Immigration Issues
Impacting Child Welfare
and Child Trafficking
Howard Davidson, J.D.
Director, ABA Center on Children and the Law
American Bar Association
202/662-1740
davidsonha@staff.abanet.org
CAPTA State Liaison Officer Webinar–
June 25, 2010
Why Is This Important for
Child Welfare Agencies?
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Nearly 1 in 4 U.S. children live in immigrant families
Children of immigrants represent 8.6% of all who
come to the attention of the child welfare system
But foreign-born children represent less than 3% of
all who come to the child welfare system’s attention
Latino children are overrepresented among children
of immigrants with child welfare system involvement
One study of undocumented immigrants found, for
64% of Latinas, a primary barrier to seeking help
from social service agencies, related to domestic
violence, is fear of deportation
One study found children of Latino immigrants 6
times as likely as children of Latino natives to be
sexually abused
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The Pew Hispanic Center estimates there were
5.5 million children in the U.S. in 2008 who had
at least one unauthorized (undocumented) alien
parent
1.5 million of those children were undocumented
themselves; the other 4.0 million children were
born in the U.S. and thus were American citizens
who potentially face having a parent deported
They also report 8.8 million people living in
“mixed-status” families, including 3.8 million
undocumented adults and .5 million
undocumented children, and 4.0 million U.S.
citizen children
Some Federal Benefits Are Permitted for
Otherwise Ineligible (Non-Qualified) Aliens
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1996 Personal Responsibility and Work Opportunity
Reconciliation Act makes undocumented persons
ineligible for certain federal public benefits (e.g., IV-E)
8 U.S. Code §1611(b)(1)(D)(iii): Exception to
ineligibility: services “necessary” for protection of life
or safety (e.g., CPS services; foster care placement &
family preservation & reunification services)
Attorney General’s Order 2049, 61 FR 45985 (1996):
Specifies these “necessary services” to include-crisis counseling and intervention, services/assistance
relating to child protection, violence and abuse
prevention, and short-term housing/shelter for
runaway, abused or abandoned children
Child Protective Services /
Child Welfare System Mandates
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A child who is a legal permanent resident, refugee,
asylee, or Cuban or Haitian entrant alien who has
been battered or subjected to extreme cruelty, or
was granted conditional entry -- is IV-E eligible
Even if immigrant children aren’t “IV-E eligible” all
states provide fully state-funded foster care, &
some foster care may be Title XX (non meanstested) funded. There is no bar to using Title IV-B
services for children and families, since they don’t
require individual eligibility determinations
CAPTA mandates CPS protective services to all
children
Citizenship / Immigration Status
Provision of P.L. 109-432
Tax Relief and Health Care Act of 2006
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Amends federal child welfare law to require states,
as part of their child welfare state plans, that they
have procedures for verifying citizenship or
immigration status of every child in foster care,
whether or not child is receiving IV-E funding (law
is silent on actually verifying each child’s status or
simply on sharing information on their state’s
verification procedures)
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Law also requires HHS to determine through CFSR
process whether the state has a “program” that is
in conformity with the requirement
How Can CPS Agencies Do Better in
Identifying and Serving Child Trafficking
Victims?
From 6/14/10 U.S. State Department Annual
Trafficking in Persons Report (information in the
report on the U.S.A.):
“Extensive programs…also assist (the trafficked
child) population, as do child protective services
agencies in all states and territories…. It is not
clear to what extent these programs identify and
assist child trafficking victims among the children
they serve (but NGOs reported that)
these…agencies require training to better identify
and work with trafficking victims.”
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From Shared Hope International’s
Sex Trafficking Policy Recommendations
Four-Point Overhaul of Child Protective
Services Required
1)
2)
[CPS] regulations & protocols are sorely
outdated and ill equipped to respond to the
sex trafficking of America’s children
Nonetheless, a majority of trafficked children
have had contact with CPS in some degree -Many are current wards of the state or were
in foster care or group homes at the time of
their recruitment and victimization through
pornography and prostitution
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CPS is underfunded and overstretched and
desperately needs the training and
resources to better protect their clients
Each state should review their [CPS]
statutes and regulations to ensure that
specific protections for children who
are sex trafficked are included -Florida’s example is a model of change for
other states to consider
Florida DCF Procedures on Intake and
Investigative Response to Human
Trafficking of Children
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May 1, 2009 policy directive addresses how state
hotline will handle child trafficking reports and CPS
staff will handle suspected trafficking situations
Special law enforcement coordination &
multidisciplinary case staffings
Describes process of getting “certification” for noncitizen child trafficking victims from HHS/ORR, and
appropriate services for this population
Makes it clear that out-of-home care is available for
both citizen and non-citizen child victims
Says that aid will be given for safe repatriation
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Training on human trafficking issues has been
provided to some representatives of Florida DCF
through the DCF Protections of Child Victims of
Human Trafficking Working Group, focused primarily
on aiding foreign national victims of both labor and
sex trafficking -- but some information about
domestic minor sex trafficking is included
The DCF Working Group also created human
trafficking training for Florida’s Abuse Hotline
employees and for a mixed group of providers,
including child protective investigators, community
based care agencies, guardians ad litem, mental
health professionals, child protection teams, child
welfare services, child victim advocates, child
welfare attorneys and refugee services providers
2008 Provisions in Amended Federal
Trafficking Law
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Public Law 110-457 (William Wilberforce
Trafficking Victims Protection Reauthorization
Act of 2008)
Section 212 authorizes, when there’s credible
evidence a child may have been subjected to
trafficking (and if child applies for T visa
status), 120 days of eligibility for interim
assistance from U.S. Dept. of Health and
Human Services (and then long-term
assistance while their T visa application is
pending)
Legal advocates are needed to help child
victims file T visa claims
CAPTA 2003 Sense of Congress
Amendment
“It is the sense of Congress that the
Secretary should encourage all States and
public and private agencies or
organizations that receive assistance under
this title to ensure that children and
families with limited English proficiency
who participate in programs under this title
are provided materials and services
under such programs in an
appropriate language other than
English.”
Multi-Ethnic Placement Act of 1994
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MEPA (PL 103-382, 42 U.S. Code
Section 622): A state or other entity
covered by MEPA-IEP may not delay
or deny the placement of a child for
adoption or into foster care on the
basis of the race, color, or national
origin of the adoptive or foster
parent, or the child involved.
And foster parents must be recruited
that are reflective of a state’s
ethnic diversity.
Special Immigrant Juvenile Status
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8 U.S. Code § 1101(a)(27)(J)
Gives visa authority for an under 21 child’s
permanent residency if:
1) Declared “dependent on” juvenile court
2) Placed by court in child welfare agency or
individual adult custody or guardianship
3) Reunification with one or both parents is “not
viable” due to abuse, neglect, or abandonment
and
4) Return home is not in child’s best interests
Legal & judicial education on this is critical:
See– Benchbook & SIJS materials at:
www.ilrc.org/immigration_law/
remedies_for_immigrant_children_and_youth.php
SIJS Process Improvement Provisions in
2008 Trafficking Law Amendments
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Provides for expeditious adjudications of
SIJS status (within 180 days of filing)
HHS Consent for Juvenile Court jurisdiction
needed ONLY if child is in HHS/ORR
custody
Eligibility for SIJS need not be predicated
upon a formal juvenile court adjudication of
abuse, neglect, or abandonment – but
rather simply upon a finding that parental
reunification would not be viable due to the
child’s maltreatment or abandonment
Immigrant Child Victim Protections in the
Violence Against Women Act
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VAWA (provisions in 8 U.S. Code Section
1154)– A non-citizen child (up to age 21)
may “self-petition” for lawful permanent
residency in U.S. if “abused” by their
U.S. citizen or lawful permanent resident
parent (including an adoptive parent).
-- Or, a non-citizen “protective” parent
who is a victim of battering can petition
on behalf of both themselves and their
children
Children’s Eligibility for “T” and “U”
Visas, and for “Asylum”
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8 U.S Code Sections 1101(a)(15)(T) and (U) and
Section 1158
For victims who have been “trafficked”
(cooperation with police is NOT a requirement for
T visas) either for sexual purposes or for unlawful
labor or services, or who have been victims of
serious crime who are cooperating with police (U)
See DOJ 1998 guidelines on child asylum claims:
www.uscis.gov/graphics/lawsregs/handbook/
10a_ChldrnGdlns.pdf
What Should Child Welfare Agencies,
Through Law, Policy, and Training, be
Doing to Address Immigration Issues?
Twelve child immigrant-sensitive measures that
should be in state child welfare law and policy:
1.
2.
3.
References to immigrant children, including
unaccompanied immigrant minors
References to immigrant parents, documented
and undocumented
References to children or families being in U.S.
under refugee, asylum, or other protected
immigration status
4.
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8.
References to child/family’s immigration status
confidentiality/non-disclosure
References to “Special Immigrant Juvenile
Status” (SIJS)
References to child and protective parent
eligibility for special VAWA protections
References to agency having to make contact
with the child and family’s national consulate,
when a child is taken into custody (Vienna
Convention)
References on notice to, and possible foster
care or kinship care placement of child with,
relatives, documented or undocumented, in
U.S. or elsewhere
9.
10.
11.
12.
References to child trafficking victims or
child victims of serious crimes (T and U
visa issues)
References to language & nationality
determinations and provision of languageappropriate & culturally-appropriate
services
References to process of checking on
safety and suitability of possible return of
child (repatriation) to another country (i.e.,
out-of-country home studies)
References relating to referral of immigrant
children and families to legal services
programs or immigration attorneys
Models for Intervention
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Delivering Culturally-Sensitive Placements
and Services: Unaccompanied Refugee
Minor (URM) Program/U.S. HHS Office of
Refugee Resettlement; Available to refugee
minors, those granted asylum, victims of
trafficking, others
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Not Treating Immigrant Child “Victims” as
Offenders: U.S.-ratified Optional Protocol to
CRC on Sale of Children, Child Prostitution
and Pornography, Art. 8 / Trafficking Victims
Protection Act, Section 107 & 2005
additional language on use of special
residential facilities for child trafficking
victims
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Providing Every Child an Advocate for their
Court Cases, ideally an Attorney: The Child
Abuse Prevention and Treatment Act (CAPTA)
requires states to provide a Guardian Ad
Litem (GAL), Attorney, or Court Appointed
Special Advocate (CASA) for every child
involved in an abuse or neglect related
juvenile court proceeding (attorneys are
appointed in all but 11-12 states)
ABA Immigration Commission has issued ABAendorsed Standards for the Custody,
Placement and Care; Legal Representation;
and Adjudication of Unaccompanied Alien
Children in the U.S. (2004)
www.abanet.org/publicserv/immigration/
Immigrant_Childrens_Standards.pdf
From BRYCS (Bridging Refugee Youth &
Children’s Service) Clearinghouse…
“Children should never have to
represent themselves in legal cases,
including immigration cases; they
should have access to legal help.
Child welfare agencies can play an
important role in the long-term safety,
stability, and self-sufficiency of such
children by linking them with
appropriate attorneys, in addition to
providing targeted assessment and
intervention.”
Serving Foreign-Born Foster Children: A Resource for Meeting the Special Needs
of Refugee Youth and Children, Lutheran Immigration and Refugee Service &
U.S. Conference of Catholic Bishops Migration and Refugee Services (2004)
Eight Suggested Principles for Law and Policy on
Providing Child Welfare Services to
Undocumented Child Immigrants
1.
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Child immigrants victimized by abuse, neglect, or
abandonment, or otherwise fleeing violence in their
families, should be served by child welfare agencies
as a child protection case, without constraints on
agency/caseworkers providing all services/referrals
the child needs that should be available to U.S.
citizen children
State/county child welfare agencies should be
required to serve immigrant children & families
regardless of immigration status, and accept
prompt custody (including foster care if needed) of
unaccompanied or separated children to assure
child’s safety, permanency, and well-being
3.
4.
Child welfare agencies should provide culturallysensitive support and language-appropriate
services to immigrant children and families, using
resources of grass roots immigrant community
resources
For unaccompanied/separated immigrant
minors, child welfare agencies should facilitate
prompt inquiries/decisions on the safety of
repatriation, including -- after diligent familyfinding efforts -- expeditious checks on the
suitability of a child’s parents and relatives as
placements for the child, both within the U.S. and
in other countries
5.
6.
If a state/county child welfare agency decision
is made to repatriate a child, that should only
be done through close coordination with child
welfare authorities in the country of return,
with special attention given to the child’s safety
Child welfare agency attorneys should, where
appropriate, promptly institute legal actions
(including juvenile court proceedings that
provide the predicate for SIJS status or that
find a child to be a victim of family violence or
trafficking) that can help unaccompanied or
separated children remain in-country, when
appropriate for their safety, permanency, and
well-being
7.
8.
Child welfare agencies should not institute
termination of parental rights (TPR)
proceedings against deported or immigrationdetained parents without giving them full
opportunity to be present and participate
actively, through competent counsel, in such
proceedings, and deportation/detention should
not itself be used as a basis for TPR
Child welfare agencies should promptly follow
the consular notice requirements of the Vienna
Convention on Consular Relations as soon as it
takes a foreign national child into child
protective custody or institutes a state court
action that could affect parental rights, but
consult with counsel if doing so could subject
the child or family to danger
State/Local Laws and Policies
Addressing Immigrant Children
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Florida Law, Section 39.5075 and .013 (2005)
Recognizes SIJS process in “dependency”
cases (and keeping court jurisdiction post-18
for completing it); need for child welfare
agency to report to court on child’s
immigration status and steps to address it;
services “must be provided” without regard to
immigration status unless otherwise
statutorily prohibited; agency case plan must
recommend whether permanency plan will
include child remaining in U.S.
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If case plan says child should remain in U.S.,
agency is required by law to evaluate whether
child is eligible for SIJS and if so it “shall petition
the court” (within 60 days) for the findings and
order required, with the child’s views heard
Florida child welfare policy: 65C-9.001-003
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Illinois Law Chapter 705, Section 405/2-4a (2003)
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recognizes SIJS procedures
Illinois DCFS has MOU with Mexican Consulate on
notification/access issues (and Policy Guide)
www.f2f.ca.gov/res/pdf/
IllinoisMOUMexicanConsulate.pdf
www.state.il.us/DCFS/docs/PG200402.pdf
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New York City implementation of Local Law 73 on
access to services to non-English speaking persons by
NYC Administration for Children’s Services
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“Immigration and Language Guidelines for Child
Welfare Staff” addressing immigration status issues
in CPS investigations and foster care placements,
working with immigrant clients, & language issues
www.nyc.gov/html/acs/downloads/pdf/
immigration_language_guide.pdf
 “Language Identification Card” to help determine
family’s primary language/provide language-specific
services (ACS clients speak 35-plus languages)
NY State OCFS 2008 guidance to county child welfare
agencies on SIJS -www.f2f.ca.gov/res/pdf/Special_Immigrant_Juvenile_
Status.pdf
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Texas Department of Family & Protective Services
CPS Policy 6580– addresses notifying foreign
consulate requirement (under Art. 37(b) of Vienna
Convention on Consular Relations) when child
taken into care, getting home studies in foreign
countries, repatriation/stay in U.S. decision,
repatriation requirements, verifying immigration
status of foster kids, agency citizenship &
immigration status verification process, SIJS
process, agency transportation of undocumented
children/parents, and forms & checklists
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Oklahoma Department of Human Services has
similar requirement re. Consular notification
(Instructions to Staff 340:75-1-31)
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California County Child Welfare Agency work with
immigrant families (from 2008 CWLA publication):
www.cwla.org/voice/0809immigrantfamilies.htm
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Connecticut Department of Children and Families
Policy 31-8-13 (12/05) : Clearly states that agency
services are available regardless of immigration
status, including “family preservation efforts to avoid
family members being separated through
incarceration due to violation of immigration status
of deportation procedures” and that CPS shall serve
children who don’t have documentation papers.
Identification of undocumented persons “shall not
result in” reporting to DHS. Says that workers
should aid children in their care to get Green Cards.
Minnesota Department of Human Services 5/14/10
bulletin to county child welfare agencies, CPS staff,
lawyers, etc. on SIJS status:
www.dhs.state.mn.us/main/groups/publications/
documents/pub/dhs16_149979.pdf
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Utah Division of Child and Family Services Out-ofHome Care Practice Guidelines 303.10 (rev. 6/06) :
agency “will seek to meet” and support the health
care needs of kids in state custody regardless of
immigration “status”
New Mexico Child, Youth and Family Department is
sponsor of best practices guide: “Working With
Undocumented & Mixed Status Immigrant Children &
Families
http://ipl.unm.edu/childlaw/docs/BEST-PRACTICES/0709WorkingWithUndocumentedAndMixedStatusImmigrantChildrenAndFamilies.pdf
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Vetoed in California in 2004 by Governor:
AB1895 would have required appointment of
immigration attorney for every dependent child or
ward of the court not a lawful permanent resident or
U.S. citizen. Attorney would have to help child secure
SIJS status.
10 Elements of Judicial Advocacy
for Child Welfare Agency Assistance
if a Parent is in Immigration Detention
1)
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3)
Judges should encourage child welfare agencies to
have protections for immigration enforcementseparated U.S. citizen & permanent resident
children put into written policies and practices
Judges should advocate for these to be familyfocused and based on best interests of the child
principles
Judges should encourage MOUs/Protocols
between the child welfare agency, ORR, and other
agencies/services & that include training of police
to minimize child trauma as a result of a parent’s
immigration apprehension
4)
5)
6)
Judges should encourage the child welfare
agency to have capacity to communicate in a
child’s and family members’ native language
& to provide interpreter services where
needed
Judges hearing cases involving immigrationdetained parent(s) should never base
decisions upon predictions/conclusions of the
parent’s immigration case outcome
Judges should help assure that, if a child
wants to accompany their parent to country
of origin, there is coordination with DHS and
aid in the child first obtaining necessary
travel documents, health & school records
7)
8)
9)
10)
Judges should help assure that confidentiality of
information gathered in the course of providing
services to the separated child is maintained
Judges should encourage the child welfare
agency to maintain a list of programs qualified
to provide linguistically appropriate services to
the separated child, including identifying
appropriate lawyers/guardians ad litem
Judges should assure that child welfare agency
case plans are regularly updated with parents’
and other relatives’ locations
Judges and their child welfare agency should
work with DHS to provide for parents’ presence
at dependency/custody court hearings
HELP for Separated Children Act
HR 3531 / S3522
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Screening parents/guardians by child welfare
agencies/NGOs
Timely notification of schools, child welfare
agencies, and NGOs regarding enforcement actions
Access to free, confidential phone calls for
parents/guardians to make care arrangements
Collaboration between ICE and child welfare
agencies to ensure parents have regular contact
with children & can meaningfully participate in
family court proceedings
Consideration of the best interest of children in all
decisions regarding the detention, release, and
transfer of a parent or guardian
Materials on Immigrant Children
in the Child Welfare System
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The Impact of Immigration Enforcement on Child
Welfare
www.firstfocus.net/sites/default/files/
CaughtBetweenSystems.pdf
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Immigrant Families: Public Benefits & Child Welfare
Financing
www.firstfocus.net/sites/default/files/
PublicBenefits_0.pdf
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Language, Culture, & Immigration Relief Options
www.firstfocus.net/sites/default/files/r.20105.20.lincroft.pdf
Want to be more
involved with these
issues?
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Join the interdisciplinary
www.americanhumane.org/protectingchildren/programs/child-welfare-migration
 Lots of material available there on the child welfare
agency-immigration issue link, including:
 A Social Worker’s Toolkit for Working with
Immigrant Families
 Wellbeing and Immigrant Families: The
Intersection of Migration and Child Welfare