1.0 Law & Legal CLE Credit – A/V Approval #1080173 Recording Date - September 7, 2018 Recording Availability – September 12, 2018

Meeting Location Date Time Topic

King County Bar Association 1200 Fifth Avenue - Suite 700

Seattle, WA

Friday, September 7, 2018

12:10 PM to 1:30 PM

When Immigration and Family

LawIntersect - Special Immigrant Juvenile

Status in Family Law Actions

AGENDA 12:10 PM Introduction 12:20 PM Presentation: ‘When Immigration and Family LawIntersect - Special Immigrant Juvenile

Status in Family Law Actions’, by Lucia Levias, DuBois Cary Law Group and Melody Young, Kids In Need of Defense

1:30 PM Adjourn

SPEAKER BIOGRAPHY Lucia Ramirez Levias, DuBois Cary Law Group - Lucia Levias is an attorney at DuBois Cary Law Group in Seattle where she devotes 100% of her practice to family law. Prior to practicing family law, she gained experience as a litigator in both criminal and immigration court. She has extensive experience with complex custody cases including interstate and international custody, parental kidnapping, domestic violence, and non-parental custody actions, among many other issues related to family law. Her analysis has been included in amicus briefings to the Washington Supreme Court and in briefs to the United States Court of Appeals for the 9th District. She has been recognized in Super Lawyer Magazine and Seattle Met Magazine as a “Rising Star” and “Outstanding Young Lawyer.” She is a graduate of Seattle University School of Law and a member of the Latina/o Bar Association. She regularly volunteers at legal clinics and as a pro bono attorney for Kids in Need of Defense (KIND). Melody Young, Kids in Need of Defense - Melody Young is the Pro Bono Coordinating Attorney of KIND’s Seattle office. She works to connect released and detained unaccompanied minors with pro bono attorneys for legal representation. She mentors pro bono attorneys in their cases with KIND, reviewing applications and offering guidance and support as needed. Melody is experienced in working with low-income and vulnerable populations in Washington, having worked with pro se detainees at the Northwest Detention Center, presenting “Know Your Rights” Presentations and offering legal assistance in their applications for immigration relief. Melody graduated from the University of Washington School of Law with a J.D. and LL.M. in Sustainable International Development. She has been with KIND since January 2016.

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S E P T E M B E R 8 , 2 0 1 8

WHEN IMMIGRATION AND FAMILY LAW INTERSECT: SPECIAL IMMIGRANT JUVENILE STATUS IN FAMILY LAW ACTIONS

LUCIA RAMIREZ LEVIAS, DUBOIS CARY LAW GROUP MELODY YOUNG, KIDS IN NEED OF DEFENSE (KIND)

AGENDA

• Overview of SIJS Eligible Children and SIJS

Requirements

• Family Law Actions

• Model SIJS Order

• Family Separation at Boarder

• Resources

WHAT IS SIJS?

• INA § 101(a)(27)(J)

• Form of immigration relief for children who have

experienced parental maltreatment

• Abuse, abandonment, neglect, or a similar basis under

State Law

A WIDE RANGE OF CHILDREN QUALIFY FOR SIJS

• Children and youth who have experienced abuse/neglect/abandonment or similar maltreatment in home country OR U.S.

• Undocumented children living in state foster care

• Children who were brought to the U.S. at a very young age (i.e. with a relative) never detected by immigration authorities, living with one fit parent, a relative, or non-relative caregiver

• Children who entered the U.S. “in status” but that status expired

• Children referred to immigration authorities through the juvenile justice system

• Children in deportation proceedings

• Unaccompanied “Alien” Children (UCs)

CHILD MIGRATION CRISIS

5

68,541

39,970

59,692

41,546

21,720

*Source: U.S. Customs and Border Protection

SIJS IN A NUTSHELL

State court predicate

order

Petition for SIJ status

Lawful permanent residence

8 U.S.C. § 1101(a)(27)(J), 8 CFR 204.11

5 REQUIRED FINDINGS

1. Under 21;

2. Unmarried;

3. Dependent on “juvenile court” OR placed in

custody of individual/entity;

4. Reunification with one or both parents not viable

due to abuse, neglect, abandonment OR similar

basis;

5. Not in best interest to return to home country.

WHICH COURTS HAVE JURISDICTION?

• Any state “juvenile court” may issue predicate

findings

• 8 CFR 204.11(a)

• “a court located in the United States having authority under

state law to make judicial determinations about the

custody and care of juveniles.”

• Juvenile under WA law = under 18 years old

• Exceptions: Vulnerable Youth Guardianships RCW 13.90,

Extended Foster Care (18-21)

LIMITED ROLE OFFAMILY COURT

“The Family Part plays a critical role in a minor immigrant’s attempt to obtain SIJ status but that role

is closely circumscribed.” (H.S.P. v. J.K. & J.K. v. M.S., -- N.J--, Aug. 26, 2015)

• Family court is solely making findings regarding the child’s welfare.

• Family court has no jurisdiction to grant or deny immigration application.

• Family court is not rendering an immigration determination.

SIJS IN FAMILY LAW ACTIONS

SIJS findings can be obtained in proceedings in

which court has authority to make decisions about

custody and care of a child.

Examples of family law actions/SIJS:

• Nonparental (Third Party)Custody (RCW 26.10)

• Dissolutions (RCW 26.09)

• Petitions to Establish Parenting Plan (RCW 26.26.130)

FACTORS TO CONSIDER

1. Is there evidence of abuse, neglect, abandonment, or similar basis under state law by one or both parents?

2. Can the WA court enter a child custody order under the UCCJEA?

3. Will child turn 18 before case can be finalized? • Will parents join/agree on all issues?

• How will parent/s be served?

• Statutory waiting period for dissolutions

• For nonparents, are there additional requirements that need to be met (CPS/JIS background checks, parenting seminar, etc.)?

• Pending legislation-new Ch. 13 Vulnerable Youth Guardianships

4. For unmarried parents, has paternity been established?• By court order, acknowledgment/affidavit?

• Birth certificate? Look at law of home country

5. Is the relationship between the caregiver and child stable?

6. Is the caregiver committed to the legal process and responsibility? Risk for undocumented petitioners?

UNCONTESTED WA FAMILY LAW CASE TIMELINE

Prepare pleadings

File the

case

Obtain joinder

or

Serve the

parent

Wait for response time to lapse-based

on form of

service

Dissolution-90 day waiting

period

NonparentalCustody-CPS

report

Schedule motion for

default, motion for

final orders,

motion for SIJS

findings

Attend hearing & obtain

orders

...DUE TO ABUSE, NEGLECT, ABANDONMENT OR SIMILAR BASIS

UNDER STATE LAW?• Nonparental Custody- RCW 26.10.030 AND parent

is unfit or placement with the parent would result in actual detriment to the child’s growth and development. In re Custody of Shields,157 Wn. 2d 126(2006).

• Dissolution and Parenting Plan- Factors considered for Parenting Plans (RCW 26.09.191)• Mandatory restrictions: willful abandonment, substantial

refusal to perform parenting functions, physical, sexual or emotional abuse of a child, history of domestic violence.

• Permissive restrictions: parental neglect, substantial noncompliance of parenting functions, lack of emotional ties, L-T substance abuse or MH that impacts parenting, etc.

NOT IN BEST INTERESTS TO BE RETURNED

“for whom it has been determined in administrative or

judicial proceedings that it would not be in the alien’s

best interest to be returned to the alien’s or parent’s

previous country of nationality or country of last habitual

residence,” see also implementing reg. 8 CFR 204.11(c).

• TVPRA of 2008 amendments –non-viability of reunification

with just one parent sufficient• A best interests determination

• Fact-based, case-specific inquiry based on available evidence

• At judge’s discretion, can involve an inquiry into the child’s safety, well-

being, educational opportunities, food availability, caretaker, etc. in

country of origin vs. in the child’s current placement

HOW TO OBTAIN SIJS FINDINGS

• Procedure specific to each county – follow local

rules and practice

• Can you present motion and order when family law orders are entered?

• Motion, Declaration, Memorandum in Support,

Order

• Washington State Court Form – JU 11.0500 - Findings

and Order Regarding Eligibility for Special Immigrant

Juvenile Status (FOSIJS)

EVIDENCE

• Same standard of evidence

• Preponderance of the evidence

• No higher (or lower) standard than other

decisions in the family law case

• Declarations –parent(s), other relatives, older

child, others with personal knowledge

• Documents- birth/death certificates,

medical/treatment records, probation/social

services reports

• Testimony

MODEL ORDER

• JU 11_0500: Findings and Order Regarding Eligibility for Special Immigrant Juvenile Status (FOSIJS)

• I. Findings:

• 1.1 This court has jurisdiction under State law to make judicial determinations about the custody and care of juveniles. ________________________________(child’s name) was found to be within the jurisdiction of this court and remains under this court’s jurisdiction.

• 1.2 This child is under 21 years of age.

MODEL ORDER

• 1.5 Reunification of the child with one or both of his or her parents was found not to be viable on (date) ____________________. This finding was based on a finding of abuse, neglect, or abandonment, or similar basis under Washington state law, in that:

(Provide brief description of supporting facts:)

_______________________________

_______________________________

______________________________

_______________________________ .

MODEL ORDER

• 1.6 It is not in this child’s best interest to return to his or her previous country of nationality or country of last habitual residence, (name of country or countries) ___________________________________ or to the country or countries of his or her parent(s) (name of country or countries) ___________________________________ . It is in the child’s best interest to remain in the United States. _____________ ______________________(add supporting facts).

• II. Order

• One certified copy of this order will be provided to the child or his/her attorney at public expense.

HYPOTHETICAL

Jose, who is 17, came to the U.S. from Honduras last year. He had been living with his grandmother but she became seriously ill and could not provide adequate food or shelter for Jose. Jose stopped going to school because local gang members kept trying to recruit him and threatened to harm him and his grandmother if he did not join them. Jose’s mother came to the U.S. seven years ago and lives in WA. Jose’s father left the family when Jose was 8. His father was physically abusive to his mother. No one knows where his father currently lives and he’s had no contact with Jose since he left. ORR released Jose to his mother’s care 7 months ago.

What types of state court proceedings could potentially be filed to obtain SIJS findings?

What other information would you want to know?

What issues might be a challenge in this case?

FAMILY SEPARATION: MEDIA V. REALITY

• March 2017 – DHS first publicly contemplates the

separation of parents and children as a means of

deterring future asylum-seeking children and

families from asking for protection

• April 2018 – Family Separation Crisis in media

DETAINED BY CBP

22© 2014 Ross D. Franklin/Quartz

SURGE CRISIS OF 2014

23© 2014 Ross D. Franklin/Quartz

FAMILY SEPARATION CRISIS CONTINUES

• June 2018 – Executive Order “ending” family

separation

• Young children still unable to reunify with parents (name, age, identity)

• Detention of families instead of children

• Curtailing of Flores settlement protections for UACs

• Prolonging detention, delaying reunification

• Continuing “zero tolerance” policy

• Prosecution of parents lawfully seeking asylum

• Prolonged detention

RESOURCES

WLI Washington State Court Special Immigrant Juvenile Status (SIJS) Bench

Book and Resource Guide:

https://www.courts.wa.gov/committee/pdf/SIJSBenchbook.pdf

SIJS Order (under Juvenile Miscellaneous Forms)- www.courts.wa.gov

Immigrant Legal Resource Center- www.ilrc.org

USCIS Website - http://www.uscis.gov/ -search “SIJS”

SIJS Policy Manual -

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-

PartJ.html

Sample SIJS motions, declarations and orders

CONTACT INFORMATION

Lucia Levias

DuBois Cary Law Group

206-547-1486

lucia@duboislaw.net

Melody Young

KIND

206-359-6226

myoung@supportkind.org

Judy Lin

KCBA206-267-7023

judyl@kcba.org

Findings and Order Regarding Eligibility (FOSIJS) Page 1 of 2 for Special Immigrant Juvenile Status JU 11.0500 (06/2018)

Superior Court of Washington County of _______________________ Juvenile Court

In re:

NO: Findings and Order Regarding Eligibility for Special Immigrant Juvenile Status (FOSIJS)

The Court, having reviewed the supporting material on file, including motion papers and supporting affidavits, all the pleadings and prior proceedings in this matter, and/or hearing testimony and argument, if any, enters the following:

I. Findings: 1.1 This court has jurisdiction under State law to make judicial determinations about the

custody and care of ________________________________ (child’s name) who was found to be within the jurisdiction of this court and remains under this court’s jurisdiction.

1.2 This child is under 21 years of age. 1.3 This child is unmarried. 1.4 This child was: declared dependent by a juvenile court on __________________ (date); or legally committed to or placed in the custody of a state agency or department, on

___________________________ (date); or placed under the custody of an individual or entity _______________________

(name of individual or entity), appointed by a state or juvenile court, on ____________________ (date).

1.5 Reunification of the child with one or both of his or her parent/s _________________

___________________________ (name of parent/s who child cannot reunify with) was found not to be viable on ____________________ (date). This finding was based on a

Findings and Order Regarding Eligibility (FOSIJS) Page 2 of 2 for Special Immigrant Juvenile Status JU 11.0500 (06/2018)

finding of abuse, neglect, or abandonment, or a similar basis under Washington State Law _____________________________(RCW or case cite) in that:

(Provide brief description of supporting facts:)

. 1.6 It is not in this child’s best interest to return to his or her previous country of nationality or

country of last habitual residence, ________________________________ (name of country or countries) or to the country or countries of his or her parent(s) ___________________________________ (name of country or countries). It is in the child’s best interest to remain in the United States in that

(Provide brief description of supporting facts:)

.

II. Order One certified copy of this order will be provided to the child or his/her attorney at public expense. Dated: Judge/Commissioner Presented by: _______________________________________ Signature

________________________________________ Print Name/Title WSBA No Attorney for ________________