AILA DC 2014 CONFERENCE UACs the Border and Role of ORR Michelle N Mendez Senior Managing Attorney Catholic Charities of the Archdiocese of Washington ILS A Person who has no lawful immigration status in the United States ID: 168255
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Unaccompanied Minors
AILA D.C. 2014 CONFERENCESlide2
UACs, the Border, and Role of ORRMichelle N. Mendez, Senior Managing Attorney Catholic Charities of the Archdiocese of Washington ILSSlide3
A Person who:has no lawful immigration status in the United States;is under the age of 18; and
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?Slide4
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?Slide5
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 EOIRWhat is a “custodian”/”sponsor”?Slide6
Asylum Claimsby Children Jennifer Bibby-Gerth, AttorneyCatholic Charities of the Archdiocese of Washington ILSSlide7
UACsOther minor principal asylum applicantsChildren who apply for asylum as derivatives of their parents 3 Categories of children in the asylum system Slide8
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 officePeople in removal proceedings who are not UACs: Present I-589 to an Immigration Judge
How do I apply for asylum?Slide9
Past Persecution ORWell-Founded Fear of Future PersecutionOn Account of RaceReligion NationalityMembership in a Particular Social Group
Political Opinion Who is eligible for asylum?Slide10
Child AbuseFemale Genital MutilationForced Marriage Forced LaborTargeting on account of their family membership In addition to other forms of persecution, children might be victims of or fearSlide11
Children who lack effective familial protectionClose, 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 PSGsSlide12
Immigration Judge (Department of Justice) Asylum Officer (Department of Homeland Security)
Who can grant asylum?Slide13
NoCan anyone else grant asylum?Slide14
NoCan anyone else deny asylum?Slide15
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 grandmotherA
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 Slide16
A Person whohas no lawful immigration status in the United States;is under the age of 18
; andhas 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 custodyWhat is a UAC? (Again)Slide17
DHSCBP ICE USCIS
Who can determine whether or not an individuals is a UAC?Slide18
EOIRORR
Who cannot determine that an individual is a UAC?Slide19
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 proceedingsSlide20
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457 Why?Slide21
Immigration Judges’ practices vary. A judge can Terminate removal proceedingsAdministratively close removal proceedingsGrant 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 Slide22
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?Slide23
Issued under two circumstancesIf the FBI Name Checks are not completeIf there is an A file that is not in the possession of the asylum officeAlmost always result in a grant eventuallyAllow an applicant to apply for work authorization immediately but not access refugee benefits
Recommended Approvals Slide24
Asylum Headquarters must review any decision not to grant a minor principal asylum applicant and can overturn the decisionIf 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?Slide25
Removal OrderThe UAC can appeal to the Board of Immigration Appeals What happens if the immigration judge does not grant asylum to the UAC? Slide26
Can UAC asylum cases from Central America be won?Slide27
Refugee, Asylum, and International Operations Directorate http://www.uscis.gov/about-us/directorates-and-program-offices/refugee-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 Programshttp://www.uscis.gov/humanitarian/refugees-asylum/asylum/asylum-division-training-programs Guidelines for Children’s Asylum Claimshttp://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Guidelines-for-Childrens-Asylum-Claims-31aug10.pdf Policy Memoranda http://www.uscis.gov/laws/policy-memoranda
Government ResourcesSlide28
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 ResourcesSlide29
Special Immigrant Juvenile StatusChristina Wilkes, Esq.,Grossman Law, LLCSlide30
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 AuthoritySlide31
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?Slide32
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?Slide33
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”?Slide34
No federal definition: look to state lawAbuse, 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 NeglectSlide35
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 countryChild 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…Slide36Slide37
SIJS Dos and Don’tsSlide38
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 Slide39
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 ProcedureRead 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 JurisdictionSlide40
Civil Procedure: Jurisdiction & VenueService of Process (and Alternative Service)Deadlines“The importance of clerk smiling.”EvidenceKnow your county, your court, your judge, and your opposing counsel/party.
DO Remember What you Learned in Law SchoolSlide41
SIJS Orders with pre-TVPRA of 2008 languageSkeletal SIJS Predicate OrdersIn 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 RFESlide42
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 OrderSlide43
Avoid Master Calendar HearingsI-360s Pending Over 180 daysBecome familiar with the Perez-Olano Settlement Agreement:In Absentia Orders of Removal“Age out” cases
DON’T Create Extra Work Slide44
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?Slide45
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 Wilkes
Grossman Law, LLC
110 N. Washington St. #350
Rockville, MD 20850
Tel: (240) 403-0913
Christina@grossmanlawllc.com
Contact Information