Undocumented and Abused Kids: Who They Are and How We Can Help Them August 15, 2012

1. Undocumented and Abused Kids: Who They Are and How We Can Help Them August 15, 2012 NACC National Child Welfare, Juvenile and Family Law Conference

2. The LAA offers programs and services for Latino and non-Latino clients designed to empower them to achieve academic, social and economic advancement. • Programs offered include: community & family services, employment services, youth programs, ESOL and other educational programs, Spanish classes, translation services and immigration services. • The Immigration Services Department assists indigent immigrant clients with family petitions, domestic violence cases, applications to adjust status to permanent resident, citizenship, waivers of inadmissibility, asylum, immigration cases of juveniles and defense in immigration removal proceedings. The Latin American Association 2750 Buford Highway NE Atlanta, GA 30324 404-471-1889 (Immigration Services)

3. Undocumented & abused kids: who are they? 1) Children who have just arrived in the US and who enter without lawful documents (“EWI”)

4. The Homeland Security Act of 2002 (“HSA”) reorganized federal responsibilities for juvenile aliens. Prior to the HSA, the former INS was responsible for apprehending and detaining all juvenile aliens. The Homeland Security Act of 2002 created the Department of Homeland Security (“DHS”). DHS has assigned juvenile responsibilities to the Bureaus of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”). Both were given responsibility for apprehending, processing, and transporting all juvenile aliens. Office of Refugee Resettlement (“ORR”), a section of the U.S. Department of Health and Human Services, was assigned responsibility for caring and housing unaccompanied juvenile aliens who are detained by DHS pending resolution of immigration cases enforced by DHS. Federal responsibilities for juvenile immigrant children

5. In FY 2010, CBP reports that it apprehended approximately 29,624 minor childrenalong US borders, and that 59% of these children were unaccompanied minor children (“UAC”). • In FY 2011, the total number of minor children apprehended declined to around 22,892 minor children. However, 70% of these minor children were UACs. • “Unaccompanied”: a non-citizen who • Does not have lawful immigration status in the US; • Is under the age of 18; • And for whom • There is no parent or legal guardian in the US; or • There is no parent or legal guardian in the US who is willing and able to provide care and physical custody. Undocumented children in the US A look at the numbers

6. 8 U.S.C. 1232(a)(2) : unaccompanied children from contiguous countries (Mexico & Canada) repatriated upon apprehension upon determination that • The child has NOT been a victim of a severe form of trafficking and there is no credible evidence that child will be at risk of being trafficked if returned • The child does NOT have a fear of returning to country of origin • The child IS able to make an independent decision to withdraw his/her application for admission to the US. • The child IS inadmissible to the US Undocumented children in the US Special repatriation rules for unaccompanied Mexican and Canadian minor children

7. Unaccompanied minor children not repatriated upon apprehension are placed in the custody of ORR, Division of Unaccompanied Children’s Services (“DUCS”) until the child can be placed with a family member or friend or reunified with a parent, if possible. • According to the ORR, about 77% of children in their custody are male and 23% are female. The majority of UACs in custody are 14-17 yrs. old and 17% of kids in their care are under the age of 14. • Most common native countries of UACs in FY 2011: • Guatemala: 36% • El Salvador: 25% • Honduras: 20% • Mexico: 12% • Ecuador: 3% • Other: 4% Undocumented children in the US Unaccompanied minor children and the ORR reunification process

8. Seeking reunification with family members • Example: El Salvador • Estimated 40% of population lives in poverty • Approximately 70,000 persons emigrate annually seeking employment abroad • For exploitive purposes, including trafficking • 14,500-17,500 foreign nationals are estimated to be trafficked into the US each year; the majority of these persons are female and under the age of 18. • Top countries of origin for victims are Mexico, the Philippines, Thailand, Guatemala, Honduras and India. • Escaping war, famine, persecution • It’s estimated that over half of the world’s estimated 20 million refugees and internally displaced persons are children. • 2-5% of these children (up to 1 million) are children separated from their parents. • Escaping abuse, abandonment and neglect in their home countries Undocumented children in the US Why do children come unaccompanied by a parent or adult to the US?

9. Many children travel to the US with a parent or legal guardian. These children may have EWI-ed when they were very young or they may have entered lawfully on a non-immigrant status (i.e. with a visitor’s visa) and stayed past the time they were authorized to remain in the US. • Undocumented immigrants in US estimated to be around 11.5 million. • DHS doesn’t have a way to track those who overstay visas. • Pew Hispanic Center estimated in 2006 there were 4-5.5 million people in US who overstayed their visas. Undocumented & abused kids: who are they? 2) Children who entered the US with a parent or legal guardian, either EWI or with a non-immigrant visa, years ago and are later abused.

10. Special Immigrant Juvenile Status (SIJ) for child abuse, abandonment and neglect victims • U nonimmigrant status for victims of certain crimes • Violence Against Women Act (VAWA) relief for domestic violence victims • T nonimmigrant status for victims of Human Trafficking • Asylum relief for individuals persecuted on account of their race, religion, nationality, political opinion or social group ...so how do we help them?

11. Protection for 1) children who 2) do not have lawful status 3) who have been abused, abandoned or neglected in the U.S. or abroad and 4) for whom parental reunification is not viable. • Applies to children who have just crossed the border as unaccompanied minors. • Applies to children who were brought here by family members and grew up in the United States. • This individual form of protection. • This status requires interplay of federal immigration law, international treaty law and 50 different state child welfare codes. What is Special Immigrant Juvenile Status (SIJS)?

12. In 1990, Representative Morrison introduced legislation in the House of Representatives (H.R. 4300) that created SIJS. • This became law through the Immigration Act of 1990. • William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) made major changes to SIJS eligibility, changing the language needed in state juvenile court orders for SIJS eligibility. Notably, it also 1) created 180-day timeline for SIJS petitions to be adjudicated and 2) sought to prevent age-outs; as long as the child files while s/he is under a valid juvenile court order (in Georgia, by age 18). BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT AND THE TVPRA

13. Section 235 of TVPRA …Effective date: March 23, 2009 • SIJS must be adjudicated within 180 days! • Prevents age-outs • File by 18- age frozen • Still in proceedings – grandfathered (effective December 23, 2008) • Changes the Juvenile Court Order requirements from ‘long term foster care’ to ‘reunification with 1 or both parents not viable’ William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

14. TVRPA Clarified intentions of Congress in protecting vulnerable foreign born children and enhanced efforts to combat trafficking and ensure safe repatriation when appropriate • Secretary of State shall negotiate agreements between the U.S. and contiguous countries with respect to repatriation procedures • No child shall be returned to the child’s country of nationality or of last habitual residence unless returned to appropriate employees or officials [through proper diplomatic channels] • Implement best practices to ensure safe and sustainable repatriation and reintegration • Determinations include assessment of country conditions through Department of State’s Country Reports on Human Rights Practices and the Trafficking in Person’s Report

15. SPECIFICALLY WAIVED • Public Charge • Labor Certification • Present without admission or Parole (without inspection) • Stowaway • Misrepresentation/ Fraud • Lack of Valid Entry Document • Unlawful Presence • WAIVABLE • Health related grounds • Prostitution and commercialized vice • Alcoholics or people with “mental, physical disorders” • Drug addicts or abusers • Association with terrorist organization • Immigration violators • Aliens previously removed William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

16. NOT WAIVABLE • Certain crimes (aggravated felonies) • Multiple criminal convictions • Controlled substance traffickers • Terrorist activities William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

17. Sec 235(d)(4)(A) provides: • STATE REIMBURSEMENTS!! • Increases access to federal funds for state agencies providing services under section 501(a) of Refugee Education Assistance Act of 1980 • Makes eligible for placement and services under INA 412(d), in parity with refugee children • Title IV federal financial assistance Sec 235(d)(4)(B) provides: • DFCS REIMBURSEMENTS!! • “[s]ubject to the availability of appropriations,” the federal government shall reimburse the state for state foster care funds expended on behalf of children granted Special Immigrant Juvenile Status. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

18. Under the age of 21 (8 CFR §204.11(c)(1))** • Unmarried (8 CFR §204.11(c)(2)) • 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 placed under guardianship (INA §101(a)(27)(J)) • 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. (INA §101(a)(27)(J)) • For whom it has been determined in administrative or judicial proceedings that it would not be in the child’s best interest to return to her home country (INA §101(a)(27)(J)) SIJS eligibility: 5 basic requirements

19. BASIC LAW OF SIJS: FIVE BASIC REQUIREMENTS

20. Under the age of 21 • While the federal eligibility criteria extend to age 21, in the state of Georgia, juvenile court extends to age 18. • It may be possible to raise arguments for extension of jurisdiction in special cases. • TVRPA resolved this REQUIREMENT ONE

21. Unmarried • A child’s having his/her own children is not a bar to SIJS. REQUIREMENTTWO

22. Deprived under State Law • 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 (INA §101(a)(27)(J)) • Deprived under Georgia Law §15-11-8 • Child could be in Independent Living Program, long-term foster care placement, Permanent Guardianship situation, group home, placed with non-parent relative or living with court-appointed guardians. REQUIREMENTTHREE

23. Reunification with parent not viable • 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. (INA §101(a)(27)(J)) • Does not require the court to address both parents, one will do • Caution: if one parent still caring for child – not going to work! • Does not require termination of parental rights REQUIREMENTFOUR

24. Best interest to remain in current placement • It has been determined in administrative or judicial proceedings that it would not be in the child’sbest interest to return to her home country or last habitual residence REQUIREMENTFIVE

25. State Dependency Proceedings • File Immigration paperwork (“1-step”) • Form I-360, I-485, I-765 and I-912 (fee waiver) • If child is 14 years old or older, also must file Form G-325A Supporting documents to include: state adjudicatory order, child’s birth certificate, with certified English translation, passport with proof of lawful entry (if applicable) and medical exam. • Child will have two appointments with Immigration • Biometrics appointment • Adjustment of Status interview before USCIS officer • LPR (“green card” granted) -- within 180 days of filing • Age 18 and if LPR 5 years -- apply for citizenship OVERVIEW OF THE SIJS PROCESS:NOT IN REMOVAL

26. Concurrently -- Child must attend ALL Immigration Hearings -- Dependency Proceedings in State Court • File Immigration paperwork (“1-step”) and file motion with Immigration Court to end removal proceedings • Child will have two appointments with Immigration • Biometrics appointment • Adjustment of Status interview before USCIS officer • LPR (“green card” granted) -- within 180 days of filing • Age 18 and if LPR 5 years -- apply for citizenship OVERVIEW OF THE SIJS PROCESS:IN REMOVAL PROCEEDINGS

27. The child must remain under juvenile court jurisdiction at the time the I-360 is filed with USCIS CAUTION

28. Provides immigration protection to victims of certain types of crimes • Congress wanted to aid law enforcement in investigating and prosecuting crime by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution U Nonimmigrant Status (U visa)

29. Rape Involuntary servitude Torture Slave trade Trafficking Kidnapping Incest Unlawful criminal restraint Domestic violence False imprisonment Sexual assault Blackmail Abusive sexual conduct Extortion Prostitution Manslaughter Sexual exploitation Murder Female genital mutilation Felonious assault Being held hostage Witness tampering Peonage Obstruction of justice *Includes attempts, conspiracy, or solicitation. *Includes any similar activity where the nature and elements of the unlisted crime are substantially similar. What crimes qualify?

30. In order to be eligible for a U visa a victim must: • Be a victim of qualifying criminal activity and suffered substantial physical or mental abuse as a result of the crime. • Possess information about the qualifying criminal activity. • Have been, is being, or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity. • Be a victim of criminal activity that violated a U.S. law. Eligibility Requirements

31. Form I-918B • Certifying official must be a Federal, State or local law enforcement agency, prosecutor or authority, or Federal or State judge with the responsibility for the investigation or prosecution, conviction or sentencing of the qualifying criminal activity. • *Child Protective Services is one of the enumerated agencies that can complete and sign a U-visa certification!!!* • Must certify that the applicant: • Is a victim of a qualifying criminal activity; • Possesses information about the qualifying crime; • Was helpful in the investigation or the prosecution of the crime; and that • The qualifying crime occurred in the US or in a US territory. Filing a U-visa Step 1) Obtaining a U-visa law enforcement certification

32. Fill out Form I-918 for principal applicant completely, including supporting documents such as • No filing fee • Personal statement from applicant describing the crime of which s/he was a victim, including how this crime affects him/her physically, emotionally and psychologically, with certified English translation (if needed) • Police reports, hospital records, psychological treatment records (if applicable) • Indictment, charging document, court records (if applicable) • Letters from friends/relatives (*must be LPRs or USCs) with personal knowledge of crime and its affects on applicant • Copy of applicant’s birth certificate, biographic page of passport, cédula or other government-issued ID, with certified English translation (if needed) • Copy of applicant’s passport, with proof of lawful entry (if applicable) • Family members that qualify for derivative status include: • Applicant’s spouse • Applicant’s child • Applicant’s parent • Applicant’s unmarried sibling under age 18 Filing a U-visa Step 2) Complete Form I-918, with Forms I-918A for any qualifying derivative family members

33. If applicant did NOT enter the US lawfully (i.e. with a valid visa, border crossing card or other document), s/he will need to complete a Form I-192, Application for Advance Permission to Enter as a Non-immigrant. • $585 filing fee (*Fee waivers available) • Submit a personal statement, with certified English translation, if necessary, from applicant about how s/he would suffer if I-192 were not approved and s/he were returned to home country • Educational, medical, work opportunities in home country • Resources available in home country to crime survivors • Stigma in home country of being crime survivor • Possibilities of re-victimization • Derivatives with unlawful entries also must complete I-192 Filing a U-visa STEP 3) Complete an I-192 (if necessary)

34. Can apply for family members • Eligible to work in the US • 4 year duration of status (extensions are available) • Can adjust status to lawful permanent resident Benefits

35. Provides immigration relief to victims of domestic violence • Congress recognized that immigrant victims of domestic violence may remain in an abusive relationship because immigration status is often tied to their abuser. • VAWA is a “self-petitioning” relief that removes control from the abuser and allows the victim to submit his or her own application that are filed without the abuser’s knowledge or consent. Violence Against Women Act (VAWA)

36. Who may file? • Spouses - The abused spouse of a USC/LPR (child may be included as a derivative beneficiary) • Children - The abused child of a USC/LPR • Including: The spouse of a USC/LPR whose child has been abused may file a self-petition based on the abuse of the child. In this case, the parent files based on abuse of the child, but both parent and child benefit. • Parents– The abused parent of a USC (added by VAWA 2005) • VAWA immigration relief applies equally to women and men (this gender neutrality was reiterated by VAWA 2005) Who Qualifies?

37. Is or wasmarriedto USC or LPR • Is child of USC or LPR • Is parent of USC • Marriage was in good faith • Subjected to battery or extreme cruelty during the marriage • Resides or Resided with the abuser • Good moral character Eligibility Requirements

38. Fill out Form I-360 completely, with supporting documents, such as • No filing fee • Personal statement from applicant about her personal history and the abuse suffered, with certified English translation (if needed) • Proof of US citizenship or LPR status of abuser • Marriage certificate (if spouse is abuser) • Proof of divorce of prior marriage(s) of abuser and/or applicant (if spouse is abuser) • Evidence that the abuser and applicant resided together • Proof marriage was in good faith (if spouse is abuser) • Evidence of applicant’s good moral character • Proof of the abuse Filing a VAWA application

39. Can work in the US • Changes to the abuser’s immigration status will not affect the victim’s self-petition • Remarriage after approval does not affect status • Can adjust status to lawful permanent resident Benefits

40. Provides immigration protection to victims of human trafficking • Congress wanted to aid law enforcement in investigating and prosecuting human trafficking by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution • What is trafficking? • Modern day form ofslavery • migrant workers, sweatshops, sex trade, domestic servitude T Nonimmigrant Status (T visa)

41. Trafficking v. Smuggling

42. In order to be eligible for a T visa a victim must: • Be a victim of a severe form of trafficking in persons. • Be physically present in the United States. • Comply with any reasonable requests for assistance in the investigation or prosecution (or be under the age of 18 or cannot participate due to trauma). • Suffer extreme hardship involving unusual and severe harm upon removal from the United States. Eligibility Requirements

43. Form I-914B • Completed by a Federal, State or local law enforcement agency, prosecutor or authority, OR Federal or State judge with responsibility for the investigation or prosecution, conviction or sentencing of the trafficking in persons • Agency must certify that the applicant: • Was the victim of a severe form of trafficking • “Severe form of trafficking” includes sex trafficking, forced labor, involuntary servitude, peonage, debt bondage and slavery • Cooperated with reasonable requests from Federal, State or local law enforcement in the investigation or prosecution of the acts of trafficking of which s/he was a victim • An applicant does NOT have to meet this requirement if under the age of 18! Filing a T-visa STEP 1) Obtaining a T-visa law enforcement certification

44. Fill out I-914 completely for principal applicant, including supporting documentation, such as • No filing fee • Personal statement from applicant with certified English translation (if needed) • Copies of police reports (if any) • Copies of court indictments, victim’s advocate statements, etc. (if any) • Applicant’s birth certificate, biographic page of passport, cédula or other government-issue ID with certified translation (if needed) • Applicant’s passport with proof of lawful entry (if applicable) • Family members that qualify for derivative status include: • Applicant’s spouse • Applicant’s child • Applicant’s parent • Applicant’s unmarried sibling under age 18 Filing a T-visa STEP 2) Complete Form I-914, with Forms I-914A for any qualifying derivative family members

45. If applicant did NOT enter the US lawfully (i.e. with a valid visa, border crossing card or other document), s/he will need to complete a Form I-192, Application for Advance Permission to Enter as a Non-immigrant. • $585 filing fee (*Fee waivers available) • Submit a personal statement, with certified English translation, if necessary, from applicant about how s/he would suffer if I-192 were not approved and s/he were returned to home country • Educational, medical, work opportunities in home country • Resources available in home country to trafficking survivors • Stigma in home country of being trafficking survivor • Possibilities of re-victimization • Derivatives with unlawful entries also must complete I-192 Filing a T-visa STEP 3) Complete an I-192 (if necessary)

46. Can apply for family members • Eligible to work in the US • 4 year duration of status (extensions are available) • May adjust status to lawful permanent resident Benefits

47. How does one qualify for asylum? • Applicant must show that s/he meets the definition of “refugee” • Refugee = Person who is “unwilling or unable to return” to his/her country of nationality or last habitual residence because of past persecution or a “well-founded fear” of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion. INA §101(a)(42), §208(a). • Generalized fear of return due to high crime rates or deteriorating country conditions often do NOT qualify an applicant as a “refugee” under this definition! Asylum

48. What is “persecution”? • Applicant must also show “Either 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.” Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). • On account of: race, religion, nationality, membership in a particular social group, or political opinion Asylum

49. Persecution by whom? • The Government or a person or group that the Government is unwilling or unable to control • *Applicant must also show that s/he cannot relocate within his/her country of origin. Asylum

50. What constitutes a “particular social group”? • Group of people who share a common, immutable (innate) characteristic (e.g. color, kinship, shared experience) • Must be able to define your group (must be “particular”) and group must be “socially visible” • No clear definition of what is and is not a “particular social group” Asylum