holistic legal representation of undocumented...

Holistic Legal Representation of Undocumented Minors

Edwin D. Colon, Esq.Staff Attorney

Teen Legal Advocacy ProjectCenter for Children’s Advocacy

Broad Overview

Undocumented children who have been abandoned, abused or neglected:

Many complex & unmet needs:

Trauma history Interrupted learning Effects of chronic neglect

Have access to a free public education

Limited access to health care

Have access to some very limited college benefits

Broad Overview

What we will cover:

Special Immigrant Juvenile Status (SIJS) Obtaining special findings in juvenile and probate court Tips for child protection lawyers

Screening the needs of undocumented children

Ensuring access to resources:

Education DCF Healthcare College assistance

List of resources

Special Immigrant Juvenile Status (SIJS)

Protects children who have been abandoned, abused or neglected by allowing them to regularize their immigration status.

SIJS is a two part process: if a state court pursuant to a guardianship or a child abuse/ neglect proceeding makes some specific findings as to the immigrant child, he or she can then take the state court order and apply for the SIJS protection with federal immigration authorities.

The state court order itself does not grant an immigration benefit, it is merely a prerequisite which allows the child to apply for an immigration benefit.

SIJS cannot be obtained solely for purposes of avoiding removal from the United States.

SIJS

A child or youth is eligible to apply for Special Immigrant Juvenile Status (SIJS) if the state court

1) she is under twenty-one years of age;

2) she is unmarried;

3) she is dependent upon the Court or placed under the custody of an agency or department of a state;

4) returning to live with one parent is not viable due to abuse, neglect or abandonment; and

5) it is not in her best interests to return to her country of origin. See INA §101(a)(27)(J), 8 USC 1101, 8 USC 1101.

Note that the SIJ requirements were amended by the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to clarify that applicants would be eligible for SIJ status if so long as “reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect or abandonment, or a similar basis found under State law.” See Public Law No. 110-457, 122 State. 5044 (2008), section 235(d). The new language also removed the requirement that a youth be declared eligible for “long term foster care.”

Steps to Getting an SIJS Order

Judge makes Findings

Tips for Lawyers

Consider sources of evidence and proving your case. Psychological and medical

examinations Birth certificate Country condition reports Sworn statements Documents from

immigration process

Do collaborate/consult with an immigration lawyer if possible to make sure pleadings do not create problems in pending immigration case. For example a psychological examination can be helpful for purposes of proving your child experienced significant trauma but information contained therein could be grounds for inadmissibility

Tips for Lawyers

Consider how much information you use in pleadings (sometimes less is more). Scrutiny of immigration

process Know that you can also

obtain these SIJS findings as part of a Removal and Appointment of Guardian Petition or a TPR/Adoption process in Probate Court or a similar proceeding in Family Court. SB-155, PA-14-104 sections 8

and 9, effective 10/1/2014.

Remember you only need a finding that reunification with at least one parent is not viable.

As of today: definition of minor child limits juvenile & probate court jurisdiction to a person under 18 years of age. Up to age 21 for USCIS to make a final determination of the SIJS application. EC1

EC1 conservadorship???Edwin Colon, 9/22/2014

Screen for Needs: Act or Refer

What are we looking for?

Prioritizing Needs

LegalEducationHealth


Determine: client’s age; country of nationality; living situation (present and former caregivers whether they had legal guardianship or

not).

Observe client’s demeanor and presentation:

Any obvious signs of distress (hyper arousal; signs of post traumatic stress)

Consider the form of the question: (Combination of open and close/ended questions)

Open questions/narrative may help you assess credibility

Stay away from asking questions like: were you physically abused ? for example.

Instead consider asking: How were you disciplined? If you did something wrong, how did your parents deal with your behavior?


Some questions you may wish to ask:

Where are your parents? When was the last time you spoke with each of them?

Who was caring for you in your country of origin?

Tell me about a time that you felt afraid of your parents or caregivers?

Why did you leave your country?

Tell me about your journey to the United States?

Is there someone in your home-country that can care for you? Who is that?

Did you go to school? How long?

Did you ever see a doctor?

Do you have any scars in your body as a result of being beaten?

Access to a Free Public Education

Undocumented children have a right to a free public education. See Pyler v. Doe, 457 U.S. 202 (1982).

All children and youth between 5 and 21 have a right to education if they have not received a high school diploma.

Schools cannot:

require immigration information;

require social security numbers.


English Language Learners (ELL)

Schools must:

Identify ELLs: Home Language Survey “HLS”

Test ELLs: Language Acquisition Skills survey “LAS”

Inform Parents in their native language

Provide ESL or Bilingual education

Evaluate the child’s progress



English as a Second Language (ESL) teachers are certified teachers trained to teach English to foreign language speakers, regardless of their native tongue.

Bilingual Education:

Teaches both in English and the student’s native language.

Works towards English proficiency and also teaches subject matter content.



Bilingual Education:

20 or more ELL students who speak the same language in one school.

Bilingual education provided in that school the following year.

If less than 20 students, then school provides ESL.

Only allowed for 30 months, then language transition support services.


Individuals with Disabilities in Education Act (IDEA) & Section 504 of the Rehabilitation Act of 1973:

IDEA: schools have an obligation to refer to a planning and placement team a student whose attendance, grades or behavior are of concern.

Section 504: student is afforded accommodations for a condition that significantly impairs a major life activity.

Immigration Issues & DCF

“It is the Department’s policy to actively serve all persons who come under its purview, regardless of immigration status. The array of services available to other Department clients shall also be available to undocumented persons. This includes, but is not limited to, family preservation efforts to avoid family members being separated through incarceration due to violation of immigration status or deportation procedures.” DCF Policy 31-8-13

Social worker shall:

consult with legal affairs which may refer to immigration lawyer;

apply for green card.

Access to Healthcare

See Adolescent Health Care: Legal Rights of Teens 4th edition, 2010.

In General:

Child is eligible for emergency care regardless of immigration status.

Maybe eligible for Medicaid & Husky if Immigration Petition is pending.

Access to College Resources

On July 1, 2011, the Connecticut In-State Tuition bill(Public Act 11-43)was passed. This allows for undocumented students who meet all of the following requirements to pay in-state tuition:

be a resident of Connecticut;

have attended a Connecticut high school for 4 full years;

have graduated from a Connecticut high school or obtained the equivalent (GED);

sign a sworn statement to confirm that they have applied or will be applying to legalize their immigration status as soon as they are eligible to do so.

Access to College Resources

Undocumented students do not have access to federal or state financial aid.

Mexican American Legal Defense Fund (MALDEF) Scholarship Resource Guide:

http://www.maldef.org/assets/pdf/1415_MALDEF_Scholarship.pdf

Some Helpful Resources

Center for Children’s Advocacy. www.kidscounsel.org

International Institute of Connecticut. http://iiconn.org/

University of Connecticut School of Law-Asylum and Human Rights Clinic. http://www.law.uconn.edu/academics/clinics-experiential-learning/asylum-human-rights-clinic

Esperanza Center for Law and Advocacy https://www.facebook.com/esperanzalaw/info

Connecticut Legal Services http://connlegalservices.org/

New Haven Legal Assistance http://nhlegal.org/


Immigrant Legal Resource Center. http://www.ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth

See Unaccompanied Immigrant Children Resources. http://www.ilrc.org/resources/unaccompanied-immigrant-children-resources

U.S. Committee for Refugees and Immigrants. http://www.refugees.org/resources/for-lawyers/special-immigrant-juvenile-status/

ATLAS DIY. http://findingatlas.wordpress.com/

U.S. Committee for Refugees and Immigrants http://www.refugees.org/resources/for-lawyers/


U.S. Department of Education:

Educational Services for Immigrant Children and Those Recently Arrived to the United States. http://www2.ed.gov/policy/rights/guid/unaccompanied-children.html

Additional Questions & Answers on Enrolling New Immigrant Students. http://www2.ed.gov/policy/rights/guid/unaccompanied-children-2.pdf