Office of Child’s Representative
October 2, 2013
Immigration Issues for Court-Involved Youth
and Families
Kathleen M. Glynn
Children’s Program
Rocky Mountain Immigrant Advocacy Network (RMIAN)
www.rmian.org
kglynn@rmian.org; (303) 433-2812, ext. 104
ROCKY MOUNTAIN
IMMIGRANT ADVOCACY
NETWORK
RMIAN



The Rocky Mountain Immigrant Advocacy Network (RMIAN)
works to ensure justice for men and women in immigration
detention and for immigrant children who have suffered from
abuse, neglect, or violence.
Our Mission: RMIAN is a non-profit organization that serves
low-income men, women, and children in immigration
proceedings. RMIAN promotes knowledge of legal rights;
provides effective representation to ensure due process; works
to improve detention conditions; and promotes a more humane
immigration system, including alternatives to detention.
Equal Justice Works Fellowship
RMIAN

Detention Program

Children’s Program

Social Services Program

Anti-Human Trafficking Program

Volunteer Attorney Training Program
IMMIGRATION LAW 101
Sources of Law, Agencies, Terminology
Sources of Law


Administrative Law Regime + Power to Detain and
Deport (INA Sections 212 & 237)
Sources of Law:
 Immigration & Nationality Act (Title 8 of U.S. Code)
 Title 8 of the Code of Federal Regulations
 Board of Immigration Appeals Precedential
Decisions; Administrative Appeals Office
 Circuit Court decisions (10th & SCOTUS)
 Internal Agency Policy & Guidance (Memos)
Finding the Law

www.uscis.gov
INA
 CFR
 Agency Memorandum


http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.
html

BIA case precedents
Agencies: Overview



Department of Homeland Security (DHS)
 Citizenship & Immigration Services (USCIS)
 Immigration & Customs Enforcement (USICE)
 ERO: Enforcement & Removal Operations
 OCC: Office of Chief Counsel
 Customs and Border Patrol (USCBP)
Department of Justice
 Executive Office for Immigration Review (EOIR): IJs
and BIA
Department of Health & Human Services
 Office of Refugee Resettlement
Dept. of Homeland Security
Dept. of Justice
Citizenship & Immigration Services (CIS)
Immigration & Customs Enforcement (ICE)
Customs & Border Protection (CBP)
Executive Office for Immigration Review
(EOIR)
Board of Immigration Appeals (BIA)
ICE Officers, Attorneys (ACCs), Asylum
Office Interviewers, Service Centers
Immigration Judges (IJs)
Dept. of Health &
Human Services (HHS)
Office of Refugee Resettlement (ORR)
Unaccompanied Refugee Minors (URM)
Div. Of Unaccompanied Children’s Services (DUCS)
Shelter Workers, Therapists, Field Coordinators
State Courts
Juvenile Courts & SIJS Predicate
Orders
Types of Immigration Status

United States Citizen


by birth, acquisition, derivation, or naturalization
Lawful Permanent Resident
after 5 years as LPR, can file to naturalize
 AKA immigrant visa



Refugee and Asylee
Nonimmigrant visas



temporary stays for specific purpose
Overstays
EWIs = entry without inspection
Rights of Everyone
(Including Undocumented Immigrants)

K-12 Public Education (Plyler v. Doe)

Life-Saving Emergency Medical Care & Emergency Medicaid

Immunizations/Vaccinations

Disaster Relief

Community Services (Police/Fire/Victims Services)

In Colorado: Protection & Services under Children’s & Juvenile Justice Codes for
those under 18

Right to remain silent

Right to consult with an attorney and be represented in criminal matters


Public defenders available in criminal cases
All workers--regardless of immigration status--are protected by U.S. Wage and Hour
laws and some other labor laws, including Workers Compensation (for on-the-job
injuries) and anti-discrimination laws.
Colorado Children’s Code


State authority to implement and administer child
protective services originates in traditionally
recognized state role of parens patriae with regard to
children who are not adequately cared for by their
guardians.
Colorado’s Children’s Code neither creates nor
recognizes distinctions based on alienage or
immigration status and mandates provision of
appropriate services to any child found in Colorado.
Constitutional Considerations


The political branches of the federal government
have plenary authority over immigration matters.
Takahashi v. Fish & Game Commission, 334. U.S. 410
(1948).
States cannot compel Congress or the Executive to
enforce federal immigration law (Chiles v. U.S. 874
F.Supp. 1334, (S.D. Fla., 1994)), nor can they
implement their own immigration policies unless those
policies closely mirror Congress’ clearly expressed
intent. DeCanas v. Bica, 425 U.S. 351 (1976).
IMMIGRATION &
CHILDREN
Immigration & Children
Definition of “child” in the Immigration &
Nationality Act (INA)
 Juvenile Adjudications
 Removal (deportation) & Custody of Juveniles
in the Immigration Context
 Special Immigrant Juvenile Status (SIJS)
 Other Pathways to Status
 Detention and/or Deportation of Parents
 Question & Answer

Definition of “child”


General: under 21 & unmarried for family-based immigration categories,
see INA section 101 definitions, and for SIJS
Unaccompanied Alien Child (UAC), 6 U.S.C. § 279(g)(2)



has no lawful immigration status in the United States:
has not attained 18 years of age
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

not status, but a designation with certain advantages, i.e., asylum filings, VD at
government expense, potentially SIJS-eligible; and certain disadvantages, i.e., will be
detained if encountered at border or interior

Federal custody determinations (ORR v. DHS) depends on age and whether a UAC or not,
see 8 CFR Section 236.3(a)
Definition of “child,” con’t.

Unaccompanied Refugee Minor (URM)
 Federal foster (Office for Refugee Resettlement) care for
UACs who are granted asylum, SIJS, are eligible for a T
Visa, suffer refugee family breakdown, or entered alone as
refugees
 Applications to State Refugee Coordinator (no guarantee
“home state” will provide placement)
 Colorado: LFS URM Program for 5+ years
 not status, but a designation that makes child eligible for
federal foster care placement and public benefits
Consequences of JD cases





ICE holds while in juvenile detention or serving a
juvenile commitment: identification and arrest by
immigration authorities
Secure Immigration Detention
Removal Proceedings
Allegations in removal proceedings that the
underlying delinquent behavior triggered a conductbased ground of inadmissibility or deportability
Statutory ineligibility for status or discretionary denial
of status
ICE Detainers or “Holds”


A “detainer,” or “ICE hold,” is a request that an
agency, such as a juvenile detention facility, notify
ICE prior to release of a juvenile so that immigration
authorities can arrange to assume custody for the
purpose of arresting and removing the juvenile
Does not mean that the person is deportable or will
be deported; it is an expression of ICE’s intention to
seek future custody.
ICE Detainers or “Holds”

Legal Authority
8
USC § 1357(d)
 8 CFR § 287.7
 ICE Memorandum on Removal Priorities and
Prosecutorial Discretion

Colorado Division of Youth Corrections Policy,
“Committed Undocumented Juveniles,” Policy 16.14,
Chapter “Admissions, Transfer and Release,
effective date: June 19, 2006
Children & Custody (under 18)





Flores vs. Reno Settlement Agreement (1997) (addresses detention, release, and
treatment of juveniles in custody)
UACs:

Homeland Security Act, P.L. 107-296, Section 462, divided functions related to UACs
into two: (1) immigration benefits & enforcement (DHS) & (2) care & placement
(ORR)

Where? DHHS – Office of the Administration for Children & Families – Office of
Refugee Resettlement
http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrens-services
Accompanied Children:

8 C.F.R. Section 236.3 Detention & Release of Juveniles

Under custody of DHS – typically when apprehended with parent
Office of Inspector General Report, “A Review of DHS’ Responsibilities for Juvenile Aliens”
(2005) http://www.oig.dhs.gov/assets/Mgmt/OIG_05-45_Sep05.pdf
CBP’s Handling of UACs: http://www.oig.dhs.gov/assets/Mgmt/OIG_10-117_Sep10.pdf
Removal Proceedings







Procedurally and substantively the same as adult: children can
be and are deported!
No GAL, no court-appointed attorney, no PD-like system (it’s
admin law), no best interest standard in removal proceedings
Some guidelines around interviewing (not enforceable, agencygenerated)
Some protections for minor asylum applicants
Juvenile Docket in Denver Immigration Court
No FRE: hearsay is admissible, no discovery
No Miranda warning or other warnings about self-incrimination
Juvenile Adjudications: BIA


“…juvenile delinquency proceedings are not
criminal proceedings, …acts of juvenile delinquency
are not crimes, and …findings of juvenile
delinquency are not convictions for immigration
purposes.” Matter of Devison, 22 I&N Dec. 1362,
1365 (BIA 2000).
Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981);
Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA
1981); Matter of C-M-, 5 I&N Dec. 327 (BIA 1953)
Juvenile Adjudications: BIA


“…juvenile delinquencies are not considered to be crimes
within the meaning of the immigration laws and charges
relating to the conviction or the admission of the commission of
crimes are inapplicable in such cases.” Matter of C-M-, 5 I&N
Dec. at 329.
When a juvenile pleads guilty in a delinquency proceeding,
she is admitting her status as a juvenile offender, and is not
admitting the essential elements of a crime. See also Matter of
Devison, 22 I&N Dec. at 1366 (elaborating that “a juvenile
delinquency proceeding results in the adjudication of a status
rather than conviction for a crime” and that juvenile
delinquency adjudications “are civil in nature.”).
Juvenile Adjudications


Typically, adjudications of delinquency are NOT considered
criminal convictions for immigration purposes (not a ground of
inadmissibility/removability)
BUT beware:
 Juvenile adjudications may be used as evidence that a
juvenile has violated a conduct-based ground of
inadmissibility or deportability
 Juvenile adjudications will be taken into consideration as a
matter of discretion in all applications for status (and bond,
if over 18 years and detained) and must be mitigated with
evidence of rehabilitation, treatment, passage of time,
family connections, etc.
 Direct-filed cases
Conduct-based grounds (Sec. 212)



Illegal entrants or immigration violators
False claim to U.S. citizenship and document fraud
Health-related grounds
Physical or mental disorder and behavior that may pose, or
has posed, a threat to the property, safety, or welfare of
self or others.
 Include any alien who is determined to be a current drug
abuser or addict (in accordance with regulations prescribed
by the Secretary of Health and Human Services).

Conduct-based grounds (Sec. 212)


Controlled substance traffickers
 “Drug trafficking” = “some sort of commercial dealing,”
Lopez v. Gonzalez, 549 US 47 (2006); “unlawful trading or
dealing of any controlled substance,” Matter of Davis, 20
I&N Dec. 536, 541 (BIA 1992).

Requires probative & substantial “reason to believe”

Requires evidence of knowing & conscious connection = intent

**keeping record clear of admissions**
Security and related grounds: seeks to enter the United States
to engage solely, principally, or incidentally in any other
unlawful activity is inadmissible.
 Often used against alleged gang members
Conduct-based grounds (Sec. 212)

Prostitution and commercialized vice
 Being


the prostitute or the pimp, not the customer
Significant traffickers in persons
Money laundering
Conduct-based grounds (Sec. 237)




Violated nonimmigrant status or conditions of entry
(overstay)
Smuggling of persons
Failure to register as a sex offender if convicted
under section 2250 of title 18, US Code
Violation of protection order
 Government
must prove by clear and convincing
evidence that the protection order was a domestic
violence-related order and that it was violated
Conduct-based grounds (Sec. 237)



Drug addict or abuser (now, or at any time after
admission)
Falsely claiming citizenship
Security and related grounds
Direct filed children




The criminal grounds of inadmissibility at INA § 212 or
deportability at INA § 237 may be triggered
Juvenile Offender Exception, INA § 212(a)(2)(A)(ii)(I): CIMT,
under 18 at time of commission, committed and released more
than 5 years ago
Petty Offense Exception, INA § 212(a)(2)(A)(ii)(II): maximum
penalty does not exceed 1 year, and term of imprisonment 6
months or less
Federal Juvenile Delinquency Act (FJDA). 18 U.S.C. §§ 50315042 (1994 & Supp. II 1996).
Protecting our Kids
Constitution & Right to Remain Silent
 C.R.S. Confidentiality Provisions & Release of
Documents
 Bringing defenses to deportation/applying for
status
 SIJS for court-involved youth
 Other pathways to status
 Working with parents who are detained or
deported

SPECIAL IMMIGRANT
JUVENILE STATUS
8 U.S.C. § 1101; INA § 101(a)(27)(J); 8 C.F.R. § 204.11
SIJS: Law, Regs, Policy





INA Section 101(a)(27)(J), 8 USC Section
1101(a)(27)(J)
8 CFR Section 204.11
Proposed Regulations: 76 Fed. Reg 54978 (Sept. 6,
2011)
USCIS Neufeld Memorandum, Trafficking Victims
Protection Reauthorization Act of 2008, HQOPS
70/8.5 (March 24, 2009).
USCIS Yates Memorandum, Memo #3 – Field
Guidance on Special Immigrant Juvenile Status
Provisions, HQADN 70/23 (May 27, 2004).
SIJS: Law, Regs, Policy


INS Cook Memorandum, Special Immigrant Juveniles –
Memo #2 Clarification of Interim Field Guidance,
HQADN 70/6.1-7-8 (July 9, 1999).
INS Cook Memo, INS on Interim Field Guidance
Relating to Public Law 105-119 (Section 113)
amending Section 101(a)(27)(J) of the INA – Special
Immigrant Juveniles (Aug. 7, 1998). INS Memo from 1998
specifically contemplates that the requisite SIJS findings can be made in
delinquency proceedings.
SIJS: Purpose





Allows abused, abandoned, and neglected juvenile court
dependents to become lawful permanent residents
Created by Congress in 1990
Most recently amended on December 23, 2008 by the
Trafficking Victims Protection and Reauthorization Act (TVPRA)
of 2008, Pub.L.No. 110-457, 122 Stat. 5044.
Requires a juvenile or State court to make several special
findings of fact; also known as an “SIJS Order.” This Order is a
prerequisite to petitioning USCIS for SIJ Status. 8 CFR 204.11(d)(2)
“Juvenile” court = “a court located in the U.S. having
jurisdiction under State law to make judicial decisions about
the care and custody of juveniles.” 8 CFR 201.11(a)
Core Requirements





Under 21 years of age & unmarried
Juvenile Court “dependent” or Juvenile or State Court “has
legally committed [minor] to, or placed [minor] under the
custody of, an agency or department of a State, or an
individual or entity appointed by a State or juvenile court”
Reunification with “one or both parents” is not viable “due to
abuse, neglect, abandonment, or a similar basis found under
State law”
Not in the child’s best interest to return to country of origin
Court will maintain jurisdiction until status is granted
Step One: Predicate Order from
Juvenile or State Court
In Colorado, the Predicate Order may be issued in:
 Dependency & Neglect Proceedings




Delinquency Proceedings
Probate Court / Guardianship Proceedings


Reunified UACs in placement with extended family
Family Court / Custody Proceedings


Foster Care, Social Services Involvement
URM Program
Especially in “one-parent” cases
Adoption Proceedings

“those adopted remain considered a juvenile court dependent based on the
prior dependency order.”
Jurisdiction & Placement


Child must be under the jurisdiction of a State or
juvenile court (see definition above)
Child must be “dependent” upon the court or “legally
committed to, or placed under the custody of” a State
agency, department, or appointed individual
Abuse, Abandonment, Neglect




Terms are not defined in the INA. DHS relies on State
definitions.
By “one or both parents” language permits “one-parent” SIJS
cases.
“Or similar basis under State law” language gives (for
example) delinquency courts greater leeway to enter findings
within their jurisdictional authority.
Be familiar with State law definitions of the above, as well as
with which court has jurisdiction to make which determination
(for example, not all State courts can make “abandonment”
findings).
Best Interests


Juvenile or State court must determine (through
briefing, testimony, documentary evidence) that it is
in the young person’s best interest to stay in the U.S.,
as opposed to returning to home country.
Factors to consider/include: family/community
support system in US and in home country, emotional
well-being and psychological health, medical
resources, educational opportunities.
Continuing Jurisdiction



Current regulations require that a minor remain under the
juvenile or State court’s jurisdiction until the entire immigration
process is complete.
TVPRA Section 235(d)(6) appears to provide “age-out”
protections to those cases where the court’s jurisdiction ends
due to age – i.e., continuing jurisdiction may not be required
when the age of the juvenile prevents such continuation. ***this
area of law in fluctuation***
Jurisdictional requirement may be at odds with State
permanency planning and case completion goals – Court can
keep “limited jurisdiction” under 8 CFR 204.11(c)(5).
Dependency & Neglect

Title 19 of Colorado Revised Statutes: Children’s Code

Article 3: Dependency & Neglect






D&N Proceedings are initiated by county Dep’t of Human/Social Services, see C.R.S. §§ 19-3312(1), 19-3-501(2)
Team: court, GAL, county attorney, county caseworker, CASA, foster family
SIJS Finding #1: child is adjudicated to be “dependent” upon the court, see C.R.S. § 19-3505; court has authority to determine physical placement, see C.R.S. § 19-3-508
SIJS Finding #2: CO law requires court inquiry into whereabouts of parents, possibility of
home placement & reunification, appropriateness of other placement, see C.R.S. §§ 19-3-213,
19-3-508; court can find abuse, abandonment, or neglect, see C.R.S. § 19-1-103 (defines
“abuse,” and “child abuse or neglect”), see C.R.S. § 19-3-102 (definition of “dependent &
neglected”); see C.R.S. § 19-3-604 (termination criteria)
SIJS Finding #3: best interests control placement, see C.R.S. § 19-3-213
SIJS Finding #4: jurisdiction of the court continues until 21 years of age, see C.R.S. § 19-3205(1)
Delinquency

Title 19 of Colorado Revised Statutes: Children’s Code

Article 2: The Colorado Juvenile Justice System



Delinquency courts have the authority to make decisions about the care and custody
of juveniles during the pendency of juvenile proceedings, see C.R.S. § 19-2-508
SIJS Finding #1: delinquency courts have the authority to: commit a juvenile to an
agency or a department of a State, see C.R.S. §§ 19-2-909, 19-2-921; to place a
juvenile under the custody of a State agency or department, see C.R.S. §§ 19-2906.5, 19-2-915, 19-2-212, 19-2-913, or under the custody of an individual or
entity appointed by the Court, see C.R.S. §§ 19-2-913(1)(a), 19-2-912, 19-1115(7)
SIJS Finding #2: CO law requires that the juvenile justice system, via its courts,
inquire into the whereabouts of the juvenile’s parents, the possibility of home
placement, the possibility of parental reunification, the appropriateness of various
placements, as well as the best interests of the juvenile and the community. See
C.R.S. §§ 19-2-508(1), (3)(IV), (IV)(A)-(C); 19-2-906.5(1), 19-2-921(1).
Delinquency



SIJS Finding #2, continued: “similar bases under State law:” parental failure to
comply with C.R.S. § 19-2-113; or a finding that the parent has subjected the
juvenile to aggravating circumstances, see C.R.S. §§ 19-1-115(7), 19-3-604(1), (2)
SIJS Finding #3: Article 2 requires that “best interest” findings be made about
juveniles under the Courts’ jurisdiction. See C.R.S. § 19-2-102 (stating “the juvenile
justice system shall take into consideration the best interests of the juvenile….”);
C.R.S. § 19-2-508(3)(VII)
SIJS Finding #4: jurisdiction attaches pending adjudication, see C.R.S. § 19-2-508;
can maintain jurisdiction post-adjudication if juvenile is placed on probation, see
C.R.S. § 19-2-104(6); possible authority to maintain supervisory jurisdiction through
commitment, see C.R.S. § 19-2-104(6) (stating “[t]he juvenile court may retain
jurisdiction over a juvenile until all orders have been fully complied with by such
person....”) (tricky argument before most delinquency judges)
Step Two: Immigration Forms &
Applications

I-360: Petition for Special Immigrant Juvenile Status





G-28
Cover letter & Brief Case Summary
Copy of Juvenile or State Court Order
Copy of Juvenile’s Birth Certificate
I-485: Application for Adjustment of Status (LPR Appl)






G-325A Biographical Information
Fees or fee waiver request on I-912
I-693 Medical Exam & 4 passport style photographs
I-765 Application for Employment Authorization
Records of all juvenile adjudications/criminal convictions & evidence
of rehabilitation
Other evidence of equities
Step Two: Immigration Procedure




If minor is not in immigration custody or removal proceedings,
I-360 & I-485 can be filed together with USCIS (Chicago
Lockbox)
If minor is in removal proceedings, but not in immigration
custody, I-360 must be filed with USCIS (IJs do not have
jurisdiction to adjudicate I-360); if approved, removal
proceedings may be terminated; then proceed with I-485 to
USCIS (if terminated) or before IJ
If minor is in ORR custody, will need “specific consent” from
DHHS if state court is seeking to determine/change custody
status or placement of youth. INA Section 101(a)(27)(J)(iii)(I)
Congressional mandate to adjudicate within 180 days of filing
Other Considerations




At the Adjustment of Status phase (I-485), note that SIJS
petitioners have a number of inadmissibility exemptions and
waivers available to them. See INA Sections 212, 245(h)(2)(B)
USCIS Adjudicators should not “look beyond” the SIJS Order
Juvenile adjudications are not criminal convictions for
immigration purposes, but may trigger conduct-based grounds
of inadmissibility (i.e., drug use/abuse) and may weigh
negatively in the discretionary analysis.
A child granted SIJS cannot later petition for his/her biological
or prior adoptive parents.
Benefits






As a lawful permanent resident, you can live and
work in the United States
Free to travel (but not for extended periods without
prior permission)
Able to obtain Social Security Number and submit
FAFSA
Security and stability
Foster care reimbursements for State
Possible eligibility for URM program
SIJS Resources

SIJS Manual, available at www.ilrc.org
 ILRC,
Obtaining Special Immigrant Juvenile Findings in
Delinquency Courts




USCIS website: www.uscis.gov
National Children’s Center SIJS Resources at
www.refugees.org
SIJS Caseworker’s Toolkit at www.brycs.org/sijs (for
children in federal custody)
www.rmian.org
Other Pathways to Status







Family-based petitions & adjustment of
status/consular processing
Violence Against Women Act self-petitions
U Nonimmigrant Visa
Asylum
T Nonimmigrant Visa
Cancellation of Removal
Prosecutorial Discretion & Deferred Action for
Childhood Arrivals (DACA)
Family-based Adjustment





INA Section 245
Immediate relatives: U.S. Citizen may “petition” for a spouse, child (unmarried &
under 21), or parent (if USC is over 21)
 Legal entry OR petition submitted before April 30, 2001
 Otherwise, return to home country for “consular processing,” but beware of 3
year, 10 year, and permanent bars depending on past entries/exits and length
of time in U.S. without status
Other categories of family petitions, referred to as preference system:

Siblings and “sons or daughters” (over 21) of U.S. Citizens

Spouses, children, and unmarried “sons or daughters” of Lawful Permanent
Residents (LPRS)
Long wait times for these petitions (4-20+years)
Also think: Citizenship? Are child’s parents and/or grandparents US citizens?
Possible to acquire citizenship at birth or derive citizenship at a later time.
Violence Against Women Act



INA Sections 204, 245
The spouse, child, or step-child of an abusive U.S. citizen or lawful
permanent resident may be able to self-petition for residency (LPR status)
 Non-abusive parent of abused child may also qualify
 Parents abused by USC child also qualify
Must show physical abuse OR extreme cruelty (don’t have to show physical
abuse if there is pervasive emotional abuse; witnessing DV=extreme
cruelty)

Must have “resided” (includes visitation) with abusive parent/spouse

If spousal self-petition, must demonstrate good faith marriage

Must have “good moral character”
U Nonimmigrant Status

INA Section 101(a)(15)(U); 8 CFR Section 214.14
For Victims of Serious Crimes
 Examples: Rape, Incest, Domestic Violence, Sexual Exploitation,
Prostitution, Kidnapping, Trafficking, Extortion, Blackmail, Felonious
Assault, False Imprisonment, Witness Tampering, Obstruction of Justice,
or Attempt, Conspiracy, or Solicitation to commit any of the above
Must obtain law enforcement certification (recognized certifiers: Police,
District Attorney, CPS, DOL, judges)
Must suffer serious physical or emotional harm

Generous waiver available for past immigration violations




Can apply for family members; each member has to have own waiver
granted if applicable
Asylum




INA Section 208; individual must meet definition of refugee
under INA Section 101(a)(42)(A)
Unable or unwilling to return to home country 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
Typically, must apply within one year of entering the
U.S.
Persecution perpetrated by government or individual beyond
government’s control
T Nonimmigrant Status


INA Section 101(a)(15)(T); 8 CFR 214.11
Requirements:
 Is or has been a victim of a severe form of trafficking in persons;
 Is physically present in the U.S. on account of such trafficking;
 Has complied (with some exceptions) with any reasonable request for
assistance in the Federal, State, or local investigation or prosecution of
acts of trafficking related crimes (or that the victim has not attained 18
years of age or is unable to cooperate due to trauma); and
 Would suffer extreme hardship involving unusual and severe harm in the
event of removal.
Trafficking 101



SEX TRAFFICKING:
 The recruitment, harboring, transportation, provision, or obtaining of a
person for the purpose of a commercial sex act, 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.
LABOR TRAFFICKING:
 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
22 U.S.C. § 7101 (b)(2), (3).
Elements of Trafficking
(Steglich, 2003)
ACTION
MEANS *
Recruit
(Force, Fraud, Coercion)
Harbor
Causing serious harm
Transport
Physical restraint
Provide
Threats to physical
restraint
Obtain
PURPOSE
Commercial sex acts
OR
Labor or Services
Withholding documents
•
•
Trafficking does NOT have
to involve the transport or
movement of victims.
Trafficking can originate in
person’s country of origin
OR after they are in U.S.
Psychological threats
and manipulation
* Means not required for minors under age 18 for
commercial sex acts; unable to “consent”
Cancellation of Removal


Available only to people in removal proceedings
3 types:
 Lawful Permanent Resident Cancellation, INA Section 240A(a)
 In U.S. for 7 years after lawful admission, lawful permanent resident
for 5 years, no aggravated felony convictions, merits discretion
 Non-Resident Cancellation, INA Section 240A(b)(1)
 In U.S. for 10 years, good moral character, no applicable criminal
bars, exceptional & extremely unusual hardship to USC or LPR spouse,
child, or parent, merits discretion
 VAWA Cancellation, INA Section 240A(b)(2)
 In U.S. for 3 years, good moral character, no applicable criminal
bars, victim of abuse by USC or LPR parent, spouse, or child or is the
non-abusive parent of child abused by USC or LPR parent, extreme
hardship to self, child, or parent
Deferred Action for Childhood Arrivals
(DACA)


See www.uscis.gov website, search “DACA” for FAQs and
additional information
What is DACA?








Not the DREAM Act, but a form of prosecutorial discretion
Not a pathway to lawful permanent residency or citizenship
2 year permission to stay in U.S.
Work Permit/Authorization
Closure of pending deportation cases (sometimes)
Social Security Number eligibility
Driver’s License & State I.D. eligibility
What is prosecutorial discretion?
DACA Requirements






Arrival in U.S. before turning 16 years old
Continuous residence from 6/15/2007-6/15/2012
In school, graduated from high school, or obtained
G.E.D.
At least 15 at time of applying (unless in
deportation proceedings) and 30 or under on
6/15/2012
No serious criminal convictions
No gang activity
Voluntary Departure






INA section 240B
Viewed as a benefit because future lawful re-entry
is possible
Departure under VD still triggers the 3 year, 10
year, and permanent bars
Depart at your own expense (unless a UAC from
non-contiguous country)
Severe penalties for failure to comply
Seen as a “better” alternative to a Removal Order
(Deport Order)
Detention & Deportation of Parents

Finding parents: ICE Detainee Locator, https://locator.ice.gov

Professional Visits at the GEO/ICE Facility



Parental rights are not terminated by ICE, EOIR, or by detention or removal
(deportation) – only State Court can do that, not immigration

DHS can gain access to parents while detained!
 Contact: Amelia Sanchez, Amelia.M.Sanchez@ice.dhs.gov, (720) 875-2040
 To be cleared as a professional for a contact visit, email Ms. Sanchez your
name, date of birth, SSN, title/position with the State or county, and
information on who you would like to visit
Planning for Deportation
 Powers of Attorney, U.S. Passports, travel documents
Reunification with Parents in Country of Origin
 Consulates can facilitate home studies
ICE’s Parental Directive

Issued August 23, 2013: Facilitating Parental Interests in the
Course of Civil Immigration Enforcement Activities



Just guidelines; not enforceable at this point
Purpose: establish policy & procedure to ensure that ICE does
not disrupt the parental rights of immigrant parents & legal
guardians
Primary concern:



Parents & legal guardians who are primary caretakers of children
(children’s status not relevant)
Parents & legal guardians who have direct interest in family court or
child welfare proceedings
Parents & legal guardians who have minor US citizen or LPR children
in the US
ICE’s Parental Directive

Directive provides that ICE personnel should:







Consider PD (drop ICE hold, not issue NTA, admin closure)
Re-evaluate detention decisions
Allow detained parents to attend family court or child welfare
proceedings in person; alternatively, video or teleconferencing
Facilitate visitation between detained parent and children esp if
visitation is required by family court or welfare authority in order to
maintain or regain custody of minor child
Allow parent to coordinate care or travel of children pending
parents’ removal (powers of attorney, travel documents, etc.)
Facilitate return of a deported parent who is party to family court
or child court proceedings for purpose of participating in
proceedings
Improve communication and cooperation, training
Adoption of Undoc’d Children


Best options for immigration status if adoption completed by 16th birthday
& in legal and physical custody of parents for two years
Primary, tricky question: does the Hague Convention apply?
 Hague Convention: 8 USC Section 1101(b)(1)(G), 8 CFR Section
204.301-313




Applies when child is from Hague Convention country, child is a habitual
residence of that country, and adoption process initiated on or after April 1,
2008
Children unlawfully present must return to country of origin to obtain visa
Hague Convention does not apply if: child subject to adoption is from nonConvention country, child is from Hague country where Central Authority of
that country determined that child is a habitual resident of US, or adoption
process began before April 1, 2008 (when US signed)
Colorado Revised Statutes
Adoption by Undoc’d Adults



No federal law that prohibits adoption based on a
prospective parent’s citizenship or immigration
status
Colorado: no provision that precludes adoption
based on immigration status
Challenges:
 Legal
clearances, credit checks, backgrounds checks
are difficult with no Social Security Number (but can
get CBI and FBI reports)
 Potential for apprehension and deportation can affect
“best interest” determination by DHS
Final Considerations: Challenges






More children entering unaccompanied today than ever before
= more children in need of State protection via D&N, APR,
guardianship
More children being removed today than ever before –
sometimes to countries they don’t remember!
Applying to USCIS and risks of removal
Deportation or removal proceedings are lengthy – it is a
process
No access to federal funds for college loans
Pathways to lawful status are rigid and few
Recommended Reading


Shattered Families: The Perilous Intersection of
Immigration Enforcement and the Child Welfare System (report), available at
http://arc.org/shatteredfamilies
Report Recommendations:

Create exceptions to the termination of parental rights timelines for detained or deported
parents

Institute “time-of-arrest” protocols for local LEAs to enable parents to decide who should
take custody of their children

State child welfare departments should explore whether children in foster care have
detained or deported parents

Caseworker, attorneys, judges should participate in immigration law training & immigration
enforcement policy training

DHS agreements/MOUs with consulates to intervene when parents are detained and
facilitate reunification abroad, if appropriate

Equal treatment of undocumented parents and extended family in child welfare system –
should be treated equitably as viable caregivers
Recommended Reading, con’t.

Elizabeth M. Frankel, DETENTION AND
DEPORTATION WITH INADEQUATE DUE
PROCESS: THE DEVASTATING
CONSEQUENCES OF JUVENILE
INVOLVEMENT WITH LAW ENFORCEMENT
FOR IMMIGRANT YOUTH, 64 DUKE FORUM
FOR LAW & SOCIAL CHANGE Vol. 3:63
(2011)
Recommended Reading, con’t.
Forced From Home: The Lost Boys and Girls of
Central America (report), available at
www.womensrefugeecommission.org
 The Flow of Unaccompanied Children through
the Immigration System: A Resource for
Practitioners, Policy Makers, and Researchers
(report), available at

http://www.vera.org/download?file=3483/the-flowof-unaccompanied-children-through-the-immigrationsystem.pdf
Thank you!
www.rmian.org
 kglynn@rmian.org, ajohnson@rmian.org
 (303) 433-2812, ext. 104
