.13(b)(1)(iii); see also Essentials of Asylum Law, Ch.2 (ILRC 2018). Cardoza-Fonseca, 480 U.S. at 440 (“There is simply no room in the United Nation’s definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.”); see also CrespinValladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011) (finding that the petitioner demonstrated that his removal would create a “reasonable possibility—as low as a ten percent chance—of persecution”) (internal quotation marks omitted). 69 Cardoza-Fonseca, 480 U.S. at 430-431; Matter of Acosta, 19 I&N Dec. at 224 (overruled on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)). 70 See Chen v. INS, 195 F.3d 198, 201-202 (4th Cir. 1999). 71 8 C.F.R. § 1208.13(b)(2)(iii); see also Rusak, 734 F.3d at 896 (noting that the petitioner need not demonstrate that she individually suffered persecution if she can establish a “pattern or practice” of similarly situated individuals); see also Avetova-Elisseva v. INS, 213 F.3d 1192, 1201 (9th Cir. 2000) (“[The regulation] brings the ‘pattern and practice’ requirement into play only as an alternative to an applicant’s showing ‘that he or she would be singled out individually for persecution’”). 72 Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994) (“the more egregious the showing of group persecution— the greater the risk to all members of the group—the less evidence of individualized persecution must be 68

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Researching child-specific country conditions, including the existence of child protection services in the home country, is critical. 74 The U.S. State Department’s Country Reports on Human Rights, and the Department of Justice virtual law library can be a good place to start. 75 It may also be helpful to review the National Documentation Packages issued by the Immigration and Refugee Board of Canada. 76 Additionally, UNHCR publishes reports online at “Refworld.” 77 Other resources include the independent reports published by Amnesty International, 78 Human Rights Watch, 79 and the practice advisories, expert declarations, and country conditions reports collected and maintained by the Center for Gender and Refugee Studies. 80

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Just because documentation regarding the abuse or poor treatment of children in a specific country is not readily available, that does not mean it is not happening. 81 As the Ninth Circuit noted concerning the availability of reports about child sexual abuse, “children who suffer sexual abuse are generally unlikely to report that abuse to authorities. Because they are unlikely to report, it is similarly unlikely that country reports or other evidence will be able to document the police response, or lack thereof, to the sexual abuse of children.” 82 adduced”); see also Tampubolon v. Holder, 610 F.3d 1056, 1060-1062 (9th Cir. 2010); Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004). 73 See Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007); Wijaya v. Gonzales, 2007 WL 1113660, at *1, n.1 (2d Cir. Apr. 6, 2007); Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3rd Cir. 2005), superseded by statute, REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(iii); Siagian v. Holder, No. 11-60558, 2012 WL 2086437, at *1 (5th Cir. June 8, 2012); Matulessy v. Holder, 2010 WL 1252963, at *6 (6th Cir. Mar. 31, 2010); Salim v. Holder, 728 F.3d 718, 722-24 (7th Cir. 2013) (rejecting the Ninth Circuit’s “disfavored group” approach when it calls for a “lower standard for individualized fear absent a ‘pattern or practice’ of persecution”); Winata v. Mukasey, 287 Fed.Appx. 544, 547 (8th Cir. 2008) (Gruender, J., concurring). 74 See U.N. Guidelines for Child Asylum Claims, ¶11. 75 See Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36 (1st Cir. 2005) (finding that the State Department has “acknowledged expertise in discerning the conditions that prevail in foreign lands,” and thus its reports are generally probative evidence of country conditions); Tota v. Gonzales, 457 F.3d 161, 166 (1st Cir. 2006) (noting that State Department Profile was generally probative of country conditions although its “advice” was not binding); Country Conditions Research, Executive Office for Immigration Review, https://www.justice.gov/eoir/country-conditions-research (last updated: July 5, 2018). 76 Country of origin information, Immigration and Refugee Board of Canada, https://www.irbcisr.gc.ca/Eng/ResRec/NdpCnd/Pages/index.aspx (last updated: July 3, 2018). 77 Country/Situation Specific Position Papers, UN High Commissioner for Refugees (UNHCR): http://www.refworld.org/publisher,UNHCR,COUNTRYPOS,,,0.html (last visited: Sept. 12, 2018). 78 Countries, Amnesty International, https://www.amnesty.org/en/countries/ (last visited: July 25, 2018). 79 Reports, Human Rights Watch, https://www.hrw.org/publications (last visited: July 25, 2018). 80 Search Our Resources, Center for Gender & Refugee Studies, http://cgrs.uchastings.edu/searchmaterials/search-our-resources (last visited: Sept. 12, 2018). 81 See also Waweru v. Gonzales, 437 F.3d 199, 203 (1st Cir. 2006) (evidence in country reports do not “automatically trump” a petitioner’s specific evidence); Palma-Mazariegos, 428 F.3d at 35 (“abstract evidence of generalized changes in country conditions, without more, cannot rebut a presumption of a wellfounded fear of future persecution”); Chand v. INS, 222 F.3d 1066, 1077 (9th Cir. 2000) (refusing to “infer that a petitioner’s otherwise credible testimony is not believable merely because the events he relates are not described in a State Department document”). 82 Bringas-Rodriguez, 850 F.3d at 1071.

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Advocates should also consider the child’s economic and social context, including their family background, class, caste, health, education, and income level, as these factors may influence their vulnerability to persecution. 83 The U.N. Guidelines on Child Asylum Claims articulates the following examples of how certain children may be at particular risk for persecution: •

• •

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Homeless or abandoned children are at risk of sexual abuse, exploitation, and recruitment by armed forces or gangs, as well as clandestine groups’ “social cleansing” efforts. Children with disabilities may not have access to necessary medical treatment and may be stigmatized in their community because of their disability. Children born out-of-wedlock, or as a result of rape, and children born in violation of coercive family planning policies may suffer abuse and severe discrimination. Pregnant girls may be forced out of their home and vulnerable to violence or prostitution.84 b. Subjective fear

In addition to presenting evidence in support of the objective prong, an asylum applicant “must present candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” 85 This fear must be tied to facts, and not merely irrational apprehension. 86 USCIS acknowledges that it is difficult to assess the balance between subjective fear and objective circumstances for children. 87 Because children may have difficulty sharing their genuine fear of returning to their home country, advocates can use objective evidence—like country reports—to contextualize the child’s subjective fear. 88 Advocates may realize through their research that the child faces tremendous danger based on certain country circumstances, but the child has not comprehended this danger and has not expressed their fear. The U.N. Handbook notes that children under the age of sixteen may lack the maturity to form a well-founded fear of persecution, requiring the asylum adjudicator to give more weight to the objective factors.89 83

See U.N. Guidelines for Child Asylum Claims ¶ 12. See id. at ¶ 12. 85 Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir. 2006); accord Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008); Singh II, 69 F.3d at 378 (citing Shirazi-Parza v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994)). 86 See Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987) (finding that Blanco-Comarribas’ genuine fear was tied to specific facts and risks and thus was a well-founded fear). 87 AOBTC Guidelines for Children’s Asylum Claims, p. 40-41. 88 See Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir. 2004) (overturning finding that nine-year-old expressed only a “general ambiguous fear,” noting that young children may be incapable of articulating fear to the same degree as adults and that younger children should be given a “a liberal benefit of the doubt”). 89 This is just a general guideline, and an individual’s maturity should be determined within the context of their personal, family, and cultural background. See U.N. Handbook ¶¶ 215-18; see also U.N. Guidelines for Child Asylum Claims ¶ 11; UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status; Memorandum from Bo Cooper, Gen. Counsel, U.S. Dep’t. of Justice, Office of the Gen. Counsel, to Doris Meissner, Commissioner, pp. 10-11 (Jan. 3, 2000) available at 84

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In other cases, the subjective fear expressed by the child may seem exaggerated, or it may seem that the harm the child fears does not appear to rise to the level of persecution in light of the objective fear requirement. 90 However, advocates should remember that children experience fear and persecution differently than adults. Therefore, advocates may wish to use child psychologists to help document the well-founded fear of the child asylum seekers.

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USCIS also looks at the family’s intentions, the child’s arrival, and similarly situated families to determine whether a child asylum seeker has a well-founded fear of persecution. 91 Sometimes persecutors target only children and do not seek retribution on family members, for example, when a child is living with a grandparent rather than an immediate family member. The AOBTC Guidelines for Children’s Asylum Claims states: “Where there appears to be a conflict of interest between the child and the parents, the asylum officer will have to come to a decision as to the well-foundedness of the minor’s fear on the basis of all the known circumstances, which may call for a liberal application of the benefit of the doubt.” 92 USCIS will also consider whether the family’s actions indicate a desire for the child to be outside of their home country. 93 Alternatively, if the family’s actions indicate that they abandoned, neglected or abused the child, this may also support the child’s fear of persecution by relatives. 94 Finally, USCIS has stated that a child’s arrival in the company of other asylum seekers lends credence to a well-founded fear of persecution, depending on the circumstances. 95 D.

Internal relocation within the country of persecution is not possible

Asylum adjudicators are required to consider whether internal relocation within the applicant’s home country would be both a safe and reasonable solution. 96 Federal regulation provides that relocation is presumed to be unreasonable where past persecution has been established or the feared persecution is by the state. 97 Adjudicators should look at whether such relocation is “reasonable under all the circumstances.” 98 Factors in reasonableness of relocation include: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Archive%2019982008/2000/ins_counsel_elian_gonzalez.pdf (describing objective factors to look to when a child is too young to articulate an asylum claim). 90 See Cruz-Diaz v. INS, 86 F.3d 330, 331 (4th Cir. 1996). 91 See AOBTC Guidelines for Children’s Asylum Claims, pp. 41–42. 92 Id. (citing the U.N. Handbook, ¶ 219). 93 AOBTC Guidelines for Children’s Asylum Claims, p. 42. 94 Id. 95 Id. 96 8 C.F.R. § 1208.13(b)(3); Towards the end of Matter of A-B-, Attorney General Sessions opines that internal relocation “would seem more reasonable” when an applicant has suffered harm “at the hands of only a few specific individuals.” Matter of A-B-, 27 I&N Dec. at 345. Yet, the decision cites no factual evidence or legal arguments to support this statement, while also ignoring the regulations requiring that internal relocation be both safe and reasonable. See 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(1)(ii). 97 8 C.F.R. § 1208.13(b)(3); see also Knezevic v. Ashcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004) (determining that while it would be safe for the petitioners to relocate to the Serb-held parts of BosniaHerzegovina, it would not be reasonable for them to internally relocate); Singh v. Moschorak, 53 F.3d 1031 (9th Cir. 1995); Abel-Maseih v. INS, 73 F.3d 579 (5th Cir. 1996). 98 8 C.F.R. § 1208.13(b)(3)(ii).

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• • • • •

Whether the applicant would face other serious harm in the place of suggested relocation; Ongoing civil strife in the country; Administrative, economic, or judicial infrastructure; Geographic limitations, such as the size of country; and Social and culture constraints, such as age, health, social and familial ties.99

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Where internal relocation may be possible for an adult, it may not be possible for a child. 100 Age and the best interests of the child standard should be considered in determining whether internal relocation is possible. 101 § 12.3 Nexus and the Protected Grounds In addition to establishing a well-founded fear of persecution, asylum seekers must show that the persecution is on account of one of the five grounds in refugee law and U.S. asylum law: race, religion, nationality, political opinion, or membership in a particular social group. This nexus requirement demands that the applicant show a connection between the persecution suffered or feared, and one or more of the protected grounds. I. NEXUS Applicants must prove the three different elements—fear of persecution, nexus, and the protected ground—separately. The applicant must first establish that they have a well-founded fear of suffering harm that amounts to persecution. They must also establish that they fall within the protected ground (or, in the case of an imputed identity, they must establish that the persecutor believes the applicant falls within the protected ground even if the applicant does not). The applicant must then establish that their race, religion, nationality, political opinion, or membership in a particular social group was one central reason why the persecutor was or will be motivated to harm the applicant. This last element is the nexus element, which involves proving a connection between the persecutor’s motive and one of the five protected grounds. Proving nexus is often the most difficult part of an asylum case, especially for children. The “on account of” terminology relates to the motives of the persecutor. Because of the difficulty in proving motive, the “Supreme Court does not require an applicant to provide direct evidence that their persecutors were motivated by one of the protected grounds; instead, compelling circumstantial evidence is sufficient.” 102

99

Id. AOBTC Guidelines for Children’s Asylum Claims, p. 42 (“It is generally not reasonable to expect a child to relocate by himself or herself.”); U.N. Guidelines for Child Asylum Claims, ¶ 56 (“What is merely inconvenient for an adult might well constitute undue hardship for a child, particularly in the absence of any friend or relation. Such relocation may violate the human right to life, survival and development, the principal of the best interests of the child, and the right not to be subjected to inhuman treatment.”). 101 U.N. Guidelines for Child Asylum Claims, ¶ 56. 102 INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (noting that an applicant for asylum must present “some evidence”—direct or circumstantial—that the harm they fear is “on account of” one of the enumerated grounds). 100

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A.

Multiple grounds

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It is common for more than one statutory ground to be applicable in a particular case. For example, an applicant may have been harmed due to their political opinion and their race, or because they belonged to a particular social group and that they held certain religious beliefs. Where more than one statutory ground applies, an applicant should apply for asylum based on all the grounds that apply.103 This is important not only because different adjudicators might be more inclined to grant the claim on certain grounds, 104 but also to avoid waiving an argument for appeal. An applicant must establish a nexus for each of the protected grounds claimed for each of the grounds to count independently as a claim for asylum. Advocates should explore all grounds with their client in constructing an asylum case, as failure to pursue a viable potential ground in an asylum claim may be ineffective assistance of counsel. B.

Mixed motives and the REAL ID Act

Acts of persecution may involve a protected ground (race, religion, nationality, political opinion, or particular social group) and a non-protected ground. These are referred to as “mixed motive” cases. Previously, an asylum applicant did “not bear the unreasonable burden of establishing the exact motivation of a persecutor where different reasons for actions” were possible. 105 The REAL ID Act of 2005 106 raised the burden of proof an asylum applicant must satisfy, namely that the protected ground needs to be one “central reason” for the persecution. 107 For mixed-motive cases filed after May 11, 2005, the REAL ID Act requires that the applicant “must establish” that one of the five enumerated grounds “was or will be at least one central reason for persecuting the applicant” (emphasis added). 108 The BIA 109 and numerous federal

103

This is especially important in light of Matter of A-B-, where Attorney General Sessions expressed deep skepticism of the validity of particular social groups based on domestic violence and gang violence. See Matter of A-B-, 27 I&N Dec. at 337. The decision did not foreclose those social groups entirely, but some adjudicators may interpret Matter of A-B- as providing a broad license to overly scrutinize and outright deny domestic violence and gang violence-based asylum applications without careful consideration. Thus, it is more important to put forth all valid bases for persecution. 104 Note that, while immigration judges may indicate on what ground they are approving an application, a USCIS asylum officer almost never does. Therefore, it may be hard to know what compelled one USCIS officer to grant asylum based on one claim rather than another claim. 105 Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988) (internal quotation marks omitted) (superseded by statute on other grounds). 106 REAL ID Act of 2005 § 101(a)(3)(B)(i), 8 USCA § 1158(b)(1)(B)(i) (West 2008). 107 Id. 108 Id. 109 Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212, 216 (BIA 2007) (finding that a land dispute between the applicant and his hostile aunt and cousin was mainly personal rather than on account of Burundian nationality); see also, Matter of N-M-, 25 I&N Dec. 526 (BIA 2011), (showing of retaliation for opposing government corruption, on its own, was insufficient to establish asylum and laying out three-prong test for evaluating nexus in anti-corruption cases).

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circuits have interpreted “one central reason” to mean that the protected ground “cannot be incidental, tangential, superficial, or subordinate to another reason for harm.” 110 C.

Imputed grounds

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An applicant can show nexus to either an actual ground (their actual political opinion, race, nationality, religion, or membership in a particular social group) or to a ground the persecutor imputes to them. The latter refers to a protected ground that the persecutor attributes to the individual, whether or not that individual actually identifies with that political opinion, race, nationality, religion, or membership in a particular social group. 111 The persecution is based on a perceived rather than an actual ground. An imputed protected ground is an equally valid alternative to showing that the harm was motivated by an actual protected ground. For more information on how to establish nexus, including more information on motive and burdens of proof, see the ILRC’s manual Essentials of Asylum Law. II. FIVE PROTECTED GROUNDS A.

Race and nationality

Children and youth may be targeted for persecution based on their race and/or nationality. In the context of asylum law, race is a broad term meant to encompass ethnic and/or linguistic groups. The U.N. Handbook states that “race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. Frequently it will entail membership of a specific social group of common descent forming a minority within a larger population.” 112 For example, young girls from minority groups may be specifically targeted for rape or trafficking. 113 Children may also be denied to right to be registered at birth, or to attend school or receive health services.114 Children may also face persecution based on their nationality. The U.N. Handbook states: “[Nationality] is not to be understood only as ‘citizenship.’ It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term ‘race.’… [I]n certain circumstances the fact of belonging to such a minority may in itself give rise to a well-founded fear of persecution.” 115

110 Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (noting that the Fifth Circuit recognizes the BIA’s interpretation of “one central reason” as stated in Matter of J-B-N & S-M-, along with the First, Fourth, and Ninth Circuits); see also Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3rd Cir. 2009); Shaikh v. Holder, 702 F.3d 897, 901 (7th Cir. 2012); Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010). 111 See generally Elias, 502 U.S. 478. 112 U.N. Handbook, ¶ 68. 113 U.N. Guidelines for Child Asylum Claims, ¶ 41. 114 Id. 115 U.N. Handbook, ¶ 69, p. 13.

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Race and nationality persecution often overlap as well. The Ninth Circuit has also used the term “ethnicity,” instead of “race,” as it describes “a category which falls somewhere between and within the protected grounds of ‘race’ and ‘nationality.’”116 B.

Political opinion

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Courts have interpreted “political opinion” to cover a wide range activities and beliefs. An applicant need not have been politically active to hold a political opinion, or have a specific belief about the government or political parties. Instead, “political opinion” applies to beliefs about the society in which the applicant lived. Under this broad understanding, children and youth are capable of holding political opinions. An applicant can demonstrate a political opinion through overt expressions.117 A person can also express a political opinion non-verbally, or political stances can be stated only in private. 118 Belief, by itself, is sufficient so long as the persecutor was motivated by the applicant’s beliefs. Political opinions can also be expressed through actions, including elective membership in particular groups such as political, student, and union organizations,119 and participation in activities such as demonstrations, propaganda distribution, and slogan painting, 120 even where the person was not a member. 121 Conversely, members of certain organizations can be persecuted regardless of their level of commitment or involvement in the group’s activities. Advocates should carefully explore the ground of political opinion because many, particularly children, do not conceptualize their beliefs or activities as political, even though case law may recognize them as so. For example, a child standing up against strict gender norms may constitute a manifestation of a political opinion regarding women’s equality. 122 Moreover, opposition to medical or psychological treatment to “cure” one’s sexual orientation or transgender identity may constitute a political opinion. 123

116 Duarte de Guinac v. INS, 179 F.3d 1156, 1159, n.5 (9th Cir. 1999) (finding that an indigenous Quiche petitioner had suffered ethnic persecution, rather than mere discrimination as a soldier). 117 See Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997). 118 Rivas-Martinez v. INS, 997 F.2d 1143, 1147 (5th Cir. 1993). 119 Osorio v. INS, 18 F.3d 1017, 1030 (2nd Cir.1994) (finding that Osorio’s union activities and organized media campaign expressed a political opinion); Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2nd Cir. 1993) (proceeding on the assumption that “persecution for union activities entitles an alien to asylum”). 120 Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985); see also Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir. 1985) (reversing BIA denial withholding, based on applicant’s testimony that he was involved in certain political activities). 121 U.N. Guidelines for Child Asylum Claims, ¶ 45. 122 See Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993). 123 See Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007), which concerned a lesbian from Uganda who was expelled from her clan after her relatives forced her to have sex with a man to “cure” her of her lesbianism. Similarly, in Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), the Russian authorities required Pitcherskaia to attend therapy sessions, and they institutionalized her ex-girlfriend and subjected her to electroshock therapy treatments, both to again “cure” these women of their sexual orientation. In Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the applicant’s sister tried to change her brother

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Children and youth more often may have political opinions imputed to them. 124 Children’s political opinions, for example, may be imputed to them based on their family’s political opinion. In this case, advocates should advance a claim based on imputed political opinion as well as the child’s membership in a particular social group, as case law has established concepts of family group membership. C.

Religion

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Religious beliefs are another basis for an asylum claim. Children typically have limited choice over what religion their families practice. 125 Further, they may be persecuted on the basis of their family’s religion, even if they do not subscribe to the same belief system. The doctrine of imputed beliefs can be applied in the religion context. 126 In this instance, the child would provide evidence of the persecutor’s perception of their beliefs based on their family relationship. Girls in particular are vulnerable to forms of persecution linked to religious traditions, such as forced marriage, honor crimes, and female genital persecution (FGM).127 Resisting such traditions or resisting gender roles based on religious customs can itself be understood to be a religious belief. 128 It is important to understand the distinction here, because the religious beliefs that matter to meet the protected ground element are those of the applicant, not the persecutor. Nevertheless, detailed knowledge about a religion or adherence to religious practices is not required for a religion-based persecution claim. 129 In this sense, a claim based on religious beliefs can be very similar to a claim based on political opinion. D.

Membership in a particular social group

Membership in a particular social group has been the subject of the most innovation and controversy in asylum law. It does not require formal membership in an official group organization (i.e., political party, labor union, or church). Instead, analyze whether the applicant would be included, in the eyes of their society, in a grouping of persons who are seen as distinct. The following is a list of the most common bases for membership in a particular social group for children’s asylum claims. This section will cover the bases on this list and briefly explore other factors to take into account. Please remember that this list is not exhaustive: by enrolling him in a counseling program to “cure” him of his homosexuality, and ultimately ended up kicking him out of her house. 124 See Matter of S-P-, 21 I&N Dec. 486, 495-96 (BIA 1996) (recognizing that U.S. State Department reports suggest that young Tamil males captured in a political opposition camp could “readily be assumed to have political views antithetical to those of the Government”); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir. 2004); see also U.N. Guidelines for Child Asylum Claims, ¶ 46. 125 U.N. Guidelines for Child Asylum Claims, ¶ 43. 126 See Rizal v. Gonzales, 442 F.3d 84, 90 n. 7 (2d Cir. 2006) (“[E]ven an individual who does not subscribe to a certain religion, but is nonetheless … persecuted on account of others’ perception that he does, may well be able to establish a religious persecution claim under a theory of ‘imputed religion’ analogous to the ‘imputed political opinion’ theory.”). 127 Id. at ¶ 44. 128 See Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000). 129 See Mezvrishvili v. Att’y. Gen., 467 F.3d 1292, 1296 (11th Cir. 2006).

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Age/status as children; Gang-based claims; Family membership; Clan membership; Sexual orientation: LGBTQ claims; Gender; Child soldiers and former child soldiers; Children with HIV/AIDs.

The U.N. Handbook defines social group as “persons of similar background, habits, or social status.” 130 There is no definition of “particular social group” in the INA, and the requirements of a particular social group (“PSG”) have been heavily litigated. The BIA has been careful not to provide too specific of a definition of who is a member of a qualifying group by stating that “the particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis.”131 Later case law has clarified that “the BIA may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity, especially where [] it is presented with evidence showing that the proposed group may in fact be recognized by the relevant society.” 132 1. Immutability Matter of Acosta requires members of a particular social group to share a “common, immutable characteristic.”133 The BIA described it as “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”134 Examples include an individual’s race, family relationships, former affiliations or profession, sexual orientation, and gender identity. A shared past experience such as “former military leadership or land ownership” can also be an immutable characteristic.135 Although the immutable characteristic requirement of the Acosta definition remains fundamental to social group analysis, the BIA has subsequently tried to further define the contours of the social group definition in response to inconsistent case law in the circuit courts. Unfortunately, these additional requirements have created more confusion than clarity. In light of this unclear case law, advocates should emphasize the “case-by-case” approach to the analysis of a particular social group.

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U.N. Handbook, ¶ 78. Id. at 227. 132 Pirir-Boc, 750 F.3d at 1084; but see Reyes, 842 F.3d 1125 (noting that the BIA’s determination in a published precedential decision that a group is recognized is entitled to Chevron deference). 133 Matter of Acosta, 19 I&N Dec. at 233. 134 Id. (emphasis added). 135 Id. at 233. 131

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PRACTICE TIP: This “case-by-case” standard is especially important to highlight in light of Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). 136 A-B- questions the validity of particular social groups based on domestic violence and gang violence. Advocates should resist this contention. As explained in Matter of Acosta, adjudicators must analyze social groups individually based on the specific evidence and circumstances of each petitioner and the society in question. Specifically, adjudicators must consider society-specific evidence submitted by the applicant such as U.S. State Department Country Reports, Congressional Research Service Reports, reports by non-government organizations and news articles about the group (i.e., domestic violence victims, former gang members, street children). This type of evidence helps to show that the particular society recognizes that group. The client’s affidavit is also an important place to explain how the relevant society views and treats members of the group. 2. Particularity The BIA has emphasized the need to define the boundaries of a particular social group. The core question is “whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.”137 Applicants must show how their immutable characteristic sets them apart from other members of society “in some significant way.”138 The BIA cautioned against amorphous groups without any common traits that set this group apart and make them specifically vulnerable.139 If the practitioner defines the group too broadly, the adjudicator may reject it out of a fear of “opening the floodgates.” Practitioners should be mindful of this public policy concern, which has been invoked in cases involving gang-based persecution.140 But a particular social group should not be determined invalid simply because it represents too large a portion of the population.141 In sum, it is important to articulate the benchmarks for the group.142 One place to look for evidence of how a particular society defines the group is the laws or rules within that society that focus on specific groups. 3. Social distinction In 2014, the BIA clarified that social distinction is the third part of the social group analysis. Social distinction requires that the applicant show how the particular social group is set apart within its society. In Matter of M-E-V-G-, the BIA stressed that applicants must show how their society, rather 136

See also Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014). Matter of S-E-G, 24 I&N Dec. 579, 584 (BIA 2008) (emphasis added). 138 Matter of M-E-V-G, 26 I&N at 238 (BIA 2014). 139 Id. at 586. 140 See Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012) (asserting that “a group consisting of all family members of that already large segment [referring to individuals who refused to join the Mara 18 gang], is even less particularized and therefore does not meet the particularity requirement”); see also Matter of A-B-, 27 I&N Dec. 316, 335 (expressing doubt about the success of particular social groups defined “by their vulnerability to private criminal activity” because “broad swaths of society may be susceptible to victimization”). 141 See Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) (remanding to the BIA for a ruling on whether “Guatemalan women” could constitute a particular social group). 142 Id. at 584. 137

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than the persecutor, perceives the group. 143 The adjudicator must make a case-by-case determination about whether a group is recognized by the particular society in question. 144 Previously, the BIA referred to this requirement as “social visibility,” which caused confusion about whether the BIA only would recognize groups that embodied characteristics that were literally visible in the “ocular” sense.145 It does not.

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The BIA also clarified in Matter of M-E-V-G- that social groups may be based on both overt characteristics that are visible, and those that are not literally visible but “subtle and only discernible by people familiar with the particular culture.” 146 While particularity and social distinction have been incorporated into social group analysis, some circuits have disputed the limits of the BIA’s social group standard and instead adhere exclusively to the immutable characteristic test.147 Practitioners are advised to keep a close eye on the development of case law in their circuit on this topic. a. Age/status as children Although youth is a temporary state, it can be the basis for a valid asylum claim if an individual has experienced persecution in the past or fears persecution in the future due to their age.148 Advocates, however, should be specific in defining the social group, as age or “children” alone have been found to be too broad a class of individuals to qualify as a particular social group. 149 Factors such as ethnicity, class, gender, and other identities should also be included in shaping the social group definition. Advocates should argue how certain harmful practices are targeted to minors, such as female genital mutilation, forced marriage, forced sterilization, gang recruitment. The U.N. Guidelines for child asylum claims also provide that age, status, and visibility as a child may provide a basis for the social group claim. In most societies, children are set apart from adults as they are understood to require special attention or care, and they are referred to by a range of descriptors used to identify or label them, such as “young”, “infant”, “child”, “boy”, “girl” or “adolescent.” [sic] The identification of social groups also may be assisted by the fact that the children share a

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Matter of M-E-V-G, 26 I&N at 240, 242. Pirir-Boc, 750 F.3d at 1084. 145 Matter of M-E-V-G, 26 I&N at 227–28. 146 Id. at 236. 147 See Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (applying on the immutable characteristic test, and rejecting the social visibility and particularity requirements, to hold that “young Albanian women living alone” was a cognizable group). 148 Matter of S-E-G-, 24 I&N Dec. 579, 583 (BIA 2008). 149 Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (“Moreover, children as a class represent an extremely large and diverse group, and children, even within a single neighborhood, have a wide degree of varying experiences, interests, and traits.”); Gomez v. INS, 947 F.2d 660 (2d Cir. 1991) ( “Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.”). 144

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common socially-constructed experience, such as being abused, abandoned, impoverished or internally displaced.150 There are few published cases that discuss the relationship between children and particular social group. The Third Circuit found the social group comprised of “former child soldiers [of the Lord’s Resistance Army] who have escaped” “fits precisely within the BIA’s own recognition that a shared past experience may be enough to link members of a particular social group.” 151 In addition to researching the most up-to-date case law, refer to the Center for Gender and Refugee Studies Children’s Asylum Manual: A Resource for Practitioners. 152

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b. Gang-based claims Increasingly, children and youth have been fleeing gang violence or gang recruitment in their home countries, particularly in Central America. Many are not gang-involved, while others are fleeing as the only means to safely leave a gang. Many of these claims are legitimate claims of fear based on very serious dangers they may face if forced to return to their home country. Gang-based claims are a complex and constantly changing area of asylum law. There is an increasing willingness to recognize gang-based persecution within the context of a family-based particular social group. Courts have been more reluctant to grant asylum in gang-related cases based on other protected grounds, such as political opinion or religious beliefs. A critical challenge with regard to gang-based social group claims is how to satisfy the particularity and social distinction requirements. In Matter of S-E-G-, the BIA denied asylum to Salvadoran youth who have resisted gang membership based on their own personal and religious values, finding that this group did not meet these additional elements. 153 However, the subsequent cases

150 U.N. Guidelines for Child Asylum Claims, at ¶ 49 (“Although age, in strict terms, is neither innate nor permanent as it changes continuously, … [a] child is clearly unable to disassociate him/herself from his/her age in order to avoid the persecution feared. The fact that a child eventually will grow older is irrelevant to the identification of a particular social group, as … [m]any government policies are age-driven or agerelated, such as the age for military conscription, the age for sexual consent, the age of marriage, or that age for starting and leaving school.”). 151 Lukwago, 329 F.3d at 178. 152 Center for Gender and Refugee Studies, Children’s Asylum Manual: A Resource for Practitioners (Apr. 2016) available at https://cgrs.uchastings.edu/news/cgrs-releases-childrens-asylum-manual. 153 Matter of S-E-G-, 24 I&N Dec. 579, 583-84 (BIA 2008); see also Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009) (finding there was no evidence that those who resisted recruitment by gangs were socially visible or sufficiently particular); Santos-Lemus v. Mukasey, 542 F.3d 738, 745 (9th Cir. 2008) (“young men in El Salvador resisting gang membership” failed as a particular social group because the group lacked social distinction and lacked particularity); Lizama v. Holder, 629 F.3d 440, 446-47 (4th Cir. 2011) (rejecting the characterization of “young, Americanized, well-off Salvadoran male deportees with criminal histories who oppose gangs” as a particular social group for lack of immutability, and because the qualities “are all amorphous characteristics”).

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of Matter of M-E-V-G and Matter of W-G-R- make clear that not all gang-based asylum claims are automatically foreclosed and must be evaluated based on its specific contexts. 154

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Finally, Matter of A-B- 155 creates numerous hurdles for individuals seeking asylum based on gang violence, but the underlying legal framework for asylum eligibility remains in place. This case, together with the accompanying USCIS and ICE guidance memoranda, portend to restrict gangbased claims but does not foreclose them altogether. For more information, Center for Gender and Refugee Studies (CGRS) has a number of comprehensive guides related to Matter of A-B-: https://cgrs.uchastings.edu/a-b-backgrounder. i.

Family-based social groups and gangs

Some courts have been willing to consider family-based social groups that relate to gang persecution. Given recent precedent specifically in the Fourth Circuit, this may be an advisable social group to advance if the applicant has faced gang-based persecution. 156 The BIA has recently recognized gang-based persecution within the family context.157 Additionally, the Fourth Circuit in Salgado-Sosa v. Sessions, 882 F.3d 451 (4th Cir. 2018), found that Salgado-Sosa’s family ties were at least one central reason for the harm when the applicant was harmed after his stepfather refused to pay a “war tax.” The BIA improperly relied on the “immediate trigger” for the attacks of “greed and revenge,” 158 and the “right question” to ask was “whether he was targeted because of his membership in the social group consisting of his immediate family.” 159

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See Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208, 212 (BIA 2014) (review granted in part and vacated on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). 155 See Matter of A-B-, I&N Dec. 316. 156 Advocates should be mindful of adjudicators that may cite Matter of A-B- not only to discredit a gangbased asylum claim, but also for the proposition that any family-based asylum claims are invalid. 27 I&N Dec. at 333 n.8 (“There is reason to doubt that a nuclear family can comprise a particular social group under the statute.”). Advocates should cite the extensive BIA and circuit law in this section to show that this group is still a valid basis for asylum. 157 Id. at 43 (emphasis added). Matter of L-E-A-, Respondent, 27 I&N Dec. 40 (BIA 2017) (accepting that “members of an immediate family may constitute a particular social group, but noted that not all family relationships would qualify for protection, explaining that such claims “will depend on the nature and degree of the relationships involved and how those relationships are regarded by the society in question”); see also In re C-A-, 23 I&N Dec. 951 (BIA 2006), Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (considering withholding of removal claim; see also Thomas v. Ashcroft, 359 F.3d 1169, 1178 (9th Cir. 2004) (“[T]he acts committed against the Thomases were sufficiently linked to their family membership so as to constitute alleged persecution on the basis of membership in a particular social group.”). 158 Id. 159 Id. at 459 (internal brackets omitted). See also Zavaleta-Policiano; O.M.P.; Z.A.P.; M.E.P. v. Sessions, 873 F.3d 241, 249 (4th Cir. 2017) (finding applicant’s relationship to her father was a central reason why MS-13 gang members targeted and threatened her); Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015); Cordova v. Holder, 759 F.3d 332, 334-35 (4th Cir. 2014) (finding nexus to family membership where MS-13 members physically attacked and shot applicant because he was seen with his cousin, who had recently joined the rival Mara 18 gang).

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However, not all circuits are in agreement with the Fourth Circuit. Although the First Circuit recognizes the nuclear family as a particular social group, recent published decisions have upheld denials because the applicant could not show that she would be harmed “on account of” the family relationship.160 The First Circuit, along with the Fifth, 161 Eighth, 162 and Tenth Circuits (unpublished), 163 have also found that family members of those who resist gang recruitment or family of gang-aged men fail because such groups are too broad. The Ninth Circuit has had mixed decisions regarding this issue. 164

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Although the circuits have mixed positions, these cases demonstrate that it is not enough to just state that the applicant and their family has faced or will face persecution from gangs to create a cognizable family-based social group. The applicant will also need to establish that their family was targeted by gang members specifically because of their family membership. ii. Current and former gang members165 Though a “shared past experience” may create a cognizable social group under Matter of Acosta, courts have been reluctant to extend that same reasoning to former gang members. 166 The BIA’s reasoning with regard to former gang membership has been varied. In Matter of W-G-R-, the BIA found that a particular social group composed of former gang members failed to be sufficiently particular because “the group could include persons of any age, sex, or background.” 167 According to the BIA, additional specificity would be required such as defining the group by “the duration or strength of the members’ active participation in the activity and the recency of their active participation.” 168

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Villalta-Martinez v. Sessions, 882 F.3d 20 (1st Cir. 2018); de Abarca v. Holder, 757 F.3d 334 (1st Cir. 2014). 161 See Monson v. Holder, 685 F.3d 511 (5th Cir. 2012). 162 Constanza v. Holder, 647 F.3d 749 (8th Cir.2011). 163 Campos-Perez v. Holder, 490 Fed.Appx. 995, 998 (10th Cir. 2012) (rejecting social group based on “family members remain involved in suppressing gang activity and because gang members have been looking for her”). 164 See Martinez-Seren v. Holder, 394 Fed.Appx. 404 (9th Cir. 2010) (remanding to the BIA to consider whether gang harmed applicant because of his family relationship); Olmos Borja v. Holder, 550 Fed.Appx 517, 519 (9th Cir. 2013) (recognizing that one central reason for an applicant’s gang-based persecution was the applicant’s membership in “a family who actively opposes the gang because its members killed [the applicant’s] sister”). 165 For more information, practitioners are advised to visit the websites of organizations such as the Center for Gender and Refugee Studies, the Immigrant Law Center of Minnesota, the Capitol Area Immigrants’ Rights Coalition; and the National Center for Refugee and Immigrant Children. 166 Matter of Acosta, 19 I&N Dec. 211. 167 Matter of W-G-R-, 26 I&N Dec. at 222; see also Matter of E-A-G, 24 I&N Dec. 591, 596 (BIA 2008) (determining that membership in a gang could not qualify as a particular social group). 168 Id. (finding that the evidence in the record failed to establish the social distinction of the group in society). Practitioners have criticized W-G-R- for conflating the element of particularity with the wellfounded fear and nexus requirements.

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The circuit courts are divided on the issue. The concept of an immutable “former membership status” is firmly established in the Seventh, 169 Third, 170 Fourth and Sixth Circuits. 171 Other circuits have been less willing to recognize former gang status as a valid basis. The First, Ninth, and Eleventh circuits have recognized that former gang members could be a particular social group, but found that Congress did not intend for these individuals to receive asylum protection. 172

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Although not all circuits have used such forceful language to reject former gang members as a distinct social group, practitioners should be mindful of this public policy concern when crafting social groups based on former gang affiliations. The cases denying asylum to former gang members are significant because former gang affiliates are not only targeted by current gang members but also by anti-gang policies in Central America such as mano dura (iron fist) policies. These policies allow police to imprison citizens without due process for even suspected gang affiliation. The consequences of these policies are severe because affiliation can be determined solely by presence of gang tattoos, thereby exposing former members to continuous police harassment. 173 PRACTICE TIP: The cases discussed in this section illustrate the public policy concerns considered by the courts, regarding the potential associations between asylum applicants and 169

Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016) (“former gang members”); Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009); Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009) (explaining that former membership in a group “is a characteristic impossible to change”); see also Sepulveda v. Gonzalez, 464 F.3d 770 (4th Cir. 2006). 170 See Lukwago, 329 F.3d at 178–79 (holding that former members of a guerrilla group constituted a particular social group). 171 See Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) (finding that former gang member is a member of a particular social group); Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. 2010) (explaining “it is impossible for Urbina-Mejia to change his membership in the group of former 18th Street gang members”). The court in Urbina-Mejia also clarified that its decision was not preclude by a prior finding in Castellano Chacon v. INS, 341 F.3d 533, 549 (6th Cir 2003), that “tattooed youth” with gang symbols did not share an innate characteristic, or a past experience. 172 See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 (11th Cir. 2010) (former members of the Mara-18 gang from Honduras); Cantarero v. Holder, 734 F.3d 82, 86 (1st Cir. 2013) (“in light of the manifest humanitarian purpose of the INA, Congress did not mean to grant asylum to those whose association with a criminal syndicate has caused them to run into danger”); Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007) (“We cannot conclude that Congress, in offering refugee protection for individuals facing potential persecution through social group status, intended to include violent street gangs who assault people and who traffic in drugs and commit theft.”). The Eleventh and First Circuits noted that they relied on precedential BIA opinions as a matter of Chevron deference. See Gonzalez, 820 F.3d at 405; see also Cantarero v. Holder, 734 F.3d at 86. 173 See International Crisis Group, El Salvador’s Politics of Perpetual Violence (Dec. 19, 2017) available at http://www.refworld.org/publisher,ICG,,,5a3cf2394,0.html; see also Latin America Working Group Education Fund, El Salvador: Gang Violence and Growing Abuses by State Security Forces (Nov. 13, 2017) available at http://lawg.org/action-center/lawg-blog/69-general/1945-el-salvador-gang-violence-andgrowing-abuses-by-state-security-forces; see also Washington Office on Latin America (WOLA), Central American Gang-Related Asylum: A Resource Guide, May 2008.

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criminal organizations. Reflecting these concerns, many adjudicators will not want to grant asylum to individuals that they perceive as undeserving of this benefit, even if there is no criminal record triggering a bar to asylum. 174

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However, many of these decisions were issued before Matter of M-E-V-G- and Matter of W-G-R-; and the courts’ reasoning has been questioned persuasively by advocates, who encourage practitioners not to be dissuaded by this prior case law. Practitioners must be prepared to address whether an applicant previously engaged in criminal activity that may subject them to a bar to asylum. But practitioners should also argue against broader policy concerns impacting the specific case analysis, and highlight the separation between an applicant and any gang with which they formerly associated. Youth fleeing persecution on account of former membership in a gang will need to distinguish their own situations from any negative gang-based case law in their circuit and build strong factual records in support of their claims. Although many youth are indeed harassed or persecuted on account of gang tattoos in their home countries, 175 these youth will need to prove that their social group consists of something more particular than “tattooed youth.” Researching the law of your particular circuit will be key, as the case law is ever evolving in this area. iii. People refusing recruitment by gangs There is an extensive history of federal courts refusing to recognize particular social groups predicated on resistance to recruitment from a gang. 176 This is despite the concession that a past experience of refusing to join is an irreversible and immutable characteristic.177 The trend had been for courts to cite S-E-G- as a blanket ban on such groups without much analysis of the underlying facts specific to each case. 178 However, under Matter of M-E-V-G, the particular social 174

See also, e.g., Matter of E-A-G-, 24 I&N Dec. 591, at 595-596 (BIA 2008) (“young persons who are perceived to be affiliated with gangs” cannot be construed as a particular social group because it is “inconsistent with the principles underlying the bars to asylum”). 175 WOLA, Central American Gang-Related Asylum: A Resource Guide. 176 See, e.g., Matter of S-E-G-, 24 I&N Dec. 579; Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015); Juarez Chilel v. Holder, 779 F.3d 850 (8th Cir. 2015); Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012); Ramos-Lopez v. Holder, 563 F.3d 885 (9th Cir. 2009); Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010). 177 Matter of S-E-G-, 24 I&N Dec. 579 (“[Y]outh who have been targeted for recruitment by, and resisted, criminal gangs may have a shared past experience, which, by definition, cannot be changed”); UN High Commissioner for Refugees, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, ¶ 36 (March 2010). 178 See Lisa Frydman & Neha Desai, Beacon of Hope or Failure of Protection? U.S. Treatment of Asylum Claims Based on Persecution by Organized Gangs, 12-10 Immigr. Briefings 1 (Oct. 2012); see, e.g., Rivera Barrientos v. Holder, 658 F.3d 1222, 1231-32 (10th Cir. 2011) (Although the court found that the group “El Salvadoran women between ages of 12 and 25 who resisted gang recruitment” actually met the particularity requirement, it ruled that the group failed to meet the social visibility requirement because the persecutors “do not perceive this section of the population as set apart”), as corrected on denial of reh’g en banc sub nom. 666 F.3d 641 (2012); Ortiz-Puentes v. Holder, 662 F.3d 481, 483 (8th Cir. 2011) (quoting Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)); Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010).

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group determination should be based on the evidence in the case and the society from which the applicant comes. The Ninth Circuit has emphasized that each case needs to be evaluated on its own merits and on a case-by-case basis. In Pirir-Boc v. Holder, it explained that “the BIA may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity.” 179

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Courts may perceive the harm to an applicant as reflecting “a state of general lawlessness” as opposed to targeting on account of membership in a particular social group. 180 For this reason, advocates must highlight the connection between the applicant’s membership in a particular social group and the persecutor’s motive to persecute the applicant specifically. However, evidence of lawlessness or chaos in the country is also important to show that the government is unable or unwilling to protect the applicant from a non-state actor, such as a gang. iv. Imputed membership in a gang Asylum applicants asserting claims based on imputed membership in a gang have failed on the basis that the asserted group does not constitute a particular social group.181 However, in an unpublished decision, the Tenth Circuit held that people perceived to be gang members are not “categorically barred from recognition as a particular social group.” 182 The Tenth Circuit nevertheless rejected the proposed group of “Salvadoran men believed to be gang members of a rival gang.” 183 It reasoned that the term “rival gang” elicits definition from the perspective of other gangs and not society. 184 Thus it fails to meet the social visibility requirement. 185 Advocates are still encouraged to raise imputed membership in a gang arguments—but, as this case shows, it is critical to keep the necessary elements of an asylum case in mind as you frame your argument. v. Witnesses and informants The Ninth Circuit has declared that witnesses who testify against gang members constitute a cognizable particular social group. 186 The holding is applicable only in the “very specific situation

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Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (citing M-E-V-G, 26 I&N Dec. at 241) (reversing the BIA’s rejection of “persons taking concrete steps to oppose gang membership and gang authority” as a particular social group). Citing M-E-V-G-, the court stated that the BIA needed to consider “[e]vidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.” 180 Olivia-Flores v. Holder, 477 Fed. Appx. 774, 776 (2nd Cir. 2012); Santos-Lemus v. Mukasey, 542 F.3d 738, 738, 746 (9th Cir. 2008) (finding that a group of young Salvadoran men who resist gang recruitment were not socially visible because the “harassment” to which they were subjected was seemingly just a “part of general criminality and civil unrest”). 181 Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). 182 Escamilla v. Holder, 459 Fed.Appx. 776, 786 (10th Cir. 2012). 183 Id. at 787. 184 Id. 185 Id. 186 See Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

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of testifying against gang members in court,” and not in cases featuring general opposition to gangs. 187 This disposition echoes the position taken by the Third Circuit, which held that those who publicly testified against gang members can constitute a particular social group. 188 The Second and Fourth Circuits have reached the same position. 189

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PRACTICE TIP: Gang-based asylum cases can be difficult, so advocates may want to consider additional protected grounds. Religion, political opinion, or imputed political opinion, in addition to membership in a particular social group, can also be the basis of a gang-based claim. Just remember that such a claim must provide evidence that the gang believes they have this opinion and the gang was motivated by it. 190 In all cases, advocates should provide extensive country-conditions research, including expert testimony. 191 Finally, advocates should also consider other relief for which the applicant may be eligible. 192 Please note that former involvement with gangs could bar or negatively impact eligibility for these forms of relief, depending on the nature of the involvement. For assistance with gang-based asylum, practitioners are advised to visit the websites of organizations such as The Center for Gender and Refugee Studies (CGRS), The Immigrant Law Center of Minnesota, The Capitol Area Immigrants’ Rights Coalition, and the National Center for Refugee and Immigrant Children. 187

Henriquez-Rivas, 707 F.3d at 1092-93 (rejecting the BIA’s decision in In re C-A-, 231 I&N Dec. at 960, where the Board had refused to recognize the particular social group of “former noncriminal drug informants working against the Cali drug cartel” on the basis that being a “confidential informant” inherently required being outside the public view); see also Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (stressing that it is possible for “gang persecution of adverse witnesses” to have “revenge as one motive, but group-based intimidation” as another). 188 Garcia v. Att’y Gen., 665 F.3d 496, 504 & n.5 (3rd Cir. 2011). 189 See Gashi v. Holder, 593 F.3d 975 (2d Cir. 2012); Crespin-Valladares v. Holder, 632 F.3d 117, 124-28 (4th Cir. 2011). But the First and Seventh Circuits disagree. In Carvalho-Frois v. Holder, 667 F.3d 69, 73 (1st Cir. 2012), the court found that witnesses that the Brazilian government was unwilling or unable to protect did not constitute a particular social group. Similarly, the court in Jonaitiene v. Holder, 660 F.3d 267, 271–72 (7th Cir. 2011) found that Lithuanians cooperating with the government as informants were not a particular social group. 190 See, e.g., Valdiviezo-Galmadez v. Att’y Gen., 663 F.3d 582, 609 (3rd Cir. 2011) (holding that refusal to join a gang by itself is not a political opinion); Marroquin-Ochoma v. Holder, 574 F.3d 574, 578 (8th Cir. 2009) (holding the applicant fearing reprisal for refusing gang recruitment did not constitute an imputed anti-gang political opinion); Nnachi-Anydiegwu v. Gonzales, 134 Fed.Appx. 171, 173 (9th Cir. 2005) (stating “her claims for asylum failed because she did not demonstrate persecution … on account of her … anti-gang political opinion). 191 See Center for Gender & Refugee Studies, CGRS Develops New Resources for Fear-of-Gang Cases (Aug. 22, 2017) https://cgrs.uchastings.edu/article/cgrs-develops-new-resources-fear-gang-cases. 192 For example, applicants may want to explore U nonimmigrant status for victims of crimes, relief under the Violence Against Women Act (VAWA), Special Immigrant Juvenile Status (SIJS), or T nonimmigrant status for victims of human trafficking.

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Please see § 12.7 for a discussion about asserting gang-related claims under the Convention Against Torture. c. Family membership

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It is important to investigate whether your client might have a family-based asylum claim. 193 This is a common particular social group for youth. Matter of M-E-V-G recognized that family ties are an innate characteristic that are “generally easily recognizable and understood by others to constitute social groups.”194 And every circuit to have considered the question has recognized family ties as a particular social group.”195 The Ninth Circuit has stated that immediate family members are a “prototypical example” of a particular social group. 196 But family bonds will not automatically form a cognizable social group.197 It is important to understand the role the nexus requirement plays here. It is not sufficient for someone to have a family relationship to a specific person (presumably the main target of the persecution).198 An asylum applicant has to then prove that this relationship is the basis for the persecution feared.199 The petitioner needs to show how acts of violence against their family are “closely tied” to the petitioner. 200 Attenuated family links will not, on their own, be sufficient evidence that one is a member of a particular social group. Rather, the familial relationship must be a 193

See supra, note 156 for a discussion of the effect of Matter of A-B- on family-based asylum claims. Matter of M-E-V-G, 26 I&N at 246. 195 See Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014); Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014); Al-Ghorbani v. Holder, 585 F.3d 980,995 (6th Cir. 2009); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997); see Gebremichael v. INS, 10 F.3d 28, 35-36 (1st Cir. 1993) (“Petitioner’s strongest argument is that he is a refugee because he was mistreated on account of his relationship to his brother.… There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.”). 196 Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir. 1986), overruled on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). 197 Jie Lin v. Ashcroft, 377 F.3d 1014, 1028-29 (9th Cir. 2004); see also In re A-K-, 24 I&N Dec. 275, 27879 (BIA 2007) (explaining that harm to the applicant’s family does not automatically establish persecution to the applicant; rather, the pattern of persecution must be “tied to the applicant personally”). 198 Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010) (denying the claim of “family members of youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected such membership” because the court found the respondent did not establish nexus); see Matter of S-E-G-, 24 I&N Dec. 579, 583 (BIA 2008). 199 See Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011); Gebremichael, 10 F.3d at 36 (granting asylum because of persecution the applicant suffered based on his relationship with his brother); Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004) (holding that “family” constitutes a particular social group); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (recognizing that family could constitute a particular social group); see, e.g., Bonilla-Morales, 607 F.3d at 1137 (denying asylum because evidence of prior attacks against petitioner’s father failed to show that the family members were targeted ‘on account of’ their family membership); Ochave v. INS, 254 F.3d 859 (9th Cir. 2001) (explaining it is crucial that a petitioner show evidence that the perpetrator had some idea of the petitioner her family ties). 200 Jie Lin, 377 F.3d at 1040. See also Perlera-Sola v. Holder, 699 F.3d 572 (1st Cir. 2012) (family as the basis for asylum “applies only where the motivation for persecution is kinship and not because multiple family members happen to be persecuted for a common reason” aside from their relationship). 194

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“strong and discernible bond” such that it becomes a “foreseeable basis for personal persecution.” 201 When the family relationship is the basis for the persecution, there is no additional requirement that the family unit itself be the target of persecution because of another protected ground. 202 A family-based claim can also arise when a family member targets other family members based on their relationship. This is also referred to as “intrafamilial violence.” Child abuse is a common basis for asylum for children. Suggested social groups practitioners could advance include: “children of the [surname/clan name] family/clan,” or “children of [family member’s name].” d. Clan membership

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Clan membership is akin to a social group based on family relationships because, as the BIA recognized, it is “inextricably linked to family ties.”203 The BIA has noted that clan membership is a highly recognizable, immutable characteristic that is acquired at birth. It is the type of affiliation that is “beyond the power of an individual to change or that is so fundamental that it ought not to be required to be changed.”204 This was later reaffirmed in at least two cases at the Ninth Circuit.205 e. Sexual orientation and gender identity: LGBTQ claims The acronym LGBTQ stands for lesbian, gay, bisexual, transgender, and queer. These terms refer to an individual’s gender identity and sexual orientation. Sexual orientation has been found to constitute a particular social group based on the Acosta requirement that the members share an immutable characteristic that they cannot or should not be required to change. An LGBTQ asylum applicant may have a well-founded fear of persecution based on a protected ground unrelated to or in addition to their sexual orientation or gender identity. However, where there is persecution based on sexual orientation or gender identity, the applicant should assert a claim based on particular social group.

201

Id. Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014), (holding “ a family may be a particular social group simply by virtue of its kinship ties, without requiring anything more”); see also Crespin-Valladares, 632 F.3d 117 (recognizing that relatives of witnesses who testify against MS-13 suffer persecution on account of their family ties, and the family relationship is a sufficient basis for finding a social group). 203 In re H-, 21 I&N Dec. 337, 342 (BIA 1996) (quoting the Committees on Foreign Relations and Foreign Affairs, Country Reports on Human Rights Practices for 1992, 103d Cong., 1st Sess. 235 (Joint Comm. Print 1993)) (holding that membership in the Marehan clan of Somalia qualifies as a social group given the shared ties of kinship and linguistic commonalities. Quoting the State Department’s Country Reports, the BIA noted that “victims were singled out for no other reason than their clan affiliation”). 204 In re H-, 21 I&N (citing Matter of Acosta, 19 I&N Dec. at 234); see also, Paul W. Virtue, Whether Somali Clan Membership May Meet the Definition of Membership in a Particular Social Group under the INA, Genco Op. No. 93-91 (INS), 1993 WL 1504038 (where the General Counsel’s December 1993 found that clan membership in Somalia can meet the definition of membership in a particular social group). 205 See Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th Cir. 2005) (finding that a social group may be defined by clan or as all Somali females in cases involving female genital mutilation): see also Ali v. Ashcroft, 394 F.3d 780, 785-87 (9th Cir. 2005) (finding that the gang-rape of the applicant was motived by her membership in the Midgan clan of Somalia). 202

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The UNHCR 2012 Guidelines on Sexual Orientation and/or Gender Identity Claims indicate that LGBTQ people are recognized as members of a particular social group. 206

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In Matter of Toboso-Alfonso, the BIA granted withholding of deportation based on membership in the social group of gay men in Cuba. 207 In 2000, the Ninth Circuit also recognized that “gay men with female sexual identities in Mexico” could establish a particular social group. 208 Moreover, the court found this was a “small, and readily identifiable” group that was united by their sexual identities. 209 In 2017, the Ninth Circuit reaffirmed that sexual orientation or identity could be a particular social group 210 The Second, 211 Third, 212 and Eighth Circuits, 213 have also recognized this. Finally, the Third Circuit has concluded that imputed status as a homosexual male may qualify for asylum protection. 214 Practitioners should not fail to screen children’s cases to identify a possible asylum claim based on sexual orientation or gender identity. While delicate questions about a person’s identity should be handled with sensitivity and cultural competency, it is important to discuss them with clients of all ages. An asylum claim based on sexual orientation or gender identity may be the strongest ground a person has to ask for protection, and overlooking this could be detrimental to a case. Asylum claims based on sexual orientation or gender identity face many particular challenges that practitioners should understand when taking on one of these cases, such as: applicants who were “in the closet” in their home country without any overt problems and who fear returning to their home country after “coming out”; applicants with either a past or current heterosexual domestic relationship; and applicants who identify as bisexual, often misunderstood by immigration officials as being a choice rather than an immutable characteristic. Exhaustive documentation of 206

UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, referred to as “UNHCR 2012 Guidelines on Sexual Orientation and/or Gender Identity Claims” from here on, ¶ 47, 12, available at http://www.unhcr.org/509136ca9.pdf (last visited: Mar. 16, 2018) (“Sexual orientation and/or gender identity are considered as innate and immutable characteristics or as characteristics so fundamental to human dignity that the person should not be compelled to forsake them. Where the identity of the applicant is still evolving, they may describe their sexual orientation and/or gender identity as fluid or they may express confusion or uncertainty about their sexuality and/or identity. In both situations, these characteristics …to be considered as fundamental to their evolving identity and rightly within the social group ground.”) 207 20 I&N Dec. 819 (BIA 1990). 208 Hernandez-Montiel, 225 F.3d at 1092-93, overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), judgment vacated by Gonzales v. Thomas, 547 US 183 (2006). 209 Id. 210 Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (overturning CastroMartinez v. Holder, 674 F.3d 1073 (9th Cir. 2011)) (“Bringas need only demonstrate that his sexual orientation was at least one central reason for the abuse; he need not show it was the only reason.”); see also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088–89 (9th Cir. 2005). 211 See Morett v. Gonzales, 190 Fed.Appx. 47, 48 (2nd Cir. 2006). 212 See Amanfi v. Ashcroft, 328 F.3d 719, 730 (3rd Cir. 2003). 213 See Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007). 214 Amanfi, 328 F.3d at 730.

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country conditions, expert witness testimony, and evidence of the fate of “similarly situated” persons will all be crucial to prevailing in this type of claim, especially where local laws or policies suggest an official attitude of acceptance on the part of the state of LGBTQ people. 215 PRACTICE POINTER: Using a Country’s Laws Regarding LGBTQ People as Evidence. If an asylum applicant’s country of nationality has a law criminalizing same-sex relations, this is not only evidence of persecution of the particular group (i.e., “gay men” or “lesbian women”), but also evidence that the society views this group as particular and socially distinct.

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Even in cases where there is evidence that the applicant’s country of nationality is making efforts to provide protections to LGBTQ populations—such as anti-discrimination laws in Mexico often cited by DHS attorneys 216—these laws can still be used to demonstrate that the society views the group as particular and socially distinct. In Bringas-Rodriguez, the court reaffirmed that actual state practice, not the existence of antidiscrimination legislation, should be the basis for determining whether a country can adequately protect certain groups. It noted a difference between “a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture.” 217 As the court noted, although anti-discrimination laws are important sign of shifting attitudes, a country may still face “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to those communities.” 218 LGBTQ individuals experience many different forms of persecution. 219 USCIS has recognized that “[s]ocietal and cultural restrictions that require [women] to marry individuals in contravention of their sexual orientation may violate their fundamental right to marry and may rise to the level of persecution.” 220 Persecution of LGBTQ individuals may also come in the form 215

See Castro-Martinez, et al v. Holder, No. 08-70343 (9th Cir. 2011). See United States Department of State, Mexico 2016 Human Rights Report (updated Apr. 7, 2017), 2627, available at http://www.state.gov/documents/organization/265812.pdf (last visited: Sept. 11, 2018). 217 Bringas-Rodriguez, 850 F.3d at 1072. 218 Id. (citing Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original)). 219 For example, LGBTQ individuals are forced into heterosexual marriages, face sexual assault, or forced medical or psychological treatment to “cure” them of their sexual orientation or gender identity. Nabulwala, 481 F.3d 1115 involved a lesbian from Uganda who was expelled from her clan after her relatives forced her to have sex with a man to “cure” her of her lesbianism. Similarly, in Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), the Russian authorities required Pitcherskaia to attend therapy sessions, and they institutionalized her ex-girlfriend and subjected her to electroshock therapy treatments, both to again “cure” these women of their sexual orientation. In Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the applicant’s sister tried to change her brother by enrolling him in a counseling program to “cure” him of his homosexuality, and ultimately ended up kicking him out of her house. 220 USCIS Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims, Dec. 28, 2011,23-24 (citing UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, ¶ 13) available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asyl um%20Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf (last visited: Feb. 28, 2018). 216

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of social pressure to change the way they present themselves, such as their mannerisms or the way they speak or dress, which over time can become severely cruel and damaging. Make sure to address the various ways in the applicant may have been pressured to hide or change who they are, as this can help contextualize other parts of the person’s story. Examples of this include rejection by family, dismissal from jobs, and emotional or physical abuse.

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PRACTICE TIP: Persecution, for many LGBTQ individuals, begins in childhood. 221 Thus, it is important to ask clients about their childhood, so as not to miss crucial information about past persecution. Although children may not always express their sexual orientation, or be able to fully explain their gender identity, LBGTQ youth are often nevertheless perceived as different and harassed or even abused for this reason. LGBTQ children are also sometimes victims of sexual assault and rape by adults and other youth. Practitioners may want to consult the USCIS Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims from December 2011. Please refer to ILRC’s legal practice manual Essentials of Asylum Law, which delves into these issues with greater specificity. f.

Gender

Advocates have reported great success with children’s asylum claims based on a particular social group involving gender. One of the first cases in the area of gender-discriminatory laws was Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which examined Iranian laws that prescribe strict dress and conduct laws for women. The claim in Fatin involved membership in a particular social group in addition to political opinion. The decision is significant because: 1) it recognized women as a particular social group, and 2) it established that support for the equality of women and for women’s rights is a cognizable political opinion. Most courts have hesitated to recognize a broad social group based on gender alone. This is in part due to the widespread nature of gender discrimination globally and a concern about recognizing an overly broad social groups. Therefore, in some circuits, gender alone may not be sufficient to comprise a particular social group. 222 On the other hand, a particular social group should not be determined invalid simply because it represents too large a portion of the population.223 Indeed, the Ninth Circuit has explicitly established that “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.”224 But adjudicators may find that gender alone is too broad for a particular social group claim. The Third Circuit’s decision in Fatin suggested that a social group claim based on gender would have 221

For example, in Ixtlilco-Morales v. Keisler, 507 F.3d 651 (8th Cir. 2007), the applicant had suffered severe violence in the form of regular, sometimes life-threatening, beatings by his family for being gay. 222 See, e.g., Gomez v. INS, 947 F.2d 660, 664 (2nd Cir. 2007) (“Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group”). 223 Perdomo, 611 F.3d at 668-69 (remanding to the BIA for a ruling on whether “Guatemalan women” could constitute a particular social group). 224 Id. (“The Eighth Circuit has followed [the Ninth Circuit’s] reasoning [] holding that ‘Somali females’ constitute a particular social group”) (citing Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007)).

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merit if the applicant could present compelling evidence of her membership in a more circumscribed group of Iranian women who either “refuse[d] to conform” to such gender-specific laws or for whom such compliance would be “profoundly abhorrent.”225 In Safaie v. INS, the Eighth Circuit found that “no factfinder could reasonably conclude that all Iranian women had a well-founded fear of persecution based solely on their gender.” 226 Nevertheless, the court in Safie did recognize the possibility of a particular social group involving women who are advocates for women’s rights.

i.

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Gender in combination with other relevant immutable or fundamental characteristics, such as tribal membership, 227 nationality, 228 bodily integrity, 229 and a refusal to conform or submit, 230 will have a much higher likelihood of success. In this section, we provide various examples of characteristics that, when combined with gender, may constitute a particular social group. With any case, it is also important to consider all other protected grounds that might apply. Female genital mutilation

The landmark case Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), granted asylum to the applicant who had a fear of female genital mutilation (FGM). The decision marked an increased level of sensitivity for gender-based asylum claims.231 This decision demonstrates how other protected grounds, such as nationality or ethnicity, may intersect with membership in a particular social group. The BIA also rejected a punitive or malignant intent argument asserted by the INS for persecution.232 ii. Forced marriage The Department of State recognizes that forced marriages constitute a human rights violation under international law. 233 These issues may arise in cases that involve child brides or early

225

Fatin, Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (emphasis in original); see also Sharif v. INS, 87 F.3d 932 (7th Cir. 1996). 226 Safaie v. INS, 25 F.3d 636, at 640 (8th Cir. 1994). 227 Kasinga, 21 I&N Dec. at 368 (“young women of the Tchamba-Kunsuntu Tribe who have not had [female genital mutilation], as practiced by that tribe, and who oppose the practice”). 228 Hernandez-Montiel, 225 F.3d at 1095 (“gay men with female sexual identities in Mexico”). 229 Kasinga, 21 I&N at 368. 230 Fatin, 12 F.3d at 1241 (recognizing that a group of women who refuse to conform and whose opposition is so profound that they would choose to suffer the severe consequences of noncompliance may satisfy the requirements for a particular social group). 231 Matter of Kasinga, 21 I&N Dec at 358 (ruling that Kasinga belonged to the social group of “[y]oung women of the Tchamba-Kunsuntu Tribe, who have not had FGM, as practiced by the tribe, and who oppose the practice”). Similarly, in Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005), the court held that women opposed to FGM who belong to an ethnic group practicing FGM is a proper formulation of a social group. Note that this court did not find actual opposition to FGM to be material in the formulation of the group. 232 Id. at 365 (where the INS argued that there could be no persecution because the persecutors did not have subjective malignant intent to punish the applicant). 233 See U.S. Dep’t of State, Foreign Affairs Manual, Consular Affairs, Forced and Arranged Marriage of Adults, 7 FAM § 1459(a)–(c), available at https://fam.state.gov/fam/07fam/07fam1450.html (last visited Aug. 1, 2018).

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marriage. Forced marriage may happen at any age, but early marriage is particular to youth and usually involves a social group definition that explicitly references the client’s age. 234 The key question in these cases is whether the applicant can demonstrate that the persecutor is inflicting such harm upon them (i.e., forcing them to marry) because they are a member of a particular social group. In cases involving forced marriages, it is important to explain what a “forced marriage” is (for example, distinguishing it from an “arranged marriage”) and to avoid circularity (defining the social group by the persecution that members fear).

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iii. Domestic violence Courts have struggled to determine how and whether domestic violence is a valid basis for asylum. 235 While a 2014 BIA decision had finally created a standard and some consistency around domestic violence-based claims, the 2018 precedential opinion Matter of A-B- by Attorney General Sessions disrupted this newly settled area of the law. 236 In this section, we briefly review how A-Bhas impacted the asylum landscape, and also review other significant related cases. Note that domestic violence cases are also significant for children’s cases because children are often in similar relationships of abuse, which they are unable to leave. These include forced marriages, sexual slavery, girls viewed as property by gang members, girls viewed as property in their relationships, and any combination of these perpetrated by gangs, family or others. After years without a clear precedent, a 2014 BIA decision finally recognized domestic violence as a basis for asylum. In the landmark case of Matter of A-R-C-G-, the BIA found that “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group that forms the basis of a claim for asylum. 237 Although some asylum seekers with domestic violence-based claims had been successful in winning asylum protection in the past, this case officially recognized survivors of domestic violence as a particular social group. 238

234

See Bi Xia Qu v. Holder, 618 F.3d 602, 607 (6th Cir. 2010) (recognizing that the severity of her forced marriage validated her membership in the social group comprised of having the “immutable characteristic of being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized.”). See also Yi Meng Tang v. Gonzales, 200 Fed.Appx. 68, 70 (2nd Cir. 2006) (finding that “women who [have] been sold into marriage and who live in a region … where forced marriages are considered valid and enforceable” constitute a particular social group). 235 The Center for Gender & Refugee Studies has provided an overview of the long and tumultuous history of asylum claims based on domestic violence. See Center for Gender & Refugee Studies, Matter of R-A-, https://cgrs.uchastings.edu/our-work/matter-r-a-. 236 See generally Matter of A-B-, 27 I&N Dec. 316. 237 26 I&N Dec. 388 (BIA 2014). 238 In 2009, at the same time as R-A- was pending before the IJ, a similar case was also before the BIA, Matter of L-R-. That case involved a Mexican woman suffering severe domestic abuse at the hands of her common-law husband. In April of 2009, DHS reversed its initial position that there was neither a valid social group nor a nexus to a protected ground. DHS filed a supplemental brief that outlined how domestic violence cases could satisfy the new “particularity” and “social visibility” prongs. The brief outlines two possible social group formulations: 1) Mexican women in domestic relationships who are unable to leave and 2) Mexican women who are viewed as property by virtue of their positions within a domestic relationship. Following the filing of that brief, DHS stipulated to granting asylum to both women, L-R- and

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iv. Matter of A-B-

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In 2018, Attorney General (AG) Sessions issued his decision in Matter of A-B-, which explicitly overruled Matter of A-R-C-G. However, the AG’s decision did not put forth a blanket rule that the specific group in A-R-C-G-, or similar groups, could never be accepted.239 Indeed, the subsequent July 11, 2018 ICE Memorandum (ICE Memo) states as much: “[A]lthough the AG overruled AR-C-G, he did not conclude that particular social groups based on status as a victim of private violence could never be cognizable, or that applicants could never qualify for asylum or statutory withholding of removal based on domestic violence.” 240 Although it is too early to fully understand the effects of A-B- on asylum adjudications, especially claims presented by children, the AG’s decision purports to undermine the validity of asylum claims based on harm by nongovernment actors and questions whether harm within the home can qualify as persecution based on a protected ground. Persecution by non-government actors. The overriding tenor of Matter of A-B- is the AG’s deep skepticism of any form of persecution by a private actor as a valid basis for asylum. According to the AG, “private criminals are motivated more often by greed or vendettas than by an intent to ‘overcome the protected characteristic of the victim.’” 241 The AG also asserted that “the asylum statute is not a general hardship statute, [nor is it] some omnibus catch-all for solving every heart-rending situation” 242 and opines that both domestic violence and gang violence are merely examples of “private violence” against groups that “are often not exposed to more violence or human rights violations than other segments of society.” 243 Finally, the opinion speculates that persecution committed by private actors is “unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.” 244 Much of the decision includes sweeping language that is technically dicta, and therefore does not itself alter the framework underlying asylum claims.

R-A-. See Dep’t of Homeland Security’s Supplemental Brief, Matter of L-R- (B.I.A. Apr. 13, 2009), http://cgrs.uchastings.edu/sites/default/files/Matter_of_LR_DHS_Brief_4_13_2009.pdf. 239 See Matter of A-B-, 27 I&N Dec. at 317. 240 ICE Memo at 3. 241 Matter of A-B-, 27 I&N Dec. at 337 (citing Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (internal brackets omitted)); see also Matter of R-A-, 22 I&N Dec. 906, 920 (BIA 1999) (en banc), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005); Center for Gender & Refugee Studies, Matter of R-A-, https://cgrs.uchastings.edu/our-work/matter-r-a- (last visited: July 18, 2018). 242 Matter of A-B-, 27 I&N Dec. at 346 (citing Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring) (internal quotation marks omitted)). 243 Matter of A-B- relies heavily on Judge Wilkinson’s concurrence in Velasquez v. Sessions, in which the Fourth Circuit denied the petition for review of a case involving a woman who claimed persecution by her mother-in-law because of the petitioner’s membership in her nuclear family. Id. at 322 (citing Velasquez v. Sessions, 866 F.3d 188, 198 (4th Cir. 2017) (Wilkinson, J., concurring)). 244 Matter of A-B-, 27 I&N Dec. at 320; see also id. at 320 n.1 (The AG also expressed doubt about claims of persecution by non-governmental actors succeeding even the credible fear stage of analysis. Advocates are concerned that this footnote provides a foundation to turn asylum seekers away at ports of entry for failing a credible fear interview simply because their persecutor was a non-governmental entity.).

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Because the AG deemed persecution by any non-governmental actor suspect, Matter of A-B- may also endanger asylum applications based on other protected grounds if a private actor carried out the persecution. This language raises concerns about the likelihood of succeeding specifically with claims of persecution based on domestic violence and gang violence, especially because both ICE and USCIS incorporated this language into their respective policy memoranda. 245

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PRACTICE TIP: Remember, the AG’s decision did not establish a blanket rule foreclosing any domestic violence or gang violence-based asylum claim. Therefore, advocates should assert that any social group must be analyzed on an individual case-by-case basis. 246 Further, it is important to claim multiple relevant social groups and/or statutorily protected bases in an asylum application. Persecution on account of a statutorily protected ground. A-B- also mischaracterizes the social group at issue in the case and thus questions whether women in domestic relationships can satisfy the requirements of a particular social group. Specifically, the AG found the particular social group at issue was “defined by the persecution of its members” because the group included the “inability to leave the relationship.” 247 Advocates have long argued that the inability to leave an intimate relationship is not by itself the persecution a domestic violence victim faces, but rather the summation of social and cultural pressures that restrains their options. Given these limited understandings of the social group used by Ms. A.B. and the applicant in Matter of A-RC-G-, advocates should be especially careful to explain that the inability to leave a relationship is a characteristic and not a description of the harm that the applicant experienced or fears. The same applies to youth who are unable to leave a variety of relationships, including familial and romantic. Finally, A-B- illustrates the heightened standards of presenting particular social group claims for the Immigration Courts and BIA. Specifically, the A-B- emphasizes that the applicant “must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group” and cannot present a newly articulated social group on appeal. 248 The Center for Gender and Refugee Studies has excellent resource regarding domestic 245

ICE Memo at 3 (“Private criminal victimization per se (including domestic violence), even when widespread in nature, is insufficient to establish eligibility for asylum or statutory withholding of removal); USCIS Memo at 6 (“In general, … claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by nongovernment actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.”). 246 ICE Memo at 5; see also USCIS Memo at 3 (“Officers must analyze each case on its own merits in the context of the society where the claim arises.”). 247 Matter of A-B-, 27 I&N Dec. at 335. Unfortunately, the USCIS memo references the AG’s accusation of circularity by adding, “[e]ven if ‘unable to leave’ were particular, the applicant must show something more than the danger of harm from an abuser if the applicant tried to leave, because that would amount to circularly defining the particular social group by the harm on which the asylum claim was based.” USCIS Memo at 5. 248 See Matter of A-B-, 27 I&N Dec. at 344 (citing Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190-91 (BIA 2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009).

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violence and other gender-based asylum claims, including a number of helpful resources related to Matter of A-B-. 249 The National Immigrant Justice Center also has a practice advisory related to Matter of A-B-, which is especially helpful for advocates in the Seventh Circuit.250 g. Child soldiers and former child soldiers Children may be targeted for recruitment for armed forces because of their age. Even once childhood ends, an asylum-seeker’s childhood experience may still be a basis for persecution. 251 h. Children with HIV/AIDS

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Children who have HIV/AIDS may suffer persecution based directly on this status. In addition, children with HIV-positive parents may face persecution based on their parent’s status. i.

Street children or abandoned children

Street children form another group that can be extremely vulnerable, visible, and that commonly faces tremendous societal stigma. 252 In Matter of B-F-O-, an unpublished BIA decision, the BIA found that an abandoned street child had a well-founded fear of persecution based on his membership in a particular social group. 253 Advocates may be able to define street children to include the children’s common characteristics of: youth, having the street as their home and livelihood, and perhaps shared experiences of abandonment. 254 The above list is not exhaustive. It is important to also consider groups such as children lacking effective familial protection and street children. Children without familial protection can be very vulnerable to gang threats, or to being recruited and treated as property by gangs. § 12.4 Bars to Asylum and Related Protections This section provides an overview of the bars to asylum and withholding of removal. 255 See § 12.6 for information about eligibility for withholding of removal. Note that neither asylum nor

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Center for Gender & Refugee Studies, Backgrounder and Briefing on Matter of A-B-, https://cgrs.uchastings.edu/a-b-backgrounder. 250 See Nat’l Immigrant Justice Center: Asylum Practice Advisory—Applying for Asylum After Matter of AB-, available at https://www.immigrantjustice.org/sites/default/files/contenttype/resource/documents/2018-06/Matter%20of%20A-B-%20Practice%20Advisory%20-%20Final%20%206.21.18.pdf. 251 See Lukwago v. Ashcroft, 329 F.3d 157 (finding that “membership in the group of former child soldiers who have escaped the Lord’s Resistance Army captivity fits precisely within the BIA’s own recognition that a shared past experience may be enough to link members of a ‘particular social group.’”). 252 See U.N. Guidelines for Child Asylum Claims, ¶ 52(i). 253 Matter of B-F-O-, No. A78 677 043 (BIA Nov. 6, 2001); see also Ramos-Vasquez v. Sessions, 710 F. App’x 336, 337 (9th Cir. 2018) (remanding for the BIA to consider whether “street children in Guatemala” is a particular social group). 254 See U.N. Guidelines for Child Asylum Claims, ¶ 52(i). 255 See generally, INA § 208 (asylum), 241(b)(3) (withholding of removal); 8 C.F.R. § 1208.16(d)(2) (protection under Convention Against Torture).

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withholding of removal requires that a person establish good moral character or be admissible. 256 Nonetheless, even if an applicant has the requisite well-founded fear or has suffered past persecution (or threat to life or freedom for withholding of removal), they will be denied the relief if one of the bars applies. In addition to these mandatory bars, asylum may be denied in the exercise of the discretion of the IJ or asylum officer. For more in-depth information, see the ILRC’s Essentials of Asylum Law manual. A.

Substantive bars that apply to asylum and withholding of removal

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There are several bars for asylum and withholding, including the following: 1. Persecutor of others A person who “ordered, incited, assisted or otherwise participated in the persecution of any” person on account of race, religion, nationality, membership in a particular social group, or political opinion is ineligible for asylum and withholding of removal. 257 In determining whether or not someone is barred by this statutory exception, the key question is whether the individual’s actions constituted persecution. First, if a person did not engage in actions that constituted persecution on account of one of the five enumerated grounds, this bar does not apply. However, the motive of the asylum applicant is not relevant to this question. 258 An applicant may be denied asylum if they were ordered to harm others based on a protected ground, even if the applicant did not have the same motive. Importantly, as the BIA elaborated in Matter of Rodriguez-Majano, “mere membership in an organization, even one which engages in persecution, is not sufficient to bar one from relief, but only if one’s action or inaction furthers that persecution in some way.” 259 An applicant “assisted or otherwise participated” in persecution only if 1) there is nexus between the applicant’s “role, acts, or inaction” and the persecution; and 2) the applicant had “prior or contemporaneous knowledge” of the persecution. 260 Thus, it is important for an asylum applicant to explain what they knew—or did not know—about persecutory acts carried out by groups to which they belonged. Even where the person’s actions did constitute persecution, the BIA recently held in Matter of Negusie that the asylum applicant may assert “a limited and strictly construed duress defense to the persecutor bar.” 261 In order to assert this defense, the applicant must show that they: 1) acted under an imminent threat of death or serious bodily injury to the applicant or others; 2) 256

The statutory bars to establishing good moral character appear at INA § 101(f). The grounds of inadmissibility appear at INA § 212(a). 257 INA §§ 101(a)(42), 208 (b)(2)(A)(i) (asylum); INA § 241(b)(3)(B)(i) (withholding); Matter of M-B-C-, 27 I&N Dec. 31, 36 (BIA 2017) (discussing the definition of “committed, ordered, incited, assisted, or otherwise participated”). 258 Matter of Alvarado, 27 I&N Dec. 27, 29 (BIA 2017). 259 Matter of Rodriguez-Majano, 19 I&N Dec. 811, 814-15 (BIA 1988), abrogated on other grounds by Negusie v. Holder, 555 U.S. 511 (2009); see also Matter of D-R-, 27 I&N Dec. 105, 120 (BIA 2017) (citing Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006)). 260 Matter of Negusie, 27 I&N Dec. 347, 367 (BIA 2018) (internal quotation marks omitted). 261 Id. at 362.

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reasonably believed that the threatened harm would be carried out unless the applicant acted or refrained from acting; 3) had no reasonable opportunity to escape or otherwise frustrate the threat; 4) did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and 5) knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others. 262

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While the applicant in Negusie was an adult, the BIA specifically discussed child soldiers as a group that would fit into this duress defense, explaining, “[i]t does not make sense to automatically bar a former child soldier … from receiving asylum based on participation in persecutory acts under duress.” 263 Advocates should argue that a child or youth’s knowledge (e.g., lack thereof), as well as factors such as development, must be taken into consideration in determining whether the child, in fact, “assisted or participated” in the persecution, and whether the duress exception applies. For example, it may be appropriate for an advocate to argue that the child did not know they were participating in any persecution of others or that the child’s actions and beliefs fit into the duress exception. Whether a child’s act qualifies as persecution or was carried out under duress should be viewed through the perspective of a child, taking into account that child’s own experience of victimization and persecution. Further, it may be appropriate to argue that the child lacked the mental capacity to form an awareness that they participated in persecuting others. 2. Conviction of a particularly serious crime Applicants for asylum are barred if they have a conviction for a “particularly serious crime.” 264 This ground will not apply to children and youth who have juvenile delinquency records, since juvenile delinquency does not result in a conviction for purposes of immigration law. 265 Where a youth has committed an offense resulting in a criminal conviction in adult court, an offense is deemed a “particularly serious crime” for purposes of asylum if it is considered an “aggravated felony,” a criminal classification created by the immigration statute. 266 An adult conviction can also be a bar even if it is not an aggravated felony, for purposes of both asylum or withholding, if a review of all the facts and circumstances of the conviction reveals that it is considered “particularly serious.” In Matter of Frentescu, the BIA set out criteria to determine whether a crime is particularly serious, involving consideration of the following factors: (a) nature of the conviction; (b) sentence; (c) whether it was a crime against a person or property; and (d) whether the person is a danger to society. 267 The criteria do not, however, involve weighing the severity of the 262

Id. at 363. Id. at 361. 264 INA § 208(b)(2)(A)(ii). 265 Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000). 266 See generally, INA § 101(a)(43) for a list of aggravated felonies. 267 Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); see also Martins v. INS, 972 F.2d 657, 659-60 (5th Cir.1992) (trafficking heroin was considered to be a particularly serious crime); Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir. 1986) (possession and intent to distribute heroin); Crespo-Gomez v. Richard, 780 F.2d 932, 935 (11th Cir. 1986) (possession of cocaine for sale); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 263

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persecution the individual faces upon removal when determining if an offense constitutes a particularly serious crime, nor does it include consideration of family or community ties. More recently, the BIA noted in Matter of N-A-M- that its view of whether a conviction is a particularly serious crime has “evolved” since Fretenescu, and the BIA no longer engages in a separate analysis into whether an applicant is a danger to the community. 268 Nonetheless, courts still refer to the Frentescu standards, as modified by Matter of N-A-M-. 269

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Matter of N-A-M- also clarified it will no longer classify certain crimes as per se particularly serious without proceeding to an individualized examination. 270 Instead, the BIA explained that once the elements of an offense are found to potentially bring it into the category of a particularly serious crime, the court should consider “all reliable information and [is] not limited to reviewing the record of conviction and sentencing information.” 271 However, if the elements of an offense do not bring the crime into the category of a particularly serious crime, the individual facts and circumstances of the offense are inconsequential.272 Thus, whether a conviction is a particularly serious crime will be determined on a case-by-case basis. Nevertheless, it is helpful to look at what has been found to be a particularly serious crime in the past. The BIA found that the following convictions were NOT particularly serious crimes: burglary with intent to commit theft of an unoccupied house, 273 and alien smuggling with a threemonth sentence (an aggravated felony). 274 On the other hand, the following have been held to be particularly serious crimes: residential burglary with aggravating factors; 275 armed robbery and robbery with a deadly weapon, 276 a nonconsensual sexual act involving threat with a knife, 277 1078 (9th Cir. 2015) (DUI that caused accident); Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008) (reckless endangerment involving “firing a pistol into the air”); Matter of Carballe, 19 I&N Dec. 357, 36061 (BIA 1986) (robbery with firearm, attempted robbery with firearm, grand theft second degree and accessories after the fact). 268 Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007). This standard was upheld by the Ninth Circuit in Delgado v. Holder, explaining that a “crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011). 269 See Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010); Gao v. Holder, 595 F.3d 549, 557 (4th Cir. 2010); Nethagani v. Mukasey, 532 F.3d 150, 155-56 (2d Cir. 2008); but see Alaka v. Att’y Gen., 456 F.3d 88, 105 (3d Cir. 2006) (holding that “an offense must be an aggravated felony in order to be classified as a ‘particularly serious crime’”). 270 See In re Q-T-M-T-, 21 I&N Dec. 639, 650 (BIA 1996) (explaining “a consistent practice of this Board has been to classify certain crimes as per se ‘particularly serious crimes’ on their face without proceeding to an individualized examination of the Frentescu factors”); Matter of Garcia-Gorrocho, 19 I&N Dec. 423, 426 (BIA 1986) (looking at the elements of burglary in the first degree and finding that, on its face, such a crime is a particularly serious one). 271 N-A-M-, 24 I&N Dec. at342-43. 272 Id. at 342. 273 Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). 274 Matter of L-S-, 22 I&N Dec. 645, 653-56 (BIA 1999). 275 Matter of Garcia Garrocho, 19 I&N Dec. 423, 426 (BIA 1986). 276 Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of L-S-J-, 21 I&N Dec. 973, 975 (BIA 1997).

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possession of child pornography, 278 and a conviction of mail fraud to defraud victims of two million dollars was a particularly serious crime. 279 Finally, the Ninth Circuit remanded a case to the BIA to provide more justification for its unpublished finding that driving under the influence is a particularly serious crime. 280

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In almost all cases, a conviction for drug trafficking is a particularly serious crime—although there is a narrow exception for an immigrant who was peripherally involved in a transaction involving only a small amount of drugs and money, where violence did not occur and minors were not affected. 281 However, the BIA specifically rejected the notion that a crime must be an aggravated felony to be a particularly serious crime. 282 Where there is an adult conviction and it was committed while under the age of 18 or near that age, advocates can challenge a “particularly serious crime” determination based on the youth’s mental and emotional development and consequently, decreased culpability. 283 Nonetheless, where a youth has an adult criminal conviction, advocates should seek assistance before pursuing any claims for immigration relief. A discussion of the immigration consequences of delinquency and crime is at Chapter 17. NOTE: An asylum applicant also must prove that they qualify for a favorable exercise of discretion. This will be particularly difficult if they are found to have been convicted of a “violent or dangerous” offense. 284 There is a limited exception based on exceptional and extremely unusual hardship, which is a very high standard to meet. For this reason as well, it is important for advocates to consult an expert where a youth has an adult criminal conviction. 3. Serious nonpolitical crime A person may not receive asylum if there are reasons for believing that the person has committed a serious nonpolitical crime outside the United States prior to arrival.285 A conviction is not required so this may include conduct committed while a juvenile if it is considered serious. This

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N-A-M-, 24 I&N Dec. at 343. Matter of R-A-M-, 25 I&N Dec. 657, 659-60 (BIA 2012). 279 Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012). 280 Delgado v. Holder, 648 F.3d 1095, 1107-08 (9th Cir. 2011) (en banc); see id. at 1111-1112 (Reinhardt, J, concurring). 281 Matter of Y-L-, 23 I&N Dec. 270, 276–77 (A.G. 2002). The Ninth Circuit has held that this standard may be applied to convictions on or after May 5, 2002. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949, 953 (9th Cir. 2007). 282 N-A-M-, 24 I&N Dec. at 341; see also Delgado, 648 F.3d at 1102. 283 Gomez-Sanchez v. Sessions, 887 F.3d 893, 904 (9th Cir. 2018) (vacating and remanding Matter of G-GS-, 26 I&N Dec. 339, 345 (BIA 2014), and holding that the immigration judge must consider evidence of “the defendant’s mental condition at the time of the crime” in the context of withholding of removal). 284 Matter of Jean, 23 I&N Dec. 373, 383-84 (A.G. 2002). 285 INA § 208(b)(2)(A)(iii); INS v. Aguirre-Aguirre, 526 U.S. 415, 418 (1999). 278

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standard is broader than the “particularly serious crime” bar. 286 The BIA balances several factors in determining what is a serious non-political crime. 287

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Nonetheless, whenever possible, advocates should argue that children lack the capacity to commit crimes. Depending on the age of the applicant and the type of crime, advocates may argue that children cannot form the mens rea necessary to commit such a crime. Children are less culpable for their actions due to their developmental status. Immigration laws recognize this decreased culpability since delinquency is treated differently and less seriously than adult convictions.288 See Chapter 17. Advocates should also highlight when such crimes were committed by the youth under duress and by the influence of others, for example, family members, gangs, or by the government as a result of forced military recruitment. Because there is no controlling law on a duress defense to the serious nonpolitical crime bar, advocates may wish to look to the law on federal drug prosecutions. 289 While criminal courts impose stringent burdens on a defendant to prove duress, this does not necessarily mean that immigration authorities should similarly hold immigrant youth to this same standard. However, these elements can be used as a guide for advocates alleging duress as a defense to the commission of a serious nonpolitical crime. 4. Risk to national security Another bar to asylum is if the adjudicator has “reasonable ground” to believe the asylum-seeker is a danger to the security of the United States. 290 5. Terrorist activity Finally, applicants are barred from asylum if they are inadmissible for terrorist activity. 291 This ground is extremely broad. This can become an issue for anyone who has provided material support to a terrorist organization, even relatively minor support. 292 This bar has, therefore, prevented many legitimate asylum applications from being approved and has provoked strong advocacy efforts to limit the reach of the “material support” provision. Although the BIA recently 286 See Matter of E-A-, 26 I&N Dec. 1, 4 (BIA 2012) (finding that throwing rocks, considered together with the applicant’s other actions of burning of buses and cars, reaches the level of serious criminal conduct.) 287 Matter of McMullen, 19 I&N Dec. 90, 97–98 (BIA 1984) (“In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.”) 288 Matter of De La Nues, 18 I&N Dec. 140, 142-44 (BIA 1981); Matter of Ramirez-Rivero, 18 I&N Dec. 135, 137-39 (BIA 1981). 289 A duress can be established if: 1) there is an immediate threat of death or serious bodily injury; 2) there is a well-grounded fear that the threat will be carried out; and 3) there is a lack of a reasonable opportunity to escape. U.S. v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984). The third element has also been interpreted in some contexts as the obligation to turn oneself in to authorities upon reaching a point of safety. See id. at 695. 290 INA § 208(b)(2)(A)(iv); see also Matter of A-H-, 23 I&N Dec. 774, 788 (A.G. 2005) (“[T]he phrase ‘danger to the security of the United States’ is best understood to mean a risk to the Nation’s defense, foreign relations, or economic interests.”); see also Matter of R-S-H-, 23 I&N Dec. 629, 635 (BIA 2003). 291 INA § 208(b)(2)(A)(v). 292 See Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004) (setting up tents and providing food).

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decided in Matter of A-C-M- that any degree of support for terrorist groups triggers this bar, 293 efforts to challenge this interpretation continue and the state of this bar may change. Advocates who believe their client has a potential ground to trigger this bar should review the law carefully and consult with an expert if possible. For more information, see ILRC’s Essentials of Asylum Law manual. B.

Bars that apply to asylum only

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In addition to the bars described above, asylum applicants are also barred if they fail to file for asylum within one year of arrival in the United States (with some exceptions), if they were firmly resettled in another country, and if they may be removed to a safe third country. The TVPRA, however, amended the INA so that the one-year deadline and any safe-third country agreements do not apply to “unaccompanied alien children” (UACs) seeking asylum. 294 As we have discussed throughout this manual, an unaccompanied minor is defined as an undocumented person under the age of 18 who does not have a parent or legal guardian who is willing or able to provide care and physical custody. 295 1. One-year filing deadline An applicant must file for asylum within one year of arrival in the United States, unless they can demonstrate “changed circumstances which materially affect an applicant’s eligibility” or “extraordinary circumstances relating to the delay in filing an application within the period specified.” 296 However, for minor asylum applicants, there are two important ways in which this bar may be overcome. UACs. Under the TVPRA, the one-year bar does not apply in the cases of UACs. 297 The one-year deadline exemption for UACs is a particularly critical protection for children as most children have little control over their immigration circumstances. 298 Note, however, a key issue here is determining if and when a child can be considered a UAC so that they may benefit from this and other related protections under the TVPRA. See Chapter 1. Nevertheless, if a person falls under the definition of a UAC, it should not matter whether or not they were over the age of 18 or already reunited with a parent by the time they filed the I-589 with USCIS. 299 As long as USCIS

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Matter of A-C-M-, 27 I. & N. Dec. 303 (BIA 2018). INA § 208(a)(2)(E). 295 6 U.S.C. § 279(g)(2). 296 INA § 208(a)(2)(B); 8 C.F.R. § 208.4(a)(2). 297 INA § 208(a)(2)(E). 298 Manoj Govindaiah, Deborah Lee, Angela Morrison & David Thronson, Update on Legal Relief Options for Unaccompanied Children Following the Enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Practice Advisory, AILA InfoNet Doc. 09021830, pp. 3–4 (posted 2/19/09) [hereinafter TVPRA Practice Advisory]. 299 See USCIS Memorandum, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (May 28, 2013) available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves [hereinafter UAC Memorandum]. 294

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has jurisdiction over an applicant’s asylum application under the TVPRA’s initial jurisdiction provision, 300 then the one-year deadline should not apply to that person.

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Minors generally. Minors who do not fall under the UAC exemption and are still subject to this bar may nonetheless qualify for an exception. The regulations provide a non-exhaustive list of what may qualify as an exception to the one-year bar, classified as either “changed circumstances” or “extraordinary circumstances.” Minors may qualify for the “extraordinary circumstances” exception based on the legal disability of age. 301 The logic is that minors are “generally dependent on adults for their care and cannot be expected to navigate adjudicatory systems in the same manner as adults.” 302 Thus, a child may still qualify for asylum if they apply before the end of their legal disability, even if their parent is barred by the one-year deadline. 303 Also, for children and youth who had previously been included as a dependent in another’s pending asylum application (i.e., their parents’), “the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21” is a “changed circumstance” allowing for an exception to the one-year filing deadline. 304 While these examples are some of the strongest arguments for an exception to the one-year filing deadline, many other conditions may fit. For example, an applicant may experience mental health issues or changes in their home country or personal situation. Advocates should ensure to assert all possible exceptions for clients who are subject to the one-year deadline. However, even if a minor establishes extraordinary or changed circumstances to qualify for an exception to the one-year deadline, they still must file in a reasonable period. According to USCIS materials, “[a]s long as an accompanied minor applicant applies for asylum while still a minor (while the legal disability is in effect), the applicant should be found to have filed within a reasonable period of time.” 305 Otherwise, practitioners should take a look at Matter of T-M-H & S-W-C-, where the BIA cited to DHS’s general expectation that an asylum seeker in valid status seeking an “extraordinary circumstances” exception to the one-year bar apply within six months of her expiration of status. 306 Although it did not draw any specific conclusions, the BIA indicated that in certain circumstances a “reasonable period” may mean less than six months, while in “rare cases” a delay of one year or more may be justified. 307 USCIS has stated that an “applicant’s education and level of sophistication, the amount of time it takes to obtain legal assistance, any effects of persecution and/or illness, when the applicant became aware of the changed circumstance, and any other relevant factors should be considered.” 308 300

INA § 208(b)(3)(C). 8 C.F.R. § 208.4(a)(5); see also Himri v. Ashcroft, 378 F.3d 932, 936 (9th Cir. 2004) (“As Musab El Himri is a minor, however, his asylum petition is not time-barred. We therefore consider the merits of his asylum claim.”). 302 AOBTC Guidelines for Children’s Asylum Claims, p. 46. 303 Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004). 304 8 C.F.R. § 208.4(a)(4)(i)(C). 305 AOBTC Guidelines for Children’s Asylum Claims, p. 46. 306 Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, 195 (BIA 2010). 307 Id. 308 See USCIS, Asylum Officer Basic Training Course: One-Year Filing Deadline, 22-24 (Mar. 23, 2009), available at http://cdn.ca9.uscourts.gov/datastore/library/2013/02/26/Vahora_LessonPlan.pdf. 301

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2. Firm resettlement Another bar to asylum is if a person was firmly resettled in another country before coming to the United States. 309 This is defined as an offer of permanent resident status, citizenship, or some other type of permanent resettlement. 310 There are two exceptions for this bar, for persons who are simply traveling through the country that made the offer, and for persons whose conditions in the country were so restrictive that they were not firmly resettled. 311

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In Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011), the BIA addressed a circuit split and issued a new framework for determining whether an asylum applicant has been firmly resettled. This new framework involves a four-step analysis. First, DHS bears the burden of presenting prima facie evidence of an offer of firm resettlement. 312 The second step allows the asylum seeker to rebut DHS’s prima facie evidence by showing that an offer has not, in fact, been made or that they would not actually qualify for permanent status. 313 Showing that they refused to accept an offer, or failed to renew permanent residence, will not rebut evidence of an offer of firm resettlement. 314 Under the third step, the immigration judge will consider the totality of the evidence presented to determine whether the asylum-seeker has rebutted DHS’s evidence of an offer of firm resettlement. 315 Finally, if the immigration judge finds that the asylum-seeker has been firmly resettled, the burden shifts to the asylum-seeker to establish that they meet one of the two regulatory exceptions to firm resettlement discussed above. 316 This provision applies to unaccompanied and accompanied minors. Generally, in this inquiry, a child’s parent’s status is imputed to the child, such that if the parent(s) are found to have been firmly resettled, so will the child.317 Despite this rule, advocates should try challenging a firm resettlement finding if the children were minors and with their parents in the third country, reasoning that the child had no control over the actions and travels of their parents and could not make an informed decision about whether or not to accept the offer. In some cases, the best interests of a child may have been at odds with the parent’s decision to accept the offer. 309

INA § 208(b)(2)(A)(vi). 8 C.F.R. § 208.15. 311 Id. 312 A-G-G-, 25 I&N Dec. at 501. 313 Id. at 503. 314 Id. (citing 8 C.F.R. § 1208.15); see also Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir. 1994) (finding the expiration of alien’s residence permit after entry into the United States does not preclude finding of firm resettlement in the United Arab Emirates). 315 Id. 316 Id. 317 Hanna v. Holder, 740 F.3d 379, 395–96 (6th Cir. 2014) (applicant did not qualify for exception to firm resettlement bar because he frequently traveled to Canada to visit parents and other family); Vang v. INS, 146 F.3d 1114, 1116-17 (9th Cir. 1998) (holding that the parents’ status is attributed to the minor when determining whether the minor has firmly resettled in another country); Matter of NG, 12 I&N Dec. 411 (BIA 1967) (pre-Matter of A-G-G-, holding that a minor was firmly resettled in Hong Kong because he was part of a family that was resettled in Hong Kong); AOTBC Children’s Claims, p. 47; but see Holder v. Martinez Gutierrez, 566 U.S. 583, 596 n.4 (2012) (clarifying that the BIA does not have “any policy on imputing [a parent’s] resettlement” to a child). 310

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3. Safe third country

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An asylum seeker is barred from obtaining asylum if the person may be removed pursuant to a bilateral or multilateral agreement to a country in which the individual’s life or freedom would not be threatened and where the person would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection. 318 The United States only has one such agreement, with Canada. This agreement provides that, after December 29, 2004, a person may apply for asylum in either the United States or Canada, but not both. There is an exception to this bar “if the Attorney General finds that it is in the public interest” for the person to receive asylum in the United States. 319 This provision does not apply to UACs under the TVPRA. 320 For others, this is only relevant if the individual arrived in the United States from Canada. In practice, the agreement provides for a pre-screening interview for certain asylum applicants who are traveling from Canada into the United States to resolve whether the United States or Canada should adjudicate the asylum claim before assessing the merits of the asylum claim. 321 It permits the United States to remove to Canada asylum seekers attempting to enter the United States from Canada and immigrants who are in transit in the United States after having been removed from Canada. As written, the agreement applies to withholding and CAT as well, even though only the asylum provisions appear in the statute as a bar to applying for relief. 322 4. Previous denial of asylum Where an applicant has previously applied for and been denied asylum, they are typically barred from a grant of asylum. 323 An application may be considered, however, where the applicant demonstrates “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” 324 Changed circumstances are defined in the regulations, 325 in a nonexhaustive list, as: a. Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; b. Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; 326 or 318

INA § 208(a)(2)(A). Id. 320 INA § 208(a)(2)(E); see also 8 C.F.R. § 208.30(e)(6)(iii) for a full list of exemptions to the bar. 321 Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 Fed. Reg. 69,480–69,489 (Nov. 29, 2004). 322 Id. at 69,490; INA § 208(a)(2)(A). 323 INA § 208(a)(2)(C). 324 INA § 208(a)(2)(D). 325 8 C.F.R. § 208.4(a)(4)(i). 326 But see Matter of C-W-L-, 24 I&N Dec. 346, 352-53 (BIA 2007) (holding that a subsequent application based on changed personal circumstances needs to be filed in conjunction with a motion to reopen “during 319

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c. In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21. However, it is important to note that an asylum application has not been officially denied unless it has been denied by an immigration judge or the BIA. 327 § 12.5 The Asylum Process A.

Overview

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Asylum claims require applicants be present in the United States and can be made affirmatively or defensively. In general, affirmative applications are filed by mail with USCIS. Applicants will then be notified of their interview appointment with an asylum officer. If the application is denied, the child will be placed into removal proceedings at which time they may renew the asylum application. Defensive applications are filed in immigration court once an individual has been apprehended by immigration authorities, or by expressing a fear of returning to one’s country at a port of entry, and, as a result, being placed in removal proceedings. Notably, however, the TVPRA created important procedural protections for any children who have ever been classified as “unaccompanied alien children,” who are in removal proceedings, and who are seeking asylum. Under the TVPRA, a USCIS asylum officer has the initial jurisdiction over any asylum application filed by such an unaccompanied minor, even though they are in removal proceedings. 328 This change is critical for youth in removal proceedings because it means they have the opportunity to have their asylum claim heard in the non-adversarial setting of the affirmative asylum interview at USCIS, rather than immigration court. The TVPRA provides guidance to officers in the adjudication of such claims and provides that the child’s status and developmental level as an unaccompanied minor should be taken into account. 329 More information about the asylum process is provided in Subsections B and C below. In any asylum case, the principal asylum form is a Form I-589, Request for Asylum and for Withholding of Removal. 330 Applicants may include spouses and children (but not parents) who are in the United States on the application. 331 As described below, once granted asylum, asylees may then petition for certain relatives abroad. In addition to the Form I-589, the asylum application must include a declaration of the applicant and other supporting documentation such

proceedings before the entry of a final order of removal or within the 90-day deadline for a motion to reopen”). 327 8 C.F.R. § 208.4(a)(3). 328 See TVPRA § 235(d)(7)(B); INA § 208(b)(3)(C). 329 See TVPRA § 235(d)(8) (providing that UACs’ applications for asylum “shall be governed by regulations which take into account the specialized needs of [UACs] and which address both procedural and substantive aspects of handling [UACs’] cases”). 330 8 C.F.R. § 208.3(a). 331 INA § 208(b)(3)(A).

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as evidence supporting the claim of persecution. 332 See Subsection D below for more information about filing supporting evidence for an asylum claim.

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Asylum applicants are not eligible for employment authorization until 180 days after the filing of the asylum application. 333 Note that the 180-day period is interrupted by any delays in the adjudication process that an applicant requests or causes, such as a request to reschedule an interview with USCIS to a later date. In instances where USCIS or an immigration judge denies the asylum case within 180 days of filing, applicants are ineligible for work authorization. However, if the decision of an immigration judge is appealed to the BIA and the BIA remands the case to the immigration judge for adjudication, the applicant will be credited with the total number of days between the immigration judge’s decision and the date of the BIA’s remand order. If asylum is granted, this applicant becomes an “asylee.” One year after being granted asylum, an asylee is entitled to apply for adjustment of status to become a lawful permanent resident. Unlike in their asylum application, when applying to adjust status, the person must now establish that they are not inadmissible under the grounds at INA § 212. If they are inadmissible, they can ask for a special waiver only available to asylees and refugees for any ground of inadmissibility (except for the grounds relating to immigration authorities having “reason to believe” the person was involved with drug trafficking and certain security-related grounds) at INA § 209(c). USCIS, the immigration judge, and the BIA have jurisdiction to grant the waiver, depending on the posture of the case. 334 There is no requirement that the person have qualifying U.S.-citizen or permanent resident relatives to qualify for the waiver. Persons granted asylum can petition to confer their asylee status on immediate family members abroad and bring them to the United States. As a practical matter, this is of no benefit to most youth since this right is limited to an asylee’s spouse and minor children. However, for youth who do have minor children, this benefit is an advantage over Special Immigrant Juvenile Status (SIJS), which does not allow derivative beneficiaries. See Chapter 6 for a discussion of the benefits of SIJS.

332

See INA § 208(b)(1)(B)(ii). INA § 208(d)(2). Note that a settlement agreement in the case of B.H. et al. v. USCIS, et al., No. CV112108-RAJ (W.D. Wash., filed Dec. 15, 2011) has made significant changes to the asylum clock. One of the major changes is that applicants applying for asylum in court are now allowed to “lodge” an asylum application with an immigration court clerk instead of waiting until their hearing. Once the application is filed or lodged at the window of the immigration court, it will start the asylum clock of 180 days for employment authorization eligibility. For more information about the terms of the settlement, please see the ILRC’s Essentials of Asylum Law or visit http://www.legalactioncenter.org/litigation/asylum-clock. 334 See adjustment waiver provision at INA § 209(c). The grounds of inadmissibility related to public charge and lack of documents do not apply. The waiver can be granted “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 333

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B.

Asylum process for unaccompanied minors in removal proceedings under the TVPRA

Determining USCIS jurisdiction. The TVPRA provides that “[a]n asylum officer … shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child.” 335 An unaccompanied alien child (UAC) is defined as a child who: “has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” 336

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As of June 10, 2013, asylum offices will rely on a previous determination by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) that an applicant is a UAC, and take jurisdiction over an asylum application without question. 337 This means that the agency will not dispute UAC status if the child has already been designated a UAC. The one exception to this policy is where there has been an affirmative act to terminate the UAC status by the Department of Health and Human Services, ICE or CBP before the filing of the asylum application. 338 NOTE: Anticipated changes to classification of UACs. Although the June 2013 Kim Memo provides simple and clear guidance on when a youth will be considered a UAC for purposes of accessing TVPRA asylum protections, it is nothing more than a policy memorandum that could be changed at any time, and as of the time of this writing, a change appears likely. In February 2017, DHS issued a memorandum implementing the January 2017 Executive Order on border enforcement. In this memorandum, DHS directs USCIS, CBP, and ICE to develop “uniform written guidance and training” on who should be classified as a UAC, and when and how that classification should be reassessed. 339 This guidance has not yet been released, but we anticipate

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TVPRA § 235(d)(7)(B); INA § 208(b)(3)(C). This creates an exception from the general rule that the immigration court has “sole” and “exclusive” jurisdiction over asylum applications in removal proceedings. 8 C.F.R. § 1003.14(b). Many UAC asylum applications were mistakenly rejected by USCIS until the agency issued guidance in 2013. See UAC Memorandum at 1-2. Note that the 2013 guidance is not retroactive, so applications for which USCIS issued a Notice of Lack of Jurisdiction must be adjudicated by the immigration court. USCIS Questions and Answers, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications filed by Unaccompanied Alien Children (June 10, 2013) at 4, available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applyingasylum-themselves [hereinafter UAC Asylum FAQs]. 336 6 U.S.C. § 279(g)(2). 337 UAC Memo; USCIS Memorandum, Updated Service Center Operations Procedures for Accepting Forms I-589 Filed by Unaccompanied Alien Children (June 4, 2013), available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves [hereinafter June 2013 Memorandum]. 338 UAC Memorandum at 2. One example of an affirmative act is when the child is transferred into ICE custody upon their 18th birthday. 339 Sec. John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), Sec. L; see also Donald J. Trump, Executive Order on Border Security and Immigration Enforcement Improvements (Jan. 25, 2017), Sec. 11(e).

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that it will change the current policies to limit the circumstances in which children will be considered to be UACs, and will likely include a rescission of the June 2013 Kim Memo.

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Because of likely changes to, or a rescission of, the June 2013 Kim Memo, as well as the fact that the Kim Memo does not bind immigration courts, practitioners working with UAC asylum applicants should continue to be mindful of: 1) whether their clients who were previously designated as UACs continue to meet the definition of a UAC at the time of filing their asylum application; and 2) the one-year bar, even for clients who have been previously designated as UACs. Thus, advocates are encouraged to, whenever possible, file their child clients’ asylum applications while they continue to meet the legal definition of a UAC, or within 6 months of turning 18 (in which case, even if they are not treated as UCs exempt from the one-year bar they can still argue that they filed within a reasonable period of time after the expiration of their minority status). 340 In many cases, a child will be given UAC status at the time of apprehension to decide which governmental entity (e.g., ORR) has custody of the individual. 341 For further information on the detention system for children, see Chapter 18. However, if there was no prior determination of UAC status, USCIS will make an initial determination, based on whether the applicant satisfied the definition of a UAC at the time of filing the asylum application. 342 In this situation, the asylum officer will ask questions during the interview about the care and physical custody of the applicant at the time of filing. 343 Finally, USCIS has jurisdiction over any asylum application by a child who is not currently in removal proceedings. Note on immigration court jurisdiction. USCIS does not have jurisdiction over the asylum applications filed by accompanied minors in removal proceedings (that is, those who were accompanied on the date of filing and did not receive a UAC label in the past, or those who did receive that label but then the government stripped that label prior to filing). Filing a UAC asylum application with USCIS. The asylum packet should be submitted to the USCIS Service Center assigned to the child’s state of residence, 344 and include the Form I-589 with a heading “UAC I-589”; the G-28 Notice of Entry of Appearance of an Attorney, if applicable; documentation to prove that the child was determined to be a UAC per the guidelines set forth below; and the UAC Instruction Sheet, described above (if the child has already appeared in immigration court). A cover letter should also be submitted with the application 340

For additional information and arguments against stripping UAC status, see CLINIC, Practice Advisory on Strategies to Combat Government Efforts to Terminate “Unaccompanied Child” Determinations (2017), available at http://www.cliniclegal.org/sites/default/files/resources/defending-vulnerablepopluations/Practice-Advisory-on-Strategies-to-Combat-Government-Efforts-to-TerminateUnaccompanied-Child-Designations-(May-2017).pdf. 341 UAC Memorandum at 1-2. 342 Id. at 2. 343 USCIS Memorandum, Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, (March 25, 2009) available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves [hereinafter 2009 Langlois Memorandum]. 344 Check https://www.uscis.gov/i-589 for the appropriate USCIS service center.

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indicating the child’s A number, date of birth, and that the application is for asylum. If applicable, the cover letter should also note the prior use of any other name or date of birth by the child and indicate if there was a previous filing of an I-589 (and, if so, the date it was filed). Finally, the outer envelope for the filing should be labeled “UAC I-589.” 345 As mentioned above, USCIS does not currently engage in an independent determination of whether each child applicant meets the definition of a UAC. Instead, following the June 2013 USCIS guidance on jurisdiction, the NSC will accept the asylum application of an individual in removal proceedings if any of the following three conditions are met:

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1. The date of birth listed on the Form I-589 indicates that the applicant is under 18 at the time of filing with USCIS; or 2. The applicant submits a copy of the UAC Instruction Sheet with the I-589; or 3. The applicant submits the I-589 with a copy of documentation provided by HHS/Office of Refugee Resettlement showing the applicant was in HHS/ORR custody as a UAC, such as the UAC Initial Placement Referral Form or the ORR Verification of Release Form. 346 However, the NSC will reject I-589 applications for lack of jurisdiction where the applicant is in removal proceedings, is 18 years or older at the time of filing, and has not submitted any of the documents listed in (2) or (3) above. After submission of the application, the child will receive a receipt notice acknowledging receipt of the application, and then an Application Support Center (ASC) notice for a biometrics appointment. Finally, the child will be scheduled for an interview. In the absence of exceptional circumstances, the interviews must be scheduled no later than 45 days after the date the application is filed and the application must be adjudicated within 180 days. 347 Note that the Asylum Office implemented a “last in, first out” scheduling policy for all asylum applications filed after January 29, 2018. 348 This marked a drastic change, as interviews were previously being set out many months following submission of the asylum application, allowing advocates additional time to prepare supplemental filings and prepare their client to provide testimony. At the time of writing, advocates report that these expediting procedures are not being applied to UAC cases, which are either not being scheduled at all, or are being scheduled seemingly at random. However, if the expediting of UAC asylum applications resumes, advocates should not file the initial asylum application until they are prepared to proceed on the merits. While many 345

2009 Langlois Memorandum, p 3. For additional guidance on preparing a UAC asylum application, including the preparation of a letter brief and supporting documentation, see CAIR Coalition, Practice Manual for Pro Bono Attorneys (Jan. 2014), available at http://www.caircoalition.org/wpcontent/files_mf/1391555303CAIRCoalitionPracticeManualforRepresentingUnaccompaniedImmigrantChil drenJan312014.pdf. Additional litigation support materials can be obtained through the Center for Gender & Refugee Studies, available at https://cgrs.uchastings.edu/search-materials/cgrs-litigation-supportmaterials. 346 June 2013 Memorandum, p. 2. 347 INA § 208(d)(5)(A)(ii)-(iii). 348 See USCIS, Affirmative Asylum Interview Scheduling, available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling.

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advocates previously filed “skeletal” asylum applications without including a declaration from the child, additional supporting evidence, or detailed country conditions, 349 initial filings with the asylum office need to be more comprehensive when cases are being expedited, or at the very least quickly supplemented with additional evidence. A discussion of current interview procedures before the asylum office is discussed in Section C, infra.

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A decision will not be issued on the day of the interview. Previously, all decisions on asylum applications filed by unaccompanied minors were sent to USCIS Headquarters for quality assurance review. However, as of January 2014, the asylum office may grant asylum to children without a review from headquarters. Nonetheless, USCIS Headquarters frequently changes the types of cases that it decides to review, so it may help to inquire about the most up-to-date policies at your local Asylum Office liaison meetings. Be aware that it may take longer to receive a decision if a case is referred to headquarters. Pending removal proceedings during USCIS adjudication. Minors who are apprehended by local law enforcement or immigration authorities and deemed to be “unaccompanied” will typically be placed into removal proceedings under INA § 240 and issued a Notice to Appear (NTA) before an immigration judge. At an initial court hearing, called a Master Calendar hearing, the immigration judge will determine whether the child is removable as charged in the NTA. This hearing may occur before or after the child files an asylum application with USCIS. If the immigration judge finds the youth to be removable at this hearing, the youth can indicate that they are an unaccompanied minor and plan to apply for asylum as a defense to removal. Note that even if a child is not previously deemed unaccompanied before appearing in immigration court, the child can assert such a designation before the court. Alternatively, a child may file their asylum application directly with USCIS before appearing at an initial hearing in immigration court. 350 If the judge is satisfied that USCIS should adjudicate the application rather than the court, or if the child has already filed such application with USCIS, the judge may grant lengthy and/or multiple continuances in the proceedings in order to allow time for USCIS to adjudicate the asylum claim. Advocates should try to get proceedings terminated without prejudice or ask that the child’s case be designated a “status case” 351 upon proof that the child has filed an asylum application with USCIS. However, although many advocates in the past have had success in getting cases administratively closed once the asylum application has been filed with USCIS, this 349

Also note that USCIS recently granted adjudicators full discretion to deny applications, petitions, and requests without issuing a Request For Evidence or Notice of Intent to Deny “[i]f all required initial evidence is not submitted with the benefit request.” USCIS Memorandum, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), (July 13, 2018) available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_N OIDs_FINAL2.pdf. 350 UAC Asylum FAQs, p. 2. 351 A “status case” is one in which an immigration judge must “await the adjudication of an application or petition by U.S. Citizenship and Immigration Services.” EOIR Memorandum, Case Priorities and Immigration Court Performance Measures (Jan. 17, 2018) at App. A n.7, available at https://www.justice.gov/eoir/page/file/1026721/download.

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outcome is not likely under the current administration. 352 Where this is not possible, the child can still request appropriate continuances while the asylum application is being adjudicated by USCIS. When the child appears in immigration court and has not already filed with USCIS, ICE counsel should give the child the Instruction Sheet for an Unaccompanied Alien Child in Immigration Court to Submit an I-589 Asylum Application to USCIS (UAC Instruction Sheet), which describes the application procedure step by step. See Appendix MM.

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During the USCIS asylum process, a child must continue to appear for any scheduled hearings before the immigration court. At these hearings, the child should present copies of the USCIS receipt notices to ICE counsel and to the court. If USCIS grants asylum, the approval notice will be served on the applicant. ICE should be notified so that the agency can move to terminate the removal proceedings (if not already done) before the immigration court.353 If the application is not granted, USCIS may take one of two actions depending on the last action taken by the immigration judge. If removal proceedings are still pending and the case has either been continued or administratively closed, USCIS will not issue a Notice to Appear, but rather a referral notice back to immigration court.354 If removal proceedings were terminated pending adjudication of the asylum application, USCIS will issue a Notice to Appear to re-initiate the removal proceedings. 355 The immigration judge then may hear the renewed application for asylum in court. The record of the asylum application adjudicated by USCIS will become part of the immigration court file when ICE counsel files the application at a subsequent hearing. If asylum is denied by the immigration judge, the child may pursue subsequent appeals to the BIA and federal court, or alternative forms of immigration relief. Please see Appendices KK–OO for a series of materials to assist in the preparation of UAC asylum claims. Specifically, Appendix KK is a Frequently Asked Questions from USCIS about children’s asylum claims. Appendix LL contains a memorandum to all immigration judges from Michael C. McGoings, Acting Chief Immigration Judge, regarding “Implementation of the Trafficking Victims Protection Reauthorization Act of 2008 Asylum Jurisdictional Provision (Interim Guidance)” dated March 20, 2009, as well as a 2017 EOIR memorandum entitled “Legal Opinion re: EOIR’s Authority to Interpret the term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of the TVPRA.” Appendix MM is the instruction sheet for unaccompanied alien children in immigration court to submit an I-589 asylum application to USCIS. Appendix NN is a sample letter brief for a UAC asylum claim. C.

Interview procedures before the asylum office

Under 8 C.F.R. § 208.1(b), asylum officers are to receive special training in international human rights law, non-adversarial interview techniques, and other relevant national and international refugee laws and principles. 356 This includes information on the persecution of persons in other 352

See Matter of Castro-Tum, Respondent, 27 I&N Dec. 271 (A.G. 2018) (holding that immigration judges and the BIA do not have the general authority to grant administrative closure). 353 2009 Langlois Memorandum, p. 6. 354 Id. 355 Id. 356 8 C.F.R. § 208.1(b).

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countries on account of race, religion, nationality, membership in a particular social group, or political opinion; torture of persons in other countries; and other information relevant to asylum determinations. 357 Officers also receive training on handling the claims of children, and in particular, those of unaccompanied minors.

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At the asylum interview, the asylum officer must conduct the interview in a non-adversarial manner and, unless otherwise requested by the applicant, separate and apart from the general public. 358 The officer must also employ child-sensitive interview techniques for youth applicants. 359 The purpose of the interview is to elicit all relevant and useful information bearing on the applicant’s eligibility for asylum. 360 The asylum adjudicator may be interested in issues involving the child’s current family situation, such as who has guardianship of the child and whether there is parental knowledge and consent of the application for asylum. 361 Note that this is separate from any inquiry into the UAC status of a child applicant. The officer may ask such questions as: • • • • •

With whom is the child living in the United States? Is there a guardianship arrangement? If there is no guardianship, but an adult caretaker, what arrangements have been made? Is there one or more living parent? Do the parents know that the child is applying for asylum in the United States? 362

The asylum officer may want to interview or receive a statement from the parent or trusted adult to obtain such information. For example, practitioners note that some officers require a statement providing parental consent to the asylum application in cases where the parent is not the agent of persecution. In many cases, the parent has accompanied the child to the United States and can readily provide such a statement. If the child is not in contact with the parent, however, you should explain the situation to the officer. Lack of parental consent does not foreclose the adjudication or grant of the application. 363 Also at the time of the interview, the officer will go over the biographical information on the application. The child must provide complete information regarding their identity, including name, date and place of birth, and nationality. 364 The officer may ask how the asylum application was prepared and whether someone helped them prepare it. Officers may also ask whether any information has changed in the application and whether the child would like to make any 357

Id. 8 C.F.R. § 208.9(b). 359 USCIS Asylum Division, Joseph Langlois, Updated Procedures for Minor Principal Applicant Claims, Including Changes to RAPS (Aug. 14, 2007) at 6, available at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves [hereinafter “2007 Langlois Memorandum”]. 360 8 C.F.R. § 208.9(b). 361 2007 Langlois Memorandum, p. 7; AOBTC Guidelines for Children’s Asylum Claims, p. 21. 362 Id. 363 2007 Langlois Memorandum, p. 7. 364 8 C.F.R. § 208.9(b). 358

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changes. Counsel should prepare and submit any amendments to the application in advance of the interview and be prepared to explain any changes. The officer will ask the child how they entered the United States and why they came. Counsel should be aware that the officers will have access to entry and visa records if any exist. Finally and importantly, the officer will ask why the child fears going home. Officers tend to ask very broad questions on this point such as “Why are you seeking asylum?” or “Do you know why you filed the asylum application?” or “Can you describe the harm you or other family members have experienced?” Counsel should work closely with the child to ensure that important details forming the basis of their asylum claim are included in the child’s response.

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The applicant is allowed to have counsel or a representative present, may present witnesses (although this is not expected even if declarations by such witnesses are submitted), and may submit affidavits of witnesses and other evidence.365 The asylum officer has the authority to administer oaths, verify the identity of the applicant, verify the identity of any interpreter or other advocate, present and receive evidence, and question the applicant and any witnesses.366 The role of the attorney in this process is to ensure that the interview is conducted fairly and to clarify legal issues and draw out additional information that may not have been provided during the interview that may be critical to the asylum claim. If there is a language barrier, the applicant must bring a competent interpreter fluent in both English and the applicant’s native language. 367 The government does not provide one for the applicant, and failure to bring a competent interpreter could result in a finding that the applicant failed to attend the hearing. 368 However, the asylum officer in most cases will use an interpretation monitor telephonically—in addition to the applicant’s interpreter—to identify and correct issues that arise during the interpretation. The interpreter must be at least 18 years of age. 369 The applicant’s attorney, representative, or witness may not serve as the interpreter, although a paralegal or other legal assistant may. 370 In addition to the presence of an interpreter and attorney at the interview, a child advocate may also be present; this is someone who is familiar with and has rapport with the child. A child advocate could be the child’s social worker, teacher, or a person from the child advocates program run through the Young Center for Immigrant Children’s Rights at the University of Chicago, School of Law. The Young Center has offices in various locations around the country and can provide support to children as well as provide written reports and statements to various actors within the immigration system to advocate for the best interests of the child. While the child advocate generally will not speak during the asylum interview, their role is to be a source of support to the child so that the child can successfully get through the interview.

365

Id. 8 C.F.R. § 208.9(c). 367 8 C.F.R. § 208.9(g). 368 Id. 369 Id. 370 Id. 366

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Advocates have found great variability in individual asylum officers’ ability to conduct developmentally appropriate interviews with children. If you are concerned about the propriety of the asylum officer’s interviewing techniques in your case, request to speak with a supervisor.

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At the end of the interview, the applicant or the applicant’s representative has an opportunity to make a statement or comment on the evidence presented. 371 The asylum officer may, in their discretion, limit the length of such statement or comment or may require it in writing. 372 The applicant should be informed that they must appear in person to receive and to acknowledge receipt of the decision of the asylum officer and any other accompanying material at a time and place designated by the asylum officer, except as otherwise provided by the asylum officer. 373 However, some advocates have had success in requesting that the Asylum Office provide the results of the child’s application via mail, which can limit the child’s need to travel back and forth to the Asylum Office. The asylum officer will consider evidence submitted by the applicant together with her asylum application, as well as any evidence submitted by the applicant before or at the interview. 374 A sample letter brief submitted to an asylum officer is provided at Appendix NN. It is recommended that the advocate submit the letter brief and any supporting documentation as far in advance as possible so that the officer has time to review the information thoroughly, but the documentation filing policies vary by office. If the documents are handed over at the time of interview, the interview may be delayed in order to give the officer sufficient time to review the file. However, some Asylum Offices may prefer submission of supporting materials only on the day of the interview. Thus, it is recommended that counsel consult with local practitioners for the filing policies of the specific Asylum Office that will conduct the interview. As a matter of discretion, the asylum officer may grant the applicant a brief extension of time following an interview during which the applicant may submit additional evidence. 375 IMPORTANT NOTE: Failure to appear for a scheduled interview without prior authorization may result in dismissal of the application or waiver of the right to an interview.376 Tips for preparing the child client for the interview: • • • •

Explain the role of the officer during the asylum interview. Explain how long the interview is (generally 2–3 hours) and the general interview process. Review the asylum application with the child and pay particular attention to the biographical information. Prepare the child on answers to key questions and important details such as how they came to the United States and why they fear return to their country of origin. Practice

371

8 C.F.R. § 208.9(d). Id. 373 Id. 374 8 C.F.R. § 208.9(e). 375 Id. 376 8 C.F.R. § 208.10. 372

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these possible interview questions with the child multiple times to ensure that the child’s answers are consistent with what was submitted in writing. You should explain what the law says and review the important details of their case that will be pieced together to make the asylum claim. Let the child know what the officer will want to know, such as what information the officer will find relevant, and explain that the officer has limited time to obtain that information, so it is important to answer questions as directly and clearly as possible. Because this may be the first time that the child will speak on their own behalf, it may take many practice sessions for the child feel comfortable answering the questions. Make sure to use positive encouragement and consider modeling clear ways to answer the interview questions. Prepare the child to work with the interpreter and interpreter monitor by arranging a mock interview with an interpreter where someone other than the attorney plays the role of the adjudicator. This allows the child to practice in a formal setting with someone the child does not know. Warn the child and the interpreter that they will have to speak loudly in order for the interpreter monitor to hear them. Remind the child that the interview is confidential. Explain to the child that they will not receive a decision on the day of the interview and the interview is just an opportunity for the officer to speak to them. Let the child know that they will not receive a decision until weeks (or possibly months) later. Remind the child that you are there to assist them, and try to empower them by emphasizing that this is an opportunity to tell their story and to explain why they need to stay here.

PRACTICE TIP: Advocates have commented that asylum officers under the Trump Administration have increasingly questioned child applicants about gang involvement and human smuggling during asylum interviews. This information may be used to deny the asylum application or to pursue criminal action against parents who helped bring the child to the United States. Take steps to understand whether a child client has been associated with gang activities and what the client knows about how they came to the United States. Prepare applicants to answer this line of questioning, even if gang issues are not an aspect of their claim. However, ensure that a child client does not voluntarily offer gang-related information, unless it is necessary to their asylum claim. D.

Credibility and corroboration

Credibility is a critical concern in asylum applications. If the adjudicator does not find the applicant credible, the applicant will not receive asylum. To avoid or minimize any questions about credibility, advocates should ensure that the application is consistent and corroborated where possible. In 2005, Congress passed the REAL ID Act, which included changes to the evidentiary standards for asylum, withholding of removal, and CAT. 377 The REAL ID’s credibility provision creates a 377

Pub. L. No. 109-13, dv. B, 119 Stat. 231, 302-23.

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“totality of the circumstances” test that allows the adjudicator to consider a wide variety of central and tangential factors, such as the applicant or witness’s consistency, demeanor, candor, or responsiveness in testifying or providing other statements. 378 This was a major change, as it allowed even minor inconsistencies that do not go to the heart of the asylum claim to be used to make an adverse credibility finding.

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Any adverse credibility ruling based on inconsistencies must be based on evidence in the record. 379 The AOBTC Guidelines for Children’s Asylum Claims provide guidance for officers making credibility determinations for children. These guidelines state that demeanor “refers to how a person handles himself or herself physically.… A child may appear uncooperative for reasons having nothing to do with the reliability of his or her testimony.” 380 Children are not able to present testimony with the same degree of precision as adults in terms of context, timing, and details, and this may influence their perceived credibility. 381 Specifically, it may be common for children who have been subjected to extreme abuse to be psychologically traumatized,” 382 and exhibit defense mechanisms such as inappropriate laughter or the flat affect associated with depression. AOBTC guidelines tell officers to “be careful when interpreting certain emotional reactions or psychiatric symptoms as indicators of credibility.” 383 Traumatized children may be cautious about revealing the humiliating and painful experiences they have had, for fear that they will not be believed. Additionally, children who have been abused by family members or trusted adults are less likely to form trusting attachments with adults more generally. They may be retraumatized by encounters with authority figures, including asylum officers, and may be inherently distrustful and unable to share information easily. Trauma and cultural differences may be more enunciated in children’s cases and can affect the child’s ability to relay information and make the child appear uncooperative or unresponsive. 384 Finally, because of the challenges in assessing a child’s credibility, child asylum applicants should be given a “liberal application of the benefit of the doubt.” 385

378

See INA § 208(b)(1)(B)(iii) for the full list of factors that an adjudicator may consider. Deborah Anker, Emily Gumper, Jean C. Han, and Matthew Muller, Any Real Change? Credibility and Corroboration After the REAL ID Act, AILA Imm. & Nat’lity L. Handbook, 357-373 (2008-09 Ed.). See generally, Shrestha, 590 F.3d at 1042. 380 AOBTC Guidelines for Children’s Asylum Claims, p. 31. 381 EOIR, U.S. Dep’t of Justice, MaryBeth Keller, Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Children, p. 7 (December 20, 2017) [hereinafter 2017 EOIR Memorandum]; Jacqueline Bhabha and Wendy A. Young, Through a Child’s Eyes: Protecting the Most Vulnerable Asylum Seekers, 75 Interpreter Releases 757, 766-67 (1998). 382 AOBTC Guidelines for Children’s Asylum Claims, p. 32. 383 Id. 384 Id. at 31. 385 U.N. Handbook, para 219; AOBTC Children’s Asylum Claims, p. 34; see American Bar Association Commission on Immigration Policy, Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the U.S., at § VIII(B)(5)(b) (Aug. 2004). But see 2017 EOIR Memorandum at 7 (explaining that “credibility standards and burdens of proof[] 379

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Under the REAL ID Act’s corroboration provision, the testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, “but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 386 However, the adjudicator may decide that the applicant should provide evidence that corroborates their testimony. In this case, the REAL ID ACT requires that “such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 387 Essentially, this means that even if an applicant is found credible, corroborating evidence may be requested, and if requested, the applicant must provide it unless the applicant does not have the evidence and cannot reasonably obtain it. Adjudicators should keep in mind that “it is generally unrealistic to expect a child to testify with the precision expected of an adult.” 388 Children, like adults, may rely solely on testimony to meet their burden of proof in asylum claims. However, adjudicators may ask for easily verifiable corroborating evidence. If so, the child must either provide that evidence or offer a reasonable explanation for why such corroboration cannot be obtained. However, “[w]hat is reasonable will depend on the child’s individual circumstances, including whether or not the child is represented.” 389 Please see the AOBTC Guidelines for Children’s Asylum Claims for the specific guidelines given to asylum officers in adjudicating these cases and the ILRC’s manual, Essentials of Asylum Law, for more information on credibility and corroboration. § 12.6 Withholding of Removal Children and youth who are not eligible for asylum may be eligible for relief from removal called withholding of removal (also known as restriction on removal). This might be an option, for example, if the child is barred from asylum because of the one-year filing deadline. Unlike asylee or refugee status, however, a grant withholding of removal results in a final order of removal and does not entitle the person to apply for lawful permanent resident status or citizenship in the future. Persons granted withholding of removal are protected from being returned to their home country and will be granted employment authorization documents as long as they continue to have withholding of removal. However, they will not be permitted to upgrade their immigration status unless they qualify for a different form of immigration relief at a later date. To qualify for withholding of removal the applicant must demonstrate a “clear probability” (roughly estimated as a 51% chance) of harm upon return to the home country, a higher standard than the “well-founded fear” of persecution required for asylum. The harm must be based on race, nationality, religion, political opinion, or membership in a social group (the same protected grounds as for asylum). Like asylum, an applicant can establish a presumption of future harm by are not relaxed or obviated for juvenile respondents” and that “vague, speculative, or generalized testimony by a child witness … may nevertheless also be insufficient by itself to be found credible”). 386 INA § 208(b)(1)(B)(ii). 387 Id. 388 AOBTC Guidelines for Children’s Asylum Claims, p. 34. 389 AOBTC Guidelines for Children’s Asylum Claims, p. 35.

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providing evidence of past persecution based on a protected ground. 390 Additionally, although asylum is a discretionary determination, the immigration judge must withhold removal if the person demonstrates a clear probability of persecution, unless the person is statutorily ineligible for withholding. 391 This allows the person to remain in the United States (without an opportunity to obtain a green card or citizenship) while the harmful conditions continue to exist in their country of removal. The current bars to withholding of removal, as discussed in § 12.4(A), are:

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1. The noncitizen engaged in persecution of another; 2. The noncitizen, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States; 3. There are serious reasons to believe that the noncitizen has committed a serious nonpolitical crime outside the United States prior to the arrival of the noncitizen in the United States; or 4. There are reasonable grounds to believe that the noncitizen is a danger to the security of the United States. 392 A “particularly serious crime” is defined differently for purposes of asylum and withholding of removal. While an aggravated felony conviction automatically qualifies as a particularly serious crime for asylum, regardless of the sentence (see § 12.4), an aggravated felony conviction will automatically qualify as a particularly serious crime for withholding of removal only if a sentence of five years or more is imposed. 393 However, even if a conviction does not automatically qualify as a particularly serious crime, the immigration judge can still find the conviction to be particularly serious based on the facts and circumstances discussed above in § 12.4.A.2. § 12.7 Convention Against Torture Protection under the Convention Against Torture is the last resort for relief from removal for children and youth who fear returning to their country of origin. People may still qualify for CAT even if they are not eligible for asylum or withholding of removal because they are unable to establish that the persecution was based on race, religion, nationality, political opinion, or membership in a social group, or because they have been convicted of a particularly serious crime.

390

8 C.F.R. § 1208.16(b)(1)(i). INA § 241(b)(3). 392 INA § 241(b)(3)(B). Regarding the last requirement, the BIA held that § 412 of the USA Patriot Act passed in response to the September 11, 2001 terrorist attacks does not change the standard for determining who is barred from asylum or withholding because there are reasonable grounds to believe the person is engaged in an act of terrorism INA § 212(a)(3)(B)(i)(II), or because there are reasonable grounds to believe that the person is a danger to the security of the United States under INA § 241(a)(3)(B)(iv). Matter of UH-, 23 I&N 355 (BIA 2002). 393 INA § 241(b)(3). 391

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A.

Overview

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In 1998, Congress passed legislation 394 that integrated into U.S. law the United Nations Convention against Torture (“CAT”) and the following year regulations were issued that establish a formal procedure for CAT claims by noncitizens. 395 Article 3 of CAT prohibits countries from expelling a person to a country where they would be tortured. 396 To qualify for CAT protection, the applicant must show that it is “more likely than not” (or a 51% chance) that they would be tortured in the proposed country of removal. 397 The definition of “torture” is the infliction of severe pain or suffering, either mental or physical.398 Lawful punishment or sanctions are generally not considered torture under federal regulations. 399 Beyond proving torture, the person also must show that the torture was or will be specifically intended to inflict severe pain or suffering and that the torture was or will be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 400 Unlike asylum and withholding of removal, a CAT claim does not require a nexus to one of the five protected grounds. The requirements for proving a CAT claim are fairly complex and have been the subject of litigation. 401 The applicant’s credible testimony may be sufficient to establish a likelihood of torture. 402 Evidence to support a CAT claim may include instances of past torture, information showing whether the applicant could avoid torture by relocating to a different part of the country, human rights abuses in that country, and other relevant information about that country’s conditions. 403 The CAT regulation provides that the torture feared must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 404 In Zheng v. Ashcroft, 405 the Ninth Circuit corrected the BIA’s definition of 394

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277 (Oct. 21, 1998). In pertinent part, the Act states that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Id. at § 2242(a). 395 64 Fed. Reg. 13881 (Mar. 23, 1999). 396 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984). 397 8 C.F.R. §§ 208.16(c)(2); 1208.16(c)(2). 398 8 C.F.R. §§ 208.18(a)(1); 1208.18(a)(1). 399 8 C.F.R. §§ 208.18(a)(3); 1208.18(a)(3). 400 8 C.F.R. §§ 208.18(a)(1); 1208.18(a)(1); see also Morales v. Gonzales, 478 F.3d 972, 984-85 (9th Cir. 2007) for an analysis of how the definition of this requirement includes “willful blindness” on the part of government officials toward harm inflicted by private individuals. 401 See, e.g., different approaches in Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) (finding applicant would not likely be tortured by Haitian police); Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (finding applicant would more likely than not be tortured because applicant was harmed by police in the past). 402 8 C.F.R. § 208.16(c)(2). 403 8 C.F.R. § 208.16(c)(3). 404 8 C.F.R. § 208.18(a)(1). 405 Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).

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“acquiescence,” which had been “willful acceptance.” 406 The Ninth Circuit instead defined “acquiescence” as “willful blindness,” which includes awareness coupled with an unwillingness or inability to intervene. 407 Many other circuits have adopted the “willful blindness” interpretation of acquiescence. 408 The Ninth Circuit has later clarified that an applicant for CAT protection “need not show that the entire foreign government would consent to or acquiesce in his torture. He need show only that ‘a public official’ would so acquiesce.” 409 This standard allows an applicant to qualify for CAT protection if any official acquiesced in the harm, regardless of whether the official was acting “in an official capacity.” 410

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Asserting gang-related claims under CAT can be challenging due to the requirement that the feared torture must be committed by, instigated by, or with the consent or acquiescence of the government. Zero-tolerance policies in Central America, such as the Mano Dura laws in El Salvador, have been interpreted to show that Central American governments are not acquiescing to gang violence, but are attempting to provide protection (note that the Mano Dura laws have now expired). Advocates can attempt to overcome this hurdle by making sure that the country conditions information presented is up to date and shows uncontrolled violence despite attempted government crackdowns. Evidence that government officials or police are corrupt or regularly cooperate with gang members can show sufficient acquiescence for CAT claims. 411 Practitioners should always make sure to clearly connect the country conditions to the client’s situation. 412 B.

Relief under CAT: Withholding or deferral of removal

The immigration regulations establish two different forms of relief under CAT. An immigration judge can grant withholding of removal 413 when a noncitizen is not subject to a bar to withholding of removal, such as conviction of a particularly serious crime, commission of serious nonpolitical offense, etc. 414 An immigration judge must grant deferral of removal one of the bars to withholding applies. 415 Deferral of removal does not require that the noncitizen be released from

406

Id. at 1194. Id. at 1194-96. 408 See, e.g., Ontunez–Tursios v. Ashcroft, 303 F.3d 341, 354–55 (5th Cir. 2002); Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2001); Silva-Rengifo v. Atty. Gen. of U.S., 473 F.3d 58, 70 (3d Cir. 2007), as amended (Mar. 6, 2007); Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th Cir. 2004); Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d Cir. 2004). 409 Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013). 410 Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017) (explaining that “[t]he statute and regulations do not establish a ‘rogue official’ exception to CAT relief.”) 411 Id. at 363 (“State involvement may be established, though, where ‘police officials were corrupt, and worked on behalf of criminals or gangsters.’”) 412 The discussion on gang-based asylum and CAT claims is taken from Capital Immigrant Rights’ Coalition (CAIR), Seeking Asylum from Gang-Based Violence in Central America: A Resource Manual, available at http://www.caircoalition.org/. 413 8 C.F.R. §§ 208.16(c)(4);1208.16(c)(4). 414 See INA § 241(b)(3)(B). 415 8 C.F.R. §§ 208.17(a); 1208.17(a). 407

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ICE custody or detention. 416 Finally, the DHS can make a motion to terminate the noncitizen’s deferral of removal at any time. 417 In deciding whether a noncitizen qualifies for withholding or deferral of removal under CAT, the IJ must first decide whether the noncitizen is “more likely than not” to be tortured in the designated country of removal. If the IJ finds that torture is likely to occur, they then determine whether or not any of the bars to withholding apply. If no bars apply, the IJ grants withholding of removal. If the statutory bars apply, the IJ issues a decision granting deferral of removal.

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416 417

8 C.F.R. § 208.17(b)(1)(ii), (c). 8 C.F.R. § 208.17(d)(1).

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CHAPTER 13 FAMILY-BASED IMMIGRATION This chapter includes: § 13.1 § 13.2 § 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9

Overview of the Family Immigration Process: A Two-Step Process................. 357 Overview of Who Can Immigrate Through FamilyBased Immigration ............................................................................................. 360 Definition of “Child” and “Spouse” ................................................................... 362 Family Immigration and Adoption ..................................................................... 367 K Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens........................ 371 The Preference Category Immigration System .................................................. 374 Derivative Beneficiaries ..................................................................................... 380 The Child Status Protection Act (CSPA) ........................................................... 382 V Nonimmigrant Visas for Spouses and Children of U.S. Permanent Residents .......................................................................................... 386

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This chapter provides an overview of the substantive law governing family-based immigration, with a focus on how this form of immigration relief may help children and youth. For more information, including information on the inadmissibility grounds and adjustment of status, see also Chapter 5 and Chapter 17. For in-depth, step-by-step procedural information and guidance for more complex cases, see the Immigrant Legal Resource Center’s legal manual, Families and Immigration: A Practical Guide (ILRC 2017). § 13.1 Overview of the Family Immigration Process: A Two-Step Process Children and youth who have certain qualifying family relationships with U.S. citizens 1 or lawful permanent residents 2 may be eligible to obtain lawful status through a family visa. This is a twostep process. The first step is the family visa petition, filed by the USC or LPR relative. The second step is the application to become a permanent resident, filed by the foreign national child. Each step involves different legal and factual issues.

1

In this chapter, please note that a U.S. citizen will also sometimes be referred to as a “USC.” Please note that a lawful permanent resident may also be referred to as an “LPR,” “permanent resident,” “legal resident,” or “green card holder.”

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GENERAL 2-STEP PROCESS Step 1: Petitioner (USC/LPR) files petition for relative  Step 2: Beneficiary (relative) files an application to immigrate

A.



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Consular Processing: Department of State

Adjustment of Status: USCIS

Step one: The petition

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In order for a person to immigrate to the United States through a U.S. citizen (USC) or lawful permanent resident (LPR) relative, the USC or LPR relative first has to prove to the U.S. government that the foreign national relative fits within one of the family relationship categories recognized by the immigration laws. In other words, the USC or LPR must formally request, or petition, the U.S. government to allow the foreign national to apply for an immigration benefit (lawful permanent residence, or a “green card”). Therefore, the USC or LPR relative is called the “petitioner” and the foreign national relative is called the “beneficiary.” The form that starts the immigration process for a family member is called the “Petition for Alien Relative,” Form I-130, often referred to as the “visa petition.” Only a U.S. citizen or permanent resident can file a visa petition on behalf of a family member. The petitioner must show two facts in support of a visa petition: 1. The petitioner and the beneficiary have a qualifying family relationship (for example, parent and child); and 2. The petitioner has the immigration status required for the petition—either U.S. citizenship or lawful permanent resident status. If these elements are established, U.S. Citizenship and Immigration Services (USCIS), with a few rare exceptions, 3 must approve the visa petition and step one will be complete. NOTE: Adam Walsh Child Protection and Safety Act. The Adam Walsh Child Protection and Safety Act (“Adam Walsh Act”) prohibits a U.S. citizen petitioner from filing petitions for

3

There are two exceptions barring approval of otherwise qualified petitions: past marriage fraud (or attempted marriage fraud) engaged in by the beneficiary (INA § 204(c)), or a conviction of the petitioner for a certain “specified offense against a minor” (INA § 204 (a)(1)(A)(viii), known as the “Adam Walsh Act” provision). See inset for more on Adam Walsh Act.

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spouses or minor children if the petitioner was convicted of a “specified offense” against a minor, listed in the statute, unless USCIS determines that the petitioner poses no risk to the beneficiary. The “minor” must have been under 18 and the specified convictions involve primarily sexual or related offenses. 4 B.

Step two: Application to immigrate

The family-based immigration system divides relatives into categories depending on their relationship with the petitioner, and on the petitioner’s immigration status. How soon the beneficiary can apply to immigrate depends on which category they are in. For example, a person who qualifies as an “immediate relative” of a U.S. citizen can immigrate quickly. 5 If this beneficiary is physically present in the United States and eligible for adjustment of status, they can apply for permanent resident status at the same time as the visa petition is filed or as soon as the visa petition is approved. This is because immediate relatives always have immigrant visas available to them.

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However, other relatives of U.S. citizens and lawful permanent residents have a limited number of visas available to them. This means that they must wait for visas, which can often take several years or even decades. These relatives are organized into groups referred to as a “preference categories” and they are categorized according to the relationship that qualifies them for an immigrant visa. Under this “preference system,” these beneficiaries may have to wait for several years, after the visa petition is approved, before they can proceed with the application to immigrate. 6 People can immigrate in one of two ways: by applying for an immigrant visa through consular processing at a U.S. consulate abroad, or by applying for adjustment of status to permanent residence at a USCIS office within the United States. When applying to immigrate, the applicant must prove that they are admissible as an immigrant. An applicant is admissible if no ground of inadmissibility applies. But, some applicants who are inadmissible may still be able to immigrate if USCIS agrees to waive (forgive) the ground of inadmissibility. 7 Children and youth are subject to nearly all of the same grounds of inadmissibility as adults. See Chapters 5 and 17 on grounds of inadmissibility and the ILRC’s manual Families and Immigration: A Practical Guide (ILRC 2017) for more information about inadmissibility and waivers. Thus, the applicant must establish the following three facts at step two: 1. The applicant is not inadmissible, or if they fall into a category of inadmissibility, they can obtain a waiver of the inadmissibility ground;

4

See USCIS, Policy Memorandum: Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) Under the Adam Walsh Child Protection and Safety Act of 2006 (Feb. 8, 2007), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact 020807.pdf. 5 See § 13.2. 6 See § 13.6. 7 See Chapters 5 and 6.

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2. The visa petition is still valid (the petitioner-beneficiary relationship still exists and the petitioner still has the required immigration status); and 3. The applicant is eligible to immigrate now, without having to wait (i.e., a visa is available). Special rules apply to married couples. Some people who immigrate through their marriage must go through a third step to immigrate. Their children who immigrate with them are also subject to this third step. Under the Immigration Marriage Fraud Amendments, applicants through marriage (and their children who immigrate with them) who have not been married two years when they immigrate obtain conditional permanent residence, which is valid for two years. The married couple must submit an additional petition to USCIS after receiving the “green card” but before two years have passed, in order to have the conditions, or limitations, on the permanent residence status removed. If the couple is no longer together or the petitioning spouse is abusive and unwilling to cooperate, the immigrant can file this petition to lift the conditions on their residence (Form I-751) on their own as a waiver of the joint petition. Failure to file Form I-751 can result in termination of the immigrant’s conditional residence and lead to their referral to immigration court proceedings. This issue is also discussed in Chapter 11 on VAWA. § 13.2 Overview of Who Can Immigrate Through FamilyBased Immigration

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Family-based immigration may be an option if the child has the requisite qualifying family relationship with a USC or LPR family member. Particularly, if a child can qualify as an immediate relative, family-based immigration may be a very strong option for the child. In the preference category cases, while the child may be eligible for family-based immigration, substantial wait-times for some categories may make other immigration options more desirable. An important consideration with child applicants in preference categories is that, due to wait times, they may “age out” and be too old to immigrate as a “child” by the time a visa is available. 8 Other immigration options may be preferable, depending on the facts of an individual case, because they contain exemptions and waivers of grounds of inadmissibility that are not found in family-based immigration. Immediate relatives. Certain people can immigrate as the immediate relative of a U.S. citizen. Immediate relatives can immigrate very quickly; as soon as the visa petition is approved, the person may begin the application to immigrate because visas are always available for immediate relatives of U.S. citizens. While visa availability never delays immigration for immediate relatives, the application process itself may still take several months, depending on how busy the USCIS office or relevant U.S. consulate is. A separate visa petition must be filed for each immediate relative. Under INA § 201(b)(2)(A)(i), a person qualifies as an immediate relative if they are the:

8

See § 13.8 for more on this issue of “aging out” and some protections for aging out, contained in the Child Status Protection Act (CSPA).

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• • •

Spouse of a U.S. citizen (see § 13.3 for the definition of spouse); or “Child” of a U.S. citizen (defined as unmarried and under twenty-one years of age at the time the petition is filed and having a child-parent relationship recognized by USCIS. See § 13.3 for a detailed definition of child); or Parent of a U.S. citizen, if the U.S. citizen is at least twenty-one years of age.

Note that while fiancé(e)s of U.S. citizens are not considered immediate relatives, there are special provisions allowing for them to immigrate to the United States to get married to the petitioner. See § 13.5. “One-step” adjustment applications: Immediate relatives who qualify for adjustment of status under INA §§ 245(a) or 245(i) can often submit the I-130 visa petition at the same time as the adjustment application. For these individuals only, the two-step process can be done simultaneously, hence these adjustment applications are referred to as “one-step” adjustments. See Chapter 3 for a discussion of adjustment of status.

Category

Beneficiaries Covered by This Category

First Preference (F1)

Unmarried sons and daughters, 21 years of age or older, of U.S. citizens.

Second A Preference (2A)

Spouse or child of a lawful permanent resident.

Second B Preference (2B)

Unmarried sons and daughters, 21 years of age or older, of lawful permanent residents. (If an unmarried son or daughter of a lawful permanent resident marries, he or she loses eligibility to immigrate as the son or daughter of an LPR.)

Third Preference (F3)

Married sons and daughters, of any age, of a U.S. citizen.

Fourth Preference (F4)

Brothers and sisters of U.S. citizens. The petitioner must be at least 21 years old. (Each sibling must at some time have been the child of one common parent.)

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Preference categories. Family members who do not qualify as immediate relatives or fiancé(e)s of U.S. citizens may be able to immigrate another way, through the preference system. Unlike an immediate relative, the beneficiary of a preference petition may have to wait for some period of time between approval of the visa petition and immigrating. People who immigrate through a preference visa petition will fall into one of four categories. The preference categories are: 9

The date that the preference visa petition is filed is called the priority date. Because the preference visa categories are subject to a quota system, there is a limited number of visas available each year for each of these categories. As a result, there are often more people who file petitions than there are visas available, resulting in long waiting periods for prospective immigrants. The priority date determines when the prospective immigrant can immigrate. See § 13.8 for a discussion of the preference system.

9

These categories are set forth at INA § 201(b)(1).

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QUALIFYING FAMILY RELATIONSHIPS: IMMEDIATE RELATIVES AND THE PREFERENCE CATEGORIES Immediate Relatives (IR) INA § 201(b)(2)(A)(i)

Preference Categories INA § 203(a)  Married & unmarried sons & daughters of USC’s  Brothers & sisters of USC’s  Spouses, children and unmarried sons & daughters of LPR’s

 Children of USC’s  Spouses of USC’s  Parents of USC’s No waiting list: visas immediately available.

Subject to numerical cap: must wait in line.

§ 13.3 Definition of “Child” and “Spouse” Before you can file an immigrant visa petition for someone, you need to know if the family relationship is recognized as valid under the Immigration and Nationality Act (INA). The INA defines family relationships very specifically. This section is an overview of how the INA defines who is a child and who is a spouse for immigration purposes. A.

Who is a “child”?

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As seen throughout this manual, under the INA, “child” is a term with a special legal meaning. 10 To be a “child,” they must meet two important criteria, discussed below. 1. The person must be unmarried and under twenty-one years of age A person who is divorced or widowed at the time of petitioning is considered unmarried. 11 Example: A daughter who is 21 years old when the petition is filed is not a child under the INA and cannot be petitioned for as an immediate relative. (She may, however, be able to immigrate as a “daughter” through a preference category). A married, 19-year-old daughter is not a child. But a divorced, 19-year-old is a child under the INA. NOTE: The Child Status Protection Act (CSPA). The CSPA, effective August 6, 2002, allows children of U.S. citizens who turn twenty-one while a parent’s visa petition is pending to immigrate as if they were still children, even though they no longer meet the definition of a “child” under the INA. For example, in the case of a naturalizing LPR petitioner, the age of the child locks in on the date of the parent’s naturalization. If the child is under twenty-one on that date, the petition will convert into an immediate relative petition and remain as such until the child immigrates. The CSPA rules are more complicated for the children of LPRs and other derivative beneficiaries. See § 13.8 for a detailed explanation of CSPA. In addition, the Defense Authorization Act (INA § 329A) allows some children to maintain immediate relative status after turning twenty-one if they are children of deceased USC or LPR members of the armed forces who died “as a result of an injury or disease incurred in or aggravated by combat.” The child must

10 11

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have been under twenty-one and unmarried at the time the parent died and must self-petition within two years of the parent’s death. 2. The person must have a child-parent relationship that USCIS recognizes Biological children who were born in wedlock are unquestionably considered “children” under the immigration laws. But other children, such as stepchildren, adopted children, adopted orphans, and children born out of wedlock, may also qualify. These other children must meet specific requirements. What follows is an overview of these other categories of children. Stepchildren. Under INA § 101(b)(1)(B), a stepchild is a child for immigration purposes if the marriage that creates the stepparent-stepchild relationship took place before the child’s eighteenth birthday. The BIA has ruled that where the marriage ends as a result of death, divorce, or legal separation, the stepchild-stepparent relationship will be deemed terminated unless it is proven that a family relationship continues to exist as a matter of fact between the stepparent and child.12 Example: Gina, a lawful permanent resident, marries Olga. Olga has a ten-year-old daughter, Soledad. Can Gina petition Soledad as her child? Yes. Since Olga and Gina married before Soledad reached the age of 18, Soledad is Gina’s child for immigration purposes. Soledad became Gina’s stepchild as of the date of Gina and Olga’s marriage.

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NOTE: Some stepchildren can derive citizenship if they are adopted by a U.S. citizen stepparent. See Chapter 14. But a stepchild born outside the United States cannot derive U.S. citizenship by virtue of their relationship to a non-adoptive stepparent. 13 Therefore, if Gina in the example above were a U.S. citizen, she would still need to file an I-130 petition on behalf of Soledad, who could then become a lawful permanent resident. Adopted children, generally. Children who are adopted while under the age of sixteen and who have been residing with and in the legal custody of the adoptive parents for at least two years may qualify as “children” of their adoptive parents under the INA. 14 The two years residing together and two years legal custody requirements do not need to be fulfilled at the same time. In addition, the burden is placed on the parent to establish primary parental control during the two-year period of joint residence. 15 There are two exceptions to these requirements. First, if the same adoptive parents adopt a brother or sister of an adopted child, the second child must meet the same requirements but can be considered an adopted child if the adoption took place while they were under the age of eighteen. Second, the Violence Against Women Act (VAWA) of 2005 § 805(d) removed the two-year custody and residency requirements for abused adopted children. Under 12

See Matter of Breier, 8 Immig. Rptr B1-57 (BIA 1997); Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981); Matter of Mourillon, 18 I&N Dec. 122 (BIA 1981) (step-siblings). 13 See Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009). 14 INA § 101(b)(1)(E), 8 CFR § 204.2(d)(2)(vii). 15 See Matter of Marquez, 20 I&N Dec. 160 (BIA 1990). This is particularly important if the adopted child is a relative of the adoptive parents. USCIS will closely examine whether the biological parent has truly given up “parental control” to the adoptive parents, or whether the adoption is a “sham” for immigration purposes.

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VAWA, adopted children can obtain permanent residence even if they have not been in the legal custody of, and have not resided with, the adoptive parent for at least two years, if the child has been battered or subject to extreme cruelty by the adoptive parent or by a family member of the adoptive parent. Note, however, where the child is from a country that is a signatory to the Hague Convention, an international treaty that establishes standards for inter-country adoptions, there are additional requirements that must be met for the adoption to be recognized. For a discussion on the Hague Convention and other adoption immigration-related issues see § 13.4.

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Adopted orphans. Orphans either adopted abroad or coming to the United States to be adopted who are under the age of sixteen may qualify as children for family-based immigration purposes. 16 One of the adopting parents must be a USC. “Orphan” under the INA has a different meaning from common usage. In order for a child to meet the definition of “orphan,” the child must be residing outside the United States when the petition is filed. In addition, the adopting parent must obtain a valid home study, which usually entails interviews with the prospective adoptive parents, background checks, and a home visit to make sure it is a safe environment, before adopting and must meet many other requirements, including those of the Hague Convention if applicable. 17 If the same adoptive parents adopt a brother of sister of an orphan, the second child must meet the same requirements but can considered an orphan if the orphan petition is filed while they are under the age of eighteen. Again, practitioners who are working with children from Hague Convention signatory countries should proceed with caution and ensure that all the legal adoption requirements are met. For a discussion on the Hague Convention and other adoption immigration-related issues see § 13.4. Children born out of wedlock. The immigration laws historically have referred to certain children as “illegitimate” if their parents were not married at the time of the children’s birth. Partly in response to criticism that this language was insensitive, Congress changed the INA’s definition of “child” by replacing the words “illegitimate child” with “child born out of wedlock” and “legitimate child” with “child born in wedlock.” 18 The former INS sent instructions to the field on this change in definition of “child” and “father.” 19 While advocates should use this new language in visa work, the change does not appear to affect the substantive law—with the possible exception of some effect on the definition of an orphan. If a child’s parents are not married at the time of birth, they are considered a “child born out of wedlock.” A child trying to immigrate through their mother is not a problem. But if the child tries to immigrate through the father, the family must meet certain conditions.20 They must prove that the father has had a bona fide relationship with the child before the child reaches the age of twenty-one. To do this, the father must have shown “an actual concern for the child’s support, instruction and general welfare.” The family must also prove that the father is the biological father:

16

INA § 101(b)(1)(F). 8 CFR § 204.3. 18 See INA §§ 101(b)(1)(A), 101(b)(1)(D), 101(b)(2). 19 See INS Cable HQ 204.21-P, 204.22-P, reprinted in Interpreter Releases, (Jan. 2, 1996). 20 INA §§ 101(b)(1)(C), (D). 17

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Example: Geraldo has a daughter, Eliza. He and Eliza’s mother never married. Geraldo lived and worked in the United States for years, but always sent money to Eliza’s mother for her upbringing in Mexico. He visited her every year when he returned to Mexico, and they sometimes wrote letters to each other. Everyone in the village knows Geraldo is Eliza’s father. Geraldo’s mother in Mexico is a devoted grandmother to Eliza and often cares for her. Geraldo has become a permanent resident and wants to petition for Eliza, who is now sixteen years old. To prove that they have a bona fide relationship, he will submit copies of receipts for money orders he sent to her mother to assist with Eliza’s financial support, copies of letters he and Eliza exchanged, and affidavits of friends, neighbors and others who can attest to the fact that he and Eliza have had a father-child relationship. (If instead of waiting in Mexico, Eliza had come to the United States illegally to stay with her father, they would submit documents about Geraldo’s and Eliza’s relationship in the United States). To prove that he is Eliza’s biological father, Geraldo will submit her birth certificate listing him as the father, or some other evidence such as DNA tests proving he is her father.

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Another way for a child to qualify for immigration benefits under the INA is if they have been “legitimated” under the law, 21 or if the child should not have been considered illegitimate in the first place, because the laws of the particular country where the child was born do not distinguish between children born in or out of wedlock. 22 Note that some countries have passed laws to eliminate discrimination against children born out of wedlock but still require a marriage of the parents for the child to be considered legally “legitimated.” 23 If relying on a foreign country’s legitimation laws, it is critically important to research the current law of that country or consult with an expert in that country’s laws. PRACTICE TIP: Always ask clients to tell you about all children they may have, inside or outside of marriage. Some people are not aware that children born out of wedlock are also “children” for immigration purposes, or sometimes the existence of these children may be a sensitive issue, and so the parents fail to list them in their immigration petitions and applications. Clients should be told that if they fail to include any such children on petitions filed with USCIS, it will be difficult to help these children immigrate through them in the future. B.

Who is a “spouse?”

People who are legally married and have a bona fide marriage relationship are spouses under the INA. Same-sex spouses. The INA does not define the word “spouse” in terms of the sex of the parties. However, because immigration law is federal law, USCIS follows the federal definition of “spouse.” Previously, the federal Defense of Marriage Act (DOMA) defined “spouse” as a person of the opposite sex. This prohibited same-sex couples from filing immigrant visa petitions based on marriage. In 2013, the Supreme Court in U.S. v. Windsor struck down DOMA, declaring it 21

INA § 101(b)(1)(C). See, e.g., Matter of Patrick, 19 I&N Dec. 726 (BIA 1988). 23 See Matter of Hines, 24 I&N Dec. 544 (BIA 2008). 22

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unconstitutional. Now, USCIS accepts and processes visa petitions for same-sex spouses who are legally married the same as petitions for opposite-sex spouses. 24 To this end, USCIS has stated that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. Couples who do not currently live in a state or country that recognizes same-sex marriage may obtain a lawful marriage in another state or country that does, so long as the laws of that place permit out-of-state residents to marry there. Transgender spouses. Before the Windsor decision, in the case of Matter of Lovo-Lara, the BIA held that a marriage is valid for immigration purposes so long as it is considered a valid heterosexual marriage between two people of the opposite sex according to the law of the state where the marriage was celebrated.25 The petitioner in Lovo-Lara had undergone sexreassignment surgery and legally changed her sex under state law. USCIS had initially stated it would approve I-130 petitions only where the transgender spouse had undergone sex reassignment surgery and the surgery had resulted in a legal change of sex under the law of the place of marriage. Therefore, a heterosexual married couple including a transgender individual would not only need to prove the validity of the marriage for a marriage-based petition, but the couple would also need to show that the marriage was a heterosexual one.

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After the U.S. Supreme Court decision in Windsor, which opened the way for same-sex couples to file marriage-based petitions, transgender individuals in heterosexual marriages should no longer be subjected to any special requirements or conditions in order to prove that their marriage is in fact a “heterosexual” marriage. Familiarity with the April 2012 USCIS Policy Memorandum regarding the adjudication of benefits for transgender individuals may still be helpful in matters concerning ways of documenting a change of gender identification for purposes of requesting the same be reflected on immigration documents. 26 This memorandum clarifies that sex reassignment surgery is not necessary and it acknowledges a broader range of clinical treatments and other steps that can result in a legal change of gender under the various laws of the states. Widow and widower spouses. The widow or widower of a U.S. citizen, who was not legally separated from the U.S. citizen at the time of his or her death, will continue to be considered an immediate relative for two years after the U.S. citizen’s death, or until the time the widow(er) remarries, whichever comes first.27 Persons widowed before October 28, 2009 and who did not have a pending I-130 petition but otherwise met the above stated criteria could file a self-petition

24 U.S. v. Windsor, 570 U.S. 744 (2013); see also Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) (DOMA no longer an impediment to recognition of lawful same-sex marriages under the INA if the marriage is valid under the laws of the state where it was celebrated); USCIS, Implementation of the Supreme Court Ruling on the Defense of Marriage Act, https://www.uscis.gov/archive/archivelaws/implementation-supreme-court-ruling-defense-marriage-act-0; AILA, FOIA Reveals Post-DOMA USCIS Training Materials, Apr. 21, 2014, www.aila.org, AILA Doc No. 14050649. 25 23 I&N Dec. 746 (BIA 2005). 26 USCIS, Policy Memorandum: Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update AD2-02) (Apr. 13, 2012), https://www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidanc e%20for%20Comment/Transgender_FINAL.pdf. 27 INA § 201(b)(2)(A)(i).

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via Form I-360; however, such a petition must have been filed by October 28, 2011. 28 Note that the widow or widower files Form I-360 as a self-petitioner rather than filing an I-130. 29 Spouses (in addition to parents and children) of USC or LPRs who served honorably in the U.S. armed forces and died “as a result of an injury or disease incurred in or aggravated by combat” may also self-petition with no restrictions on the length of the marriage. § 13.4 Family Immigration and Adoption As noted in § 13.3, adopted children and orphans may be considered children for purposes of a family-based immigration petition. Children who are adopted while under the age of sixteen and have been residing with and in the legal custody of the adoptive parents for at least two years may qualify as children under the INA. 30 Also, orphans either adopted abroad or coming to the United States to be adopted by at least one U.S. citizen adoptive parent and who are under the age of sixteen also may be able to immigrate as children. 31 These are requirements for family immigration through adoption in the INA. Now, however, in certain cases there are additional requirements imposed by the Hague Convention. A.

The Hague Convention

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The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague Convention” or “Convention”) establishes international standards for intercountry adoptions to prevent the abduction, sale, or trafficking of children. The United States became a signatory to this Convention on April 1, 2008. Therefore, as of April 1, 2008, the rules for adoption under the INA depend upon whether or not the adopted child is from a country that is also a signatory to the Hague Convention. 32 The Hague Convention emphasizes the best interests of children and provides protections to children, birth families, and adoptive families. It also recognizes intercountry adoption as a valid means of finding homes for children who cannot return to their country of origin. Under the Convention, both children abroad and those already in the United States can be adopted by persons located within and outside of the United States. A child who is already in the United States as a parolee, nonimmigrant, or even in unlawful status may be able to be adopted under the Convention.

28

P.L 111-83, § 568(c)(2)(B). See P.L. 111-83, § 568(c)(2)(B) and INA § 204(a)(1)(A)(iii); see also USCIS, Policy Memorandum: Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16, 2010), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-of-QualifyingRelative.pdf [hereinafter USCIS Policy Memo on 204(l)]. 30 INA § 101(b)(1)(E); 8 CFR § 204.2(d)(2)(vii). 31 INA § 101(b)(1)(F). 32 The current list of Hague Convention member countries is available on the U.S. Department of State’s website at: https://travel.state.gov/content/travel/en/Intercountry-Adoption/AdoptionProcess/understanding-the-hague-convention/convention-countries.html. 29

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The rules under the Hague Convention are extremely complex, and a detailed discussion of them is beyond the scope of this summary. Advocates interested in pursuing adoption as a way to immigrate a child should consult more in-depth resources listed at the end of this discussion. The most important thing to remember is that there now are two different sets of rules for immigration by adoption. The Hague Convention rules apply where: • • •

The children come from Convention countries (countries that are signatories to the Hague Convention); 33 The children are deemed habitual residents of those countries; and The adoption process is initiated on or after April 1, 2008.

The requirements for the Hague Convention can be found at 8 USC § 1101(b)(1)(G) and 8 CFR § 204.301-.313. The basic requirements for an adoption under the Hague Convention are: • •

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• •

The child must be under sixteen when the visa petition is filed; The child is a habitual resident of a Convention country (defined as the adoptee’s country of citizenship unless the country of origin determines that the child is now habitually resident in the United States); 34 The child has no parents or both parents are unable to provide proper care, or sole or surviving parent or guardian is unable to provide care; and All parents or guardians give written irrevocable consent to termination of legal relationship to the child, and emigration and adoption.

The old rules apply where: • • •

The children subject to adoption are from non-Convention countries (countries who have not signed onto the Hague Convention); or The children are from Convention countries where the central authority of that country has determined that the child is a habitual resident of the United States; or The adoption process began before April 1, 2008 (the date the United States became a signatory to the Hague Convention).

In any of these situations, immigration through adoption for non-orphans is possible if the following requirements are met: 33

There are some Hague Convention countries from which the United States is no longer processing adoptions. Therefore, it is important to check the State Department’s website for an update on these matters. See https://travel.state.gov/content/travel/en/Intercountry-Adoption/AdoptionProcess/understanding-the-hague-convention/hague-adoption-process.html (go to “Adoption Country Information,” select a particular country, click on “Country Information,” then “Hague Convention Information”). 34 Intercountry Adoption Act (IAA) of 2000, PL 106-279. A child who has already been brought to the United States will generally be considered to be habitually resident in the Convention country. 8 CFR § 204.2(d)(2)(vii). If the child is deemed to be habitually resident of the United States, the Convention rules do not apply. 8 CFR § 204.2(d)(2)(vii)(F).

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• • •

The child is under sixteen years old when the adoption is completed; The child lived in the legal custody of the adoptive parents for two years before the immigration papers are filed; 35 and The child is not otherwise inadmissible.

REMEMBER! The two-year legal custody and residence requirements under the old adoption rules do not apply in cases where the Hague Convention applies. See Fed. Reg. Vol. 72, No. 192. at 56834, 56850. When the adoption process through the Hague Convention is initiated, USCIS must first determine that the adoptive parents are suitable before authorities in other countries allow or place the child with the parents for adoption. The other country must also agree that the adoption is in the best interests of the child. These preliminary requirements (including a home study) need to be met before the adoption is complete. The United States must then decide, before the adoption takes place, that the Convention and U.S. immigration requirements are met. While children who are unlawfully present in the United States can be adopted under the Convention, they must return to the country of origin to obtain a visa after the visa petition (Form I-800) is approved. Without the visa, they cannot adjust their status.

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The forms that are applicable for Hague Convention adoptions are the Petition to Classify Convention Adoptee as an Immediate Relative, Form I-800, and the Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A. The I800A must be approved before approval of the I-800. The I-800 is approved provisionally until the foreign state determines that the child will be authorized to immigrate. Once the I-800 is approved, the child will be issued a visa by the consulate to enter the United States. The child will be classified as an immediate relative and enter as a lawful permanent resident. 36 For additional information on adoptions and the Hague Convention see the discussion in Chapter 7 on adoption. Because the Hague Convention is extremely complex and beyond the scope of this manual, any advocate representing a child who may be affected by the Convention should consult an attorney with expertise in Convention adoptions. Other resources on the Convention include: • • •

William J. Bistransky, U.S. Dep’t of State, A Guide for Judges in Outgoing Cases Under the Hague Adoption Convention, http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.5 720885/k.4071/Hague_Convention_Requirements.htm; State Department resources online at https://travel.state.gov/content/travel/en/Intercountry-Adoption.html; and Contact information for Hague Adoption Convention Questions: email [email protected] or call 1-888-407-4747 (for United States and Canada) and 202-501-4444 (outside the United States or Canada).

35

Please note that if a child is adopted as an orphan because of parental death or abandonment, then the child does not need to meet the two-year legal custody and residence with the parents’ requirements. There are, however, other requirements for orphans. See INA § 101(b)(1)(F), 8 USC § 1101(b)(1)(F). 36 8 CFR § 204.306.

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B.

Comparing special immigrant juvenile status (SIJS) with adoption

There are several disadvantages to immigrating through family-based adoption compared to Special Immigrant Juvenile Status (SIJS) (described in Chapters 3–9). Adoption is complicated by the maze of the Hague Convention, it may involve a long waiting period if the parents are permanent residents rather than U.S. citizens, it may require the child to return to the home country for at least a few days to obtain the immigrant visa, and the child will be subject to more grounds of inadmissibility, including the “public charge” ground which requires the adoptive parents to prove they have a certain level of income before the child can immigrate. For these reasons, most children adopted after juvenile court custody choose to immigrate through SIJS rather than through their new parents, if possible. See Chapter 4 for more on this option. If SIJS or other forms of immigration relief are not options, however, immigrating through an adoptive parent may be the best choice, especially if the Hague Convention does not come into play. See the discussion below regarding why any child who will be adopted would like the adoption to be complete by their sixteenth birthday, even if they do not immigrate through the adoptive parents (Subsection C, below), and how undocumented adoptive parents might be able to immigrate through their adopted child (Subsection D, below). C.

Completing adoption by a U.S. citizen by child’s sixteenth birthday to gain automatic citizenship

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Any immigrant child being considered for adoption by a U.S. citizen may benefit from having the adoption complete by their sixteenth birthday—even if the child already has a green card or is immigrating through SIJS, family-based immigration, or other means—because they may be able to gain U.S. citizenship automatically. A child automatically becomes a U.S. citizen if, while under the age of eighteen, they (1) are a permanent resident through SIJS, family immigration, or other means; (2) are legally adopted by a U.S. citizen before they reach the age of sixteen and have resided at any time in the legal custody of the U.S. citizen for two years; 37 and (3) are residing in the legal and physical custody of the U.S. citizen parent. 38 Advocates should note that where the Hague Convention rules of adoption apply, compliance is essential to meet the second prong requiring a legal adoption. See Chapter 14 on Citizenship for Children for more information. D.

Adoption by undocumented adoptive parents

States and localities should not oppose adoption based on the adoptive parents’ undocumented status alone. Adoptive parents could potentially immigrate through the adopted child. There is no known federal law that prohibits adoption based on a prospective parent’s citizenship or immigration status. Moreover, many states, including California, do not have provisions that preclude adoption based on immigration status. Advocates should check the relevant laws in their area. Nonetheless, there are different kinds of rules imposed by states that may make such an adoption difficult or impossible for undocumented parents. One obstacle, for instance, is the legal clearances or background checks necessary for adoption. This may be difficult where a 37

There are different rules for someone who was adopted as an orphan. See INA § 101(b)(1)(F). See INA § 320, 8 USC § 1431 and Naturalization and U.S. Citizenship: The Essential Legal Guide (ILRC 2016).

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prospective adoptive parent has no form of identification, including a social security number. Another, significant obstacle is that many child welfare agencies may not make the necessary recommendations in support of the adoption due to the issue of permanency for the child in the event of the adoptive parent’s apprehension and deportation. The governing standard in these types of cases, however, should not be the parent’s immigration status, but rather the “best interests of the child.” In these cases child welfare agencies should look at many factors, including: the relationship between the child and the parents, the emotional health/soundness of the placement, whether the prospective parents have a back-up plan if deported, and whether support and resources are available in the home country if they were deported. These decisions should be made in a team decision-making setting where the social worker and family assess the pros and cons of adoption together. If you encounter problems with this issue anywhere in the country, contact Casey Family Programs, which has field offices all across the United States (www.casey.org) and has successfully assisted undocumented parents to adopt. The National Immigration Law Center (www.nilc.org) has also brought a successful legal action in California on this issue. 39

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Note that an adopted child who becomes a permanent resident will ultimately be able to help their undocumented adoptive parents to immigrate (get a green card), as long as the family meets certain requirements. First, a “parent-child” relationship for immigration purposes must be established, which means that the adoption must have occurred before the child’s sixteenth birthday, and the child must have resided in the adoptive parent or parents’ lawful custody for two years, at any time. Second, the child must become a U.S. citizen and be at least twenty-one years of age in order to file for their parents. § 13.5 K Visas for Fiancé(e)s, Spouses, and Children of U.S. Citizens Fiancé(e)s (and their children) of U.S. citizens. The K-1 petition allows a U.S. citizen (but not a lawful permanent resident) to petition for a fiancé(e) to enter the United States in order to marry them, and complete the immigration process, in the United States. This is not an immediate relative visa petition. In fact, it is a non-immigrant visa petition (Form I-129F) that allows the fiancé(e) to enter the United States for a limited time and purpose: to marry the U.S. citizen within 90 days of arrival. To qualify for the K-1 visa, the couple must show that they have met at least once in person within the past two years, that they intend to marry, and that they are legally able to marry. Under certain circumstances, USCIS will waive the requirement that the couple actually have met in person in the past two years. If the couple does not get married within 90 days, the fiancé(e) may be required to leave the United States, and if they fail to depart, they may be removed. The K-1 fiancé(e)’s unmarried children under the age of 21 can be included in the petition and enter the United States with the fiancé(e) parent. Children of K-1 fiancé(e)s are designated as K-2 visa holders. Generally, K-2 visa holders can adjust status and become permanent residents as long as they still qualify for the K-2 visa. This means that they must be unmarried and they must

39

Rodriguez-Mendez v. Anderson, No. 948348 (Cal. Sup. Court, Feb. 9, 1993), Dep’t of Soc. Servs., All County Letter 93-16 (Mar. 2, 1993).

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have been admitted to the United States on their K-2 nonimmigrant visa while still under 21 years old. 40 NOTE: A fiancé(e) petition is very helpful in instances where the fiancé has a child under twentyone, but over eighteen, as the fiancé(e) petition will allow the child to immigrate. Otherwise, if the couple marries and the child is over eighteen, the child cannot immigrate because they would be too old to qualify as a stepchild (see § 13.3). A fiancé(e) petition can also be helpful where same-sex marriage is not legal in the noncitizen’s country of origin, and therefore the couple is unable to avail themselves of the marriage-based immigration process because they cannot legally marry as long as the noncitizen remains in their home country. Thus, the fiancé(e) visa is a way to bring the intended spouse to the United States so that the couple can legally marry and the U.S. citizen petitioner can then confer immigration benefits on their spouse.

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After the marriage in a K-1 visa case the immigrant spouse must apply for adjustment of status at a USCIS office in the United States. The couple does not need to file an I-130 as the I-129F they previously filed takes the place of the I-130. 41 If the marriage is less than two years old at the time of the adjustment interview, as is usually the case with people who enter on fiancé(e) visas, USCIS will grant the immigrant spouse conditional resident status for two years. 42 K-2 children will also be granted conditional residence status, if their immigrant parent is granted conditional resident status. The couple will subsequently have to apply to remove the conditions for the spouse and the children during the 90-day window immediately before the date conditional residence expires, so that the immigrant spouse (and their children) can remain in the United States. If the U.S. citizen spouse dies before the K-1 visa holder adjusts their status, the immigrant spouse may file the adjustment application just as they would have done if the U.S. citizen petitioner had not died. It is therefore unnecessary for such a K-1 visa holder to file Form I-360 as a self-petitioning widow or widower. The adjustment application will be approved pursuant to INA § 204(l) and the surviving spouse will be granted unconditional lawful permanent resident status. 43 Spouses (and their children) of U.S. citizens. U.S. citizens who are already married to a noncitizen who resides abroad can request a K-3 visa to bring their spouse to the United States. The children (under twenty-one and unmarried) of K-3 eligible applicants can apply for K-4 visas to enter the United States as well. 44 Like K-1 and K-2 visas, K-3 and K-4 visas use the same petition (Form I-129F), notwithstanding the fact the form is entitled “Petition for Alien Fiancé(e).”

40

Matter of Le, 25 I&N Dec. 541 (BIA 2011). See INA §§ 101(a)(15)(K), 214(d); 8 CFR § 214.2(k). 42 INA § 245(d). 43 See USCIS Policy Memo on 204(l). INA § 204(l) concerns the surviving beneficiaries of qualifying relatives on certain petitions and applications. 44 INA § 101(a)(15)(k)(iii). 41

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Example: Vijay, who is a USC, recently traveled to India to get married. He just returned to the United States to file immigration papers for his new bride. While waiting for an I130 approval notice and the usual consular processing, he can file a K-3 visa petition for his new wife who will then be allowed to travel to the United States where she will be able to apply for adjustment of status instead. Example: Vijay’s new wife has a twelve-year-old daughter. Vijay can request a K-4 visa to bring his wife’s daughter (i.e., Vijay’s new stepdaughter) to the United States. Because Vijay’s new stepdaughter is an immediate relative, Vijay must also file a separate I-130 for her. In order for a foreign spouse to obtain a K-3 visa, the USC spouse must have submitted an I-130 petition for the K-3 spouse and received the Notice of Action (Form I-797) from USCIS indicating that the government has received the petition. The USC spouse can then file a Form I129F Petition for Alien Fiancé(e) with accompanying supporting documents. 45

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The idea behind K-3 visas is that it allows the spouse of a U.S. citizen to come to the United States more quickly than if they consular processed, thereby minimizing the couple’s time apart. However, in reality the K-3 often does not result in the immigrant spouse travelling to the United States more quickly than they would through an I-130 petition and consular processing. Additionally, some consulates hold the K-3 petition until the I-130 is approved (remember for a K-3 the petitioner must file both an I-130 and an I-129F), at which point the K-3 becomes moot because the person can proceed with consular processing, defeating the purpose of filing the K-3 to begin with. Therefore, it is a good idea to check processing times before advising your client to file a K-3 petition to ensure the client will actually benefit from the K-3 rather than the regular family-based process. K-3 and K-4 visa holders, unlike other nonimmigrant visa holders, cannot change status to another nonimmigrant status such as a student or temporary worker. 46 Additionally, neither a K-3 nor a K-4 can adjust status except through an I-130 filed by the USC who was the petitioner for the K-3 visa on Form I-129F. Termination of K-3/K-4 occurs 30 days after the denial or revocation of the I-130 or the adjustment of status. A K-3 visa also terminates upon the K-3’s divorce from the USC. A K-4’s visa terminates upon termination of the K-3 visa, or the K-4’s marriage. 47 The Child Status Protection Act (CSPA) does not apply to a child applying for a K-4 visa. However, once that child is going through the adjustment of status application as an immediate relative, the CSPA applies just like it does with any other immediate relative petition. In the case that the U.S. citizen petitioner dies before the K-3 or K-4 has adjusted their status, the I-130 petition filed for the K-3 spouse is automatically converted into an I-360 self-petition. The K-4 becomes a derivative beneficiary on the I-360 who will be “following-to-join” the K-3 spouse.

45

See https://www.uscis.gov/i-129f for form and form instructions. 8 CFR § 248.2(a)(2). 47 See 8 CFR § 214.2(k)(10). 46

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Two laws affect U.S. citizen petitioners directly. The first law, the Adam Walsh Child Protection and Safety Act, affects all U.S. citizen petitioners, not just K visa petitioners. See § 13.1 for more on the Adam Walsh Act. The second such law impacting U.S. citizen petitioners is the International Marriage Broker Regulation Act (IMBRA), which provides that noncitizen fiancé(e)s and spouses coming to the United States with K visas must be informed about other K petitions previously filed by the petitioner and petitioners must provide information regarding certain criminal convictions, which will be shared with the beneficiary prior to the issuance of a K visa. The petitioner for a K-1 fiancé(e) visa must request a waiver if they have filed two or more K-1 visa petitions at any time in the past or had a prior K-1 petition approved within the last two years. 48 § 13.6 The Preference Category Immigration System Family members who do not qualify as immediate relatives or fiancé(e)s may be able to immigrate another way, through the preference system. Unlike an immediate relative, the beneficiary of a preference petition may have to wait for some period of time between approval of the visa petition and filing the application for an immigrant visa through consular processing or adjustment of status. People who immigrate through a preference visa petition will fall into one of four categories described in detail § 13.2. To summarize, they include:

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• • • • •

Unmarried sons and daughters of U.S. citizens (1st preference); Spouses and children of lawful permanent residents (2nd preference 2A); Unmarried sons and daughters of lawful permanent residents (second preference 2B); Married sons and daughters of U.S. citizens (3rd preference); and Brothers and sisters of U.S. citizens (4th preference).

These categories are set forth in INA § 201(b)(1). A.

Definitions of son/daughter and brother/sister

Who is a “son or daughter”? A son or daughter is a person who once qualified as a child, but now may be over twenty-one or married. 49 Example: Gina and Juan marry when Juan’s daughter Soledad is ten years old. Soledad qualifies as a child under the stepchild rule discussed earlier. Years later, when Soledad is 30, she wants to immigrate through her stepmother Gina. Soledad is not a child because she is over 21. Can she qualify as Gina’s “daughter”? Did Soledad ever qualify as Gina’s “child”? Yes, to both questions. Since Soledad once qualified as Gina’s child, she now can qualify as her daughter. Note that “daughter” is a legally distinct term from “child” under the immigration laws; Soledad is no longer Gina’s “child” but she currently qualifies as Gina’s “daughter.” 48 49

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See INA § 214(d)(2)(A) & (B). 22 CFR § 40.1(s).

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Who is a “sibling” (brother or sister)? Siblings are persons who were once “children” with at least one parent in common either biologically or by adoption. 50 However, an adopted child cannot file a visa petition for their biological siblings or parents if the adoption is one that meets the definition of “adopted child” under the immigration laws. After such an adoption, the biological siblings or parents can immigrate through the adopted child only if no immigration benefit was received due to the adoption, the adoption has been legally terminated, and the original parent-child relationship has been lawfully reestablished. Example: Suppose that when Soledad was 30 years old, Gina left Juan and had another child, Fidel, with another man. Years pass. Now Fidel is 30 years old and Soledad is 60. Are Fidel and Soledad siblings under the INA? Yes, because both Soledad and Fidel once were children with the same mother, Gina. It does not matter that they were not children at the same time, or that Soledad was a stepchild, and Fidel a child born out of wedlock. At one time, they both qualified as Gina’s “children” under the INA. Example: A U.S. couple adopts Lim, born in China. They petition her as their child and she immigrates, automatically becoming a USC when she enters the U.S. with her immigrant visa. 51 When Lim grows up, she travels to China and meets her birth parents and biological siblings. Lim wants to petition for her natural sister. Can she?

B.

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No. Although Lim and her sister have the same biological parents, Lim’s adoption canceled her ability to file visa petitions for her birth parents and her biological siblings.52 If Lim had not immigrated through her adopted parents but had immigrated another way, and her adoption was ultimately terminated, she might have been able to petition for her biological parents and siblings. Conversion of the petition to a new category

The categories described above are not permanent. Many things may happen to the petitioner or beneficiary that will change the preference category that the beneficiary is in, or move the beneficiary from an immediate relative into the preference category system or vice versa. In instances where a child turns twenty-one, there is a change in the beneficiary’s marital status, or there is a change in the petitioner’s immigration status, the petition may convert to a new category. In most circumstances, as detailed below, the beneficiary may retain their priority date even as they move between different categories.53 The basic rule is: If the new petitioner-beneficiary relationship can be the basis of a family petition, the beneficiary retains the petition and priority date and moves into the appropriate category. First preference to third preference (and vice versa). The single daughter or son (over age twenty-one) of a USC marries while waiting for their priority date to become current. Because a 50

Matter of Lin Lee, 19 I&N Dec. 435 (BIA 1987). See INA § 320(b). 52 See INA § 101(b)(1)(E); Matter of Xiu Hong Li, 21 I&N 13 (1995); Matter of Li, Int. Dec. 3207 (BIA 1993); Matter of Kong, 17 I&N Dec. 151 (1979). 53 8 CFR § 204.2(1)(i). See also § 13.8 below for a further explanation of priority dates. 51

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USC can petition for their married daughter or son in the third preference visa category, the first preference petition converts to a third preference petition. If the beneficiary then divorces during the long wait for a current priority date, they again convert—this time back to first preference.

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Second preference 2A to 2B. The child of an LPR (2A preference) reaches the age of twentyone while they await a current priority date. Their petition converts to 2B preference and they retain the priority date. There are some exceptions to this rule under the Child Status Protection Act. See § 13.8.

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Immediate relative to third preference. The child of a USC (an immediate relative) marries (thus becoming third preference). They retain the original priority date from the immediate relative petition, while moving to third preference.

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Second preference 2B to first preference. The petitioner naturalizes so that the beneficiary is now the son or daughter of a U.S. citizen. Such a beneficiary could move from 2B to first preference, but see § 13.8 for Child Status Protection Act provisions that allow a beneficiary to “opt out” of moving to first preference in this scenario.

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Second preference 2A to immediate relative. The petitioner naturalizes so that 2A spouses and unmarried children under twenty-one become immediate relatives. This allows these beneficiaries to escape the preference quotas and potentially process their applications for green cards immediately. In addition, certain beneficiaries may be newly eligible to adjust status, an option they may not have had as 2A beneficiaries, due to certain adjustment bars that do not apply to immediate relatives.

NOTE: It used to be that an immediate relative child who turned twenty-one would automatically convert to first preference. However, under the Child Status Protection Act (CSPA), effective August 6, 2002, the beneficiary remains an immediate relative even after turning twenty-one, unless they prefer to convert to first preference. See § 13.8 on CSPA. Changes in preference categories such as those described here imply a switch from one waitlist to another. With that switch comes a corresponding change in waiting times. Going from one preference category to another, depending on the category and the country, may mean a longer or shorter waiting time to apply for an immigrant visa. C.

Revocation of the petition

It is important to note that certain changes can result in the loss of the petition. If the new petitioner-beneficiary relationship cannot be the basis of a family petition, the beneficiary loses the petition and the priority date.

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Child or daughter/son of an LPR (second preference 2A or 2B) marries. If the child or daughter or son of an LPR marries, they have nowhere to go in the preference system because there is no visa category for married sons and daughters of LPRs. Therefore, they lose the petition and priority date. When and if their parent naturalizes, the newly naturalized parent can file a new petition and the wait begins again.

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PRACTICE TIP: Make sure to tell all your clients who are seeking family-based visas that if they get married, it will affect their application. For children of any age of LPRs, they will LOSE their petition if they get married. * NOTE: If the parent naturalized first, before the child or daughter or son married, then the petition would have converted either from 2A to immediate relative on the date of the parent’s naturalization, if the child were under twenty-one on the date the parent naturalized, or it would have converted from 2B to first preference if the child were over twenty-one on the date the parent naturalized. Therefore, the child’s subsequent marriage would convert the petition to third preference (married son or daughter of USC) and the beneficiary would retain the petition and the priority date. D.

How the preference system works

Probably the first question a visa client will ask you is when they will be able to immigrate. As discussed above, immigration through a family petition is a two-step process. The first step is submitting a visa petition and the second step is applying for permanent resident status. Once the petition is approved, an immediate relative beneficiary may go to step two and apply for permanent residence right away. A preference petition beneficiary, however, must wait until a visa is available under the preference system before going on to step two. Understanding how the preference system works will help you analyze visa cases. When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third, and fourth preference family-based categories. Only a certain number of people who are born in each country can immigrate to the United States each year under the family preference system. Each time someone immigrates to the United

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States under the preference system, one visa is charged to (subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list or “visa backlog.” As far as theory goes, that is about all you need to know. The more people who want to immigrate from a country each year over its visa allotment, the longer the waiting list for that country will be. For that reason, someone from France or Uruguay may be able to immigrate much faster than someone with a similar visa petition from Mexico or the Philippines. The Immigration Act of 1990 set up a complicated system for how many visas go to each preference category. One of the most important changes in the Act was to allow extra visas for the second preference category, and especially for the spouses and children (unmarried and under twenty-one) of permanent residents (2A). In the past, this category has had a wait of ten to twelve years for some countries. Under the current system, the backlog is now approximately two years even for countries with the biggest preference backlog, such as Mexico and the Philippines. However, for unmarried sons and daughters of permanent residents who are in the second preference category 2B, the backlog as of this writing is approximately eight to twenty-one years.

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For more information on the preference system, specifically how to use, read, and create time estimates from the Visa Bulletin and instances in which an individual may “recapture” a priority date, please see the ILRC’s legal manual, Families and Immigration: A Practical Guide (ILRC 2017). § 13.7 Derivative Beneficiaries People who immigrate under the preference system have an important right: their spouses and children can immigrate along with them, on the same petition, so the family will not be split up. 54 The principal beneficiary is the person immigrating under the preference system, and their spouse and children who immigrate with them are called derivative beneficiaries. There is a very easy way to see if someone can immigrate as a derivative beneficiary. Simply ask two questions: 1. Will the principal beneficiary immigrate through a preference visa petition? 2. Does that person have a spouse or child? If the answer to both questions is yes, the spouse and/or child qualify as derivative beneficiaries. Example: Ramona, a U.S. citizen, files a visa petition on behalf of Rafael, her son. Rafael is married and has an eighteen-year-old and a twenty-five-year-old son. When the time comes for Rafael to apply for lawful permanent resident status, who can apply along with him? First ask: Will Rafael (the principal beneficiary) immigrate on a preference visa petition? Yes, he will immigrate as a third preference immigrant because he is the married son of a U.S. citizen.

54

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INA § 203(d).

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Then ask: Does Rafael have a wife or children? Yes, Rafael has a wife and an eighteenyear-old child. They can immigrate as derivatives. His twenty-five-year-old son, however, is not a “child” under the INA because he is over twenty-one years old. Therefore, Rafael’s older son cannot immigrate as a derivative beneficiary. Derivative beneficiaries depend on the status of the principal beneficiary. The I-130 petition is not filed on behalf of the derivative, but rather on behalf of the principal beneficiary. This is often the only way for a derivative to immigrate through a family petition, because derivatives do not often qualify on their own as principal beneficiaries. For example, there is no preference category for “nephews or nieces” of U.S. citizens. But a U.S. citizen aunt or uncle can petition their sibling (the niece or nephew’s parent) who in turn can include derivatives. This means while a niece or nephew of a U.S. citizen cannot be the principal beneficiary of a petition, they may be able to immigrate as the derivative of a petition filed by their aunt or uncle on behalf of their parent. A major exception is where a principal beneficiary in the 2A category has a child who could also be the principal beneficiary in a separate 2A petition filed by the petitioner, as the petitioner’s own child, independent of the principal beneficiary parent. It is often a good idea for petitioners to file separate 2A petitions for their spouse and for their children, especially where the petitioner is likely to naturalize in the near future. Having a separate petition will also protect a child’s eligibility if the parents divorce (although divorce does not necessarily terminate a parent-child relationship).

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Example: Dale, an LPR, filed a petition for his wife Domoina. Domoina’s four-year-old child Mbola can immigrate as a derivative of Domoina. But Dale can also file a petition for Mbola as his stepson. It is a good idea for Dale to file two separate petitions, one for Domoina and one for Mbola, to preserve Mbola’s eligibility in case Dale naturalizes soon or in case Domoina and Dale divorce. While the principal beneficiary and their derivatives can be included in a single visa petition, each family member must file their own, separate application for permanent residence at the second and final step in the immigration process. Each person must also prove their family relationship to the principal beneficiary, in order to be included as a derivative at step one. Example: Rafael’s mother filed just one I-130 visa petition, for Rafael. When Rafael immigrates, he, his wife, and his younger son each must submit an application for permanent residence. In addition, his wife must submit a marriage certificate and his son a birth certificate to prove that they are Rafael’s relatives—just as they would do if Rafael had filed a separate visa petition for each of them. If a child turns twenty-one before immigrating (meaning, before completing consular processing and being inspected and admitted to the United States or going through the process of adjustment of status to become a permanent resident), the person might “age-out” and no longer qualify as a derivative beneficiary unless the Child Status Protection Act (CSPA) protects them (see § 13.8). If the CSPA does not prevent the person from aging out, they automatically move from 2A to 2B, without needing a new petition to be filed on their behalf. 55 The beneficiary in the 2B 55

See USCIS, Policy Memorandum: Updated Guidance to USCIS Offices on Handling Certain FamilyBased Conversion and Priority Date Retention Requests Following the Supreme Court Ruling in Scialabba

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classification will retain the priority date of the principal beneficiary parent from the 2A petition (referred to as priority date retention) to avoid being placed at the end of the waiting list. 56 There are no derivative beneficiaries of immediate relative visa petitions. Anyone who immigrates as an immediate relative must qualify in his or her own right and the petitioner must file separate visa petitions for each person. Example: Steve is a U.S. citizen who files an immediate relative petition for his wife, Marie. Marie’s six-year-old daughter Lisa cannot immigrate as a derivative beneficiary of the petition. Steve must file a separate immediate relative visa petition for Lisa as his stepchild. For more information on derivative beneficiaries, please see the ILRC’s manual, Families and Immigration: A Practical Guide. § 13.8 The Child Status Protection Act (CSPA) The Child Status Protection Act (CSPA), which went into effect on August 6, 2002, was created to help with the problem of children “aging out” of their eligibility to immigrate when they turn twenty-one. This section describes how the CSPA works. A.

Children of U.S. citizens

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Children of U.S. citizens benefit the most from the CSPA. If their parents file I-130 visa petitions for them before they turn twenty-one, they will never age out. 57 They will remain immediate relatives, even though they are no longer children as defined in the INA. Before the CSPA was enacted, their petitions would have converted automatically into first preference petitions when they turned twenty-one. By remaining immediate relatives, these beneficiaries will be able to immigrate more quickly, because they do not have to wait for a priority date to become current. While these beneficiaries must remain unmarried, there is no time limitation regarding when they must actually apply for adjustment or an immigrant visa. A beneficiary might prefer to convert to first preference, however, if they have a child of their own. This is because an immediate relative petition does not include derivative beneficiaries, meaning that if someone immigrates as an immediate relative, their child cannot immigrate with them as a derivative. Instead, the child would have to wait until the parent becomes a lawful permanent resident and then can petition for the child, which could take years. However, all preference petitions can have derivative beneficiaries, so if the parent immigrates instead as a first preference immigrant, their child can immigrate with them. Fortunately, DHS allows the immediate relative beneficiary to opt out of remaining an immediate relative upon turning twenty-one. Therefore, if the beneficiary wants, they can convert to first

v. Cuellar de Osorio (Jun. 25, 2015), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/20150625_Post_Cuellar_de_Osorio_PM_Effective.pdf. 56 Id. 57 INA § 201(f)(1).

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preference so that when they immigrate, their child will be able to immigrate with them as a derivative beneficiary. 58 The BIA has held that the CSPA also allows former immediate relatives who aged out before the CSPA became effective on August 6, 2002 to file an application for an immigrant visa or adjustment of status, if they have not already done so, no matter how long ago the visa petition was filed and approved. 59 B.

Children of LPR parents who naturalize while the petition is pending

If an LPR parent petitions for a child, and then naturalizes before that child turns twenty-one, 60 the child becomes an immediate relative. Under the CSPA, the child will remain an immediate relative even if they turn twenty-one before they actually immigrate. 61 Like other children of U.S. citizens, if the petitioner’s child has a child of their own, they might not want to remain an immediate relative after turning twenty-one, because then they would not be able to bring the child with them when they immigrate, as a derivative beneficiary. Again, DHS allows the beneficiary to opt out of classification as an immediate relative if they want to. 62 C.

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Under the CSPA, married children of U.S. citizens who divorce while still under the age of twenty-one become immediate relatives, 63 instead of just converting to first preference (unmarried son or daughter of a U.S. citizen). If they are over 21 when they divorce, then they convert to first preference. Under the CSPA, it is not clear whether married children of U.S. citizens who are under twentyone years old are eligible to opt out of converting to immediate relatives if they divorce. If they have dependent children, they may prefer to move into the first preference category upon turning twenty-one so that their children can derive status and immigrate with them.

58

See item 30 in the U.S. Department of State’s revised cable of January 3, 2003, “The Child Status Protection Act: ALDAC 2,” which is posted on AILA InfoNet at Doc. No. 03020550 (Jan. 3, 2003) (noting that while CSPA includes an opt-out provision for F2Bs who do not want to convert to first preference when the petitioner becomes a USC [see next section], there is no express opt-out for first preference beneficiaries who do not want to remain immediate relatives when they turn twenty-one as CSPA allows them to do, but nonetheless the State Department recognizes this option as well). 59 See In re Avila-Perez, 24 I&N Dec. 78 (BIA 2007); see also USCIS, Policy Memorandum: Revised Guidance for the Child Status Protection Act (CSPA) (Apr. 30, 2008), https://preview.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives% 201998-2008/2008/cspa_30apr08.pdf. 60 The BIA has interpreted the reference to the child’s “age” on the date the parent naturalizes as biological age, although the Ninth Circuit recently found that INA § 201(f)’s reference to “age” must mean the child’s “CSPA age.” See Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011); Rodriguez-Tovar v. Sessions, 882 F.3d 895 (9th Cir. 2018). 61 INA § 201(f)(2). 62 See item 30 in the U.S. Department of State’s revised cable of January 3, 2003, “The Child Status Protection Act: ALDAC 2,” which is posted on AILA InfoNet at Doc. No. 03020550 (Jan. 3, 2003). 63 INA § 201(f)(3).

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D.

Children of LPRs and of derivative beneficiaries

Before the CSPA, the children of LPRs who turned twenty-one would convert from the 2A to the 2B preference category. Derivative beneficiaries, such as the children of fourth preference (brother or sister of USC) beneficiaries, would age out and lose their ability to immigrate altogether before the CSPA. The CSPA changes this, but it is much less generous, and much more complicated, for the children of lawful permanent residents and other derivative beneficiaries than it is for the children of U.S. citizens. Unlike children of U.S. citizens, the age of children of LPRs and other derivative children beneficiaries does not freeze under the CSPA. But, the CSPA allows them to deduct the amount of time their petition was pending from their biological age at the time a visa becomes available. If the beneficiary is over twenty-one, they still might qualify, depending on how long the I-130 was pending. 64 To calculate a child’s adjusted age under the CSPA, follow the formula outlined below. You subtract the time the petition was pending from the beneficiary’s actual age on the date a visa became available (according to Chart A, Final Action Dates, in the Visa Bulletin). The number you come up with is the “CSPA age,” or “calculated age.” 65 The formula is as follows:

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1. Calculate the time the petition was pending: the time between the petition’s filing date and the approval date. 2. Deduct the time the petition was pending (see the first step above) from the beneficiary’s actual age on the date the visa becomes available.* * The date the visa becomes available is: (a) the first day of the visa bulletin month on which the priority date becomes current according to Chart A of the Visa Bulletin, or (b) the petition approval date, whichever occurs later. 66 The age you get from this formula is the CSPA age; if it is under twenty-one, the beneficiary may continue to qualify as a “child” under the INA. There are online calculators that can help you calculate the number of days elapsed between calendar dates. Caveat: The one-year requirement. The CSPA “calculated” age has an expiration date and is not valid indefinitely. In order to be protected by the CSPA age, an individual must “seek to

64

INA § 203(h)(1)(A)-(B). It is worth noting that some people may benefit from an extra forty-five days towards their CSPA age, based on the Patriot Act. If someone is the beneficiary of a petition filed before September 11, 2001, they remain eligible for an extra forty-five days after turning twenty-one. An even smaller number of people may be eligible for a ninety-day extension. For more information, see USA PATRIOT Act, Pub.L. No. 107-56, 115 Stat. 272 (2001). 66 See USCIS, Policy Memorandum: Revised Guidance for the Child Status Protection Act (CSPA) (Apr. 30, 2008), https://preview.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives% 201998-2008/2008/cspa_30apr08.pdf. 65

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acquire” lawful permanent resident status within one year of the visa availability date (the date when the priority date became current). Example: Simon, a 2A beneficiary, has already turned 21. His priority date becomes current on June 1, 2018. His calculated CSPA age is 18 years of age. However, Simon does not have another three years of protection under the CSPA, as his CSPA age would suggest. Instead, he must comply with the one-year requirement and must seek to acquire status as a lawful permanent resident before June 1, 2019. Example: Pedro, an LPR, filed an I-130 for his son Samuel on October 8, 2012. It was approved exactly one year later, on October 8, 2013. It is now November 1, 2019, and the priority date just became current. Samuel is now 21. Since USCIS took one year to approve the petition, you can deduct one year from his current age. For purposes of immigrating, then, his CSPA age is only 20, and he can still immigrate as a 2A beneficiary, even though he is really over 21. However, if he doesn’t file his adjustment application before November 1, 2020, he will lose the right to immigrate in the 2A preference category, and will automatically become a 2B beneficiary. Since the priority date for 2B is not current, he’ll have to wait longer to immigrate. The same rule applies to derivative beneficiaries in other preference categories.

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Example: Jane, a U.S. citizen, filed a third preference petition for her married son Mark on August 1, 2008. It was approved nine years later, in August of 2017. Mark’s wife Wanda and minor daughter Diana were derivatives. It is now November 1, 2018, Diana is 27, and the priority date is current. Under the CSPA, if you deduct the nine years that the petition was pending from Diana’s current biological age of 27, the number you get is 18. That is Diana’s CSPA age. Therefore, Diana can remain included in Mark’s petition as long as she files for adjustment or consular processing before November 1, 2019. If she fails to file before November 1, 2019, Diana will lose her derivative status, and the only way she will be able to immigrate is through a separate petition filed by her father or mother after they have immigrated. Note that Diana will not be able to recapture the priority date of her father’s petition on behalf of her mother. 67 For those who are going to adjust their status, the clearest and safest way to comply with the “sought to acquire” provision is to file the I-485 adjustment application within one year of the date the visa becomes available. For those who are going to immigrate through consular processing, this means that the beneficiary should either submit a completed Form DS-260 to the National Visa Center (NVC), or submit a Form I-824 to the Service Center that processed the I130 within one year of the date the visa becomes available. PRACTICE TIP: If a person is a derivative beneficiary, they must take action and seek to acquire permanent residence within one year of the date that the visa became available. Remember that the date the visa becomes available is defined as either the date the priority date (for the principal beneficiary and original visa category) becomes current or the date the visa petition is approved, whichever is later. The derivative beneficiary should therefore NOT wait to apply to immigrate

67

See Scialabba v. Cuellar de Osorio, 573 U.S. __, 134 S. Ct. 2191 (2014); § 13.7 above.

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until after the principal parent beneficiary immigrates, which may occur more than one year after the priority date becomes current. If the beneficiary is then over twenty-one and has not “sought to acquire” residence within the one-year time period, it may be too late to do so. Best practice is to file the I-485 adjustment application or consular processing documents within one year. If the beneficiary did not do this, however, it is possible that other actions may still be sufficient to meet the “has sought to acquire” residence requirement, such as seeking legal counsel. 68 In limited situations, USCIS officers may exercise discretion to consider whether someone failed to “seek to acquire” within one year of visa availability if due to extraordinary circumstances. Examples of extraordinary circumstances are serious illness or disability, legal disability, ineffective assistance of counsel if certain requirements are met, or death or serious illness of the immigrant’s attorney or immediate family member during the one-year period. 69 For more information on the CSPA, please see the ILRC’s legal manual, Families and Immigration: A Practical Guide. § 13.9 V Nonimmigrant Visas for Spouses and Children of U.S. Permanent Residents

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Spouses and children of lawful permanent residents often wait many years to immigrate without a right to work or reside in the United States. This creates a great deal of hardship for the families of lawful permanent residents. On December 21, 2000, Congress enacted the Legal Immigration and Family Equity (LIFE) Act. The LIFE Act somewhat ameliorated the family visa backlog problem by creating two new nonimmigrant visa categories: one for the spouses and minor children of legal permanent residents (the “V” visa), and the other for the spouses and minor children of U.S. citizens (the “K” visa). See § 13.5 for information on the “K” visa. Nearly eighteen years later, the V visa is now fairly rare, however it is possible you may encounter one of these cases. Spouses and children (unmarried and under twenty-one) of legal permanent residents whose family petitions were filed on or before December 21, 2000 and who had been waiting in the visa backlog for three years or more were eligible to apply for a V visa, which allowed them to reside and work in the United States until their immigrant visa numbers became available. 70 Unfortunately, the V visa does not apply to permanent residents who file I-130 visa petitions for their families after December 21, 2000. At this writing, priority dates for all countries of chargeability under category 2A for spouses and minor children of legal permanent residents have passed the December 21, 2000 cutoff date. As a result, most “V” visa holders have had immigrant 68

See unpublished BIA decisions In re Kim, A77 828 503 (BIA Dec. 20, 2004); In re Murillo, A99 252 007 (BIA Oct. 6, 2010). 69 See USCIS, Policy Memorandum: Guidance on Evaluating Claims of “Extraordinary Circumstances” for Late Filings When the Applicant Must Have Sought to Acquire Lawful Permanent Residence Within 1 Year of Visa Availability Pursuant to the Child Status Protection Act (Apr. 15, 2015), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/20150415_Extraordinary_Circumstances_PM.pdf. 70 INA § 101(a)(15)(V).

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visa availability for some time. If a “V” visa beneficiary has not yet attained permanent residence, it will be important to investigate whether or not the I-130 petition is still viable, or whether it has been “terminated” by the National Visa Center for lack of contact or action by the visa petition beneficiary. Example: Carmelo filed for his wife Josefina in November 1999. In November 2002, Josefina was allowed to apply for a “V” visa, thereby granting her permission to reside and work in the United States while she waited for her priority date to become current. In order to qualify, the beneficiary has to be eligible for the “V” visa when they reach the threeyear mark, not just as of December 21, 2000. 71 Example: Carmelo filed for his daughter in November 2000. Carmelo’s daughter was 20 years old at the time. In November 2003, she had been waiting for three years for her visa petition to become current; however, by that date she was over 21. Therefore, she was not eligible to receive the “V” visa because at that point she no longer qualified as his “child.”

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Age outs: Originally, USCIS said that children in V visa status would lose eligibility for the V visa once they turned twenty-one. The Ninth Circuit held, however, that a child who initially qualified for a “V” visa remains eligible for “V” status once they turn twenty-one. 72 Although USCIS was only legally required to follow this case in the Ninth Circuit, it made the decision to follow it all over the country. 73 Therefore, thanks to this case, people who turn twenty-one while in V visa status are eligible to remain in that status until they are able to immigrate. They still must be under twenty-one when they apply for the V visa the first time. Therefore, all children granted a V-2 or V-3 visa can continue to receive extensions of status as long as their application is not terminated under 8 CFR § 214.15(j), 74 regardless of their age. Children who previously had a V-2 or V-3 status and whose renewals were denied based on turning twenty-one can file a new application for an extension and it will be granted starting from the date that the previous status expired. For more information on V visas, please see the ILRC’s Families and Immigration manual.

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INA § 101(a)(15)(V); 8 CFR § 214.15(c). Akhtar v. Burzynski, 383 F.3d 1193 (9th Cir. 2004). 73 See USCIS, Policy Memorandum: Adjudication of Form I-539 for V-2 and V-3 extension (Jan. 10, 2005) (“USCIS will apply the decision [Akhtar] nation-wide”), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%20 1998-2008/2005/v2v3extn011005.pdf; USCIS, Policy Memorandum: Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status (Jun. 14, 2006), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%20 1998-2008/2006/cspa6andv061406.pdf. 74 Under 8 CFR § 214.15(j), V visa status is terminated if the petitioner’s I-130 is denied, withdrawn, or revoked, or if the beneficiary’s application for consular processing or adjustment of status is denied or withdrawn, or if a V-1 spouse becomes divorced from the LPR petitioner, or V-2 or V-3 child marries. 72

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CHAPTER 14 CITIZENSHIP FOR CHILDREN AND YOUTH This chapter includes: § 14.1 § 14.2 § 14.3 § 14.4 § 14.5 § 14.6

Introduction to Citizenship ................................................................................. 389 Overview of Acquisition and Derivation of Citizenship .................................... 391 Introduction to Acquisition of Citizenship ......................................................... 392 Derivation of Citizenship ................................................................................... 395 Child Citizenship Act of 2000 ............................................................................ 397 Citizenship Under INA § 322: Children of U.S. Citizens Living Abroad .................................................................................................... 401

§ 14.1 Introduction to Citizenship There are several ways that a child can become a U.S. citizen, including birth, acquisition of citizenship, derivation of citizenship, and citizenship under INA § 322. It is important to note that in some instances a child born in another country abroad could actually be a United States citizen through acquisition or derivation of citizenship. This chapter provides an overview of each of these citizenship paths for children and youth. For more in-depth information, particularly stepby-step procedures, please see the Immigrant Legal Resource Center’s manual entitled Naturalization and U.S. Citizenship: The Essential Legal Guide, available at www.ilrc.org. There are many advantages to becoming a U.S. citizen. Some of these include: the right to vote in U.S. elections, the right to travel with a U.S. passport, the right to help some relatives immigrate to the United States more quickly, the right to obtain certain government jobs, the right not to be excluded or removed (deported) from the United States, and the right to live in another country without losing the right to return legally to the United States. 1 In the case of children, many of these rights do not take effect until the child is older (e.g., a person must be 18 to vote and 21 to help relatives immigrate).

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Birth. The most common way a child becomes a U.S. citizen is by being born in the United States. The Fourteenth Amendment to the U.S. Constitution provides that anyone born in the United States and subject to the jurisdiction of the United States 2 is a U.S. citizen. Generally, people born in Puerto Rico, 3 the Virgin Islands, 4 Guam, 5 or the Northern Mariana Islands 6 are 1

Green card holders (i.e., lawful permanent residents) can lose their permanent residence status and be removed (deported from the United States) if they have “abandoned their residence” due to having moved to live in another country while still a permanent resident of the United States. 2 INA § 301(a). The major exception to the rule that everyone born in the United States is a U.S. citizen applies to children born to foreign diplomats while in the United States. See 8 CFR § 101.3(b); INS Interpretations 301.1(a)(4). Because foreign diplomats are not subject to the jurisdiction of the United States, their children do not acquire citizenship when born here. However, these children may become lawful permanent residents upon birth in the United States. 8 CFR §§ 101.3(a)(1), 101.3(c). 3 INA § 302.

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U.S. citizens at birth as well. Anyone born in the Panama Canal Zone whose father or mother was a U.S. citizen is also a U.S. citizen. 7 Additionally, anyone born in the Republic of Panama is a U.S. citizen if at least one parent was a U.S. citizen working for the Panama Railroad Company or the U.S. government. 8 There are certain exceptions to these rules. Naturalization. People who meet certain criteria can also apply to become a U.S. citizen through a voluntary process called naturalization. Becoming a U.S. citizen through naturalization is not necessarily the right path for everyone who is a lawful permanent resident. For some, naturalization may mean they have to give up citizenship in their own country. This is something some people are not willing to do. For others, the naturalization application may actually start an investigation by USCIS and ICE that could lead to the applicant losing her green card and being deported. Still others may feel reluctant to go through what can be a difficult and, at times, unpleasant process. Both the advocate and the client must thoroughly consider all of the facts in order to make an informed decision about whether or not to apply for naturalization. Such a discussion between the advocate and client cannot take place until the advocate gives a complete and understandable explanation of the legal requirements to the client and together they decide whether or not the client is eligible to naturalize. Children under the age of 18 cannot naturalize, but they may acquire citizenship through acquisition of citizenship, derivation of citizenship, or citizenship under INA § 322, as discussed in the remainder of the chapter. However, below are the basic requirements to naturalize in the case of individuals 18 or over. These requirements are found in the Immigration and Nationality Act (INA) sections 312 through 337, and 8 Code of Federal Regulations (CFR) sections 310 through 331. The seven requirements for naturalization require an applicant to: • • •

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•

•

Be at least 18 years old; Be a lawful permanent resident; Have continuous residence in the United States for the previous five years (or less time in certain circumstances, such as three years if the applicant is applying as the spouse of a U.S. citizen or even less time if applying based on military service); Have been physically present in the United States for at least half of the five year period (except in certain circumstances, such as half of the three-year period if the applicant is applying as the spouse of a U.S. citizen or less time if applying based on military service); Have good moral character for the previous five years (or three years if the applicant is applying as the spouse of a U.S. citizen or even less time if applying based on military service), keeping in mind certain specific “bars” to naturalization;

4

INA § 306. INA § 307. 6 Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. 94-241, § 303; see also 12 USCIS-PM A.2 (clarifying that persons born after November 6, 1986, in the Northern Mariana Islands are U.S. citizens and some persons born beforehand who meet certain criteria may also be U.S. citizens at birth). 7 INA § 303(a). 8 INA § 303(b). 5

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• •

Pass exams on English and U.S. history and government; and Take a loyalty oath and be attached to the U.S. Constitution.

There are some exceptions to these requirements for certain categories of people, including people in the military or employed in certain types of work abroad. In particular, it is important to know that although a person generally cannot naturalize unless the person is 18 years old, there is an exception for people who are under 18 and who have served honorably during designated periods of hostilities. 9 For a full discussion of the naturalization requirements and exceptions, please see the ILRC’s manual entitled Naturalization and U.S. Citizenship: The Essential Legal Guide, available at www.ilrc.org, and USCIS’s updated policy manual at www.uscis.gov. Acquisition and derivation of citizenship. A person becomes a U.S. citizen automatically through the derivation and acquisition processes, as will be discussed throughout the remainder of the chapter. NOTE: Pursuant to INA § 301(f), a child of unknown parentage who is found in the United States while he or she is under 5 years old will be considered a U.S. citizen at birth, unless it is proven, before the child turns 21 years old, that he or she was not born in the United States. 10 § 14.2 Overview of Acquisition and Derivation of Citizenship Acquisition and derivation of citizenship are ways that a child can automatically become a U.S. citizen. Someone who becomes a citizen through either acquisition or derivation of citizenship has all the rights of a U.S. citizen. 11

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Although many people confuse acquisition and derivation because they have some similarities, they are two different ways of obtaining citizenship: acquisition occurs automatically at birth, whereas a child derives citizenship at some point after birth. In either instance, someone could become a U.S. citizen without knowing it. Acquisition and derivation of citizenship are both methods of acquiring citizenship automatically, without applying for anything. Under acquisition and derivation, the child only has to apply for a certificate of citizenship and a passport to prove she already is a citizen, but she is already a citizen even if she does not submit the application. In order to prove such citizenship, all that one needs to do is prove that the requirements for acquisition or derivation were satisfied.

9

INA § 329(b); see also 12 USCIS-PM I(3)(d). INA § 301(f). See, e.g., Castelano, et al., v. Clinton, et al., Civil Case No. CA M-08057 (S.D. Tex. 2009) (reaching a class action settlement whereby children whose births were registered by a midwife or birth attendant in Texas and whose passport applications were improperly processed or denied by the State Department during applicable dates could reapply for a passport). 11 A major exception is that a naturalized citizen can lose her citizenship through denaturalization proceedings if she committed fraud on her naturalization or original visa application. Additionally, those not born as U.S. citizens cannot become President of the United States. The ILRC’s position is that anyone who acquired citizenship at birth could become President, but anyone who obtained it as part of the derivation of citizenship or the § 322 citizenship process would not be able to become President. This theory has not yet been tested in the courts. 10

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NOTE: There are several key factors in acquisition and derivation cases that are necessary to know in order to assess whether your client has a claim to citizenship: whether the child was legitimated, who has custody of the child, and whether the child’s parents were married when she was born. Make sure to find out as much information from your client as you can regarding these questions and refer to the charts at Appendices HH, II, and JJ for more information about these factors and how they are defined. § 14.3 Introduction to Acquisition of Citizenship In some circumstances, a U.S. citizen may transmit citizenship to her child, even though the child is born outside of the United States. This is known as acquisition of U.S. citizenship. 12 Children who qualify are U.S. citizens at birth. Acquisition of citizenship should be explored for all clients, especially those facing deportation. Many legal advocates have clients who are actually U.S. citizens and do not realize it. If a client is a citizen, ICE cannot remove her and she has the right to stay in the United States. Every client must be asked whether her parents and/or grandparents are or were U.S. citizens. Whether the parents or grandparents became U.S. citizens at birth or through naturalization makes no difference for the purposes of determining whether a client acquired citizenship at birth. NOTE: At the time of this manual’s writing, parentage is defined more narrowly for acquisition of citizenship than for many other legal purposes. A person is only considered a child’s “parent” if that person is 1) the genetic parent; 2) or the gestational and legal parent of the child at the time and place of the child’s birth. If the parents used in vitro fertilization or other assisted reproductive technology, the parents may be required to provide documents or medical evidence that they meet one of these criteria. 13 Who can acquire citizenship at birth outside of the United States? Five issues will affect whether a person born outside of the United States is a U.S. citizen. They are:

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1. 2. 3. 4. 5.

whether the person’s parents were married 14 when she was born; the person’s date of birth; whether one or both of the parents was a U.S. citizen when the person was born; how long the citizen parent resided in the United States prior to the person’s birth; and whether the person has satisfied the requirements for residency in the United States.

12

See INA §§ 301, 309. Bureau of Consular Affair, DOS (Feb. 2014), published on AILA InfoNet at Doc. No. 14020643; see also USCIS, Effect of Assisted Reproductive Technology (ART) on Immigration and Acquisition of Citizenship Under the INA, (Oct. 28, 2014) (clarifying that a “natural parent” includes a genetic or gestational parent). 14 The INA differentiates between children born in and out of “wedlock,” but the INA does not define “wedlock.” The State Department has guidance stating: “[t]o say a child was born ‘in wedlock’ means that the child’s biological parents were married to each other at the time of the birth of the child.” 7 FAM 1140 Appendix E. At the time of this manual’s writing, this definition is currently being litigated as having a discriminatory impact on same sex couples, as children of legally married same sex couples would never be considered to be born “in wedlock” under this definition. 13

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PLEASE NOTE: Although children born out of wedlock can acquire citizenship at birth outside of the United States under certain circumstances, adopted and stepchildren can never acquire citizenship at birth outside of the United States. Turn to Appendices HH and II, labeled as Charts A and B. 15 The information on Chart A and Chart B can help you and a client determine whether she acquired U.S. citizenship at birth. Remember, even if the client’s parents were born outside of the United States, check to see if one of the client’s grandparents may have been born in the United States or naturalized. Then you can use the charts to check if one or both of the client’s parents acquired U.S. citizenship at birth through their parents (the client’s grandparents). If one of the client’s parents did acquire U.S. citizenship, then U.S. citizenship may have been transmitted from the client’s parent to the client. Briefly, to use the charts, first determine whether the child’s parents were married when the child was born. 16 If her parents were married when she was born, refer to Chart A and the explanation of how to use it. These are sometimes called “legitimate” children. If her parents were not married when she was born (i.e., the child was born “out of wedlock”), refer to Chart B and the explanation of how to use it. These children are sometimes called “illegitimate.” Example: Magdalena and Juan were both born and raised in Puerto Rico and therefore are U.S. citizens. In 2000, when both were age 20, they married. In 2001, they moved to Mexico where their child Eduardo was born on February 16, 2002. Since Eduardo’s parents were married before he was born, refer to Chart A. Because Eduardo was born in 2002, his claim would be governed by the rules that apply to births on or after November 14, 1986. His claim would be through two U.S. citizen parents. When such a claim is made for this period, the rules require that at least one of the parents must have made his or her principal dwelling place in the United States or its outlying possessions prior to the birth of the child. In this case both parents meet the requirements because both lived in Puerto Rico, an outlying possession of the United States. Under the law for births on or after November 14, 1986, Eduardo does not have to meet any retention requirements. Thus, Eduardo acquires U.S. citizenship at birth.

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Example: Maribel, a native of the Philippines, became a naturalized U.S. citizen in 1995, after living in the United States for ten years. In 1999 she returned to the Philippines where she gave birth to Jaime on May 5, 2012. Jamie’s father was a citizen of the 15

These charts are intended as a general reference guide. ILRC recommends practitioners research the applicable law. 16 In general, a child is considered “illegitimate” at birth for immigration purposes if the child is born out of wedlock. However, whether or not a child is “legitimate” at birth, even for immigrant visa purposes, depends on the law of the place where the child was born. Some countries have eliminated any distinction between children born in and out of wedlock as of certain dates; all children born in these countries are considered “legitimate.” See Lau v. Kiley, 563 F.2d 543 (2d. Cir. 1977); see also Matter of Wong, 16 I&N Dec. 646 (BIA 1978) (eliminating all legal distinctions between legitimate and illegitimate children). For a list of countries that have abolished the distinction between legitimate and illegitimate, see Daniel Levy, U.S. Citizenship and Naturalization Handbook (published by West Group). Practitioners should argue the reasoning in the Lau case should apply in acquisition cases, even though the definition of a child under Title III of the INA differs from the definition of a child under Title II the INA.

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Philippines. Jaime’s parents were not married when he was born, and he never met his father. His father never engaged in any of the activities that the Philippines government required for “legitimation.” Did Jaime acquire citizenship at birth? Since Jaime’s parents were not married when he was born, and he has not been “legitimated,” refer to Part 1 of Chart B. Because Jaime was born in 2012, his claim is governed by the rules that apply for births on or after December 24, 1952, and prior to June 12, 2017. His claim is through his U.S. citizen mother. When such a claim is made for this period, the rules require that the mother must have been physically present in the United States or its outlying possessions for one year prior to the child’s birth. Maribel, Jaime’s mother, meets this requirement since she lived in the United States from around 1985 to 1999. Therefore, Jaime acquired U.S. citizenship at birth. Example: Assuming all of the other facts stayed the same, if Jaime in the example above was born instead to a U.S. citizen father and a mother who was a citizen of the Philippines, did he acquire citizenship at birth? Because Jaime was born out of wedlock and was not acknowledged or legitimated by his father, he did not derive citizenship through his U.S. citizen father. Example: Alfredo was born in New York on March 17, 1925. His parents were natives and citizens of Mexico. In 1928, the whole family moved to Mexico where Alfredo has lived ever since. In Mexico, Alfredo fathered a child, Mauricio, who was born on June 21, 1948. Mauricio’s mother, Nicolasa, is a native and citizen of Mexico. Alfredo and Nicolasa have never been married, but Alfredo legitimated Mauricio under Mexican law in 1949. Mauricio wants to know if he acquired U.S. citizenship at birth.

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Since Mauricio’s parents were not married when he was born, refer to Chart B. He cannot acquire U.S. citizenship through his mother because she is not a U.S. citizen. Because he was legitimated by a U.S. citizen father you refer to Part 2 of Chart B. Mauricio was born in 1948 and thus his claim is governed by the rules that apply for births between January 13, 1941 and December 24, 1952. For this time period, the law requires that the child must have been legitimated under the law of the place the father lived before the child reaches 21. Since Mauricio was legitimated under Mexican law when he was one year old, this requirement had been met. The next step is to refer to Chart A and apply the pertinent law. On Chart A, Mauricio’s claim is governed by the rules for births between January 13, 1941 and December 24, 1952. Mauricio’s claim is based on having one citizen parent and one alien parent. When such a claim is made, the rules require that the citizen parent must have resided in the United States or its outlying possessions for ten years prior to the birth of the child. Alfredo did not meet this requirement since he lived in the United States only from 1925 to 1928. Therefore, Mauricio did not acquire U.S. citizenship at birth. However, because Mauricio’s father is a U.S. citizen and assuming his father is still alive, his father can file a visa petition on Mauricio’s behalf. Mauricio could then immigrate to the United States as a lawful permanent resident. As shown in the examples of Eduardo, Mauricio, and Jaime above, the charts have different rules for acquisition depending on whether the child was born in wedlock, out of wedlock to a U.S.

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citizen mother, or out of wedlock to a U.S. citizen father. In 2017, the Supreme Court held that requiring different periods of continuous residence or physical presence based only on whether the claim was through an unwed U.S. citizen father compared with an unwed U.S. citizen mother violated the Equal Protection Clause of the U.S. Constitution. 17 Thus, for children born on or after June 12, 2017, the physical presence requirements for claims through an unwed U.S. citizen mother are lengthened to match the physical requirements for claims through an unwed U.S. citizen father. See Chart B at Appendix HH. PRACTICE TIP: Advocates should remember to ask immigrant youth whether they have parents or grandparents who are U.S. citizens. For more information on acquisition of citizenship, using the charts, and the documentation requirements, please see the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide. § 14.4 Derivation of Citizenship A child can become a citizen automatically if, under certain circumstances, one or both of her parents naturalizes or, under different circumstances, at least one of her parents is a U.S. citizen through naturalization or by birth. This process is called derivation of citizenship. 18 Derivation of citizenship is different from acquisition of citizenship and from applying for naturalization. Every client must be asked whether her parents are or were U.S. citizens. Clients who derive citizenship through the citizenship of their parents have the same rights as any U.S. citizen except he or she cannot become the President of the United States. Who can derive citizenship. As with the laws on acquisition of citizenship, the laws governing derivation of citizenship have changed several times. Therefore you and your clients may sometimes need to refer to the old laws. The law in effect at the time that the last requirement for derivation was met in your client’s case is the law that applies to your client. Generally, for a child to derive citizenship the child has to:

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17

Sessions v. Morales-Santana, 137 S.Ct.1678 (2017). See INA § 320, as amended by the Child Citizenship Act of 2000. The Child Citizenship Act of 2000 greatly simplified derivative citizenship for most children, and especially for adopted children. Note that various circuits have held that applicants may not derive citizenship by virtue of their parents’ birth in a U.S. territory, such as the Philippines when it was a U.S. territory. The Second, Third, Fifth, and Ninth Circuits have found that the “‘United States’ as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include ‘United States territories simply because the territories [were] ‘subject to the jurisdiction’ or ‘within the dominion’ of the United States.’” Nolos v. Holder, 611 F.3d 279, 282 (5th Cir. 2010) (internal citations omitted); see also Valmonte v. INS, 136 F.3d 914 (2d Cir. 1998); Lacap v. INS, 138 F.3d 518 (3d Cir. 1998); Rabang v. INS, 35 F.3d 1449, 1453 (9th Cir. 1994). 18

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• • • • •

Be a lawful permanent resident; 19 Have one, or in some circumstances, both parents who are U.S. citizens; Live in the physical and legal custody of the U.S. citizen parent(s); Be under 18 years old (many years ago the law was 21); and Be unmarried.

It is important to note that once a child fulfills all of these requirements, she becomes a U.S. citizen automatically regardless of what happens later. If all of the conditions have been met, the child derived citizenship regardless of the order in which the conditions occurred. 20 Although under certain circumstances adopted children and children born out of wedlock can derive citizenship, stepchildren born outside the United States can never derive citizenship. 21 Appendix

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A minority of circuit courts have given credence to a strict reading of INA § 321(a)(5) that would allow a child to derive citizenship if both parents naturalized while the child was still under 18 years old and was unmarried even if the child was not a lawful permanent resident. This interpretation stems from the statute’s requirement that a child “reside permanently” in the United States. INA § 321(a)(5). The Second Circuit found that “reside permanently” could include “something lesser,” such as application for lawful permanent resident status. Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013). The Second Circuit’s reasoning could allow many more people to derive citizenship by relaxing the residence requirement. The Fifth Circuit, while not deciding the issue, found ineffective assistance of counsel when the lawyer did not explore whether the non-LPR client had derived citizenship through “residing permanently.” United States v. Juarez, 672 F.3d 381 (5th Cir. 2012). The First Circuit also acknowledged the possibility of this interpretation, while not deciding the issue. Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016) (finding that the non-LPR client before the court had not shown that he had begun to “reside permanently” even if it were interpreted to include something other than lawful permanent residence); However, the Ninth Circuit, the Eleventh Circuit, and the BIA have all held that “residing permanently” still requires the child to become a lawful permanent resident before she turned 18 in order to obtain derivative citizenship. 20 See Dep’t of State, Passport Bulletin 96-18, New Interpretation of Claims to Citizenship under § 321(a) of the INA (Nov. 6, 1996) (stating that any person claiming to be a U.S. citizen through his or her parent(s)’ naturalization, and who can show that after December 24, 1952 and before the child’s 18th birthday all of the conditions necessary to derive citizenship were met, is a U.S. citizen). The BIA cited this Passport Bulletin in In Re Fuentes-Martinez, 21 I&N Dec. 893 (BIA 1997); see also Matter of Baires-Larios, 24 I&N Dec 467 (BIA 2008). But, in Jordon v. Ashcroft, 424 F.3d 320 (3d Cir. 2005), the Third Circuit disagreed, finding that where the separation occurred after the parent naturalized, the child did not derive citizenship. The BIA criticized the Third Circuit in In re Baires-Larios, arguing that it did not matter whether the naturalized parent obtained legal custody of the child before or after naturalization, so long as the statutory requirements were satisfied before the child turned 18 years old. See also Matter of Douglas, 26 I&N Dec. 197 (BIA 2013) (reaffirming Baires-Larios); Adjudicators’ Field Manual (“Since the order in which the requirements [of former § 321(a)] were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.”). Jordon remains in effect only in the Third Circuit. Although the order of the events does not matter outside of the Third Circuit, there still has to be a point in time before the child turns 18 when all of the requirements are satisfied. See Joseph v. Holder, 720 F.3d 228 (5th Cir. 2013) (finding that when a mother withdrew divorce decree and sole custody order before her naturalization, the child did not derive citizenship because at no point was the mother a citizen with sole custody of the child). 21 INA § 101(c).

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JJ contains Chart C which can help you and your clients determine whether or not they are U.S. citizens through derivation. 22 Please refer to Chart C for the following discussion. Example: Gwen was born in Israel in 1990. When Gwen was born, her mother was a citizen of Israel and her father a citizen by birth of the United States. Her father had lived in the United States for only two years before Gwen’s birth. In 1995, the entire family moved to the United States. Gwen entered as a lawful permanent resident and lived with her mother and father. Her mother has not naturalized. Gwen got married when she was 25 years old. Gwen became a lawful permanent resident when she was five. Gwen’s father became a U.S. citizen at his birth. Because the last qualifying act for Gwen’s derivation of status happened in 1995 when she was admitted as a lawful permanent resident, (or because she was born after February 28, 1983), Gwen is subject to the rules in effect in the last box in Chart C. The law at this time requires that one of her parents was or became a citizen when she was under 18, that she was unmarried, that she became a lawful permanent resident before she turned 18, and that she was living in the physical and legal custody of her U.S. citizen parent when she moved to the United States. 23 Gwen fulfills all of these requirements. Thus, she derived citizenship automatically when she was admitted as a lawful permanent resident and living with her father in the United States. It is insignificant that she got married after she turned 18. For more information on derivation of citizenship, including detailed information on how to use the chart, and documentation requirements, please see the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide. § 14.5 Child Citizenship Act of 2000 The “Child Citizenship Act of 2000” significantly changed the rules for citizenship for certain children born outside the United States. Under the new rules, anyone who on or after February 27, 2001 24 was or is under 18, unmarried, a lawful permanent resident, and who was or is in the legal and physical custody of at least one U.S citizen parent, is automatically a U.S. citizen.

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Example: Chan was born on July 13, 1987 in Korea. Chan, his mother, and his father all became lawful permanent residents of the United States in 1990. His mother naturalized in 1998. Chan’s father has not yet naturalized. Chan lived with both of his parents in the United States. Under the Child Citizenship Act of 2000, Chan became a U.S. citizen automatically on February 27, 2001, because at that time he was under 18, unmarried, a 22

This chart is intended as a general reference guide. ILRC recommends practitioners research the applicable law. 23 Note that Gwen did not acquire U.S. citizenship at birth because her U.S. citizen father had only lived in the United States for two, instead of the required ten, years before Gwen’s birth. 24 Courts have found that the Child Citizenship Act does not apply retroactively. See, e.g., Mondaca-Vega v. Holder, 718 F.3d 1075 (9th Cir. 2013); Guzman v. U.S. Dep’t Homeland Sec., 679 F.3d 425 (6th Cir. 2012); Ali v. Ashcroft, 395 F.3d 722, 725-26 (7th Cir. 2005); Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001). The constitutionality of the different treatment of cases before and after the Act has also been upheld. See, e.g., Wedderburn v. INA, 215 F.3d 795 (7th Cir. 2000).

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lawful permanent resident, and was living in the legal and physical custody of his U.S. citizen mother. It is no longer required that both parents are U.S. citizens for derivation if both parents have custody. Definition of legal custody under the Child Citizenship Act of 2000 for children who are legitimate. One of the requirements for § 320 citizenship is that the U.S. citizen parent has legal and physical custody of the child. 25 The regulations set forth several different scenarios in which USCIS presumes, absent evidence to the contrary, that the parent has the necessary legal custody to apply for § 320 citizenship for his or her child. 26 First, USCIS will presume, absent evidence to the contrary, that both parents have legal and physical custody for purposes of § 320 citizenship where their biological child currently resides with them and the parents are married, living in marital union, and not separated. 27 Example: Jose’s mother and father are U.S. citizens. He lives with both of his parents and they are married. Both of Jose’s parents have legal custody of Jose for § 320 purposes. Second, USCIS will presume, absent evidence to the contrary, that a parent has legal custody for purposes of § 320 citizenship where his or her biological child lives with him or her and the child’s other parent is deceased. 28 Example: Chan’s father died. Chan lives with his U.S. citizen mother. Chan’s mother has legal custody of Chan for § 320 purposes. Third, USCIS will presume, absent evidence to the contrary, that a parent has legal custody for purposes of § 320 citizenship if the child was born out of wedlock, the parent lives with the child, and the parent has legitimated the child while the child was under 16 according to the laws of the legitimating parent’s or child’s domicile. 29 Example: When Mosha was born, his mother and father were not married. Mosha lives with his U.S. citizen father who legitimated Mosha. Mosha’s father has legal custody, and thus Mosha derived U.S. citizenship under § 320.

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Fourth, where the child’s parents are legally separated or divorced and a court or other appropriate governmental entity has legally awarded the parents joint custody of the child, USCIS will presume, absent evidence to the contrary, that such joint custody means that both parents have legal custody of the child for purposes of § 320 citizenship. 30

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INA § 320. See 8 CFR § 320.1. 27 8 CFR § 320.1(1)(i). 28 8 CFR § 320.1(1)(ii). 29 INA § 101(c); 8 CFR § 320.1(1)(iii). Please note that neither INA § 320 nor 8 CFR § 320.1 require that the legitimation occur before the 16th birthday. Thus, some argue that such a legitimation could take place even between the 16th and 18th birthdays. However, this argument is undercut by the definition of “child” in INA § 101(c), which requires legitimation before the 16th birthday and applies to the citizenship and naturalization contexts. 30 8 CFR § 320.1(2). 26

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Example: Maria’s mother and father got divorced four years ago, and her parents were awarded joint custody of Maria. Both of Maria’s parents naturalized before Maria’s 18th birthday. Maria derived citizenship under both parents and Maria can apply for § 320 citizenship on through either of her parents because both her mother and father have legal custody for § 320 purposes. The Child Citizenship Act of 2000 requires not just legal custody, but also physical custody. Some states define shared legal custody as constituting shared physical custody. Other states might require that Maria be living with the parent that applies for her. Fifth, in a case where the parents of the child have divorced or legally separated, USCIS will find that for the purposes of citizenship under INA § 320 a parent has legal custody of the child where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court or other appropriate government agency pursuant to the laws of the state or county of residence. 31 Example: Sara is a lawful permanent resident. Her naturalized U.S. citizen mother and naturalized U.S. citizen father divorced two years ago. Her mother obtained legal and physical custody of Sara. Sara derived citizenship through her mother but not her father because her mother has legal and physical custody of Sara. Example: Joe is a lawful permanent resident. His mother and father got divorced two years ago and his lawful permanent resident father obtained legal and physical custody of Joe, while his U.S. citizen mother merely obtained visiting rights and no legal custody of Joe. Neither parent can apply for § 320 citizenship for Joe because his father is not a U.S. citizen and his mother does not have legal custody. Additionally, one should make the argument that in the case of a legal separation but in the absence of a judicial or statutory grant of custody, the parent having actual uncontested custody should be regarded as having legal custody. 32

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Finally, the regulations state there may be other factual circumstances under which USCIS will find that a U.S. citizen parent has legal custody for purposes of § 320 citizenship. 33 Advocates and their clients should be creative in thinking of other ways to prove that USCIS should determine that a U.S. citizen parent has legal custody if the parent-child relationship does not fit into one of the categories listed above. Example: Taki was born in South Africa in 1988. His parents were both South African citizens and were married when he was born. In 1990, Taki and his parents moved to the United States as lawful permanent residents. Taki and his mom lived with her relatives in Los Angeles, and Taki’s dad lived in Seattle to work. In 2004, Taki’s father became a naturalized U.S. citizen. Taki is subject to the rules in effect during the period covering births after February 28, 1983, on the chart. The last qualifying act for Taki’s derivation 31

8 CFR § 320.1(2); see also 7 FAM 1156.8. Although legal custody may be obtained by judicial or statutory award, courts have upheld informal agreements between parents where state law recognizes those agreements. See Pina v. Mukasey, 542 F.3d 5 (1st Cir. 2008) (derivation found where U.S. citizen father legitimated child, child lived with mother, but there was an informal agreement to share custody). 33 8 CFR § 320.1(2). 32

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of status happened in 2004 when his father naturalized. At this time he was under 18, unmarried, and a lawful permanent resident. However, Taki’s situation does not fit within one of the scenarios described above where legal custody is presumed. Although his parents are married and not separated, they are not living together. As an advocate, you should ask Taki more questions about his and his father’s relationship and living situation to see if you can make an argument that his father still had legal custody. The scenarios above describe legal custody. Citizenship under § 320, however, requires that the U.S. citizen parent have legal and physical custody of the child. 34 When working with your clients, remember to ask questions about where the child was living to ensure that your clients can meet the physical custody requirement as well. Example: Even if Taki, in the example above, can show that his father had legal custody of him despite the fact they were not living together, he will still have to show that he lived in his father’s physical custody to derive citizenship. As an advocate, you should ask Taki more questions about his father’s living situation: Did he ever stay with his father after the last qualifying act? Was his father’s permanent address with them in Los Angeles? Did his father go home to Los Angeles every weekend? Did his father support Taki and his mother? If Taki never lived with his father in the United States, it will be difficult to show he lived in his father’s physical custody, and thus derived citizenship. Definition of legal custody under the Child Citizenship Act of 2000 for children who were born out of wedlock (“illegitimate children”). The Child Citizenship Act of 2000 could pose a problem for children born out of wedlock. As stated earlier, the parent of a child can only apply for § 320 citizenship for that child if the parent has legal custody. 35 The regulations state that a parent can have legal custody of a child born out of wedlock only if the child has been legitimated before the child’s 16th birthday under the laws of the parent or child’s domicile. 36

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Example: Bill’s mother and father never got married. In 2002 Bill’s father became a U.S. citizen when Bill was five years old and Bill was a permanent resident. Bill’s father legitimated Bill last year, when Bill was eleven years old. They started living together. Bill derived citizenship through his father. If Bill’s father had not legitimated Bill, Bill would not have been able to derive citizenship through his father. PRACTICE TIP: Some countries do not differentiate between “legitimate” and “illegitimate” children. Thus, for § 320 citizenship purposes, children born out of wedlock in these countries will be considered “legitimate.” 37

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INA § 320. INA § 320. Pina v. Mukasey, 542 F.3d 5 (1st Cir. 2008) (legal custody found where U.S. citizen father legitimated child, child lived with mother, but there was an informal agreement to share custody.) 36 8 CFR § 320.1(1)(iii); INA § 101(c). 37 In 2015, the BIA found that a person born abroad to unmarried parents in a jurisdiction that has eliminated all legal distinctions between children based on the marital status of their parents or who has a residence or domicile in that jurisdiction is considered a legitimate “child” under INA § 101(c)(1). Matter of Cross, 26 I&N Dec. 485 (BIA 2015); see also Matter of Hernandez, 19 I&N Dec. 14, 16 (BIA 1983) (reviewing Colombian law). 35

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The legitimation requirement can be large hurdle for a number of reasons. First, the legitimation must take place before the child turns 16. 38 Once she turns 16, it is too late for the legitimation to count for § 320 citizenship purposes. Second, the laws of legitimation can be complicated. Many people do not think about, or know about, the legitimation process. In the past there was a third hurdle, which was that many states have no legal process for mothers to legitimate a child born out of wedlock. In 2003, however, USCIS clarified that the Child Citizenship Act of 2000 allows a child born out of wedlock to derive citizenship through her U.S. citizen mother whether or not the child has been legitimated. 39 Example: Frieda’s mother and father never married. Frieda’s mother is a U.S. citizen. Frieda lives with her U.S. citizen mother. Frieda derived citizenship through her mother even though she was never legitimated by her father or mother. For information on how legal custody for purposes of derivative citizenship was determined before the Child Citizenship Act of 2000, please see the ILRC’s manual entitled Naturalization and U.S. Citizenship: The Essential Guide. § 14.6 Citizenship Under INA § 322: Children of U.S. Citizens Living Abroad Although the process of obtaining citizenship for children through INA § 322 is possible, it rarely presents itself for many immigrant youth in the United States, particularly those who are separated from their parents through dependency, delinquency, guardianship, or other legal proceedings. Nevertheless, it is important to become familiar with the INA § 322 process. The Immigration and Nationality Act of 1994 created a special provision allowing some minor unmarried children of U.S. citizens to obtain a certificate of citizenship. 40 The Child Citizenship Act of 2000 made further changes to this process. Under this process, citizens can apply for a certificate of citizenship for their 1) minor children, 2) who are living outside the United States, 3) who are temporarily present in the United States pursuant to a lawful admission, and 4) who are still in that lawful status. 41

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Note that neither INA § 320 nor 8 CFR § 320.1 state that legitimation must occur before the 16th birthday. Thus, some argue that such a legitimation could take place even between the 16th and 18th birthdays. This argument appears to be undercut by the definition of “child” in INA § 101(c), which applies to the citizenship and naturalization contexts. 39 USCIS, Eligibility of Children Born out of Wedlock for Derivative Citizenship (Sept. 26, 2003). The memo mentions only that naturalized mothers can confer citizenship upon their not yet legitimated children born of wedlock under INA § 320. ILRC assumes that mothers who are U.S. citizens by other means also can confer citizenship under INA § 320 to such children. 40 The definition of a child for § 322 purposes includes adopted children if they were adopted before they reached the age of 16, and the child either (a) has been in the legal custody of, and living with, the parents for at least two years (a natural sibling of a child who meets this criteria where the sibling was adopted before age 18 can also qualify), or (b) qualifies as an orphan under INA § 101(b)(1)(F). Stepchildren do not qualify under § 322. See INA § 322(a)(4); INA § 101(c); INA § 101(b)(1)(E)(F). In certain circumstances children born out of wedlock can qualify as well. 8 CFR § 320.1(1)(iii); INA § 101(c). 41 INA § 322 as changed by the Child Citizenship Act of 2000.

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Unlike acquisition and derivation of citizenship, where the applicant has no time limit to claim citizenship, an applicant for § 322 citizenship must become eligible and complete the entire process before she turns 18 years old and before her lawful status in the United States expires. This means that she must complete the application and interview process before she turns 18 years old. She must also be admitted to citizenship before her 18th birthday 42 and before her visa expires. Local USCIS offices have been instructed that immediate priority should be given to § 322 applications for children approaching their 18th birthdays. 43 Basic requirements for citizenship for children. There are five basic requirements to qualify for citizenship under INA § 322. A child, whether adopted or not, must fulfill all five of the requirements to obtain § 322 citizenship. In order for a child to become a U.S. citizen under § 322, a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding five years, a citizen grandparent or citizen legal guardian) may apply for § 322 citizenship on behalf of the child so as long as the following requirements are met: 1. At least one parent of the child is, or, at the time of his or her death, was a U.S. citizen, either by birth or by naturalization; 44 2. The U.S. citizen parent of the child has resided (or at the time of their death, had resided) in the United States or its outlying possessions for a total of five years or more, at least two of which were after the parent turned 14 years old. 45 Note that children of U.S. Armed Forces members who are authorized to accompany their military parent abroad will have all periods of residency and physical presence abroad while accompanying their military parent treated as periods of residency and physical presence in the United States. 46 Such children may also take the oath of citizenship and become naturalized abroad. 47 or A U.S. citizen parent of the child’s U.S. citizen parent 48 (that is, the child’s grandparent) must have lived in the United States for five years, at least two of which were after the grandparent turned 14 years old. 49 42

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See Gulotti v. Holder, 2012 WL 2549822 (2d Cir. 2012) (denying an application for § 322 citizenship because the applicant had turned 18 years old by the time USCIS had adjudicated her application). Note that in at least one federal district court case, the court held that a child derived citizenship automatically even though his mother naturalized after his 18th birthday because, due to factors beyond his mother’s control, the mother’s citizenship interview had been rescheduled to a date past the child’s 18th birthday. Rivas v. Ashcroft, 2002 U.S. Dist. Lexis 16254 (S.D.N.Y. Aug. 29, 2002); see also Harriott v. Ashcroft, 277 F.Supp.2d 538 (E.D. Pa. 2003) (issuing writ of mandamus to grant derivation nunc pro tunc when INS took 14 times the average amount of time to process the application). Although these are not citizenship cases under § 322, they could be helpful in making arguments around issues of government delay. 43 See INS, Expedited Naturalization Procedures for Certain Children Pursuant to Revised Section 322 of INA (July 7, 1995). 44 INA § 322(a)(1). 45 INA § 322(a)(2)(A). 46 INA §§ 319, 322(d)(1). 47 INA § 322(d)(2). 48 For applications based on a U.S. citizen grandparent’s physical presence in the United States, the grandparent may be living or deceased when the application is filed. See 12 USCIS-PM H.5.

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3. At the time of being admitted into citizenship, the child is under 18 years old50 and unmarried; 51 4. The child is residing outside of the United States 52 in the legal and physical custody of the applicant (or, if the citizen parent is dead, an individual who does not object to the application); 53 and 5. The child is temporarily present in the United States pursuant to a lawful admission (such as a visitor’s visa or student visa, but not parole status) and the child is maintaining such legal status. 54 Thus, although children can be abroad when the application is submitted, they must be in the United States to attend the USCIS citizenship interview. The parent(s), grandparent(s), or citizen legal guardian must complete Form N-600K, “Application for a Certificate of Citizenship and Issuance of Certificate Under Section 322,” on behalf of the child. The § 322 process has fewer requirements for the child than the adult applicant has under the general naturalization procedures. Under § 322, children do not have to: • •

speak, read, or write English; 55 have a knowledge and understanding of U.S. history and government; 56

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INA § 322(a)(2)(B); see, e.g., Matter of [name withheld], File No. [withheld], (AAO Oct. 8, 2008) reported in 86 Interpreter Releases 759 (Mar. 16, 2009) (explaining that the applicant met her burden in showing that her paternal grandfather had acquired the requisite physical presence in the United States). 50 USCIS has taken the position that a child must not have been 18 years of age before February 27, 2001 to be eligible. See USCIS, Effect of Enactment of the Child Citizenship Act of 2000 on the affidavit of support requirement under INA 212(a)(4) and 213A, (May 17, 2001). 51 INA § 101(b)(1). 52 The maintenance of financial interests outside the United States, the retention of a house outside the United States, and/or the intention to return to a residence outside the United States do not automatically establish that a child is in fact residing outside the United States if in fact the child is living in the United States. Matter of [name withheld], File No. [withheld], 2005 WL 2374243, Chicago, Illinois (Indianapolis, Indiana) (AAO Jan. 12, 2005); see also Matter of [name withheld], File No. [withheld], 2008 WL 4052473 (AAO June 5, 2008) (explaining that the applicant had been residing in the United States with her family since 2006, and so she was ineligible for § 322 citizenship). Merely listing a residential address outside the United States when applicants have been residing in the United States is insufficient to meet the burden of proof. The statute, at 8 USC § 1101(a)(33), states: “The term “residence” means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Matter of [name withheld], File No. [ withheld], 2005 WL 2374241, Phoenix, Arizona (AAO Jan. 10, 2005); Matter of [name withheld], File No. [withheld], 2005 WL 2374242, Phoenix, Arizona (AAO Jan. 10, 2005), available at 83 Interpreter Releases 170 (Jan. 23, 2006). 53 INA § 322(a)(4). 54 INA § 322(a)(5); see Gulotti v. Holder, 2012 WL 2549822 (2d Cir. 2012) (discussing whether the child must be lawfully present only at the time of the citizenship interview, or if the child must be lawfully present from the time the application is filed until it is adjudicated). In the case of a child of a member of the U.S. Armed Forces who is authorized to accompany such member and reside with him or her pursuant to the member’s official orders, INA § 322(a)(5) does not apply and the child does not need to be temporarily present in the United States, but can take the oath of allegiance abroad. 55 INA § 322 (containing no specific requirement for applicants to speak, read, or write English). 56 Id. (containing no specific requirement for applicants to have a knowledge and understanding of U.S. history and government).

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meet any residence or physical presence requirements; 57 show that they have “good moral character;” 58 take the oath of allegiance (if USCIS decides to waive it because the child is unable to understand the oath). 59 Example: Olga was born in Russia in 2005. Her father, Dimitri, had immigrated to the United States in 2007 and became a U.S. citizen in 2014. In 2015, Dimitri moved back to Russia to live with Olga. Dimitri wants Olga to become a U.S. citizen. If Olga were to come to the United States on a visitor’s visa she would qualify for § 322 citizenship because Dimitri had lived in the United States for more than five years, at least two of which were after the age of 14 and Olga would have made a lawful admission to the United States and would be living outside the United States while in the legal and physical custody of Dimitri, her U.S. citizen parent. Olga would have to remain in legal status in the United States until the adjudication of her § 322 application.

PRACTICE TIP: USCIS can take many months, even as long as one year, to adjudicate a § 322 application. In practice, this means that often a person who enters the United States on a visitor’s visa will not be able to complete the § 322 process before her permission to stay in the United States, and thus her legal status, expires, unless she can obtain an extension of her visa. Example: Jose was born in Mexico in 1960. Both of Jose’s parents were U.S. citizens and grew up in Texas. They left Texas together in 1958 after graduating from high school in the United States at the age of 18 and never returned to the United States. Jose acquired U.S. citizenship at birth but has never lived in the United States. Now, he lives with his 14-year-old daughter, Raquel, in Mexico. Raquel came to the United States on a visitor’s visa and remains in that status. Although she is visiting the United States, she is only staying temporarily. Her permanent home is still in Mexico with her father.

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Raquel qualifies for § 322 citizenship because she was admitted to the United States in lawful status and has remained in that legal status. Raquel lives with her U.S. citizen parent in Mexico, and, although Jose, her father, does not have five years of residence in the United States, Jose’s parents, i.e., her grandparents, are U.S. citizens that lived in the United States for more than five years, 2 of which were after they were 14 years old. If a child is adopted, the requirements of INA § 322 are the same so long as the child was adopted prior to reaching the age of 16 (or is the biological sibling of an adopted child and was adopted prior to age 18), and the child either (a) has been in the legal custody of, and resided with, the adoptive parent for at least two years, or (b) qualifies as an orphan under INA § 101(b)(1)(F).

57 See INA § 322(a)(4) (requiring that the applicant must be in the United States for her USCIS interview, but otherwise must be living abroad with the U.S. citizen applicant or, if the U.S. citizen parent is dead, an individual who does not object to the application). 58 See INS, Field Cable from Jane Barker (July 3, 1997), available at 74 Interpreter Releases 1220 (Aug. 11, 1997). 59 INA § 337(a)(5)(C).

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Even if the citizen parent and citizen grandparent have died, a child will remain eligible for § 322 citizenship assuming she meets the other requirements for § 322 and so long as the citizen parent, or the citizen parent’s own citizen parent, met the physical presence requirement in § 322(a)(2)(B) at the time of her death. 60 For more information on INA § 322 “citizenship,” including issues of legitimation and documentation requirements, please see the ILRC’s manual entitled Naturalization and U.S. Citizenship: The Essential Legal Guide.

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12 USCIS-PM H.5; USCIS, Effect of Grandparent’s Death on Naturalization under INA § 322 (Apr. 17, 2003), available at https://www.uscis.gov/sites/default/files/files/pressrelease/PolMemo94Pub.pdf.

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CHAPTER 15 HUMAN TRAFFICKING AND T VISAS By Cindy C. Liou This chapter includes: § 15.1 § 15.2

§ 15.3 § 15.4 § 15.5 § 15.6 § 15.7 § 15.8 § 15.9 § 15.10 § 15.11 § 15.12 § 15.13 § 15.14 § 15.15 § 15.16

Overview of Human Trafficking ........................................................................ 407 Benefits from Department of Health and Human Services from Receiving Continued Presence (CP), T Visa, or as an Unaccompanied Minor ....................................................................................... 410 T Visa Eligibility ................................................................................................ 415 Element One: Victim of a Severe Form of Human Trafficking ......................... 416 Element Two: Physical Presence on Account of Trafficking ............................ 424 Element Three: Compliance with Any Reasonable Request for Assistance Made by Law Enforcement .............................................................. 427 Element Four: Extreme Hardship upon Removal .............................................. 432 Applying for Waivers for Inadmissibility .......................................................... 435 Trauma from Trafficking.................................................................................... 439 Filing the T Visa ................................................................................................. 440 Approval of T Visa ............................................................................................. 440 Responding to Requests for Evidence and Notices of Intent to Deny................ 441 Removal Proceedings and Final Orders of Removal ......................................... 444 Derivative Applications...................................................................................... 445 Adjustment of Status .......................................................................................... 448 Filing a T Visa, U Visa, SIJS, or Asylum?......................................................... 449

§ 15.1 Overview of Human Trafficking This chapter provides an overview of human trafficking, particularly as it relates to remedies for trafficked children and youth. This chapter includes information on benefits for trafficking survivors, 1 continued presence, and the T visa. For more in-depth information, particularly stepby-step procedures, please see the Immigrant Legal Resource Center’s manual entitled Representing Survivors of Human Trafficking, 2nd Edition (ILRC, 2013).

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This chapter refers to “survivors” rather than “victims” in line with some service providers’ preferred terminology. The term “victim” has legal implications within the criminal justice process and refers to an individual who suffered harm as a result of criminal conduct. The laws that give individuals particular rights and legal standing within the criminal justice system use the term “victim.” “Survivor” is a term used widely in service providing organizations to recognize the strength and courage it takes to overcome victimization.

A.

Human trafficking and international law

The protection in U.S. immigration law for survivors of trafficking stems from a long history of attempts to prevent slave labor and protect its survivors. One of the first rights to be recognized under public international law is freedom from chattel slavery. In 1926, the League of Nations Slavery Convention 2 articulated the international legal definition of slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” 3 The 1926 Convention was extended in 1956 to “slave-like” institutions and practices. 4 While legally all of these “slave-like” practices like debt bondage, peonage, involuntary servitude, serfdom, servile forms of marriage, and exploitation of children have their own definitions, they are conceptually related and can be referred to as “unfree labor,” where “private actors compel individuals to work for the benefit of another without the workers’ fully informed consent.” 5 Human trafficking describes these situations of unfree labor and “slave-like” practices, and includes the facilitation of unfree labor through psychological means alone. 6 In December 2000, the United Nations General Assembly approved the Protocol to Prevent, Suppress, and Punish Trafficking in Persons. 7 B.

The trafficking victims protection act of 2000 (TVPA)

Congress passed the Trafficking Victims Protection Act (TVPA) (first signed into law on October 11, 2000), 8 and explicitly proclaimed in its Purpose and Findings that crimes of involuntary servitude can be perpetrated through psychological abuse and nonviolent forms of coercion alone. 9 The TVPA also enhanced three aspects of federal government activity to combat trafficking in persons known as the 3 P’s: protection, prosecution, and prevention. 10 Secretary of State Hillary Rodham Clinton later identified a fourth P, “partnership,” in 2009 to serve as a

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Convention to Suppress the Slave Trade and Slavery, Sept. 25, 1926, 60 LNTS 253 (entered into force Mar. 9, 1927) [hereinafter Slavery Convention]. 3 Id. at art. 1. 4 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, art. 1, opened for signature Apr. 1, 1957, 226 UNTS 3 (entered into force Apr. 30, 1957). 5 Kathleen Kim, Psychological Coercion in the context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. of Toledo L. Rev. 3, 945 (2007). 6 Id. 7 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the U.N. Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 UNTS 319. 8 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended at 22 USC §§ 7101-7110 (2000)) [hereinafter TVPA], amended and reauthorized by the Trafficking Victims Protection Reauthorization Act of 2003, 2005, 2008, and 2013 [hereinafter TVPRA], Pub. L. No. 108-193, 117 Stat. 2875 (2003); Pub. L. No. 109-164, 119 Stat. 3558 (2005); Pub. L. No. 110-457, 122 Stat. 5044 (2008); and Pub. L. No. 113-4, 127 Stat. 54 (2013). 9 Id. The TVPA’s Purpose and Findings also state that this was in response to and was meant to supersede the United States v. Kozminski, 487 U.S. 931 (1988) decision with its narrow holding of involuntary servitude. 10 U.S. Dep’t of State [hereinafter DOS], 2005 Trafficking in Persons Report, (2005).

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“pathway to progress in the effort against modern-day slavery.” 11 The TVPA was reauthorized and amended in 2003, 2005, 2008, and 2013. The TVPA created a “T visa” for human trafficking survivors. A T visa is valid for four years and provides a pathway to lawful permanent residency. With the increase in unaccompanied youth migrating to the United States and the rise of the use of minors for criminalized trafficking, it is now more important than ever that all immigrant minors be assessed for trafficking-related immigration forms of relief. 12 PRACTICE NOTE: New T visa regulations published in December 2016. In December of 2016, USCIS issued revised regulations governing eligibility criteria, the application process, evidentiary standards, and benefits associated with T visas. These revised regulations at 8 CFR § 214.11 bring the regulations into sync with the statutes governing T visas, and must be reviewed closely when filing an application for T nonimmigrant status. C.

State laws and their relevance

Although immigration relief is guided by federal law, many state laws may also be relevant in supporting and advocating for trafficked youth, such as in the areas of benefits, mandatory reporting laws, confidentiality and privilege issues, child abuse laws, age of consent, prostitution and sexual assault law, labor and employment laws, anti-trafficking laws, dependency issues, guardianship issues, juvenile issues, criminal law, and family law. Speak to trafficking experts in your area to learn more about what laws may be helpful in your jurisdiction. D.

Examples of common trafficking industries

Trafficking can take many different forms. As you interview your clients, keep the following types of work in mind to assess for any past trafficking. Sex work (commercial and non-commercial) • Massage parlors • Cantinas • Strip clubs • Underground brothels

Criminal activity • Drug trafficking • Smuggling people

Servile marriage

Construction and landscaping work

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DOS, The “3P” Paradigm: Prevention, Protection, and Prosecution, (June 14, 2010), https://20092017.state.gov/documents/organization/144603.pdf. 12 Section 235 of the TVPRA 2008 quickly repatriates minors from “contiguous countries” (i.e., Canada or Mexico). Pub. L. No. 110-457 § 235, 122 Stat. 5044 (2008) (codified as amended at 8 USC § 1232 (2012)). Practitioners’ experiences and reports show that trafficked Mexican youth are already under-identified and improperly screened by U.S. Customs and Border Protection (CBP). Because of current policy, many of the minors, if caught by CBP, are immediately sent back to Mexico, where they are then available to the criminal organizations to use and force into work again. See Betsy Cavendish and Maru Cortazar, Children at the Border: The Screening, Protection, and Repatriation of Unaccompanied Mexican Minors, The Appleseed Foundation (2011), http://www.appleseedmexico.org/wp-content/uploads/2014/06/Children-AtThe-Border1.pdf; see also Freedom Network, Freedom Network’s Response to the Current Influx of Unaccompanied Minors at the U.S.-Mexico Border, (Aug. 2014), http://freedomnetworkusa.org/wpcontent/uploads/2012/05/FN-Statement-on-UACs.pdf.

Domestic work

Hospitality work

Caregiving

Housekeeping and janitorial work

Agriculture

Begging

Restaurant work

Selling newspapers and magazines

Manufacturing work

Child soldiers

E.

Co-existing criminal activities

There may be other types of criminal activity that may overlap and coincide with human trafficking. Identifying these crimes may help identify additional legal remedies and services. Other criminal activities that may coincide and co-exist with human trafficking, particularly in cases with children, include but are not limited to: child abuse, child neglect, domestic and familial violence, child pornography, child labor violations, kidnapping, smuggling, and extortion. Example: Victor left Honduras because of gang violence. At the U.S.-Mexico border, the coyotes told him that it would cost him $3,000 for them to cross him into the United States. Victor agreed, but was then locked up inside of a house with 30 other migrants. His captors took all of his belongings, called his mother, and threatened that if she didn’t pay an additional $2,000, they would kill him. Meanwhile, for the next three weeks, Victor was forced to cook and clean for the 30 other rotating captives held for ransom and the 15 captors keeping him in the house by gunpoint. Victor overheard some of his captors also talking about selling off some of the younger girls held captive into prostitution in Los Angeles. In addition to screening for asylum and SIJS options, Victor may be eligible for a T visa for the forced labor he was required to do. Victor may also be eligible for a U visa because he is also a survivor of kidnapping, extortion, trafficking, and false imprisonment; however, practitioners have had difficulty in obtaining U visa Form I-918 Supplement B certifications in cases like these. The other younger girls are also survivors of false imprisonment, potential survivors of attempted or conspiracy to be sex trafficked, and should be screened for being subjected to other forms of sexual assault and trafficking-relief based on forced labor as well. § 15.2 Benefits from Department of Health and Human Services from Receiving Continued Presence (CP), T Visa, or as an Unaccompanied Minor Trafficked youth have often experienced extremely traumatic situations, physically and psychologically. Chapter 2 of this manual discusses how to work with children and youth, practice tips for working with them, and how the legal process can be re-traumatizing for many youth. These tips all apply to trafficked youth as well. Trafficked minors have immediate needs, and so services and benefits must be in place to assist them. You can access the latest ORR grantees that provide trafficking services for survivors online and contact these agencies for assistance. 13 Many trafficked youth may also be eligible for other state and federal benefits, 13

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U.S. Dep’t of Health and Human Services [hereinafter HHS], Anti-Trafficking in Persons Grants, http://www.acf.hhs.gov/programs/orr/resource/anti-trafficking-in-persons-grants.

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which is important to determine as quickly as possible. This is especially important because some minors, particularly those who are in the processing of aging out of certain systems, may be confronted with complicated legal matters that have long waiting periods. While waiting for legal relief, they may also be vulnerable to being trafficked. Example: Like the travel agency instructed him, Rahul left India for Mexico, and then walked up to CBP at the U.S.-Mexico border. HHS released him to his aunt in Washington State. He then turned 18 years old, and was told that his asylum hearing was delayed and would not be scheduled for at least another eight months. His aunt began to get exasperated by having to pay and care for him. She would not let him attend school and began keeping him in the back of her restaurant working long hours. When he complained, his uncle took a belt and beat him. His attorney can file a T visa for him based on the forced labor, even though his asylum case is pending, and pursue both options of relief for him. He should also work with a social worker to see what kinds of benefits he can access as a T visa applicant. Federal benefits available for trafficked people are explained below. States differ on whether or not they provide benefits for T visa applicants, T visa recipients, and trafficked individuals. 14 See Appendix SS for a sample benefit letter that applicants can use in California to access state benefits and benefits that trafficking survivors can access in California. A.

Department of Health and Human Services Eligibility Letters

Trafficked immigrant minors under 18 years of age subjected to a severe form of trafficking may be able to receive federal benefits. 15 In order to receive benefits on the basis of being a minor trafficking survivor, the person must have an Eligibility Letter or Interim Assistance Letter from HHS. An individual may request these letters from HHS on behalf of a minor when credible information indicates the minor may be a trafficking survivor. HHS issues an Eligibility Letter to assist a foreign child trafficking survivor to become eligible for benefits and services without regard to the child’s immigration status. HHS issues an Interim Assistance Letter to a foreign child who may have been subjected to trafficking to make the child eligible to receive benefits and services for a 90-day period. After issuing an Interim Assistance Letter, HHS will consult with the U.S. Departments of Justice and Homeland Security and NGOs with expertise in trafficking before determining the child’s continued eligibility as a survivor of trafficking.

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For example, California provides state benefits for T visa applicants. An advocate or attorney can simply write a letter stating that they have identified their client as a trafficking survivor and that they plan to file a T visa for this client. See Cal. Dep’t of Social Services, Human Trafficking & Crime Victims Assistance Programs, http://www.cdss.ca.gov/refugeeprogram/res/pdf/Factsheets/Trafficking_Fact_Sheet.pdf; see also National Immigration Law Center, Benefits for Immigrant Survivors of Trafficking, Domestic Violence, and Other Serious Crimes in California (Sept. 2015), https://www.nilc.org/issues/economic-support/benefitsfor-survivors-of-serious-crimes-in-california/. 15 Carmel Clay-Thompson, State Letter #01-13: The Trafficking Victims Protection Act of 2000, HHS, Office of Refugee Resettlement (May 3, 2001), http://www.acf.hhs.gov/programs/orr/resource/state-letter01-13.

Submitting a Request for Assistance for Child Victims of Human Trafficking form 16 to HHS’ Office on Trafficking in Persons (OTIP) can facilitate a determination of the child’s eligibility for assistance. You can submit requests by e-mail to [email protected]. You can also contact an OTIP Child Protection Specialist at (202) 205-4582. PRACTICE POINTER: When beginning work on a child’s case, always determine whether there is an Eligibility Letter that may have been requested and obtained for the child while they were in ORR custody. If a child has an Eligibility Letter, it is important to assess the child’s case for trafficking, given that both a service provider and HHS indicated indicia of trafficking in the case. If you are working with other social service providers and case managers on a case in which no Eligibility Letter has been issued, coordinate who will be submitting a request for an Eligibility Letter, and take care to avoid inconsistent information or information that may later be considered incriminating for the child in the Request for Assistance for an Eligibility Letter. Information on this form may be sent to federal law enforcement, made available to USCIS, or somehow make its way to criminal, civil, and/or immigration court. A trafficked minor with an Eligibility Letter who has no available parent or legal guardian in the United States is eligible for ORR’s Unaccompanied Refugee Minors (URM) program (see Chapter 18). The minors are detained in facilities, and are eventually placed in licensed foster homes or other care settings. An appropriate court awards legal responsibility to the state, county, or private agency providing services, to act in place of the child’s unavailable parents. Minors in the URM program receive the full range of services available to other foster children in the state, as well as special services to help them adapt to life in the United States and recover from their trafficking experience. Placement options are usually limited due to space, so if it is an option, refer your client to the URM program as soon as possible. Safe reunification with parents or other appropriate relatives is encouraged. A report indicated that trafficked children are more difficult to engage than the average refugee child, and that trafficked children can often take up to a year or more to “settle in” and trust the URM program. 17 Thus, TVPRA 2008 requires that those who encounter a “potential” trafficked minor have to report this to HHS within 24 hours and provides for interim assistance for minors who “may have been subjected to a severe form of trafficking in persons.” 18 By including the word and category of “potential” trafficked minors, Congress recognized the difficulty of conclusively ascertaining whether a minor is a trafficking survivor and the urgency for a minor to access federally funded services regardless of conclusive identification as a trafficking survivor. Should HHS deny your client an eligibility letter and prevent your client’s placement into the URM program, you may file an appeal advocating that the aim of the HHS determination is not to decide if the minor is actually a survivor of a severe form of trafficking, but to provide interim benefits and protection that will help service providers identify whether or not the minor is a

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16 You can access this form at HHS, Office on Trafficking in Persons, Assistance for Child Victims of Human Trafficking, https://www.acf.hhs.gov/sites/default/files/otip/hhs_request_for_assistance_2018.pdf. For instructions on completing the form, see https://www.acf.hhs.gov/otip/news/newrfa. 17 Mindy Loiselle et al., Care for Trafficked Children, U.S. Conference of Catholic Bishops 4 (Apr. 2006). 18 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 212(a)(2), 122 Stat. 5045 (2008) (codified as amended at 22 USC § 7105) (emphasis added).

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survivor of a severe form of trafficking. If you find yourself in this situation, please consult trafficking experts in the area for more information about the process. You will want to balance the resources spent on this appeal with the time you could spend to thoroughly complete and file a T visa application with accurate information for your client, as an approval of a T visa will generate benefits as well (see Subsection B, below). B.

Department of Health and Human Services Certification Letter

The Department of Health and Human Services Certification Letter 19 (“Certification Letter,” not to be confused with the Form I-914 Supplement B Law Enforcement Certification) allows adult survivors of trafficking who are not U.S. citizens or LPRs to be eligible to receive benefits and services to the same extent as a refugee under federal and state programs. In order to qualify, an individual must: Be a victim of a severe form of trafficking as defined by the TVPA; Be willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking or be unable to cooperate due to physical or psychological trauma; and 3. Have made a bona fide application for a T visa that has not been denied, have a T visa approved, or have received Continued Presence (CP). 20 1. 2.

Once a person has met the requirements listed above, they can receive a Certification Letter from the U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR). The certification process typically takes only a few days after ORR is notified by DHS that a person has been granted a T visa or CP. Certification Letters do not expire, but many benefits are time-limited, and the date listed on the letter starts the clock for most benefits. To notify ORR of a survivor of trafficking who has received CP or a T visa, or for whom DHS/USCIS has made an initial determination of a bona fide application for T nonimmigrant status, e-mail [email protected] or call 1 (866) 401-5510. Once your client has a Certification Letter, you may want to figure out the grantee for the Trafficking Victim Assistance Program (TVAP) where the client lives, as well as the ORR State Refugee Coordinator, as relevant, to help trigger benefits. 21 Other organizations who may be able to help include legal aid agencies that provide assistance with benefits, and refugee resettlement organizations that work to obtain refugee benefits. C.

Continued Presence (CP)

The TVPA also created an interim immigration remedy called “Continued Presence” (CP) for trafficking survivors. CP ensures that trafficked persons can work, live, and receive certain benefits and services while they remain in the United States during the course of the investigation and prosecution of the trafficking. CP is a temporary legal immigration status and does not lead to

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19 HHS, Office on Trafficking in Persons, Certification for Adult Victims of Human Trafficking, https://www.acf.hhs.gov/otip/resource/certificationfs (last updated May 10, 2016). 20 Id. 21 HHS, Office on Trafficking in Persons, Certification Letters (Dec. 26, 2017), https://www.acf.hhs.gov/otip/victim-assistance/certification-and-eligibility-letters-for-foreign-nationalvictims.

any permanent legal status. Typically, CP is granted for one to two years and can be extended as needed. 22 To receive CP, the trafficking survivor only has to be a “potential witness” in a trafficking case. 23 CP can only be requested by federal law enforcement and sent to the ICE Law Enforcement Parole and Law Enforcement Programs Unit for approval. 24 However, local and state law enforcement may request that federal law enforcement partners submit CP requests to be sent to ICE for approval. 25 If approved, HHS produces a certification letter, and the adjudicating government body, the Vermont Service Center (VSC), produces a Form I-94 (Arrival-Departure Record) and an Employment Authorization Document (EAD) for the trafficking survivor. With this, your client can travel around the United States domestically. However, leaving the United States can break physical presence and harm your client’s chances of obtaining a T visa. Certain family members of CP recipients can be paroled into the United States at the request of law enforcement. 26 Law enforcement can also revoke CP if your client is later 1) determined not to be a survivor of trafficking, 2) is no longer a potential witness, or 3) is deemed uncooperative. Historically, the number of CP grants has been dismal. 27 This means that you cannot count on your client receiving CP and even if you think your client is a good CP candidate, you should still be diligent in finding other forms of immigration relief. This is particularly true because even if your client is granted CP, it is temporary and could be revoked at any time. Nevertheless, you should always advocate and request for CP if your client is already in contact with law enforcement. PRACTICE POINTER: To save time and avoid errors, it is highly advisable to prepare the CP application and submit it to law enforcement for their review and signature, instead of waiting for them to complete it themselves. For information on the CP application process, see Appendix

22

See ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016), reprinted at Appendix TT. 28 CFR § 1100.35; see also U.S. Immigration and Customs Enforcement [hereinafter ICE], Continued Presence: Temporary Immigration Status for Victims of Human Trafficking (Aug. 2010), http://www.ice.gov/doclib/human-trafficking/pdf/continued-presence.pdf. 24 Id. If the Department of Homeland Security [hereinafter DHS] does not grant CP, it may grant an alternative form of temporary immigration relief for the trafficking survivor, such as: 1) Deferred Action (8 CFR § 274a.12(c)(14)); 2) Parole (8 CFR § 212.5); 3) Voluntary Departure (8 CFR § 240.25); or 4) Stay of Removal (8 CFR § 241.6). Note that “[d]eferred action should never be used in place of [CP].” 28 CFR § 1100.35(b); see ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016), reprinted at Appendix TT. 25 22 USC § 7105(c)(3)(C)(i). 26 The qualifying family relationship must have existed at the time the trafficking survivor was granted CP. 22 USC § 7105(c)(3)(B); 8 USC § 1229(b)(6). If the holder of CP is under 21, their spouse, children, parents and unmarried siblings under 18 are eligible. If the holder of CP is 21 or older, their spouse, children and parents or siblings in present danger of retaliation are eligible. See ICE HSI Directive 10075.2: Continued Presence, 9 (Oct. 6, 2016), reprinted at Appendix TT. 27 The State Department’s 2018 Trafficking In Persons report notes that in Fiscal Year 2017, Continued Presence was only granted to 160 trafficking survivors, and 113 extensions of Continued Presence to trafficking survivors granted Continued Presence from a previous time period. See DOS, 2018 Trafficking in Persons Report 445 (June 2018), https://www.state.gov/j/tip/rls/tiprpt/countries/2018/282776.htm.

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EE. No fee waiver request or fees are needed because the application is being submitted by law enforcement to DHS. § 15.3 T Visa Eligibility A.

Eligibility

The TVPA created the “T visa,” allowing victims of severe forms of trafficking to live, receive services, and work legally in the United States for up to four years. 28 T visa recipients may apply for lawful permanent residency if they meet the eligibility requirements.29 To be eligible for a T visa, a non-citizen trafficking survivor must show that they: • • • • B.

Element one: Are or have been a victim of a severe form of trafficking (as defined by the TVPA); Element two: Are physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking; 30 Element three: Have complied with any reasonable request for assistance in investigating or prosecuting trafficking; or are under 18 years old; or are unable to cooperate due to physical or psychological trauma; and Element four: Would suffer extreme hardship involving unusual and severe harm upon removal. 31 Filing deadlines and caps

There are no filing deadlines for T visas, and USCIS will accept applications regardless of when the applicant was victimized. 32 Only 5,000 T visas for primary trafficking survivor applicants can be granted per fiscal year. 33 There are no limits on the visas available for qualifying derivative applications. To date, the annual cap has never been reached, and T visas remain extremely underutilized. 34

28

TVPA, § 107(e)(1); 8 USC § 1101(a)(15)(T)(2000). INA § 245(l); 8 USC § 1255(l). 30 The TVPA defines the United States as including “the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Mariana Islands, and the territories and possessions of the United States.” TVPA, § 103(12); 22 USC § 7102(12). 31 INA § 101(a)(15)(T); 8 USC § 1101(a)(15)(T); 8 CFR § 214.11(b). 32 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,278 (Dec. 19, 2016) (codified at 8 CFR pts. 212, 214, 245, and 274a). 33 INA § 214(o)(2). 34 From Fiscal Year 2008 until Fiscal Year 2017, 5,727 T visas total were granted out of 50,000 available— meaning that only a mere 11.45% of T visas available were used. U.S. Citizenship and Immigration Services [hereinafter USCIS], Data Set: Form I-914 T Nonimmigrant Status: Fiscal Year 2018, 1st Quarter, http://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-form-i-914application-t-nonimmigrant-status. 29

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C.

Evidentiary standard

The T visa applicant must prove the above criteria by a preponderance of the evidence. USCIS will accept “any credible evidence” supporting the eligibility requirements. 35 The applicant may satisfy their burden by submitting: an LEA endorsement (Form I-914 Supplement B); documentation of a grant of CP; or any other evidence, including but not limited to, “trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and/or affidavits.” 36 Other evidence could include medical records, psychological evaluations, expert statements, academic articles, pay stubs, evidence of “debts” or debt ledgers, airplane tickets, text messages, emails, social media communication, photographs, contracts, other witness affidavits, letters and affidavits from case managers and social workers, arrest records, Internet records demonstrating that traffickers and their addresses exist—anything to show that your client’s case is credible and that the place and people described are real. PRACTICE POINTER: Your client’s declaration is mandatory and will often be the crux of your client’s eligibility for a T visa. Nevertheless, consider how detailed the statement has to be. Interviewing minors in particular can be re-traumatizing and triggering for the minor as well as for you as the interviewer. Considering your evidence is very important in your working relationship and for the mental health of your client. What other evidence can lift some of the burden off of you and your client to provide a long, detailed declaration? Is there a parent, social worker, school counselor, therapist, or someone else that can provide a detailed statement supporting your client? Are there extensive medical records and psychological evaluations that support your case? Is there CP or a Form I-914 Supplement B that can also serve as evidence for this case? § 15.4 Element One: Victim of a Severe Form of Human Trafficking A.

“Severe form of trafficking” as defined in the TVPA

The TVPA defines a “severe form of trafficking” as: a. sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or b. The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 37 Below is a chart created by other legal scholars on describing a “severe form of human trafficking.” See Appendix UU for a sample cover letter.

35

8 CFR § 214.11(d)(2)(ii); 214.11(d)(5). 8 CFR § 214.11(f)(1). 37 TVPA, § 103(8)); 22 USC § 7102(9).

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THREE PRONGS OF “A SEVERE FORM OF TRAFFICKING IN PERSONS” FOR ADULT AND MINOR LABOR TRAFFICKING CASES AND ADULT SEX TRAFFICKING CASES 38 1. Process

2. Means

3. End

RECRUIT or HARBOR or TRANSPORT or PROVIDE or OBTAIN A PERSON

BY FORCE or FRAUD or COERCION

FOR THE PURPOSES OF INVOLUNTARY SERVITUDE or PEONAGE or DEBT BONDAGE or SLAVERY or A COMMERCIAL SEX ACT

→

→

Three elements must be present in adult and minor labor trafficking cases to qualify for a “severe form of trafficking” in persons.” First, there is the process through which the labor is attained: was it done by recruiting, harboring, transporting, providing, or obtaining a person for labor? Second, what means was used to procure the labor: force, fraud, or coercion? Third, what was the end purpose in procuring the labor or service: involuntary servitude, peonage, debt bondage, slavery, or commercial sex act? TWO PRONGS OF “A SEVERE FORM OF TRAFFICKING IN PERSONS” FOR MINOR SEX TRAFFICKING CASES 1. Process & Means Inducing Minor

2. End

→

FOR THE PURPOSES OF COMMERCIAL SEX ACT

For cases involving sex trafficking of minors under the age of 18, no force, fraud, or coercion is required. A commercial sex act is any sex act on account of which anything of value (money, drugs, shelter, food, clothes, etc.) is given to or received by any person. 39 Note that labor trafficking involving minors still requires force, fraud, or coercion.

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38 This chart is from: Carole Angel & Leslye Orloff, Victim of a Severe Form of Trafficking in Chapter 11 Human Trafficking and the T-visa, in Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault Chapter 11, NIWAP at American University Washington College of Law and Legal Momentum (2013), http://niwaplibrary.wcl.american.edu/pubs/empowering-survivors-legal-rights-victims/. 39 22 USC § 7102(4).

1. Process: Recruitment, harboring, transportation, provision, or obtaining To show this first element, you need only show the process through which the labor is attained: recruiting, harboring, transporting, providing, or obtaining a person for labor. For example, you can show this in several ways: • • •

The trafficker sent emails, text messages, or called the trafficking survivor to come to the United States or made false promises of a job or situation to the trafficking survivor. The trafficker hired a smuggler to bring the trafficking survivor to the United States. The trafficker bought airplane tickets, arranged for false papers, and coached the trafficking survivor on how to obtain a visa to enter the United States. Example: Rani’s trafficker recruited her to work for her as a domestic worker in the United States by email, promising her a great salary and help getting a green card. Rani’s trafficker paid for Rani’s visa application and airplane ticket and coached her on what to say to the U.S. embassy. After Rani entered the United States, she was not paid anything for her work, and was trafficked. To explain the process by which Rani was trafficked, the legal representative should focus on her trafficker’s recruitment by email, her trafficker’s role in obtaining documents and paying for Rani’s transportation to the United States, and harboring Rani at her house.

There is no requirement to cross an international border in any of these definitions. A trafficker can recruit or obtain someone who is already in the United States for reasons unrelated to the trafficking. Please note that trafficking and smuggling are distinct crimes that may or may not overlap. Smuggling is the process whereby an individual contracts with a transporter (sometimes called a “coyote” or “snakehead”) to be brought into the United States illegally. In addition to being subjected to unsafe conditions on the smuggling journeys, smuggled individuals may be subjected to physical and sexual violence. Sometimes traffickers arrange for the smuggling of individuals, but other times, people facilitate their own smuggling and are subsequently trafficked in the United States. Example: Liliana came to the United States to escape her abusive boyfriend. She crossed into the United States through the border without inspection. She then began working on a farm. The farm’s owner eventually began threatening to deport her if she tried to quit the job and leave the situation. The legal representative should focus on the farm owner’s recruitment, harboring, and obtaining of Liliana as the process in which she was trafficked after entering the United States. 2. Means: Force, fraud, or coercion

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The means can be facilitated through force, fraud, or coercion. Force is physical restraint, and fraud is when the traffickers use deception and alter the agreed-upon terms. Again, Congress explicitly passed the TVPA to encapsulate how non-violent and non-physical forms of coercion can still facilitate unfree labor. Although some trafficking cases do involve the use of physical violence, many people are trafficked without the use of any physical force, violence, or restraint. For that reason, “coercion” remains one of the most crucial terms in the TVPA because most trafficking cases turn on whether the person can prove coercion. Coercion is defined in other parts of the statute.

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“Coercion” in 22 USC § 7102(3) and 8 CFR § 214.11(a) (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.

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Serious Harm “… any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.” 21 USC § 1589(c); 18 USC § 1591(e).

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Abuse of Legal Process “… use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed … to exert pressure … to cause that person to take some action or refrain from taking some action.” 21 USC § 1589(c); 18 USC § 1591(e).

The House Conference Report on the TVPA noted that the term “serious harm,” is intended to cover physical violence and legal coercion, as well as more subtle methods of coercion, “such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence.” Specifically, threats of deportation or threats to send one back to their home country have been found to be threats that constitute “abuse or threatened abuse of law or legal process” and/or a “serious threat.” 40 The TVPA does not limit the range of situations that could constitute nonphysical coercion. Rather, the TVPA’s coercion standard depends on the particular circumstances of the trafficking survivor and recognizes that coercion can operate situationally. 41 TVPRA 2008 states that reasonableness should be judged against the survivor’s background, experiences, and all the surrounding circumstances. 42 The House Conference Report examples also pay special attention to the individual circumstances, including age, disability, legal status, and the economic and social pressures of each trafficked person. Furthermore, the House Conference Report cites how children are trafficked into forced labor by means of “nonviolent and psychological coercion,” 40

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H.R. Rep. No. 106-939, at 101 (2000); see also, DOJ, Civil Rights Division, Criminal Section: Involuntary Servitude, Forced Labor, and Sex Trafficking Statutes Enforced, http://www.justice.gov/crt/about/crm/1581fin.php (“Section 1584 also prohibits compelling a person to work against his/her will by creating a ‘climate of fear’ through the use of force, the threat of force, or the threat of legal coercion [i.e., If you don’t work, I’ll call the immigration officials.] which is sufficient to compel service against a person’s will”). 41 Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L.R. 409, 452-453 (2011). 42 Id. at 457.

including “isolation, denial of sleep, and other punishments.” 43 These examples describe broader conduct, rather than specific threats, where individuals are coerced into submission by stripping personal dignity, sense of normalcy, and fear of negative consequences other than bodily harm. Sometimes minors may have been previously trafficked or exploited in their country of origin. This may make the minor more vulnerable to future forms of trafficking and exploitation, or “normalize” these conditions for the minor. Example: Madhuri was sent to work for a family as a maid at the age of 10 in India. She was sent there so she could have a place to eat and sleep, and so she could send some money home to her parents and five siblings. Her employer was mean and often beat Madhuri when she didn’t prepare the tea the way her employer liked it, didn’t clean thoroughly enough, or couldn’t get the stains out of her employer’s shirt. Her parents also yelled at her when she complained. As Madhuri got older, she was trafficked in the United States for domestic work for another employer and did not leave the situation for over a year. Madhuri’s attorney should include information about her experiences in India as an exploited domestic servant as a young child, discuss how the past trauma she suffered shaped her idea of what constituted serious harm, and how her parents’ rebuffing of her past requests for help shaped her mindset of how futile it was to complain about her employer’s abusive behavior. The following are examples of non-violent and non-physical ways of inflicting trauma on others that have been used against trafficking survivors that you can use as guidelines for interviewing questions. Conditions that destroy the survivor’s sense of Use of culture and linguistic shock and shame autonomy Various conditions of restriction of movement, Economic deprivation creating a dependence on including denial of privacy, cramped living or the trafficker for food and shelter, with survivors working spaces unable to find other viable options, including withholding money and adding debts Overcrowded and confined spaces, solitary confinement, and sensory deprivation

Feelings of helplessness, shame, humiliation, shock, denial or disbelief

Physical impairment or exhaustion from working unreasonable hours, heavy work, or disturbance of sleep

Deprivation of social contacts, isolation, and loss of contact with the outside world

Deprivation of physiological needs such as restriction of nutritious food, water, sleep, toilet, facilities, bathing, motor activities, and medical care

Deprivation of basic necessities, such as adequate and nutritious food, water, clothing, shelter, toiletries, privacy, exercise, and sleep

Threats of being reported to the police,

Exposure to ambiguous situations or

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H.R. Rep. No. 106-939, at 101 (2000); see also Kathleen Kim, Psychological Coercion in the context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. of Toledo L. Rev. 3, 966-967 (2007).

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prosecuted, sued, detained, or deported

contradictory messages

Lack of medical care

Being forced to betray or harm others

Psychological trauma from daily mental abuse and torture

Being forced to witness atrocities and violence performed on others 44

Stripping survivors of their basic sense of being, dignity and identity, including forcibly changing survivors’ names

Compulsory violation of taboos or religious beliefs

3. End: Commercial sex act, slavery, involuntary servitude, peonage and debt bondage After understanding the process and means, it is important to describe the third element in proving a trafficking case, which is the end purpose of procuring the labor or service: involuntary servitude, peonage, debt bondage, slavery, or commercial sex act. Below is a description of these various qualifying crimes. a. End: Commercial sex act A commercial sex act is any sex act on account of which anything of value (money, drugs, shelter, food, clothes, etc.) is given to or received by any person. 45 Remember that minors only need to show that they were induced—persuaded or put into the situation—into a commercial sex act, and do not need to demonstrate force, fraud, or coercion. Example: Starting at the age of 16, Anita’s girlfriend began selling her to men for sex in exchange for $50 a trick. Her girlfriend would sometimes give her drugs to help ease her into the work. Over time, Anita turned 18 and became addicted to drugs. Over the last two years her girlfriend or the customers would sometimes “pay” Anita with meth in exchange for a trick. When Anita didn’t want to do meth or a trick, her girlfriend threatened to out Anita as transgender to the world, strangled her a few times, and threatened to deport her. For her T visa application, Anita’s attorney would argue that Anita was first considered a trafficking survivor as a minor who was induced by her girlfriend into having sex with customers in exchange for money. Anita’s attorney would also argue that after Anita turned 18, she was physically forced and coerced through drugs and threats of serious harm based on her gender identity and the possibility of deportation to continue to provide commercial sex acts in exchange for money and drugs. b. End: Slavery The Thirteenth Amendment and Chapter 77 of the U.S. code criminalizes slavery and its facilitation. The U.S. Supreme Court has also otherwise defined slavery to be “a state of compulsory service to another.” 46 The international legal definition of slavery may also be useful: “the status or condition of a person over whom any or all of the powers attaching to the right of 44

Id. at 187-188. 22 USC § 7102(4). 46 United States v. Booker, 655 F.2d 562, 566 (1981) (citing United States v. Ingalls, 73 F.Supp.76, 79 (1947), which cites the U.S. Supreme Court decision in United States v. Hodges, 203 U.S. 1, 16 (1905)). However, note that this definition is closer to the definition of involuntary servitude in 18 USC § 1584. 45

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ownership are exercised.” 47 The most traditional form of slavery is chattel slavery, where people are treated under a legal or economic system as personal property. However, given that nearly every country in the world has rendered chattel slavery illegal and that such practices are rare nowadays, 48 it is likely that most T visa applications will not be arguing slavery as an end. Rather, the focus will likely be on slave-like practices such as involuntary servitude, peonage, and debt bondage. c. End: Involuntary servitude The definition of coercion is itself incorporated into the TVPA’s definition of involuntary servitude as “a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or the abuse or threatened abuse of the legal process.” 49 In determining involuntary servitude, it makes no difference that the person may have initially agreed, voluntarily, to render the service or perform the work. If a person willingly begins work but later expresses the desire to stop rendering the service or performing the work and is then forced to remain and perform work against their will, that individual’s service becomes involuntary. Whether or not an individual is paid is not singularly determinative to whether that person has been held in involuntary servitude. Example: Jiachiang left Fujian province in China with a “snakehead” with the understanding that he would have work in New York City. He began to work at a Chinese restaurant in New York City, where he slept in the back. The owners demanded long hours and only paid him $100 a week. When he said he wanted to quit, they said they’d hurt his family members back in China if he left and throw him in jail if he said anything to anyone. Although he paid a fee to be smuggled into the United States, began his work voluntarily, and was even paid $100 a week, he became subject to involuntary servitude once he was coerced into staying at the job because of the threats made to him and his family. d. Peonage and debt bondage U.S. federal law criminalizes as a form of trafficking in persons all forms of bonded labor through debt bondage and peonage by force, threat of force, or threat of legal coercion to compel a person to work against her will. 50 Peonage is “a status or condition of involuntary servitude based upon real or alleged indebtedness. 51 The amount of the debt or the means is largely irrelevant. 52 Example: Lili has been told that because her father has died, the debt he owed to the local loan shark has passed to her. Lili never consented to owing this debt. The local loan 47

Slavery Convention, art. 1. Office of the U.N. High Commissioner on Human Rights, David Weissbrodt & Anti-Slavery International, Abolishing Slavery and its Contemporary Forms, 7, U.N. Doc. HR/PUB/02/4 (2002), http://www.ohchr.org/Documents/Publications/slaveryen.pdf. 49 22 USC § 7102(6). 50 18 USC § 1581. 51 8 CFR § 214.11(a); see also Bailey v. Alabama, 219 U.S. 219, 242 (1911) (quoting Clyatt v. United States, 197 U.S. 207, 215 (1905)). 52 Pierce v. United States, 146 F.2d 84, 86 (5th Cir. 1944).

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shark demands that she start coming over to his house to cook and clean. Lili’s situation, regardless of whether or not she actually owes money to the loan shark, is recognized as peonage and she may be eligible to apply for a T visa. Federal statute defines “debt bondage” to mean “the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” 53 Similar to peonage, debt bondage is a circumstance where the debt seemingly can never be paid off. Example: Upon arrival to Miami, Sra. Garcia told Hana that she now owed her $6,000 instead of the agreed-upon $5,000 for the airplane ticket and visa fee because of alleged taxes. Over the next three months, Sra. Garcia steadily increased the amount of money Hana owed for rent, food, and clothing. Despite all the hours Hana spent caretaking for Sra. Garcia around the clock, Hana’s debt increased to an amount she could never pay off. Hana’s situation is recognized as debt bondage because regardless of the amount of work she does, she is unable to pay off any of the ever-growing debt, and she may be eligible for a T visa. B.

No consent to being trafficked

The story for most immigrant trafficking survivors begins with some kind of consent to enter into a situation that subsequently devolves into a trafficking situation. However, the TVPA’s practical effect is that a trafficked individual’s initial consent is irrelevant to whether or not someone has been “trafficked” due to the trafficker’s coercive or deceptive conduct and the subsequent exploitation. 54 Anecdotally, many service providers and law enforcement have failed to identify trafficking survivors because there is a perception that their initial consent renders them guilty and ineligible to be considered a trafficking survivor. For minors, this concept of consent usually hinges on the fact that they have limited ability to consent legally to labor agreements, especially for sex acts. Different states have different ages of consent, usually ranging from 16 to 18. However, for all types of trafficking, like adults, minors cannot consent to being trafficked. Finding the shift between voluntariness to subsequent coercion is difficult, especially in cases where the coercion is nonphysical. However, this shift is important to identify and will be critical to differentiate in order to put together a successful T visa application. 55 Example: Hye Young calculated that if she agreed to do the sex work for eight months, she would make enough money to pay off the transportation fee and her credit card debts. However, her trafficker confiscated her passport and told her that she also now owed him money for things that he had said before were going to be free—for every condom used, the rent for the room that she was using with the customers, food, and clothing. He 53

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22 USC § 7102(5). Kathleen Kim, Psychological Coercion in the context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. of Toledo L. Rev. 3, 963 (2007). 55 Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L.R. 409, 415 (2011). 54

threatened that if she tried to leave, she would get arrested and deported. Even though Hye Young initially consented to do the sex work, she was trafficked and unable to leave the situation at will when her passport was taken and she was coerced with threats of arrest and deportation if she did not pay off her never-ending debt to her trafficker. Hye Young’s legal representative should work with her to pinpoint what actions the trafficker took and when that turned her voluntary work into an involuntary trafficking situation. C.

Screening questions

As described above, trafficking can take many different forms. Legal workers should be vigilant in screening their immigrant clients for potential trafficking. In addition to vetting for physical, psychological, sexual abuse, and physical forms of inducing force, fraud or coercion, legal workers should also ask more general questions about clients’ employment and living situations. Please see Appendix WW for some suggested questions that help screen more broadly for potential trafficking situations. § 15.5 Element Two: Physical Presence on Account of Trafficking A.

Has the T visa applicant left the United States since the last act of trafficking?

The second element to demonstrate in a T visa application is that the trafficking survivor is physically present in the United States, or at a port-of-entry thereto, on account of the trafficking. 56 As discussed earlier, crossing borders is not a requirement to demonstrate that someone is a victim of a severe form of human trafficking. Some trafficking survivors may smuggle themselves into the United States and then be trafficked; other trafficking survivors may enter the United States legally and later be trafficked. This requirement, as narrowly defined by the regulations, is to assess whether or not the applicant has physically left the United States since the last act of trafficking or has some jurisdictional tie of the trafficking crime to the United States. Thus, while discussing how your client’s recruitment or entry into the United States was linked to the trafficker’s actions may help prove that your client is a victim of a severe form of human trafficking, it is not required to fulfill this element of physical presence in the United States on account of trafficking. However, once the T applicant physically leaves the United States after the last incident of trafficking, this requirement cannot be met absent reentry based on the continued victimization of the person, the person being subjected to a new incident of trafficking, or law enforcement bringing the person back into the United States to participate in investigative or judicial processes 57 associated with an act or perpetrator of trafficking. 58 In addition, a person who was 56

INA § 101(a)(15)(T)(i)(II); 8 USC § 1101(a)(15)(T)(i)(II); 8 CFR § 214.11(g). DHS does not interpret the phrase “judicial processes” as referring only to criminal investigations or prosecutions, nor will DHS require LEA “sponsorship” to enter the United States, such as Significant Public Benefit Parole (although this parole may be the most common form of entry into the United States for these types of applicants). For example, if DHS were to parole a victim to pursue civil remedies associated with their trafficking, the applicant may potentially meet this physical presence requirement. Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,274 (Dec. 19, 2016) (codified at 8 CFR pts. 212, 214, 245, and 274a). 58 8 CFR § 214.11(g)(2).

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allowed initial entry or reentry into the United States for participation in investigative or judicial processes is deemed physically present in the United States on account of trafficking, regardless of where the trafficking occurred. 59 USCIS will consider all evidence presented to determine whether the applicant has met the physical presence requirement. This may include, for example, the applicant’s responses to questions on the T visa application, an LEA endorsement, documentation of a grant of CP, documentation of entry into the United States such as parole under INA § 212(d)(5), or any other credible evidence, including the applicant’s personal statement. 60 Example: Angel’s parents brought her to the United States from Mexico when she was three years old, and she has never left the United States since. Growing up, she witnessed her father beating up her mother, and her mother in turn would drink heavily. Angel began to run away from home a lot. She met a boy named Danny who seemed to like her. Danny began to pressure her to have sex with other men to earn money for him to use. She turned a few tricks for him, but was then arrested. Even though Angel was not trafficked to the United States, she can still qualify for a T visa because she remains physically present in the United States on account of her trafficking, and because she has not left the United States since the last incident of her trafficking. Example: Jane’s aunt told her that if she came to the United States, she could stay indefinitely and live with her, and go to school. All she had to do was help her aunt with her aunt’s baby for three to four hours a day. Jane’s aunt told her to lie and tell the U.S. Embassy that she was just coming to visit her aunt and planned to stay for two weeks during her summer vacation. The U.S. Embassy granted Jane her B-2 tourist visa, and Jane flew to the United States on January 1, 2017. Once she got to the United States, Jane was trafficked by her aunt into domestic servitude. Jane was finally able to escape on May 4, 2017, and has not left the United States since then. Jane can qualify for a T visa because her aunt, who is also her trafficker, arranged and obtained for her to enter the United States, trafficked her in the United States, and Jane has not left the United States since she escaped her trafficking situation. Example: Marina calls you crying, saying that her mother is sick and dying. She insists on returning to Mexico regardless of your advice that if she leaves the United States, she will abandon her chance to file her T visa application. Law enforcement refuses to provide a U visa certification for her case, so that isn’t an option for her. Marina leaves for Mexico, and calls you six months later. She tells you that her trafficker found her in her home village in Mexico, and forced her to come back to the United States to work for him again. She tells you that she managed to escape and wants to know if she can apply for a T visa again. Now that Marina has re-entered the United States on account of being trafficked, she may be able to apply for a T visa. Example: Lupe is sex trafficked with many other girls from her hometown while she is in Florida, and becomes pregnant by one of her traffickers. She flees back to her hometown in Mexico, and is later contacted by the FBI and U.S. Attorney’s Office, who

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8 CFR § 214.11(g)(3). 8 CFR § 214.11(g)(4).

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are investigating and prosecuting her traffickers. Some of the other trafficked girls had given the FBI Lupe’s name and contact information, and convinced Lupe to come back to the United States with her baby to testify against their traffickers. Civil attorneys also offer to represent her pro bono to bring a civil lawsuit on the basis of violation of Florida state and U.S. federal law. Lupe agrees to return, and the FBI arrange to parole her back into the United States. Upon re-entry with this lawful parole to participate in the criminal investigation and civil case, she is now physically present again on account of trafficking. B.

Cases of “attempted trafficking” and trafficking in another country

There are also cases where you may want to argue that your clients meet this physical presence requirement because they only arrived to the U.S. border on account of their trafficking. The statutory definition of “physically present on account of trafficking” includes those who are “physically present in the United States … or at a port-of-entry thereto on account of such trafficking” and were “subject[ed] to a severe form of trafficking in persons at some point in the past and whose continuing presence in the United States is directly related to the original trafficking in persons.” 61 The law requires demonstration of intent to traffic by defining a “severe form of trafficking persons” as the “recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” 62 This means that people who were brought to the U.S. border or other port-of-entry (such as an airport or harbor) to be trafficked or are in the midst of their trafficking situation can still apply for a T visa. If this is the case, you should emphasize all indicators that your client was already being trafficked or that the traffickers intended to subject your client to commercial sex and/or some kind of unfree labor. 63 Example: Hana was sold by her father to a coyote. The coyote raped her and told her that she had to go to the Central Valley with him, where she would have to be his wife and work at a farm picking apples to earn him back some of the money he spent on her. At the U.S.-Mexico border, CBP pulls her aside to question her. The coyote runs off, and she is brought into HHS custody. Hana may still qualify for a T visa on account of attempted trafficking based on the argument that her trafficker brought her to the U.S. port of entry with the plan to force her into involuntary servitude to pick apples and maybe to provide domestic services for him in the household as his wife. Example: Maria, a native of the Philippines, worked in Saudi Arabia as a domestic servant, where she was forced to work around the clock and was prohibited from returning to the Philippines, even though she begged for permission to leave. Maria’s employers demanded that she travel with them to continue her work as caretaker for their children while they were on vacation in California for a few months. She knew the work would be even worse in California where she would do the work of three servants. At the airport in Los Angeles, the wife pinched Maria badly when Maria used the restroom for too long. Maria could not take it anymore and begged the airport officials for help. You

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8 CFR § 214.11(g)(1) (emphasis added). 22 USC § 7102(9)(B) (emphasis added). 63 8 CFR § 214.11(f)(1).

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would argue that Maria was at the port-of-entry in Los Angeles on account of her employers attempting to continue their trafficking of her into the United States. DHS anticipates limited types of cases when trafficking occurred outside the United States that could lead to eligibility for T nonimmigrant status. One example is when criminal activities occur outside the United States, but U.S. statutes provide for extraterritorial jurisdiction generally having some nexus between the criminal activity and the United States’ interests, and the activity involved would meet the federal definition of “severe forms of trafficking in persons.” 64 For example, under 18 U.S.C. § 2423(c), the United States has jurisdiction to investigate and prosecute sex tourism cases involving U.S. citizens or nationals who engage in illicit commercial sexual conduct with minors outside of the United States. If the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking or can establish that they have been brought to a port-of-entry to be further trafficked in the United States, the victim may be able to establish physical presence on account of trafficking. Example: Johnny tells you that after his mother died when he was 12 years old, his aunt decided that she only wanted to support him until he turned 15. Homeless, he eventually finds work and lives in a small back room at an Internet café, where he meets a 40something year old woman called Auntie May who tells him that she is from the United States. She is nice to him and starts buying him small gifts and food, eventually suggesting to him that she would like him to be her “special friend.” Johnny, hungry and without anyone, begins having sex with Auntie May in exchange for food, a bed, a cell phone, and other basic necessities. She tells him that she wants to bring him back to her home in the United States where he can continue to have a romantic relationship with her while attending school. She helps pay for and obtain a passport, visa, and airplane ticket for him. They board the airplane together, but he does not see where she sits, as she sits apart from him. Upon arriving to San Francisco International Airport, Auntie May finally gives Johnny his passport and instructs him to get into another line from her to have his passport inspected. He is detained by the Department of Homeland Security and taken into ORR custody after it is determined that he is an unaccompanied child; in the meantime, Auntie May disappears, and Johnny realizes that Auntie May was likely not her real name. § 15.6 Element Three: Compliance with Any Reasonable Request for Assistance Made by Law Enforcement A.

Applicants trafficked as minors are exempt from law enforcement compliance

Under the Trafficking Victims Protection Reauthorization Act of 2003, minors under the age of 18 are exempt from demonstrating compliance with reasonable requests for cooperation.65 Practitioners have successfully advocated for this legal standard to be interpreted to consider the

Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,273 (Dec. 19, 2016) (codified at 8 CFR pts. 212, 214, 245, and 274a). 65 TVPRA, § 4(b)(1)(A); INA § 101(a)(15)(T)(III); 8 USC § 1101(a)(15)(T)(i)(III); 8 CFR 214.11(h)(4)(ii).

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age of the victim at the age of victimization, not the age at the filing or adjudication of the T visa. 66 Example: Duc was trafficked on a fishing boat for six months and then rescued when he was 17 years old. You meet him two weeks after he turns 18 years old, interview him, deem him eligible for a T visa, and file his T visa with documents with his birth date and the date that the Coast Guard found him and took him into custody. He was too scared at the time to tell the Coast Guard anything. You should apply for him as an individual who was trafficked as a minor and who is thus exempt from the requirement to report his case to law enforcement. In addition to your client’s declaration, you should submit proof of your client’s age, such as an official copy of the birth certificate, a passport, or a certified medical opinion. If you do not have an official document, you can submit “secondary evidence” of age, such as church or school records. 67 PRACTICE POINTER: If your client is a minor, it is wise to state upfront in your cover letter your client’s age and their exemption from this requirement to report the case to law enforcement. Practitioners have seen Requests for Evidence improperly asking minor T visa applicants to demonstrate cooperation with law enforcement, CP, and/or I-914 Supplement B in contradiction of this exemption. If this happens to you, resubmit a cover letter emphasizing the clear statutory exemption for minors, point out the evidence you have already submitted, and where necessary, file a case with the USCIS Ombudsman’s Office pointing out this erroneous application of law. Many trafficking survivors, particularly minors, are very hesitant to report their case to law enforcement. They may not want to get anyone in trouble, especially if their traffickers are family members or a boyfriend. They may distrust law enforcement due to previous interactions with the police either in their home country or here. They may have suffered harassment from law enforcement because of some form of discrimination (e.g., ethnicity, sexual orientation, or gender identity), or due to their trafficking situation (e.g., arrested for prostitution or selling drugs). For these reasons, many minors may not want to report their case to law enforcement once they learn that they are not required to. However, some minor trafficking survivors may still want to report their case to law enforcement. This could be for personal safety reasons, to protect family members, or wanting to assist in any form of legal action against their trafficker. You should counsel your client on the benefits and limitations in engaging law enforcement. Your client should understand that they do not control the criminal processes—they are victim-witnesses in a case, and criminal processes and decisions are decided by law enforcement. Law enforcement may be able to provide your client with CP, but given the low numbers of CP that have been granted, this is not something you can guarantee 66

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At the 2017 Freedom Network USA Annual Conference, on the USCIS Vermont Services Center panel, Officers with Office of Policy and Strategy for USCIS noted that the standard was based on the age of the survivor when victimization occurred. Several T visas have been approved where the applicants were no longer 18 years of age, but experienced the trafficking when they were a minor, and they did not report their case to law enforcement. As of August 2018, it is still unclear whether or not the first or last act of trafficking needed to have occurred when the applicant was a minor to satisfy this requirement. 67 8 CFR § 103.2(b)(2)(i).

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your client. Additionally, while working with law enforcement sometimes means greater security and safety options in the United States, law enforcement may or may not be able to or be interested in protecting your client’s family members abroad. 68 Example: Cristian is 17 years old. He tells you as his attorney that although he has been able to run away from his stepfather who was forcing him to work, he is conflicted about whether or not he wants to report his stepfather to the police. He is trying to maintain a relationship with his mother, who is still living with his stepfather and has his passport and important documents. Since he is still considered a minor under Honduran law until he is 21 years old, he cannot obtain a new passport on his own. He is also afraid that if he reports his stepfather to the police, child protective services will take his younger brothers away. But he is also concerned that maybe his stepfather will also start to make his younger brother work now that he has run away. He decides that for now he does not want to report his case to the authorities, but will try to maintain a good relationship with his mother from a distance and maintain contact with his younger brothers. He wants to monitor the situation and decides that if there is any threat or worry that his younger brother is being forced to work, he will reconsider reporting his case to the authorities. B.

Compliance with reasonable requests made by law enforcement for applicants not trafficked as minors

If the T visa applicant was trafficked when they were 18 years of age or older, they must demonstrate that they complied with any reasonable requests for assistance made by law enforcement officials regarding the investigation or prosecution of the trafficking. 69 If your client was trafficked as a minor but has chosen to or has already been cooperating with law enforcement, it does not hurt to note this in the T visa application. The “reasonableness” of the request “depends on the totality of the circumstances.” A nonexhaustive list of factors to consider is set forth in 8 CFR § 214.11(h)(2). Evidence of cooperation may include any of the following: an LEA endorsement (Form I-914 Supplement B); documentation of a grant of CP; or any other evidence, including but not limited to police reports, 911 call transcripts, business cards from law enforcement, printed emails from interaction or information reporting the case to law enforcement (preferably with a written response from law enforcement confirming receipt of the report or an interview date with the trafficking survivor), and affidavits from the trafficking survivors, witnesses, or attorney or advocate who assisted with the reporting to law enforcement. 70 For those who do not fall under the exception and were not trafficked as minors, at a bare minimum, the applicant needs to show that they have reported the trafficking crimes to some type of law enforcement. 71 Regardless of whether or not law enforcement considers your client a trafficking survivor, the requirement is to report and cooperate with law enforcement. This means that even if law enforcement does not 68

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If your client does decide to cooperate and work with law enforcement, strategies on what agency to report the case to, how to negotiate parallel legal processes, and other tips can be found in Ivy C. Lee, Lynette M. Parker & Cindy C. Liou, Representing Survivors of Human Trafficking: A Promising Practice Handbook, 2nd Ed. (ILRC, 2013). 69 8 CFR § 214.11(h). 70 8 CFR § 214.11(h)(3). 71 8 CFR § 214.11(h)(1).

consider your client a trafficking survivor, your client may still be eligible to apply for a T visa if they reported the trafficking and cooperated with law enforcement. PRACTICE POINTER: To protect your client and maintain consistency, it is best that the attorney directly facilitates all communication between the client and law enforcement, including requests for CP and Form I-914 Supplement B and reports of the trafficking incident. Do not include overly factual details of your client’s case in written form to law enforcement. This can be retraumatizing for the client to have to explain, and it may even hurt the client legally because it may be inconsistent with information they have or will present in conjunction with any related criminal or civil investigation. Revised regulations issued in 2016 expanded the definition of a law enforcement agency to include a “Federal, State, or local law enforcement agency, prosecutor, judge, labor agency, children’s protective services agency, or other authority that has the responsibility and authority for the detection, investigation, and/or prosecution of severe forms of trafficking in persons.” 72 In addition to local, state, and federal criminal law enforcement, it is important to consider other agencies that may qualify as law enforcement where your client can report the trafficking, particularly civil law enforcement agencies who may be able to “detect” the crime of trafficking. 73 For example, in the past, T visas have been granted on the basis of reporting the case to the U.S. Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, and other state and local offices such as divisions within a state Attorney General’s office, the California Department of Labor Standards Enforcement, California Department of Fair Employment and Housing, and New York Department of Labor. If the agency only has an articulated U visa certification policy but not a T visa certification policy, practitioners have pointed out that the list of qualifying criminal activities for U visas include involuntary servitude, peonage, and trafficking, which are all related and included within the definition of the crime of “a severe form of trafficking” as required for T visas. As a result, some practitioners have argued successfully that certain certifying agencies for purposes of the U visa should also be able to certify for T visas. The easiest way to demonstrate that a trafficking survivor has cooperated with law enforcement is the Form I-914 Supplement B Law Enforcement Agency endorsement form or evidence of CP. Form I-914 Supplement B is a certification form found at www.uscis.gov. However, unlike the Form I-918 Supplement B Law Enforcement Agency for the U visa, the Form I-914 Supplement

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8 CFR § 214.11(a). The regulations further specify: “Federal LEAs include but are not limited to the following: U.S. Attorneys’ Offices, Civil Rights Division, Criminal Division, U.S. Marshals Service, Federal Bureau of Investigation (Department of Justice); U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); Diplomatic Security Service (Department of State); and Department of Labor.” Id. 73 Department of Homeland Security regulations at (8 CFR § 214.14(a)(2)) expressly list certain federal law enforcement agencies that may certify U visa applications, recognizing that investigators from civil agencies such as the Department of Labor may “detect” evidence of qualifying criminal activity during the course of investigating violations of workplace laws. The Department of Labor’s authority to complete U visa certifications (Form I-918, Supplement B) is based on its role as a law enforcement agency that has detected the crimes.

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B is not a mandatory part of the T visa application. 74 It is thus important to remember that many T visa applications have been submitted and approved without CP or a Form I-914 Supplement B. In lieu of submitting a Form I-914 Supplement B, you can include other evidence to satisfy this requirement. 75 At the very least, you will need to include your client’s declaration, stating when and to whom they reported their case, that they have complied with any reasonable requests for assistance, and if the crime was not previously reported, the reasons they did not previously do so. Other types of evidence may include: emails of correspondence between the applicant or their attorney with law enforcement, photocopies of business cards of law enforcement agencies, a record of the attorney’s telephone calls, a copy of the attorney’s faxes, declaration by the attorney of interactions and efforts to cooperate with law enforcement, declarations by case managers and other witnesses of efforts to cooperate with law enforcement, police reports, and call logs by your client to 911. Remember to consider these other forms of evidence of your client’s cooperation because if your client has reported their case and complied with reasonable requests for assistance with law enforcement, they are eligible to submit the T visa application even without a Form I914 Supplement B. PRACTICE POINTER: Practitioners have found that it is important to have evidence demonstrating that you reported the case to law enforcement. Therefore, it is best to work with law enforcement and ask them to confirm receipt of your emails and requests for CP and/or a Form I-914 Supplement B in short written responses, such as “I confirm that I have received your requests and reporting of your client’s case.” Do not confuse the legal standard on this element— the legal standard is to demonstrate that your adult client reported their case and/or cooperated with law enforcement, not whether law enforcement actually deems your client to be a trafficking survivor. You should try to work with law enforcement to avoid generating any documentation that might confuse USCIS on this legal standard. For example, it is helpful to explain to law enforcement why statements like “I do not think your client is a trafficking victim” or “We will not be issuing a Supplement B” is not helpful via email or written form, and ask for them to inform you of their decision by telephone. You do not need to wait for a criminal investigation or prosecution to be complete before submitting the T visa application. While there may be benefits for your working relationship with law enforcement or other particular reasons for your client to do so, it is not required. You and your client should make a judgment together on whether and when to submit the T visa application. C.

Trauma exception to reporting case to law enforcement

The Violence Against Women Act’s (“VAWA”) Reauthorization in 2005 created another exception for T visa applicants to the requirement of reporting their case to law enforcement. This exception exempts an applicant who can establish that physical or psychological trauma impedes her ability to cooperate with law enforcement.76 The applicant must submit evidence of the trauma, which may include a statement describing the trauma and “any other credible 8 CFR § 214.11(d)(3)(i). 8 CFR § 214.11(h)(3). 76 See INA § 101(a)(15)(T)(iii); 8 USC § 1101(a)(15)(T)(iii); 8 CFR § 214.11(h)(4)(i). 75

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evidence.” 77 Other credible evidence may include: “a signed statement from a qualified professional, such as a medical professional, social worker, or victim advocate, who attests to the victim’s mental state, and medical, psychological, or other records which are relevant to the trauma.” 78 Example: Gina was trafficked when she was 19 years old and suffered regular and brutal beatings by her traffickers. In addition to repeated sexual assault, she witnessed her traffickers murder multiple people, including burning a girl alive for trying to escape. The few times you talk to Gina about her trafficking situation, she starts to cry uncontrollably and tear her hair out. You also find out that a few weeks ago, she tried to commit suicide due to the trauma from her trafficking. She is adamant that she does not want to talk to law enforcement because her traffickers have told her that they’ll kill her and her family if she says anything to anyone. You work with Gina’s psychologist to generate a detailed report about her trauma and how interviews and discussion with law enforcement would deeply traumatize her further and perhaps trigger more suicide attempts. You then submit this report with her T visa application. § 15.7 Element Four: Extreme Hardship upon Removal For the final and fourth element, a T visa applicant must also establish that they would suffer “extreme hardship involving unusual and severe harm upon removal” 79 if they were to return to the home country. This standard is higher than extreme hardship as described in 8 CFR § 240.58. 80 “Factors that may be considered in evaluating whether removal would result in extreme hardship involving unusual and severe harm should include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons.” 81 As “hardship” is a factor that is required to show eligibility for many forms of immigration relief, such as cancellation of removal and many waivers of grounds of inadmissibility, it is important to consider guidance around demonstrating hardship in other contexts (although the degree of hardship required for each form of relief varies). Like in other forms of relief requiring hardship, the hardship determination for the T visa is highly discretionary. There is no one particular factor that guarantees satisfaction of this requirement. 82 Please see the ILRC’s manual, Hardship in Immigration Law (ILRC, 2017), for an in-depth analysis of how to prove hardship. In order to prove hardship for a T visa, your client will need to explain in detail in their declaration what hardship they will suffer if removed. They should also submit corroborating evidence of the hardship they would suffer, which could include additional affidavits or records from other witnesses, law enforcement, medical personnel, mental health personnel, experts, case managers, social workers, or family members. Other evidence may also include academic

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Id. Id. 79 8 CFR § 214.11(i). 80 8 CFR § 214.11(i)(1). 81 8 CFR § 214.11(i)(2). 82 Id.

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literature, such as articles on the difficulties trafficking survivors face re-integrating, news reports, and the U.S. Department of State’s annual Trafficking in Persons reports. The regulations include the following non-exhaustive list of potential hardship factors. 83 DHS has indicated that minors are not exempt from the extreme hardship requirement simply by virtue of being minors, 84 so while your client does not need to prove all of these factors, you should highlight as many as you can. •

Age, maturity and personal circumstances of the applicant. If your client is a minor or was trafficked as a minor, you should highlight the client’s young age. Are there other personal circumstances of your client that make them vulnerable? For example, are they illiterate, do they have disabilities, do they come from a home with violent parents, or were they sexually abused as a child?

•

Physical or psychological issues of the applicant that necessitate medical or psychological care not reasonably available in the foreign country. What are your client’s physical and psychological symptoms that are either related to the trafficking, or have been exacerbated by the trafficking? Is your client depressed, suffering anxiety, fear, nightmares, psychosomatic pains, unable to sleep, or angry? Does your client require physical therapy and/or treatment for injuries incurred on the job, or treatment for sexually transmitted diseases? Can your client afford to pay for medicine or treatment? Are there cultural issues, especially related to mental health treatment, that would prevent full treatment in the client’s home country? 85

•

Nature and extent of the physical and psychological consequences of the trafficking. How severe are the physical injuries and trauma your client has suffered? Is there a psychological evaluation, letter from a case manager, or statement from your client to support this?

•

Impact of the loss of access to the United States courts, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection. Is your client a potential victim-witness to a criminal case or a plaintiff or claimant in a civil legal case in the United States? Does your client have a protective order that would protect them here but without which they would be vulnerable again in their home country?

•

Reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant would be returned would penalize the applicant severely for having been trafficked. Is your client going to suffer any stigma or shame for having been trafficked, abused, or exploited? Are there stigmas around

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8 CFR § 214.11(i)(2). Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,277 (Dec. 19, 2016) (codified at 8 CFR pts. 212, 214, 245, and 274a). 85 Note that if your client has substance abuse issues or suicidal ideation and this has been noted in other documentation and records and revealed to USCIS, your client can explain its cause or exacerbation by the trafficking and the hardship they might experience in receiving treatment in the home country. You may also want to note if they are getting medical or mental health treatment or any plans to do so. 84

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those who do not economically contribute to the family? Do family dynamics create a situation that would be psychologically traumatic for your client to return to? What are the expectations of youth abroad, especially young women? •

Likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect the applicant. Did your client initially leave the home country because of poverty, discrimination, corruption, violence, or incompetence of foreign authorities to protect them in the first place? Would your client face these same push factors upon return to the home country? How capable and willing are foreign authorities to help your client?

•

Likelihood of harm that the trafficker or others acting on the trafficker’s behalf would cause the applicant. Does your client fear retaliation? Does your client’s trafficker know where your client lives or how to find them in the home country? Does the trafficker have connections that would make retaliation against your client very easy? Does the trafficker have connections to criminal organizations overseas? Would anyone be able to protect your client? Have there been any recent threats made to your client or about them?

•

Likelihood that the applicant’s individual safety would be seriously threatened by the existence of civil unrest or armed conflict. Did your client leave their country because they were scared of the government or organized crime? Example: Janie is arrested in her home country for telling a friend that she is a lesbian. Without any supportive family members, she decided to take an offer to travel abroad to study. Instead, she was forced to work at a bar and pressured to provide sexual services for customers. She tells you that if she were to return home, she would probably be arrested again by the police, and that her family does not want her around anyways. She is worried that everyone in her village knows that she is a lesbian and she will be bullied at school and unable to get a job. She has also recently been diagnosed as HIV positive and is receiving intensive therapy. You should work with Janie to document the hardship that she would suffer if she were removed on account of her sexual orientation, social isolation, HIV status, inability to receive medical and mental health treatment in her home country, and potential persecution by the police. Example: Jorge, who is from a border town in Mexico, tells you that he is afraid to go home because his traffickers have threatened to kill him if he doesn’t work for them again. They went to his mother’s house three weeks ago and smashed the windows looking for him. He scoffs at your question about whether the police in Mexico will help him. You should work with Jorge to document the hardship he would suffer if he were removed to Mexico on account of the likelihood of re-victimization, the inability or unwillingness of Mexican authorities to help him, and the likelihood of being retrafficked.

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suffer on account of her removal, think of a way to frame that hardship as hardship to the applicant. If your client also has children, T visa applicants may also seek to support the extreme hardship by providing evidence of the “traditional” and “VAWA related” types of extreme hardship typically used in VAWA suspension of deportation and VAWA cancellation of removal cases. The regulations also specify that “current or future economic detriment, or the lack of, or disruption to, social or economic opportunities” is insufficient by itself to establish extreme hardship involving unusual and severe harm. 87 If your client mentions economic harm, think of a way that the economic harm might be related to or cause a type of hardship that will be given more weight by the adjudicator. Example: Franne says that she will not be able to get a job if she is removed to her home country. When you ask for details, Franne says that without a job, she will not be able to afford her daily medication for her thyroid condition. She would also have to take lowpaying jobs again doing the same kind of work she was initially trafficked into. In this way, the economic hardship that Franne faces is also a medical hardship. Franne’s T visa application should document her thyroid condition and the ways that she would suffer medically without the financial means to pay for her thyroid medication. It should also highlight that if removed, she would be placed back in a similar situation and could be retrafficked. § 15.8 Applying for Waivers for Inadmissibility The regulations require that a T visa applicant be admissible to the United States. This means that every T visa that is filed requires an assessment of whether or not a Form I-192 should be filed with it to waive any grounds of inadmissibility. The regulations governing waivers of inadmissibility for T visa applicants are found at 8 CFR § 212.16. Trafficking survivors are specifically exempted from two admissibility grounds: (1) INA § 212(a)(4), 88 likely to become a public charge; and (2) INA § 212(a)(9)(B), unlawful presence. 89 In addition to these exempted grounds, trafficking survivors are eligible for special waivers of other inadmissibility grounds, including all of the health-related grounds and all other inadmissibility grounds “caused by or incident” to the trafficking victimization if it is in the national interest to do so. The only grounds that cannot be waived are the security and related grounds, international abductions, and renunciation of citizenship by a former citizen to avoid taxation. 90 When applicants trigger criminal grounds of inadmissibility, USCIS will consider the number and seriousness of the criminal offenses and convictions. 91 In cases involving “violent or dangerous crimes,” USCIS will only grant a waiver in extraordinary circumstances, unless the criminal activities were caused by, or incident to, the trafficking. 92 87

8 CFR § 214.11(i)(1). INA § 212(d)(13)(A). 89 INA § 212(a)(9)(B)(iii)(V), added by Violence Against Women Act 2005 § 805 [hereinafter VAWA and subsequent year of reauthorization]. 90 INA § 212(d)(13). 91 8 CFR 212.16(b)(3). 92 Id. 88

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Chapter 1 discusses grounds of inadmissibility and deportability, and Chapter 17 discusses various immigration consequences of juvenile delinquency and crime. There are many different grounds of inadmissibility that may be triggered in trafficking cases. For any health-related grounds, the applicant can be granted a waiver if it is in the national interest to do so. For all other waivable grounds, what is important is to explain how these grounds of inadmissibility that have been triggered are related to the trafficking, and if not, why USCIS should grant the waiver anyway. You should match the Form I-192 application to the corresponding questions on the Form I-914: For example, if you answer the questions affirmatively about having committed prostitution in the past on the Form I-914, you should request a waiver of inadmissibility on the grounds of prostitution in your Form I-192. Common grounds of inadmissibility and scenarios include: •

Misrepresentation to procure a visa, other documentation, or admission into the United States or other immigration benefit. 93 If your client arrived in the United States and was inspected by an official, you need to ask these questions carefully. You should ask your client who instructed them on how to answer questions or fill out forms to obtain a visa or entry to the United States. You should also go over any interviews that your client has had with any consulate, embassy, border officials, and other immigration officials. Highlight any involvement the trafficker had in recruiting, obtaining, paying, coaching or doing anything to encourage your client to enter the United States through these means. This includes what your client was told to say to obtain a tourist or student visa, or regarding her age, relationship to others, and purpose in coming to the United States. It is the intent to defraud or mislead the U.S. government that can constitute misrepresentation. Example: Jenny’s trafficker told her to tell the consulate official that she was 19 years old, and that she was going to Florida to visit her godmother for just one month. Her trafficker also sent her some money to make some fake papers to say that she was 19 years old even though she was really 17 years old. Her trafficker said that she could come on a tourist visa and work for her for six months, earn some money, and go back home. Jenny was able to obtain a tourist visa to the United States. Jenny is inadmissible for misrepresenting her age and the purpose of her trip. Her legal representative should document how her misrepresentation was related to the trafficking she suffered.

•

False claim to U.S. citizenship. 94 This ground is triggered whenever a person claims to be a U.S. citizen to procure an immigration benefit. Example: Nino was told by his uncle to present his cousin Roberto’s U.S. passport at the border. Nino was able to get into the United States and was then trafficked by his uncle. Nino is inadmissible for making a false claim. His legal representative should document how his false claim was related to the trafficking he suffered.

•

Prostitution. 95 Minors involved with commercial sex acts are automatically considered victims of a severe form of human trafficking. However, if you are working with

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INA § 212(a)(6)(C)(i). INA § 212(a)(6)(C)(ii). 95 INA § 212(a)(2)(D).

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someone who is no longer a minor, remember that not all incidences of prostitution are considered trafficking. Nevertheless, prostitution and trafficking can be interrelated to one another. Example: Belinda, who is now 19 years old, tells you that she first started prostituting herself when she was 15 years old to make money to live, eat, and also fund some medical procedures in her transitioning to be a woman. She tells you that when she was 17 years old, her boyfriend pimped her out and threatened to dump her or deport her when she didn’t hand over enough money. She was able to leave that situation. Since then, she has prostituted herself three or four times when she was really low on money, but tells you that she “doesn’t really do that anymore.” In preparing her T visa, her legal representative should explain how she was initially sex trafficked as a minor, and also describe how subsequent acts of prostitution were related to the trauma and lack of resources from her past sex trafficking. Her legal advocate should also advise Belinda that should she, post filing her T visa, continue to engage in any prostitution, she will greatly jeopardize her ability to obtain a T visa and later adjust her status to become a lawful permanent resident. PRACTICE POINTER: You should advise your client that any T visa recipient who engaged in prostitution or commercialized vice after obtaining such status is statutorily precluded from adjustment of status under INA § 245(l) for failing to establish good moral character. The person is not barred if the prostitution was before lawful admission as a T visa holder. 96 •

Drug trafficking. 97 This includes the sale, possession for sale, cultivation, manufacture, transportation, delivery, and distribution of drugs. Example: Juan was recruited by a drug cartel to transport drugs across the U.S.-Mexico border. After he did it one time, he decided that he was going to quit. Instead, by gunpoint, he was made to carry drugs across the border a total of 12 times, during which he was arrested and convicted of drug trafficking twice and deported five times. Juan, finally on the thirteenth trip, is brought into HHS custody in a shelter in Northern California. Away from the border, Juan finally tells a social worker that he was forced to work for the cartel. It is very important for the legal representative to obtain criminal records and explain how Juan was coerced and forced to traffic drugs, and that he was involuntarily pressed into servitude as a drug mule. The legal representative should stress that any and all criminal arrests and convictions related to drug trafficking are a direct result of his own trafficking. She should also explain that since Juan disclosed his trafficking situation, he has not engaged in any illegal activities, and that sending him back to the border will merely allow the cartels either to kill him or force him to work for them again as a drug mule.

•

Drug abuse or addiction. 98 This is a health-related ground of inadmissibility that can be waived even if it was not related to the trafficking. Nevertheless, it can be helpful to show

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 Fed. Reg. 75540, 75542 (Dec. 12, 2008). 97 INA § 212(a)(2)(C).

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that the drug abuse or addiction is related to the trafficking, especially if the drug abuse or addiction may have caused other grounds of inadmissibility. Many people use drugs to self-soothe after experiencing trauma, or are induced into drug use as part of a coercive method to keep them in the trafficking situation. Other times their drug addiction, which may stem from other traumas, makes them susceptible to the trafficking in the first place. Example: Sara’s boyfriend began pimping her out when she was 16 years old. When she didn’t want to do it anymore, he threatened to tell everyone that she was a “ho.” He threatened to break up with her and warned her that his buddies in the gang were depending on her to help earn them money. To ease her into the work, he began getting her drunk and high on meth before sending her out on tricks. Her addiction got even worse after a customer beat her up badly and knocked out her teeth. She couldn’t afford to get dental care and the drugs helped make her feel better. After she was able to escape her boyfriend, she relapsed with meth a few times. The legal representative should discuss how her sex trafficking situation directly caused her meth addiction, subsequent arrests, and relapses with meth. They should also describe the treatment she is receiving for her addiction in addition to any other kind of medical and mental health counseling. •

Behavior showing a physical or mental condition that poses a current threat to self or others.99 Sometimes this is exhibited with youth in their interactions with others or suicidal ideation. You may want to indicate how this is related to trauma suffered from the trafficking situation. You should show that your client is no longer engaging in threatening behavior to others, and that they have subsequently sought, are receiving, or will be receiving services to get help from these self-threatening physical or mental conditions. You will want to read medical records, psychological exams, and detention records to screen for these issues and address them pro-actively in the application. Example: You are reading Wendy’s psychological evaluation and police reports that you plan to submit with her T visa application when the numbers “5150” catch your eye. “5150” is in reference to a California involuntary psychiatric hold authorizing involuntary confinement of someone suspected to be a danger to themselves or others. You talk to Wendy and she explains that her aunt, who has been trying to force her into prostitution and making her do domestic work around the house, got into a big fight with her when Wendy tried to run away. Wendy was very upset and emotional and said, “If I knew you were going to treat me so badly, I wish I would just die!” Her aunt called the police and told them that Wendy threatened to kill herself, even though Wendy tells you she never intended to. The legal representative should explain that Wendy did not have any intention to harm herself, the confusion surrounding why she was placed on psychiatric hold, how she is still receiving mental health treatment from the trauma she suffered from being trafficked, and that she has no intention of hurting herself right now or in the future.

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INA § 212(a)(1)(A)(iv). INA § 212(a)(1)(A)(iii).

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§ 15.9 Trauma from Trafficking Minor trafficking survivors often are even less able than adult survivors to self-identify and have difficulty providing information about the circumstances of their trafficking. 100 Minors experience psychological traumatization at a deeper level than many adults and therefore may find it even harder than adults to confide in others regarding painful and intimate events. Those trafficked at a young age may have also missed certain developmental milestones that have gone undetected, and can have physical, cognitive, social, and emotional delays. Cognitive deficits and learning disabilities experienced by minors may have been present before they were trafficked or could be a result of their trafficking. Learning how trauma has affected a minor client can: • • • • •

Help your client receive proper medical and mental health support; Describe the preexisting vulnerabilities a trafficker may have taken advantage of; Assist in documenting the way that force, fraud, or coercion was used to traffic your client; Explain what kinds of extreme hardship your client may suffer upon removal; and Assist in explaining grounds of inadmissibility and connecting it to the trafficking.

Many trafficking survivors suffer from physical health problems. These can be the direct result of physical injury or occur indirectly through stress-related illnesses. Given the impact of these trauma symptoms on the emotional and physical well-being of survivors, some trafficking survivors experience difficulties obtaining and holding down a job, paying bills, and reintegrating back into society. Some trafficking survivors, particularly those who have experienced sexual assault, may use alcohol and drugs to self-soothe and escape these emotional states. 101 Survivors of labor trafficking have a unique set of health risks due to the nature of their work, including the occupational hazards stemming from often dangerous or highly repetitive work. These health problems are often exacerbated by lack of appropriate protective gear and the workers’ living conditions. The psychological impacts of both physical and non-physical forms of coercion have long been studied. Psychologists have analyzed the effects of trauma on human trafficking survivors by working directly with them and have analogized trafficking conditions to those of prisoners of war, detainees, torture survivors, survivors of coercive interrogation techniques, hostages, political prisoners, victims of gang violence, domestic violence survivors, and sexual assault survivors. 102 In many trafficking cases, the trauma from the trafficking may result in PostTraumatic Stress Disorder (PTSD), a mental health diagnostic category created originally for war combatants and disaster survivors but which also applies to trafficking survivors. Characterizing symptoms include intrusive re-experiencing of the trauma (e.g., flashbacks, nightmares, and 100

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Eva Klain & Amanda Kloer, Meeting the Legal Needs of Child Trafficking Victims: An Introduction for Children’s Attorneys and Advocates, American Bar Association Commission, 7 (2009), https://www.americanbar.org/content/dam/aba/directories/pro_bono_clearinghouse/8603.authcheckdam.pdf. 101 Heather J. Clawson, Amy Salomon, & Lisa Goldblatt Grace, HHS, Treating the Hidden Wounds: Trauma Treatment and Mental Health Recovery for Victims of Human Trafficking, http://aspe.hhs.gov/hsp/07/humantrafficking/treating/ib.pdf. 102 Dr. Elizabeth Hopper & Dr. Jose Hidalgo, Invisible Chains: Psychological Coercion of Human Trafficking Victims, 1 Intercultural Hum. Rts. L. Rev. 185, 191 (2006).

intrusive thoughts), avoidance or numbing of trauma-related, or trauma-triggering, stimuli (e.g., avoiding certain places, people, and situations), and hyper arousal (e.g., heightened startle response, and inability to concentrate). These post-trauma responses may contribute to problems with functioning, including difficulties controlling emotions, sudden outbursts of anger or selfmutilation, difficulties concentrating, suicidal behaviors, alterations in consciousness (dissociation), and increased risk taking. See the ILRC’s manual Representing Survivors of Human Trafficking (ILRC, 2013) for additional physical and psychological forms of abuse and impacts that human trafficking survivors may experience that legal representatives should keep in mind when forming arguments for the T visa application and assessing the needs of their clients. § 15.10 Filing the T Visa T visa applicants should keep a copy of everything they submit to DHS including the application, accompanying documents, and the proof of mailing. DHS requires originals of the applicant’s declaration, Form I-914 Supplement B (if included), and all of the other forms. However, for all other documents, you should submit only copies, and not original documents. This applies to birth certificates, legal documents, and photographs. Note that if you receive a Request for Evidence (RFE), you should send back the original RFE, if you are sending an RFE response (see § 15.12). A few weeks after mailing the application and fee waiver, you should receive a Notice of Receipt in the mail for the Form I-914 (and Form I-192 if filed). The filing receipt “Notice of Action” from USCIS will contain a 13-digit “receipt number” starting with “EAC.” Once you have the receipt number, you may go to the USCIS website (www.uscis.gov), enter the receipt number in the designated field, and check the status of your client’s case. You should also receive an ASC Appointment Notice for biometrics for your client’s fingerprints to be taken. Failure to have your client’s fingerprints taken may result in denial of the T visa application. 103 If you have any casespecific questions about a pending case, you can send them via email to [email protected]. Processing time information can be found online at https://egov.uscis.gov/cris/processTimesDisplay.do. § 15.11 Approval of T Visa If the T visa is approved, a I-797 Notice of Action approval will be sent to your client with a new I-94 Arrival/Departure record on the bottom, in addition to an employment authorization card, and Form I-192 approval (as applicable). If your client does not have a Certification Letter for benefits yet, contact HHS at [email protected] to request it and work with a social worker or case manager to help your client trigger these benefits as soon as possible.

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PRACTICE POINTER: You should strongly advise your client against traveling while applying for a T visa and after obtaining a T visa. Traveling while a T visa is pending may hurt your client’s ability to prove the element of physical presence in the United States on account of trafficking and to show that they would suffer extreme hardship upon removal. After obtaining a T visa, T-1 recipients can only travel using Form I-131 Advance Parole. Even with advance parole, travel after receiving the T visa can still: 1) break continuous presence required for adjustment of status 103

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(see § 15.15), and 2) trigger a three or ten-year bar to future immigration benefits in the United States if your client had previously accrued “unlawful presence” upon reentry into the United States (see Chapter 1). 104 § 15.12 Responding to Requests for Evidence and Notices of Intent to Deny A.

Evidentiary standards

Once USCIS receives a T visa application, it can approve it, deny it, or send the applicant a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). 105 If USCIS sends an RFE or NOID, you should respond and advocate for why your client should be granted a T visa. In T visa cases, common RFEs include USCIS questioning whether the applicant is a victim of a severe form of trafficking, and asking for other evidence, such as a Form I-914 Supplement B. In addition to working with your client to write a new declaration, or provide more evidence for the RFE response, you should keep in mind the evidentiary standards for the T visa application in order to advocate best for your client. Remember that your client need only prove by a preponderance of evidence that they are a victim of a severe form of human trafficking. You should advocate with USCIS if you think it is demanding in an RFE or NOID something higher than this standard. Preponderance of the evidence is demonstrating that something is “probably true”—it is not proof beyond a reasonable doubt. 106 “Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘more likely than not’ or ‘probably’ true, the applicant has satisfied the standard of proof.” 107 It may be helpful to argue in your RFE or NOID response that your client does not have to dispel all doubts as to whether they are a victim of a severe form of human trafficking; they only need to establish that it was probably true that they are a victim of a severe form of human trafficking. Sometimes USCIS may issue RFEs and NOIDs that ask for forms of evidence that are not required to establish your client’s eligibility for a T visa, such as specific evidence of mental health counseling. When you respond to an RFE or NOID, you may wish to emphasize that Congress has extended the “any credible evidence” provisions to every type of VAWA case, 104

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Individuals who are unlawfully present for 180 days and leave the United States are barred for three years from any U.S. immigrant or non-immigrant benefit. Individuals who are unlawfully present for a year or more and leave the United States are barred for ten years from any U.S. immigrant or non-immigrant benefit. INA § 212 (a)(9)(B). 105 On July 13, 2018, USCIS issued a new Policy Memorandum, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_N OIDs_FINAL2.pdf. This guidance makes it easier for adjudicators to deny applications without first providing the applicant an opportunity to respond to the adjudicator’s concerns. Prior to this guidance, USCIS’s adjudicators were instructed to “issue an RFE unless there was ‘no possibility’ that the deficiency could be cured by submission of additional evidence.” Now, officers may deny applications if there is no legal basis for the application or if the officer determines the applicant “failed to establish eligibility based on lack of required initial evidence.” Id. 106 Matter of E-M-, 20 I & N Dec. 77, 79-80 (BIA 1989). 107 Matter of Chawathe, 25 I & N Dec. 369, 376 (AAO 2010).

including T visas. 108 VAWA 1994 recognized that survivors of abuse, like trafficking survivors, often lack access to evidence that is in their abuser’s control and that immigrant survivors may lack specific forms of corroborative evidence of abuse.109 An INS General Counsel memo states: “A self-petition may not be denied for failure to submit particular evidence. It may only be denied on evidentiary grounds if the evidence that was submitted is not credible or otherwise fails to establish eligibility.” 110 You can use this language to argue that DHS’s interpretation must give the statute Congress’s intended ameliorative effect. 111 B.

Credibility concerns

Trafficking survivors in particular face many questions about their credibility. Much of this stems from the lack of understanding of what trafficking is, and how it comes about. Like domestic violence and other forms of abuse, there is a myth that absent physical abuse, the survivors should be able to leave their situations easily. As discussed in Chapter 2 and below, there are many reasons those trafficked as youth have difficulties in communicating their trafficking situation. Many trafficking survivors, such as in drug trafficking cases, have been subject to horrible conditions, and have come into unwanted contact with authorities before. There may be many conflicting records with U.S. Customs Border Patrol, the U.S. Department of State, USCIS, police, ORR, and other authorities. It is important to file a Freedom of Information Act (FOIA) with USCIS and with any other government agencies and a release of information for ORR as soon possible. See Appendix AA for a sample FOIA with EOIR and Appendix R for a sample FOIA with USCIS. However, be aware that there has been an increase in issuances of RFEs asking applicants to explain inconsistencies in their immigration records, even in cases where the results of FOIA requests do not include these documents that may contain conflicting statements. This leads to applicants blindly defending themselves from purportedly inconsistent statements that they have not been able to review. USCIS’s position and case law 112 indicates that USCIS simply needs to describe the derogatory information, rather than provide the petitioner with a copy of the underlying documents that allegedly contain conflicting or derogatory information.

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See H.R. REP. NO. 103-395, at 38 (1993); VAWA 1994 § 40702, 8 USC § 1186a(c)(4)(C); INA § 216(c)(4), 8 USC § 1186a(c)(4); see also 8 CFR § 214.11(d)(5). 109 See generally VAWA 1994, Pub. L. No. 103-322, tit. IV, § 40701(a)(3), 40702(a) and 40703(b), 108 Stat. 1955 (codified as amended at 8 USC § 1186a(c)(4)(C)); TVPA. 110 Memorandum from Paul W. Virtue, AAO, “Extreme Hardship” and Documentary Requirements Involving Battered Spouses and Children (Oct. 16, 1998), at 7–8, reprinted in 1 INS and DOJ Legal Opinions § 98-14 (Jan. 25, 1999). 111 There is a “general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion … particularly so in the immigration context where doubts are to be resolved in favor of the alien.” Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003), superseded by statute as stated in Johnson v. AG of the United States, 602 F.3d 508, 512 (3rd Cir. 2010). 112 See In re: Payla, No. A077 171 491, 2009 WL 3713183, at *1 (BIA Oct. 23, 2009) (finding that the petitioner was afforded due process as the NOID received “apprised her of the derogatory evidence in the record and the potential grounds upon which the government would rely to deny the visa petition”); see also Matter of Obaigbena, 19 I & N Dec. 533, 537 (BIA 2015) (finding sufficient that “the notice of intention to deny the visa petition included extensive investigative findings and factual allegations”).

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Nevertheless, in any instance where this may come up, it is important to demand a copy of the underlying documents and cite to the regulations governing RFEs at 8 CFR 103.2(b)(16)(i). PRACTICE POINTER: If you are working with an unaccompanied child, a child who is in removal proceedings, or a child who may have lived in multiple locations in the United States, it is prudent to immediately file FOIAs with USCIS, U.S. Customs and Border Protection, U.S. Department of State, and to request files from ORR. If the child is in removal proceedings, be sure to indicate that, so as to expedite the FOIA request. It is possible that you may have to file a T visa or other immigration filings for your client before you receive these responses; in that case, indicate on the cover letter that FOIA requests have been made, and leave room for error in your filings to correct for information that may come forth from the FOIA requests. If your client has a criminal history, you may want to do criminal background checks to get a clear picture of what information is out there. Anything that USCIS can access, such as CBP and ORR records, needs to be taken into account. Example: Jorge has been forced to carry drugs for the Sinaloa Cartel eight times now. He has been caught three times and deported twice by U.S. Customs and Border Protection (CBP). The Sinaloa Cartel members threatened to kill him and his family if he said anything to the authorities. They told him they have many insiders in the CBP and will know if he says anything. The first time he was caught, he was arrested alongside one of the older boys named Jose, and kept in a very cold room. When CBP conducted their credible fear interview with him, they asked him if anyone was forcing him to work. Jorge, scared, just said no. He was prosecuted and deported back to Mexico, where his traffickers came to pick him up to force him to work again. The second time Jorge was caught, Jose made Jorge go ahead first into the desert with a smaller bag of drugs as a sacrificial lamb for CBP to catch him. Jorge saw a CBP officer allow Jose pass into Arizona with the larger bag of drugs. Again, Jorge dared not to say anything to the CBP. Jorge was sent to an ORR facility the third time he was caught. Away from the border, he finally recounted what happened to him, and he filed a T visa. USCIS issued an RFE, questioning his credibility because the past records of credible fear assessments at the border by CBP conflict with his T visa declaration. His attorney helps him explain his fear of the Sinaloa Cartel, Jose, and the CBP, and the conditions in which he was held and interviewed. C.

Denial of T visa

In the past, denials of T visa petitions generally did not trigger referral to deportation proceedings. However, very recently, USCIS issued updated guidance on when it will refer a person to ICE or issue a Notice to Appear (the charging document that begins a case in immigration court). 113 Advocates must consult this memorandum in evaluating the risk of referral

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113 USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens PM-602-0050.1 (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. On July 30, 2018, USCIS announced that implementation of the USCIS NTA Memo is postponed until USCIS components “create or update

in individual cases. Notably, this new guidance now requires USCIS to issue an NTA in any case in which, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” 114 If you wish to appeal the denial of a T visa, you will need to file a Form I-290B Notice of Appeal with the Administrative Appeals Office (AAO) for the Form I-914. 115 Make sure that if needed, you refile for a Form I-192 to be approved. Prior to an appeal, you might want to try some other options. You can ask for “Supervisor Review” of a denial, and outline in a letter brief why the denial is incorrect. For Motions to Reopen you will need to include a fee, which you can request to have waived by completing a fee waiver. You may also want to reconsider if there is a basis to apply for another T visa altogether, or if a U visa, VAWA, asylum, or SIJS are options. § 15.13 Removal Proceedings and Final Orders of Removal T visas are not adjudicated in immigration court, but by USCIS. If your client is in removal proceedings, you will need to ask the immigration judge to continue the case to allow time for the filing and adjudication of the T visa. Some practitioners have been successful in filing motions to administratively close their client’s case while the T visa is pending adjudication. 116 If your client’s T visa is granted, you will want to move to terminate the removal proceedings. 117 See Appendix N for a sample motion to terminate. Filing for a T visa does not automatically prevent DHS from removing your client. If you are aware of an outstanding order of removal or if your client is in detention and has been or may be ordered removed, you should file a Request to Stay Removal (usually with your local ICE office) and an expedited adjudication or prima facie determination from USCIS on the T visa application. 118 See Appendix BB for a sample stay request. If USCIS determines that an application is bona fide it automatically stays the execution of any final order of removal, deportation, or exclusion. 119

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operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum. At the time of this writing, it is thus unclear when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same. 114 Id. at 7. 115 The procedures for the appeal are set forth in 8 CFR § 103.3. 116 8 CFR § 1214.2(a). Note that in the Attorney General’s recent decision, Matter of Castro-Tum, 27 I & N Dec. 271 (A.G. 2018), he ruled that immigration judges lack the authority to administratively close cases, except in certain specific circumstances. However, the decision notes that because a previous regulation (8 CFR § 1214.2(a)) permits administrative closure while a respondent is pursuing a T visa with USCIS, T visas present just such a specific circumstance. 117 8 CFR § 214.11(d)(8)–(9). 118 INA § 237(d)(1); 8 CFR § 214.11(e)(3). 119 8 CFR § 214.11(e)(3).

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PRACTICE POINTER: If you are worried that your client is at risk of being deported despite the filing of the T visa, you may also want to advocate with ICE agents in the Human Trafficking and Smuggling group within Homeland Security Investigations of ICE. 120 Let them know that your client has been identified to be a human trafficking survivor and that they are at risk of removal. You should counsel your client that if you contact law enforcement, they may request to interview your client. You should accompany your client to all of these law enforcement interviews and meetings. If you have already filed the T visa, you may want to share portions of it with ICE so that they do not delay adjudication by requesting your client’s Alien File. If you have not filed the T visa application, it is best not to share the draft T visa declaration and application and instead find other ways to share information and work with law enforcement without violating your attorney-client and work-product privileges. If your client has a final order of removal issued by DHS, the regulations explicitly state that if a T visa is granted, a final order “will be deemed canceled by operation of law as of the date of the USCIS approval of the application.” 121 If your client has a final order of removal issued by an immigration judge or the BIA and the T visa is granted, you should file a motion to reopen and to terminate proceedings. 122 You will want to contact the Office of Chief Counsel with a copy of the approval as a courtesy and to request that they either join in your motion or make no objection. Even if you receive no response from Chief Counsel, you can file your motion to ensure that your client’s immigration record is correctly updated with her new lawful status. § 15.14 Derivative Applications A.

Eligible family members

The principal applicant for T-1 nonimmigrant status may request eligible family members to be included in their application as derivative beneficiaries. The relationship must exist at the time of the filing of the T visa. 123 Family members implicated in the trafficking scheme may not apply for derivative status. 124 T visas for Immediate Family Members are as follows: 125 If you are:

Then you may file for your:

Under age 21,

• • • •

Spouse (T-2) Children (T-3) Parents (T-4) Unmarried siblings under age 18 (T-5)

Age 21 or older,

• •

Spouse (T-2) Children (T-3)

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To find local field offices, go to ICE, Homeland Security Investigation Principal Field Offices, http://www.ice.gov/contact/hsi. 121 8 CFR § 214.11(d)(9). 122 8 CFR § 214.11(d)(9). 123 8 CFR § 214.11(k)(4). 124 8 USC § 1154 (a)(1)(L) (2006). 125 8 CFR § 214.11(k)(1).

Any age, if your family member faces present danger of retaliation from your trafficking or cooperation with law enforcement 126 B.

• • •

Parents (T-4) Unmarried siblings under age 18 (T-5) Adult or minor children of a derivative beneficiary (T-6)

Family member dynamics

It can be extremely tricky to figure out how to properly assess a minor’s relationship to different family members. Nonetheless, this is important to your case to figure out what kind of legal relief a minor should apply for, and how the minor is going to be supported. It may also explain a minor’s mindset and how and why they were trafficked. If the relationship between the minor and family members is abusive or the family members are involved in the trafficking, you should assess whether or not it is more appropriate for the minor to apply for SIJS instead of a T visa. You should also consider whether your clients would benefit from having their family members obtain status through a derivative application, such as whether the clients would otherwise be responsible for supporting their younger siblings without additional adult support. These considerations for family petitions should be made early for T visa applicants, because unlike U visa applicants, there is no I-929 process to allow a T visa recipient who is adjusting status to simultaneously apply for family members who have never held a derivative T nonimmigrant visa to obtain lawful permanent residency. 127 Your client’s family is not involved in the trafficking. In many cases, family members may be completely uninvolved in the trafficking of the minor. Sometimes they can write support letters for the minor’s T visa application to corroborate facts and support the minor’s decision to stay in the United States. However, in these cases, it is important to assess whether the minor still may have suffered abuse and/or neglect from the family members. If the client is interested in helping her family members obtain status, it may make sense to help the minor apply for a T visa or a U visa (which allow parents to obtain status as derivatives) instead of SIJS (which does not allow petitioning for parents). Example: Marcia’s mother sent her to the United States to be with Marcia’s aunt because Marcia’s father was beating Marcia’s mother and Marcia regularly. Marcia’s mother paid a coyote to take her to Oregon. En route, the smuggler forced Marcia into prostitution. Marcia escaped and got help. Marcia’s mother wrote her a letter supporting her case. Marcia eventually applied for her mother, but not her father, to obtain derivative T visa status. Your client’s family is directly involved in the trafficking. Sometimes minors are trafficked directly by their parents. Some are sold off, pressured to migrate for work, or coerced to work unreasonable and long hours by their parents in order to support the family and provide money for the parents. Family members implicated in the trafficking cannot obtain derivative status.

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126 See 8 CFR 214.11(k)(6) for a description of evidence that may be used to demonstrate a present danger of retaliation. 127 USCIS, Questions and Answers: Qualifying Family Members of U visa Beneficiaries May Obtain Lawful Permanent Residence (Dec. 10, 2008), http://www.uscis.gov/archive/archive-news/questions-andanswers-qualifying-family-members-u-visa-beneficiaries-may-obtain-lawful-permanent-residence.

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Example: Lucia had not seen her mother in 10 years and was overjoyed when she got a call from her mother to come join her in the United States. Her mother told Lucia that she could live with her, attend school, and that they would be a family together again. Instead, when Lucia got to the U.S., her mother told her that before she could go to school, she had to pay off the smuggling debt of $6,000 she owed her mother. She threatened to kick Lucia out of the house if she did not help out with her mother’s housekeeping business. Lucia’s mother never paid her, continued to charge her for rent, clothing, and food, and made her clean up to 40 houses a week without protective gear. Lucia escaped and her legal representative advises her that she cannot apply for her mother for derivative status because her mother is her trafficker. Your client’s family is not directly involved in the trafficking, but contributed to the trafficking situation. Other times, family members are not directly responsible for the minor’s trafficking, but have created situations that have made the minor vulnerable and susceptible to trafficking. In these cases, it is important to consider the minor’s safety and talk to the minor about their relationship with these family members. If the minor were to return to their care, the minor may be placed back into a situation where they could be re-trafficked or re-exploited. It is ultimately the minor’s decision whether or not to apply for the family members. Example: Meiling decided to go to work at a restaurant in New York to support her family. Three months into the job at the restaurant, Meiling had still earned no money. Instead, she was subjected to crushing, unending debts and terrible working conditions. Meiling’s mother continued to pressure her to send money home for medicine for herself, and for her brother’s schooling. Meiling was finally able to leave the restaurant. She told her mother she was instead attending high school and was applying for papers to stay in the United States. Meiling’s mother immediately began to pressure her to go work again to support the family. Meiling is considering applying for derivative T status for her younger brother, but not her mother. Meiling’s legal representative counsels Meiling that she can change her mind and apply for her mother later as long as she makes this decision before adjusting to become a legal permanent resident. C.

Family member application

A separate Form I-914A must be filed for each derivative family member. The Form I-914A may be filed concurrently with the applicant’s T-visa application, or at a later date, as long as the principal retains T-1 nonimmigrant status and does not adjust to lawful permanent residency. Derivatives physically present in the United States will go to a biometrics appointment at a local field office. D.

Consular processing

Derivate applicants for a T visa residing abroad will have to go through what’s called “consular processing” in order to reunify with the T visa applicant in the United States. 128 This process can be more complicated than the process of obtaining derivative status for someone in the United States. Practitioners have experienced challenges scheduling visa appointments with consulates abroad and sometimes received repeated requests for more documentation before a consulate will 8 CFR 214.11(k)(9)(ii).

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issue a visa. In addition, the U.S. State Department has been closing some consulates abroad, making it more difficult to obtain appointments in a timely manner and in a location convenient for the client. All derivatives between the ages of 14 and 74 need to be fingerprinted. Derivatives abroad need to complete their fingerprints to be sent directly back to VSC. VSC will send the attorney a packet with fingerprint cards, instructions, and a deadline by which to submit the completed fingerprint cards back to VSC. Once the derivative T visas are approved by VSC, the files are sent to the Kentucky Consular Center (KCC) for processing. The KCC forwards the files to the appropriate U.S. consulate/embassy. Upon receipt of the files, the consulate/embassy generally contacts the family members to schedule appointments. The family members, or someone on their behalf, must complete Form DS-160 for the Department of State, and submit it online to the consulate/embassy. 129 You may also want to email a copy of the principal and derivative T approvals to the U.S. Embassy or consulate closest to where the family members live to request a scheduling of an appointment to process the derivative’s visa. At the appointment, the family members are generally required to bring proof of payment for the visa application, passports, and proof of relationship to the principal visa holder. If the derivative visa is granted, then the derivative family member is allowed to enter the United States. If you face any challenges, please reach out to T visa practitioners or contact the International Organization of Migration (IOM) to see if their staff can provide assistance for cases abroad, such as help paying for fees and arranging for travel for these family members. § 15.15 Adjustment of Status T visa recipients are allowed to adjust status three years from the date of approval, or sooner if they are able to obtain a letter from the U.S. Department of Justice (DOJ) demonstrating their compliance with and the completion of a criminal case. Without this compliance letter, they cannot adjust status early. Your client will lose status upon expiration of their T visa if they do not either apply to extend status or apply to adjust status to become a lawful permanent resident (LPR). For T visa recipients to be eligible to attain LPR status the applicant must demonstrate: • • •

Admission and current status as a T nonimmigrant; 130 Continuous physical presence for three years OR less if an investigation or prosecution is complete, exempting any individual absence of 90 days or less or an aggregate of 180 days or less; 131 Good moral character during their continuous physical presence; 132

129

See DOS, Online Nonimmigrant Visa Application (D-160), https://ceac.state.gov/genniv/. 8 CFR § 245.23(a)(2). 131 8 CFR § 235.23(3); INA § 245(l). 132 8 CFR § 245.23(a)(5); 8 CFR § 245.23(g). If a T nonimmigrant is under 14, she is presumed to have good moral character and need not submit proof of good moral character. 8 CFR § 245.23(g)(4).

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Compliance with any reasonable request for assistance during continuous presence 133 OR show they would suffer extreme hardship upon removal; 134 Admissibility or the grant of a waiver of applicable grounds of inadmissibility. 135

See Appendix VV for a sample cover letter for the adjustment of status application. PRACTICE POINTER: Those exempt from the compliance with law enforcement requirement can adjust their status without needing this compliance letter from the DOJ; however, they will have to maintain continuous physical presence in the United States in T-1 status for three years. However, if your client did report their case and cooperate with law enforcement, they may be able to adjust early. To obtain a compliance letter, email DOJ at T‑[email protected], providing a copy of any existing CP and I-914 Supplement B Law Enforcement Declaration, and contact information of law enforcement so that the DOJ can contact and confirm the cooperation. Remind them that the standard is cooperation, and not whether law enforcement deemed your client to be a trafficking survivor. Currently, requests for compliance letters from the DOJ can take several months, and certain criminal cases can take a long time to end in their entirety due to appellate processes. It is best to help your client manage expectations for when they can adjust their status, especially because establishing continuous presence and being unable to travel (for example, to visit a sick family member abroad) can be very difficult on them. A derivative T visa holder is eligible for adjustment of status only if the principal is also eligible and may file only concurrently with or after the principal T visa recipient has filed for adjustment of status. 136 Derivative T visa holders should apply to adjust status as separate applications from the principal T visa holder. The denial of a principal T nonimmigrant’s application for adjustment of status will result in the denial of the derivative T nonimmigrant’s application for adjustment of status. § 15.16 Filing a T Visa, U Visa, SIJS, or Asylum? Because U visas, SIJS, asylum and other immigration remedies are more familiar to immigration practitioners than T visas, T visas and their benefits remain greatly underutilized. The following section compares some of the requirements and benefits of these more common forms of relief with the T visa. This chapter does not provide an in-depth analysis of the other forms of relief; it is important to understand U visas, SIJS, and asylum in order to make an informed decision about what may be available and most beneficial for your client. You should advise your client of multiple legal remedies available, compare legal elements and benefits, and decide whether or not certain applications can be filed simultaneously, and when the legal remedies should be filed in relation to another.

133

8 CFR §§ 245.23(a)(6), 245.23(f). 8 CFR § 245.23(f)(2). USCIS can exercise discretion in granting adjustment by considering factors of favorability like family ties, hardship, and length of residence in the United States. 135 8 CFR §§ 245.23(a)(4), (c)(2)–(3). 136 8 CFR § 245.23(b). 134

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A.

Filing a T visa or a U visa? 1. Pros to filing a T visa over a U visa

Most of the time, legal advocates will choose between filing a U visa or a T visa for trafficking survivors. Note that it is possible to file simultaneously for a U visa and a T visa, but USCIS will mandate that your client ultimately choose only one visa. If you file a U visa and T visa simultaneously, make sure that USCIS knows which application you want adjudicated first. If the preferred status is granted for your client, then withdraw the other application. See Chapter 10 for more information about the U visa. •

Caps and effects on adjudication time. T visas have great advantages over U visas in regards to caps and adjudication time. Since mid-2010, the annual U visa cap of 10,000 a year has been hit very quickly, meaning longer waiting times for U visas to be adjudicated and travel delays for applicants abroad. 137 Because T visas have yet to ever hit their cap, T visas are being adjudicated and issued much more quickly than U visas.

•

Benefits. In some states, public benefits are available to persons who attest to being survivors of human trafficking. Certain unaccompanied minors, CP recipients, principal and derivative T visa recipients are also eligible for federal refugee benefits that recipients of U visas are ineligible for.

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Cooperation with law enforcement. Often times, the biggest challenge to filing a U visa is the law enforcement certification requirement. However, for the T visa, a certification is never required, and certain people, e.g., survivors trafficked as minors and applicants that qualify under the trauma exception, are exempt from cooperating with law enforcement altogether. Because a law enforcement certification must be filed with a U visa application but not for a T visa application, this factor may render the T visa the option better for your client.

•

Substantial harm nexus to qualifying crime requirement. U visas require proof that your client suffered substantial physical or mental abuse as a result of the qualifying crime. For trafficking cases, if the coercion and control was subtle or culturally-based psychological manipulation, this element may be more difficult to establish in a U visa. 2. Cons to filing a T visa over a U visa

•

Applicant’s physical presence in the United States. Unlike T visas, U visas do not require demonstrating that your client has not left the country since the last act of trafficking and that they are physically present “on account of” the trafficking. Whereas you can help a client apply for a U visa abroad, once a client leaves the United States, they may no longer be eligible to obtain a T visa.

•

Qualifying criminal activities. U visas have a broader array of qualifying criminal activities than T visas.

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USCIS, Data Set: Form I-918 Application for U Nonimmigrant Status, https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-form-i-918-application-unonimmigrant-status.

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Extreme hardship upon removal. Some T visa applicants may come from a seemingly developed country (such as Western Europe and Canada), and it may be hard to demonstrate that they would face extreme hardship upon removal. U visas do not have this requirement.

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Waivers of inadmissibility. T visa applicants must demonstrate that their inadmissibility is caused by or incident to the trafficking victimization, and it is in the national interest to waive the inadmissibility. U visa applicants are eligible for a much broader waiver. USCIS can waive almost all grounds of inadmissibility if the waiver is in the public or national interest, and the inadmissibility need not be caused by the enumerated crime for which the U visa is being submitted.

B.

Filing a T visa or special immigrant juvenile status?

Another common question is whether to file for Special Immigrant Juvenile Status (SIJS) (see Chapters 3–9) or for a T visa. Your client can have a T visa and SIJS simultaneously, and it may make sense to file them concurrently in some cases. •

Timing and jurisdiction. T visas do not have age limitations like SIJS. Sometimes an applicant is already too old for SIJS or is aging out of the juvenile systems required to file for SIJS. Other times, there may be difficulties in establishing juvenile court jurisdiction to obtain the necessary SIJS predicate order. In these cases, it is important to screen for a T visa as an option.

•

Family members and derivative applications. If your client wants to apply for their parent(s) to obtain legal status and/or join them in the United States, you should apply for a T visa for your client, as SIJS does not provide for this option.

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Criminal history and other grounds of inadmissibility. T visa waivers can be more forgiving than SIJS if the crimes are related to the trafficking of the applicant, especially related drug trafficking issues.

C.

Filing a T visa or asylum application?

T visa and asylum applications can also be filed concurrently for your clients. Asylum (see Chapter 12) focuses on persecution in the applicant’s home country, whereas the basis of a T visa application focuses largely of the violation of U.S. trafficking laws either within the United States or prosecutable by U.S. laws. Trafficking in a home country can also be the basis for an asylum claim. Interview. Asylum cases mandate an interview, while T visa applications almost always do not. This is an important consideration if you feel that an interview with an asylum officer may retrigger trauma in your client or if your client has credibility issues. Sometimes the credibility issues themselves may stem directly from the trauma. In cases like this, even if you decide to submit both applications, it may make sense to delay the asylum interview, allow adjudication of the T visa first, and then withdraw the asylum application if the T visa is granted.

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Nexus of persecution to social group. Asylum cases require establishing a well-founded fear of persecution on account of nexus to race, religion, nationality, political opinion, or

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membership in a particular social group. For certain cases, like the cases where minors and youth are fleeing gang violence, there has been difficulty establishing a gang-based claim based on a particular social group. Alternatively, you may want to consider and screen for T visa options. Some of these youth are then trafficked upon entry into the United States, and are eligible for both asylum and T visa options.

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Inadmissibility concerns. If your client has a criminal history related to her trafficking, especially related to drug trafficking, you may want to apply for the T visa and for a waiver of inadmissibility. There are no waivers for drug trafficking for asylum.

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Adjustment of status. Asylees are eligible to adjust status to legal permanent residency after one year, 138 while T visa recipients may have to wait three years, unless they receive the letter from the Department of Justice confirming that they have maintained cooperation with a closed investigation or prosecution.

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Travel. An asylum applicant who leaves the United States pursuant to advance parole and returns to the country of claimed persecution shall be presumed to have abandoned their asylum application, unless the applicant is able to establish compelling reasons for the return. There are also travel restrictions on T visas due to the physical presence on account of trafficking requirement and subsequent continuous presence requirement in the adjustment of status process. However, T visa recipients that adjust to LPR status are usually subject to little to no scrutiny in comparison to asylum recipients if they travel back to their home country. The major exceptions are where the T visa was based on trafficking related to diplomats and government officials, and where travel to the home country may expose the trafficking survivor to harassment, detention, and retaliation.

8 CFR § 1209.2(a)(2).

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CHAPTER 16 OTHER IMMIGRATION OPTIONS This chapter includes: § 16.1 § 16.2 § 16.3 § 16.4 § 16.5 § 16.6 § 16.7 § 16.8

Overview ............................................................................................................ 453 Cancellation of Removal for Lawful Permanent Residents ............................... 453 Cancellation of Removal for Non-Lawful Permanent Residents ....................... 455 Motions to Suppress and Challenging Removability ......................................... 457 Voluntary Departure ........................................................................................... 458 Temporary Protected Status (TPS) ..................................................................... 464 Prosecutorial Discretion and Deferred Action, Including Deferred Action for Childhood Arrivals (DACA) ............................................................ 468 Private Bills Passed by Congress ....................................................................... 473

§ 16.1 Overview This chapter provides a brief overview of a few other types of immigration relief and strategies for children and youth not addressed in the previous chapters, including cancellation of removal, motions to suppress, and DACA. Some of these options only come into play once the client is already in removal proceedings, while others, although available affirmatively as well, carry large risks and should often only be used as a defensive measure. IMPORTANT NOTE: This chapter is not a complete guide; it simply provides an overview of some other forms of immigration relief. Nonetheless, reviewing these various forms of relief will help ensure that you are aware of other relief options. If you are not an experienced immigration practitioner, you should refer people who might apply for immigration relief to an experienced practitioner for a thorough evaluation. Each section provides information about further resources for the forms of relief discussed in this chapter. § 16.2 Cancellation of Removal for Lawful Permanent Residents Cancellation of removal for lawful permanent residents (LPRs) is a form of relief set forth in INA § 240A(a) that allows an LPR in removal proceedings to retain their LPR status and avoid removal. It is only available in removal proceedings; a person cannot affirmatively apply for cancellation of removal. Cancellation of removal operates like a discretionary waiver. It can waive most charges of deportability and inadmissibility. For example, LPRs who commit certain crimes or other actions can be charged as deportable and placed in removal proceedings. Alternatively, if a permanent resident travels abroad for too long, the Department of Homeland Security (DHS) may reject their

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entry upon their return. DHS may also reject entry if the permanent resident is inadmissible. 1 Cancellation of removal could be helpful in either circumstance as a defense to removal. Many adult lawful permanent residents are placed into removal proceedings for criminal convictions. In contrast, an LPR child or youth generally will only be placed in removal proceedings for conduct such as “alien smuggling,” false claim to U.S. citizenship, violation of a domestic violence protective order, or adult criminal convictions. Note that juvenile delinquency, which is distinct from an adult criminal conviction, does not place a person at risk of being placed in removal proceedings. Advocates should be aware, however, that youth who enter the adult criminal justice system, even as minors, and have resulting criminal convictions are not immune from being placed into removal proceedings and potentially losing their permanent resident status. (See Chapter 17 for further information on the immigration consequences of criminal convictions.) It is therefore incredibly important that lawful permanent resident youth, if eligible, pursue naturalization as soon as possible to avoid the risk of being placed in removal proceedings for potential future conduct. See Chapter 14. Eligibility requirements. Under the Immigration and Nationality Act (INA) § 240A(a), an applicant must be able to prove that they meet the following criteria to qualify for lawful permanent resident cancellation of removal: 1. They have been a lawful permanent resident for at least five years. 2. They have resided in the United States continuously for seven years after having been admitted in any status. The “clock stops” for purposes of accumulating the seven years when: a. The noncitizen is served with a proper Notice to Appear, containing information regarding the time and place of the removal proceedings, 2 or b. The noncitizen commits an offense that is both referred to in INA § 212(a)(2) and that makes them inadmissible under INA § 212(a)(2) [criminal inadmissibility grounds] or deportable under INA § 237(a)(2) or (a)(4) [criminal or terrorist deportability grounds]. 3. They have not been convicted of an aggravated felony. 3 4. They have not been granted cancellation of removal, § 212(c) relief, 4 or suspension of deportation in the past; in other words, a person can only get this form of relief once. 1

See Matter of Pena, 26 I&N Dec. 613 (BIA 2015). See Pereira v. Sessions, 585 U.S. __, No. 17-459 (2018). 3 “Aggravated felony” is an immigration term of art defined at 8 U.S.C. § 1101(a)(43). It describes an expanding list of convictions that carry the most severe punishments possible under immigration law. An aggravated felony is an absolute bar to LPR cancellation; however, withholding of removal, Convention Against Torture relief, T and U visas, and § 212(h) relief may still be available. If your client was convicted of an aggravated felony, it is important that the client speaks with an experienced immigration practitioner to review all potential options for relief. Moreover, post-conviction relief remedies could also help overcome an aggravated felony barring most forms of relief. 4 Section 212(c) relief applies to those who have a conviction before April 1, 1997. This waiver may help those with convictions, including aggravated felonies before that date, waive almost any ground of inadmissibility or deportability. This is a complex type of relief. Therefore, if you think your client may 2

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5. They cannot have persecuted others, or be inadmissible or deportable under the antiterrorist grounds. 6. They cannot have entered as a crewman 5 after June 30, 1964, and cannot have entered as a “J visa” exchange visitor who received graduate medical education or failed to satisfy the two-year foreign residency requirement. 7. Finally, they must convince the judge that the positive factors for keeping them in the United States outweigh the reasons for ordering removal. For more information on cancellation of removal for LPRs, including analysis of each requirement, see Remedies and Strategies for Permanent Resident Clients (ILRC 2017). § 16.3 Cancellation of Removal for Non-Lawful Permanent Residents Similar to cancellation of removal for LPRs, cancellation of removal for non-LPRs is a form of defensive relief only available to individuals in removal proceedings. Very few children and youth apply for non-LPR cancellation of removal because it is often difficult for them to meet the requirements, which include proving presence in the United States for at least ten years, and having an LPR or U.S. citizen spouse, child, or parent as a qualifying relative. Nevertheless, nonLPR cancellation may be an option for children who have LPR or U.S. citizen parents or children of their own (which may be the case for older youth), provided they also meet the other requirements, outlined below. Eligibility requirements. A person who is not an LPR may qualify for non-LPR cancellation of removal, under INA § 240A(b)(1), if they are in removal proceedings because they are inadmissible or deportable and: 1. They have been physically present in the United States continuously for at least ten years; As with cancellation of removal for permanent residents, the “clock stops” for purposes of calculating the ten years when: a. The noncitizen is properly served with a Notice to Appear that has time and place information for removal proceedings, or b. The noncitizen commits an offense that is both referred to in INA § 212(a)(2) and that makes them inadmissible under INA § 212(a)(2) [criminal inadmissibility grounds] or deportable under § 237(a)(2) or (a)(4) [criminal or terrorist deportability grounds]. 2. They have had “good moral character” for those ten years; 6

benefit from 212(c) relief, it is important that the client speak with an experienced immigration practitioner to review all potential options for relief. 5 A “crewman” refers to foreign nationals who serve aboard a vessel or aircraft and intend to work aboard that vessel or aircraft. See USCIS, Crewman, https://www.uscis.gov/tools/glossary/crewman (last visited June 6, 2018). 6 Several forms of immigration relief, as well as naturalization to U.S. citizenship, require the applicant to establish that they have been a person of “good moral character” (GMC) during a certain period of time leading up to making the application. Bars to establishing GMC appear at INA § 101(f), 8 U.S.C. § 1101(f). See also 8 C.F.R. § 316.10. Note that if the advocate and client succeed in avoiding the statutory bars to

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3. They have not been convicted of certain offenses [crimes listed in INA §§ 212(a)(2), 237(a)(2), or 237(a)(3)]; and 4. To deport them would cause exceptional and extremely unusual hardship to their LPR or U.S. citizen spouse, child, or parent. 7 A judge has discretion to grant or deny the case. This means a judge may deny the case even if the applicant appears to meet all the eligibility requirements. As noted above, one of the requirements for non-LPR cancellation of removal is that the applicant was not convicted of any offense listed in INA §§ 212(a)(2), 237(a)(2), or 237(a)(3). These include most of the criminal grounds of inadmissibility and deportability, as well as convictions for false claim to U.S. citizenship, and other crimes. They do not include adjudications of juvenile delinquency. See Chapters 5 and 17. Like cancellation of removal for LPRs, under INA § 240A(c) cancellation of removal for certain non-permanent residents is not available to the following people: 1. People who already have received cancellation of removal, suspension of deportation, or § 212(c) relief; non-LPR cancellation of removal is also a one-time-only form of relief. 2. People who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds. 3. Crewmen who entered after June 30, 1964, and certain “J visa” exchange visitors (those who either received graduate medical education or failed to satisfy their two-year requirement). A noncitizen who is granted non-LPR cancellation of removal becomes a permanent resident, although they may have to wait before ultimately receiving LPR status. Only 4,000 people can be granted LPR status through cancellation of removal each year. 8 The 4,000 cap includes grants of cancellation of removal as well as suspension of deportation (the precursor to cancellation). 9 The Executive Office for Immigration Review’s current policy is that the Office of the Chief Immigration Judge notifies the immigration courts once the limit on cancellation cases is about to be reached in a fiscal year. Once this “cut-off date” is reached, immigration judges must reserve their decisions on all other suspension or cancellation cases, unless the case falls within a number of exceptions. 10 establishing GMC, the client still has to convince the immigration judge to make a discretionary, affirmative finding that they actually were of good moral character during the relevant period. 7 This is a very difficult standard to meet. The BIA has consistently held that the standard requires a showing of hardship that is “substantially” beyond the ordinary hardship that would be expected when a close family member leaves the country and is limited to “truly exceptional” situations. See Matter of N-JB-, Int. Dec. 3415 (BIA 1999); see also Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001). But, this standard does not need to be so high that cancellation be granted only if one’s deportation would be “unconscionable.” See Monreal, 23 I. & N. Dec. at 60; see also Matter of Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002). 8 See INA § 240A(e), 8 U.S.C. § 1229b(e). 9 See INA § 240A(e). 10 See Memorandum from MaryBeth Keller, Chief Immigration Judge, Operating Policies and Procedures Memorandum 17-04: Applications for Cancellation of Removal or Suspension of Deportation that are

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For more information on cancellation of removal for non-permanent residents, please see the ILRC’s various resources on this topic. 11 WARNING! It is risky to place clients in removal proceedings in order to apply for cancellation. Practitioners should not take steps to have removal proceedings initiated for their clients in order to apply for cancellation except in extremely strong cases. Non-LPR cancellation is a highly discretionary form of relief, and anyone who is denied risks deportation. For the most part, practitioners should pursue cancellation cases only when their clients are already in removal proceedings. § 16.4 Motions to Suppress and Challenging Removability If your client is already in removal proceedings, you may consider challenging the government’s charges against your client, rather than just conceding that your client is removable and moving on to applications for relief (like cancellation of removal outlined in the previous sections). As a matter of fact, if you win at this stage, challenging that your client is even removable, then you save certain defensive forms of relief, like cancellation of removal which a person can only receive once, for some other time if your client again faces removal in the future. It is the government’s burden to prove that your client is removable. By challenging the government’s case against your client, you are holding the government to its burden. Challenging removability is a defensive strategy and is only appropriate if your client is already in removal proceedings. This is not a way to establish eligibility for immigration relief, but it could protect your client from deportation. There are several different ways to challenge the government’s case against your client. To start, you should evaluate whether the government: • • • •

improperly prepared the Notice to Appear (i.e., did the Notice to Appear lack specific time & place information for the removal proceedings), 12 improperly served the Notice to Appear, unlawfully obtained evidence of your client’s immigration status, or otherwise violated its own rules in the process of the enforcement proceedings

Subject to the Cap, 2-3 (Dec. 20, 2017), available at https://www.justice.gov/eoir/file/oppm1704/download (Immigration judges are not required to reserve decisions where: 1) the application is denied or pretermitted for any reason; 2) the application pertains to a detained respondent; or 3) the application is for suspension of deportation filed by a battered spouse or parent during proceedings in which the charging document was filed prior to April 1, 1997, or is an application for cancellation of removal under section 2013 of NACARA) (citing INA § 240A(e)(3)). 11 For more information, see How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal (ILRC 2017); see also ILRC, Removal Defense, https://www.ilrc.org/removal-defense. 12 See Pereira v. Sessions, 585 U.S. ___, No. 17-459 (2018).

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Examples of the government violating its own rules include: • • •

any mistreatment at the border, failure to issue Form I-770, Notice of Rights and Request for Disposition, or constitutional violations such as coercive interrogation.

If any of these violations occurred, you may be able to challenge removability. Some advocates only challenge removability when the client is not clearly eligible for immigration relief, or if they suffered egregious constitutional or regulatory violations. However, it is important as advocates to make sure that the government is always abiding by due process and respecting the rights of our clients. Even if your client is eligible for relief, consider still challenging the government’s charges against your client if you have reason to do so. PRACTICE TIP: When challenging removability, make sure not to concede the factual allegations and charges on the Notice to Appear. DHS has the initial burden to prove “alienage,” so if you deny the allegations and charges, the burden remains on DHS to prove its case.13 In other words, your client has no obligation to concede removability to the immigration judge. This will require DHS to carry its burden through a contested removability hearing. If DHS produces evidence of alienage, the burden then shifts back to the respondent to challenge the legality of this evidence. The most common way to challenge any evidence of alienage is through the filing of a motion to suppress or a motion to terminate. A motion to suppress is a request to the court not to consider certain evidence, usually on the basis that it was obtained unlawfully. A motion to terminate is a request to the court to end the removal proceedings. A motion to terminate is proper where that the government has not met its burden to show that your client is removable. A full discussion of suppression strategy and procedure is outside the scope of this manual. Please see Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings (ILRC 2018) for general information, and Helen Lawrence, Kristen Jackson, Rex Chen, & Kathleen Glynn, Strategies for Suppressing Evidence and Terminating Removal Proceedings for Child Clients (2015) 14 for suppression strategies for child clients. § 16.5 Voluntary Departure Voluntary departure (VD) allows a noncitizen to avoid a removal order if they agree to depart the United States voluntarily within a specific period of time. It is seen as a form of immigration relief, even though it does not allow the noncitizen to stay in the United States or provide any immigration status. This is because it is technically relief from an order of removal. (An order of removal triggers various grounds of inadmissibility, and can endanger eligibility for immigration relief, which is why VD can be preferable.) Individuals request VD from the immigration court during removal proceedings. VD is authorized by INA § 240B. 13

8 C.F.R. § 1240.8(c). Helen Lawrence, Kristen Jackson, Rex Chen & Kathleen Glyn, Strategies for Suppressing Evidence and Terminating Removal Proceedings for Child Clients (March 2015), available at https://helenlawrencelaw.com/wp-content/uploads/2015/03/Suppression-Termination-PA-withoutAppendices.pdf. 14

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A VD order carries less serious consequences than an order of removal if the noncitizen complies with the voluntary departure order. People who leave the United States under an order of VD on time do not have a removal order on their records. This is significant because people who have been removed are inadmissible for five or ten years under INA § 212(a)(9)(A), and can be prosecuted for a felony if they return to the United States without permission. In addition, people seeking admission before the five- or ten-year bar expires need a waiver of the prior deportation in order to be allowed to re-enter the United States. None of these bars apply to people who leave under VD. Nonetheless, VD is not a generous remedy. ICE may impose any condition necessary to ensure that an individual leaves the United States upon a grant of VD. Such conditions can include the posting of a bond, continued detention pending removal, and other removal safeguards. Children and youth who apply for other relief in immigration court such as special immigrant juvenile status and asylum should also apply for voluntary departure as a last option. Practically speaking, this means that when you plead to the charges in the Notice to Appear on behalf of your client, you should state all of the relief that your client is pursuing, including voluntary departure. That way, if the immigration judge denies the preferred relief, the child may be able to leave voluntarily and avoid a removal order. Note, however, that children should only apply for VD if they actually intend to leave the United States. If a child is granted VD and does not leave the country, the voluntary departure order will convert into a removal order. 15 The child will be subject to additional penalties that can bar immigration relief in the future.16 Under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), unaccompanied minors do not have to pay for their return trip to their home country if they take VD. 17 This can be a helpful option for youth who wish to return home. A.

Eligibility requirements

The INA provides for a grant of VD at two distinct times. First, immigration authorities may grant VD prior to the conclusion of removal proceedings. 18 Second, the immigration judge may grant voluntary departure, instead of removal, at the conclusion of removal proceedings. 19 These two types of voluntary departure have separate requirements, and distinct outcomes. Note that while it is easier for the applicant to qualify for the type of voluntary departure that precedes the conclusion of proceedings, it may not be the best option based on the individual circumstances of your client. Below is a condensed summary of the two types of voluntary departure.

15

INA § 240B(d). Id. 17 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 112 Stat. 5044 (codified in principal part at 8 U.S.C. § 1232); see also 8 U.S.C. § 1232(a)(5)(D)(ii). 18 INA § 240B(a)(1). 19 INA § 240B(b). 16

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Voluntary departure before or prior to completion of removal proceedings INA § 240B(a)(1)

Voluntary departure at the conclusion of removal proceedings INA § 240B(b)

When to request: Prior to or at the master calendar hearing

At the merits hearing

Time to depart the U.S.

Up to 120 days to voluntarily depart

Up to 60 days to voluntarily depart

Requirements

•

Pursuant to INA § 240B(b)(1), the individual must: • have the financial means to depart, and intends to do so; • have been a person of “good moral character” for the five years prior to the date of the application for voluntary departure; • have been physically present in the United States for a period of at least one year immediately preceding the date the Notice to Appear was served; and • is not removable under INA §§ 237 (a)(2)(A)(iii) [conviction of an aggravated felony] or 237(a)(4) [security & related grounds].

No requirement to establish the financial means to depart. • No requirement to be a person of “good moral character” After requesting VD, the individual: • cannot make any additional requests for relief; • must withdraw any pending requests; • must concede removability, and • must waive appeal on all issues.

Disqualifications •

•

Deportable for an aggravated • felony conviction under INA § 237(a)(2)(A)(iii), or for • “terrorist activities” under INA § 237(a)(4)(B); or Previously granted voluntary departure after having been • found inadmissible under INA § 212(a)(6)(A). •

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INA 101(f) bars them from proving good moral character; or Deportable for an aggravated felony under INA § 237(a)(2)(A)(iii), or for “security and related grounds” under INA § 237(a)(4); or Previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A); or Granted voluntary departure and failed to depart in the specified time frame; consequently, they are now ineligible for voluntary departure for 10 years under INA § 240B(d).

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1. Voluntary departure grant before removal proceedings or prior to the completion of removal proceedings If the child or youth requests voluntary departure before the initiation or the completion of removal proceedings, they may be granted a period of up to 120 days to voluntarily leave the United States. Generally, the person must depart at their own expense. 20 However, if the child or youth qualifies for VD, and is classified as an unaccompanied minor under 6 U.S.C. § 279(g)(2), then voluntary departure is available at no cost. Chapter 1 discusses the topic of unaccompanied minors in greater detail. Under this type of VD, the applicant does not need to establish good moral character, or show a financial ability to leave the country. 21 a. ICE authority to grant voluntary departure ICE has the authority to grant VD instead of commencing removal proceedings. 22 (Note that in some cases, ICE may instead allow the youth to withdraw their application for admission altogether and not initiate the process of voluntary departure.) The regulations allow ICE to revoke a grant of VD if ICE determines that the application should not have been granted. ICE does not have to notify the applicant before revocation, but must notify the applicant in writing of the revocation. There is no appeal of revocation of voluntary departure. 23 However, if ICE revokes a grant of VD that was granted prior to the commencement of proceedings, the noncitizen should still be able to request the second type of voluntary departure in removal proceedings. b. Immigration judge authority to grant voluntary departure Once ICE has initiated removal proceedings, the immigration judge has the authority to grant VD. 24 The immigration judge may require the person to post a bond, which will be reimbursed when the person provides proof that they have departed the United States within the time specified. 25 For unaccompanied children, ICE will arrange transportation for them to leave the country “under safeguards.” Therefore, the child does not need to post a bond. c. Disqualifications for voluntary departure prior to completion of removal proceedings A person will be disqualified from this form of voluntary departure if they: •

Are deportable for a conviction of an aggravated felony under INA § 237(a)(2)(A)(iii), or for “terrorist activities” under INA § 237(a)(4)(B); or

20

See INA § 240B(a)(1). See Matter of Arguelles, 22 I.& N. Dec. 811 (BIA 1999) (affirming that persons applying for VD either before proceedings commence or prior to the conclusion of the removal hearing need not meet the same criteria, such as establishing good moral character or the financial ability to depart, as persons applying for VD at the conclusion of removal proceedings). 22 See 8 C.F.R. § 240.25(a). 23 See 8 C.F.R. § 240.25(f). 24 See 8 C.F.R. § 1240.26. 25 See INA § 240B(a)(3). 21

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•

Were previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A).

The regulations state that the immigration judge may only grant this form of VD pursuant to INA § 240B(a) if the individual makes the request prior to or at the master calendar hearing at which the case is initially scheduled for a merits hearing. 26 The individual also must make no additional requests for relief and withdraw any pending requests, concede removability, and waive appeal on all issues. 27 2. Requirements for voluntary departure at the conclusion of removal proceedings To be granted VD at the conclusion of removal proceedings, the applicant must meet stricter criteria than for the form of voluntary departure granted prior to the conclusion of proceedings. This other form of VD is often sought as an alternative, in the instance that the individual is found ineligible for other forms of relief sought. In this situation, the person (or through their counsel) will inform the immigration judge that they are seeking voluntary departure pursuant to § 240B(b) in the alternative, after stating the other forms of relief for which the person is applying. To receive this form of voluntary departure, the applicant must demonstrate pursuant to INA § 240B(b)(1) that they: • • • •

Have the financial means to depart and intend to do so; Have been a person of “good moral character” for the five years prior to the date of the application for voluntary departure; Have been physically present in the United States for a period of at least one year immediately preceding the date the Notice to Appear was served; and Are not removable under INA §§ 237 (a)(2)(A)(iii) [conviction of an aggravated felony] or 237(a)(4) [security & related grounds]. Example: Umberto is a nineteen-year-old man from El Salvador, who entered without inspection eighteen months ago in order to flee the conditions in his country. He is afraid to return to El Salvador. In El Salvador he was imprisoned several times due to his political beliefs and fears future persecution. Umberto does not want to accept the first type of voluntary departure and wants to pursue an asylum claim. His attorney suggests that he apply for asylum and in the alternative voluntary departure. However, the attorney cautions him that if the court denies his asylum application, he might not qualify for the tougher second type of voluntary departure. Based on his time in the United States, he meets the physical presence requirement for voluntary departure at the conclusion of proceedings. Umberto agrees with his legal practitioner’s advice. At his master calendar hearing, the attorney informs the judge on the record that “Umberto Gomez wishes to apply for asylum, and in the alternative, voluntary departure pursuant to § 240B(b).” If Umberto were not requesting any other form of relief (i.e., asylum), it would be in his interest to obtain voluntary departure prior to the conclusion of the removal proceedings

26 27

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because: 1) there is no mandatory bond; and 2) he can be granted voluntary departure for a longer period of time. A noncitizen, such as Umberto, with the advice of his legal practitioner should make this decision by the time of the master calendar hearing. The statute also states that a person is disqualified if they were previously granted VD after having been found inadmissible under INA § 212(a)(6)(A) (present without admission or parole). 28 Also, if a person was granted VD and failed to depart in the specified time frame, they are ineligible for VD for ten years. 29 The immigration judge cannot grant voluntary departure for more than sixty days. 30 For adults, the immigration judge must set a bond of at least $500. 31 The bond must be posted within five business days of the immigration judge’s order. 32 IMPORTANT NOTE: If the bond is not posted within this time period, the voluntary departure order is automatically vacated and becomes a removal order. 33 In the case of children and youth, the immigration judge typically asks for evidence that they are leaving, such as a plane ticket, but bond is not usually required. The immigration judge may impose other conditions that the judges deems necessary to ensure departure from the United States. 34 The immigration judge cannot grant extensions of the period of time for voluntary departure beyond the amount of time allowed by the regulations; those requests must go to ICE. 35 No court has jurisdiction to hear an appeal regarding the denial of voluntary departure requested at the conclusion of removal proceedings. 36 Once a person has been granted voluntary departure, they must present a passport or other valid travel documentation to ICE within sixty days, unless exempted. 37 Civil penalties for failure to depart. There are also penalties for failure to depart under VD. A noncitizen who fails to depart on time is ineligible for many forms of immigration relief for ten years and is subject to civil penalties, including $1,000 to $5,000 in fines. 38 WARNING! If a child is considering voluntary departure in lieu of removal, it should only be requested if the child is actually going to leave the United States and the immigration judge denies relief and all appeals fail. Otherwise, the voluntary departure order will convert into a

28

See INA § 240B(c). See INA § 240B(d)(1)(B). 30 See INA § 240B(b)(2). 31 See INA § 240B(b)(3); 8 C.F.R. § 1240.26(c)(3)(i). 32 See 8 C.F.R. § 1240.26(c)(3)(i). 33 See 8 C.F.R. § 1240.26(c)(4). 34 See 8 C.F.R. § 1240.26(c)(3). 35 8 C.F.R. § 1240.26(f). 36 See INA § 240B(f). 37 See 8 C.F.R. § 240.25(b); 8 C.F.R. § 1240.26(b)(3)(ii). 38 See INA § 240B(d). 29

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removal order if the child fails to depart on time, or at all, and they will be subject to additional penalties that can bar immigration relief in the future. 39 B.

Voluntary departure for children and youth in secure detention

Voluntary departure is available to children and youth in secure detention and is sought more often by children in secure detention than in less secure types of detention. Secure detention is immigration detention for unaccompanied minors who have been found to require a more secure placement, often on account of prior delinquency. 40 For children and youth in secure detention, one of their primary goals, even more than winning immigration relief, may be getting out of detention. Understandably, these children are typically extremely anxious and frustrated with their detention and many of them will want whatever option gets them out of detention earliest, even if that means they have to return to their home country. Children may be unwilling to wait in secure detention for the time it takes to fight for other forms of immigration relief, even when they have strong cases. If children have strong cases for immigration relief, advocates should work to get the child “stepped down” to a less secure detention setting, as that may help the child tolerate the waiting period in order to fight for relief. However, in cases where the child does not want to wait, or a step down is unlikely, VD may be an option to mitigate the consequences of having to return to their home country after being placed in immigration proceedings. Children and youth in secure detention often have juvenile delinquency records (which may be the reason that they are in secure detention). Delinquency is not a bar to VD, so advocates should still push for VD for children with delinquency records. However, delinquency is a significant consideration that is used as a discretionary factor by ICE counsel and the court to oppose and deny VD. Nonetheless, advocates have been successful in obtaining voluntary departure for youth with delinquency records. Advocates have specifically found that when youth express remorse and demonstrate rehabilitation, immigration judges are more likely to grant VD for youth with delinquency records. § 16.6 Temporary Protected Status (TPS) INA § 244 provides for a type of immigration relief called “Temporary Protected Status” (TPS) for those fleeing civil war, famine, or natural disaster in designated countries. It is important to note at the outset that TPS designation is a discretionary determination that the U.S. government can end upon notice. At the time of publication, the Department of Homeland Security (DHS) has ended TPS designation for a number of countries, and the list continually changes. 41 TPS, however, still exists as a form of relief. The ILRC advises advocates to keep abreast of the latest changes with regards to TPS. TPS was established by Congress as a form of protection for those persons who are unable to return to their home countries safely, or where their governments are unable to handle their return 39

See INA § 240B(d). See Chapter 18 for information on detention. 41 USCIS, Countries Currently Designated for TPS, https://www.uscis.gov/humanitarian/temporaryprotected-status (last visited June 14, 2018). 40

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adequately, but who do not fall under the definition of a refugee. The United Nations Refugee Convention, codified into U.S. law at INA § 208, requires that applicants for asylum must meet the precise definition of a refugee in order to be granted asylum. They must show either past persecution or a well-founded fear of future persecution on account of one of five grounds. TPS, however, is designed to protect those who cannot safely return to their home country, not necessarily because of persecution, but rather because of ongoing armed conflict, environmental disaster (earthquake, hurricane, flood), or other extraordinary conditions. There are important limitations to TPS. TPS is only available to people from certain designated countries who can establish continuous residence and physical presence in the United States by the dates assigned to each country. Thus, someone arriving in the United States from a non-TPS designated country, or from a TPS designated country but after the required date, is ineligible (see eligibility discussion below). Temporary protected status, as the name implies, is only meant to be temporary and confers no permanent path to legal status. As long as an individual has TPS, they should not be detained by the Department of Homeland Security, are not removable from the United States, and may obtain employment authorization to lawfully work in the United States. Another critical limitation to TPS is that there are no derivative beneficiaries, so family members must each qualify for TPS in their own right. Designation of TPS countries. The Secretary of Homeland Security has the power to designate a country for TPS under INA § 244 if it is found that there is “an ongoing armed conflict within the state,” or “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected.” 42 Additionally, TPS designation is an option if a foreign state is temporarily unable to handle the return of its nationals to the state and has requested TPS designation; or if “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.” 43 The regulations pertaining to TPS can be found at 8 C.F.R. § 244. Although TPS provides no path to permanent legal status, an individual granted TPS may immigrate permanently through another provision of immigration law (e.g. family-based) if otherwise eligible. The Ninth and Sixth Circuits have issued decisions that allow certain people with TPS to apply to adjust status to obtain a green card. 44 In addition, individuals with TPS who have traveled on advance parole may also be eligible to adjust status. 45

42

INA § 244(b)(1)(i). Id. 44 Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). 45 See ILRC, Practice Alert on Ramirez v. Brown, November 2017 Update: Adjustment Opportunities for People with TPS and People Whose TPS Will Expire, (Nov. 15, 2017), available at https://www.ilrc.org/practice-alert-ramirez-v-brown-november-2017-update-adjustment-opportunitiespeople-tps-and-people. 43

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TPS eligibility requirements. 46 An individual is eligible for TPS if they meet the following requirements: • • • • •

They are a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country; File during the open registration or re-registration period, or meet the requirements for late initial registration during any extension of the country’s TPS designation; Have been continuously physically present in the United States since the most recent designation date of the country; Have been a continuous resident in the United States since the date specified for the country; and They are admissible under all applicable grounds of inadmissibility. 47

In addition, an individual is ineligible for TPS, or is unable to maintain their existing TPS, if they: • • • •

Have been convicted of any felony or two or more misdemeanors in the United States; Are subject to any of the criminal or security-related grounds of inadmissibility for which a waiver is not available; and Are subject to any of the bars to asylum, including having participated in the persecution of another, or incited terrorist activity; or Have been granted TPS, but failed to re-register for TPS, as required, without good cause.

As of the writing of this manual, people from Somalia, South Sudan, Syria, and Yemen are protected under this program for an indefinite period. DHS has announced that it has terminated the TPS designation for the following countries: El Salvador, 48 Haiti, 49 Honduras, 50 Nicaragua, 51 Nepal, 52 and Sudan. 53 Each has its own termination date. To access up-to-date information about

46

See INA § 244. INA § 244(c). 48 See Press Release, Dep’t of Homeland Security, Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for El Salvador (Jan. 8, 2018), available at https://www.dhs.gov/news/2018/01/08/secretary-homeland-security-kirstjen-m-nielsen-announcementtemporary-protected. 49 See Press Release, Dep’t of Homeland Security, Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Haiti (Nov. 20, 2017), available at https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protectedstatus-haiti. 50 See Press Release, Dep’t of Homeland Security, Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Nicaragua and Honduras (Nov. 6, 2017), available at https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protectedstatus-nicaragua-and. 51 Id. 52 See Press Release, Dep’t of Homeland Security, Secretary Kirstjen M. Nielsen Announcement on Temporary Protected Status for Nepal (Apr. 26, 2018), available at https://www.dhs.gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcement-temporary-protectedstatus-nepal. 47

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the countries currently designated for TPS, including the most recent designation date, current expiration date, and other important information, advocates should visit the USCIS website. 54 For more information on how to register for TPS including late registration, please see the USCIS website. 55 Maintaining TPS. Once an individual is granted TPS, he or she must re-register during each reregistration period to maintain TPS benefits. To re-register for TPS, the TPS beneficiary must submit: • • •

Form I-821, Application for Temporary Protected Status; Form I-765, Application for Employment Authorization; and The relevant application and biometric fees or a fee waiver request on Form I-912, Application for Fee Waiver (or other written request), with supporting documentation.

Travel outside the United States. Beneficiaries of TPS who wish to travel outside the United States must apply for travel authorization. DHS grants travel authorization for TPS holders through a travel document called advance parole, if DHS determines the request is appropriate. 56 This document gives the person permission to leave the United States and return during a specified period. To apply for advance parole, a TPS beneficiary must file Form I-131, Application for Travel Document. People who leave the United States without requesting advance parole may lose TPS and may not be permitted to re-enter the United States. WARNING: About travel. An individual granted TPS may apply for travel authorization. Note, however, that a person with TPS will not be able to travel under advance parole based on TPS if the TPS designation has ended. They are able to apply for and travel based on TPS advance parole up until the end of the TPS designation. Note too that traveling on advance parole can be risky for someone with prior immigration and criminal violations. The law and policy surrounding advance parole may also change, so it is critical that the practitioner and client carefully consider any risks of traveling on advance parole. What happens at the end of the TPS period. If the individual does nothing, their work permit will expire and their TPS will end. If the individual applied by the appropriate deadline to reregister by filing the appropriate forms, they will receive a new work permit and extension of their TPS status. 53

See Press Release, USCIS, Temporary Protected Status for Sudan to Terminate in November 2018 (Sept. 18, 2017), available at https://www.uscis.gov/news/news-releases/temporary-protected-status-sudanterminate-november-2018. 54 USCIS, Temporary Protected Status (last updated: June 5, 2018), https://www.uscis.gov/humanitarian/temporary-protected-status. 55 Id. 56 Unlike other advance parole requests, TPS advance parole is not limited to certain types of travel. See INA § 244(f); 8 C.F.R. § 244.15. The regulations allow for travel without specifying any required reasons except that it be approved. All parole is authorized pursuant to INA § 212(d)(5), which authorizes parole for humanitarian reasons or significant public benefit. In practice, TPS holders will be authorized to travel for any stated personal reason or business purpose.

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If the individual has traveled on advance parole, or lives in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) or the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee), they may be eligible for additional immigration options. 57 As mentioned previously, there is a dwindling list of TPS-designated countries. Although nationals from these countries may be folded into some other form of relief in the future, the likelihood of this is uncertain. See ILRC, After TPS: Options and Next Steps, (June 7, 2018), for ideas on other options that people with TPS from a country whose TPS designation is ending may want to consider. 58 § 16.7 Prosecutorial Discretion and Deferred Action, Including Deferred Action for Childhood Arrivals (DACA) Requesting prosecutorial discretion and deferred action are options to consider when a person has no other immigration remedies available to them, or if the person is applying for another form of immigration relief that may take a long time.

A.

Prosecutorial discretion

In certain circumstances, law enforcement or administrative officers have the authority to decide whether–and to what degree–to enforce the law in a particular case. This is called prosecutorial discretion. A law enforcement officer who decides not to enforce the law against a person has favorably exercised prosecutorial discretion. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action, a stay of removal, or a decision not to issue a Notice to Appear in the first place. Although ICE officials have always had this power and exercised it in different ways throughout the years, it is now only available in limited circumstances. Prosecutorial discretion remains available within the immigration context. Yet, as of the writing of this manual, DHS has essentially abandoned its practice of prioritizing only certain groups of immigrants for removal as prior administrations had done. 59 The current administration has revoked memoranda from prior administrations that announced when agencies would exercise prosecutorial discretion in immigration proceedings. 60 Even with these changes, both ICE and USCIS officers continue to have the authority to exercise prosecutorial discretion. In immigration cases, prosecutorial discretion primarily is exercised with respect to removal proceedings (including the decision whether to place a person in proceedings), 57

ILRC, Practice Alert on Ramirez v. Brown, November 2017 Update: Adjustment Opportunities for People with TPS and People Whose TPS Will Expire, (Nov. 15, 2017), available at https://www.ilrc.org/practice-alert-ramirez-v-brown-november-2017-update-adjustment-opportunitiespeople-tps-and-people. 58 Available at https://www.ilrc.org/after-tps-options-and-next-steps. 59 See U.S. Immigration and Customs Enforcement, Fiscal Year 2017 ICE Enforcement and Removal Operations Report, Overview (last updated: Dec. 13, 2017), available at https://www.ice.gov/removalstatistics/2017. 60 Dept. of Homeland Security, Enforcement of the Immigration laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/publication/enforcement-immigration-laws-serve-national-interest.

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detention, parole, and the execution of removal orders. It is important to remember, and to fully explain to your client, that a favorable grant of prosecutorial discretion does not grant lawful immigration status to the client. While prosecutorial discretion remains available on a case-by-case basis, and should still be requested especially in cases with sympathetic circumstances, the current overriding policy of DHS is to no longer exempt entire classes or categories of immigrants from potential enforcement. 61 Those with any criminal offense are especially vulnerable to immigration enforcement. DHS claims that it does not “intend[] to remove the individual, case-by-case decisions of immigration officers.” 62 Nonetheless, it makes clear that “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category” from enforcement. 63 Administrative closure. Previously, immigration judges relied on a critical tool of case management to suspend removal proceedings in a variety of circumstances. This tool is commonly referred to as “administrative closure.” In May 2018, Attorney General Jeff Sessions issued a decision in Matter of Castro-Tum, holding that immigration judges and the BIA lack the authority to administratively close cases except where a DOJ regulation or court-approved settlement expressly allows for it. 64 This decision severely restricts when administrative closure is possible. Nonetheless, there remain a number of options depending on the client’s particular circumstances if administrative closure is not available, such as seeking continuances or termination instead of administrative closure, and advocates should continue to argue administrative closure is warranted where appropriate. B.

Deferred Action for Childhood Arrivals (DACA)

Deferred action is a formal type of prosecutorial discretion where a DHS official determines not to take action to remove someone, even though that person may be removable for being in the country without permission. Someone who is approved for deferred action is also eligible to submit an application for work authorization. 65 This power has been available to USCIS and ICE officers for many years, and in practice is only granted in very sympathetic cases with “strong equities.” For instance, those granted visas under VAWA are granted deferred action while waiting for the priority date for a visa to become current. Since 2012, Deferred Action for Childhood Arrivals (DACA) has been available as a special deferred action policy for young people who are low enforcement priorities. But on September 5, 2017, the Trump administration announced the rescission of the program. 66 Because of dedicated 61

Id. at 2. Id. at 4. 63 Id.; see also USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 64 27 I. & N. Dec. 271 (A.G. 2018). 65 See 8 C.F.R. § 274a.12(c)(14). Applicants apply for employment authorization on Form I-765 (with categories for deferred action and DACA). 66 Dept. of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca; see also Dep’t of 62

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advocacy and numerous lawsuits, DACA currently remains available in certain circumstances, although the future of the program is uncertain. 67 DACA provides grantees work authorization and protection from removal for a renewable twoyear period. 68 Although previously available, requests for advance parole based on DACA are no longer accepted. The future of the program is in constant flux. Presently, USCIS is only accepting DACA applications from those who have previously been granted DACA. At the time of this writing it is uncertain how long USCIS will continue to accept DACA applications from those who previously were granted DACA, or whether it will resume accepting DACA applications from people who have never been granted DACA. 69 At the time of this writing, USCIS is only accepting certain DACA renewal applications: a. If the client’s DACA expired on or after September 5, 2016, they may send USCIS a DACA renewal application. b. If the client’s DACA status expired before September 5, 2016, they must re-apply by filing their application as a first-time application rather than as a renewal, with all the required supporting documentation. USCIS updates DACA information and guidelines regularly, especially in light of the ongoing litigation, at https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivalsdaca.

Homeland Security, Memoranda: Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (Sept. 5, 2017), available at https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 67 For up-to-date information on the status of the DACA program, see https://www.ilrc.org/daca. 68 In November 2014, the Obama administration issued a memorandum that made major modifications to the DACA program, including lengthening the work permit period from two years to three years. This expansion was short-lived because of litigation. Nonetheless, a couple hundred DACA recipients received valid three-year work permits between November 2014 and February 2015. While the process for renewal for these individuals is the same as other DACA recipients, a successful subsequent renewal resulted in two-year work permit, rather than a three-year work permit. See DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf [hereinafter Deferred Action Memo]. 69 Note, however, that on August 31, 2018, a federal judge issued an opinion and order that rejected Texas and nine other states’ request for the court to temporarily halt DACA renewals. See Texas v. U.S., Case 1:18-CV-00068 (S.D. Tex. 2018). Therefore, at the time of publication, USCIS is still accepting and processing DACA renewal applications. Also, on April 24, 2018, a federal judge ruled that DHS must resume accepting new applications for DACA, but stayed the order for 90 days. See Nat’l Ass’n for the Advancement of Colored People v. Trump, 298 F.Supp.3d 209 (D.D.C. 2018); see also Nat’l Immigration Law Center, Status of Current DACA Litigation (last updated: May 16, 2018), available at https://www.nilc.org/issues/daca/status-current-daca-litigation/.

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When submitting an initial DACA request, which people who previously had DACA but their DACA status expired before September 5, 2016 must submit, the applicant must demonstrate that they: 1. 2. 3. 4.

Came to the United States under the age of sixteen; Have continuously resided in the United States since June 15, 2007; Were present in the United States and had no lawful status on June 15, 2012; Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or Armed Forces; 5. Have not been convicted of a felony offense, a significant misdemeanor offense, three non-significant misdemeanor offenses, and do not otherwise pose a threat to national security or public safety; and 6. Were under thirty-one-years-old on June 15, 2012. Note that juvenile adjudications are not an automatic bar to DACA, but they may be considered for discretionary purposes and taken into account in determining whether the person poses a threat to public safety or national security. 70 When submitting a DACA renewal request, an individual must show that they: 1. Did not depart the United States after August 15, 2012 without advance parole; 2. Have continuously resided in the United States since the last DACA grant was approved; 3. Have not been convicted of a felony, a significant misdemeanor, three non-significant misdemeanors; and do not otherwise pose a threat to national security or public safety. Applicants must pay a $495 filing fee and submit to biometrics. While there are very limited fee exemptions and no fee waivers for this application, a number of organizations offer fee assistance. 71 Note that DACA does NOT have any requirement that the applicant be admissible or not deportable—in other words, being inadmissible or deportable does not disqualify someone from DACA. This means that some criminal offenses (such as drug possession) that might bar someone from other forms of relief might not bar them from DACA. Similarly, people with prior final orders of removal are still eligible for DACA, even though they may be barred from other forms of relief. DACA is not federal law. As evidenced by the September 2017 announcement by Attorney General Sessions, the program can be terminated at any time. Currently, USCIS has stated that the information provided in the request for DACA will generally be protected from disclosure to 70

For an in-depth discussion of how juvenile delinquency affects eligibility for DACA and how to carefully disclose juvenile adjudications while still complying with state confidentiality laws, see ILRC & Public Counsel, Frequently Asked Questions, Deferred Action for Childhood Arrivals (DACA) and Juvenile Delinquency Adjudications and Records (2013), available at http://www.ilrc.org/daca. 71 For example, for a list of California-specific fee assistance resources, please consult the Ready California website. See Ready California, DACA Renewal Resources, available at https://ready-california.org/printresources/daca-renewal-resources/ (last visited: Sep. 6, 2018).

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ICE or CBP for the purposes of immigration enforcement proceedings. However, certain cases that are denied and involve a criminal offense, fraud, threat to national security or public safety, or exceptional circumstances may possibly be turned over to ICE and placed immediately in removal proceedings. 72 DACA has provided life-changing temporary relief from deportation and work authorization for thousands of young people residing in the United States. This program never would have been possible without the tireless advocacy of young people around the DREAM Act in the years prior to 2012. Although a permanent legislative solution for individuals who currently have DACA is often up for consideration, as yet there is no clear legislative fix. For more information on DACA, visit the ILRC’s DACA webpage: https://www.ilrc.org/daca. C.

Deferred action in sympathetic cases

Deferred action, of which DACA is a subcategory, continues to be an option for clients with compelling circumstances. Deferred action is essentially a form of prosecutorial discretion. DHS may place someone in the deferred action category either before or after a removal hearing. A person in deferred action may remain in the United States indefinitely (unless or until taken out of this category). In some instances, they may be eligible for certain public benefits and for work authorization. DHS has taken the position that only ICE can adjudicate a request for general deferred action, and ICE has indicated that it will only consider such a request when there is a law enforcement reason for keeping the person in the United States. This policy, therefore, severely restricts deferred action as a remedy, and advocates have been attempting to broaden this policy. Because deferred action is an extraordinary remedy, advocates should only request it when the client is ineligible for any other relief. If you do request deferred action, remember that because deferred action is entirely discretionary, ICE can consider any positive or negative factor in the case. Therefore, you need to argue all positive facts in your case. As with any discretionary decision, ICE can deny the request. The consequence of a denial depends in large part on whether the client is in removal proceedings when they request deferred action. If ICE is not yet aware of a noncitizen, who applies for and is denied deferred action, ICE might start removal proceedings after the noncitizen’s failed application brought themselves to ICE’s attention. In contrast, if ICE already knows about the noncitizen because they are in removal proceedings, and then denies deferred action, there are fewer risks involved in applying because DHS has already placed the applicant in proceedings.

72

Note that although DHS changed its NTA referral policy in June 2018, including in cases where applications are denied, its 2011 policy continues to apply to DACA applicants. See USCIS, Policy Memorandum: Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a Deferred Action for Childhood Arrivals (DACA) Requestor in Connection With a DACA Request or DACA-Related Benefit Request (Past or Pending) or Pursuing Termination of DACA, (June 28, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0161DACA-N otice-to-Appear.pdf.

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§ 16.8 Private Bills Passed by Congress Congress has the power to pass legislation to benefit an individual person. Such legislation is known as a “private bill.” The bill might grant permanent residence, citizenship, a waiver, or some other remedy. This sounds great, but in reality it is difficult to get Congress to pass one of these bills. Very few of these bills have succeeded in the past. Nevertheless, current immigration laws are so harsh and create so much hardship for U.S. citizens and others who will lose family members that private bills have become much more important. Generally, a congressional representative or senator will not consider a private bill unless all other legal avenues of relief have already been exhausted. Assuming the case is sympathetic, and the advocate has marshalled significant support for the client, there are two advantages to lobbying a representative for a private bill: 1. It is conceivable that you might obtain relief (or, even if you do not win a private bill, the legislator might lean on the local ICE to get some kind of discretionary assistance); and 2. You can educate the representative about the realities of how the laws affect immigrants, for everyone’s future benefit. The second reason is very important. Suspension of deportation, which was replaced by INA § 240A(b) cancellation of removal, was created by Congress because they were overrun with people bringing requests for private bills. They did not want to deal with the problems individually, and they understood how great the hardship was. We must again bring these cases to the offices of lawmakers so they see firsthand the effects of the current inhumane immigration laws and how harmed and angry their constituents are. A private bill can be introduced in either the U.S. Senate or the House of Representatives. To start the process, you and the client should approach your local Congressperson or Senator with the facts of the case. If the member of Congress is interested, they will introduce the legislation. A subcommittee reviews the bill. Both the House and the Senate must pass the bill, and then the President decides whether or not to sign it and make it law. Again, you are likely to be more successful if your case is sympathetic and if you have strong community support. A Congressperson will be less likely to ignore your request, for example, if it is backed by representatives of churches, the local human rights commission, a community center, a mayor or city councilperson, and other local centers of power. During this process, there is not an automatic stay of removal unless, at some point, a subcommittee of the House or Senate requests a report from ICE on the case.

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PART IV: SPECIAL ISSUES IN REPRESENTING YOUTH CHAPTER 17 IMMIGRATION CONSEQUENCES OF JUVENILE DELINQUENCY AND CRIME 1 This chapter includes:

§ 17.4 § 17.5 § 17.6 § 17.7 § 17.8 § 17.9 § 17.10 § 17.11 § 17.12 § 17.13 § 17.14 § 17.15 § 17.16 § 17.17

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§ 17.1 § 17.2 § 17.3

Overview ............................................................................................................ 475 Immigration Consequences of Juvenile Court Dispositions............................... 477 Reason to Believe the Person Engaged in or Assisted in Drug Trafficking ................................................................................................ 483 Drug Abuser or Addict ....................................................................................... 488 Physical or Mental Disorder Posing Threat to Self or Others ............................ 490 Prostitution ......................................................................................................... 491 Finding of Violation of a Domestic Violence Protective Order ......................... 492 False Claim to U.S. Citizenship ......................................................................... 493 Other Conduct That May Cause Problems: Violent Offenses, Sex Offenses, and Gang Conduct or Membership .................................................... 497 Discretion to Deny Immigration Relief Based on Juvenile Delinquency ......................................................................................... 503 Immigration Enforcement Actions Against Youth with Records ...................... 504 Other Potential Consequences of Juvenile Dispositions .................................... 505 Obtaining Juvenile Records, Sealing and Expunging Records, and Confidentiality Issues ......................................................................................... 506 Youth Convicted as Adults................................................................................. 512 Overview of Immigration Consequences of Adult Criminal Convictions ......................................................................................... 513 Immigration Enforcement in Schools and the Juvenile Justice System ............. 517 Resources ........................................................................................................... 519

§ 17.1 Overview Juvenile delinquency is an act that would be a crime if committed by an adult. Who constitutes an adult is defined by state law and varies from state to state. Under federal law, a disposition of juvenile delinquency is defined as a finding made by a juvenile court of a violation of law committed by a person prior to his or her 18th birthday. See 18 USC § 5031. A finding of a violation of law in the delinquency process is a juvenile delinquency adjudication and the sanction accompanying such an adjudication is a juvenile disposition. A juvenile adjudication is not considered a conviction of a crime, but a determination of the status 1

Some of this chapter is excerpted from Kids in Need of Defense (KIND) Pro Bono Manual, Chapter 10 which was produced by the ILRC for KIND and is found at: https://supportkind.org/resources/representingunaccompanied-children-training-manual-for-kind-pro-bono-attorneys/.

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of the offender. 2 Not every youth, however, who commits an offense while they are a minor will be tried in juvenile court. States will often treat older minors, who commit serious crimes, as adults and have their trials occur in adult court (called “waiver” or “transfer”), which may then result in a criminal conviction and adult criminal sanctions, instead of a juvenile delinquency adjudication and disposition. See Chapter 7 for an overview of the juvenile justice system process.

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Many criminal related inadmissibility and deportability grounds (removal grounds) are triggered only by criminal convictions. However, there are some grounds that are triggered by criminal related conduct alone. Dispositions of juvenile delinquency are not considered convictions under immigration law, and therefore, generally do not trigger the same consequences as adult criminal convictions. Even though juvenile delinquency dispositions are not criminal convictions, they can have a significant impact on individuals’ and their cases. Because the current Administration has expanded federal immigration enforcement priorities to cover any violation of immigration law, individuals with delinquency backgrounds, even without an adjudication, have been and will likely continue to be an immigration enforcement priority. In particular, the government has been targeting certain youth with a focus on allegations of gang affiliation, association, and membership. Also, numerous grounds of inadmissibility and deportability are triggered by conduct alone, so delinquency can trigger a specific consequence under immigration laws. Drugrelated incidents are particularly problematic under these grounds. Further, most forms of relief from deportation are discretionary. As such, even though juvenile delinquency may not trigger a statutory ground of inadmissibility or deportability, it will be considered by immigration judges or U.S. Citizenship and Immigration Services (USCIS) officers as a significant negative discretionary factor in any application for lawful status or other immigration benefit. If there is a denial by USCIS and the person lacks lawful status, then under new guidance put out by USCIS, a Notice to Appear (NTA, the charging document that begins a case in immigration court) will be issued. 3 See Chapter 6 for additional information. Finally, although an applicant may never have been charged or adjudicated delinquent, virtually all immigration applications require disclosure of any criminal activity, including conduct committed as a minor. When cases involve adult criminal convictions, they can trigger devastating consequences for any person, regardless of age. Like all other applicants, youth are likely to be inadmissible or 2

See the Federal Juvenile Justice and Delinquency Prevention Act, Pub. L. No. 93-415, §§ 101-102, 88 Stat. 1109 (1974). 3 USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens PM-602-0050.1 (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf [hereinafter USCIS NTA Memo]. On July 30, 2018, USCIS announced that implementation of the USCIS NTA Memo is postponed until USCIS components “create or update operational guidance on NTAs and Referrals to ICE.” See USCIS, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018), https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum. It is unclear therefore when the guidance will be implemented. Nonetheless, advocates must engage in the risk analysis that the USCIS NTA Memo now requires in all affirmative cases and advise their clients of the same.

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deportable if they have been convicted of any number of adult offenses—for example, crimes of moral turpitude and drug-related offenses. In some cases, these convictions are not waivable at all, even if the youth is otherwise eligible for a form of relief. In other cases, convictions may be waivable, but the waiver standards are not as generous as those for other inadmissibility grounds that do not involve criminal conduct.

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This chapter is intended to provide advocates with background on key issues involving delinquency of minors and will primarily focus on the immigration consequences of delinquency, with only a short overview of the immigration consequences of crimes. The analysis of the immigration consequences of criminal convictions resulting from adult court is incredibly complex and beyond the scope of this manual. For more information on the immigration consequences of crime, please consult ILRC’s website at http://www.ilrc.org/crimes and other resources referenced in § 17.17. When dealing with any client’s criminal issue resulting from delinquency or adult court, you should seek the help of experts on the immigration consequences of delinquency and crimes. WARNING! Any contact with police, probation, or other law enforcement officers, including school resource officers, may significantly complicate a youth’s immigration case and advocates should advise their clients to stay out of trouble. § 17.2 Immigration Consequences of Juvenile Court Dispositions Generally speaking, there are four primary ways in which juvenile conduct that results in a violation of U.S. law may have immigration consequences: 1. The youth is charged as an adult and sustains a criminal conviction, which triggers a conviction-based removal ground and can serve as a mandatory bar to immigration relief; 2. The youth is adjudicated delinquent in juvenile court which triggers a conduct-based removal ground; 3. Evidence of the youth’s conduct results in an adverse discretionary decision in their immigration case. If the case is filed as an affirmative one and the youth otherwise lacks immigration status, the denial will trigger initiation of removal proceedings; and 4. Evidence or any other information of the youth’s conduct triggers an immigration enforcement action, including detention. A.

A juvenile court disposition is not a conviction under immigration law

Many, although not all, immigration criminal penalties require a conviction. 4 It is well established that a juvenile delinquency adjudication does not constitute a conviction for any immigration purpose, regardless of the nature of the offense. In Matter of Devison, the Board of Immigration Appeals (BIA) found that it had consistently held “that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of

4

See, e.g., ILRC, § N.2 Conviction (Jan. 2013), https://www.ilrc.org/chart; ILRC, What Qualifies as a Conviction for Immigration Purposes? (Mar. 2018), https://www.ilrc.org/chart.

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juvenile delinquency are not convictions for immigration purposes.” 5 As such, if immigration advocates become involved in a case while the youth is facing charges, it is critical to keep the case in the juvenile justice system, rather than try the child or youth as an adult in criminal court. Children and youth who are tried and convicted in adult court generally will be found to have convictions under immigration law, exposing them to the numerous conviction-based grounds of removal and in some cases mandatory bars to immigration relief. On the other hand, youth with juvenile delinquency dispositions are exposed to conduct-based grounds of removal (described below) and adverse discretionary decisions.

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Admissions of bad conduct. A noncitizen who formally admits committing all of the elements of a crime involving moral turpitude or an offense relating to controlled substances is inadmissible, even absent a conviction.6 A person who admits conduct committed while a minor that comprises the essential elements of a crime is generally not inadmissible under this ground. 7 See discussion in Subsection C, below. PRACTICE TIP: Practitioners who must determine whether an adjudication was made in delinquency proceedings should not go solely by the age of the noncitizen, but should check the record of proceedings. If the record of proceedings indicates that proceedings were in juvenile court, counsel can be assured that there is no conviction. B.

Delinquency findings that trigger conduct-based removal grounds

Although not a conviction, a delinquency adjudication can still create problems for immigrant youth. Certain grounds of inadmissibility and deportability do not depend upon conviction; mere “bad acts” or status can trigger the penalty. While mere “bad acts” can trigger the consequences of conduct-based removal grounds, some conduct is “waivable” depending on the type of immigration relief sought. As such, the type of relief sought may be influenced by the youth’s juvenile record. Below is a chart of commonly applied conduct-based grounds, the juvenile court dispositions that may provide the government with evidence that the person comes within the ground, the provision in the Immigration and Nationality Act (INA) for the ground, and whether and when the conduct is waivable. See Appendix PP for a quick reference chart on the immigration consequences of delinquency. Each section is discussed in further detail in subsequent sections.

5

Matter of Devison, 22 I & N Dec. 1632 (BIA 2000), citing Matter of C. M., 5 I & N Dec. 27 (BIA 1953); Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981). 6 INA § 212(a)(2)(A)(i). 7 Matter of F, 4 I & N Dec. 726 (BIA 1952).

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DELINQUENCY DISPOSITION IMMIGRATION PENALTY AND WAIVER

Drug Abuse or Addiction: Repeated drug findings, finding of abuse (more than one time experimentation in the last year), addiction to drugs

Inadmissible and deportable for drug addict or abuser. INA § 212(a)(1)(A)(vi). Waivers often available

Behavior Showing a Physical or Mental Condition That Poses a Current Threat to Self or Others: Including suicide attempt, torture, mayhem, repeated sexual offenses against younger children (predator), repeated alcohol offenses (showing alcoholism)

Inadmissible for physical or mental disability posing threat to self or other. INA § 212(a)(1)(A)(iii). Waivers may be available

Prostitution (being the prostitute or the pimp, not the customer)

Inadmissible for engaging in prostitution. INA § 212(a)(2)(D). Waivers often available

Violations of Protective or “No-Contact” Orders: Designed to prevent repeated harassment, credible threats of violence or bodily injury

Deportable where court finds violation of domestic violence protective order designed to prevent repeated harassment, credible threats of violence or bodily injury. INA § 237(a)(2)(E)(ii). Some waivers available

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Drug Trafficking: Sale, possession for sale, Inadmissible where DHS/ICE has “reason to cultivation, manufacture, distribution, delivery, believe” participation in drug trafficking. INA other drug trafficking offenses § 212(a)(2)(C). No waivers except for the S, T, or U visa Note: there are arguments that this ground of inadmissibility should not be applicable to juvenile conduct or that a legal excuse such as duress should be a defense to triggering the ground, but these arguments should only be raised in defensive cases as there is no precedent on these issues.

False Claim to U.S. Citizenship: Use of false Inadmissible and deportable for false claim to documents and fraud offenses relating to false U.S. citizenship. INA § 212(a)(6)(C)(ii), (F). claim to citizenship Waivers may be available, e.g., SIJS and U visa Of these grounds, the most dangerous to a noncitizen youth is the inadmissibility ground that is triggered merely if the government has “reason to believe” (RTB) that the person is or has been, or has assisted, a drug trafficker. (See § 17.3 for an in-depth discussion about this ground and multiple arguments for why it should be held inapplicable to minors.) If the youth is undocumented, becoming inadmissible for “reason to believe” can be a permanent bar to obtaining lawful status despite significant equities since there are generally no waivers available for this conduct-based ground of inadmissibility.

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Other delinquency findings may be amenable to a discretionary waiver on inadmissibility or deportability, depending on the immigration context. For example, an applicant for special immigrant juvenile status may either be exempt from a ground of inadmissibility or apply for a discretionary waiver of inadmissibility under any of the conduct grounds except for reason to believe.

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Apart from the bar to Family Unity (which affects a relatively small number of people, see discussion in § 17.11) and the bar to petitioning a family member relating to convictions for sexual abuse of a minor (see § 17.11), delinquency findings of other activities not listed above such as sex offenses or violent offenses including serious assault or gang-related activity do not trigger automatic bars to obtaining immigration status. 8 Such findings, however, will likely be considered serious negative factors in any discretionary decision, and may be insurmountable. This is particularly true for allegations of gang membership and gang-related activity since targeting noncitizens, including youth, with alleged gang involvement is a high priority to DHS. In fact, DHS has a pattern of targeted actions against such youth, which have resulted in denials of immigration applications by USCIS and courts. 9 Many juveniles have also been subject to secure detention pending removal proceedings because of alleged gang activity and affiliation and for violent or sex related offenses. A discussion of detention is found in Chapter 18. WARNING! Be aware that gang membership, affiliation, association, and activity, violent offenses, and sex offenses will likely cause problems for noncitizen youth including targeted immigration enforcement action, secure detention placement, denial of immigration applications as a matter of discretion, and the initiation of removal proceedings for affirmative applications that are denied. C.

Admission by an adult or minor of conduct committed while a minor is not a formal “admission” for purposes of certain criminal conduct grounds of the INA triggering inadmissibility

Under INA § 212(a)(2), a noncitizen who is convicted of a controlled substance crime or a crime involving moral turpitude can be found inadmissible. 10 Furthermore, inadmissibility applies if the noncitizen admits to the essential elements of either of these types of crimes, even without a conviction. An admission occurs when: (1) the conduct in question involves a crime, 11 (2) the

8

Practitioners should be aware, however, that Congress over the years and even recently has actively tried to push legislation that would include immigration consequences for conduct involving gang-related affiliation, association, activity, and membership. Check www.immigrantjusticenetwork.org for updates. 9 See, e.g., ILRC, Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members (Jan. 22, 2018), https://www.ilrc.org/sites/default/files/resources/depor t_by_any_means_nec-20180521.pdf; Saravia v. Sessions, 280 F.Supp.3d 1168 (N.D. Cal. 2017). 10 INA § 212(a)(2)(A)(i). 11 Matter of De S-, 1 I & N Dec. 553 (BIA 1943) (attempt to smuggle not a crime); Matter of M-, 1 I & N Dec. 229 (BIA 1942) (remarriage not punishable as bigamy); Matter of R-, 1 I & N Dec. 118 (BIA 1941) (fraud in itself not a crime).

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government provides a plain language description of the crime, 12 and (3) the admission is voluntary. 13

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These grounds of inadmissibility based on formal admissions, however, do not apply to minors or adults who merely admit committing acts of juvenile delinquency. The Board of Immigration Appeals held that an admission made by a minor or adult about conduct that was treated or would have been treated in juvenile delinquency proceedings does not trigger inadmissibility under these grounds, because the admission is of committing juvenile delinquency, not a controlled substance or moral turpitude “crime.” 14 This is in keeping with consistent holdings of the Board of Immigration Appeals “that acts of juvenile delinquency are not crimes … for immigration purposes.” 15 Advocates will have to determine whether the conduct at issue was or would have been treated in delinquency proceedings or adult criminal proceedings. Different states have different standards to determine when a child can be charged and convicted as an adult. By examining the rules for when a youth can be charged as an adult in a particular jurisdiction, a practitioner can determine whether their client’s statements could be treated as an admission of a crime. The ILRC issued a practice advisory for the Vera Institute of Justice on the legal and ethical considerations in disclosing juvenile conduct, which is currently in the process of being updated. Contact Rachel Prandini, [email protected] to obtain a copy. PRACTICE TIP: Answering criminal questions on Form I-485, Application for Adjustment of Status. There are many pertinent questions on Form I-485, application for adjustment of status, relating to crimes. They can be found at Part 8, Criminal Acts and Violations. Advocates should remember that because the Form I-485 is used both for minors and adults in different types of cases, the questions on the form often do not take into account special considerations for youth, such as the delinquency adjudications are not the same as convictions. Such special considerations can be used as basis in some cases to legally answer “no” to questions that a client may be tempted to answer “yes” to on first glance.

12

Matter of K-, 9 I & N Dec. 715 (BIA 1962); but compare United States ex rel. De La Fuente v. Swing, 239 F. 2d 759 (5th Cir. 1956). See also Matter of G-M-, 7 I & N Dec. 40, 42 (AG 1956); but compare Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 13 Matter of G-, 6 I & N Dec. 9 (BIA 1953); Matter of M-C-, 3 I & N Dec. 76 (BIA 1947); Matter of G-, 1 I & N Dec. 225 (BIA 1942). 14 Matter of M-U-, 2 I & N Dec. 92 (BIA 1944) (admission by adult of activity while a minor that would be treated as juvenile delinquency under the applicable state law is not an admission of committing a crime involving moral turpitude triggering inadmissibility). 15 Matter of Devison, 22 I & N Dec. 1362 (BIA 2000) (en banc) (citing Matter of C-M-, 5 I & N Dec. 327 (BIA 1953); Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981)). In Devison, the Board held that this long standing rule was not changed by the 1996 enactment of a statutory definition of conviction at INA § 101(a)(48)(A).

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Ethics of disclosing juvenile conduct. Attorneys have an ethical duty to be candid to the court, but also to be zealous advocates for their clients. 16 Notably, the rules of professional conduct on candor do not require affirmative disclosure, but only require not making false statements of fact or law to the court. In immigration cases involving juvenile delinquency, youth must strike a delicate balance between being truthful, but also disclosing only what is minimally necessary to address government questions so that the information is not adversely used against them. In particular, counsel should evaluate the strength of their legal argument against disclosure of the relevant evidence in the application because even if it is not affirmatively disclosed, it may come up during the USCIS interview based on evidence in the officer’s possession and trigger initiation of removal proceedings in an affirmative case, or it may come up in court, depending on the procedural posture of the case. It would also be wise to find out local practices in the applicable jurisdiction around this issue. When there is a strong justification for non-disclosure, many advocates in practice answer “no” to some of the pertinent questions. Other advocates prefer to answer “no” or leave the box blank, but include an attachment with the justification. Regardless, advocates who have these issues come up should be prepared to present their arguments for nondisclosure and prepare their clients to speak about the conduct, since even if the box is marked “no,” the issue may come up at some later point in the immigration process. Finally, if a client makes a disclosure to the advocate that clearly shows they are ineligible for the benefit sought, the attorney must inform the client of such ineligibility and decline to go forward with the case. * Deciding whether to apply for an immigration benefit with a delinquency record. It is important to assess the case as a whole in determining whether to apply affirmatively for an immigration benefit. In June 2018, USCIS issued new guidance on when it will issue an NTA against someone who applies for an immigration benefit. 17 This new guidance makes it much more risky for undocumented people including youth to affirmatively apply for immigration benefits, as the memo directs USCIS to issue an NTA in any case in which a benefit is denied and the person lacks immigration status. See Chapter 6 for additional information. For detailed guidance on applying for SIJS affirmatively with a delinquency record, see ILRC, Risks of Applying for Special Immigrant Juvenile Status in Affirmative Cases (Aug. 31, 2018), https://www.ilrc.org/risks-applying-special-immigrant-juvenile-status-sijs-affirmative-cases. Counsel should carefully weigh the severity, length, and recency of the record against the positive equities in the case. Some factors to consider are: • How long ago the offense occurred; • Any mitigating circumstances underlying the offense; • Evidence of rehabilitation;

16

The ABA Model Rules of Professional Conduct (MRPC) set out two roles for lawyers—requiring them to be (1) zealous advocates in representing their clients, and (2) candid in revealing both fact and law to the court. The preamble to the MRPC further elaborates on the meaning of a “zealous advocate.” It provides that as an advocate, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” 17 USCIS NTA Memo, supra note 3.

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• Positive school record; and/or • Community contributions.

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Advocates should also consider the timing of the application to minimize risk. If the offense occurred recently it might be wise in some cases for the person to wait awhile, possibly a year, to allow time to show rehabilitation. But, there may be no time like the present for some people— since the passage of time could increase the chance that a person picks up another offense, perhaps out of hopelessness about their prospects or related to doing unauthorized work or otherwise finding ways to survive in the absence of some legal relief. Advocates should be particularly careful in applying for any affirmative immigration benefit on behalf of a person who has a criminal conviction, either as a result of being tried as an adult although the offense was committed as a minor, or for a conviction sustained between the ages of 18 and 21 (as the definition of a child for immigration purposes is under 21). For youth who already have been flagged by Immigration and Customs Enforcement (ICE) while in local custody or are currently in removal proceedings, advocates should proceed with seeking immigration relief on their behalf since the individual has already been identified by the Department of Homeland Security (DHS) and is already at risk of removal from the United States. § 17.3 Reason to Believe the Person Engaged in or Assisted in Drug Trafficking A noncitizen is inadmissible if immigration authorities have probative and substantial “reason to believe” (RTB) that they ever have been or assisted a drug trafficker in trafficking activities. 18 This ground also applies to the spouse, son, or daughter of a drug trafficker if they received any “financial or other benefit” from the drug trafficking within the previous five years. 19 An important distinction in immigration law relevant to this particular provision is that under immigration law, the definition of a child is a person under the age of 21, whereas a son or daughter in immigration law is someone over the age of 21. 20 As such, the “reason to believe” family ground should only apply to persons who received the benefit after reaching the age of 21 and not unduly punish children and youth who may have received some “benefit” from drug trafficking while still a child. Becoming inadmissible for “reason to believe” can be a permanent bar to obtaining lawful status despite significant equities and mitigating factors since there are no waivers available for this conduct-based ground of inadmissibility in most different forms of immigration relief. There are, however, a number of defenses that practitioners can assert to argue that the ground is inapplicable even where a waiver does not exist. A summary of these defenses is provided in Subsection C.

18

INA § 212(a)(2)(C). INA § 212(a)(2)(C)(ii). 20 INA § 101(b)(1). 19

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A.

Penalties for reason to believe

While a conviction is not necessary to trigger this ground of inadmissibility, a delinquency adjudication or substantial underlying evidence showing sale or a related drug trafficking offense will alert immigration officials and serve as a reason to believe. Because “reason to believe” does not depend upon proof by conviction, the government is not limited to the record of conviction and may seek out police or probation reports or use defendant’s out-of-court statements.

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The reason to believe ground is a very serious ground that the government applies to children and youth as well as adults and cannot be waived in most applications for lawful status. If the youth is undocumented, becoming inadmissible for “reason to believe” can be a permanent bar to obtaining lawful status despite significant equities and mitigating factors, including family and community ties and determinations of abuse, abandonment and/or neglect. It can also serve as a bar to adjustment of status after a grant of asylum despite a strong claim of persecution. 21 Virtually the only relief available to such a person would be an application for U nonimmigrant status, “U Visa” (see Chapter 10), for victims of certain serious crimes who assist law enforcement, or for T nonimmigrant status, “T visa” (see Chapter 15) for victims of trafficking. TRAVEL WARNING! If the youth is a lawful permanent resident, the “reason to believe” inadmissibility ground cannot be used as a basis to deport/remove him unless he departs the United States and attempts to reenter, at which point he would be placed in removal proceedings. 22 Additionally, a finding of “reason to believe” may impact a lawful permanent resident’s application for U.S. citizenship. B.

Standards and analysis of the reason to believe ground

INA § 212(a)(2)(C) provides that a person is inadmissible if “the consular officer or the Attorney General knows or has reason to believe … is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in § 102 of the Controlled Substances Act (21 USC 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.” The scope of this inadmissibility ground is broad. Someone whom USCIS ever suspected dealt drugs in the past, even as a juvenile and without a conviction, could be found inadmissible. There are important limits, however, to this ground of inadmissibility, to which advocates should hold DHS. Although the plain language of the statute provides that the ground not only includes individuals who actually sell drugs, but also individuals who facilitate or assist in the drug trade, under U.S. Supreme Court precedent there are limits to what constitutes drug trafficking. In Lopez v. Gonzales, the Court held that “ordinarily [illicit] ‘trafficking’ means some sort of commercial

21 Asylees and refugees, like other noncitizens, must be admissible to adjust their status to lawful permanent residency. While there is a generous waiver for asylees and refugees under INA § 209(c), which waives almost all grounds of inadmissibility, it does not waive the “reason to believe” ground or sections of the terrorism/security grounds. 22 As such, noncitizen youth who are ever implicated in any way in drug trafficking activity should never leave the United States unless they become U.S. citizens.

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dealing.” 23 The BIA similarly found that trafficking includes, at its essence, a “business or merchant nature, the trading or dealing in goods.” 24

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Further, although the standard of what constitutes a “reason to believe” is lower than that required for an admission to an offense (for instance, individuals against whom DHS has evidence that they engaged in trafficking or assisted in trafficking drugs in the past, even without a conviction, could be found inadmissible), 25 DHS must nonetheless have more than a mere suspicion—they must have “reasonable, substantial, and probative evidence,” that the person engaged in drug trafficking. 26 This means that an arrest or charge of drug trafficking by itself should not suffice as substantial evidence to prove inadmissibility under “reason to believe.” 27 The government must support the charge with other evidence such as a police report or other documentation of the drug trafficking, testimony from police, detectives, or other officers, or admissions from the person himself. 28 The Department of State provides a list of examples where a reason to believe might be 23

Lopez v. Gonzales, 549 U.S. 47, 53 (2006). Matter of Davis, 20 I & N Dec. 536, 541 (BIA 1992). Practitioners should be aware, however, that guidance issued by the Department of State is in tension with Lopez and Matter of Davis in that it provides that the reason to believe inadmissibility ground applies to someone who purchases drugs with the intent to sell even though they never resell them and to individuals who receive no gain or profit from the transaction if they act “knowingly or consciously as a conduit between supplier and customer.” U.S. Dep’t of State, 9 Foreign Affairs Manual 40.23 Notes n.1. No cite is provided for this assertion within the manual. Advocates, therefore, should argue that the U.S. Supreme Court and BIA definitions control. 25 Matter of Favela, 16 I & N Dec. 753 (BIA 1979) (individual excluded based on his admission that he attempted to smuggle marijuana, even though he was not convicted of a controlled substance offense); In re R-H-, 7 I & N Dec. 675, 678 (BIA 1958) (individual excluded based on his admission that he helped dealer deliver marijuana, even though he was never convicted of it). 26 Matter of Rico, 16 I & N Dec. 181, 185-86 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000); see also, Matter of Favela, 16 I & N Dec. 753; Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992) (government’s knowledge or reasonable belief that an individual has trafficked in drugs must be based on “credible evidence”); U.S. Dep’t of State, 9 Foreign Affairs Manual 40.23 Notes n. 2(b). 27 In re Arreguin de Rodriguez, 21 I & N Dec. 38, 42 (BIA 1995) (dismissing the former INS’s reliance on a police report to find that the applicant engaged in alien smuggling because of the absence of a conviction or corroborating evidence of the allegations). 28 Decisions from the BIA and circuit courts that uphold reason to believe determinations were also based on more than a mere suspicion—in those cases, the individual either admitted he had trafficked in drugs or was caught with a significant quantity of them. See Castano v. INS, 956 F.2d 236, 238, n. 6 (11th Cir. 1992) (INS “in effect ‘retried’” the criminal case, introducing “lengthy evidence, both documentary and testimonial,” and alien did not contest facts); Matter of Favela, 16 I & N Dec. at 754 (alien “admitted his conscious participation” in attempt to smuggle marijuana); Matter of Rico, 16 I & N Dec. at 182-83 (BIA did not rest its conclusion on evidence of arrest for drug trafficking, but testimony of the Border Patrol Agent and the Customs Inspector that he frequently drove the car in which 162 pounds of marijuana was found as well as testimony of special agents of the Drug Enforcement Administration in the investigation of the incident); Matter of R-H- 7 I & N Dec. 675, 678 (1958) (alien admitted he helped dealer deliver marijuana cigarettes to customers); see also Igwebuike v. Caterisano, 230 Fed. Appx. 278, 283 (4th Cir. 2007) (unpublished) (holding that the drug sale charges for which the petitioner was acquitted were alone insufficient to constitute “reason to believe,” and that “reason to believe” charge triggering inadmissibility must be based on facts underlying an arrest and those facts must be cited in support of the charge); LopezMolina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted 24

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established, including a “conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports.” 29 Notably, the Department of State states that conclusions from other officers or evaluators about someone’s involvement in drug trafficking, no matter how trustworthy, should not form the basis for inadmissibility. 30

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The government must also present evidence that shows the applicant was knowingly and consciously connected to the drug trafficking in some way (e.g., aider, abettor, or beneficiary) in order to trigger this ground of inadmissibility. 31 The government must prove the essential element of intent, which is the specific intent to traffic drugs. 32 A summary follows in the next section of arguments to challenge the requisite intent. The government may argue that an arrest, admission, adjudication in delinquency proceedings, or criminal conviction for sale, possession for sale, possession with intent to deliver, or similar offenses alone will trigger this ground. Advocates should be aware that both the BIA and the Eleventh Circuit Court of Appeals have held that the facts underlying drug trafficking convictions, even if the offenses themselves no longer trigger conviction-based immigration consequences, can be used to exclude a person under the reason to believe inadmissibility ground. 33 However, the Eleventh Circuit found in another case that the government’s evidence did not amount to a reason to believe where the individual’s conviction for drug trafficking was vacated, the individual never admitted commission of the acts in criminal court, and the government did not corroborate hearsay statements in police reports, which contained information that conflicted with the individual’s testimony of what happened. 34 C.

Avenues to contest application of the reason to believe ground

Because there are virtually no waivers for the reason to believe ground and the federal government considers drug trafficking a serious adverse discretionary factor in any application for relief, advocates must be creative in their defense strategies when representing youth in documents describing the police surveillance of the person and the person’s subsequent attempt to escape with 147 pounds of marijuana); Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (upholding a denial of adjustment of status because, in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner). 29 U.S. Dep’t of State, 9 Foreign Affairs Manual 40.23 Notes n. 2(b). 30 Id. at n. 2(c). 31 INA § 212(a)(2)(C)(i). 32 See, e.g., Matter of Rico, 16 I & N Dec. at 186 (finding that the petitioner was a “knowing and conscious participant” in an attempt to smuggle drugs into the United States which “brings him within the provisions of section 212(a)(23) of the Act relating to ‘illicit trafficker’”); Matter of Favela, 16 I & N Dec. at 755 (upholding the IJ’s finding that the alien was a “conscious participant” in an attempt to smuggle drugs into the United States and thereby excludable under INA § 212(a)(23)). 33 See Matter of Favela, 16 I & N Dec. 753 (juvenile convicted under the Federal Youth Corrections Act of a drug trafficking offense which after expungement rendered the conviction itself of no immigration consequence, could still be excluded under the reason to believe ground based on facts underlying the expunged conviction); Castano, 956 F.2d 236 (facts underlying a drug trafficking conviction which had been expunged under the former Federal Youth Corrections Act could still be used to exclude the person under the reason to believe ground). 34 Garces v. Attorney General, 611 F.3d 1337 (11th Cir. 2010).

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removal proceedings with potential drug trafficking issues. The following summary of arguments are just that—arguments—to support the assertion that the reason to believe ground is inapplicable to all youth or to certain youth based on the facts of their case. Advocates should advise their client of the serious potential risks of affirmatively applying for an immigration benefit when the youth is not already in removal proceedings. See Chapter 6 on risks and benefits in SIJS cases. Drug trafficking charges and adjudications are taken very seriously by USCIS and may lead to a denial of an immigration benefit and consequently, the commencement of removal proceedings against the youth under the new Notice to Appear guidance. To read the analysis on each of the following arguments, please consult ILRC’s practice advisory, The Impact of Drug Trafficking on Unaccompanied Minor Immigration Cases (May 2015), https://www.ilrc.org/impact-drug-trafficking-unaccompanied-minor-immigration-cases. There is no precedent authority holding that the reason to believe ground of inadmissibility applies to juvenile delinquent acts. Congress’ intent in enacting the reason to believe ground of inadmissibility was not to cover minors forced into drug trafficking. It was enacted to exclude known drug dealers who avoided a conviction. The youth has not engaged in any unlawful or illicit activity. The conduct at issue does not meet the definition of drug trafficking. The youth did not knowingly and consciously traffic drugs. DHS does not meet its burden of proving that it has a reason to believe the youth was involved in drug trafficking. DHS has insufficient evidence to make an allegation of inadmissibility. Even if the youth consciously trafficked drugs, the conduct is excused by duress. The youth committed the act to avoid unlawful physical threats by another person, which should justify, excuse, or mitigate the conduct triggering the ground of inadmissibility.

PRACTICE TIP: Obtain and review the juvenile/criminal record. Where your client has a criminal conviction or juvenile adjudication, be sure to obtain a copy of the entire juvenile or criminal court file/record of proceedings and/or consult with the defense attorney if possible if it is unclear whether your client admitted to the facts as alleged. You may find that although the client pled guilty to an offense, there may be an argument that the client did not admit to facts that would meet the definition of drug trafficking or substantiate a reason to believe. D.

Waiver of reason to believe inadmissibility for U and T nonimmigrant status applicants

The U and T nonimmigrant visas are the few forms of relief that include a waiver of this ground of inadmissibility. The waiver available for U nonimmigrant visa applicants is located at INA § 212(d)(14), and the waiver available for T nonimmigrant visa applicants is at INA § 212(d)(13). The U nonimmigrant status waiver allows the reason to believe ground to be waived “if the Secretary of Homeland Security considers it to be in the public or national interest to do so.” For a discussion of U nonimmigrant status see Chapter 10. T nonimmigrant status provides a waiver by the Attorney General in their discretion provided the particular inadmissibility ground to be waived was caused by or incident to the noncitizen’s victimization. For criminal activities not

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incident to the trafficking, the application will only be granted in “exceptional cases.” 35 Because coerced drug trafficking may form the very basis for eligibility for the T visa, it naturally follows that the drug trafficking conduct is waivable. For a discussion on T nonimmigrant status see Chapter 15. § 17.4 Drug Abuser or Addict

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Drug abuse and addiction are grounds of inadmissibility and deportability. Unlike some of the other grounds discussed in depth in this chapter, the drug abuse and addiction grounds are listed in the health-related grounds of inadmissibility and deportability of the Immigration and Nationality Act, rather than the criminal and related grounds. However, these grounds of inadmissibility and deportability often arise as a result of delinquent conduct. A noncitizen is inadmissible if the drug addiction or abuse is current, and deportable if the addiction or abuse occurred at any time after admission into the United States, even if they have overcome the problem. 36 The issue of drug abuse and addiction generally comes up during the medical examination of the child or youth—a requirement for applications for lawful status—or during the interview with an immigration officer. In practice, advocates have reported that this ground is not being charged for children and youth already in the United States as often as people feared. However, the ground has been problematic for children and youth who are going through consular processing abroad. Regardless, advocates should be prepared for this ground should it become an issue and make sure that any finding of drug abuse or addiction is truly based on the criteria set forth in the Centers for Disease Control and Prevention’s “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders for Panel Physicians,” rather than on speculation. 37 If counsel is defending a permanent resident against removal under this ground, counsel should challenge the finding in the case and contest removability by submitting evidence from an independent physician on the issue of drug abuse or addiction. 38 Definitions of drug abuse and addiction. The Code of Federal Regulations defines “drug abuse” as “the non-medical use of a controlled substance listed in § 202 of the Controlled Substances Act, which has not necessarily resulted in physical or psychological dependence,” and “drug addiction” as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 USC § 802), which has resulted in physical or psychological dependence.” 39 The Centers for Disease Control and Prevention (CDC), which is part of the Department of Health and Human Services (HHS), has defined substance abuse and dependence, in the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and

35

8 CFR § 212.16(b)(2). INA § 212(a)(1)(A)(iii) (inadmissibility ground); INA § 237(a)(2)(B)(ii) (deportation ground). 37 These instructions can be obtained at: https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html. 38 See Matter of FSC, 8 I & N Dec. 108 (BIA 1958) (a noncitizen’s admission of addiction was held to be not sufficient when contradicted by two physician’s opinions and repudiated by the alien). 39 42 CFR §§ 34.2(g) and (h) (emphasis added). 36

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Substance-Related Disorders for Panel Physicians.” 40 This document indicates that a finding of substance dependence (drug addiction) or repetitively abusing substances (drug abuse), will only be made if the noncitizen meets current DSM 41 diagnostic criteria for substance dependence or abuse with any of the specific substances listed in Schedules I through V of § 202 of the Controlled Substances Act. The Current CDC standards are a vast improvement over the past, when it considered any drug use that went beyond mere experimentation to be drug abuse.

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Definition of current abuse or addiction triggering the inadmissibility ground. The ground of inadmissibility applies to current, not past, abuse or addiction. This is because the language of statute punishes a person who is determined “to be” an abuser/addict, employing the present tense. (A person who has been an addict or abuser at any time since admission into the United States is deportable, however.) It is important to note that current drug abuse or addiction will include any use in the prior year. Theoretically, a doctor first should decide if a person is a drug abuser or addict as defined above. The standard for full “remission” for “drug abusers” under the DSM is a 12-month period of no substance use or associated harmful behavior. This was updated on June 1, 2010 from a prior three-year required remission period. In practice sometimes the civil surgeon or panel physician will make a finding of “drug abuse” even if the applicant admits to only abusing drugs on a couple occasions. The civil surgeon or panel physician still retains discretion to determine a longer period and may suggest or require that the applicant undergo random drug testing, take drug abuse classes, etc., in order to meet the criteria for “remission.” When the remission period is over, the applicant must undergo a new medical exam before an immigrant visa can be issued. Example: Rebecca admitted to the civil surgeon that she has smoked marijuana two or three times, with the last occasion occurring about nine months ago. She is denied a green card as a “drug abuser” but can reapply in three months’ time—because that will be the point at which she has been in “remission” for 12 months. She should arrange for random drug testing and take classes in her country while she awaits the expiration of the remission period and have the test results sent directly from the testing facility to the panel physician. There is no waiver available for this ground of inadmissibility. Note that the passage of time, however, could mean that this ground no longer applies. PRACTICE TIP: Persons whose blood tests reveal traces of marijuana or other drugs (which can remain in the blood for some time, even many months) may be held inadmissible. Warn your clients about this before they go to see a civil surgeon or to a visa appointment. You may want to speak to the young person separately from the parents. Children that have been living within the United States and are sent back to their home country for consular processing must be thoroughly

40 The current instructions can be obtained at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html. 41 DSM stands for the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, which provides a common language and standard criteria for the classification of mental disorders. For further information, see https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

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screened for this issue and prepared for the medical examination prior to departure. Should this issue arise, the youth may end up separated from parents until they can show remission. * NOTE: Alcohol. Alcoholics are inadmissible under a separate ground for having a “physical or mental disorder” that can pose a threat to self or others. See the following discussion in § 17.5. § 17.5 Physical or Mental Disorder Posing Threat to Self or Others

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People are inadmissible: a. who have a “physical or mental disorder and behavior associated with the disorder” that poses “a threat to the property, safety, or welfare of the noncitizen or others,” or b. who had such a disorder and history of such dangerous behavior in the past, which is “likely to recur or to lead to other harmful behavior.” 42 This ground might affect people who have been committed to mental institutions for violent behavior, who have been diagnosed as sexual predators, or even who are suicidal. The CDC provides guidance for civil surgeons and panel physicians in classifying applicants in the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-related Disorders for Panel Physicians.” 43 These instructions should be consulted in the event you have a youth client who may potentially be found to have such a disorder. Both domestic violence and alcoholism can serve as bases for inadmissibility under this ground. 44 Domestic violence arrests and/or convictions and drunk driving convictions can serve as evidence of a disorder. It is unclear whether these instructions will apply for juvenile delinquency adjudications since they are not considered “convictions.” Counsel can argue that the policy guidelines only intended to use adult convictions as evidence of domestic violence and alcoholism. The “Technical Instructions for Medical Examinations of Aliens,” published by the Centers for Disease Control lists alcoholism as a threatening mental or physical disorder that can serve as a basis for inadmissibility. 45 However, these Instructions also state that alcohol dependence or abuse must be considered the same as any other mental disorder and requires associated harmful behavior to be classified as a medically inadmissible condition. Additionally, as an initial matter the alcoholism must be classified and meet the guidelines of a disorder, and the person should be

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INA § 212(a)(1)(A)(iii). These instructions can be obtained at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html. 44 See https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter7.html. 45 See http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html; see also 8 USCIS Policy Manual B.7, http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter7.html [hereinafter USCIS-PM], which sets out the current guidelines for physical and mental health disorders. These new instructions rely on World Health Organization’s classifications as well as the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 43

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formally diagnosed under the DSM-V 46 before proceeding to a determination that the condition also poses a threat.

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USCIS updated its policy guidelines to require a medical re-examination for alcoholism if the applicant fails to disclose to the civil surgeon during the initial medical examination that they have a single drunk driving arrest or conviction within the last five years, two or more drunk driving arrests or convictions within the last ten years, or other alcohol-related grounds. 47 This standard is much more strict than the previous one and shows that the government is taking alcohol-related offenses more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a panel physician or civil surgeon has made two findings: (1) a diagnosis or mental disorder (alcohol abuse) and (2) current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. PRACTICE TIP: As explained above, a conviction or even delinquency adjudication related to alcohol should not, on its own, be sufficient to trigger the alcoholism inadmissibility ground. A panel physician or civil surgeon must find that the person has a diagnosis or mental disorder (alcohol abuse) and current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future. Other persons who might be charged under this ground include persons who are suicidal, psychopathic, or show a history of sexual predator crimes. Juveniles with a series of sexual offenses on their juvenile record (arrests and adjudications) may trigger this ground. Juveniles who only have a single adjudication for a sexual offense (especially against a minor) will have additional difficulties as a matter of discretion to obtain immigration relief such as SIJS. In these cases, counsel should gather as many equities as possible and consider whether the risks outweigh the benefits of applying. Waiver available. A waiver is available for most of the conduct or conditions related to this ground at INA § 212(g). Note, however, that INA § 212(g) does not waive all parts of the healthrelated grounds of inadmissibility. Specifically, there is no waiver for an alien inadmissible as a drug abuser or addict discussed above. The waiver requires substantial documentation and the government might also require a bond. For additional information on filing for a § 212(g) waiver, consult the regulations at 8 CFR § 212.7(b). PRACTICE TIP: Expert statements by medical or mental health professionals regarding current and potential danger, such as, “the person is not an alcoholic or sexual predator” may be useful. § 17.6 Prostitution A noncitizen is inadmissible, but not deportable, if they come to the United States to engage in prostitution or have “engaged in prostitution” within the last ten years. INA § 212(a)(2)(D)(i). 46

DSM stands for the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association. The DSM provides a common language and standard criteria for the classification of mental disorders. The “V” refers to the fifth edition. 47 8 USCIS-PM B.7(B)(2).

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While no conviction is required for this finding, one or more delinquency adjudications for prostitution can serve as evidence. This includes prostitutes and people who work with them in the business and benefit from the proceeds of prostitution, but not customers. 48 This provision will apply even if the person engaged in prostitution in a country where it is legal. 49

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A single act of prostitution does not amount to engaging in prostitution under this provision. 50 Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain.51 It is important to note that engaging in prostitution does not encompass sexual conduct that falls short of intercourse. 52 A noncitizen is also inadmissible, but not deportable, if they attempt to procure or import prostitutes, or receive the proceeds of prostitution. 53 Solicitation of a prostitute by a customer does not fall within this ground of inadmissibility for procuring a prostitute. This ground only applies to persons who engage in the business of obtaining prostitutes for use by others, not to isolated incidents of people hiring a prostitute. 54 Conviction for certain offenses involving running a prostitution business, regardless of whether the prostitutes are noncitizens, may be an aggravated felony, triggering deportability. 55 This provision will only apply if the juvenile is convicted of an offense as an adult. There are waivers for the prostitution ground of inadmissibility for SIJS,56 U nonimmigrant status, 57 and T nonimmigrant status applicants. 58 § 17.7 Finding of Violation of a Domestic Violence Protective Order Under INA § 237(a)(2)(E)(ii), any noncitizen who violates the portion of a domestic violence protection order that “involves protection against credible threats of violence, repeated harassment, or bodily injury” if the order was “issued for the purposes of preventing violent or threatening acts of domestic violence” is deportable, but not inadmissible. This could be a violation of a temporary restraining order, probation condition (e.g., “stay away” order), or other civil or criminal court order. The conduct that violated the order must have occurred on or after 48

Matter of R-M-, 7 I & N Dec. 392 (BIA 1957). 22 CFR § 40.24(c). 50 Matter of Gonzalez-Zoquiapan, 24 I & N Dec. 549 (BIA 2008); Matter of T-, 6 I & N Dec. 474 (BIA 1955). 51 Id.; see also State Department regulations at 22 CFR § 40.24(b) which define prostitution as “engaging in promiscuous sexual intercourse for hire … that must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.” 52 Matter of Gonzalez-Zoquiapan, 24 I & N Dec. 549; see also Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (holding that prostitution for immigration purposes only encompasses offering sexual intercourse for a fee, as opposed to other sexual conduct). 53 INA § 212(a)(2)(D)(ii). 54 Matter of Gonzalez-Zoquiapan, 24 I & N Dec. 549. 55 INA § 101(a)(43)(K). 56 INA § 245(h)(2)(B). 57 INA § 212(d)(14). 58 INA § 212(d)(13). 49

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September 30, 1996. Note that this ground does not require a conviction, though a state court would have to make a finding that the protective order in question had in fact been violated.

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Advocates should carefully review the definitions in this provision. First, the deportation ground provides that “protection order” means any order issued for the purposes of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions). The order may be issued by a civil court, including in family or dependency proceedings, and juvenile delinquency proceedings. An order not relating to domestic violence—e.g., a gang injunction or an order to not go to a place of business—should not qualify. Second, a court must find a violation of a part of the order “that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.…” The BIA and courts have found that any violation of these provisions, even one that does not involve violent or threatening acts, will suffice to trigger deportation. 59 Thus, any violation of a “stay away” order (requiring one person to keep a certain distance away from, or not to contact, another person) can cause deportability. Example: Martin has a stay-away order directing him to stay 100 feet away from his exgirlfriend’s house. After a visit with their child, he walks the child up the driveway toward the house, rather than dropping the child at the curb. A court finds that this violates the stay-away order. Martin is deportable for the conduct; although not itself violent—he violated an order designed to prevent violence or repeat harassment. 60 To form the basis of removal, the government will have to prove, by clear and convincing evidence, that a judge found that this type of provision of a domestic violence protection order was violated. PRACTICE TIP: Remember that the issue is what findings the court made, not what conduct took place. Evidence that the person actually did violate this kind of order does not prove deportability. ICE must prove that the court specifically found the person to have violated the applicable provisions of a qualifying order. § 17.8 False Claim to U.S. Citizenship A person who falsely represents or has falsely represented himself or herself to be a U.S. citizen for any purpose or benefit under the INA or any other federal or state law is inadmissible and deportable. 61 The language in these two provisions of the law is identical. These provisions only apply to false claims of U.S. citizenship made on or after September 30, 1996, and only to those representations that were made for the purpose of gaining a benefit under the INA, or federal or state law. 62 No conviction is required. This provision punishes people for claiming U.S. citizenship for entry into the United States, and for any other purpose under any federal or state law. Therefore, as written, DHS could apply 59

Matter of Strydom, 25 I & N Dec. 507 (BIA 2011). See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009). 61 INA § 212(a)(6)(C); INA § 237(a)(3)(D). 62 IIRIRA § 344(a) of 1996. 60

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these provisions to a broad range of scenarios, including someone who is underage and uses the U.S. passport of an older friend to get into a bar and have a drink, someone who votes in an election not realizing that they are not permitted to vote, or even someone who came to the United States as a baby and believes herself to be a U.S. citizen.

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These two provisions are harsh, both because they are broadly written and because there are no waivers. For youth seeking legal status, however, these provisions do not apply in many different applications for benefits. For example, there is an exemption for Special Immigrant Juvenile Status applicants, 63 and a waiver available for U and T nonimmigrant status applicants. In addition, a false claim to U.S. citizenship is not a bar to asylum and withholding of removal. Counsel should look closely at the benefits the youth is applying for to see if the false claim to citizenship ground applies. In any application where discretion is a factor, a false claim to citizenship will be considered as a part of the discretionary determination. For additional exceptions and defenses to this bar, see Section B, below. A.

What constitutes a false claim to citizenship?

By its plain language, the false claim to U.S. citizenship ground enacted in 1996 requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not otherwise be available to a noncitizen under the INA or any other state or federal law. According to several circuit courts and USCIS, the person to whom the false claim to citizenship is made does not have to be a U.S. government official. Courts have found the following acts to constitute false claims to U.S. citizenship: • • • •

Falsely representing oneself as U.S. citizen to obtain a U.S. passport; 64 Using a false U.S. passport to enter the United States; 65 Using a false U.S. passport to obtain a state driver’s license; 66 Claiming U.S. citizenship in an attestation or I-9 form to obtain employment. 67

Some other examples of false claims to citizenship that the government may also charge include: oral statements made in response to questioning by an officer to obtain a benefit such as entry into the United States; a signature on a voter registration card that specifically asked the question “Are you a U.S. citizen?”; any false declarations of citizenship to obtain a credit card, bank financing, mortgage, student financial aid, or health insurance; and any other declaration under oath or penalty of perjury, in writing or orally, that the noncitizen was a U.S. citizen in order to obtain a benefit under the INA or other state or federal laws. However, some limitations have been placed on the application of this provision. For example, one court found that a false claim of U.S. citizenship to a police officer was not made for any 63

The Trafficking Victims Protection Reauthorization Act of 2008 § 235(d)(3), provides an automatic exception to inadmissibility for special immigrant juvenile applicants of the false claim to citizenship ground of inadmissibility. 64 Matter of Barcenas, 25 I & N Dec. 40 (BIA 2009); see also Jackson-Omier v. Gonzales, 246 F. App’x. 1 (1st Cir. 2007); Suarez v. Attorney General, 299 F. App’x. 153 (3rd Cir. 2008). 65 Almendarez v. Mukasey, 282 F. App’x. 326 (5th Cir. 2008). 66 Lara-Rivas v. Mukasey, 270 F. App’x. 526 (9th Cir. 2008). 67 Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008).

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purpose or benefit under the INA, even though the individual in question was undocumented, because the assumption that anyone who is undocumented would be making a false claim for any benefit or purpose under the Act was too speculative. 68 In addition, in an unpublished BIA decision, a conditional resident’s purchase of a firearm by making a false claim to U.S. citizenship was not considered for “any purpose or benefit” under the Act because the person in question did not gain any benefit from the false claim, since he was eligible to purchase a firearm as a conditional permanent resident. The false claim also has to have been made knowingly. 69

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Example: Elizabeth claimed U.S. citizenship so that she could get in-state tuition at her state university. The DHS could assert that she is inadmissible for a false claim to citizenship. If she made this claim before September 30, 1996, however, she would not fall within INA § 212(a)(6)(C)(ii). Example: Silvia always thought she was a U.S. citizen, until she finally learned she had been born in Mexico. Practitioners should argue that she is not inadmissible for any false claims to citizenship that she made, because she did not know they were false. Example: Joaquin intentionally represented himself as a U.S. citizen at the border in San Diego on January 12, 2016 in order to gain admission to the United States. Because he willfully misrepresented a material fact to a government official in order to gain a benefit under the INA and it took place after September 30, 1996, he is inadmissible for a false claim to U.S. citizenship under INA § 212(a)(6)(C)(ii) as well as misrepresentation of a material fact under INA § 212(a)(6)(C)(i). Example: Frank lied to his mother-in-law about being a U.S. citizen so she would not know his immigration status. Frank is not inadmissible nor deportable for his false claim to U.S. citizenship because he did not make the claim in order to obtain a benefit under the INA or any other federal or state law. B.

Exceptions and other defenses to false claim to U.S. citizenship 1. Narrow exception to both the inadmissibility and deportability grounds

There is a limited and narrow statutory exception for certain children of U.S. citizens. The person must meet the following requirements to avoid being inadmissible or deportable for a false claim to citizenship: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of 16; and 3. The person reasonably believed at the time of such statement, violation, or claim that they were a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.) 70 This change in the law is retroactive and cures false claims that took place on or after September 30, 1996. 68

Castro v. Atty Gen. of the U.S., 671 F.3d 356 (3rd Cir. 2012). See, e.g., Letter from Dep’t of State to Senator Harry Reid (Aug. 29, 2013); Letter from Dep’t of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 70 See INA § 212(a)(6)(C)(ii)(II); INA § 237(a)(3)(D)(ii). 69

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WARNING! This exception does not apply to children of lawful permanent residents or undocumented immigrants, or children with only one U.S. citizen parent, even if they honestly believed themselves to be U.S. citizens. Furthermore, the Ninth Circuit, in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), held that individuals born out of wedlock who reasonably believed both parents were U.S. citizens cannot fall under this exception where it can be established that either parent is not in fact a citizen. 2. Defense for minors and others who made the claim unknowingly

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Anyone who can prove that that the false claim was not knowingly made—meaning, the person believed they were a U.S. citizen—can assert as an affirmative defense that they do not come within the inadmissibility or deportability ground. In the fall of 2013, the government announced that it will consider it as a separate and affirmative defense for minors if the person can show that they were (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. 71 The noncitizen has the burden to show that they meet both of these criteria. This policy update is not a change in statute, but is an interpretation in line with caselaw that indicates that any misrepresentation must be made knowingly. Advocates should argue that anyone who truly believed they were a U.S. citizen should not be inadmissible in light of this policy update, even if the person was not a minor. 3. Another person made the false claim to U.S. citizenship on behalf of the applicant A false claim to U.S. citizenship does not apply if someone else made the false claim on behalf of the applicant, such as a parent making the claim for a child. 72 For example, in an unpublished decision, an immigration judge held that a 16-year-old minor unaccompanied by her parents who presented her U.S. citizen sister’s birth certificate to inspectors at the border, but then later revealed her actual identity and status, lacked the capacity to make false claims or misrepresentations. 73 4. Curing a false claim to citizenship with a timely and voluntary retraction A timely and voluntary retraction may cure a false claim to citizenship,74 as with visa fraud and other misrepresentations. 75 Whether a retraction will be deemed to be timely and voluntary

71

Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 72 Cable, Albright, Sec. of State, DOS-17342, 96 Stat. 239978 (Sept. 17, 1997) reprinted in 74 Interpreter Releases 1483-85 (Sept. 29, 1997). Some practitioners have argued that if someone other than the minor indicated that the minor was a U.S. citizen by presenting invalid documents at the border, the child did not make a false claim to U.S. citizenship or engage in visa fraud, but rather made an entry without inspection. See Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds in 83 Interpreter Releases 775–776 (Apr. 24, 2006). 73 Matter of Jane Doe, File number not provided (October 2005), St. Paul, Minnesota. For more information on the individual arguments raised in that case, see Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds in 83 Interpreter Releases, 775-776 (Apr. 24, 2006). 74 See 8 USCIS-PM K.2(F); see also Matter of G-Y-R-, 23 I & N Dec. 181 (BIA 2001).

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depends on the circumstances. The retraction generally must occur before completion of the statement and be made of the person’s own volition, e.g., before discovery of the misrepresentation by the officer.

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The BIA held that a timely retraction was made where a person volunteered that he had entered the United States unlawfully before he completed his statement during an interview with an immigration officer at an airport. In that interview, he attempted to establish that he was lawfully residing in the United States. 76 The Ninth Circuit in an unpublished opinion found that a person made an effective retraction when after a border patrol officer asked for documentation of his citizenship, he promptly told the officer that he only had a work permit. 77 The court found that he understood little English and provided clear, consistent testimony that he claimed U.S. citizenship only because he misunderstood the inspector’s question. Many cases have held that a retraction will not be considered timely or voluntary where it occurred long after the false statement was made or if the retraction was made after the person has realized that the claim had not deceived a DHS officer. 78 § 17.9 Other Conduct That May Cause Problems: Violent Offenses, Sex Offenses, and Gang Conduct or Membership While delinquency findings of other conduct such as sex offenses or violent offenses including serious assault or gang-related activity or membership do not trigger automatic immigration bars to obtaining immigration status, such findings will likely cause problems for noncitizen youth including targeted immigration enforcement action, secure detention placement, denial of immigration applications as a matter of discretion, and the initiation of removal proceedings for denied affirmative applications. This is particularly true for allegations of gang-related conduct and membership since targeting noncitizen gangs is a high priority to DHS. Many youth have been subject recently to re-arrest and detention in a secure facility even while their removal proceedings are pending because of alleged gang association, activity, and/or membership. A discussion of the factors considered for detention is in Chapter 18. Where any of these types of conduct is involved and the case is an affirmative one, advocates should not submit anything to USCIS without seriously considering the risks of doing so. In 75

FAM 40.63 N4.6 (“a timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for INA § 212(a)(6)(C)(i) ineligibility”); see also Llano-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn”). 76 Matter of M-, 9 I & N Dec. 118 (BIA 1960). 77 Olea-Reyes v. Gonzales, 177 F. App’x. 697 (9th Cir. 2006). 78 Matter of Namio, 14 I & N Dec. 412, 414 (BIA 1973) (retraction after a year and where disclosure of falsity of statements was imminent not timely nor voluntary); Matter of Ngan, 10 I & N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Angeles-Robledo v. Att’y Gen., 183 F. App’x. 159 (3d. Cir 2006) (not effective recantation where person did not recant her claim to U.S. citizenship until her second interview in which she was confronted with third-party evidence of her falsity and where her traveling companion was the first to inform the border authorities that she was not a U.S. citizen); LlanosSenarillos v. United States, 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive).

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many of these cases, the application will in all likelihood be denied and according to the new Notice to Appear guidance, the youth will be placed in removal proceedings. See Chapter 6. If after careful consideration, you decide to pursue an affirmative application, you should consult § 17.10 below for tips in preparing such a case to ensure the best possible outcome. A.

Gang association, activity, and membership

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According to the Executive Order Addressing Interior Enforcement and Department of Homeland Security Memorandum implementing the order, anyone who “poses a risk to public safety or national security” is an immigration enforcement priority. 79 DHS views gang association, membership, and gang involved conduct as indicators that the person poses a threat to public safety or national security. This is true even if they have no criminal convictions and DHS is targeting them based on allegations alone. If such individuals choose to apply for immigration benefits, they may be exposing themselves to serious risk. This may be true even in cases where the individual seeking an immigration benefit is unaware him or herself of the gang allegations. There is a rising trend of DHS targeting young immigrants based on alleged gang involvement. 80 Immigration officials in various sub-agencies of DHS are falsely accusing immigrant youth of gang involvement leading to their detention, deportation, and/or denial of immigration benefits. Even when accusations are not false, immigrant youth are being discretionarily denied immigration benefits that they are otherwise eligible for, even when they provide evidence of rehabilitation and community involvement. For example, DHS has targeted DACA youth for deportation based on false gang allegations 81 and has re-arrested youth living with their families and already in removal proceedings, placing them into secure detention far from their homes and attorneys based on flimsy gang allegations. 82 For an extensive discussion of these trends and how youth are being impacted, see ILRC, Deportation by Any Means Necessary: How Immigration Officials are Labeling Youth as Gang Members (May 21, 2018), https://www.ilrc.org/deportation-by-any-means-necessary. Because of these current trends, any publicly accessible information on an individual’s gang conduct, association, or membership, such as social media, or disclosing any information regarding the same will have serious repercussions for noncitizen youth, including being a target for immigration enforcement action, detention, initiation of removal proceedings, and denial of an immigration benefit. For any youth considering applying for an affirmative immigration benefit, 79

Executive Order No. 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), http://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-public-safety-in-the-interiorof-the-united-states; DHS, Enforcement of Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-ImmigrationLaws-to-Serve-the-National-Interest.pdf. 80 See ILRC, Deportation by Any Means Necessary: How Immigration Officials are Labeling Immigrant Youth as Gang Members (May 21, 2018), https://www.ilrc.org/deportation-by-any-means-necessary. 81 See, e.g., Mark Joseph Stern, Bad Liars: ICE claimed a Dreamer was “gang-affiliated” and tried to deport him. A federal judge ruled that ICE was lying., Slate, May 16, 2018, https://slate.com/news-andpolitics/2018/05/federal-judge-accused-ice-of-making-up-evidence-to-prove-that-dreamer-was-gangaffiliated.html. 82 See, e.g., ACLU Northern California, ACLU Challenges Trump Administration’s Jailing of Immigrant Teens, Aug. 11, 2017, https://www.aclunc.org/news/aclu-challenges-trump-administration-s-jailingimmigrant-teens.

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advocates must broach the subject of gangs and will need to seriously consider whether to apply at all as a denial will trigger removal proceedings. Even young children may be alleged to be gang-involved.

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Definition of gangs. There is no single universally accepted definition of a “gang.” Federal, state and local law enforcement agencies have different operational definitions for the terms “gang” (or “criminal street gang”), “gang member” and “gang crime” (or gang-related offense). DHS uses the federal law definition of gang. 83 According to the National Gang Center, 44 states and Washington, DC have statutes that define “gang” or similar concepts. 84 Even despite this definition, federal immigration authorities often use inconsistent or no standards at all to label individuals gang affiliated. Identification of gang associates and members by DHS. There are many sources used to obtain information underlying gang allegations including: ICE investigations, Homeland Security Investigations reports, police interviews and reports, probation reports, detention and custody records, Office of Refugee Resettlement records, adjudication/conviction records, school records, other information gathered by public school officials, social media pictures, clothing, tattoos, noncitizen youth oral testimony, and information provided in immigration applications. In some cases, no evidence is put forward by DHS to allege a youth is gang affiliated or allegations are made directly by DHS. DHS often uses unreliable and scant evidence to accuse youth of gang affiliation, such as investigatory notes, meaning a single school, police or immigration official’s speculation of gang affiliation. Another common source of gang information is “gang databases,” or shared indexes that track alleged gang affiliation. These databases include personal details such as addresses, identifying physical characteristics, photographs, nationality and alleged affiliation to or role in a gang, among other information. The information is then shared across state governments, federal government agencies and some areas of Canada. Commonly used databases include the privately owned GangNET, 85 the FBI’s National Crime Information Center, 86 and local and state versions such as California’s CalGang 87 and Chicago’s CLEAR Data Warehouse. 88 Gang databases have

83

See U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, What is a Gang? Definitions, available at http://www.nij.gov/topics/crime/gangs/pages/definitions.aspx#note1 (defining a gang as an association of three or more individuals, whose purpose in part is to engage in criminal activity and which uses violence or intimidation to further its criminal objectives, and whose members engage in criminal activity or acts of juvenile delinquency that if committed by an adult would be crimes with the intent to enhance or preserve the association’s power, reputation or economic resources); see also 18 USC § 521(a) (“criminal street gangs”). 84 National Gang Center, U.S. Department of Justice, Brief Review of Federal and State Definitions of the Terms “Gang,” “Gang Crime,” and ”Gang Member” (Dec. 2016), http://www.nationalgangcenter.gov/Content/Documents/Definitions.pdf. 85 About GangNET, CSRA, https://www.csra.com/gangnet (last visited August 3, 2018). 86 National Crime Information Center (NCIC), FBI, https://www.fbi.gov/services/cjis/ncic (last visited August 3, 2018). 87 CalGang, State of Cal. Dept. of Justice, https://oag.ca.gov/calgang (last visited August 3, 2018). The CalGang database has been temporarily disabled as of January 1, 2018. The website indicates that database access will be restored but provides no timeframe for when this is to occur.

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come under criticism as they are notoriously unreliable. 89 In particular, gang databases have been criticized for having vague criteria for designation of individuals as gang-involved, lack of oversight and review, as well as lack of transparency or notice, so that inaccurate data practicably cannot be challenged. 90 For example, a 2016 audit of the CalGang database found numerous inaccuracies and issues, including 42 entries of individuals who were supposedly under the age of one at the time of entry into CalGang. 91 Following the auditor’s report, the California legislature passed a law requiring a moratorium on the use of CalGang until the Attorney General certifies that a purge of unsupported data has been completed. 92 For an in depth discussion of these sources of information and gang databases see ILRC, Understanding Allegations of Gang Membership/Affiliation in Immigration Cases (April 2017, https://www.ilrc.org/sites/default/files/resources/ilrc_gang_advisory-20170509.pdf. Gang targeting by other immigration agencies. Allegations and questioning of gang affiliation, association, and membership are not only surfacing when youth are arrested and detained, but also when they are going through the immigration process. Increasingly, USCIS adjudicators are asking youth about gang affiliation in interviews and ICE prosecutors or immigration judges are questioning youth regarding gang association and membership in immigration court. In a survey conducted by the ILRC, attorneys reported a number of common questions being directed at noncitizen youth both in interviews and hearings. 93 They include questions on: • • • • • • • • •

Supporting or helping gang members, Whether the noncitizen knows gang members, Whether the noncitizen him or herself is a gang member or former gang member, Whether the noncitizen has a tattoo, Specific or daily activities related to gang membership, Knowledge of hand signs, clothing and symbols purportedly related to gangs, Gang affiliation of a family member, Social media, and Whether the client has been involved in criminal activity.

These questions run the gamut from asking about specific information relating to the noncitizen to incredibly broad questions, such as “what do you know about gangs?” 88 Online Services: CLEAR, chi. POLice, https://portal.chicagopolice.org/portal/page/portal/ClearPath/Online%20Services/ICLEAR (last visited Jan. 2, 2018). 89 See, e.g., Joshua D. Wright, The Constitutional Failure of Gang Databases, 2 Stan. J. C.R. & C.L. 115 (2005). 90 Laila Hlass, The School to Deportation Pipeline, Ga. St. U. L. rev. (forthcoming 2018), draft available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132754 (manuscript at 35). 91 Elaine M. Howell, Cal. State Auditor, No. 2015-130, the Calgang Criminal Intelligence System (2016) https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf. 92 See Cal. Assemb. Bill No. 90 (2016-2017 Reg. Sess.), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB90. 93 ILRC, Deportation by Any Means Necessary: How Immigration Officials are Labeling Youth as Gang Members (May 21, 2018), https://www.ilrc.org/deportation-by-any-means-necessary.

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Gang allegations have arisen in various stages of the immigration process and in various immigration applications including: in the adjudication of bond, adjustment of status, asylum or related protection, and Special Immigrant Juvenile Status. There is increased use of gang allegations in adjudications in other cases including applications for DACA, U Visas, and T Visas. Where gang membership was uncontested, it has been used against clients to support the triggering of the security related inadmissibility ground; to support issuance of a Request for Evidence in the U visa context; as a basis to deny on discretion in a lawful permanent resident application; to argue that the client lacked “good moral character;” to argue against a bond due to “dangerousness;” to argue that the asylum applicant triggered the serious nonpolitical crime bar; to argue against discretion for asylum; and to argue that the asylum applicants had committed a particularly serious crime or serious nonpolitical crime in the home country, despite the applicants being children at the time of the activities. Strategies for defending immigrant youth with alleged gang affiliation or past gang involvement. Because gang allegations are becoming more prevalent, taking preventative measures to address immigration consequences of gang related allegations are necessary. Attorneys should perform more intensive screenings and public records requests to detect the risk of gang allegations in any case, especially for affirmative filings. You can file school records requests, public records requests to regional intelligence centers or gang databases, and Freedom of Information Act (FOIA) requests to try to obtain information about any possible gang allegations in the immigration file (such as an allegation of gang membership in a detention record or in the ICE police report, Form I-213). PRACTICE TIP: To read more on how you can find out if your client has been identified as a gang member and what sample intake questions you can use to determine whether your client might be in a gang database see ILRC, Understanding Allegations of Gang Membership/Affiliation in Immigration Cases (April 2017), https://www.ilrc.org/sites/default/files/resources/ilrc_gang_advisory-20170509.pdf. You should warn your clients of their rights and inform them of the risks and consequences involved in any immigration case where gang allegations or accusations may arise. Youth should know the sweeping nature of gang allegations including the government’s priority to tackle gangs through immigration enforcement and what activities or characteristics may lead the government to believe that the youth may be gang-involved. For example, tattoos, certain clothing, or social media pictures may cause immigration authorities to ask questions about gang membership. Youth should be warned of the dangers of using social media, even if they are simply posting pictures of themselves and other classmates. Attorneys should check clients’ social media accounts for possible indicators that the government may allege gang involvement. If tattoos are present, you could discuss the possibility of tattoo removal. Finally, the youth should be informed to not speak to DHS without counsel present. Attorneys should exercise increased discretion in terms of which cases to file affirmatively and in framing claims where the client has had any prior contact with gangs, however minor and regardless of whether it was consensual. If the youth is already in removal proceedings or decides to move forward on an affirmative application, attorneys can do a number of things to fight gang allegations or past gang involvement. They can conduct public record searches to verify that there

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was no underlying evidence of gang allegations that ICE could be relying upon, object to evidence, submit evidence to prove the individual’s positive community involvement, put forth evidence to prove the unreliability of gang allegations, have individuals testify about the gang allegations against them, submit declarations and/or oral testimony from gang experts showing that indicators of gang membership were not present and debunk ICE’s faulty and over-inclusive generalizations about clothing choices or particular hand gestures forming the basis of the allegations, and argue that state privacy laws or the Family Educational Rights Privacy Act have been violated in improperly sharing information with ICE and the evidence should therefore be suppressed (see § 17.13). In cases where youth were involved with gangs, youth should testify about how their lives have changed, present witnesses about how the youth’s life has changed, show evidence of involvement with a gang prevention group, and submit proof of employment records, proof of community involvement and other equities. Finally, it often can be helpful to start an individual deportation campaign in collaboration with community-based organizations and organizers. B.

Mitigating the impact of sex, violence, and gang charges in juvenile court

If a youth has a juvenile (or criminal case) pending against them with any of these charges, proactively working with the juvenile/criminal defender is essential to mitigate the ultimate outcome. These are cases in which expertise on the immigration consequences of crime is important because the analysis and strategies that apply in mitigating the immigration consequences of adult convictions will be helpful. While USCIS officers or immigration judges cannot statutorily deny an immigration benefit based on sex, violence, or gang-related delinquency adjudications, their discretionary analysis may hinge upon whether the offense at issue is one that triggers a conviction-based removal ground, such an aggravated felony, crime involving moral turpitude, or controlled substance offense. Experts in the immigration consequences of crime can help avoid offenses that would trigger these categorizations and find alternative pleas that will appear the least serious to immigration authorities. There are some general guidelines in these cases that should be taken into account. Where possible, the youth should plead to the least serious offense possible under state law, preferably misdemeanors that do not have the following elements: specific intent (e.g., willfulness), serious harm or injury, the victim designated (e.g., minor), or gang involvement. For the individual types of offenses, some suggestions for alternative dispositions include: •

•

•

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Violent offenses: Avoid felonies that involve serious harm or injury to the victim or involve a dangerous weapon, e.g., assault with a deadly weapon, or firearm. Ideally, a youth would plead to simple assault or battery or other related offense such as false imprisonment or dissuading a witness from reporting a crime to the police. Sex offenses: Avoid any plea to a sex offense, if possible, especially if the act involved another minor, egregious conduct, and/or resulted in harm. In these cases, a youth should plead to an offense that does not contain the elements of sex or the victim as a minor, but rather to the offenses that are alternative pleas for violent offenses, e.g., simple battery, assault listed above. Gang-related offenses or enhancements: Youth should avoid any offense that has as an element gang affiliation or activity and should also avoid gang enhancements. In these cases, it is often preferable to plead to a more serious offense that does not involve such

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elements. While it is very difficult to eliminate any reference to gang-related conduct, membership, or affiliation in a juvenile case file, particular care should be taken to eliminate any such reference in the adjudication and disposition portion of the file. § 17.10 Discretion to Deny Immigration Relief Based on Juvenile Delinquency

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Even presuming that a child or youth overcomes all inadmissibility issues, evidence of juvenile delinquency will be considered a serious adverse discretionary factor in any immigration application for relief. Therefore, “unusual or even outstanding equities” may be needed and factors such as rehabilitation, family and community ties, hardship, and length of residence in the United States will be considered. 94 All youth must establish that they merit a favorable exercise of discretion by an immigration judge or a USCIS official. In these cases, you should carefully weigh whether the risk is worth affirmatively applying for the benefit as a denial will trigger the initiation of removal proceedings under the new Notice to Appear guidance. See Chapter 6. In any case where juvenile delinquency exists, the following are tips to ensure the best outcome in the case:

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•

Present evidence of the child’s rehabilitation, if it exists. This may include involvement in substance abuse programs, therapy, youth violence prevention, anti-gang work, etc.

•

Extend advocacy beyond the law and use social science. In particular, counsel may use social workers to demonstrate the lack of capacity of the youth, relying on cognitive development research (e.g., lack of ability to consent or knowingly consent based on mental development and age). This may also involve presenting psychological evaluations of a youth.

•

Tie the delinquency to the underlying claim for relief as much as possible. For example, if there is a link between the child or youth’s behavior and the abuse, neglect, or abandonment, persecution, trafficking, or other harm they have suffered, you may want to submit proof of this connection in the form of a letter from a therapist or other person working with the child.

•

Document other equities in the child’s favor including, but not limited to, family ties (spouse, children, parents, or other family in the United States with legal status), attendance and performance in school, work history, community service, completion of a court-mandated program, payment of restitution, a recent span of time with a clean record, mitigating evidence about the crime, etc. Advocates can obtain these equities in the form of letters from family regarding the hardship the child’s deportation would pose, letters from teachers regarding the child’s performance and contributions, and school and other certificates.

•

Demonstrate that the youth has community support. After weighing the pros and cons, you may want to have adults in the courtroom during a merits hearing to show this support. Otherwise, you could submit letters of support.

Matter of Blas, 15 I & N Dec. 626, 628 (BIA 1976).

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•

Take the time to work with the child to carefully prepare their testimony to the immigration officer or the immigration judge to ensure that it is credible and consistent. Some helpful tips in addressing delinquency/criminal conduct include the following: o

Prepare the child to speak honestly, but not to volunteer information that is not being asked or to offer more detail than is necessary. If the child does not know the answer to a question, they should be encouraged to state that they do not know or cannot remember.

o

If there is a juvenile adjudication or conviction, prepare the child to focus on the final disposition and keep damaging information as general as possible (e.g., not fully disclosing the exact criminal charges if there was a criminal case).

o

In explaining the conduct at issue, have the child explain their decisions and actions in the context of force/coercion if it existed and/or other circumstances such as age, poverty, abuse, or neglect that might mitigate the conduct.

o

In interviews or on cross-examination, if an officer or government attorney asks for details that are not relevant to an application, advocates may wish to advise the client not to answer anything further and/or assert the right to remain silent. In immigration court, it may also be appropriate for advocates to object to such a line of questioning on the basis of relevance. See Chapter 2 for additional tips for working with children and youth.

PRACTICE TIP: Submission of Client Declarations. Some advocates have submitted client declarations not only to document positive equities, but also to present what they believe to be sympathetic facts underlying a juvenile adjudication—particularly one that sounds troubling on its face or which, if handled in adult court, would have triggered a negative discretionary determination. Submitting such a declaration should be done, if at all, with extreme caution. Done improperly, a detailed declaration could expose an applicant to referral for possible criminal prosecution as well as to a future finding of inadmissibility based upon facts disclosed in the declaration. It may also violate state confidentiality laws. Advocates should strongly consider providing only a simple explanation in the applicable immigration form and submit a declaration only if the client receives a Request for Evidence (RFE). Regardless, if a declaration is submitted it should be very narrowly focused to address the circumstances of the incident without implicating the applicant in any additional, uncharged delinquent conduct. § 17.11 Immigration Enforcement Actions Against Youth with Records Recent shifts in U.S. policy have put noncitizen youth, especially those with contact with law enforcement or the juvenile justice system, at greater risk of arrest, detention, and deportation by federal immigration authorities, including ICE. Under a 2017 executive order on interior enforcement and Department of Homeland Security (DHS) memorandum focused on immigration enforcement in the interior of the United States, DHS has been directed to expand its priorities for immigration enforcement.95 While DHS previously had a policy of focusing its resources on 95

Executive Order No. 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), http://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-public-safety-in-the-interior-

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removing people with certain criminal convictions, now DHS will take action to deport anyone it considers to violate immigration laws, including anyone it labels as a “removable alien.” The DHS Memo on Interior Enforcement states that “the Department will no longer exempt classes or categories of removable aliens from potential enforcement.” This means that every undocumented person, including young immigrants, both undocumented and documented, in the United States are at risk of deportation. The administration’s listed priorities in the order and memorandum also include, but are not limited to, people with any criminal conviction(s), as well as those charged with a criminal offense or who have committed an act that could potentially be charged as a criminal offense.

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Immigration law has long treated juvenile delinquency differently from criminal convictions, and that law is unchanged. However, given the scope of the new enforcement plan, delinquency has proven to be and will likely continue to be an immigration enforcement priority (even though it may not have the same legal consequences as a conviction). In fact, attorneys across the country report increased enforcement actions against youth. Based on these practices, advocates should assume that noncitizen youth with contact with law enforcement or any involvement in the juvenile justice system are at increased risk of arrest, detention and deportation by ICE. As described in § 17.9 above, beyond the broad enforcement priorities pertaining to criminal offenses, the DHS Memo on Interior Enforcement also mentions a possible focus on people “involved in gang activity.” The memo contains no exception or special treatment for youth. Under the enforcement priorities of President Barack Obama’s administration, people with alleged gang affiliation were a priority for immigration enforcement if they were 16 or older. Based on the elimination of this age designation in the current memo and current practices of targeting youth based on gang affiliation, the current administration does not view youth differently from adults when it comes to alleged gang affiliation. Given that most gang membership or association—alleged or real—occurs in adolescence, the impact on undocumented youth is far-reaching, especially for those involved with the juvenile justice system. § 17.12 Other Potential Consequences of Juvenile Dispositions A.

Certain juvenile dispositions can bar family unity

In a significant departure from the rule against using juvenile delinquency dispositions in immigration proceedings, 1996 legislation barred Family Unity benefits to persons who “commit an act of juvenile delinquency which if committed by an adult” would be a felony involving violence or the threat of physical force against another person.96 Although the statute does not require that a juvenile court have found that the person committed such an act, counsel should argue this. “Family Unity” is a benefit for relatives of participants in the amnesty programs of the of-the-united-states; DHS, Enforcement of Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-ImmigrationLaws-to-Serve-the-National-Interest.pdf. 96 IIRIRA § 383 amended the Immigration Act of 1990 § 301(e)(3) to bar from Family Unity a person who “(3) has committed an act of juvenile delinquency which if committed by an adult would be classified as-(A) a felony crime of violence that has as an element the use or attempted use of physical force against another individual, or (B) a felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense.”

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late 1980s, which currently affects few persons. The rule applies to Family Unity benefits “granted or extended” after September 30, 1996. 97 B.

Certain juvenile dispositions can bar a U.S. citizen or LPR from petitioning a family member

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Under the Adam Walsh Child Protection and Safety Act of 2006, effective July 26, 2006, both U.S. citizens and lawful permanent residents convicted of certain crimes against minors cannot file family-based petitions, unless they qualify for a narrow exception. 98 These offenses include relatively minor crimes such as false imprisonment or solicitation of any sexual conduct. Certain serious juvenile delinquency dispositions also will be considered “convictions” for this purpose. Whereas under the Immigration and Nationality Act, juvenile adjudications do not count as convictions for immigration purposes, § 111(a) of Adam Walsh includes juvenile delinquency adjudications as convictions if two criteria are met: (1) the offender is 14 years or older at the time of the offense; and (2) the offense was the same as or more severe than aggravated sexual abuse described in 18 USC § 2241 or was an attempt or conspiracy to commit such an offense. 18 USC § 2241 criminalizes someone who crosses a state border to engage in a sexual act with someone under the age of 12 or someone who knowingly engages in sexual conduct with someone who is between the ages of 12 and 15 by using force or threatening the person with serious bodily harm. The only exception to this entire provision is if the Secretary of Homeland Security decides in their “sole and unreviewable” discretion that the citizen or permanent resident petitioner poses no risk to the relative for whom a petition is filed. 99 § 17.13 Obtaining Juvenile Records, Sealing and Expunging Records, and Confidentiality Issues A.

Finding out whether youth have juvenile records and obtaining juvenile court records

If a child or youth has a juvenile record, it is critical for the advocate to obtain as much information as possible about the delinquency record to provide the best representation and make more strategic decisions in the course of representation, including advising on eligibility and the risks of affirmatively applying for an immigration benefit. It may be difficult to ascertain whether a child or youth has a juvenile record. Many youth do not understand their experiences in the juvenile justice system, may have forgotten encounters with law enforcement, or were simply unaware that some encounters led to sharing of information with local law enforcement and immigration authorities. An advocate may need to ask a youth client in different ways or describe the potential ways that incriminating evidence is gathered and the steps involved in the juvenile justice process in order to determine whether the client has a juvenile record. As a general matter, any contact with police, probation, and school resource

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IIRIRA § 383. INA §§ 204(a)(1)(A)(viii); (B)(i)(I)(I). 99 INA § 204(a)(1)(B)(i)(I)(I). 98

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officers may be an indication that the youth has been flagged by local law enforcement and federal immigration authorities may be apprised of such contact. In order to best assess a juvenile client’s record, it is best practice for advocates to get records from at least three sources: • •

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The FBI criminal background report; The state (or states, if the child has had contact with police in more than one state) rap sheet; and The juvenile court with jurisdiction over the location where the arrest or adjudication occurred.

In addition, due to increased allegations of gang affiliation, advocates should also seek the following: • • •

School records; Regional intelligence centers or gang databases records; and The immigration file through an Freedom of Information Act (FOIA) request. The immigration file through a Freedom of Information Act (FOIA) request.

Advocates may also try to obtain records from the youth himself or herself, the police or probation department, the district or state attorney’s office, or the juvenile’s private or public defender. Advocates should make sure they are complying with their state’s confidentiality laws when obtaining the records from these individuals, offices, or departments. Certain juvenile records may be sealed and some, depending on the state, may be confidential. For example, in California, there is no exception allowing immigration attorneys to obtain juvenile court records—even from their own client—without a court order. WARNING! Access to juvenile records may be limited by state confidentiality laws. See discussion in § 17.13 below. B.

Sealing records and obtaining expungements

Sealing records. DHS/ICE often uses FBI rap sheets as evidence to meet its burden of proof in establishing that a noncitizen is removable as charged (either under the grounds of inadmissibility or deportability) and ineligible for any immigration benefits that would permit the judge to grant relief from removal. In many states, a juvenile record can be sealed with the relevant state entity in order to prevent the juvenile delinquency record from being shared with the federal government and therefore, appearing on the FBI rap sheet. In some cases, however, records may only be sealed once the youth turns 18 and therefore, this will not protect the youth if removal proceedings are initiated while they are still a minor. For example, in California, while certain juvenile records are automatically sealed at the completion of probation, other records must be requested to be sealed, which can only be done once the youth turns 18. 100 Sealing in California has the effect of erasing the record such that with limited exceptions, no one can obtain evidence

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Cal. Welf. & Inst. Code § 781; California Courts, Sealing Juvenile Records, http://www.courts.ca.gov/28120.htm#howto.

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of it. When the State of California seals a juvenile record, it alerts the FBI of the sealing and the FBI is supposed to similarly erase its’ copy of this information.

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While sealing allows an individual to have their whole record erased, such that legally the case is considered never to have occurred under state law, the case is still relevant under federal immigration law. Importantly, there is no known legal exception allowing nondisclosure of a juvenile adjudication for federal immigration purposes even when a state law provides that the juvenile adjudication does not exist. So even if an entire case is sealed, the applicant may need to disclose the incident because otherwise it may appear that the individual is engaging in fraud if they fail to disclose the information. Also, even though the case may currently be sealed, the FBI and DHS might have known of the case before the sealing, as noted above. Although a youth may still have to disclose juvenile delinquency arrests and dispositions on their application for lawful status, sealing a juvenile record may still confer benefits. Having a disposition in an FBI rap sheet surrenders control over how that arrest/disposition is characterized. On the other hand, sealing the record gives the youth much more control over when and how to disclose the information. Also, juvenile records in many states are confidential so counsel may not legally be able to disclose them in immigration proceedings. So if the information is not on the FBI rap sheet, the only information that may be readily available in the proceedings is that possessed by the youth and counsel. NOTE: Due to possible immigration enforcement efforts in the juvenile justice system, probation and other juvenile justice officials may turn over court records and other information to ICE, which may be used in deportation proceedings. This sharing of information, however, may violate state confidentiality laws and research should be conducted to see if any laws are violated. This could serve as a basis to object to evidence being introduced in Form I-213 and/or to file a motion to suppress in immigration court. See discussion on confidentiality in Subsection C, below. Expungements. In many states, including California, the term “expungement” applies only to adult convictions. Even if a youth is able to obtain an expungement, in the vast majority of cases it does not eliminate the immigration consequences of delinquent or criminal conduct and even records that are expunged will appear on background checks. The person must still disclose the offense in their application for lawful status. An expungement, however, is evidence of rehabilitation, which may convince the adjudicator to grant the application as a matter of discretion. C.

Confidentiality issues

Although sealing under a state law may protect against disclosing the existence of an offense (but not for immigration purposes), state confidentiality provisions may largely protect against the disclosure and dissemination of juvenile court records. Typically, confidentiality provisions limit who can see and obtain juvenile court records and provide that court permission is needed to disseminate records to unauthorized parties. Maintaining the confidentiality of juvenile information is a key part of the juvenile justice system. The great majority of states (and the federal government) have laws in place protecting the confidentiality of information related to youth who come into contact with the juvenile justice

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system. 101 These laws are based on a recognition that, should this information be made available to the public as it is in most adult criminal cases, it could easily and permanently attach the “criminal” label to minors and therefore harm their rehabilitation and treatment.

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It is increasingly important that immigration practitioners be familiar with these confidentiality laws where a client has had some interaction with the juvenile justice system, especially when it becomes part of the immigration case. Knowledge of these laws can provide important defenses in immigration proceedings including contesting a government attorney’s sharing of juvenile delinquency court records to prove deportability and/or denial of a discretionary benefit in removal proceedings. 1. Overview of state and federal confidentiality provisions Many states have state confidentiality provisions that prohibit the disclosure of information concerning youth in the child welfare system and juvenile justice system, and provide no exceptions for disclosure of such information or the case file to those outside the system, including immigration attorneys and federal immigration authorities, without first obtaining a court order. 102 These laws may be explicit or implicit as to the limits imposed upon state and county officials in disclosing information about a youth. The laws also may protect certain information from disclosure, while allowing other information from the case to be freely shared with the public. Local court rules or other ordinances may provide additional confidentiality protections. Similarly, several federal laws protect the confidentiality of information relating to youth. The Federal Juvenile Delinquency Act (FJDA) contains a confidentiality provision applicable to federal juvenile proceedings. 103 Like the confidentiality laws of many states, this federal law strictly limits the disclosure of any and all records related to a federal delinquency proceeding, and permits disclosure only to certain parties, including the judge and the lawyers involved. Other parties must obtain permission from the court to access juvenile records and the law makes no explicit authorization for federal immigration officials or immigration attorneys. Although it does make an exception for “law enforcement agencies,” the FJDA clearly states that information regarding the juvenile may only be turned over where it “is related to the investigation of a crime.” Federal regulation at 5 CFR 2635.703 also prohibits federal officials from obtaining and using confidential information. The regulation specifically prohibits the “improper use of nonpublic information to further [an employee’s] own private interest … by knowing unauthorized disclosure.” 104 Nonpublic information is defined as information the employee gains by reason of

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Tamryn J. Etten & Robert F. Petrone, Sharing Data and Information in Juvenile Justice: Legal, Ethical, and Practical Considerations, 45 Juv. & Fam. Ct. 65 (1994). 102 Some resources for finding relevant state confidentiality laws include: Reporter’s Committee for Freedom of the Press, Juvenile Access Chart (May 2012), http://www.rcfp.org/secret-justice-accessjuvenile-justice/juvenile-access-chart; American Bar Association, Think Before You Plead: Juvenile Collateral Consequences in the United States, www.beforeyouplea.com. 103 18 USC § 5038. 104 5 CFR 2635.703(a).

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federal employment and “knows or should reasonably know has not been made available to the general public … [or] been disseminated to the general public. 105

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Example: California’s juvenile confidentiality laws. In California, Welfare and Institutions Code § 831 prohibits any automatic sharing of confidential information from juvenile court proceedings including name, date or place of birth, and the immigration status of the juvenile with any federal official, including immigration officials. Specifically, the law makes clear that it is unlawful for local and state entities to share information with federal officials, including immigration officials, unless they file a petition in court requesting disclosure of the minor’s information and the court determines that sharing the information is appropriate, taking into account the best interests of the minor. Even if a youth or parent obtains the youth’s records lawfully, they will violate the law if they then disseminate the records to an unauthorized party, such as USCIS, without first obtaining court permission to do so. While it may seem that the youth holds the power to determine whether or not to disclose their own confidential records, in some states, such as California, only the state court, not the youth, holds the authority to make that decision. To read more about Welfare and Institutions Code § 831 see ILRC, New California Law AB 899 Strengthens Confidentiality Protections for Juvenile Court-Involved Youth (Jan. 2016), https://www.ilrc.org/sites/default/files/resources/ab_899_fact_sheet_0.pdf. 2. Tips for attorneys relating to confidentiality issues in immigration proceedings Attorneys dealing with juvenile court records in the context of an immigration application or in removal proceedings should consider the following guidelines and warnings: •

Before turning over documents to USCIS or other federal immigration authorities including the immigration court, ensure that you are complying with applicable state and local confidentiality provisions. There may be civil or criminal sanctions under state law for unauthorized disclosure.

•

If juvenile records are protected by state confidentiality laws, consider the following approach: attach an addendum to the immigration application explaining that you cannot disclose any juvenile court documents because they are confidential under state law, and court permission is required for disclosure. Be careful to not mischaracterize the law; for example, do not state that you cannot disclose the record under any circumstance if court authorization may indeed be possible. USCIS approves of this approach, as evidenced by the instructions to Form I-821D (DACA), which state, “if the charges against you were handled in juvenile court, and the records are from a state prohibiting their disclosure, this evidence is not required.” 106

•

If you choose to file an addendum to the immigration application explaining that you cannot disclose any juvenile court documents, you may also want to include a very short description of the charges for which the person was adjudicated delinquent as well as the

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5 CFR 2635.703(b). USCIS, Instructions for Consideration of Deferred Action for Childhood Arrivals, Form I-821D, 10, http://www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf. 106

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disposition (sentence). The key is to be brief and direct and not to phrase descriptions in ways that may be viewed as admissions. 107 Sample language includes the following: “I was arrested as a minor for petty theft. My case was handled in juvenile court, and it is now closed. My juvenile court case file is confidential under California law. I do not have a juvenile court order authorizing disclosure of documents related to this incident, so I am unable to provide them.” If you decide to submit the juvenile court records where state law protects their confidentiality, make sure to first obtain court permission and include a cover page explaining that USCIS is legally barred from disseminating the documents to the immigration court or any other agency without court permission, if that is true in your state. Note that redacting juvenile court documents on your own and submitting them to USCIS is not a substitute for obtaining juvenile court permission. Moreover, USCIS could view your redactions as an attempt to tamper with evidence.

•

Advocates should be aware that disclosing such records can be problematic for several reasons: it may jeopardize future cases where an advocate might want to keep information from being disclosed; it can set expectations within USCIS or other relevant agencies that these records should be provided on a regular basis; and it undermines the important work advocates are doing to ensure that DHS (in particular, ICE) does not obtain confidential juvenile court information without going through proper state court channels.

•

If confidential information is presented by immigration authorities, explore the ability to challenge or bring a motion to suppress the introduction of the evidence based on violation of state confidentiality laws and federal law or regulation. Local and state officials’ ability to assist immigration authorities and/or be given the authority to enforce immigration laws through federal programs or agreements may be subject to limitations by state or local confidentiality laws and policies. In many states, immigration enforcement against juveniles involves sharing of information regarding their immigration status without going through the proper channels, e.g., court petition; this may violate provisions of state law protecting the confidentiality of information relating to youth.

•

Remember that while confidentiality provisions can be used to your advantage, these laws can also be barriers to accessing the information yourself, even as an attorney of the person subject to the juvenile proceedings. Confidentiality provisions often do not provide exceptions for immigration attorneys or authorities and require both parties to obtain consent from the court first. In many cases, attorneys get around these barriers by obtaining the juvenile court file from the juvenile defender who represented the youth for purposes of their own use and not for disclosure to immigration authorities. However, this still may constitute a violation of state law and carry civil and/or criminal sanctions.

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•

107

Submitting a declaration on behalf of the requestor detailing the offense may be akin to submitting juvenile court records and may violate state confidentiality laws.

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§ 17.14 Youth Convicted as Adults Not every youth who commits an offense while a minor will be tried in juvenile court. Depending upon the offense committed, states will often treat older minors who commit serious crimes as adults and have their trials occur in adult court (called “waiver” or “transfer”), which may then result in a criminal conviction and adult criminal sanctions, instead of a juvenile delinquency adjudication and disposition.

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An adult criminal conviction for an offense committed while the person was under the age of 18 should, as a matter of Equal Protection, be treated as a delinquency disposition (and therefore not a conviction), if the offense was one that would not have warranted transfer to adult court under federal standards. In addition, there is an immigration “youthful offender” exception and State Department guidelines, which provide benefits to persons convicted of one moral turpitude offense while under the age of 18. A.

Exception for youth convicted as adults of crimes involving moral turpitude

A noncitizen who has been convicted of or admits to commission of a crime involving moral turpitude (CIMT) at any time may be inadmissible. 108 Federal regulation at 22 CFR § 40.21(a)(3), further provides that a noncitizen convicted of, or who admits committing, two or more CIMTs will be subject to inadmissibility, “even if the crimes were committed while the alien was under the age of 18 years.” Crimes involving moral turpitude include offenses containing an element of fraud, theft with intent to permanently deprive, intent to cause great bodily harm, offenses with lewd or sexual intent, and offenses involving specific intent, recklessness, or malice. One exception called the youthful offender exception helps young persons who were convicted of a crime involving moral turpitude in adult proceedings and need to overcome the grounds of inadmissibility. The exception provides that a person is not inadmissible under the moral turpitude ground who committed only one moral turpitude offense while under the age of 18, if the commission of the offense and the release from any resulting imprisonment occurred over five years before the current application.109 The automatic exception provides no limit on the seriousness of the offense or the sentence, so technically any offense is considered within the exception. PRACTICE TIP: If the young person’s case was handled in juvenile proceedings, the youthful offender exception is not needed because there is no conviction or admission; see § 17.2, supra. B.

Defense strategies for youth convicted in adult or youthful offender proceedings

A minor convicted in adult court may be inadmissible or removable based on the conviction if the court expressly finds the minor unfit for the existing juvenile proceedings and treats the minor as an adult offender. 110 It is far more beneficial for a noncitizen to be the subject of a delinquency determination—which is not a conviction for immigration purposes—rather than be convicted in adult court. There are various immigration categories of criminal convictions, which carry serious immigration consequences including crimes involving moral 108

INA § 212(a)(2)(A). INA § 212(a)(2)(A)(ii)(I). 110 See Matter of C-M-, 5 I & N Dec. 327 (BIA 1953); Morasch v. INS, 363 F.2d 30 (9th Cir. 1966). 109

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turpitude, drug and firearms offenses, domestic violence convictions, and the expanding list of “aggravated felonies.” In order to protect the current or potential immigration status of a youth, immigration advocates should convince defense counsel to do everything humanly possible to keep a case in juvenile court, including admitting liability, even when the case might be defensible in adult court.

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Criminal defense counsel can attempt to protect juveniles transferred to adult court in several ways. First, they can use standard criminal defense techniques to attempt to arrange a disposition or conviction in adult court that will not trigger adverse immigration consequences for the particular defendant. 111 Second, if counsel can arrange for an adult conviction of an offense for which the juvenile could not have been transferred to adult court under the Federal Juvenile Delinquency Act, the immigration counsel at least can argue that this disposition does not constitute a “conviction” for immigration purposes. 112 However, the chance of successfully arguing this point for state transfers is limited by existing judicial decisions in the First, Second, Ninth, and Eleventh Circuits. 113 § 17.15 Overview of Immigration Consequences of Adult Criminal Convictions Minors who are tried as adults and those who have just become adults and enter the adult criminal justice system face devastating immigration consequences if a conviction results. Even minor 111

Consult http://www.ilrc.org/crimes and www.immigrantdefenseproject.org for some state quick reference charts on the immigration consequences of criminal offenses intended to assist criminal defenders in mitigating the immigration consequences of a criminal plea. 112 The Federal Juvenile Delinquency Act (FJDA) creates a possible defense for certain noncitizens who committed an offense while under 18 years of age, but plead to or were found guilty of the offense as an adult. The FJDA provides, Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter. 18 USC § 5032. 113 Cole v. US Attorney Gen., 712 F.3d 517, 522-26 (11th Cir. 2013) (South Carolina youthful offender conviction was a conviction under the INA regardless of the possibility of expungement and age); Singh v. US Attorney Gen., 561 F.3d 1275 (11th Cir. 2009) (Florida conviction, in adult court, of defendant who was a juvenile at the time the offense was committed is still a “conviction” for immigration purposes, even though the defendant could not have been tried as an adult under the FJDA); Savchuck v. Mukasey, 518 F.3d 119 (2nd Cir. 2008) (holding that New York grand larceny conviction committed while the noncitizen was under the age of 18 years was a conviction and rejecting the FJDA argument finding no support in the INA for such an interpretation); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir. 2007) (holding that a state court conviction as an adult for voluntary manslaughter committed when the petitioner was 16 years old constituted a conviction for purposes of immigration law without analyzing either the FJDA argument, or the fact that because of his age and the nature of his conviction petitioner would not have benefited from it in any event); Vieira Garcia v. INS, 239 F.3d 409 (1st Cir. 2001) (holding that a Rhode Island state court conviction for an offense committed when the person was nearly 18 years old constituted a conviction for purposes of immigration law, and the fact that he might have been treated as a juvenile under federal law was not a violation of his right to equal protection).

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non-violent offenses such as theft can have terrible consequences. In fact, the Department of Homeland Security prioritizes immigration enforcement against people who have had contact with the criminal justice system. If your client has an immigration application pending this can result in its denial based on statutory ineligibility or as a matter of discretion. If the person is not already in removal proceedings, it will likely lead to removal proceedings being initiated if their immigration application is denied.

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The intersection between criminal law and immigration law is extremely complex and constantly changing. For one thing, Congress, the Board of Immigration Appeals, and the Federal Circuit Courts of Appeal frequently make significant changes in the law and/or new interpretations of the law. In addition, each state has its own criminal laws; therefore an individual analysis of how federal law applies to state criminal laws must be conducted. Because this area is so complicated, an in-depth discussion is beyond the scope of this chapter. This chapter will only cover what you can do to protect your client from the immigration consequences of a criminal conviction and how you can gather the appropriate documentation to have someone assist you in this analysis. Resources such as websites, listservs, and publications dedicated exclusively to this topic are available. See § 17.17 below. PRACTICE TIP: A noncitizen minor who has a criminal offense adjudicated in juvenile court does NOT have a conviction on their record. This will only be considered a delinquency adjudication. This is an important distinction because the immigration consequences analysis for delinquency differs significantly from the consequences of a criminal conviction resulting from adult court. Consult §§ 17.2–17.13 above for the immigration consequences analysis of delinquency. * WARNING! Unless you are an immigration attorney with expertise in this area, you should either consult with a back-up center or immigration attorney in handling the case or refer any case that might involve a criminal issue to an expert. A.

Warn your client to stay out of trouble

Due to the serious immigration consequences of crimes, it is essential to counsel young clients to stay out of trouble now and in the future. This advice is important while the application for relief is pending as well as after the relief has been granted. For example, if your client’s application for relief is pending, a criminal arrest or conviction may result in a longer application process as well as denial of the application and removal from the United States. Also, if your client wins a form of relief, criminal conduct may have an impact on their current status, eligibility to travel abroad, become a citizen, or even stay in the United States. For example, if your client is granted asylum and they are subsequently convicted of certain crimes as an asylee, they may not be eligible to adjust to lawful permanent residence (i.e., obtain a green card), and later obtain citizenship. In addition, certain offenses may make it possible for DHS to terminate your client’s lawful status and seek their deportation. Finally, even if your client is or becomes a lawful permanent resident (LPR), they can still be deemed inadmissible or deportable for certain offenses. In fact, many LPRs who do not become citizens and are subsequently convicted of crimes that make them deportable are subject to detention and deportation. If they are deported, many are permanently barred from ever coming back to the United States.

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For all of these reasons, it is important to caution your client to stay out of trouble, and to provide them with basic information about the possible risks and consequences of committing a crime— even if they are already an LPR. A know your rights and responsibilities guide for immigrant youth entitled Living in the United States: A Guide for Immigrant Youth in English and Spanish can be found at https://www.ilrc.org/living-united-states-guide-immigrant-youth. B.

Mitigate the consequences of the criminal case

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If your client is arrested while an application is pending or right before you file for an immigration benefit, it is imperative that you be in touch with your client’s criminal defense attorney in order to mitigate the immigration consequences of the case. Many criminal attorneys are unaware of the immigration consequences of criminal convictions and could end up advising your client to do something that will make them deportable or inadmissible. You need to advise the attorney that immigration concerns are a priority. There are many resources to assist defenders in obtaining an immigration safe plea. See § 17.17. In addition, should you become involved in a case after a disposition in your client’s criminal case, it may not be too late to withdraw the plea, appeal, or vacate the conviction. In fact, it is essential that you pursue these remedies as soon as possible because there are often strict statutes of limitations as to when you can file these motions in state court. A conviction that a trial or appeals court vacates because it was legally defective is not a conviction for immigration purposes, as long as it was not entered solely for immigration purposes. 114 Post-conviction relief can be a complicated matter that you may or may not consider pursuing depending on how the conviction will affect your client’s immigration case, but these alternatives should be kept in mind. PRACTICE TIP: If your client is facing charges in juvenile court it is imperative that you work with criminal defense counsel to avoid transfer of the case to adult court even if the potential charges and sentence are lesser in adult court. If the transfer to adult court absolutely cannot be avoided, defense counsel should arrange for an adult conviction of an offense that has no immigration consequences. Consult § 17.14. C.

Gather the facts of an existing adult criminal case to analyze the consequences

If there is any chance that your client has been arrested for or convicted of a crime as an adult, you must find out all the facts in order for an expert to assist you in analyzing the potential consequences of the case. Don’t rely on the client’s memory. Often people who go through the criminal justice system do not understand or are not told what has happened. They may not recall or understand whether they were convicted, what crime they were convicted of, whether or how they pled, and the length of their sentence. Also, many people are embarrassed about criminal problems and may understate what really happened. Getting the facts. To properly analyze the case and determine whether the person is even removable as charged or ineligible for an immigration benefit, you need to see the client’s official criminal records. Tell the client that DHS will have the person’s complete criminal record. DHS 114

Matter of Rodriguez-Ruiz, 22 I & N Dec. 1378 (BIA 2000); Matter of Sirhan, 13 I & N Dec. 592 (BIA 1970).

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will obtain this record by sending the person’s fingerprints to the FBI. You and your client need to have at least as much information as DHS in order to prepare a defense. Three records are most important to obtain:

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1. FBI report. The FBI report will show arrests from state, local, and federal agencies nationwide. DHS will look at the FBI rap sheet, so it is important for you to know what is on it. 115 The rap sheet is often inaccurate and incomplete. For example, it may not include every offense your client has committed, but it is a helpful cross-reference to be certain there are not additional offenses of which you are not aware. The FBI rap sheet also provides information on crimes in every state in the United States as well as federal crimes and immigration offenses such as deportations. See instructions on FBI fingerprint charts, below. 2. Client’s state rap sheet. Each state has a different procedure to obtain criminal records. State rap sheets are necessary because FBI reports are often wrong or do not contain enough detail. This document will ensure that you get your client’s entire criminal record in a particular state. Note that each state has a different procedure to obtain criminal records. 3. A complete copy of the record from the court where the client was convicted. This is important. An attorney cannot rely on just a rap sheet to assess whether or not a particular conviction might trigger immigration consequences. A complete copy of the court records is often essential to properly analyze any criminal disposition. In addition, if you or another attorney is going to try to clear up the criminal record, you will need a copy of the court papers. Check the court’s website or call the court clerk to get the requirements for obtaining these records. In many states, superior courts handle felonies and municipal courts handle misdemeanors. There is often a fee to obtain a copy of the entire file. Once you get the record, it will help to determine the immigration consequences of the conviction(s). Also, see § 17.13 on obtaining juvenile records, which has relevant information for adult criminal records as well. For more information about obtaining records, see ILRC, FOIA Requests and Other Background Checks: A Practical Guide for Filing Records Requests in Immigration Cases (ILRC, 2017), http://www.ilrcnon/publications. NOTE: FOIA requests. In addition, you can conduct a Freedom of Information Act (FOIA) request in order to obtain your client’s complete immigration file, which will often contain the FBI “rap sheet.” It is wise to submit a FOIA request as soon as you begin working with a client. The relevant form is the G-639, which is available at www.uscis.gov. Fast-track processing is available in certain cases, for example, cases where the individual is currently in removal proceedings, and should be utilized if at all possible (otherwise, your request may take many months or years to process). 115

Note, however, that an FBI rap sheet does not tell you everything that DHS knows as they have additional databases which contain reports on crimes and terrorist-related issues.

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Doing the analysis. To analyze a criminal case, we must answer several questions.

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1. If the person is in removal proceedings, what ground of inadmissibility or deportability is the client charged with? 2. Is a waiver available? 3. What potential relief is available? 4. Is the person eligible for the relief sought, or barred from relief for some reason? 5. Can the person eliminate the conviction under state law by using some form of postconviction relief? If so, will the post-conviction relief eliminate the conviction for immigration purposes? PRACTICE TIP: Obtaining a report from the FBI. To obtain a copy of the client’s criminal record, go to: https://www.fbi.gov/services/cjis/identity-history-summary-checks. You can request them online or via mail. You must fill out an applicant information form, submit fingerprints, and payment. When asked for the reason for requesting the record, the applicant or preparer should write something like “record check” but should not use the word “immigration.” § 17.16 Immigration Enforcement in Schools and the Juvenile Justice System Many noncitizen youth are targeted by immigration enforcement because they are or have been in the juvenile justice system or in contact with local law enforcement or school resource officers. See Appendix QQ for a map of how immigration enforcement may play out in the juvenile justice system. Depending upon the locality, ICE may contact local law enforcement to identify and target noncitizen youth for deportation. Many juvenile justice decision-makers may believe that they are required to cooperate with ICE and turn over noncitizen youth. Local officials, such as police, school resource officers, probation officers, judges, and District Attorneys may also initiate contact with ICE, employing the juvenile justice system as an avenue to enforce immigration laws and dispose of noncitizen youth. These officials who are making decisions that seriously impact these youth may have no knowledge of complex immigration laws. In some instances, their practices and attitudes towards these youth are heavily tainted with antiimmigrant bias. There are several reasons that these measures are bad public policy, or in some cases illegal. Advocates should challenge immigration enforcement in this context and advocate for policies that preclude police officers, school resource officers, probation officers, detention personnel, and court personnel, including judges, from affirmatively inquiring into a youth’s citizenship or immigration status, reporting information to ICE, and holding youth for ICE. This is best done in a broad coalition. The following are brief summaries of some of the primary public policy arguments against using the juvenile justice system as an avenue for immigration enforcement. There is no federal law and in most states, no state laws that require affirmative enforcement of federal immigration laws by state and local law enforcement against youth. Currently, schools, law enforcement, and court personnel have no federal legal obligation to participate in the

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enforcement of federal immigration laws. 116 Even if states intend to pass or have passed legislation to enforce immigration laws, like Texas’s SB 4, there are still limits to what local and state officials can do under the confines of the U.S. Constitution.

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Enforcement of immigration laws against juveniles may violate provisions of state law. Many states, for example, prohibit the disclosure of information concerning youth and provide no exceptions for disclosure of a youth’s immigration status to federal immigration authorities. Reporting suspected undocumented immigrant juveniles to federal immigration authorities may constitute an unauthorized disclosure under court procedure and violate confidentiality provisions. Even where disclosure of immigration information does not explicitly violate a state law, immigration enforcement does not promote the goals of individual state juvenile justice systems. In most of these systems, the established priority is not necessarily to punish, but to rehabilitate and support the youth within it. Immigration authorities do nothing to contribute to the rehabilitation of a youth, but do exactly the opposite—actively hinder the goal of rehabilitation. Their sole goal regarding undocumented youth offenders is to deport them. Any investigation and disclosure of a youth offender’s immigration status is poor policy. If such actions were authorized by state and/or local authorities, community trust and cooperation with the judicial system would erode and the punishment and rehabilitative goals of the juvenile court system would be undermined. It would stretch county resources since it would require local juvenile justice officials to interpret and apply complex immigration law even though they are unfamiliar with it. When these officials make mistakes—from potential illicit racial profiling to unlawful detention to violating state laws—the county will increase its risk of civil liability. There are additional legal and policy arguments that can be made against enforcement in this context and serve as a guide to advocacy efforts within the juvenile justice system. See Annie E. Casey Foundation’s Guide to Juvenile Detention Reform: Noncitizen Youth in the Juvenile Justice System and the 2018 Update. 117 WARNING! Evolving immigration enforcement landscape. Advocates should remain vigilant not only of ICE’s presence and practices in adult communities—usually focusing on local police and Sheriffs—but also as to local law enforcement’s policies and practices with immigrant youth. Special attention should be paid to juvenile probation and schools. For up to date information on immigration enforcement practices, policies, and programs, go to http://www.ilrc.org/enforcement. * IMPORTANT NOTE: Because immigration enforcement occurs within the juvenile justice systems at varying points in the process and in different ways due to variances in local practices and policies, advocates should be aware that children and youth enter the immigration system in many different ways. Some youth are referred to immigration authorities upon police contact or at 116

National Juvenile Justice Network, Undocumented Immigrant Youth: Guide for Advocates and Service Providers, Policy Brief No. 2, 10 (Nov. 2006). 117 Available at http://www.aecf.org/m/resourcedoc/aecf-NoncitizenYouthintheJJSystem-2014.pdf and http://www.aecf.org/resources/noncitizen-youth-in-the-juvenile-justice-system-2018-update/.

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booking. Thus, an immigration advocate may have a client with an open juvenile case and pending charges. Advocates should pay very close attention and work closely with a juvenile defender to ensure the child or youth does not receive an outstanding warrant for failing to appear or to comply with court orders, attends court hearings, and achieves the least damaging outcome in the case. Other times, youth referred at this stage may have their charges dropped, with no pending case. In still other cases, the youth may be referred after their case has been adjudicated delinquent and the youth is in juvenile detention, but before completion of their time. Finally, other children and youth may only be referred upon completion of their juvenile sentence. The point in time which the child or youth comes into the immigration system impacts the considerations and legal strategy in the case. § 17.17 Resources Publications. The Immigrant Legal Resource Center publishes books and materials on immigration law, such as Inadmissibility & Deportability, Removal Defense: Defending Immigrants in Immigration Court, Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings, and FOIA Requests and Other Background Checks: A Practical Guide to Filing Records Requests in Immigration Cases, all written to include audiences of immigration and non-immigration attorneys. See the list of publications at www.ilrc.org or contact ILRC to ask for a brochure at (415) 255-9499. The National Immigration Project of the National Lawyers Guild publishes the comprehensive and encyclopedic national book, Kesselbrenner and Rosenberg, Immigration Law and Crimes, which focuses on federal offenses and the laws of several states. Contact West Group at (800) 328-4880. Online resources. There are numerous online resources that provide valuable information on the intersection between immigration and criminal law. The Immigration Advocates’ Network (IAN) is a collaboration of immigration non-profits throughout the country whose goal is to provide on-line immigration resources to pro bono immigration practitioners. The Immigrant Legal Resource Center heads the Immigration and Crimes resource library, which provides resources such as overviews, practitioner guides, and sample pleadings for those representing noncitizens with criminal records, as well as copies of state and federal charts on immigration consequences. Go to www.immigrationadvocates.org. The Immigrant Legal Resource Center has a number of resources on the immigration consequences of crimes in the Ninth Circuit, including practice advisories and a guide on the immigration consequences of California offenses posted at http://www.ilrc.org/crimes. The National Immigration Project of the National Lawyers Guild offers practice guides and updates on various issues that can affect criminal defendants and other general immigration issues. The Project provides information and a brief bank on immigration and criminal issues. Go to www.nationalimmigrationproject.org. The Immigrant Defense Project has excellent practice guides that can be used nationally, as well as a wealth of information about the immigration consequences of crimes in New York and other nearby states. Go to www.immigrantdefenseproject.org.

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Technical assistance. The Immigrant Legal Resource Center maintains a contract service and for a modest fee, ILRC lawyers will provide immigration and criminal defense counsel with expert email or telephone consultation about the immigration consequences of delinquency, criminal convictions, and other immigration issues, including the U Visa, SIJS, VAWA, and relief from removal. Questions are answered within two business days. For information about consultations go to www.ilrc.org (AOD Technical Assistance), call (415) 255-9499, or email [email protected].

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The National Immigration Project of the National Lawyers Guild in Boston offers consultations to immigration attorneys and defenders throughout the country. The Project is a membership organization but also will consult with non-members. See www.nationalimmigrationproject.org. In New York, the Immigrant Defense Project provides free consultations on individual cases in New York State including to criminal defenders and can be reached at (212) 725-6422. See also www.immigrantdefenseproject.org. The Washington Defender Association’s Immigration Project provides free consultations on individual cases in Washington State to criminal defenders by submitting an intake form online at http://www.defensenet.org/immigration-project/case-assistance. Many individual immigration attorneys are willing to consult by telephone concerning immigration consequences of proposed criminal dispositions. Local Bar Associations often have lists of immigration attorneys, and a local chapter of the National Lawyers Guild or American Immigration Lawyers Association (AILA) will often be able to help. The Washington, DC, AILA office (1331 G Street, Suite 300, NW, Washington, DC 20005-3142, (202) 507-7600 or www.aila.org) will provide the name of a local AILA representative or, for a fee, their membership directory. Make sure the person you consult with has expertise in the intersection between criminal and immigration law. Trainings. The Immigrant Legal Resource Center and the Law Offices of Norton Tooby jointly present full-day seminars on the immigration consequences of crimes every year in both Northern and Southern California. Go to www.ilrc.org and click on seminars. The ILRC presents live seminars and webinars on a variety of immigration issues, including criminal and immigration law, DACA, motions to suppress, asylum, VAWA, Special Immigrant Juvenile Status, and the U Visa. Go to www.ilrc.org and click on “Trainings & Seminars.” The National Immigration Project of the National Lawyers’ Guild provides seminars on the immigration consequences of crimes throughout the year and on other important immigration issues. Go to www.nationalimmigrationproject.org.

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CHAPTER 18 DETENTION OF CHILDREN AND YOUTH This chapter includes: § 18.1 § 18.2 § 18.3 § 18.4 § 18.5

Overview ............................................................................................................ 521 Apprehension/Arrest, Initial Determinations and Detention Standards ............. 523 Detention in ORR Custody................................................................................. 528 Detention in DHS Custody ................................................................................. 537 Seeking Release of Juveniles in Custody ........................................................... 541

§ 18.1 Overview

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When noncitizen children and youth are apprehended by immigration authorities for being undocumented or having committed a deportable offense, a range of things can occur: the government may immediately return them to their country of origin, it may also release them to their families or other responsible adults, or it may detain them while their deportation proceedings are pending. If detained, they may be detained for a few months, and sometimes even years, in various immigration detention settings. The detention situations vary from most to least restrictive, and include secure, staff secure, residential treatment centers, shelters, and foster care settings and, in some cases, juvenile correctional facilities, family detention centers, or adult jails and prisons contracted by the federal government to detain immigrants, as long as they have separate accommodations for juveniles. Many of these detention centers are located in states far from the youths’ homes and families, limiting their access to emotional support, legal assistance, and other services. Many youth are also held in detention even though adult family members can take custody of them during their deportation proceedings. Often, parents of noncitizen minors are afraid to come forward to take custody for fear that they themselves will be deported, an understandable fear in the current heightened immigration enforcement climate. The Office of Refugee Resettlement, Division of Children’s Services/Unaccompanied Alien Children’s program (ORR) is a part of the Administration for Children and Families, a division of the U.S. Department of Health and Human Services. ORR is charged with the care and custody of unaccompanied youth, including those who may have family in the United States but are either unaccompanied at the time of apprehension or rendered unaccompanied by the government’s forcible separation of children from parents, as was seen in spring 2018 in connection with the government’s “zero-tolerance” policy for border crossers. DHS, through its component agencies Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) retains custody of accompanied youth and generally only those unaccompanied youth who are either being transferred to ORR or are in the process of being removed from the United States. As discussed below, these distinctions sometimes do not hold true in practice since the Department of Homeland Security (DHS) may wrongly classify minors in one class or the other. There can be stark differences between the conditions and services provided to youth in the custody of DHS and those in the custody of ORR. The experience for youth in the different

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custody settings is also drastically different. 1 The agencies’ purposes dictate the level of attention paid to the safety and well-being of the children. While both agencies must use the least restrictive setting appropriate for children and youth and provide safe and sanitary detention facilities for them in compliance with federal law, practically speaking, the conditions in many DHS facilities barely meet the minimum standards required, as youth, if detained, are often placed in secure facilities and are not provided systematic health, mental health, and legal services. 2 On the other hand ORR has alternatives to the use of secure detention and their contract facilities must provide health, mental health, legal, and other services to youth. However, conditions in ORR secure facilities are reported to be incredibly dire, with many youth desperate for release and more humane treatment.

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History of immigration detention of children. Historically, the Immigration and Naturalization Service (INS) maintained legal custody of all children who were awaiting resolution of their deportation cases. INS release policies were extremely restrictive, resulting in unnecessary and prolonged confinement of children in immigration detention. Children were held in regular INS detention facilities, some of which were secure juvenile detention facilities where juveniles were held with individuals serving criminal sentences. Conditions in these facilities were notoriously deplorable, subjecting minors who merely lacked immigration status, and were not charged with criminal violations, to punitive prison-like environments. In some facilities, children were subjected to routine strip searches and commingled with unrelated adults. 3 The punitive conditions in which children were detained resulted, in part, from the dual role played by the INS. The agency was both enforcer and custodian, resulting in an inherent conflict of interest. As a result of the Homeland Security Act of 2002, introduced in the aftermath of the September 11th attacks, the INS ceased to exist as an independent agency within the Department of Justice and its functions were transferred to various agencies within the newly formed “Department of 1

For a detailed study of conditions and children’s experiences in the custody of these agencies, see generally Women’s Refugee Commission and Orrick Herrington and Sutcliffe, LLP, Halfway Home: Unaccompanied Children in Immigration Custody (Feb. 2009), http://www.womensrefugeecommission.org/programs/migrant-rights/unaccompanied-children [hereinafter Halfway Home]; Women’s Refugee Commission, Step-by-Step Guide on Apprehension and Detention of Juveniles in the United States (July 2014), http://www.womensrefugeecommission.org/programs/migrantrights/unaccompanied-children; Women’s Refugee Commission’s Detention and Treatment of Unaccompanied Migrant Children at the U.S.-Mexico Border (February 2015), https://cgrs.uchastings.edu/sites/default/files/14_WRC_Border_English_0.pdf. For information on the current treatment of children in more secure ORR detention facilities, including residential treatment centers, see Memorandum in Support of Motion to Enforce Class Action Settlement, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. filed Apr. 16, 2018), https://www.centerforhumanrights.org/PDFs/ORR_MTE2_Brief[Dkt409-1]041618.pdf. 2 Halfway Home, supra note 1, at 13-14; Lutheran Immigration & Refugee Services & Women’s Refugee Commission, Locking up Family Values, Again, 8 (Oct. 2014), https://www.womensrefugeecommission.org/images/zdocs/Fam-Detention-Again-Full-Report.pdf; Disability Rights Oregon, Don’t Look Around: A Window Into Inhumane Conditions for Youth at NORCOR (December 2017), https://droregon.org/wp-content/uploads/REPORT-Dont-Look-Around-A-Window-intoInhumane-Conditions-for-Youth-at-NORCOR-December-5-2017.pdf. 3 Alice Bussiere, Final Settlement in Reno v. Flores Offers Hope to Children in INS Custody, XVIII Youth Law News 3 (May/June 1997).

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Homeland Security.” 4 The DHS now has primary responsibility for administering and enforcing immigration laws. The Homeland Security Act established that custody of “unaccompanied” children would be placed with the Office of Refugee Resettlement, part of the Administration for Children and Families, a division of the U.S. Department of Health and Human Services. ORR created “DCS”—the Division of Children’s Services—to provide care and services to this population. 5 This change was an important step toward resolving the conflict of interest inherent in the INS serving as both “enforcer” and “custodian,” 6 though recent policy changes at ORR have again blurred this distinction in roles. § 18.2 Apprehension/Arrest, Initial Determinations and Detention Standards A.

Apprehension/arrest and initial determinations

Usually, noncitizen children are apprehended by Customs and Border Protection at a U.S. port of entry or along the southwestern border with Mexico. Children may also be apprehended by Immigration and Customs Enforcement in the interior, sometimes by referral of local law enforcement working within the juvenile justice system because the child is suspected of committing illegal activity and being undocumented.

• • • •

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Once a child is arrested by a DHS officer, they must be expeditiously processed and held in a facility that is safe and sanitary. 7 The child is generally placed in a temporary facility/location, which can be a holding cell in an immigration center, a local jail, or a hotel room, until certain determinations are made. DHS authorities will attempt to determine the child’s age, ascertain their nationality, conduct background checks, and notify the appropriate country’s consulate that the youth is being detained. A critical initial determination at this time also includes whether the juvenile is “accompanied” or “unaccompanied.” While immigration laws do not define the term “accompanied,” the term “unaccompanied alien child” is defined as: A child who “has no lawful immigration status in the United States; and has not attained 18 years of age; and with respect to whom there is no parent or legal guardian in the United States; or no parent or legal guardian in the United States is available to provide care and physical custody.” 8

The outcome of this initial assessment will determine what set of procedures apply to the child and who will have custody over the child. (A description of the accompanied and unaccompanied distinction is discussed in greater detail in the following section.)

4

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified in pertinent part in scattered sections of 6 and 8 USC); see H.R. Rep. No. 107-609, pt. 1, at 64 (2002). 5 Halfway Home, supra note 1, at 1. 6 Women’s Commission for Refugee Women and Children, Prison Guard or Parent? INS Treatment of Unaccompanied Refugee Children, 2 (May 2002), http://www.refworld.org/pdfid/49ae53f32.pdf. 7 Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-4544-RJK (C.D. Cal. 1997) ¶ 12.A [hereinafter Flores]. 8 6 USC § 279(g)(2) (defining the term “unaccompanied”).

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Within 48 hours of apprehension, if the child is determined to be “unaccompanied,” DHS must assess whether: (i) the child has been a victim of a severe form of trafficking in persons or there is credible evidence that the child is at risk of being trafficked upon return to the home country, (ii) the child has a fear of returning to their country, owing to a credible fear of persecution, or (iii) the child is unable to make an independent decision to withdraw their application to be admitted to the U.S. 9 If the child meets such criteria or if DHS cannot make such a determination within 48 hours, the unaccompanied child must be immediately transferred to the custody of ORR. DHS will then place these children in removal proceedings under INA § 240. If the child does not meet these criteria, is from a contiguous country (Canada or Mexico), and is inadmissible, DHS can “permit” the child to withdraw their application for admission and return the child to their home country. 10 Children from non-contiguous countries cannot be voluntarily returned through this process. Rather, unaccompanied children from non-contiguous countries are placed in the care and custody of ORR. 11 The TVPRA specifically provides that once a minor is determined to be unaccompanied or there is a claim or suspicion that the person in custody is under the age of 18, all federal departments and agencies must notify ORR within 48 hours. 12 DHS is further required under the TVPRA to transfer the child into the custody of ORR within 72 hours of determining that such child is an unaccompanied alien child, unless exceptional circumstances are present. 13

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If the minor is considered accompanied, DHS retains jurisdiction over the child. DHS may immediately remove the child (with their family or others) if apprehended near the border. If DHS does not immediately remove the child and initiates removal proceedings, the youth may be detained in a juvenile secure facility or in a family detention setting, granted parole, released on bond, or ordered released on recognizance pending those proceedings. 14 Provisions governing the release of an accompanied minor, including to whom, are provided in federal regulation at 8 CFR § 236.3(b), and governed by the Flores Settlement Agreement. 15 Federal regulation and the Flores Settlement Agreement (described in further detail below) further provide that all children must be given a notice of rights upon apprehension by DHS. Each child is to be provided a notice of a right to a phone call, a list of free legal services, Form I-770 (Notice of Rights and Disposition), an explanation of the right to judicial review, and their right to a hearing before being presented with a voluntary departure form. 16 If the child is under 14

9

TVPRA § 235(a)(2)(A). TVPRA § 235(a)(2)(B). 11 TVPRA § 235(b)(1). 12 TVPRA §§ 235(b)(2). 13 TVPRA § 235(b)(3). 14 8 CFR § 236.3. 15 On July 24, 2015, the U.S. District Court for the Central District of California ruled that “accompanied” children and youth, including those in family detention centers, are covered by the Flores Settlement. On July 6, 2016, the Ninth Circuit Court of Appeals affirmed. See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016). 16 See generally, Flores; 8 CFR § 236.3. 10

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years of age or unable to understand Form I-770, the notice must be read and explained to the child in a language that the child understands. 17 B.

Unaccompanied v. accompanied minor classifications

There is confusion and tension over who is an unaccompanied or accompanied minor. This is due to inconsistent interpretations by immigration authorities as well as the lack of a standard definition of what constitutes an accompanied youth. The immigration laws only provide a definition for the term “unaccompanied alien minor” which provides that the minor: 1. Has no lawful immigration status in the U.S. 2. Is under the age of 18, and 3. Does NOT have any parent or legal guardian in the United States who is willing or able to provide care and physical custody. 18

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In other words, if neither a parent nor a legal guardian (the latter requires a court order) is with the juvenile at the time of apprehension, geographically close enough to quickly come forward and care for the child, or willing to come forward before immigration authorities to pick up the child, then the minor may be classified as “unaccompanied.” In spring of 2018, Attorney General Jeff Sessions also ordered all U.S. Attorney’s offices along the southwest border to institute a “zero-tolerance policy” for people violating 8 U.S.C. § 1325(a), which bars illegal entry and reentry to the United States. 19 As a result, Customs & Border Protection (CBP) began separating children from parents who were travelling together in order for the parents to be prosecuted. Thousands of children were forcibly separated from their parents under this policy, essentially rendering the children “unaccompanied” despite the fact that they had been travelling with parents. 20 Even for youth who were originally apprehended without a parent or legal guardian, it should be noted that many minors who are designated as “unaccompanied” actually do have parents or legal guardians in the United States—however, for various reasons, usually out of fear, they do not come forward. Usually these persons are unlawfully present and fear facing removal. There may also be confusion about where the family must appear or where to find their child, since DHS often transfers juveniles from the original detention/apprehension locations. Linguistic barriers can also make communication especially difficult. The majority of children in government custody are considered to be unaccompanied. Prior to 2012, an average of 7,000 to 8,000 children were transferred from DHS into the custody of ORR 17

8 CFR § 236.3(h). 6 USC § 279(g)(2), as amended by the Homeland Security Act. 19 Dept. of Justice, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegalentry. 20 President Trump then issued an Executive Order purporting to end family separations, an odd turn of events given that his Administration had created the crisis with their own policies. See Donald Trump, Affording Congress the Opportunity to Address Family Separation (June 20, 2018), https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-familyseparation/. The Executive Order did not address the thousands of children who had already been separated from parents. Further, it proposed to use family detention as an alternative method of responding to family migration. 18

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annually. 21 In Fiscal Year 2012, this number jumped to 13,625 children, and in Fiscal Year 2013, it again jumped to 24,668. 22 In Fiscal Year 2014, an unprecedented 57,496 referrals were received by ORR from DHS. 23 The number of referrals dropped to 33,726 in Fiscal Year 2015, but jumped up to 59,170 in Fiscal Year 2016. 24 In the most recent year, Fiscal Year 2017, the number was 40,810 referrals. 25 While in Fiscal Year 2017, half of children referred were over 14 years of age and two-thirds were boys, unaccompanied children are composed of both girls and boys and some are only in their infancy. 26 It is likely that we will see a shift in the typical demographic breakdown for Fiscal Year 2018, given the forced family separations discussed above, which resulted in many more young children being classified as “unaccompanied” than previously. Those youth classified as “accompanied” are generally apprehended along with their family members (at least prior to the institution of the “zero tolerance” discussed above, in which children were forcibly separated from parents and thus rendered unaccompanied), and held either alone in a detention center or juvenile jail, or in family detention, or released on bond or on their own recognizance. These youth include those who have parents in the United States (to whom DHS is unwilling to release them) and those with prior criminal convictions or adjudications, or they may fall into other unknown categories. Overall, little is known about the accompanied minor population. 27

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DHS has a lot of power at the initial stage since it plays the role of “gatekeeper” by making the “accompanied” vs. “unaccompanied” determination. Some studies suggest that DHS has gone even further to deliberately misclassify juveniles as either “accompanied” or “unaccompanied” in order to avoid extra procedure or costs.28 The distinction between the unaccompanied and accompanied classification determines what federal agency has custody over the child and how the child will be treated. If the child is deemed accompanied, they will be held by ICE, which takes an enforcement approach. If unaccompanied, they will be held by ORR, which at least theoretically takes a child welfare approach, although in recent years their involvement in immigration enforcement has expanded in

21 U.S. Department of Health & Human Services, Administration for Children and Families, Office of Refugee Resettlement, Unaccompanied Alien Children Program (June 15, 2018), https://www.acf.hhs.gov/sites/default/files/orr/orr_fact_sheet_on_unaccompanied_alien_childrens_services _0.pdf [hereinafter UAC Fact Sheet]. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 In 2017, ICE used nine juvenile jails to detain minors. National Immigrant Justice Center, ICE Released Its Most Comprehensive Immigration Detention Data Yet (Mar. 13, 2018), https://immigrantjustice.org/staff/blog/ice-released-its-most-comprehensive-immigration-detention-datayet. 28 Halfway Home, supra note 1, at 7.

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disturbing ways. 29 In practice, this means that the determination will directly impact whether the child remains in immigration custody, the conditions they face while in custody, whether the youth is released to family, and/or will have access to services, counsel, and the ability to raise defenses against their deportation. This will also determine whether a child’s application for asylum may be initially filed with USCIS, as USCIS has initial jurisdiction of asylum applications filed by children designated as unaccompanied (but not those children who are considered “accompanied”), even when they are in removal proceedings. See Chapter 12 for additional information. C.

Detention standards: The Flores settlement agreement and the TVPRA

The detention, release, and treatment of minors in federal immigration custody is governed by the Flores Settlement Agreement (“Flores”). This settlement agreement entered into in 1997 was the outcome of a class action lawsuit filed by civil rights attorneys in 1985, called Reno v. Flores, 507 U.S. 292 (1993), which challenged the former INS’s policies governing the detention, release, and treatment of minors in its custody.

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Flores requires the INS (now DHS, with some authority delegated to ORR) to treat all minors in its custody with “dignity, respect and special concern for their particular vulnerability as minors.” 30 The agreement establishes a general policy in favor of release unless detention is necessary to ensure the minor’s appearance in court or to protect their safety or the safety of others. Flores further provides that when detention is necessary, the responsible agency must place the child in the least restrictive setting possible. Under Flores, a minor may be placed in a secure facility only if one or more of the following conditions are met: • • • • •

A minor is charged or chargeable 31 with criminal or delinquent actions (not for isolated offenses or non-violent or petty offenses); A minor threatens or commits violence while in custody; A minor’s conduct becomes unacceptably disruptive in a licensed program; A minor presents an escape risk; 32 or A minor is in danger and is securely detained for their own safety. 33

NOTE: Publication of proposed Flores regulations. On September 7, 2018, the Department of Homeland Security and Department of Health and Human Services published proposed regulations that would, once finalized, replace the Flores Settlement Agreement. A 60-day period 29

See, e.g., Memorandum of Agreement Among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters (Apr. 13, 2018). 30 Flores, supra note 7, at ¶ 11. 31 “Chargeable” means that the INS [now DHS] has probable cause to believe that the individual has committed a specific offense.” Flores, supra note 7, at ¶ 21. 32 “Escape-risk” is defined in paragraph 22 of Flores. 33 Flores, supra note 7, at ¶ 21.

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for public comment is currently underway, and litigation arguing that the regulations are inconsistent with the Flores Settlement Agreement is likely to be filed. To review the proposed regulations, which would, among other things, significantly expand detention of accompanied children in family detention centers, impact the unaccompanied minor classification, and make other changes to the detention conditions for youth in ORR custody, see https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehension-processingcare-and-custody-of-alien-minors-and-unaccompanied-alien-children. The Trafficking Victims Protection Reauthorization Act (TVPRA), a federal law enacted on December 23, 2008, codified several provisions of Flores, specifically enumerating some standards for the detention of unaccompanied minors. The TVPRA provides that a child must be “promptly placed in the least restrictive setting that is in the best interest of the child.” 34 In making such a determination, danger to self, danger to the community, and flight risk are factors that may be considered. 35 An unaccompanied child also cannot be placed in a secure facility unless there is a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.36 This standard is more narrow than that provided in Flores. An in depth discussion of the detention standards for unaccompanied children in ORR custody is at § 18.3 and for accompanied children in DHS custody is at § 18.4.

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§ 18.3 Detention in ORR Custody A.

Overview

ORR, through the DCS subdivision, is the agency responsible for the care, protection, and placement of unaccompanied youth pending immigration proceedings. The treatment of most unaccompanied youth improves with the transfer of custody to ORR. Youth in ORR custody include those who are appropriately considered unaccompanied and some who are deliberately classified as such by DHS, including through forced separation from parents or other adult family members at the border. Most of the children come from three countries: Guatemala, El Salvador, and Honduras. 37 Of the children served in Fiscal Year 2017, approximately 84% were eventually released to sponsors who were parents or close relatives. 38 When placed in the custody of ORR, unaccompanied youth can be held in any number of facilities including secure, staff secure, shelter or foster care settings, as well as therapeutic programs. Shelters make up the majority of ORR bed space, whereas secure and staff secure facilities make up a smaller percentage. Some of the characteristics of these detention options include: 34

TVPRA § 235(c)(2) (emphasis added). TVPRA § 235(c)(2). 36 TVPRA § 235(c)(2); see also Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017), in which previously released youth challenged the government’s use of unsubstantiated gang allegations as the basis for re-detention in secure ORR facilities. 37 UAC Fact Sheet, supra note 21, at 1. 38 Statement of Steven Wagner, Administration for Children and Families, Department of Health and Human Services, before the Permanent Subcommittee of Investigations, Committee on Homeland Security and Governmental Affairs, United States Senate, 3 (Apr. 26, 2018), https://www.hsgac.senate.gov/imo/media/doc/Wagner%20Testimony.pdf [hereinafter Wagner Testimony]. 35

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Shelters are similar to a lower level group home. Staff secure facilities are similar to group homes, but with more security measures such as increased staff to child ratio. Secure facilities are the most restrictive settings. They are juvenile detention facilities (i.e., juvenile halls) contracted to house ORR youth.

Some of the facilities that unaccompanied youth are held in provide special or therapeutic programs designed to serve their needs. Examples include sex offender programs, volunteer community programs, substance abuse treatment programs, a variety of educational programs, and recreational activities.39 ORR also places some children in Residential Treatment Centers (RTCs) which, in theory, are time limited therapeutic programs providing non-coercive specialized services for children with significant mental health needs. 40 Recently these RTCs have come under scrutiny as reports have surfaced of children inappropriately detained for many months who are forced or coerced to take psychotropic medication without their parents or sponsor’s consent. 41 Although ORR’s level of care is often inadequate, it does offer or facilitate a number of services that are not available to youth in DHS custody, including access to legal information, legal screenings, and in some cases, full scope legal representation. However, just as ORR may facilitate access, it may also attempt to prevent children in its care from accessing certain services that the administration opposes, such as abortion access. 42

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ORR may also provide a case worker to advocate on a youth’s behalf with the facility, their attorney, and, if relevant, a local juvenile probation department. The determination as to what kind of facility the child will be placed in is generally governed by the age, special needs of the child, available bed space, and any risk factors that the child presents (discussed below in Subsection B). In all of these settings, ORR contracts with local and state facilities. All of these facilities are bound by state licensing laws. It is important to note that a child can and often will be transferred among various contract facilities and may be moved up or down (meaning moved from a less secure setting to a more secure setting, and vice versa) in the different detention settings. For example, a youth could be stepped up from a shelter to a more secure placement if there are certain behavioral or mental health issues. If a youth is placed in a more secure facility, they can also be stepped down to a less secure setting. Any youth, regardless of the setting in which they are housed, has the right to reunify with a family member or a close family friend. Historically, the reunification process was estimated to take no more than 90 days, but advocates sometimes found the process to be difficult and lengthy, possibly taking up to six months. Following the huge increase in the number of 39

Halfway Home, supra note 1, at 17. For ORR’s definition of an RTC, see https://www.acf.hhs.gov/orr/resource/children-entering-the-unitedstates-unaccompanied-guide-to-terms and https://www.acf.hhs.gov/orr/resource/children-entering-theunited-states-unaccompanied-section-1#1.4.6. 41 Complaint for Injunctive Relief, Declaratory Relief, and Nominal Damages, Lucas R. v. Alex Azar, No. 2:18-CV-05741-DMG-PLA (C.D. Cal. filed June 28, 2018). 42 ACLU, ACLU Challenges Government Policy of Forcing Unaccompanied Immigrant Minors to Carry Pregnancies Against Their Will (Dec. 19, 2017). 40

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unaccompanied children arriving to the United States in Fiscal Year 2014, the average length of the reunification process greatly decreased to approximately 29 days. 43 However, after reports that ORR had released children to human traffickers, ORR became more stringent in the process of vetting adults to whom to release children. 44 As a result, the length of stay increased, and in Fiscal Year 2017, the average length of stay of an unaccompanied child in ORR custody was 57 days. 45 If a child is not released by their 18th birthday, ORR loses custody and the child will “age out” into ICE custody. On the youth’s birthday, ICE decides whether to release on recognizance or detain in an adult immigration detention center. 46 Under the TVPRA, ICE must consider placement in the least restrictive setting. 47

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ORR’s legal access project. The TVPRA provides that the Secretary of Health and Human Services shall ensure, to the greatest extent practicable, that “all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security … have counsel to represent them in legal proceedings.” 48 For years following the implementation of the TVPRA, this was limited to the provision of pro bono legal representation for a small number of children, but did not result in representation in the vast majority of unaccompanied minor cases. Around 2012, ORR began pilot programs in Houston, Texas and Los Angeles, California to provide legal representation for a limited number of unaccompanied children after they were released from detention. In 2014, ORR expanded this program to provide legal representation for approximately 2,600 unaccompanied children by awarding additional funds to existing grantees to hire attorneys to provide full-scope legal representation. These funds to provide legal representation for children after release from ORR detention were abruptly ended in May of 2018. 49 B.

ORR detention decisions

The TVPRA provides that an unaccompanied child must be “promptly placed in the least restrictive setting that is in the best interest of the child.” 50 In making such a determination, 43

UAC Fact Sheet, supra note 21. Emmarie Huetteman, U.S. Placed Immigrant Children With Traffickers, Report Says, N.Y. Times, Jan. 28, 2016, https://www.nytimes.com/2016/01/29/us/politics/us-placed-immigrant-children-with-traffickersreport-says.html. 45 UAC Fact Sheet, supra note 21, at 2. 46 On August 30, 2018, the District Court for the District of Columbia granted class certification for all former unaccompanied children who are detained or will be detained by ICE after being transferred by ORR on their 18th birthday. The pending class action alleges that ICE fails to consider placement in the least restrictive setting, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B). See National Immigrant Justice Center, Federal Court Certifies National Class to Protect Unaccompanied Youth Jailed by ICE (Aug. 31, 2018), http://immigrantjustice.org/sites/default/files/uploaded-files/no-content-type/201808/Opinion_GrantingClassCert_DenyingMTD-2018-08-30.pdf. 47 8 USC § 1232(c)(2)(B). 48 TVPRA § 235(c)(5). 49 Meredith Hoffman, Trump Has Quietly Cut Legal Aid for Migrant Kids Separated From Parents, Vice, May 31, 2018, https://www.vice.com/en_us/article/a3a798/trump-has-quietly-cut-legal-aid-for-migrantkids-separated-from-parents. 50 TVPRA § 235(c)(2)(emphasis added). 44

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danger to self, danger to the community, and flight risk are factors that may be considered. 51 In addition, the age and needs-appropriate setting are considered in placement decisions.

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ORR is governed by the detention standards set forth in the Flores Settlement Agreement as well as the TVPRA (discussed in further detail in Subsection C). Most children are automatically placed in shelter care. 52 However, for children who have a history of contact with the juvenile justice system, gang involvement or prior escapes or acts of violence while in government custody, ORR employs a placement tool developed by ORR with assistance from the Vera Institute of Justice. 53 This standardized placement screening questionnaire is implemented in two phases. The first phase determines the child’s initial placement and is based on information gleaned during the apprehension of the minor. 54 Children who score at certain levels during the first stage are subject to a detention review, known as Further Assessment Swift Track (FAST) within 30 days of the initial placement. 55 In general, all children placed in secure detention and some placed in a staff-secure placement will receive a FAST review. 56 During the second stage, ORR administers the placement tool again, adding information that has been gathered since the child arrived in custody. 57 Overall, this placement tool is designed to encourage the transfer of children to less-restrictive settings. Although this placement tool is in place to guide decision making, it remains the case that there is no automatic detention hearing before an immigration judge to review ORR’s decision to detain a minor and in the past, in many instances judges had held that they had no such jurisdiction to review such a decision. On July 5, 2017, however, the Ninth Circuit ruled that all children in ORR custody have the right to request a Flores “bond hearing” before an immigration judge. 58 Although the immigration judge lacks authority to order the child released from ORR custody in a Flores bond hearing, this type of custody hearing can be a useful tool in advocating for a child’s placement in a less restrictive setting. A Flores bond hearing can also be used to secure a finding by an immigration judge that a child is not a danger or flight risk in a case of a child in shelter care who risks aging out of ORR care into ICE detention. 59 See discussion in § 18.5.

51

TVPRA § 235(c)(2). Vera Institute of Justice, The Flow of Unaccompanied Children Through the Immigration System: A Resource for Practitioners, Policy Makers, and Researchers, 14 (Mar. 2012), http://www.vera.org/publications/the-flow-of-unaccompanied-children-through-the-immigration-system-aresource-for-practitioners-policy-makers-and-researchers [hereinafter The Flow of Unaccompanied Children]. 53 Id.; for more details on the Placement Tool, see ORR’s UAC Manual of Procedures, https://www.centerforhumanrights.org/PDFs/UAC%20Manual%20of%20Procedures%20Section%20One %208-7-17.pdf. 54 The Flow of Unaccompanied Children, supra note 52, at 14. 55 Id. 56 Id. at 15. 57 Id. 58 Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). 59 For more information on Flores “bond hearings” and related practice tips, see ILRC, Practice Alert on Flores v. Sessions: Ninth Circuit Holds that All Detained Children Have the Right to a Bond Hearing (July 21, 2017), https://www.ilrc.org/practice-alert-flores-v-sessions-ninth-circuit-holds-all-detained-childrenhave-right-bond-hearing. 52

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Secure detention. Some unaccompanied children are held in secure facilities pending their removal proceedings. Under the TVPRA, a child cannot be placed in a secure facility “absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” 60 The Flores Settlement Agreement provides further factors that can be considered including behavioral problems or threatened violence and presentation of an escape risk (see § 18.2), although the requirements of the TVPRA must be met in order for a child to be placed in secure detention. From approximately 2012 to 2014, there had been a perceived decrease in the use of secure detention due to fewer interior enforcement referrals from ICE, which originate from the juvenile justice system. However, in the past couple of years, the number of secure placements appears to have increased again as internal immigration enforcement has increased and the release process has slowed down significantly for youth in secure detention. In addition, until recently many more youth have been placed in secure detention on the basis of alleged gang involvement or self-disclosure of being trafficked by a gang or cartel. As a result of a recent successful Flores enforcement action, a federal judge ruled that ORR may not place a child in a secure facility, absent probable cause, solely on the basis that they may be charged with a criminal offense, that the child has reported gang involvement or has displayed gang affiliation while in care, or has self-disclosed a violent criminal history or gang involvement prior to placement in ORR custody. 61

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Once youth are placed in secure detention facilities, they can be stepped down to a less secure facility. The TVPRA requires that the placement of a child in a secure facility “shall be reviewed, at a minimum, on a monthly basis.” 62 ORR through the placement tool has placed all youth in secure detention on FAST, meaning that the decision to detain them in secure detention will be reassessed within 30 days of the initial placement decision. Youth in secure detention, like all unaccompanied minors, have the right to reunify with a family member, a family friend, or another adult. Secure detention conditions. The secure facilities in which these youth are held are generally local juvenile detention facilities with whom ORR contracts. Youth detained in ORR custody are sometimes mixed in with youth who face delinquency proceedings in state court. The physical structure, program, staffing, rules and overall environment of most juvenile detention facilities renders them indistinguishable from a jail, especially to the youth confined there. A 2009 Women’s Refugee Commission report “Halfway Home,” found that while the transfer of custody of unaccompanied minors to ORR led to significant improvements in detention conditions, there has been an increasing trend of the institutionalization of the detention of unaccompanied minors. 63 The Women’s Commission also documented the failure of secure facilities to provide the services required by ORR/DCS, citing the inherent incompatibility of implementing a child welfare approach in a correctional setting. 64 It found among other things that children are held in large institutional settings where individualized services cannot be 60

TVPRA § 235(c)(2). Order Re Plaintiffs’ Motion to Enforce Class Action Settlement, Flores v. Sessions, No. 2:85-cv-04544DMG-AGR (C.D. Cal. filed July 30, 2018). 62 TVPRA § 235(c)(2). 63 Halfway Home, supra note 1, at 15. 64 Id. 61

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provided, staff are often unprepared to address the serious mental health problems that these children have, and children are often placed in facilities in rural areas with few service providers. 65 In the last few years, there have been several lawsuits against ORR on behalf of children held in secure facilities alleging lack of appropriate mental health services and abusive treatment. 66

C.

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Long-term federal foster care. Some youth in ORR’s care may have no adult family member or friend to whom they can be released in the United States. For children who have no viable family reunification options in the United States and who are identified by an ORR-contracted legal services provider as eligible for relief from removal, ORR also operates a long-term foster care program. Long-term foster care provides a family-style living environment for children while they pursue immigration relief, and in many ways is similar to the traditional state-run foster care system. Although children live relatively normal lives in long-term foster care, they remain in removal proceedings and technically are still detained by ORR. Because federal foster care is actually a version of immigration detention, once a child receives legal status or turns 18, they are no longer eligible to participate in the long-term foster care program. In fact, there have been several cases of children in ORR foster care who are detained by ICE on their 18th birthday and placed in adult immigration detention facilities. In order to avoid transfer to ICE detention and to be able to continue to reside in a foster home, children who are eligible may apply for designation as an Unaccompanied Refugee Minor (URM) and receive services through the URM Program, also operated by ORR. Children may be eligible for the URM program (including foster care and access to the same benefits available to people with refugee status) if they are under the age of 18, unaccompanied and are: refugees, Cuban/Haitian entrants, asylees, victims of trafficking, Special Immigrant Juveniles, or U visa holders. Once a child enters the URM program, they may continue to receive benefits beyond the age of 18. For more information on the URM program, see http://www.acf.hhs.gov/programs/orr/programs/urm/about. Release and reunification with family pending removal

The TVPRA and Flores Settlement Agreement provide that youth must be kept in the least restrictive setting, 67 and thus, whenever possible, there is a preference for the release of youth. ORR must pursue reunification efforts for every child, including youth with juvenile records. In many cases involving unaccompanied youth in ORR custody, there is a parent/legal guardian or family member or close family friend who is willing to take the youth into their custody. The TVPRA provides guidance on determining when an unaccompanied child may be reunified with a family member or other close family friend. ORR must first conduct a safety and suitability assessment ensuring that the “proposed custodian is capable of providing for the child’s physical and mental well-being.” 68 This involves verification of identity and relationship to the child and a 65

Halfway Home, supra note 1. See for example, Plaintiffs’ Motion for Preliminary Injunction, Doe v. Shenandoah Valley Juvenile Center Commission, No. 5:17-cv-00097 (W.D. Va. filed Feb. 28, 2018); Complaint for Injunctive Relief, Declaratory Relief, and Nominal Damages, Lucas R. v. Alex Azar, No. 2:18-CV-05741-DMG-PLA (C.D. Cal. filed June 28, 2018). 67 TVPRA § 235(c)(2); Flores, supra note 7. 68 TVPRA § 235(c)(3)(A). 66

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determination that the individual does not have a history that would pose a potential risk to the child. 69 Before a child can be placed with any individual, ORR must also determine whether a home study is necessary. 70 Under the TVPRA, a home study is necessary when certain risk factors are present such as when the child is a victim of trafficking or physical or sexual abuse, has a disability, or the potential sponsor presents a risk of abuse or trafficking. 71 A home study is also required when the sponsor is a non-relative seeking to sponsor multiple children or has sponsored children in the past and is seeking to sponsor additional children. 72 Children for whom a home study was conducted are entitled to follow-up services under the TVPRA during the pendency of their removal proceedings. Under the TVPRA, other children with mental health concerns or other needs may also be provided follow-up services. 73

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WARNING! ORR’s information sharing with DHS. On April 13, 2018, ORR signed a Memorandum of Agreement (MOA) with Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) agreeing to vastly expand the information collected from sponsors and household members and to share that information between the agencies. See Appendix RR for a copy of the MOA. ORR is now requiring biographical and biometric information from all adults in the sponsor’s household, which will be shared with DHS. Not surprisingly, the MOA has had a chilling effect on individuals coming forward to be sponsors for detained children. Even when sponsors are willing to undergo the process, many are finding that other adult household members are refusing to submit their information for the sponsorship process out of fear of immigration enforcement. This chilling effect is causing children to remain in ORR custody for longer, and potentially indefinite, periods of time. 74 It is expected that some children will abandon valid claims for protection and choose to return to danger in their country of origin, just so that they can be released. For those children who decide to pursue their cases while detained, they will face additional barriers in obtaining legal representation, gathering evidence, and effectively advocating for protection. The reunification process. In order for reunification to take place, ORR has an application process that allows a family member or other family representative to take responsibility for the child. The individual must complete a “family reunification packet,” which requests information about the individual and the appropriateness of the home for the juvenile. The packet can be found at http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrensservices. The packet requires that the potential sponsor provide information such as relationship to the child, age, address, household composition, financial information, medical information, and information about any criminal record. The potential sponsor and all adult household members 69

Id. TVPRA § 235(c)(3)(B). 71 Id. 72 See ORR, Children Entering the United States Unaccompanied: Section 2, Safe and Timely Release from ORR Care (July 27, 2018), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2.4.2. 73 TVPRA § 235(c)(3)(B). 74 For more information on how the MOA delays the release process, see the following anonymized complaint filed by Legal Aid Justice Center at https://www.justice4all.org/wpcontent/uploads/2018/07/Amended-Class-Complaint-and-Habeas-Petition-Anonymized.pdf. 70

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must submit fingerprints to ORR, which ORR then shares with DHS. ICE will conduct criminal and immigration history background checks, while ORR will conduct searches in several databases, such as the Sex Offender Registry, National (FBI) Criminal History, Child Abuse and Neglect, State Criminal History Repository, and local police records. 75 As mentioned above, ORR will also consider other factors before reunification can be approved, including: • • • •

Proximity of familial relationship to the juvenile; The criminal and immigration histories of both the individual and juvenile; The individual’s ability to financially provide for the juvenile; The appropriateness of the setting.

If the application is relatively straightforward and there are no concerning issues with the youth or family, the facility where the child is housed will review the application and can either recommend a straight release to the family with no conditions or release of the youth with followup services where it is apparent that the youth will need additional local support. Follow-up services allow for a local social worker to be assigned to the child following her release from detention. Unfortunately, in the vast majority of cases, no follow-up services are provided by ORR and children are left to navigate a potentially unfamiliar culture, school and other local systems, as well as removal proceedings on their own. Whether or not follow-up services are recommended, ORR has to review the release recommendation and approve or deny it.

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In cases that present certain issues, a home study (which assesses the suitability of the placement) may be required prior to reunifying a minor with their family or sponsor. Under the TVPRA, a home study is required when: The child is a victim of a severe form of human trafficking; The child has a disability, as defined under the Americans with Disabilities Act of 1990; The child has been a victim of physical or sexual abuse under circumstances indicating that the child’s health or welfare has been significantly harmed or threatened; or The proposed sponsor clearly presents a risk to the child of abuse, maltreatment, exploitation, or trafficking. 76

Following reports in 2016 that children had been released to traffickers, ORR now also requires home studies in situations where a non-relative sponsor is seeking to sponsor multiple children or has sponsored a child in the past and is seeking to sponsor an additional child. Home studies can significantly delay a child’s placement with a sponsor, though ORR has made efforts to reduce the time that it takes to complete home studies. 77 This process assesses whether the youth will be appropriately cared for and ensures that they are supported upon return to the community. In other words, it will be determined whether the sponsor is able to care for the youth’s specific individual needs. ORR at times engages in “extreme vetting” of sponsors, demanding that they

75 ORR, Children Entering the United States Unaccompanied: Section 2, Safe and Timely Release from ORR Care (July 27, 2018), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2.4.2. 76 TVPRA § 235(c)(3)(B). 77 The Flow of Unaccompanied Minors, supra note 52, at 19.

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have exceptional abilities to care for children. 78 The home study is carried out by a social worker. During this process, the social worker will gather information about the youth’s needs, conduct visits to the sponsor’s home, and interview the sponsor and the child. The sponsor will undergo background checks at the beginning of the process and in some cases, this will include a child protective services check. If a youth has a delinquency record, probation officers are usually contacted. The social worker may inquire into the conditions of probation to ensure that the plan for their release does not conflict with these conditions. They will also inquire to see what kind of services will be made available to the youth. The social worker’s recommendation ultimately goes to ORR and a third-party independent reviewer who make the final decision whether the youth will be approved or denied for reunification. If ORR approves the release of a child after a home study, post-release services will be put into place. Until recently, ORR required that postrelease services be in place prior to a child’s release. These post-release services continue until the child turns 18 or until their immigration case is decided. 79 Although ORR put these procedures in place in order to protect children, advocates have expressed concerns that they can greatly lengthen a child’s detention, and thus cause the child harm. 80

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It is important to note that there is no formal role in this process for the youth’s immigration attorney (even though the youth’s case will be directly impacted by the release and hence, change in jurisdiction). However, an immigration attorney may attempt to communicate directly with the ORR Federal Field Specialist, the person who makes the recommendation about whether to conduct a home study or provide follow-up services, about the legal case and concerns the attorney may have. These concerns and other relevant information may ultimately factor into the Federal Field Specialist’s decision to recommend or deny reunification. Upon the release of a youth to a family member or friend, ORR notifies DHS that a youth has been released for family reunification. Being released from ORR custody for family reunification does not have any impact on the child’s immigration status, and they must continue to appear before the immigration court until the case has been resolved. The youth, however, loses all services that ORR had previously provided and therefore must rely on whatever services are available in the community in which they live. How DHS’s unaccompanied and accompanied classifications can interfere with reunification. It has been reported that in some instances DHS classifies youth who have family members in the U.S. as “accompanied,” but then refuses to release such youth to their families. 81 By preventing the parents from retaining custody and providing care, DHS is actually rendering 78

Some examples of “extreme vetting” include verifying that a proposed sponsor’s cancer would not hinder her from caring for her own son, and concern by ORR that a sponsor mentioned that she was unsure whether she would be able to pay for the child’s legal representation while he was in her custody. Order Re Plaintiffs’ Motion to Enforce Class Action Settlement, Flores v. Sessions, No. 2:85-cv-04544-DMG-AGR (C.D. Cal. filed July 30, 2018). Advocates have also reported examples where sponsors were told to move to a new neighborhood (when the sponsor owned their home) or were told to enroll the child in a community program (where that program would not accept the child unless the child was already living in the community). 79 The Flow of Unaccompanied Minors, supra note 52, at 20. 80 Order Re Plaintiffs’ Motion to Enforce Class Action Settlement, Flores v. Sessions, No. 2:85-cv-04544DMG-AGR (C.D. Cal filed July 30, 2018). 81 Halfway Home, supra note 1, at 7.

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these children “unaccompanied.” In some cases, DHS has attempted to transfer these children to ORR and ORR has refused to accept them unless DHS demonstrates that the child has no family that is willing or able to care for them. Ironically, this results in situations where a child who has a parent in the United States but whose parent is unwilling to pick them up might be deemed “unaccompanied” and transferred to ORR, whereas a child whose parents are willing and able to pick them up, but whom DHS does not want to release, would be considered “accompanied” and inappropriately remain in DHS custody. This situation is further confused because in some cases ICE does transfer, and ORR accepts, children who have parents in the United States and it is then ORR’s responsibility to undertake the reunification process. 82

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More recently, migrant parents were separated from their children as a consequence of the “zero tolerance” policy discussed above, where adults were separated from their children in order to be criminally prosecuted for illegally crossing the U.S.-Mexico border. As of June 20, 2018, over 2,600 children who entered the United States with a parent were separated from their parents, rendered unaccompanied, and placed in the custody of ORR, often far away from their parents. After a federal judge ordered the government to reunify separated children with their parents, the federal government began making attempts to reunify children with their parents. 83 However, as of the time of this writing, the government has failed to fully comply with the court-ordered deadlines for reunification and there are still approximately 500 separated children in ORR care. Notably, the federal government has been unable to locate 343 parents it deported without their children. 84 Specific Consent in SIJS Cases. In the case of children in federal custody, one of the requirements of Special Immigrant Juvenile Status (SIJS) is specific consent from ORR to the juvenile court jurisdiction. (The TVPRA changed this requirement, which was formerly consent from DHS). As of March 23, 2009, SIJS applicants in the custody of ORR must obtain specific consent from HHS to the juvenile court jurisdiction where the juvenile court order determines or alters the juvenile’s custody status or placement. For detailed information on this process please see Chapters 4 and 7. § 18.4 Detention in DHS Custody DHS, through its agencies ICE and CBP, retains custody of accompanied youth and unaccompanied youth who are either being transferred to ORR or who have been ordered removed or voluntarily accepted deportation and whom ICE is in the process of removing. In practice, however, DHS sometimes also holds other unaccompanied youth who are wrongly classified as “accompanied” such as those who have criminal convictions, or those who have family that is unable or unwilling to accept care and custody. 85 82

Halfway Home, supra note 1, at 7. Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, Ms. L v. ICE, No. 3:18-cv00428-MDS-MDD (S.D. Cal filed June 26, 2018). 84 Angelina Chapin, Inside The Desperate Search For 343 Parents Deported Without Their Kids, Huffington Post, Sep. 2, 2018, https://www.huffingtonpost.com/entry/search-for-immigrant-parentsdeported-without-their-children_us_5b897eace4b0511db3d8264d. 85 According to Halfway Home, supra note 1, at 7, there is no reason for ICE to have custody of children with criminal convictions since HSA does not provide an exception for children who have criminal 83

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There are a few known categories of accompanied youth in DHS custody. The most common category includes youth who are apprehended with their parents or other family member(s). Along with the sharp increase in the number of unaccompanied minors entering the United States in 2014, the number of family units apprehended also increased exponentially, to more than 60,000 in 2014. 86 Most recently, from October 1, 2017 to June 30, 2018, over 68,500 family units have been apprehended by CBP between ports of entry. 87 These accompanied youth can be housed in family detention centers, as long as they or the parent(s) have no criminal record. The family can be either deported or placed in removal proceedings together. The practice of family detention declined following legal challenges to the T. Don Hutto Family Residential Facility (“Hutto”) in Taylor, Texas. In 2007, the Hutto Detention Center became the subject of litigation charging that children were being imprisoned under inhumane conditions in contravention of the Flores Settlement Agreement, which requires that children remain in the least restrictive conditions possible and that certain basic detention standards of care and treatment must be met. The lawsuit eventually led to Hutto’s closure in 2009. Following Hutto’s closure, the government operated only one family detention center in Leesport, Pennsylvania that functioned more like a shelter facility for families awaiting immigration hearings. 88 However, the use of family detention again spiked in 2014 as the federal government reacted to the increase in children and families entering the United States at the southern border and opened a temporary detention facility in Artesia, New Mexico. 89 The Artesia facility was the subject of intense criticism and was closed in December 2014. DHS, however, opened two additional family detention facilities, one in Karnes, Texas and one in Dilley, Texas. 90 The facility in Dilley was built to house 2,400 immigrants and, like Hutto, was run by the private prison firm Corrections Corporation of America, now known as CoreCivic. 91 In 2014, the American Civil Liberties Union filed a class-action lawsuit against the Obama Administration, challenging the Administration’s policy of locking up asylum-seeking mothers and children to intimidate them from coming to the United States. 92 In fact, the Administration backgrounds that would justify ICE’s retention of custody over these children. In addition, the TVPRA provides that unaccompanied children charged with having committed a criminal offense should be in DCS custody, and may be placed in a secure DCS facility. See also Women’s Refugee Commission, Step-byStep Guide on Apprehension and Detention of Juveniles in the United States, 3 (July 2014), http://www.womensrefugeecommission.org/programs/migrant-rights/unaccompanied-children. 86 Women’s Refugee Commission and Lutheran Immigration & Refugee Service, Locking Up Family Values, Again, 3 (Oct. 2014), http://lirs.org/wpcontent/uploads/2014/11/LIRSWRC_LockingUpFamilyValuesAgain_Report_141114.pdf. 87 U.S. Customs and Border Patrol, Southwest Border Migration FY 2018, https://www.cbp.gov/newsroom/stats/sw-border-migration. 88 Women’s Refugee Commission, Step-by-Step Guide on Apprehension and Detention of Juveniles in the United States, 2 (July 2014), http://www.womensrefugeecommission.org/programs/migrantrights/unaccompanied-children. 89 Id. 90 Ian Gordon, Inside Obama’s Deportation Mill, Mother Jones, Dec. 19, 2014, http://www.motherjones.com/politics/2014/12/family-detention-artesia-dilley-immigration-central-america. 91 Id. 92 ACLU, ACLU Sues Obama Administration for Detaining Asylum Seekers as Intimidation Tactic (Dec. 16, 2014).

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acknowledged that increased family detention was intended to serve as a deterrent to increased migration. 93 In February of 2015, the district court issued a preliminary injunction against the Obama administration’s policy of employing family detention as a deterrent measure. In May of 2015, the parties agreed to dissolve the preliminary injunction after ICE issued a policy announcing that it would no longer consider deterrence in its family detention decisions. 94 Beginning July of 2015, DHS was forced to release detained families after successful Flores litigation challenged ICE’s blanket “no release” policy to detain all female-headed families, including children, in secure unlicensed facilities without possibility of release while their proceedings were pending. 95 However, on July 6, 2016, the Ninth Circuit affirmed the district court’s ruling that the Flores settlement applies to both accompanied and unaccompanied children, but found that it does not create affirmative release rights for the parents. 96 In June of 2017, the United States District Court, Central District of California held that under Flores, children generally cannot be detained in DHS custody in secure unlicensed facilities for longer than 20 days. 97

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In some instances, rather than being detained as a family unit, youth might be separated from their family once apprehended and then classified as unaccompanied, even though the youth was traveling with family. Such a scenario may occur when, for example, the parent or legal guardian is deemed a “criminal alien” and must be housed in a criminal detention unit. In such cases, ICE is not legally allowed to keep the child with the parent since those facilities are not considered suitable for juveniles. 98 As discussed above, the Trump administration’s “zero tolerance” policy of criminally prosecuting all adults for illegally crossing the U.S.-Mexico border led to over 2,600 children being separated from parents, thus rendered unaccompanied by the government and placed in ORR custody. In other situations, children may be separated from their family due to a shortage of bed space. 99 In these circumstances, such children may also be treated as unaccompanied minors (since the parent or legal guardian is unable to provide care and physical custody for the child) and placed in ORR custody. Finally, families may be separated if the family relationship cannot be established and DHS determines that they are not a bona fide family. Examples include a lesbian mother who traveled with her son (the biological son of her longtime partner but not her biological son), a father traveling with his stepchild, and families where the relationship cannot be proven (different last names for example).

93

Julia Preston, Detention Center Presented as Deterrent to Border Crossings, N.Y. Times, Dec. 15, 2014, http://www.nytimes.com/2014/12/16/us/homeland-security-chief-opens-largest-immigration-detentioncenter-in-us.html?_r=1 (noting that Secretary of Homeland Security Jeh C. Johnson sent a clear message to people contemplating migration: “It will now be more likely that you will be detained and sent back.”) 94 ACLU, RILR v. Johnson (last updated Jul. 31, 2015), https://www.aclu.org/cases/rilr-vjohnson?redirect=immigrants-rights/rilr-v-johnson. 95 Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015). 96 Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016). 97 Order Re Plaintiffs’ Motion to Enforce, Flores v. Sessions, No. 2:85-cv-04544-DMG-AGR (C.D. Cal filed June 27, 2017). 98 8 CFR § 236.3. 99 U.S. Department of Homeland Security, Office of Inspector General, Office of Inspections and Special Reviews, A Review of DHS’ Responsibilities for Juvenile Aliens, OIG-05-45, pp. 19–20 (Sept. 2005).

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There are other youth who have been apprehended on their own that ICE has classified as “unaccompanied,” despite the presence of an able and willing parent, legal guardian, or other family representative in the United States, and who remain separated and confined in subcontracted detention centers. All that is known is that some of these youth are suspected of having criminal/juvenile records.

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If DHS determines that a youth who is apprehended alone is “accompanied,” then according to federal regulation, it can take any of the following actions: release the youth to a family member or guardian who is willing to come forward and take custody (by bond or on recognizance), voluntarily return them to a border country, or detain the minor until their case is resolved (a process that can take many months). 100 Under the Flores Settlement Agreement, the child can be detained in a secure facility if there are delinquency or criminal issues, the child poses an escape risk, has made threats while in custody, or has demonstrated other behavioral problems. 101 These and other factors are enumerated in detail in § 18.2. In any case, however, a child must be held in the least restrictive setting possible. In particular, the Flores Settlement Agreement provides that, “[w]here the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others, the INS shall release a minor from its custody without unnecessary delay.” 102 A child also should not be placed in a secure facility if less restrictive alternatives are available and appropriate. 103 Unfortunately, if a child remains in DHS custody, the reality is that no such alternatives may be available. It seems that DHS’s only detention option is a secure juvenile facility and that DHS does not use any shelter type facilities or group homes for children in their custody for extended periods. Indeed, as of the time of this writing, ICE contracts with nine juvenile jails to hold accompanied children separate from adults. Of these, three hold children over 72 hours: the Northern Oregon Juvenile Detention facility in The Dalles, Oregon; Abraxas Academy Detention Center in Morgantown, Pennsylvania; and the Cowlitz County Juvenile facility in Longview, Washington. In November of 2017, the average length of stay for these facilities ranged from 100 to 240 days. 104 Children held in adult detention facilities. Heartland Alliance’s National Immigrant Justice Center obtained data through a Freedom of Information Act request indicating that between 2008 and 2012, nearly 1,000 children were held longer than a week in jails and prisons that DHS contracted to hold adults in deportation proceedings. The data likely underreports the number of children held in adult detention facilities since it includes only 30 of the approximately 200 adult detention facilities with which DHS held contracts at the time. It is unclear whether these children were classified as “accompanied” or on what basis DHS maintained custody of them. Regardless, it is evident that DHS violated the terms of the Flores Settlement Agreement and its own regulations and policies by detaining youth with unrelated adults. 100

8 CFR § 236.3. Flores, supra note 7, at ¶ 21. 102 Flores, supra note 7, at ¶ 14. 103 Flores, supra note 7, at ¶ 23. 104 National Immigrant Justice Center, ICE Released Its Most Comprehensive Immigration Detention Data Yet (Mar. 13, 2018), https://immigrantjustice.org/staff/blog/ice-released-its-most-comprehensiveimmigration-detention-data-yet. 101

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If the child is detained, they must be afforded a bond redetermination hearing before an immigration judge in every case. 105 Overall, little is known about how DHS (ICE) exercises its authority to detain accompanied youth. While governed by the Flores Settlement Agreement and federal regulation at 8 CFR § 263.3, it appears that the detention authority is broad and left to the subjective discretion of individual DHS officials. The law does provide, however, that a child may be held in detention if a determination is made that the detention of such child is required to secure their appearance in immigration proceedings or to ensure their safety and the safety of others. 106 There is no known reunification process, such as that with ORR, for youth detained in DHS custody, unless bond is granted. In those cases, federal regulation does provide that DHS must release the child to certain individuals in order of preference, but does not enumerate how DHS ensures a safe reunification of the child with that individual.

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Conditions of DHS detention facilities. The secure facilities where “accompanied” youth are held are sub-standard. A number of studies have found that youth held in DHS custody lack systematic access to legal representation or rights presentations, have minimal or no mental health services, no case management services, and often have no guardian or advocate defending their rights or best interests. For example, according to Flores, each youth is to be provided with a form that explains the immigration process, a list of free legal services, an explanation of the right to judicial review, and their right to a hearing before being presented with a voluntary departure form. These studies, however, have found that the lists of free legal services are not being used frequently by children and that the services listed were either not in the immediate vicinity or did not provide services to children in detention. 107 § 18.5 Seeking Release of Juveniles in Custody Until recently, there were few legal recourses to challenge juvenile detention decisions by DHS or ORR and thus, they were rarely sought. The Flores Settlement Agreement, however, provides that if a child is detained, they are entitled to a bond redetermination hearing before an immigration judge, unless a child refuses such a hearing. Moreover, a child “may seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge … [a] placement determination or to allege noncompliance with the standards set forth in [Flores].” 108 These provisions allow advocates to challenge the detention of both accompanied and unaccompanied children and the detention conditions to which they are subjected. Notably, the TVPRA contains no provision to appeal ORR’s detention decisions of unaccompanied minors. Thus, until recently some immigration judges found that they did not have jurisdiction over the detention of unaccompanied children, but rather ORR had exclusive jurisdiction. Two important legal decisions in 2017 greatly expanded possibilities for children to challenge their detention.

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Flores, supra note 7, at ¶ 24A. 8 CFR § 236.3(b)(iii). 107 Halfway Home, supra note 1, at 12-13. 108 Flores, supra note 7, at ¶ 24B. 106

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Flores bond hearings. As a result of an enforcement action brought in Flores to ensure that the provision providing for bond redetermination be accessible to all detained youth, on July 5, 2017, the Ninth Circuit issued a landmark holding in Flores v. Sessions, 109 confirming that all detained immigrant youth have a right to a “bond hearing” before an immigration judge. Similar to adult bond hearings, the immigration judge in a Flores bond hearing considers whether the child is a flight risk or a danger to the community. Unlike the adult context, the child’s opposing counsel is not ICE but rather ORR, which must provide evidence used to justify the placement and continuing detention of the child. The child has the right to examine and challenge the evidence, and to prove to the immigration judge that they are not a flight risk or danger. Importantly, the judge does not have the authority to consider the suitability of the child’s prospective sponsor and therefore cannot order the child’s release in this type of hearing. Despite this limitation, a positive finding by the judge may persuade ORR to step down a child to a less secure placement. Advocates have also used the Flores bond hearing to obtain a positive finding by an immigration judge for a child about to age out of ORR custody into ICE custody, in order to persuade ICE to release the child on their own recognizance. Importantly, Flores bond hearings are often the first opportunity the child and their advocate have to review the government’s evidence against the child. Currently, only children in staff-secure and secure ORR custody receive notice of their right to a Flores bond hearing, but all children in custody may request one using a form developed by ORR. 110

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Saravia hearings. In early 2017, approximately 34 teenagers were detained in Suffolk County, New York, under ICE’s Operation Matador. The majority of these youth had previously been in ORR custody and had been released to a sponsor. In fact, many were living with a parent or legal guardian and had pending immigration relief at the time of the ICE enforcement action. These youth were targeted by ICE on the basis of their alleged gang affiliation. In many instances, these allegations originated with school officials and local law enforcement. The apprehended youth were transferred to secure ORR facilities in California and Virginia. The ACLU filed a class action lawsuit challenging the lack of due process, and in November of 2017, the federal district court issued a ruling that all children in the class were entitled to a prompt hearing before an immigration judge to determine if they should remain in custody. 111 In less than a month, 22 of the 34 class members had been ordered released.112 For some unaccompanied children who have endured prolonged detention and do not benefit from a Flores or Saravia hearing, advocates have begun filing writs of habeas corpus in attempts

109

Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). ORR, Request for a Flores Bond Hearing, https://www.acf.hhs.gov/sites/default/files/orr/request_for_a_flores_bond_hearing_01_03_2018e.pdf. For more information on Flores “bond hearings” and related practice tips, see ILRC, Practice Alert on Flores v. Sessions: Ninth Circuit Holds that All Detained Children Have the Right to a Bond Hearing (July 21, 2017), https://www.ilrc.org/practice-alert-flores-v-sessions-ninth-circuit-holds-all-detained-children-haveright-bond-hearing. 111 Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017). 112 ACLU, Twenty-two Immigrant Teens Freed After Wrongful Arrests by the Trump Administration (Dec. 20, 2017), https://www.aclunc.org/news/twenty-two-immigrant-teens-freed-after-wrongful-arrests-trumpadministration. 110

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to secure their release. 113 In other cases, advocates have brought challenges to detention decisions, including determinations that a child is unaccompanied (when the child is in fact accompanied) before the immigration court by presenting a motion for a bond. In arguing for the release of a child from custody via such a motion, advocates should demonstrate that the person to whom the child will be released does not pose any risk to them and that the child is not a flight risk or a danger to the community. Additionally, advocates should articulate the immigration relief options for which the child is eligible.

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113

For guidance on habeas petitions, see American Immigration Council, Introduction to Habeas Corpus, https://www.americanimmigrationcouncil.org/practice_advisory/introduction-habeas-corpus. The ACLU has also posted a habeas petition for children in ORR custody at https://www.aclunc.org/docs/20170811first_amended_petition.pdf.

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INDEX OF APPENDICES Appendix A Appendix B Appendix C

Appendix D

Appendix E Appendix F Appendix G Appendix H Appendix I

Appendix K Appendix L Appendix M Appendix N Appendix O

Index of Appendices

Appendices

Appendix J

Immigration Relief Screening Questionnaire Map of the Deportation System for Immigrant Children & Youth Statutes and Regulations 8 USC § 1101(a)(27)(J), Definition of Special Immigrant Juvenile 8 USC § 1255(a), Adjustment of Status of Nonimmigrant to That of Person Admitted for Permanent Residence 8 USC § 1255(h), Special Immigrant Juveniles’ Adjustment of Status, Waivers of Inadmissibility 8 USC § 1227(c), Automatic Waiver of Certain Grounds for Deportation for Special Immigrant Juveniles 8 CFR § 204.11, Regulation Governing Application for Special Immigrant Juvenile Status 8 CFR § 204.1(f), (g)(2), Regulation on Substitute Documents to Prove Birth in Family Visa Petition Cases 8 CFR § 103.7(c), Federal Regulation Governing Fees and Fee Waivers 8 CFR § 205.1(a)(3)(iv), Federal Regulation Governing Automatic Revocations USCIS Memoranda on SIJS 2011 Ombudsman Recommendation & USCIS Response 2009 Neufeld Memorandum 2004 Yates Memorandum Selected AAO Decision on TVPRA Changes to SIJS Eligibility Risks and Benefits Flyers (English and Spanish) Step by Step Guide to FOIA Requests Chart of Grounds of Inadmissibility for Special Immigrant Juveniles Sample Memorandum of Points and Authorities in Support of Request for SIJS Findings Sample SIJS Juvenile Court Predicate Orders from California, Maine, and New York Instructions for Completing USCIS Forms Annotated USCIS Instructions for Forms G-28, I-360, I-912, I-485, I765, I-693 and I-601 Sample Affirmative SIJS Application Packet Sample Motion to Terminate Based on T Visa Status Sample Biometrics Letter, Adjustment of Status Letter and Adjustment of Status Checklist

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Appendix Q Appendix R Appendix S Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z Appendix AA Appendix BB Appendix CC Appendix DD

Appendix EE Appendix FF Appendix GG

Appendices

Appendix HH Appendix II Appendix JJ Appendix KK

Appendix LL

Appendix MM Appendix NN 546

Sample Approvals Permanent Resident Card (“Green Card”) I-360 Approval Notice I-485 Approval Notice Specific Consent Request and Instructions Sample Track 3 USCIS FOIA Request Sample I-360 Packet for Child in Removal Proceedings & Approval Sample Fee Waiver Motion and Proposed Order to EOIR for Child in Removal Proceedings Sample Cover Letter for Biometrics Processing for Child in Removal Proceedings Template I-485 Adjustment of Status Filing for Child in Removal Proceedings I-765 Packet for SIJS Recipient in Removal Proceedings Sample Motion to Terminate Based on Improper Service Sample Order Granting Adjustment of Status and Post-Grant Instructions Sample Closing Letter Sample EOIR Freedom of Information Act Request Sample I-246 Packet Sample Motion to Continue Based on Pending I-589 Judicial Council of California Memorandum Implementing SB 873 and the Special Immigrant Juvenile Process in the Superior Courts (Sept. 30, 2014) CAST Advisory on Requesting Continued Presence Centers for Disease Control and Prevention Revised Fact Sheet on Vaccinations Quick Reference Tips for Immigration Attorneys Working in State Juvenile Courts Acquisition of Citizenship Chart A Acquisition of Citizenship Chart B Derivation of Citizenship Chart C USCIS Fact Sheet and Memoranda on Unaccompanied Children Seeking Asylum under the TVPRA and Procedures for Handling Children’s Asylum Claims EOIR Legal Opinion re: EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of the TVPRA (Sept. 19, 2017) EOIR Memorandum on Implementation of TVPRA Asylum Jurisdictional Provision (Interim Guidance) (March 20, 2009) DHS UAC Instruction Sheet Sample UAC Asylum Letter Brief

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Appendix OO Appendix PP Appendix QQ Appendix RR

Appendix SS Appendix TT Appendix UU Appendix VV Appendix WW

Sample UAC Asylum Declaration Quick Reference Chart on the Immigration Consequences of Delinquency Map of Immigration Enforcement in the Juvenile Justice System Memorandum of Agreement Among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection of the U.S. Department of Homeland Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters Sample California Benefits Letter for Trafficking Survivors ICE HSI Directive 10075.2: Continued Presence (Oct. 6, 2016) Sample T Visa Cover Letter Sample Cover Letter for T Visa Recipient to Adjust Status Screening Questions for Trafficking Victims

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Index of Appendices

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APPENDIX A

Screening Questions for Immigrant Youth: Determining Potential Avenues for Legal Status

1. Is the child a U.S. citizen without knowing it? A. Anyone born in the U.S. or Puerto Rico is a citizen, and anyone born in Guam, American Samoa or Swains Island is a national who can’t be deported. B. If a person is born outside the U.S., ask two threshold questions to see if the person might automatically be a U.S. citizen. If the answer to either might be yes, refer for immigration counseling. •

Was there a U.S. citizen parent or grandparent at the time of the person’s birth? Or,

•

Before the person’s 18th birthday, did both of these events happen (in either order): the child became a permanent resident, and at least one natural or adoptive (but not step-) parent having some form of custody over the child is or becomes a U.S. citizen. (Tip: Encourage the parent to become a naturalized U.S. citizen!)

2. Is the child currently under dependency, delinquency, family or probate court jurisdiction where the court has ruled (or could rule) that the child (a) cannot be reunified with one or both parents because of abuse, neglect or abandonment or a similar basis under state law and (b) that it would not be in the child’s best interest to be returned to the home country? The child may qualify for Special Immigrant Juvenile Status. The child need not be in foster care to be eligible, and may be living with the nonabusive parent.

•

If possible, the child should stay under the jurisdiction of the court until the entire SIJS application is decided, so watch out for youth aging out of the system. If this is not possible, the court should explicitly state that termination of jurisdiction is being done based on age.

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•

3. Has the child been abused by a U.S. citizen or permanent resident spouse or parent, including adoptive, natural or stepparent? Has the child’s parent been a victim of domestic violence by his/her U.S. citizen or permanent resident spouse? The child may qualify for VAWA relief. •

Child doesn’t need to be under court jurisdiction, and may be residing with the other parent.

•

Child will need to show “good moral character.”

4. Has the child been a victim of serious crime, including domestic violence, in the United States, or of human trafficking? The child may qualify for an S, T, or U visa.

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5. Does the child have a U.S citizen or permanent resident parent or spouse who is willing to petition for them? The child may qualify for a family immigration petition. •

To immigrate through an adoptive parent the adoption must be completed by the child’s 16th birthday. These laws are complicated if the child is from a country that is a signatory to the Hague Convention.

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6. Does the child come from a country that has recently experienced civil war or natural disaster? Does the child fear return to their home country because of persecution? The child may qualify for other forms of relief such as asylum or temporary protected status.

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APPENDIX C FEDERAL STATUTES AND REGULATIONS I. Federal Statutes (Laws Passed by Congress) Definition of Special Immigrant Juvenile 8 USC § 1101(a)(27(J), INA § 101(a)(27)(J) (J) an immigrant who is present in the United States-(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that-(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and (II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; Adjustment of status of nonimmigrant to that of person admitted for permanent residence

Appendices

8 USC § 1255(a), INA § 245(a) (a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

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Special Immigrant Juveniles’ Adjustment of Status, Waivers of Inadmissibility 8 USC § 1255(h), INA § 245(h) (h) Application with respect to special immigrants In applying this section to a special immigrant described in section 1101(a)(27)(J) of this title-(1) such an immigrant shall be deemed, for purposes of subsection (a) of this section, to have been paroled into the United States; and (2) in determining the alien's admissibility as an immigrant-(A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 1182(a) of this title shall not apply; and (B) the Attorney General may waive other paragraphs of section 1182(a) of this title (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. The relationship between an alien and the alien's natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or section 1101(a)(27)(J) of this title shall be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status described in such section. Automatic Waiver of Certain Grounds for Deportation for Special Immigrant Juveniles 8 USC § 1227(c), INA § 237(c) (c) Waivers of Grounds for Deportation

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Paragraphs (1)(A), (1)(B), (1)(C), (1)(D), and (3)(A) of subsection (a) of this section (other than so much of paragraph (1) as relates to a ground of inadmissibility described in paragraph (2) or (3) of section 1182(a) of this title) shall not apply to a special immigrant described in section 1101(a)(27)(J) of this title based upon circumstances that existed before the date the alien was provided such special immigrant status. II. Federal Regulations (Created by the Immigration and Naturalization Service) ***PLEASE NOTE THAT THE REGULATIONS HAVE NOT BEEN AMENDED TO REFLECT THE 1997 AND 2008 TVPRA STATUTORY CHANGES. ***

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Regulation Governing Application for Special Immigrant Juvenile Status 8 CFR § 204.11 Sec. 204.11 Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile). (a) Definitions. 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. A child who is eligible for long-term foster care will normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a juvenile court in the United States will continue to be considered to be eligible for long-term foster care. Juvenile court means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. (b) Petition for special immigrant juvenile. An alien may not be classified as a special immigrant juvenile unless the alien is the beneficiary of an approved petition to classify an alien as a special immigrant under section 101(a)(27) of the Act. The petition must be filed on Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. (1) Who may file. The alien, or any person acting on the alien’s behalf, may file the petition for special immigrant juvenile status. The person filing the petition is not required to be a citizen or lawful permanent resident of the United States. (2) Where to file. The petition must be filed at the district office of the Immigration and Naturalization Service having jurisdiction over the alien’s place of residence in the United States.

Appendices

(c) Eligibility. An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien: (1) Is under twenty-one years of age; (2) Is unmarried; (3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court; (4) Has been deemed eligible by the juvenile court for long-term foster care; (5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and (6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that

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it would not be in the alien’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or (7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed on Form I360 before June 1, 1994. (d) Initial documents which must be submitted in support of the petition. (1) Documentary evidence of the alien’s age, in the form of a birth certificate, passport, official foreign identity document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion of the director establishes the beneficiary’s age; and (2) One or more documents which include: (i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary to be dependent upon that court; (ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary eligible for long-term foster care; and (iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. (e) Decision. The petitioner will be notified of the director’s decision, and, if the petition is denied, of the reasons for the denial. If the petition is denied, the petitioner will also be notified of the petitioner’s right to appeal the decision to the Associate Commissioner, Examinations, in accordance with part 103 of this chapter.

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[58 FR 42850, Aug. 12, 1993] Regulation On Substitute Documents to Prove Birth in Family Visa Petition Cases 8 CFR § 204.1(f), (g)(2) (Reprinted here to provide suggestions for obtaining substitute documents to prove age in SIJS applications) Sec. 204.1 General information about immediate relative and family-sponsored petitions. (f) Supporting documentation. (1) Documentary evidence consists of those documents which establish the United States citizenship or lawful permanent resident status of the petitioner and the claimed relationship of the petitioner to the beneficiary. They must be in the form of primary evidence, if available. When it is established that primary

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evidence is not available, secondary evidence may be accepted. To determine the availability of primary documents, the Service will refer to the Department of State’s Foreign Affairs Manual (FAM). When the FAM shows that primary documents are generally available in the country of issue but the petitioner claims that his or her document is unavailable, a letter from the appropriate registrar stating that the document is not available will not be required before the Service will accept secondary evidence. The Service will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service. (2) Original documents or legible, true copies of original documents are acceptable. The Service reserves the right to require submission of original documents when deemed necessary. Documents submitted with the petition will not be returned to the petitioner, except when originals are requested by the Service. If original documents are requested by the Service, they will be returned to the petitioner after a decision on the petition has been rendered, unless their validity or authenticity is in question. When an interview is required, all original documents must be presented for examination at the interview. (3) Foreign language documents must be accompanied by an English translation which has been certified by a competent translator. (g) Evidence of petitioner's United States citizenship or lawful permanent residence-(1) Primary evidence. A petition must be accompanied by one of the following: (i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;

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(ii) An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national); (iii) An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national); (iv) A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport; (v) The petitioner's Certificate of Naturalization or Certificate of Citizenship; (vi) Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner;

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(vii) The petitioner's Form I-551, Permanent Resident Card, or other proof given by the Service as evidence of lawful permanent residence. Photocopies of Form I-551 or of a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a lawfully permanent resident or United States citizen, respectively. (2) Secondary evidence. If primary evidence is unavailable, the petitioner must present secondary evidence. Any evidence submitted as secondary evidence will be evaluated for authenticity and credibility. Secondary evidence may include, but is not limited to, one or more of the following documents: (i) A baptismal certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism; (ii) Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event; (iii) Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s); (iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or (v) If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date.

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(3) Evidence submitted with a self-petition. If a self-petitioner filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, the Service will attempt to electronically verify the abuser's citizenship or immigration status from information contained in Service computerized records. Other Service records may also be reviewed at the discretion of the adjudicating officer. If the Service is unable to identify a record as relating to the abuser or the record does not establish the abuser's immigration or citizenship status, the selfpetition will be adjudicated based on the information submitted by the selfpetitioner. [57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998]

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Federal Regulation Governing Fees and Fee Waivers 8 CFR §103.7(c) c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary waiver of the fees provided in paragraph (b)(1)(i) of this section are limited as follows: (i) The party requesting the benefit is unable to pay the prescribed fee. (ii) A waiver based on inability to pay is consistent with the status or benefit sought including requests that require demonstration of the applicant's ability to support himself or herself, or individuals who seek immigration status based on a substantial financial investment. (2) Requesting a fee waiver. To request a fee waiver, a person requesting an immigration benefit must submit a written request for permission to have their request processed without payment of a fee with their benefit request. The request must state the person's belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated. There is no appeal of the denial of a fee waiver request. (3) USCIS fees that may be waived. No fee relating to any application, petition, appeal, motion, or request made to U.S. Citizenship and Immigration Services may be waived except for the following: (i) Biometric Fee, except for the biometric fee required for provisional unlawful presence waivers filed under 8 CFR 212.7(e). (ii) Application to Replace Permanent Resident Card, (iii) A Petition for a CNMI–Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status only in the case of an alien applying for CW–2 nonimmigrant status,

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(iv) Application for Travel Document when filed to request humanitarian parole, (v) Application for Advance Permission to Return to Unrelinquished Domicile, (vi) Notice of Appeal or Motion, when there is no fee for the underlying application or petition or that fee may be waived, (vii) Petition to Remove the Conditions of Residence based on marriage (Form I–751), (viii) Application for Employment Authorization, (ix) Application for Family Unity Benefits, (x) Application for Temporary Protected Status,

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(xi) Application for Suspension of Deportation or Special Rule Cancellation of Removal (pursuant to section 203 of Pub.L. 105–110), (xii) Application to File Declaration of Intention, Request for a Hearing on a Decision in Naturalization Proceedings (under section 336 of the INA), (xiii) Application for Naturalization, (xiv) Application to Preserve Residence for Naturalization Purposes, (xv) Application for Replacement Naturalization/Citizenship Document, (xvi) Application for Certificate of Citizenship, (xvii) Application for Citizenship and Issuance of Certificate under section 322 of this Act, (xviii) Any fees associated with the filing of any benefit request by a VAWA self-petitioner or under sections 101(a)(15)(T) (T visas), 101(a)(15)(U) (U visas), 106 (battered spouses of A, G, E–3, or H nonimmigrants), 240A(b)(2) (battered spouse or child of a lawful permanent resident or U.S. citizen), and 244(a)(3) (Temporary Protected Status), of the Act (as in effect on March 31, 1997); and (xix) Petition for Nonimmigrant Worker (Form I–129) or Application to Extend/Change Nonimmigrant Status (Form I–539), only in the case of an alien applying for E–2 CNMI Investor nonimmigrant status under 8 CFR 214.2(e)(23). (4) The following fees may be waived only for an alien for which a determination of their likelihood of becoming a public charge under section 212(a)(4) of the Act is not required at the time of an application for admission or adjustment of status. (i) Application for Advance Permission to Enter as Nonimmigrant;

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(ii) Application for Waiver for Passport and/or Visa; (iii) Application to Register Permanent Residence or Adjust Status; (iv) Application for Waiver of Grounds of Inadmissibility. (5) Immigration Court fees. The provisions relating to the authority of the immigration judges or the Board to waive fees prescribed in paragraph (b) of this section in cases under their jurisdiction can be found at 8 CFR 1003.8 and 1003.24. (6) Fees under the Freedom of Information Act (FOIA). FOIA fees may be waived or reduced if DHS determines that such action would be in the public interest because furnishing the information can be considered as primarily benefiting the general public.

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Federal Regulation Governing Automatic Revocations 8 CFR § 205.1 (a)(3)(iv) (a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval: ... (3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final: ... (iv) Special immigrant juvenile petitions. Unless the beneficiary met all of the eligibility requirements as of November 29, 1990, and the petition requirements as of November 29, 1990, and the petition for classification as a special immigrant juvenile was filed before June 1, 1994, or unless the change in circumstances resulted from the beneficiary's adoption or placement in a guardianship situation: (A) Upon the beneficiary reaching the age of 21; (B) Upon the marriage of the beneficiary; (C) Upon the termination of the beneficiary's dependency upon the juvenile court; (D) Upon the termination of the beneficiary's eligibility for long-term foster care; or (E) Upon the determination in administrative or judicial proceedings that it is in the beneficiary's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents.

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[41 FR 55849, Dec. 23, 1976, as amended at 48 FR 19156, Apr. 28, 1983; 49 FR 29567, July 23, 1984; 49 FR 30679, Aug. 1, 1984; 53 FR 30017, Aug. 10, 1988; 58 FR 42850, Aug. 12, 1993; 61 FR 13061, 13077, March 26, 1996]

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APPENDIX F UNDERSTANDING THE RISKS AND BENEFITS OF APPLYING FOR SPECIAL IMMIGRANT JUVENILE STATUS What is “special immigrant juvenile status” (“SIJS”)? It is a way for someone who is not a U.S. citizen and who is under the jurisdiction of a juvenile court to become a permanent resident of the United States (get a green card). Who qualifies? What do I have to do to apply for my green card? One important requirement is that a juvenile court must find that you cannot reunify with one or both of your parents, because they abused, abandoned or neglected you. There are other requirements as well. The application procedure is fairly simple, though it can take many months, and even years. You must fill out several forms, submit fingerprints and photographs, and have a medical examination. Usually several months after you apply for SIJS, you will find out if immigration authorities have approved or denied your application. If they deny it, you can file an appeal. If they approve it, you can apply for a green card. After you submit the application for a green card to the immigration authorities, you can obtain a card that lets you work legally in the United States. An attorney should help you through the process. What benefits do I get as a permanent resident? You get the right to live and work permanently in the United States, free of the fear of deportation (unless you violate immigration or criminal laws, which can still lead to deportation in some cases even if you have a green card). You can qualify for the cheaper in-state tuition if you attend state college, and may qualify for other college assistance (in some states you can now qualify for in-state tuition even if you are undocumented). You will have the right to apply for U.S. citizenship 5 years after becoming a permanent resident. You will not get the right to help your biological parents get their immigration papers. But if you later marry a noncitizen, you will be able to help them get a green card. What are the risks of applying for special immigrant juvenile status?

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If the immigration authorities deny your application, they will very likely put you into deportation proceedings. Your lawyer should evaluate your case carefully before filing anything with immigration. It is extremely important to be completely honest with the attorney helping you with the application. Is there any other way for me to get a green card? There are many ways to get a green card. If you do not qualify for SIJS, ask for a professional analysis of your situation to see if you might get a green card in some other way. For example, your spouse, parent, stepparent or adoptive parent can apply for you if they are U.S. citizens or permanent residents, even if you don’t live with them. If a U.S. citizen or permanent resident parent or spouse was abusive to you, you may be able to apply for a green card even if they refuse to submit papers for you. If you fear returning to your home country, you might qualify for asylum. If you were the victim of a crime in the United States, or a victim of labor or sex trafficking, you may be able to get a “U” or “T” visa.

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ENTENDIENDO LOS RIESGOS Y BENEFICIOS DE APLICAR PARA EL ESTADO DE INMIGRANTE JUVENIL ESPECIAL ¿Que es el "Estado de Inmigrante Juvenil Especial?" Es una manera por la cual una persona que no es ciudadano y que está bajo la jurisdicción de una corte juvenil, puede llegar a ser residente permanente de los Estados Unidos y obtener su tarjeta verde. ¿Quien califica? ¿Que tengo que hacer para obtener mi Tarjeta Verde? Un requisito importante es que una corte juvenil concluya que usted no puede reunificarse con uno o dos de sus padres porque ellos le han abusado, abandonado, o descuidado. También existen otros requisitos. El procedimiento de aplicación es bastante simple, aunque puede tardar varios meses, hasta años. Usted tendrá que llenar diferentes formularios, entregar huellas digitales, tomarse fotografías, y hacerse un examen médico. Normalmente, unos meses después de aplicar usted sabrá si el Servicio de Inmigración y Ciudadanía (“USCIS”) aprobó o negó su aplicación. Si niegan su aplicación usted podrá apelar esa decisión. Si lo aprueban, usted puede aplicar para la residencia permanente. Después de someter su aplicación para la residencia permanente con las autoridades de inmigración, usted podrá obtener una tarjeta que lo deje trabajar legalmente en Estados Unidos. Un abogado debe ayudarlo con el proceso. ¿Cuales son los beneficios de ser Residente Permanente? Usted tendrá el derecho de vivir y trabajar permanentemente en los Estados Unidos, sin tener miedo de ser deportado (sin embargo algunas violaciones de leyes de inmigración o criminales todavía pueden ponerlo en riesgo de deportación, aunque sea residente permanente). Usted también podrá calificar para cuotas de inscripción y matricula bajas si se inscribe en un colegio del estado y tal vez podrá calificar para otros tipos de asistencia (en algunos estados pueden ahora calificar para matrícula estatal incluso si es indocumentado). Usted tendrá el derecho de aplicar para la ciudadanía de los Estados Unidos después de 5 años de ser residente permanente. Si usted se casa con una persona sin documentos, usted podrá a ayudarlos a conseguir una tarjeta verde. Usted no tendrá el derecho de aplicar para que sus papas inmigren. ¿Cuales son los Riesgos o Aspectos Negativos de Aplicar para una Visa Juvenil?

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Si las autoridades de inmigración niegan su aplicación, ellos probablemente lo pondrán en proceso de deportación. Su trabajador social y abogado van a evaluar su caso cuidadosamente antes de presentar los documentos al USCIS. Es muy importante que usted sea completamente honesto con el abogado que le ayuda a aplicar. ¿Existen Otras Maneras de Obtener una Tarjeta Verde? Hay varias maneras de conseguir su tarjeta verde. Si usted no califica por el Estado Juvenil Especial, consulte con un experto en las leyes de inmigración para ver si hay otra manera de obtenerla. Por ejemplo, su esposo o su papa, padrastro, o papa adoptivo puede aplicar para usted si es ciudadano de los Estados Unidos (“USC”) o residente permanente legal (“LPR”), aunque no vivan con usted. O, si una de estas personas lo ha abusado, usted podrá solicitar para su tarjeta verde aunque el o ella no quiera someter una petición para usted. Si usted teme volver a su país natal, usted podría calificar para asilo político. Si fue víctima de un crimen en los Estados Unidos, o una víctima de la mano de obra o tráfico sexual, usted puede ser capaz de obtener una visa “U” o “T.”

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At a Term of the Family Court of the State of New York, held in and for the County of _______, at ____________, NY ______. PRESENT: HON. ________________________ ---------------------------------------------------------X Docket No: File Number:

Child’s Full Name: Also Known As: Date of Birth:

ORDER- Special Immigrant Juvenile Status

---------------------------------------------------------X

This Juvenile Court, after examining the motion papers and supporting affidavits, all the pleadings and prior proceedings in this matter, and/or hearing testimony during a fact finding hearing, finds, in accordance with the New York Family Court Act (“F.C.A.”), the New York Domestic Relations Law (“D.R.L.”), the Surrogate Court Procedure Act (“S.C.P.A.”), and the New York Social Services Law (“S.S.L.”): 1. [For Guardianship] This Juvenile Court has jurisdiction to make judicial determinations about the custody and care of minors, which includes juveniles up to the age of 21. This court took jurisdiction over the guardianship of the person petition of the above-named child upon the above-name child’s consent, and the above-named child remains under the court’s jurisdiction. F.C.A. § 661(a), F.C.A. § 115(c), S.C.P.A. § 103(27), and Matter of Trudy-Ann W. v Joan W., 73 AD3d 793 [2d Dept 2008] (“F.C.A. § 661(a) . . . authorizes the appointment of a guardian for a person ‘who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen.’”). -or-

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1. [For Custody] This Juvenile Court has jurisdiction to make judicial determinations about the custody and care of minors, and it took jurisdiction over the custody petition for the abovenamed child, and the above-named child remains under the court’s jurisdiction. F.C.A. § 651(b) and D.R.L. § 240. 2. [For Guardianship] The above-named child is under 21 years of age and a minor for purposes of guardianship of the person. S.C.P.A. § 103(27) and F.C.A. § 661(a). An original birth certificate in Spanish with a certified translation to English was submitted as proof of age. -or2. [For Custody] The above-named child is under 21 years of age. An original birth certificate in Spanish with a certified translation to English was submitted as proof of age. 3. The above-named child is unmarried. He has stated in a supporting affidavit that he is unmarried.

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4. [For Guardianship] The above-named child was appointed a guardian pursuant to F.C.A. § 661(a) and S.C.P.A. § 1707. As a result, the above-named child is declared dependent on the Family Court and has been committed to or placed in the custody of a state agency or department, or an individual or entity appointment by the state or Family Court. Matter of Antowa McD, 856 NYS 2d 576 (1st Dept 2008) (“Family Court’s appointment of a guardian constitutes the necessary declaration of dependency on a juvenile court[.]”); Matter of TrudyAnn W., 73 AD3d 793, 796 (2d Dept 2010) (“Since we have appointed Alcie S. as TrudyAnn's guardian, Trudy-Ann is dependent on a juvenile court.”); Matter of Hei Ting C., 109 AD3d 100, 107 [2d Dept 2013] (“dependency” lies in “determinations . . . that relate to the actual guardianship and custody of the child”); and F.C.A. § 141. Specifically, a final order of guardianship was issued on [DATE] to [NAME]. The grant of guardianship also confers to the guardian “the right and responsibility to make decisions, including issuing any necessary consents, regarding the child’s protection, education, care and control, health and medical needs, and the physical custody of the person of the child” pursuant to F.C.A. § 657(c) and S.C.P.A. § 1706 and constitutes a legal commitment of the child pursuant to S.C.P.A. § 1707. There is no legal distinction in New York between the effects of a grant of custody as compared to a grant of guardianship. See Matter of Allen v. Fiedler, 96 A.D.3d 1682 (4th Dept 2012). -or4. [For Custody] The above-named child is dependent upon the Family Court by virtue of a custody order granted pursuant to § 651(b) of the F.C.A. and §240 of the D.R.L. 5. Reunification of the above-named child with his MOTHER and/or FATHER, is not viable due to abuse (F.C.A. §1012(e)), abandonment (S.S.L. § 384-(b)(5)(a)), neglect (F.C.A. § 1012(f)), or other similar basis under New York law in that:

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a. NAME evidenced their intent to forge their parental rights by failing to plan for the above-named child’s future or provide the child with financial or emotional support. and/or b. NAME abandoned the child when s/he was AGE years old and since that time has failed to maintain any contact with the above-named child. See Matter of Gabriela Y.U.M., 119 A.D.3d 581 (2d Dep’t 2014); Matter of Trudy-Ann W., 73 AD3d 793, 796 (2d Dept 2010); Matter of Karen C., 111 A.D.3d 622 (2d Dep’t 2013) c. NAME neglected the child when he failed to exercise a minimum degree of care in providing adequate food, clothing, education and basic necessities to the child. See Matter of Mohamed B., 83 A.D. 3d 829 (2 Dept. 2011); Matter of Alamgir, 81 A.D. 3d 937 (2d Dept. 2011). d. NAME neglected the child when he misused alcoholic beverages to the extent that he lost self-control of his actions and unreasonably inflicted emotional harm on the above-named child.

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e. NAME was physically and emotionally abusive to the above-named child. NAME hit the child with a belt on a weekly basis, leaving bruises and welts on the child’s body. f. NAME was emotionally abusive to the above-named child by physically abusing his mother, in front of the child, resulting in an unstable living environment and protracted impairment of the above-named child’s emotional health. g. NAME repeatedly subjected the child to homophobic and transphobic emotional abuse by telling the child she was an abomination and a curse because of her gender identity and sexual orientation. h. NAME is deceased, making reunification impossible. Hi/her death effectively leaves the child abandoned and/or a destitute child. The death of the child’s parent constitutes a similar basis to abandonment under New York law. See e.g. Luis R., 120 A.D.3d 581 (2d Dep’t 2014) (“reunification of the child with one or both of his parents is not viable due to the death of his father); Matter of Carlos A.M. v Maria T.M., 141 A.D.3d 526 (2d Dep’t 2016); Matter of Victor C.-G. v Santos C.T., 2016 NY Slip Op 04709 (2d Dep’t 2016); Matter of Jose YY, 2018 Slip Op 00375 (3rd Dept 2018) (“the record further establishes that both parents are deceased making reunification impossible. This orphan status, effectively leaving the child abandoned and/or a destitute child, falls within the “similar basis” category of factor four “). See F.C.A. § 1012(e), (f); F.C.A. §1092(a)(1).

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6. Under New York law, it is not in the above-named child’s best interests to return to her country of origin, XXX, because she has no parent who is willing and able to care for her in [COUNTRY]. As there are no family members who are willing or able to provide her with a safe home, returning the child to [COUNTRY] would render her destitute and homeless. Additionally, it is not in her best interests to return to [COUNTRY] because she lacks the ability to go to school in her country of origin and because in her country of origin her well-being was at risk due to widespread gang violence and direct threats to her personal safety from which her family was unable to protect her. Thus, under New York State law, it is in her best interests to remain in the United States where she has a strong support network, including her guardian, and has access to appropriate medical care and educational opportunities. The New York State Family Court has authority to make such a finding under the New York Family Act, which endows the New York State Family Court “a wide range of powers dealing with the complexities of family,” including where it is in the best interests of a minor to live. N.Y. Fam. Ct. Act § 141. The touchstone for the appointment of a guardian of a minor, like other cases heard before the New York State Family court – particularly cases involving a determination regarding where a minor should live, is the “best interest” of a minor. Under New York state law, the “best interest” of a child is determined under the totality of circumstances analysis, and certain specific factors are enumerated in case law. See e.g., Eschbach v. Eschbach, 56 N.Y.2d 167, 172 (1982); see also Matter of Gabriela Y.U.M., 119 A.D.3d 581 (2d Dep’t 2014); Matter of Marisol N.H., 115 A.D.3d 185 (2d Dept. 2014); S.C.P.A. § 1707. -or-

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upon return, the child would face horrendous discrimination and abuse due to her sexual orientation and gender identity. Thus, under New York State law, it is in his best interests to remain in the United States where he has a strong support network, including his guardian, and has access to appropriate medical care and educational opportunities. The New York State Family Court has authority to make such a finding under the New York Family Act, which endows the New York State Family Court “a wide range of powers dealing with the complexities of family,” including where it is in the best interests of a minor to live. N.Y. Fam. Ct. Act § 141. The touchstone for the appointment of a guardian of a minor, like other cases heard before the New York State Family court – particularly cases involving a determination regarding where a minor should live, is the “best interest” of a minor. Under New York state law, the “best interest” of a child is determined under the totality of circumstances analysis, and certain specific factors are enumerated in case law. S.C.P.A. § 1707. -

Dated:

ENTER ______________________ Judge of the Family Court

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

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Check applicable box:  Order mailed on [specify date(s) and to whom mailed ]:__________________________  Order received in court on [specify date(s) and to whom given]:____________________

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APPENDIX K INSTRUCTIONS FOR COMPLETING THE USCIS FORMS The forms needed for the SIJS and adjustment of status application packets are available for download at the USCIS website at http://www.uscis.gov. Make sure that you use the most up-todate forms available from the website; if you submit previous versions of forms that are no longer accepted, they may be returned to you. Please follow the detailed instructions available for each form on the USCIS website. Redacted versions of the instructions (current as of August 2018) are included in this Manual. Below are some hints for filling out the forms for SIJS cases. Please also review the sample SIJS and adjustment of status packet included in this Manual for guidance on preparing the forms. The forms must be signed under penalty of perjury. Make sure the child reads and understands everything on the forms. Under USCIS rules, children may sign their own immigration applications. Alternatively, children under 14 may have their parent or legal guardian sign their forms. Completing Form G-28 PART 1: 1: Leave blank unless you have a USCIS account number. 2-7: Complete with your name, firm name, business address, phone number, and email address. You do not need to include your cell phone or fax number if you do not want to provide them. PART 2: Check the first box and provide your licensing state and state bar number. 1.c: Check one of the boxes and provide an explanation on page 4, if needed. PART 3:

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Check box 1 and fill in the forms you are submitting. For an I-360 packet, write “I-360.” For an I485 packet, write “I-485 I-912 I-765,” and if necessary, “I-601.” 5: Check the box next to “applicant.” 6: Put the client’s full name as it is listed on their birth certificate. If they are in removal proceedings under another name, complete the additional information section on page 4 and explain your client’s alias. Do not enter an appearance under the parent, guardian, or child welfare agency’s name. 7-8: Leave blank 9: Provide your client’s alien registration number (“A number”, if they have one. If the child is in removal proceedings, they will have an A-number and you must include it. 10-12: You may provide this information or leave it blank.

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13: Provide the mailing address you used for the client’s I-360 or I-485. This may be the client’s physical address, the child welfare agency, or your firm address, if you are using it as a safe address for the client. PART 4: 1: Speak to the client about whether they want the original documents in the case to arrive at your office or the client’s address and check the appropriate box. If you are using the client’s address, make sure they safely and securely receive mail at their address. 2: Have the child sign and date the form at 2.a-b. Note that if child is younger than 15, you may state the parent or guardian’s name followed by “parent [or guardian] of child” and have the parent or guardian sign the form. Otherwise, the child must sign it. PART 5: Sign and date the form at 1.a-b. PART 6: Complete this section if you need additional space to answer any of the question in Parts 1-4. Completing Form I-360 *At the top of page 1, check the box to indicate form G-28 is attached and write in your state bar number. PART 1: 1-6: Leave blank 7: List the client’s complete mailing address. If the client is using a safe address, such as your firm address, list that address. PART 2: Check box c for “Special Immigrant Juvenile” PART 3:

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1: State the child’s complete name as it is listed on their birth certificate. 2: List the child’s complete address. If the child is using a safe address, list that address. 3-4: State the child’s birthday and country of birth as it is listed on their birth certificate. 5-6: Provide this information, if applicable. Note that most SIJS applicants will not have social security numbers and affirmative SIJS applicants will not have alien registration numbers. 7: Note that the child must be unmarried to qualify for SIJS. 8: If the child cannot remember exactly when they entered the United States, be as specific as you can. You can state “unknown” or “approximately 2004” or “summer 2007” if that is as much information as the child can remember. If the child is in removal proceedings, be sure the information matches the information of the child’s Notice to Appear – or provide an explanation why it does not.

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9: If the child entered on a nonimmigrant visa, they may have a white I-94 card stapled to the passport. Enter the number found in the upper left hand corner of the I-94. 10-13: If the child has a foreign passport, or a travel document they used to enter the United States, list the request information here. 14: If the child is in current nonimmigrant visa status (for example, as a student or visitor), enter the visa type here. 15: In the child is in current nonimmigrant visa status, enter the date by which they are required to leave the United States or date by which the status otherwise expires (as listed on their I-94). PART 4: 1: Write not-applicable 2: List the city and country of the child’s last foreign address. 3. Indicate whether the child is male or female. 4. Check “yes” if you are filing a Form I-485 and Form I-765 with the Form I-360 and then write in “two.” 5. Check “no” unless the child is currently in removal proceedings. If the child is in removal proceedings, include an attachment explaining that the child is in removal proceedings and indicate the date of their next removal hearing. 6. Leave blank. 7. Check “yes” if you are filing a Form I-485 along with the Form I-360. If your client is in removal proceedings and you are filing the Forms I-360 and I-485 separately, then check “no” for the question asking if you are filing other applications with this and check “yes” for the question asking if the child is in removal proceedings. PART 5:

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Provide information about the child’s spouse and children, if applicable. Remember that a married child is not eligible for SIJS. PARTS 6-7: These parts are not applicable to SIJS applicants; do not answer these questions. PART 8: 1: Provide any additional names the child has used. If the child is in removal proceedings under a different name, or an incorrectly spelled name, include that name here. 2.a: Check yes. 2.b: List the individual or entity into whose custody the child was placed or the court upon which they are dependent. If your child was placed into a guardianship or into the custody of a parent, state the guardian or parent’s name. 2.c: State yes.

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3: Note that USCIS will likely deny the I-360 application if the child is no longer living in the court ordered placement unless the juvenile court order terminated due to age. 4: Provide the bases for the juvenile court order. 5: Check yes. 6: Check yes to 6.a if the child spent time in the custody of the Office of Refugee Resettlement (ORR), the agency within the Department of Health and Human Services that detains unaccompanied children. You do not need to answer 6.b unless the child is still in ORR custody. PARTS 9 and 10: These parts are not applicable to SIJS applicants so do not answer these questions. PART 11: We do not include the child’s email address. PART 12: Only complete if the child’s guardian or caseworker is filing the I-360 on the child’s behalf. PARTS 13-14: Complete with the interpreter’s and preparer’s information. Completing the Form I-912 PART 1: Check box number 2. Next to the box, write “Special Immigrant Juvenile – attached approval notice sufficient proof of eligibility per attached I-912 instructions.” If the client is filing the I360 along with the I-485, state “The attached SIJS order is sufficient proof of eligibility per attached I-360 instructions.” Be sure to attach a copy of page 7 of the I-912 instructions and either the state court order or I-360 approval notice to the form. PART 2: Complete with the client’s information. Be sure to include any aliases.

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PART 3: Complete the chart with the list of petitions for which you are requesting a fee waiver. These may include Forms I-485, I-765, and I-601. Put “self” in the relationship to you box. PART 4: Leave this blank. PART 5: Below the Part 5 heading, write “Special Immigrant Juvenile – attached approval notice sufficient proof of eligibility per attached I-912 instructions.” If the client is filing the I-360 along with the I-485, state “The attached SIJS order is sufficient proof of eligibility per attached I-360 instructions.” Be sure to attach a copy of page 7 of the I-912 instructions and either the state court order or I-360 approval notice to the form.

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Leave all the questions in Part 5 blanks. PART 6: Leave this blank. PART 7: 1: Check the appropriate box to indicate that the client is fluent in English or the form was translated to them. 2: Provide the name of the preparer. 3: The client should sign in box 6. Because derivatives cannot be included in SIJS-based adjustments, no family members need to sign. PART 8: Because derivatives cannot be included in SIJS-based adjustments, do not complete. PARTS 9-10: Complete with the information and signatures of the interpreter and preparer. Completing Form I-485 *Before Part 1, check the box to indicate a Form G-28 is attached and write in your state bar number. PART 1: Complete this part as you would on Form I-360. Remember to include the child’s most recent date of entry in this section. 20: State the U.S. city and state where the child last entered the country. If the child cannot remember, state “unknown.” If the child is in removal proceedings, the NTA should list their place of entry.

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21: If the child cannot remember, state “unknown.” If the child is in removal proceedings, the NTA should list their date of entry. 22: If the child entered the United States without lawful statues, state “no lawful status.” If the child entered with a nonimmigrant visa, state the visa type. If the child cannot remember, state “unknown.” If the child is in removal proceedings, the NTA should list their date of entry. 23: If the child entered on a nonimmigrant visa, they may have a white I-94 card stapled to the passport. Enter the number found in the upper left hand corner of the I-94, the status on the card and the date of expiration. 24: State “SIJS petitioner” or “Special Immigrant Juvenile,” depending on whether your client’s I-360 has been approved. PART 2: 1: Check the box next to “Special immigrant juvenile, form I-360” in 1.c PART 3: 648

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Address history: Provide your client’s addresses for the last 5 years, starting with their present address. If the child cannot remember the exact address, state “address unknown.” If the client cannot remember the exact dates, write “approximately” before the dates. If you need more room to list additional addresses, use the attachment in Part 14. PART 4: Provide the requested information about the child’s parents here. The parents’ information should match what is listed on the child’s birth certificate. If the child does not know some of the requested information, write “unknown.” PART 5: Note that the child must be unmarried to adjust status as a special immigrant juvenile. PART 6: Provide the number of children your client has, if any, and information about their children. PART 7: Provide the requested biographical information. Note that the child may not identify with any of the options for some of the categories, including race, hair color, or eye color. You should ask the child what is closest to their identity and check a box for each category. PART 8: Check “yes” or “no” to each of questions 1-80. If an answer is “yes,” you will need to provide an explanation in the attachment on Part 14. If the child does answer “yes” to any of these questions, contact and SIJS expert before filing the child’s immigration applications. Note that if the child is in removal proceedings, you should check “yes” in response to question 18. PART 9: Check “yes” if the child needs an accommodation because of a disability or impairment. Accommodations are not solely for children with physical limitations; they can include the need for slower or simpler questioning for children with developmental disabilities, or special arrangements for children with mental health issues.

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PART 10-12: Complete according to the I-360 instructions above. PART 13: Do not complete. This part will be completed if your client is scheduled for an adjustment of status interview. The officer will note any corrections to the form and the child will sign here at the interview. PART 14: Use this section to provide additional information or explanations for any of the questions in the previous parts. Completing Form I-765

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*On page 1, before Part 1, check the box to indicate form G-28 is attached. PART 1: If this is your client’s first EAD request based on adjustment of status, check the box next to 1.a. PART 2: Complete this part using the instructions for the forms above. 14-17: The answer to question 14 will most likely be no. If so, indicate in question 15 that your child would like a social security number and provide the requested information in questions 1617. Then, the Social Security Administration will send your child and social security card once the EAD is approved. 25: If your client’s I-360 has been approved, answer this question as “SIJS recipient and adjustment of status applicant.” If the I-360 is still pending or being filed at the same time as the I-485 and I-765, state “SIJS petitioner and adjustment of status applicant.” This is important since the child’s status as an adjustment applicant gives them the ability to file a Form I-756. 27: State “(c)(9).” This is the category that applies to adjustment of status applicants. 28-31: These questions do not apply to adjustment of status applicants and you should leave them blank. PARTS 3-5: Complete these parts using the instructions for the forms above. Completing Form I-693 Complete only Part 1, using the instructions for the forms listed above. The child must not sign the certification on page 1 until the civil surgeon instructs them to do so. Remember that you will submit the Form I-693 in an envelope sealed by the civil surgeon. Ask for a separate copy for the form that you know what you are submitting. Completing Form I-601

Appendices

Complete this form using instructions for the forms above. PART 4: Do not answer Sections A or C. Instead, complete Section B and list all grounds of inadmissibility that apply to your client. If you need more space, use the attachment at Part 10. At item 40, provide a short explanation of the triggered ground of inadmissibility and the special SIJS waiver found at INA § 245(h). For example: I was brought to the United States for the first time when I was about two years old. I think I stayed here for about three years. I do not think I had permission from the U.S. government to be here. I then left and went back to Mexico. I returned for the second time in April 2014, when I was ten years old. I entered without permission from the U.S. government. I have been here ever since.

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I am seeking this waiver as a Special Immigrant Juvenile. The waiver should be granted for “humanitarian purposes, family unity, or when it is otherwise in the public interest.” I have lived in the United States for the past three years. I was brought to the United States as a child. My whole life is here. I want to finish school and go on to be a teacher. My teachers here in the United States help me better with my disability than my teachers did in Mexico. My parents abused me in Mexico. My brothers are here in the United Sates, and I want to stay with them. If I had to return to Mexico, I am afraid of what would happen to me. PART 5: Leave this blank since waivers under 212(h) do not require a qualifying relative.

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STEPS FOR FILING FOR ADJUSTMENT IN REMOVAL PROCEEDINGS: STEP ONE: File adjustment application with immigration court (ideally at master calendar hearing so you can set it for an individual hearing, but if your master is not coming soon, you can submit by mail or at the filing window once the priority date is current and the I-360 has been approved by USCIS). Attorney Name Agency or Firm Name Address City, State, and Zip Phone Email EOIR ID Number: xxxxxxx Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

Respondent. ____________________________________)

APPLICATION FOR ADJUSTMENT OF STATUS Master Cal Hrg: xx/xx/xxxx at 9am IJ: xxxxxx File No.: Axxx xxx xxx

Appendices

First Name LAST NAME

) ) ) ) ) ) )

APPLICATION FOR ADJUSTMENT OF STATUS

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Attorney Name Agency or Firm Name Address City, State, and Zip Phone Email EOIR ID Number: xxxxxxx Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME Respondent. ____________________________________)

) ) ) ) ) ) )

APPLICATION FOR ADJUSTMENT OF STATUS Master Cal Hrg: xx/xx/xxxx at 9am IJ: xxxxxx File No.: Axxx xxx xxx

Appendices

Respondent, First Name Last Name, respectfully submits his application for adjustment of status based on his approved Special Immigrant Juvenile Status (SIJS) I-360 petition. Respondent’s SIJS I-360 was approved by USCIS on ______________ and the priority date is ____________ and Respondent is from _______________ so according to the _____ Visa Bulletin, the priority date is current. Respondent has no adult convictions. He has one juvenile adjudication that does not count as a conviction for immigration purposes and does not trigger any of the grounds of inadmissibility.

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In support of this application, we enclose the following: 1. E-26A Fee waiver request (page xx), 2. I-485 Application form (page xx), 3. I-360 Approval Notice and underlying state court order (page xx), 4. Respondent’s birth certificate and translation (page xx), 5. Respondent’s criminal history chart with supporting documentation (page xx), 6. Proposed order on fee waiver request (page xx), and 7. Proof of Service (page xx).

Respectfully submitted,

Date: Xxxxx xx, 20xx

_______________________ First Name Last Name, Attorney for Respondent

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Appendix V

879

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA

In the Matter of:

A Number: Axxx xxx xxx

First Name LAST NAME, Respondent. ORDER ON FEE WAIVER REQUEST FOR I-485 APPLICATION

Upon consideration of Respondent’s Motion for a Fee Waiver be GRANTED

DENIED because:

DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. The court agrees with the reasons stated in the Motion.

Appendices

Other:

___________________________ Date

______________________________ Honorable Judge xxxxxxx Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/ Rep [ ] DHS Date:_______________________ By: Court Staff________________

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PROOF OF SERVICE BY MAIL

I, ___________________, declare: That I am an employee of __________________ and my business address is ___________________________________________________. That I served a true copy of the attached Motion by mailing said true copy by first class mail to: United States Department of Homeland Security Office of the Chief Counsel 100 Montgomery Street, Suite 200 San Francisco, CA 94126

Executed this __ day of ____________, 20__ at San Francisco, California.

__________________________ First Name Last Name

Appendices

Appendix V

881

STEP TWO: File the I-485 with USCIS to get biometrics appointment and receipt notice (so you can apply for an EAD for your client based on the pending I-485). Date USCIS Texas Service Center P.O. Box 852463 Mesquite, TX 75185-3463 RE:

LAST NAME, First Name File Number: Axxx xxx xxx I-485 APPLICATION FOR SIJS APPLICANT IN REMOVAL PROCEEDINGS

Dear Sir or Madam: We represent First Name Last Name in their application for adjustment in removal proceedings. We are submitting a copy of the I-485, which has already been filed with the Immigration Court. Enclosed please find the following: 1. A copy of the I-485; 2. A copy of the Judge’s Order waiving fees for the I-485 filing fee and the biometrics fee; 3. My G-28 and a copy of my E-28; and 4. A copy of the Court Filing Instructions.

Appendices

Thank you very much. Please notify me if you require anything further.

Sincerely,

First Name Last Name Attorney for Applicant Phone Email

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STEP THREE: File the application for employment authorization with USCIS.

Date USCIS P.O. Box 805887 Chicago, IL 60680-4120 RE:

LAST NAME, First Name File Number: Axxx xxx xxx I-485 Receipt Number: SRC-xxxxxxxxxxxxx I-765 APPLICATION ENCLOSED BASED ON PENDING AOS APPLICATION FOR SIJS APPLICANT IN REMOVAL PROCEEDINGS

Dear Sir or Madam: We are writing to submit the I-765 for the above-mentioned client. The I-485 is already pending with the Immigration Judge and has also been filed with the Texas Service Center and so now we are applying for the EAD. Please find enclosed: 1. My G-28 authorizing my representation, 2. Form I-765 with 2 photos, 3. Copy of the I-485 receipt notice showing he is eligible for a (c)(9) EAD, 4. A copy of the Judge’s Order waiving fees, and 5. Copy of his ORR detention paperwork with photo and birth certificate with translation as identification.

Appendices

Thank you very much for your assistance. If you require anything further, please contact me.

Sincerely,

Name, Attorney for Applicant Phone Email

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APPENDIX CC Abby Sullivan Engen DETAINED Supervising Immigration Attorney Centro Legal de la Raza 3400 E 12th Street Oakland, CA 94601 Phone: 510-244-4312 Fax: 510-437-9164 Email: [email protected]

NON-

Pro Bono Attorney for the Respondent

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA

____________________________________ ) In the Matter of

) ) )

________________________

File No: ___________

)

In Removal Proceedings

Date: ____________ at 1:30PM Judge: Honorable Elizabeth L. Young Hearing: Master Calendar

Appendices

) ) ) )

____________________________________)

RESPONDENT’S MOTION FOR A CONTINUANCE

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931

RESPONDENT’S MOTION FOR A CONTINUANCE

COMES NOW Respondent, by and through undersigned pro bono counsel, and files the following Motion for a Continuance. An Immigration Judge may grant a continuance for good cause shown. 8 C.F.R. § 1003.29 (2014). In support of this Motion, Respondent states as follows: 1.

Respondent is scheduled for a master calendar hearing before this Court on ___, 2018 at 1:30pm.

2.

Respondent is being represented pro bono by undersigned counsel at Centro Legal de la Raza.

3.

On April 19, 2018 Respondent, an Unaccompanied Alien Child, filed Form I-589, Application for Asylum, with the U.S. Citizenship and Immigration Services’ (USCIS) Asylum Office with receipt number _______. See attached filing receipt.

4.

These circumstances constitute good cause for the granting of a continuance. See 8 C.F.R. § 1003.29 (2014). Pursuant to the Trafficking Victims Protection Reauthorization Act (TVPRA), an Asylum Officer with USCIS “shall have initial

Appendices

jurisdiction over any asylum application filed by an unaccompanied alien child . . . .” TVPRA § 235(d)(7)(B). Respondent acted diligently in filing his I-589 before USCIS and he is now awaiting the agency’s scheduling of an asylum interview. If granted asylum, Respondent will promptly move to terminate these proceedings, as his acquisition of lawful status will be grounds for termination. See Matter of L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (instructing immigration judges, in considering a motion to continue based on a petition pending before USCIS, to assess whether the

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collateral relief sought will “materially affect the outcome of removal proceedings”). Moreover, it is in the interests of administrative efficiency for the Court to grant a continuance, as the Court has no jurisdiction to adjudicate Respondent’s petition, see TVPRA § 235(d)(7)(B), and asylum is a form of relief that Respondent cannot pursue from outside the United States, see INA § 208(a)(1) (setting forth asylum process for “any alien who is physically present in the United States”). See L-A-B-R-, 27 I&N Dec. at 416-17. 5.

Having demonstrated good cause for the granting of a continuance, Respondent respectfully requests that this Court grant a continuance in these proceedings in order for USCIS to adjudicate his asylum application.

Respectfully submitted,

Appendices

Abby Sullivan Engen Supervising Immigration Attorney Centro Legal de la Raza 3400 E 12th Street Oakland, CA 94601 Phone: 510-244-4312 Fax: 510-437-9164 Email: [email protected] Date: August 21, 2018

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CALIFORNIA

In the Matter of: _____________

ORDER OF THE IMMIGRATION JUDGE Upon consideration of Respondent’s Motion for a Continuance, it is HEREBY ORDERED that the motion be □ GRANTED □ DENIED because: □ DHS does not oppose the Motion. □ The Respondent does not oppose the Motion. □ A response to the Motion has not been filed with the Court. □ Good cause has been established for the Motion. □ The Court agrees with the reasons stated in the opposition to the Motion. □ The Motion is untimely per ______________________________________________. □ Other: Deadlines: □ The application (s) for relief must be filed by ___________________________. □ The respondent must comply with DHS biometrics instructions by _______________.

Appendices

________________________ Date

____________________________ Hon. Elizabeth L. Young

Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Attorney/Rep

[ ] DHS

Date: ________________ By: Court Staff ___________________________________ Attachments: [ ] EOIR-33 [ ] EOIR-28 [ ] Legal Services List [ ] Other

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PROOF OF SERVICE I, Abby Sullivan Engen, herby certify that I have served a copy of this Respondent’s Motion to Continue to the Department of Homeland Security, Office of the Chief Counsel, located at 100 Montgomery Street, Suite 200, San Francisco, CA 94104, via ICE eService.

Date: ___________ Abby Sullivan Engen Supervising Immigration Attorney Centro Legal de la Raza 3400 E 12th Street Oakland, CA 94601 Phone: 510-244-4312 Fax: 510-437-9164 Email: [email protected] Date: August 21, 2018

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Appendix CC

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Appendix DD

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Appendix DD

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APPENDIX GG TIPS FOR IMMIGRATION ATTORNEYS IN STATE JUVENILE COURTS Any immigration attorney working in state juvenile systems should consider the following precautions and tips to ensure success in the legal case and for the child in general: Know the person or agency that referred the child to the immigration attorney and understand their relationship with the child in the context of the state court system from which the child came. For example, the immigration attorney should know if the referral was from the juvenile public defender, the child’s dependency attorney, a social worker, etc.

•

Be familiar with the child’s state court case and any case plan that was developed. Know what family members the child has, including siblings, especially those who may be willing to provide a home for the child.

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Be cognizant of important juvenile court proceeding dates, hearings, and rules of procedure.

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Develop an immigration plan for the child that encompasses the child’s interests not only in terms of immigration, but also in the context of child welfare. This is particularly important in the context of SIJS, which does not allow the child to help their parents gain legal immigration status. Thus, there may be tension between the child welfare goal of family reunification and the immigration goal of legal status, and an attorney must work closely with the involved parties to determine what the ultimate objective is. Work closely with the child’s juvenile court attorneys to facilitate access to juvenile court records, files, warrants, etc.

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Work closely with the child welfare social worker, juvenile court attorney or guardian ad litem, and others to develop a specific immigration plan, safe placement alternatives, and emergency options, as well as to secure important documents and resources necessary to advocate in the child’s immigration case.

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Seek local guidance. The laws governing juvenile courts vary by state. It is imperative that you reach out for assistance from experienced juvenile court practitioners if you lack that expertise. You can contact local non-profit agencies that practice in family or juvenile court. You can contact the National Association of Counsel for Children (www.naccchildlaw.org) for information on its members in your state. Juvenile court practitioners should be able to provide you with guidance on the nuts and bolts of opening a juvenile court case for your client, if necessary. They may also be able to give you insight into some of the “unwritten rules” of the juvenile court.

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Approach the state or county attorneys in the spirit of collaboration. Come to them armed with an authorization from the child allowing them to speak to you about the child’s case. In the context of SIJS, be very clear and explain the benefits to the child of obtaining lawful permanent residence through SIJS. Offer to draft the SIJS motion and supporting materials. If the attorney lacks experience with SIJS cases, offer to attend the juvenile court hearing on the motion so that you can answer any questions the judge may have.

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APPENDIX KK QUESTIONS AND ANSWERS June 10, 2013 Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children Introduction U.S. Citizenship and Immigration Services (USCIS) is responsible for initial adjudication of asylum applications filed by Unaccompanied Alien Children (UAC). On December 23, 2008, former President Bush signed into law the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457. The provisions of the TVPRA that apply to UACs took effect on March 23, 2009. The TVPRA provides USCIS with initial jurisdiction over all asylum applications filed by UACs. Thus, even UACs who have been issued a Notice to Appear in immigration court can have their application for asylum heard by USCIS if they were UACs on the date they first filed for asylum. The TVPRA also provides an opportunity for UACs, who did not previously file for asylum with USCIS and who had a pending claim in immigration court, on appeal to the Board of Immigration Appeals, or in federal court, to have their asylum claim heard and adjudicated by a USCIS Asylum Officer in a non-adversarial setting.

Appendices

Prior to the issuance of this guidance, Asylum Offices made independent factual inquiries under the UAC definition to support their determinations of UAC status, which was assessed at the time of the UAC’s filing of the asylum application. In most of these cases another Department of Homeland Security entity, either U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), had already made a determination of UAC status after apprehension, as required for the purpose of placing the individual in the appropriate custodial setting. Effective June 10, 2013, in those cases in which either CBP or ICE has already made a determination that the applicant is a UAC, and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry. Unless there was an affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous DHS determination that the applicant was a UAC. In cases in which a determination of UAC status has not already been made, Asylum Offices will continue to make determinations of UAC status per current guidance. Questions and Answers Q. Who is an Unaccompanied Alien Child (UAC)? A. An Unaccompanied Alien Child (UAC) is a legal term referring to a child who: has no lawful immigration status in the United States; has not attained 18 years of age; and has no parent or legal guardian in the United States, or for whom no parent or legal guardian in the United States is available to provide care and physical custody.

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Q. Who is affected by the updated initial jurisdiction procedures? A. The updated procedures affect UACs who are in removal proceedings and wish to apply for asylum. USCIS will now adopt a prior UAC status determination made by CBP or ICE for the purpose of determining USCIS jurisdiction over asylum applications filed by UACs in removal proceedings. Q. I was in custody with the Office of Refugee Resettlement (ORR) and was released to a parent or relative. Am I still a UAC? A. Under the updated procedures, effective June 10, 2013, USCIS will adopt a prior UAC status determination made by CBP or ICE that was in place on the date you first filed for asylum. If either CBP or ICE found that you were a UAC and transferred you to ORR custody, USCIS will generally take jurisdiction over your asylum application, even where there may be some evidence that you may have reunited with a parent or legal guardian after CBP or ICE determined that you were a UAC. Q. I was in custody with the Office of Refugee Resettlement (ORR) and turned 18 years old after I was released. Am I still a UAC? A. Under the updated procedures, effective June 10, 2013, USCIS will accept a prior UAC status determination made by CBP or ICE if that status determination was still in place on the date you first filed for asylum. If either CBP or ICE found that you were a UAC and transferred you to ORR custody, and there was no action taken by ICE, CBP or ORR to terminate that UAC finding, USCIS will take jurisdiction over your asylum application. Q. I am a UAC and I wish to apply for asylum. However, I was not issued a Notice to Appear and have never been in immigration court. Where do I apply? A. If you are a UAC who was not issued a Notice to Appear in immigration court and you wish to apply for asylum, you can file an asylum application with USCIS. You should follow the general instructions for asylum applicants not in proceedings in immigration court in the Form I-589, Application for Asylum and for Withholding of Removal, available at www.uscis.gov/forms.

Appendices

Q. I am a UAC who was in ORR custody and was issued a Notice to Appear in immigration court. I have not previously filed for asylum. Can I file directly with USCIS or do I have to wait until my hearing date in immigration court? A: You can file Form I-589 directly with USCIS before appearing in immigration court. You should submit proof that you were determined to be a UAC with your Form I-589. Evidence that you were in ORR custody as a UAC, such as either the UAC Initial Placement Referral Form or the ORR Verification of Release Form, can show that you were determined to be a UAC. However, you must attend all scheduled immigration court hearings. You should inform the immigration judge and the Immigration and Customs Enforcement (ICE) trial attorney that you filed Form I-589 with USCIS and provide the status of your application with USCIS, including whether you have been interviewed or have an interview scheduled. If you have already appeared in immigration court and been provided with a UAC Instruction Sheet, please submit it to USCIS with your asylum application.

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Q. I am in removal proceedings and filed a Form I-589, Application for Asylum and for Withholding of Removal, with USCIS. Will ICE and the immigration judge know I applied for asylum? A: After you have filed for asylum with USCIS, you must appear at any hearings scheduled in immigration court. You should be certain to tell the immigration judge and ICE trial attorney that you have filed an application with USCIS and at your next hearing in immigration court, you may be required to provide a copy of your USCIS receipt notice to the ICE trial attorney. Q. If I was issued a Notice to Appear and then applied for asylum with USCIS, do I still have to appear in immigration court? A: Yes. Even while pursuing the asylum claim, you must appear in immigration court if you have a hearing scheduled. At the hearing, ICE may again seek to continue your case to allow USCIS to adjudicate your asylum application. Q. What happens if I am in removal proceedings and I do not file a Form I-589, Application for Asylum and for Withholding of Removal, with USCIS? A: If you indicated that you wished to apply for asylum and you fail to file a Form I-589, Application for Asylum and for Withholding of Removal, USCIS cannot adjudicate your asylum application and the immigration judge may proceed with your removal proceedings. Q. I am a UAC and my asylum application was pending in immigration court, on appeal before the Board of Immigration Appeals, or with a federal court when the TVPRA took effect. May I request that USCIS adjudicate my asylum application? A: Yes. USCIS also has initial jurisdiction over asylum applications filed by UACs with pending claims in immigration court, with a case on appeal before the Board of Immigration Appeals, or with a petition for review with a federal court as of the date of enactment of the TVPRA (December 23, 2008). If your case was pending in any of these places and you never filed for asylum with USCIS, you should raise your concerns in the context of those proceedings. Q. How do I know if CBP or ICE has made a previous UAC status determination in my case?

Appendices

A: If you were apprehended by CBP or ICE and transferred to ORR custody, it is most likely because CBP or ICE determined that you were a UAC. An Asylum Officer will know if a previous UAC status determination has been made in your case by examining the documents in your alien file. Q. I am an unaccompanied minor in removal proceedings but have never been in ORR custody. May I request that USCIS adjudicate my asylum application? A: Yes. You can file Form I-589 directly with USCIS. However, you must attend all scheduled immigration court hearings. You should inform the immigration judge and the Immigration and Customs Enforcement (ICE) trial attorney that you filed Form I-589 with USCIS and provide the status of your application with USCIS, including whether you have been interviewed or have an interview scheduled. If you have already appeared in immigration court and been provided with a UAC Instruction Sheet, please submit it to USCIS with your asylum application. If CBP or ICE has not made a previous UAC status determination in your case, USCIS will have jurisdiction

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over your asylum case if you were a UAC at the time that you filed your asylum application. The UAC Instruction Sheet, by itself, is not evidence that CBP or ICE has made a UAC status determination in your case. The Asylum Officer will make this determination by asking you questions regarding your age and unaccompanied status. Q. What do I do if I was released from an ORR facility or my address otherwise changed? A: If you change your address after filing a Form I-589 application, you must: 1. Submit a Form AR-11 (Alien’s Change of Address Card) to USCIS; and 2. Submit a Form EOIR-33/IC (Alien’s Change of Address Form/Immigration Court) to EOIR. If the forms are not included in the asylum instruction packet you received from ICE, they are available on the Web at www.uscis.gov/forms or www.usdoj.gov/eoir. Q. I am currently in ORR custody. Are the procedures any different for me? A: The procedures for filing for asylum are the same. You should submit proof that you were determined to be a UAC, such as the UAC Initial Placement Referral Form, with your Form I589. ORR will coordinate with the local asylum office if any interview-related issues arise. For more information on ORR’s general implementation of the TVPRA, please see ORR’s website at www.acf.hhs.gov/programs/orr. Q. I am a minor in removal proceedings and already applied for asylum with USCIS. USCIS sent me a Notice of Lack of Jurisdiction and referred my case to the immigration court. Can I ask USCIS to take back my asylum case based on the updated initial jurisdiction procedures? A: No. The updated initial jurisdiction procedures only apply to cases in which USCIS has not issued a final decision as of June 10, 2013. If USCIS referred your case to an immigration court for lack of jurisdiction under the previous procedures, you may request asylum again before the immigration judge. – USCIS –

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Appendix LL

In June of 2013, the DHS UAC Instruction Sheet was updated. As of the date of this manual, the 2009 version is still in use, as replicated in this appendix, and practitioners report that the 2009 version is still being given out by DHS in immigration court.

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UNITED STATES DEPARTMENT OF HOMELAND SECURITY BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES SAN FRANCISCO, CA ASYLUM OFFICE

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DECLARATION OF [“NATALIA”] My Background 1. 2. 3. 4.

My name is Natalia Smith. I was born on May 5, 2002. I am fourteen years old. I am originally from [Town], Honduras. I lived in [Colonia] and studied in the school called Escuela from 2009 until 2013, when I was forced to leave Honduras for the United States of America. (Me desesperaba) I felt despair over the way these people had persecuted me, and I was afraid of being kidnapped by them and of being sexually abused because that is what was said in the town with respect to these groups. 5. I lived in “Colonia”, which is one of the most dangerous colonias that is controlled by Mara-18. That is what I heard the neighbors say, and I also saw men pass in front of my house that were tattooed with the symbol 18. 6. My family received a couple of phone calls threatening to kill the family. I remember my cousin answered one of the calls and said they had threatened to kill the family. I think it was Mara Salvatrucha who called that time. Mara-18 members first threatened me in person in January 2013

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1. In January 2013, when I was going to the school called Escuela from 1 to 5pm, I was two and a half blocks from my house when three young men who said they were members of a mara surrounded me. They told me “things to be their girlfriend,” that “Me fuera con ellos” and told me to join their gang. I was scared. They were behind me and I started to walk faster until I got to school. 2. After that I was threatened more or less every week by mara-18 on my way to school. One of the times after they said I had to be their girlfriend I responded and said that I was going to go to study. They kept following me and saying the same thing. I was scared, and feared for my life. 3. In those days, we received death threats and persecution from both gangs, due to living in an area controlled by Mara 18, and I studied and my relatives worked in an area controlled by Mara Salvatrucha. That is according to documentation held by the Alcadia Municipal de [Colonia]. 4. In those days, at night, those of Mara 18 burglarized (se metieron a robar) my school, and took the computers and other office items.

5. Not only did they rob, but they raped a 15 year old girl and killed her. She went to school with me. When I heard that it made me cry because it made me so scared. Supposedly members of Mara 18 raped and killed her. MS targeted my cousin Marcos in September 2013 6. In September 2013 my cousin, [Marcos] went to work in the town hall (alcaldia) of [Colonia], located about two kilometers from my house in an area controlled by MS. He had been working with the municipality for about four to six months. At the end of September 2013 he was beaten savagely and barbarically by a group of people that identified themselves as MS. According to what people said, that happened to him because my cousin had traveled through the territory of those groups because of his job responsibilities. When I arrived home from school, I realized what happened. 7. What happened to my cousin scared me, but I kept attending school. MS and Mara-18 members continued to harass me from September to October 2013

Appendices

8. Gang members continued to harass me during September and October 2013, but my desire to excel kept me in school. 9. I stayed in school despite the fact that those gang members continued their siege against me. They said that I was pretty and that they would take me with them as their girlfriend (pareja sentimental). 10. When I went to school I had to run out of fear of finding the Mara-18 because when they see girls my age they harass them saying the girls are going to be theirs, and that they are going to rape them. Mara-18 said if the girl did not let them that they were going to kill their parents. One time they threatened that they were going to kill me, and they said they knew where I lived and who my family was. 11. This harassment was especially toward my friend [Viviana], who was 11 years old then, and myself as well. Because we ignored them they started to insult and threaten us that they would kill us. This happened at the end of September 2013. 12. After that Mara-18 killed a boy that also went to school with me. My uncle and cousin went and saw his body, and told our family what they saw. 13. During this time there were students from my school who were abused, and who were found dead. Students from my school were raped, tortured, and murdered. 14. Also during that time one of the Maras murdered a peddler (vendedor ambulante) named Ludwin. They decapitated him and split (rajaron) open his abdomen, all in front of the town church. Then, people said Mara-18 did it to another adult that also sold things in town. It was an environment of terror, fear, and uncertainty that one lived almost every day in [Colonia]. That’s why I came to the U.S., because every day became more dangerous.

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I fled Honduras in October 2013 15. I saw myself forced to leave my country because of the persecution of the gangs MS and Mara-18. Members of those groups wanted to make me their “novia.” My family was not safe there and I did not feel safe either. 16. The violence against my family has continued in [Colonia], and relatives have suffered from this criminal onslaught (embate delincuencial). According to documentation that we have reviewed, [Juan Benegas] was killed; he is a cousin of my cousin, Marcos, who was beaten in September 2013. 17. Also, on November 8, 2014 a neighbor that lived two houses from my house was killed. One of my cousins, [Cousin], and my uncle, [Uncle] saw his dead body and then told my family. 18. One of my cousins on my mom’s side, Bernardo, had to flee Honduras recently as well. One of my mom’s cousins, whom I call an aunt, said Bernardo fled Honduras because he was beaten up and they tried to beat him up another time as well. He had to come to the United States because it was not safe for him. 19. I could not live safely anywhere in Honduras because I continue to remember of all the things I experienced over there. My family in Honduras is not safe, and I do not think I would be safe either.

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This document was read to me in Spanish and a copy has been given to me. I declare under penalty of perjury that the foregoing information in this document is true and correct.

_______________________________ DATE

__________________________________ [Natalia Last Name]

Appendices

CERTIFICATE OF TRANSLATION

I, __________, declare that I am competent in Spanish and English and that the attached Declaration, dated June 31, 2016, was read to the Declarant in Spanish, and that the Declarant understood its contents before signing.

Signature: ______________________________

Appendix OO

Dated: _________

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APPENDIX SS November 8, 2011 RE:

California State Benefits for APPLICANT, a Victim of Human Trafficking

Dear Sir or Madam: AGENCY is representing APPLICANT. APPLICANT is a minor who has been identified by our office as a victim of a severe form of human trafficking as defined under the federal law titled the Trafficking Victims Protection Act (TVPA), most recently reauthorized in 2008 as the TVPRA 2008. I am in the process of assisting her in applying for a T Nonimmigrant Visa. Under federal law, trafficking victims may receive benefits and services as provided under the TVPRA to the same extent as refugees. In addition to federal program benefits under the TVPRA, there is a California state-funded program for trafficking victims, the Trafficking and Crime Victims Assistance Program (TCVAP). For more guidance on state benefits for victims of human trafficking, please refer to ACL 09-49, ACIN I-27-09, ACL 08-15, ACIN 1-41-07, and ACL 0660, which can all be found at www.dss.cahwnet.gov/refugeeprogram/PG1268.htm. As a victim of human trafficking, APPLICANT is in great need of social services and benefits accorded to her under both federal and California state law. Please expedite all processes necessary to ensure that she can receive her benefits and services, especially medical services, as soon as possible. Should you have any questions, please do not hesitate to contact me at NUMBER or EMAIL. Thank you. Best Regards, Cindy C. Liou, Esq.

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Attorneys for APPLICANT

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APPENDIX VV November 7, 2016

VIA Certified Mail U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Attn: T Visa Unit 75 Lower Welden Street St. Albans, VT 05479-0001 RE: I-485 ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE BASED ON APPROVED T-1 VISA Applicant: Xxxxxx Xxxxxx Xxxxxx A XXX XXX XXX

Dear U.S.C.I.S. Officer: The Katharine and George Alexander Community Law Center is filing Form I-485 (Application to Adjust Status) on behalf of our client, Xxxxxx Xxxxxx Xxxxxx, who has a previously approved T-1 Visa. The following documents are submitted for your consideration. Documents in Support of I-485 Application to Register Permanent Residence:

Appendices

1. Form I-485, Application for Adjustment of Status to Permanent Residence for Xxxxxx Xxxxxx Xxxxxx. 2. Form I-912 Request For Fee Waiver for I-485 and Biometric Services with supporting documents. 3. Form G-28, Notice of Entry of Appearance for Lynette Parker, Associate Clinical Professor of Law and Grace M-Kamau, Law Graduate. 4. Form G-325A, Biographic Information with addendum. 5. Two (2) passport style photos. 6. Form I-693, Sealed Medical Examination. 7. Copy of I-797A, Notice of T-1 Approval for Xxxxxx Xxxxxx Xxxxxx. 8. Updated Declaration of Xxxxxx Xxxxxx Xxxxxx Regarding Extreme Hardship Upon Removal in Lieu of Updated Form I-914 Supplement B. 9. Birth Certificate of Xxxxxx Xxxxxx Xxxxxx. 10. Passport Copies of Xxxxxx Xxxxxx Xxxxxx. 11. Affidavit of Continuous Physical Presence in the United States. 12. Proof of Continuous Physical Presence (2013 -2016).

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13. Affidavit Attesting to Good Moral Character. 14. Police Clearance Letters. • Police Clearance Letter from San Jose Police Department. • Police Clearance Letter Not provided by Los Angeles Police Department. 15. Letters of Reference regarding Good Moral Character.

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We respectfully request your office to grant Mr. Xxxxxx Xxxxxx Xxxxxx’s application for adjustment of status. If you have any questions or require further information, please do not hesitate to contact us at (408) 228-7030. We appreciate your kind attention to this matter. Sincerely,

Grace M-Kamau Law Graduate working under the supervision of

Lynette Parker Associate Clinical Professor of Law Immigration Program cc: File

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April 13, 2018 DO NOT ERRONEOUSLY REJECT: VIA Certified Mail U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Attn: T Visa AOS Unit 75 Lower Welden Street St. Albans, VT 05479-0001

T VISA HOLDER PERMITTED TO ADJUST UNDER 8 C.F.R. § 245.23(a)(3); INA §245(l) SEE ATTACHED COMPLIANCE LETTER

RE: I-485 ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE BASED ON APPROVED T-1 VISA Applicant: Xxxxxx Xxxxxx Xxxxxx A #: XXX XXX XXX Dear U.S.C.I.S. Officer: The Katharine and George Alexander Community Law Center is filing Form I-485 (Application to Adjust Status) on behalf of our client, Xxxxxx Xxxxxx Xxxxxx, who has a previously approved T-1 Visa. We are submitting a Compliance Letter from the Department of Justice to adjust her status to Lawful Permanent Resident before the three years per 8 C.F.R. § 245.23(a)(3). The following documents are submitted for your consideration. Documents in Support of I-485 Application to Register Permanent Residence:

Appendices

1. Form I-485, Application for Adjustment of Status to Permanent Residence for Xxxxxx Xxxxxx Xxxxxx 2. Fee in the Amount of $1,140 for I-485 and $85 for Biometrics 3. Form G-28, Notice of Entry of Appearance for Lynette Parker, Associate Clinical Professor of Law and Suraj Teppara, Law Student Volunteer 4. Two (2) Passport-style photos of Xxxxxx Xxxxxx Xxxxxx 5. Form I-693, Sealed Medical Examination for Xxxxxx Xxxxxx Xxxxxx 6. Department of Justice Compliance Letter 7. Copy of I-797A, Notice of T-1 Approval for Xxxxxx Xxxxxx Xxxxxx 8. Updated Declaration Regarding Extreme Hardship Upon Removal in Lieu of Updated Supplement B 9. Copy of Birth Certificate of Xxxxxx Xxxxxx Xxxxxx with English Translation 10. Passport Copy of Xxxxxx Xxxxxx Xxxxxx 11. Declaration of Continuous Physical Presence in the United States 12. Proof of Continuous Physical Presence (2017-2018) 13. Declaration Attesting to Xxxxxx Xxxxxx Xxxxxx’ Good Moral Character 14. Police Clearance Letter

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15. Letters of Reference and Supporting Documents establishing Xxxxxx Xxxxxx Xxxxxx’ Good Moral Character

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We respectfully request that your office grant Ms. Xxxxxx Xxxxxx Xxxxxx’ application for adjustment of status. If you have any questions or require further information, please do not hesitate to contact us at (408) 228-7030. We appreciate your kind attention to this matter. Sincerely,

Suraj Teppara Law Student at the Katharine and George Alexander Community Law Center Working Under the Supervision of

Lynette Parker Associate Clinical Professor of Law cc: file

Appendices

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APPENDIX WW TRAFFICKING SCREENING QUESTIONS In addition to vetting for physical, psychological, sexual abuse, and physical forms of inducing force, fraud or coercion, legal workers should also ask more general questions about clients’ employment and living situations. The following are some suggested questions that help screen more broadly for potential trafficking situations: 1 • • • • • • • • •

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• • • • • • • •

Do you go to school? How many schools have you gone to? What is your highest level of education? When was the last time you went to school? Did someone say you should work instead of going to school? How did you hear about the job? Did anyone recruit you for work? What was promised to you, and what did you agree to do? Did you do any form of work? Have you ever had sex for money, food, shelter, clothing, or other things? Did anyone ever tell you that if you loved them you would have sex for money? What was your typical work day? What time did you wake up and go to bed, and what did you do? Were you ever paid? How much? How were you paid? How did your employer make money? Did you have to give or share the money with anyone? Were you ever paid with someone else instead of money to work, like drugs, alcohol, food, shelter, etc.? How do you pay for things? Do you have a boyfriend or girlfriend? Do they help pay for things? How many hours a day did you work? Did you ever try to leave? Could you stop working if you wanted to? Did you have debt? Do you owe money to anyone? How much? How did you get this debt? Have you paid off any of it? Are you afraid of your employer? Why? Did anyone ever take your ID, passport or other documents? Did someone ever make you an identity document/false id? Did anyone threaten you or say they would do something you do that you didn’t like? Were there any talks of deportation, jail, or threats to family members in home country? Did anyone ever tell you what to say if you saw the police? Do you trust the police? Have you ever had interactions with them before?

1

From Stephanie Richard and Khanh Nguyen, Working with Survivors of Human Trafficking: Learning about Immigration, Criminal, Civil, and Benefits and Legal Remedies in California: Human Trafficking 101, Practicing Law Institute, (Nov. 4, 2014).

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• • • • • • • • •

Were you able to talk with your friends and family? Were you allowed to talk to other people? Did anyone ever tell you what to say to other people, or what to say if you were arrested by the police? What kind of conditions did you work and live in? Where did you sleep at night? Did you ever have to work when you were sick? Did you ever get any medical injuries or problems on the job? Do you have any tattoos, and if so, what do they mean? Have you run away from home? How many placements have you had? Do you have other names? Have you ever been required to use another identity? Has someone ever told you to tell them that you were a different age? Have you ever cleaned, cooked, or cared of other younger kids? Has anyone threatened to take away your younger siblings?

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