Post on 17-Dec-2015
UACs, the Border, and Role of ORR
Michelle N. Mendez, Senior Managing Attorney Catholic Charities of the Archdiocese of Washington ILS
A Person who:1. has no lawful immigration status in the
United States;2. is under the age of 18; and3. has no parent or legal guardian in the
United States or no parent or legal guardian in the United States who is available to provide care and physical custody. 6 U.S.C. § 279(g)(2)
How are UACs processed at the border?
What is a UAC?
The Flores settlement agreement of 1997 establishes ORR custody over unaccompanied minors.
The Homeland Security Act of 2002, Section 462, which extended the settlement terms to all unaccompanied minors, transferred responsibilities for the care and placement of UACs from the Commissioner of the then-Immigration and Naturalization Service (“INS”) to the Director of the Office of Refugee Resettlement by providing that ORR is to direct immigration functions related to “the care of unaccompanied alien children.” 6 U.S.C. §279(a) (emphasis added).
Why is the DHHS Office of Refugee Resettlement involved?
DHHS must release the minor, in order of preference, to a parent, legal guardian, or an adult relative. 8 C.F.R. § Sec. 236.3.
What is the custodian/sponsor’s role and what are their responsibilities?
Legal Orientation Program for Custodians of Unaccompanied Minors (“LOPC”), a program created by TVPRA of 2008 and administered by EOIR
What is a “custodian”/”sponsor”?
Asylum Claimsby Children
Jennifer Bibby-Gerth, AttorneyCatholic Charities of the Archdiocese of Washington ILS
UACs
Other minor principal asylum applicants
Children who apply for asylum as derivatives of their parents
3 Categories of children in the asylum system
I-589 Application for Asylum and Withholding of Removalhttp://www.uscis.gov/sites/default/files/files/form/i-589.pdf UACs and people who are not in removal
proceedings: Mail I-589 to a USCIS Service Center In extenuating circumstances, I-589 may be
submitted directly to the asylum office People in removal proceedings who are not UACs:
Present I-589 to an Immigration Judge
How do I apply for asylum?
Past Persecution OR Well-Founded Fear of Future Persecution
On Account of ◦ Race◦ Religion ◦ Nationality◦ Membership in a Particular Social Group◦ Political Opinion
Who is eligible for asylum?
Child Abuse Female Genital Mutilation Forced Marriage Forced Labor Targeting on account of their family
membership
In addition to other forms of persecution, children might be victims of or fear
Children who lack effective familial protection
Close, nuclear family members of [Name]
Family members of those who have fought against violent gangs in Guatemala by agreeing to be prosecutorial witnesses
Sexual Minorities from [Country]
Some Examples of PSGs
Immigration Judge (Department of Justice)
Asylum Officer (Department of Homeland Security)
Who can grant asylum?
A 17-year-old university student who was admitted on an F-1 student visa, continues to attend school and comply with his visa, and applies for asylum after the arrest of his parents in Egypt
A 15-year-old Salvadoran teen who entered the United States without inspection with her mother when she was 7-years-old, continues to live with her mother, and receives adequate care and support from her mother
A 12-year-old Guatemalan girl who arrived in United States with her grandmother
A 19-year-old Eritrean who presented himself at the Las Americas Port of Entry seeking admission to the United States
A 16-year-old Ukranian boy who was admitted to the United States as a J-1 Exchange Visitor but who failed to report to the employer for whom he was admitted to work
A 17-year-old Mexican teen who arrived in the United States with his father but whose father was later deported
Spot the UAC
A Person who
1. has no lawful immigration status in the United States;
2. is under the age of 18; and
3. has no parent or legal guardian in the United States or no parent or legal guardian in the United States who is available to provide care and physical custody
What is a UAC? (Again)
Normally, people in removal proceedings may only apply for asylum in front of an immigration judge.
UACs can apply for asylum in front of USCIS.
UACs in removal proceedings are treated differently from other people in removal proceedings
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457
Why?
Immigration Judges’ practices vary. A judge can Terminate removal proceedings
Administratively close removal proceedings
Grant a long continuance to allow USCIS time to complete its adjudication
Schedule periodic Master Calendar Hearings while DHS makes a decision
Removal Proceedings while USCIS Adjudicates the asylum claim
The UAC is an asylee and entitled to all asylee benefits.◦ Refugee benefits include monetary assistance and
health benefits. ◦ Asylees may file I-730 Relative Petitions for
spouses and children but not parents.◦ Asylees may apply for Lawful Permanent
Residence after one year.
The OCC or the UAC’s attorney will file a motion to terminate removal proceedings.
What happens If the asylum office grants asylum to the UAC?
Issued under two circumstances◦ If the FBI Name Checks are not complete◦ If there is an A file that is not in the possession of
the asylum office
Almost always result in a grant eventually
Allow an applicant to apply for work authorization immediately but not access refugee benefits
Recommended Approvals
Asylum Headquarters must review any decision not to grant a minor principal asylum applicant and can overturn the decision
If HQ concurs with the decision, the asylum claim is forwarded to the court and the UAC may pursue asylum in front of the immigration judge
What happens if the asylum office does not grant asylum to the UAC?
Removal Order
The UAC can appeal to the Board of Immigration Appeals
What happens if the immigration judge does not grant asylum to the UAC?
Refugee, Asylum, and International Operations Directorate ◦ http://www.uscis.gov/about-us/directorates-and-program-offices/re
fugee-asylum-and-international-operations-directorate
RAIO Training Materials ◦ http://
www.uscis.gov/about-us/directorates-and-program-offices/refugee-asylum-and-international-operations-directorate/raio-training-materials
Asylum Division Training Programs◦ http://www.uscis.gov/humanitarian/refugees-asylum/asylum/asylu
m-division-training-programs
Guidelines for Children’s Asylum Claims◦ http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refug
ees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Guidelines-for-Childrens-Asylum-Claims-31aug10.pdf
Policy Memoranda ◦ http://www.uscis.gov/laws/policy-memoranda
Government Resources
Ref-World (country conditions research) ◦ http://www.refworld.org/
Useful Documents for Attorneys Representing Asylum Seekers ◦ https://
www.immigrantjustice.org/useful-documents-attorneys-representing-asylum-seekers
Immigration Equality Asylum Manual ◦ http
://immigrationequality.org/get-legal-help/our-legal-resources/immigration-equality-asylum-manual/
Gang Related Asylum Resources ◦ http://
www.refugees.org/resources/for-lawyers/asylum-research/gang-related-asylum-resources/court-of-appeals.html
Non-Government Resources
• INA § 101(a)(27)(J), codified at 8 USC § 1101(a)(27)(J).
• 8 CFR § 204.11. • Trafficking Victims Protection and
Reauthorization Act (TVPRA) of 2008, Pub. L. No. 110-457, 122 Stat. 5044, Dec. 2008. (Effective March 23, 2009.) (*Regulations pending.)
• USCIS Memos• Donald Neufeld, TVPRA of 2008: SIJS Provisions,
03/24/09.• William Yates, Memorandum #3 – Field Guidance on
SIJS Petitions, May 27, 2004.
Federal Authority
An immigrant present in the United States:(1) Who is under twenty-one (21) years of age; (2) Who is unmarried; (3) Who has been declared dependent on a juvenile court located in the US 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 US;(4) Whose reunification with one or both of parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and(5) For whom it has been determined in administrative or judicial proceedings that it would not be in his/her best interest to be returned to his or his parent’s previous country of nationality or country of last habitual residence.
Who is a Special Immigrant Juvenile?
• Federal law: 21 • State law: It depends, but in most states 18.
• Maryland: 21 (Effective Oct. 1, 2014)
• Chapter 96 (HB 0315) changed the definition of a child to “unmarried individuals under the age of 21 for purposes of custody or guardianship cases filed pursuant to a Motion For Special Immigrant Juvenile Factual Findings.” Such a person is an “immigrant child.”
18 or 21?
• A “juvenile court” is a court located in the US having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.• Look at the Court’s function, not what the State labels it.
• TVPRA clarifies that a juvenile court may commit a minor to the care of State OR individual OR entity, thus guardianships and sole custody determinations are permissible.
• Note: for immigration, a child is “dependent” once the “juvenile court” accepts jurisdiction to determine care & custody. • State intervention (ie. foster care) is not required.
Dependent on a “Juvenile Court”?
No federal definition: look to state law Abuse, abandonment and/or neglect may
have occurred in the US or abroad.• Child need not be in foster care to be SIJS
eligible.• Child may reside with and be cared for by
1 parent and still qualify for SIJS.• No formal termination of parental rights is
required, nor is a determination that reunification will never be possible.
Abuse, Abandonment, or Neglect
Potential Evidence:• TESTIMONY, affidavits, ORR records, foreign police
reports and/or court records, foreign medical records, foreign home study, etc.
Factors to Consider: • No adult able or willing to care for the child in his/her
home country• Child would be forced to return to situation of
abuse/abandonment/neglect• Child would be forced to work and discontinue
education • Past threats or injuries by 3rd parties (ie. relatives,
gangs, etc.)
Not in the child’s best interests…
Establish jurisdiction in “Juvenile Court” in County of Child’s
Residence
Obtain SIJS Predicate Order from “Juvenile
Court”
• The Process
File an I-360 Petition for SIJS w/ USCIS, along w/ Predicate Order.
(File concurrent AOS for children not in proceedings.)
Dismiss Immigration Court proceedings, file AOS w/
USCIS.
Is there a basis for State court jurisdiction? Do you have a “fit and proper”
plaintiff/petitioner? Who abused or neglected the child? What is truly in the best interests of the
child? What potential conflicts may arise
between the adult and child? Can they be addressed?
Are there other forms of relief? What if child wants to help the one parent?
DO Conduct a Careful Screening
◦ Read the Statutes: Family law, Trusts & Estates, etc. When do you file for custody? Guardianship? How does your jurisdiction define abuse? Neglect?
Abandonment? Who are the parties & interested persons? Who do you represent? Who don’t you represent? What are your duties to the child’s parent(s)?
◦ Read the Rules of Procedure◦ Read the Seminal Cases
What factors will the Court apply to determine if the Plaintiff/Petitioner is fit & proper?
When determining abuse (or neglect), will the Court apply US standards or those of the home country?
What factors will the Court apply to determine the best interest of the child?
DO Read the Law and Rules of your Jurisdiction
◦Civil Procedure: Jurisdiction & Venue Service of Process (and Alternative Service)
Deadlines “The importance of clerk smiling.”
◦Evidence◦Know your county, your court, your judge, and your opposing counsel/party.
DO Remember What you Learned in Law School
◦ SIJS Orders with pre-TVPRA of 2008 language◦ Skeletal SIJS Predicate Orders
In adjudicating the SIJS Petition, USCIS must determine that the SIJ benefit was not sought for the primary purpose of obtaining a “green card,” but rather to obtain relief from abuse, abandonment, or neglect.
Children who are no longer dependent on the “juvenile court” when the I-360 is filed
DON’T Set Yourself Up for a RFE
Draft a fact-specific order: EXAMPLES:• “Manuel’s father is an alcoholic who physically abused
Manuel. Because Manuel’s father was unemployed, Manuel dropped out of school after the 6th grade to work as a farmhand. Manuel’s mother is unemployed and unable to protect her children from her husband’s violence.”
• “There is no adult person in Honduras who is able and willing to provide Manuel with a safe and secure home and to ensure that his needs are met. In Honduras, Manuel would be subjected to further abuse and neglect from his parents, and he would have to work full-time in lieu of attending school.”
Drafting the all-important SIJS Factual Findings Order
◦Avoid Master Calendar Hearings◦I-360s Pending Over 180 days◦Become familiar with the Perez-Olano Settlement Agreement: In Absentia Orders of Removal“Age out” cases
DON’T Create Extra Work
Take a pro bono case from Catholic Charities!
CC has extensive experience in these cases and will provide sample filings, mentorship, contacts, insider tips, etc. in exchange for you taking a pro bono case.
Contact Catholic Charities Pro Bono Coordinator Jim Feroli at james.feroli@catholiccharitiesdc.org
Want more materials and guidance?
Michelle N. MendezCatholic Charities of Washington Immigration Legal Services 924 G Street NWWashington, DC 20001Tel: (202) 772-4342Michelle.Mendez@catholiccharitiesdc.org
Jennifer Bibby-GerthCatholic Charities of WashingtonImmigration Legal Services 12247 Georgia AvenueSilver Spring, MD 20903Tel: (301) 942-1790, ext 135Jennifer.Bibby@catholic charitiesdc.org
Christina WilkesGrossman Law, LLC110 N. Washington
St. #350Rockville, MD 20850Tel: (240) 403-0913
Christina@grossmanlawllc.com
Contact Information