AILA D.C. 2014 CONFERENCE
Michelle N. Mendez,
Senior Managing Attorney
Catholic Charities of the
Archdiocese of Washington ILS
A
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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?
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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 thenImmigration 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).
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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
Jennifer Bibby-Gerth, Attorney
Catholic Charities of the
Archdiocese of Washington ILS

UACs
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Other minor principal asylum applicants
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Children who apply for asylum as derivatives
of their parents
I-589 Application for Asylum and Withholding
of Removal
http://www.uscis.gov/sites/default/files/files/f
orm/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
Past Persecution
OR
 Well-Founded Fear of Future Persecution
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On Account of
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Race
Religion
Nationality
Membership in a Particular Social Group
Political Opinion
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Child Abuse
Female Genital Mutilation
Forced Marriage
Forced Labor
Targeting on account of their family
membership
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Children who lack effective familial protection
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Close, nuclear family members of [Name]
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Family members of those who have fought
against violent gangs in Guatemala by
agreeing to be prosecutorial witnesses
Sexual Minorities from [Country]
Immigration Judge
(Department of Justice)
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Asylum Officer
(Department of Homeland Security)
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No
No
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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
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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
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A 12-year-old Guatemalan girl who arrived in United States with her grandmother
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A 19-year-old Eritrean who presented himself at the Las Americas Port of Entry
seeking admission to the United States
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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
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A 17-year-old Mexican teen who arrived in the United States with his father but
whose father was later deported
A Person who
1.
2.
3.
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
DHS
CBP
ICE
USCIS
EOIR
ORR
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.
William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA),
Public Law 110-457
Immigration Judges’ practices vary. A judge
can
 Terminate removal proceedings
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Administratively close removal proceedings
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Grant a long continuance to allow USCIS time
to complete its adjudication
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Schedule periodic Master Calendar Hearings
while DHS makes a decision
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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.
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The OCC or the UAC’s attorney will file a
motion to terminate removal proceedings.
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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
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Almost always result in a grant eventually
Allow an applicant to apply for work
authorization immediately but not access
refugee benefits
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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
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Removal Order
The UAC can appeal to the Board of
Immigration Appeals
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Refugee, Asylum, and International Operations Directorate
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RAIO Training Materials
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Asylum Division Training Programs
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Guidelines for Children’s Asylum Claims
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Policy Memoranda
◦ http://www.uscis.gov/about-us/directorates-and-programoffices/refugee-asylum-and-international-operations-directorate
◦ http://www.uscis.gov/about-us/directorates-and-programoffices/refugee-asylum-and-international-operationsdirectorate/raio-training-materials
◦ http://www.uscis.gov/humanitarian/refugeesasylum/asylum/asylum-division-training-programs
◦ http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Ref
ugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Gui
delines-for-Childrens-Asylum-Claims-31aug10.pdf
◦ http://www.uscis.gov/laws/policy-memoranda
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Ref-World (country conditions research)
◦ http://www.refworld.org/
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Useful Documents for Attorneys Representing
Asylum Seekers
◦ https://www.immigrantjustice.org/useful-documentsattorneys-representing-asylum-seekers
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Immigration Equality Asylum Manual
◦ http://immigrationequality.org/get-legal-help/ourlegal-resources/immigration-equality-asylum-manual/
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Gang Related Asylum Resources
◦ http://www.refugees.org/resources/forlawyers/asylum-research/gang-related-asylumresources/court-of-appeals.html
Christina Wilkes, Esq.,
Grossman Law, LLC
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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.
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.
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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.”
•
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.
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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.
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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.
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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.)
Establish jurisdiction in “Juvenile
Court” in County of Child’s
Residence
•The Process
Obtain SIJS Predicate
Order from “Juvenile
Court”
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.
SIJS
Dos and Don’ts
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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?
◦ 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?
◦ 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.
◦ 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
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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.”
◦ Avoid Master Calendar Hearings
◦ I-360s Pending Over 180 days
◦ Become familiar with the PerezOlano Settlement Agreement:
 In Absentia Orders of Removal
 “Age out” cases
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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
Michelle N. Mendez
Catholic Charities of
Washington
Immigration Legal
Services
924 G Street NW
Washington, DC 20001
Tel: (202) 772-4342
Jennifer Bibby-Gerth
Catholic Charities of
Washington
Immigration Legal
Services
12247 Georgia Avenue
Silver Spring, MD 20903
Tel: (301) 942-1790,
Michelle.Mendez@catholicc ext 135
haritiesdc.org
Jennifer.Bibby@catholic
charitiesdc.org
Christina Wilkes
Grossman Law, LLC
110 N. Washington St.
#350
Rockville, MD 20850
Tel: (240) 403-0913
Christina@grossmanlawllc.com