unaccompanied immigrant children aka …centerforchildwelfare.fmhi.usf.edu ›...
TRANSCRIPT
UNACCOMPANIED IMMIGRANT CHILDREN
AKA
UNACCOMPANIED ALIEN CHILDREN
Adriana M. Dinis
Immigration Law Group of Florida
721 1st Avenue North
St. Petersburg, FL 33701
(727) 471-0677
Immigration Law
Immigration law is ADMINISTRATIVE LAW
It is not civil and NOT criminal law
VERY DISCRETIONARY
Immigration officers are often not attorneys
Immigration judges are appointed by the DOJ
and have no limit – they are forever
No right to an attorney regardless of age
Acronyms
USCIS United States Citizenship and Immigration Services
ICE Immigration and Customs
Enforcement
CBP Customs and Border Protection
EOIR Executive Office for Immigration Review
Any undocumented child can be placed
into deportation proceedings even if…
The juvenile court has ordered the child to live in a
licensed foster home or relative placement
The child does not have any relatives in his/her
home country who can care for him/her.
The child has lived in the U.S. for most of his/her
life and has no ties with their home country.
Common myths
Individuals who have a social security number have immigration status
Individuals who have been in the U.S. for most of their life will not be deported
All children who are adopted by US citizens become automatic US citizens
Once you have immigration status you cannot be deported
Common Myths Continued….
Everyone in the US can apply for a work permit
People are undocumented by choice
(“get in line” argument)
Anyone can assist someone in filing out their immigration
forms (issues with notaries)
Just because you have a US citizen child you automatically
get immigration status (“anchor baby” argument)
What does it mean to be “undocumented”?
A person who is present in the U.S. without immigration
status or without proof of their immigration status.
Examples:
A person who was brought to U.S. on a visa that has
expired.
A person who entered the U.S. without inspection.
A person who obtained lawful immigration status and
subsequently lost his/her status.
A person who obtained lawful immigration status but
does not have proof of status.
Immigrant Children
Approximately 23.2% of children in the United States
are either immigrants or the children of immigrants
Many children of immigrants are citizens, having been born
in the United States
Other children are without legal status, but have grown up
almost entirely in the US and consider this country home
May not speak the language of their home country
May be unaware of lack of legal status
Still other children may have arrived to the U.S. recently,
fleeing violence, abuse or other harm
Unaccompanied; or
With a parent or parents
What is an Unaccompanied Alien Child
(“UAC”)
An unaccompanied alien child (UAC) is a child who
(6 U.S.C. § 279(g)(2)):
Has no lawful immigration status in the U.S.
Has not attained 18 years of age
Has no parent or legal guardian in the United
States, or no parent or legal guardian in the
United States available to provide care and
physical custody.
Where are these children detained?
When these children are apprehended by
immigration authorities they are put into the
custody of the Office of Refugee Resettlement
(ORR) housed under the Department of Health
and Human Services
Several shelters in South Florida
Influx of UACs
Sharp increase in UAC’s detained in recent years
From 2003-2011, average of 6,775 referrals per
fiscal year
2012: 13,625 referrals
2013: 24,668 referrals
2014: 57,496 referrals
2015: 33, 726 referrals
Do UACs get to leave these shelters?
After being detained and processed by ORR, UACs are
placed with a “sponsor”
Sponsor preferences: Parent, Legal guardian, adult relative,
licensed program, adult or entity approved by ORR.
Immigration status does not matter – agree to take responsibility
for the UAC and provide him/her with proper care.
If no sponsor can be located, go through proceedings
while in ORR custody.
If child is deemed to qualify for immigration relief they can
be placed until federal foster care program under URM
Children Released in Florida
County # of UACs released
10/01/15 – 06/2016
Broward 315
Collier 266
Duval 103
Hillsborough 152
Lee 281
Manatee 80
Martin 101
Miami-Dade 941
Orange 185
Palm Beach 940
Children Released Continued
Fiscal Year 2014 (10/2013-09/2014)
Florida - 5,445 children released to sponsors
TOTAL for entire U.S. was 53,518
Fiscal Year 2015 (10/2014-09/2015)
Florida – 2,908 children released to sponsors
TOTAL for entire U.S. was 27,840
Fiscal Year 2016 (10/2015- 06/2016)
Florida – 3,851 children released to sponsors
TOTAL for entire U.S. is 37,574
Where are these children coming from?
Country of Origin FY 2015 FY 2014 FY 2013
Honduras 17% 34% 30%
Guatemala 45% 32% 37%
El Salvador 29% 29% 26%
Mexico 6% <2% 3%
All other countries 3% <3% 5%
Males Females <14 Years
FY 2015 68% 32% %
FY 2014 66% 34% 27%
FY 2013 73% 27% 24%
What is driving this humanitarian crisis?
Children trying to escape forcible gang recruitment
and gang violence
Honduras was deemed the “murder capital of the world”
in 2014 & 2015 (El Salvador is a close 2nd)
Children trying to escape abuse, persecution or
exploitation in the home country
Children escaping extreme poverty
Children attempting to reunite with their families
Children seeking employment or educational
opportunities in the United States
Why are children coming to the US?
“My grandmother is the one who told me to leave. She said: ‘If you don’t join, the
gang will shoot you. If you do, the rival gang or the cops will shoot you. But if
you leave, no one will shoot you.’” -- Honduras, Age 17
“I am here because the gang threatened me. One of them ‘liked’ me. Another
gang member told my uncle that he should get me out of there because the guy
who liked me was going to do me harm. In El Salvador they take young girls,
rape them and throw them in plastic bags. My uncle told me it wasn’t safe for
me to stay there. They told him that on April 3, and I left on April 7.” -- El
Salvador , Age 15
“ My step-father used to beat me. He would get angry at me and hit me with a
belt, punch me, or beat me with a metal pipe. I would protect my mother and he
would get angry at me.” – Mexico, Age 17
Source: UNHCR Report: Children on the Run
Why are children coming to the US?
“In El Salvador, there is a wrong—it’s being young. You’re stalked
by gangs, authorities beat and follow kids because they don’t trust
them; they think they’re gang members. There are no jobs for young
people because employers don’t trust the kids either... It is better to
be old.” - Carlos
“Despite the horrific conditions that some of the children underwent in
making the journey to the United States, the majority stated they
would still make the trip, even with the knowledge of how difficult the
journey was. As one child explained, “If you stay you will die, if
you leave, you might…either way it’s better to try.””
Source: Women’s Refugee Commission: Forced From Home
Why is it important for an undocumented person to
obtain lawful immigration status?
Work lawfully in the U.S. (obtain a SS#)
Obtain a state- issued ID or Driver’s License
Receive certain public benefits, such as Medicaid
Be able to attend college/university
Receive financial assistance for college education
Access to Health Insurance
The Florida Legislature has passed a new law that will help
many immigrant children who lawfully reside in Florida
obtain health insurance coverage. Prior to this change, some
non-citizen children living in Florida had to be lawfully in
the United States at least five years before they qualified
for health insurance through the Florida KidCare program.
After the law goes into effect on July 1, 2016, there will no
longer be a waiting period for these children.
http://www.floridakidcare.org/eligibility/LawfullyResidingChart.pdf
Some Immigration Benefits
available to children
Special Immigrant Juvenile Status (“SIJS”)
Self petition under Violence Against Women Act
(“VAWA”)
U Non-Immigrant Status
T Visa
Deferred Action for Early Childhood Arrivals (“DACA”)
Asylum
Family-Based Petitions & Visas
US Citizenship
Temporary Protected Status
Special Immigrant Juvenile Status
(SIJS)
What is it?
An avenue for certain abused, abandoned or neglected
undocumented children under juvenile/State court
jurisdiction to become lawful permanent residents
Where do you find it?
Section 101(a)(27)(J) of the Immigration & Nationality
Act, codified at 8 U.S.C. §1101(a)(27)(J), AMENDED by
the December 2008 TVPRA effective March 23, 2009.
Regulations are at 8 C.F.R. § 204.11 and are outdated
Proposed Regulations: 76 Fed. Reg 54978 (Sept. 6, 2011)
TVPRA
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (TVPRA), Pub.L.No. 110-457, 122 Stat. 5044 not only
expanded the definition of a Special Immigrant Juvenile but it also
provided new protections and changed the Specific Consent
requirement for SIJS
Specific consent
Only UAC in HHS custody (immigration custody) who seeks to invoke the
jurisdiction of a state court for a dependency order and who also seeks to
invoke the jurisdiction of a state court to determine or alter his or her
custody status or placement must first receive “specific consent” to such
jurisdiction from HHS
For example, if a UAC wishes to have a state court, not HHS, decide to move
him/her out of HHS custody and into a state-funded foster care home, the UAC
must first receive “specific consent” from HHS to go before the state court.
Definition of SIJS prior to TVPRA
The juvenile is dependent on a juvenile court or the
juvenile court has committed or placed the juvenile into
custody of an agency or department of the state;
The Juvenile is eligible for long-term foster care due to
abuse, neglect, or abandonment;
It is not in the juvenile’s best interests to return to his or her
country of residence, or his or her parent’s country of
residence
SIJS Requirements as Amended by TVPRA
Child has been declared dependent on a Juvenile Court located in
the U.S. or whom a Juvenile 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 U.S.
Reunification with one or both parents is not a viable option due to
abuse, abandonment, neglect OR other similar basis under state law
It is not in the juvenile’s best interests to return to the child or the
parent’s home country or country of last habitual residence
SIJS Continued…
Child must remain under juvenile court jurisdiction while the immigration application is pending
Fla. Stat. 39.013(2)(d) & 39.5075 allows the Court to retain jurisdiction over the dependency case solely for SIJS purposes until the child’s 22nd birthday
It appears that the TVPRA did away with this requirement. If the child is no longer under juvenile court jurisdiction because of “age” (i.e., turning 18), then he should not be denied SIJS for this reason.
Child must be under 21 and unmarried
However, under Florida law you MUST get the predicate order before the child’s 18th birthday (unless can do nunc pro tunc order)
A child having her own children is not a bar to SIJS.
Cannot assist parents with immigration status
Requirement One (Juvenile court found child dependent or placed in custody of individual)
“Juvenile court” is a court in the U.S. having jurisdiction under State
law to make judicial determinations about the custody and care of
juveniles. 8 C.F.R. § 204.11(a)
Kinds of courts that have jurisdiction over “custody and care of
juveniles” vary among and within states, but may include
dependency, delinquency, family (adoption, divorce, paternity,
temporary custody of a minor, child support), probate/guardianship
The role of the “juvenile” court is to make factual findings based on
state law about the abuse, neglect, or abandonment, family
reunification, and best interests of the child
Requirement One Continued…
The state court is not being asked to make any immigration
decisions in a SIJS case. Congress simply requires that
findings of fact related to child protection be made by the
adjudicators who are the most qualified to do so.
Predicate order is simply a finding of fact. It does not
confer any immigrant status/benefit to a child, nor is it a
court opinion on whether a child should be granted
immigration status. Only USCIS, upon specific application
by the child, can determine whether or not a child qualifies
for an immigration benefit such as SIJS
Requirement One Continued…
In Florida advocates have been able to obtain SIJS
orders (which have been accepted by USCIS) in the
following courts:
Dependency
Delinquency
Adoption
Paternity
Divorce
Probate/Guardianship
Temporary Custody of a minor
Requirement Two (Reunification with 1 parent is not viable to due abuse, abandonment or neglect)
Abuse, abandonment or neglect could have occurred inside
or outside the U.S.
The TVPRA deleted the phrase “eligible for long-term
foster care” and replaced it with “reunification with 1 or
both of the [child]’s parents is not viable.”
Does not require termination of parental rights nor a
determination that reunification will never be possible
This makes clear that the child need not be in formal
state foster care in order to be eligible
Requirement Three (Not in child’s best interest to return to home country or country of residence)
Factors to consider for “best interest” determination:
Child fears retaliation by abusive family members.
Child has no responsible family members to provide her with
care and protection.
Child will have no access to medical, educational or social
services.
Child is acculturated to life in the U.S.
All of child’s personal ties, perhaps siblings, are here.
Child has been educated in the U.S.
Country conditions of child’s home country
Who might be eligible for SIJS?
A child who was raised in the United States, enters into the child
welfare system and is now living with one parent, when reunification
with the other parent is not a viable option
A child who arrived unaccompanied to the United States and is now
residing with a paternal uncle who has petitioned to be his guardian
A child who has lived in the United States since the age of 6, was
adjudicated a ward of the juvenile court after a delinquency
offense and has been placed on probation, who cannot reunify with
his mother because of abandonment
A child who arrived to the United States in December 2014 who was
abused by her father in her home country and is now living safely
with her mother, who has been granted sole legal custody of her
Florida Administrative Code
Chapter 65C-9.003
(1) All calls received by the statewide Department of Children and Family Services Abuse hotline (“Hotline”) will be screened without regard to the immigration status of the alleged victim or the family or household of the victim, pursuant to the procedures established in Chapter 65C-10, F.A.C. A child’s immigration status will be determined through SAVE only, concurrent with the ongoing investigation into allegations of abuse, abandonment or neglect, and only in an effort to promote the child’s best interests which includes ascertaining, in good faith, a child’s eligibility for public benefits or need for a special immigrant juvenile visa. No such status check or other contact shall be made for the purpose of seeking the child’s or the family’s detention by INS or the initiation or resumption of deportation or exclusion proceedings against the child or the child’s family, irrespective of the outcome of the dependency proceeding. No Department of Children and Family Services staff member may attempt to place any alien child in INS custody. The immigration status of a child shall have no bearing on either the care or service rendered by Department of Children and Family Services to a child or on judicial proceedings undertaken by Department of Children and Family Services on behalf of the child. In the event an abuse report is determined to be unfounded, Department of Children and Family Services shall not thereafter communicate with the INS concerning the child or the child’s family.
State juvenile courts and child welfare agencies may
contact USCIS to ask general questions or request
outreach on the SIJ program by submitting a request
Guide for State Courts in Cases Involving Unaccompanied Immigrant Children
2015This document has been prepared with support from a State Justice Institute grant.
The points of view and opinions offered in this publication are those of the authors and do not necessarily represent the official policies or position of the State Justice Institute,
the National Center for State Courts, or the Center for Public Policy Studies.
1
I. The Purpose of the Guide 1
II. Introduction 2
III. Background 3
IV. Roles of the Federal Immigration System and the State Courts 5
V. Special Immigrant Juvenile Status 7
VI. Types of State Court Cases Involving UACs 9
VII. Action Steps to Address Cases Involving UACs 11
Endnotes 12
TABLE OF CONTENTS
The purpose of the Guide is to increase understanding among state court judges, court administrators, and other key stakeholders regarding:
➣Federal immigration law, policy, and practice, and the impact on state court cases involving Unaccompanied Alien Children (UACs);
➣how the work of the state courts in cases involving UACs intersects with the needs of the federal immigration system;
➣ the different types of cases and matters where UACs might appear in state courts; and
➣ the potential role of the state courts in providing factual findings in cases involving UACs.
While there are other forms of federal immigration relief for refugees, victims of human trafficking, and other groups, the Guide focuses solely on the state court findings required for use in federal determination of Special Immigrant Juvenile Status (SIJS). The Guide also provides recommended action steps for state courts to use in addressing cases involving UACs.
I. THE PURPOSE OF THE GUIDE
2
II. INTRODUCTION
Over the last decade, the number of UACs entering the United States (U.S.) from Central America has been on a steady rise. This trend is expected to lead to an increase in filings in state juvenile courts on behalf of UACs seeking court findings to support applications for Special Im-migrant Juvenile Status (SIJS). There is concern that the state courts do not have the capacity to handle this influx of cases, or are not fully pre-pared for the complexity of these cases.
Unaccompanied immigrant children, defined as Unaccompanied Alien Children in federal immigration law, are children who:
1. have no lawful immigration status in the U.S.; 2. have not attained 18 years of age; and 3. have no parent or legal guardian in the U.S. or have no parent or legal guardian in the U.S. available to provide care and physical custody.
Once these children are detained by the Department of Homeland Security (DHS), they are then delivered to the Department of Health and Human Services/Office of Refugee
WA391
OR115
NV228
CA5831
ID19
MT1
WV30
UT119
AZ295
CO426
NM41
ND4
SD48
NE351
KS312
OK377
TX7409
MN304
IA235
MO222
AR307
LA1755
WI85
IL552
MI193
IN448
OH635
KY 413
TN 1294
AL786MS
290GA
2047
FL5445
SC588
NC2064
VA3887
PA660
NY5955
VT3
NH35 ME
17
RI 203
CT 552NJ2680
DE 212
MD 3884
MA 1372
WY8
Unaccompanied Children Released to Sponsors By State — October 2013 to September 2014 Data Source: http://www.acf.hhs.gov/programs/orr/programs/ucs/state-by-state-uc-placed-sponsors
Resettlement (ORR) for placement. Children who are not deported will remain in ORR custody until they can be released to sponsors in the U.S. Following the child’s release to a sponsor, ORR considers its responsibility terminated. At that point the sponsor becomes responsible for the care and safety of the child, and if the child becomes involved in a state court dependency, delinquency, abuse and neglect, or guardianship case, any services required will fall under the jurisdiction of the state juvenile court.
Because UACs may seek SIJS until their 21st birthday, and due to current delays in deportation proceedings in federal immigration courts, cases involving UACs may not enter the state courts immediately. In addition, the stream of cases involving UACs seeking SIJS findings may last for years. There are concepts that have very different meanings in state law and federal immigration law, such as the concept of best interest of the child. Failure of an immigration court judge or state court judge to understand these differences can result in unintended consequences for the parties in a case.
Alaska — 4District of Columbia — 375Hawaii — 8Puerto Rico — 2Virgin Islands — 1
TOTAL UNACCOMPANIED CHILDREN RELEASED TO SPONSORS BY STATE FY 2014 = 53,518
3
III. BACKGROUND1
UACs are at serious risk for abuse and becoming crime victims or human trafficking victims, risks that are exacerbated by their undocumented immigration status. Many of these children have serious problems as a result of the severe trauma and other consequences associated with the violence, poverty, crime, gang terror, abuse, and family dislocation that they have experienced both at home and during their journey to the U.S.
The number of UACs in the U.S. has been on a steady increase and is expected to continue to grow. For example, over the past six years, the number of UACs from El Salvador, Honduras, and Guatemala has increased from approximately 10,000 to over 50,000 children annually. Projections suggest that the numbers are likely to continue to be sizeable in coming years.
While there are numerous reasons fueling this migration, some of the more significant trends include the following:2
Poverty — With poverty rates well above 50 percent, circumstances are dire for a majority of children in Honduras, El Salvador, and Guatemala.
Crime and violence — Honduras, El Salvador, and Guatemala have some of the highest homicide rates in the world. For example, the homicide rates in these three Central American countries range between 10 and 20 times higher than those of the U.S. Moreover, rates for other forms of violence, especially rape, robbery, kidnapping, and extortion, are also exceedingly high.
Gangs — Numerous gangs, including gangs which operate not only in the three Central American host countries but also with gangs in the U.S., are major sources of violence of
all types, including labor and sex trafficking, as well as drug, arms and people smuggling, kidnapping, extortion, and theft.
Lack of opportunity and decaying societal infrastructure — Economic decline following years of civil war, unrest, and ongoing social conflict, have resulted not only in extremely limited employment opportunities for families and children, but also in breakdowns in the social infrastructure needed to protect and support families and children such as education, health, safety, and justice systems.
Desire to reunite with family and friends living in the U.S. — Years of strife in Honduras, El Salvador, and Guatemala have led to many children attempting to reunite with family members and friends who have previously made it to the U.S. Many of these family members are living and working in the U.S. without authorization.
Misinformation — Misinformation in the home countries about U.S. immigration policy and the availability of economic and social opportunity available to children arriving in the U.S. have contributed to the influx of UACs.
As a result of these trends, state courts across the nation will be seeing increasing numbers of cases involving UACs. Of particular concern is that the overburdened, cumbersome, multiple-agency federal immigration system lacks the capacity to adjudicate cases quickly. Consequently, UACs are likely to be in the U.S. for many years, and for some children, permanently. In addition, it is likely that many of the recently arriving UACs may eventually end up in state courts in child protection and delinquency matters; due to the
4
fact that many of these children have difficult backgrounds, the time delays of their immigration proceedings, and the uncertainty in their lives once they have been placed with sponsors.
Although the vast majority of UACs were apprehended crossing into the U.S. at the U.S.-Mexico border, the problems they present could impact all states, not only those states contiguous to the border. A combination of numerous factors — including child sponsor and shelter space availability, as well as the complexity of federal immigration law, policy, and practice
Source: U.S. Customs and Border Protection, “Southwest Border Unaccompanied Alien Children,” www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children
UNACCOMPANIED MINORS ENCOUNTERED BY CBP, FY 2009-14
20,000
18,000
16,000
14,000
12,000
10,000
8,000
6,000
4,000
2,000
02009 2010 2011 2012 2013 2014
El Salvador Guatemala Honduras Mexico
— have resulted in children being placed in every state across the U.S.
In light of these issues, state courts throughout the nation can anticipate that sizeable numbers of UACs will be requesting findings from state court proceedings for use by the UAC in an application process for SIJS. SIJS is a form of immigration relief that allows the UAC to remain in the U.S. temporarily, and eventually serves as a step in support of a subsequent application for Lawful Permanent Residence (LPR) status.
5
There is an inherent tension between the purposes and roles of the federal immigration system and the state courts. The federal government is charged with determining: 1) who should be in the U.S. for how long and under what conditions; 2) who should not be in the U.S. and why; and 3) who should become a U.S. citizen. In contrast, the state courts have numerous roles such as: punishment and rehabilitation; restoration/making victims whole; protecting the vulnerable; adjudicating disputes; and providing justice in individual cases. The state courts do not adjudicate immigration status; however, the state courts must provide equal access to justice for all.
Federal immigration law generally does not consider the best interests of the child. Neither the federal immigration courts nor Unites States Citizenship and Immigration Services (USCIS) has a mandate or the resources to investigate what is in the best interests of the child in determining immigration rights of parents and/or children. Therefore, the federal government is dependent on a state court’s determination of the best interests of the child.
The federal government has clearly defined methods for handling UACs. Upon initial contact and apprehension, UACs entering the U.S. will be detained by the U.S. Department of Homeland Security (DHS)/Customs and Border Patrol (CBP). For children detained who are from countries contiguous to the United States, CBP has authority to return the UAC to his/her home country if the following three determinations are made:
➣The UAC is not a victim of a severe form of human trafficking as defined in federal immigration law;
➣The UAC does not have a fear of returning to the country of nationality or last habitual residence; and
➣The UAC is able to make an independent decision to return home.3
UACs who are not from a country contiguous to the U.S., or are not returned to their home country by CBP, are delivered to the U.S. Department of Health and Human Services
IV. ROLES OF THE FEDERAL IMMIGRATION SYSTEM AND THE STATE COURTS
(DHHS)/Office of Refugee Resettlement (ORR) for placement anywhere in the U.S. ORR initially places UACs in an ORR facility, run by ORR contractors that provide shelter and services.
While a juvenile is in the physical and legal custody of ORR and is housed in an ORR contractor facility or an ORR-grantee/contractor-funded foster home, a state juvenile court can accept filings to take jurisdiction over the juvenile. The juvenile court may exercise its jurisdiction to make findings to enable the juvenile to apply for certain immigration protections. For change of custody or placement, ORR consent is required for a UAC who is in the physical and legal custody of ORR. However, such consent is not required once ORR places the child with a sponsor.4
Children who are not deported will remain in ORR custody until they can be released to sponsors, if a suitable sponsor is available. The sponsors may be one of the following, in order of preference:
1. a parent;
2. a legal guardian;
3. an adult relative;
4. an unrelated adult or an entity designated by a parent or legal guardian;
5. a licensed program; or
6. an adult or entity approved by ORR if no other alternative to long-term detention is available.5
When a child is released to a sponsor, ORR considers its responsibility as terminated. At that point the sponsor becomes responsible for the care and safety of the child, and if the child becomes involved in a state court dependency, delinquency, abuse and neglect, or guardianship case, any services required will fall under the jurisdiction of the state juvenile court.6 During this time, DHS/Immigration and Customs Enforcement (ICE) has the authority to begin deportation proceedings against the UAC. Federal immigration court proceedings can continue even after a minor is placed with a sponsor.
6
When ORR releases a child to a sponsor, that sponsor is given care-giving authority over the child but not legal custody. The sponsor, if not the child’s parent, does not become the legal guardian of the child until named as such by an
order of a state court. As noted above, once the UAC is released to a sponsor, ORR no longer has care and custody over the UAC. Therefore, the state juvenile court does not need the consent of ORR to convert the placement to legal custody.
7
Because UACs are a highly vulnerable population, federal immigration law provides immigration protections that might allow UACs to stay in the U.S. temporarily. This primary protection comes through Special Immigrant Juvenile Status (SIJS).7 If granted SIJS, the juvenile may also apply for Lawful Permanent Resident (LPR) status, which is a more permanent residency status. SIJS requires an application to the DHS/USCIS. As part of that process, a state juvenile court judge will be faced with a request to provide certain findings or certifications based on information received in the context of the state juvenile court proceeding.8
State juvenile court judges should be aware that they cannot decide whether or not the UAC will be allowed to remain in the U.S. The state juvenile court judge’s findings in a dependency proceeding do not constitute a grant of SIJS. It is USCIS, and not the state juvenile court, who determines if the UAC is eligible for SIJS. Furthermore, the juvenile court findings do not guarantee that USCIS will grant the UAC SIJS as there are other considerations that enter into that decision.
There is a 3-step process for the UAC to obtain SIJS and subsequently apply for LPR status. The UAC must first obtain a state court order with
V. SPECIAL IMMIGRANT JUVENILE STATUS
the required findings (described below), and the factual basis for each finding, signed by the state juvenile court judge. This court order permits the juvenile to file an application for SIJS with USCIS; however, the order does not guarantee that USCIS will approve the application.
In cases where the UAC wants to apply to USCIS for SIJS, the juvenile must supply USCIS with a state juvenile court order making the following three (3) factual findings based on state law:
1. The juvenile has been declared dependent on a juvenile court located in the U.S. 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 U.S.;
2. Reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis found under state law; and
3. 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.9
UNACCOMPANIED CHILDREN REFERRALS TO OFFICE OF REFUGEE RESETTLEMENT
70,000
60,000
50,000
40,000
30,000
20,000
10,000
–FY 2010 FY 2011 FY 2012 FY 2013 FY 2014
# Unaccompanied Alien Child Referrals
Data Source: U.S. Citizenship and Immigration Services and Administration for Children and Families
6,775 6,775
13,625
24,668
54,496
8
The UAC is eligible to apply for SIJS if reunification is not viable with one parent. The juvenile may be eligible to apply for SIJS if declared dependent due to abuse, neglect, or abandonment by one parent, even if the UAC is still living with the other parent.
For SIJS purposes, a state juvenile court is a court in the U.S. having jurisdiction under state law to make judicial determinations about the care and custody of children.10 Examples include: juvenile, family, orphans, dependency, guardianship, probate, and delinquency courts.11
A dependent is a child legally committed to, or placed under the custody of, an agency or department of the state, or an individual or entity appointed by a state or state juvenile court. Placements in foster homes, group homes, with relatives, or with guardians qualify.
The dependency filing may be made by a state agency, such as law enforcement, social services or child protective services, or by a private individual, such as a family member or friend.
In addition, under 8 U.S.C. 1101(a)(27)(J) and USCIS regulations, for USCIS to grant SIJS, the following requirements must be met:
➣The juvenile must be declared dependent while present in the U.S. and under the jurisdiction of the court;
➣The juvenile must file for SIJS (USCIS Form I-360) before reaching the age of 21;
➣The juvenile must be unmarried at filing and remain so until SIJS is granted;
➣The child must remain under juvenile court jurisdiction until SIJS has been granted by USCIS, subject to exceptions for age-related cases and certain other circumstances; and
➣The dependency case must have been filed primarily to obtain relief from abuse, neglect, or abandonment and not primarily to obtain an immigration benefit.
When the UAC files an application for SIJS, the state juvenile court order making the required juvenile court findings (and signed by the judge)
must be attached to the application. The USCIS then makes the determination of eligibility for SIJS. The decision to approve the SIJS application is discretionary and is based in part on the factual bases for the juvenile court findings, and also on other concerns that USCIS may consider under federal immigration law.
If the SIJS application is approved, the juvenile is eligible to file an application with USCIS for adjustment to LPR status. However, the approval does not guarantee that the child will be eligible to remain in the U.S. USCIS will review the basis of each finding to assure that there is a genuine dependency issue.12 The grant of adjustment to LPR status is discretionary and is not guaranteed even if the juvenile has been granted SIJS. If the juvenile is in removal proceedings, only a federal immigration judge, not the USCIS, can grant the adjustment of status. The state juvenile court judge does not have the power to grant adjustment of status.
While the approval of an SIJS application does not constitute a termination of parental rights, a juvenile who becomes an LPR will no longer be considered the child of his or her parents for immigration purposes, even if parental rights were not terminated. Thus, the child will not be able to use the lawful status attained through SIJS as a means to obtain lawful status for his or her parents. This bar applies to both parents, despite whether only one parent was responsible for the abuse, neglect, or abandonment that was the basis of the SIJS.
It is important to note that the state juvenile court judge cannot decide whether the juvenile is granted SIJS or subsequent LPR status. Furthermore, SIJS and LPR status are not automatically granted based on the findings of the juvenile court. USCIS makes an independent decision for both benefits, and USCIS must consider the requirements for admissibility, in addition to the order of the state juvenile court, to determine if the juvenile is eligible for adjustment to LPR status.
9
UACs can appear in the state courts in a variety of case types, including the following:
➣ dependency/child protection;
➣ juvenile delinquency;
➣ juvenile status offenses;
➣ guardianships;
➣ juvenile offender tried as adult;
➣ victims of crimes; and
➣ code violations.
The Guide focuses on the three main types of cases where UACs may seek findings supporting applications for SIJS, which are dependency/child protection, delinquency and status offenses, and guardianships. Provided below are considerations and factors of which the court should be aware in those three types of cases.
Dependency/Child ProtectionUACs may appear in a dependency case in two main circumstances: 1) if the UAC develops problems with an ORR sponsor, a dependency case may be filed in the local juvenile court to remove the juvenile from the ORR sponsor and find a new placement; or 2) a request may be filed in the juvenile court for a court order specifying the three findings required as part of the juvenile’s SIJS application to USCIS.
For change of custody or placement, ORR consent is required for a juvenile who is in the physical and legal custody of ORR. However, such consent is not required once ORR places the UAC with a sponsor. In making determinations of a UAC’s dependency or placement, particularly if termination of parental rights may be a possible outcome, the state juvenile court may have to determine whether notice to natural parents in another country is required.
Once the UAC is placed with a sponsor, ORR will no longer pay for their services. The state juvenile court will then be responsible for determining the availability of state-funded services for the juvenile. The availability of services then becomes a critical issue for the state juvenile court, both in
VI. TYPES OF STATE COURT CASES INVOLVING UACs
terms of limits on eligibility of an undocumented immigrant for federally- and/or state-funded services, and the availability of services that are culturally appropriate and in the UAC’s first language if the UAC does not speak English.
In dependency/child protection cases where the UAC wants to apply for SIJS, the state juvenile court judge will be faced with a request to make the following three required factual findings:
1. With regard to the first SIJS finding, a threshold issue for the state court is what constitutes dependency jurisdiction under state law. For example, in some states, the UAC may be able to submit a filing to the state juvenile court for a declaratory judgment just to obtain the court order with the requested SIJS findings.
2. An issue may arise regarding the judge’s ability to determine the factual basis for the second finding, in particular if it is a declaratory judgment case. The required finding for SIJS must be that the UAC cannot be reunited with one or both parents due to abuse, neglect, or abandonment or a similar basis under state law. If there is no evidence regarding abuse or neglect by the parents in the home country, the only ground may be abandonment. States may vary on whether, and in what circumstances, the state courts can find that a UAC has been abandoned solely on the basis of the parents’ sending the child unaccompanied to the U.S.
3. For the third finding, the judge will need some information to back the finding that it is not in the UAC’s best interest to be returned to his/her home country. The information may come from an assessment or study conducted by another agency.
10
The court order should recite the factual basis for each of the three findings described above, even if the UAC’s testimony is the only basis for the findings and no other evidence is available.
An application for SIJS may affect the timing of the state juvenile court proceeding. If the UAC is in a removal proceeding in federal immigration court, the state juvenile court judge may be faced with a request for continuances to allow the immigration court to complete its hearing before the dependency case is closed. The UAC may also request that the juvenile court retain dependency jurisdiction pending the USCIS’s consideration of the SIJS application.
Finally, the applicant has the burden of proof for establishing eligibility for an immigration benefit, including SIJS or adjustment of status to LPR. USCIS can require the juvenile applying for an immigration benefit to produce any juvenile court records it deems necessary or face denial of the requested benefit. If the records of the state juvenile court relating to the findings cannot be opened without a court order, the state court may be faced with requests to open those records.
Delinquency and Status OffensesWhen dealing with delinquency matters involving UACs, state juvenile court judges should consider that UACs are susceptible to victimization and are at great risk of becoming involved in delinquent behavior. They may be particularly susceptible to gang involvement or victimization by traffickers, which can in turn get them involved in a variety of delinquent activities, such as prostitution, theft, drug use, and drug sales.
Also, UACs who are runaways or truants may be at a high risk for victimization. In some states, the ability of the state juvenile court to hold those types of offenders in a secure facility may be limited by state law.
Under federal immigration law, a delinquency case can be the source of the required findings for SIJS eligibility. The procedure for making the findings may vary by state. Some states have provisions to treat certain cases as dual status cases, so the juvenile is considered both a delinquent and a dependent of the court. Other states may allow the delinquency judge to make the placement decision as well. Finally, some states may require that a separate dependency case be opened.
GuardianshipsAs previously noted, if a UAC is in the physical and legal custody of ORR, the state juvenile court needs the specific consent of ORR before it can make custody or placement decisions. Once the UAC is released to a sponsor, ORR no longer has care and custody over the UAC, and the state juvenile court does not need the consent of ORR to convert the placement to legal custody. Furthermore, the transfer of physical custody to a sponsor does not establish legal custody. That can be done only by a state court.
The state court in a guardianship case, which could be a probate, family, or juvenile court, qualifies as a court with juvenile jurisdiction for the purpose of making the findings for SIJS eligibility. A major issue with regard to petitions for guardianship in state probate and family courts is that in some jurisdictions those courts may not have the resources that state juvenile courts have, such as investigative resources provided by child protective services or a similar agency, for obtaining the evidence needed to justify the findings.
11
State courts need to prepare for an influx of UACs, which primarily includes enhanc-ing their operational capacity to process cases involving UACs. There is a strong need for education, data collection, and resources on this critical issue. The following are action steps that state courts can take to prepare for, and effectively adjudicate, these cases:
EDUCATE
State courts should develop continuing education programs for judges, court administrators, and court staff. The programs should include information on current trends involving UACs, federal immigration and applicable state laws, and opportunities for cross-training with state and local bar associations. The Center for Public Policy Studies (CPPS) and the National Center for State Courts (NCSC) have a free webinar13 available that provides additional background information on the UAC issue. This webinar could serve as a starting point for further education and training.
ACTION TEAMS
State courts should convene multi-disciplinary action teams at the state and local level to engage in UAC strategic planning. In addition to judges and court administrators, action teams should also include state and local bar associations, immigration attorneys, other justice system stakeholders, child welfare agencies, and other groups identified by the state courts as critical to strategic planning. Action teams should identify the characteristics of the UAC population and develop the roles and responsibilities of each partner agency.
RESOURCES
As part of assessing future trends involving UACs at the state and local level, the state courts and their partners should determine future resource requirements, such as the allocation of judicial officers and staff, interpreters, and court-appointed attorneys.
ENHANCE DATA COLLECTION
If possible, case management systems should be configured to track the number of cases involving UACs, time to disposition, dispositions, and any other data elements that would be useful to case tracking and reporting at both the state and local level.
VII. ACTION STEPS TO ADDRESS CASES INVOLVING UACs
12
ENDNOTES
1. The discussion in the Background section is based on information from the Office of Refugee Resettlement web site. See http://www.acf.hhs.gov/programs/orr/programs/ucs/about#stats
2. See http://www.sji.gov/articles.php?yr=2014&pg= unaccompanied_minors_trends and http://www.ncsc.org/sitecore/content/microsites/trends-2014/home/Monthly-Trends-Articles/Unaccompanied-Minors-in-State-Courts.aspx
3. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, § 235(2)(A).
4. See 8 U.S.C. 1101(a)(27)(J)(iii)(I); USCIS web page, Green Card Based on SIJ Status.
5. See http://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-states-unaccompanied-section-2. See also Byrne, O. and Miller, E., The Flow of Unaccompanied Children Through the Immigration System, Vera Institute of Justice (New York, 2012).
6. Statement by Mark Greenberg, Acting Assistant Secretary, Administration for Children and Families, U.S. Department of Health and Human Services, before the Committee on Homeland Security and Governmental Affairs, United States Senate, July 9, 2014.
7. See 8 U.S.C. § 1101(a)(27)(J).
8. See 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11.
9. See USCIS Guide: Special Immigrant Juvenile Status: Information for Juvenile Courts and 8 U.S.C. 1101(a)(27)(J).
10. 8 C.F.R. 204.11(a).
11. See USCIS Guide: Special Immigrant Juvenile Status: Information for Juvenile Courts.
12. Id.
13. Webinar: Crossing the Border: How the Unaccompanied Minor Crisis will Impact Your Court, 2014, http://icmelearning.com/crossing%20the%20border/lib/playback.html
The Intersection of Federal Immigration Law and State Law
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StatutoryFramework
I.FederalLaw
A.Section101(a)(27)(J)oftheImmigrationandNationalityActasAmendedbytheDecember2008TVPRAeffectiveMarch23,2009,whichiscodifiedat8U.S.C.A.§1101:
Definitions(27)Theterm“specialimmigrant”means—…(J)animmigrantwhoispresentintheUnitedStates--
(i)whohasbeendeclareddependentonajuvenilecourtlocatedintheUnitedStatesorwhomsuchacourthaslegallycommittedto,orplacedunderthecustodyof,anagencyordepartmentofaState,oranindividualorentityappointedbyaStateorjuvenilecourtlocatedintheUnitedStates,andwhosereunificationwith1orbothoftheimmigrant'sparentsisnotviableduetoabuse,neglect,abandonment,orasimilarbasisfoundunderStatelaw;(ii)forwhomithasbeendeterminedinadministrativeorjudicialproceedingsthatitwouldnotbeinthealien'sbestinteresttobereturnedtothealien'sorparent'spreviouscountryofnationalityorcountryoflasthabitualresidence;and(iii)inwhosecasetheSecretaryofHomelandSecurityconsentstothegrantofspecialimmigrantjuvenilestatus,exceptthat--
(I)nojuvenilecourthasjurisdictiontodeterminethecustodystatusorplacementofanalieninthecustodyoftheSecretaryofHealthandHumanServicesunlesstheSecretaryofHealthandHumanServicesspecificallyconsentstosuchjurisdiction;and(II)nonaturalparentorprioradoptiveparentofanyalienprovidedspecialimmigrantstatusunderthissubparagraphshallthereafter,byvirtueofsuchparentage,beaccordedanyright,privilege,orstatusunderthischapter;
B.8CFR204.11-Specialimmigrantstatusforcertainaliensdeclareddependentonajuvenilecourt(specialimmigrantjuvenile).
(a)Definitions JuvenilecourtmeansacourtlocatedintheUnitedStateshavingjurisdictionunder
Statelawtomakejudicialdeterminationsaboutthecustodyandcareofjuveniles.Prepared by Robin L. Rosenberg, Florida’s Children First, using materials from 13th Judicial summer intern Tisha DeAnne, Robert Latham of the University of Miami Children and Youth Law Clinic, and Adriana Dinis, Immigration Law Group of Florida.
The Intersection of Federal Immigration Law and State Law
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C.U.S.CitizenshipandImmigrationServicesMarch24,2009MemotoFieldStaffexplainedthe2008changes:
TheTVPRA2008amendedthedefinitionofa“SpecialImmigrantJuvenile”atsection101(a)(27)(J)oftheINAintwoways.First,itexpandedthegroupofalienseligibleforSIJstatus.AneligibleSIJaliennowincludesanalien:
• whohasbeendeclareddependentonajuvenilecourt;• whomajuvenilecourthaslegallycommittedto,orplacedunderthecustodyof,anagencyordepartmentofaState;or• whohasbeenplacedunderthecustodyofanindividualorentityappointedbyaStateorjuvenilecourt.
Accordingly,petitionsthatincludejuvenilecourtorderslegallycommittingajuveniletoorplacingajuvenileunderthecustodyofanindividualorentityappointedbyajuvenilecourtarenoweligible.Forexample,apetitionfiledbyanalienonwhosebehalfajuvenilecourtappointedaguardiannowmaybeeligible.Inaddition,section235(d)(5)oftheTVPRA2008specifiesthat,ifastateoranindividualappointedbythestateisactinginlocoparentis,suchastateorindividualisnotconsideredalegalguardianforpurposesofSIJeligibility.
ThesecondmodificationmadebytheTVPRA2008tothedefinitionofspecialimmigrantjuvenileconcernsthefindingsajuvenilecourtmustmakeinorderforajuvenilecourtordertoserveasthebasisforagrantofSIJstatus.Previously,thejuvenilecourtneededtodeemajuvenileeligibleforlongtermfostercareduetoabuse,neglectorabandonment.UndertheTVPRA2008modifications,thejuvenilecourtmustfindthatthejuvenile’sreunificationwithoneorbothoftheimmigrant’sparentsisnotviableduetoabuse,neglect,abandonment,orasimilarbasisfoundunderStatelaw.Inshort,theTVPRA2008removedtheneedforajuvenilecourttodeemajuvenileeligibleforlong-termfostercareandreplaceditwitharequirementthatthejuvenilecourtfindreunificationwithoneorbothparentsnotviable.IfajuvenilecourtorderincludesafindingthatreunificationwithoneorbothparentsisnotviableduetoasimilarbasisfoundunderStatelaw,thepetitionermustestablishthatsuchabasisissimilartoafindingofabuse,neglect,orabandonment.OfficersshouldensurethatjuvenilecourtorderssubmittedasevidencewithanSIJpetitionfiledonorafterMarch23,2009,includethisnewlanguage.(Emphasisintheoriginal.)
Thememocanbefoundathttps://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf
The Intersection of Federal Immigration Law and State Law
3
II.FloridaLaw
A.PrivateDependencyPetitionsPermitted.Fla.Stat.§39.501(1)“Allproceedingsseekinganadjudicationthatachildisdependentshallbeinitiatedbythefilingofapetitionbyanattorneyforthedepartment,oranyotherpersonwhohasknowledgeofthefactsallegedorisinformedofthemandbelievesthattheyaretrue.”B.PertinentDefinitionsFla.Stat.§39.01(15)“Childwhoisfoundtobedependent”meansachildwhoisfoundbythecourt:
(a) Tohavebeenabandoned,abused,orneglectedbythechild'sparentorparentsorlegalcustodians;
(b) Tohavebeensurrenderedtothedepartment,theformerDepartmentofHealthandRehabilitativeServices,oralicensedchild-placingagencyforpurposeofadoption;
(c) Tohavebeenvoluntarilyplacedwithalicensedchild-caringagency,alicensedchild-placingagency,anadultrelative,thedepartment,ortheformerDepartmentofHealthandRehabilitativeServices,afterwhichplacement,undertherequirementsofthischapter,acaseplanhasexpiredandtheparentorparentsorlegalcustodianshavefailedtosubstantiallycomplywiththerequirementsoftheplan;
(d) Tohavebeenvoluntarilyplacedwithalicensedchild-placingagencyforthepurposesofsubsequentadoption,andaparentorparentshavesignedaconsentpursuanttotheFloridaRulesofJuvenileProcedure;
(e) Tohavenoparentorlegalcustodianscapableofprovidingsupervisionandcare;
(f) Tobeatsubstantialriskofimminentabuse,abandonment,orneglectbytheparentorparentsorlegalcustodians;or
(g) Tohavebeensexuallyexploitedandtohavenoparent,legalcustodian,orresponsibleadultrelativecurrentlyknownandcapableofprovidingthenecessaryandappropriatesupervisionandcare.
(emphasizedsectionsarecommonlyusedwithimmigrantchildren)
(1)“Abandoned”or“abandonment”meansasituationinwhichtheparentorlegalcustodianofachildor,intheabsenceofaparentorlegalcustodian,thecaregiver,whilebeingable,hasmadenosignificantcontributiontothechild'scareandmaintenanceorhasfailedtoestablishormaintainasubstantialandpositiverelationshipwiththechild,orboth.Forpurposesofthissubsection,“establishormaintainasubstantialandpositiverelationship”includes,butisnotlimitedto,frequentandregularcontactwiththechildthroughfrequentandregularvisitationorfrequentandregularcommunicationtoorwiththechild,andtheexerciseofparentalrightsandresponsibilities.Marginaleffortsandincidentalortokenvisitsorcommunicationsarenotsufficienttoestablishormaintainasubstantialandpositiverelationshipwithachild.Thetermdoesnotincludeasurrenderednewborninfantasdescribedins.383.50,a“childinneedofservices”asdefinedinchapter984,ora“familyinneedofservices”asdefinedinchapter984.Theincarceration,repeatedincarceration,orextendedincarcerationofaparent,legalcustodian,orcaregiverresponsibleforachild'swelfaremaysupportafindingofabandonment.(10)“Caregiver”meanstheparent,legalcustodian,permanentguardian,adulthouseholdmember,orotherpersonresponsibleforachild'swelfareasdefinedinsubsection(47).Fla.Stat.Ann.§39.01(West)(47)“Otherpersonresponsibleforachild'swelfare”includesthechild'slegalguardianorfosterparent;anemployeeofanyschool,publicorprivatechilddaycarecenter,residentialhome,institution,facility,oragency;alawenforcementofficeremployedinanyfacility,service,orprogramforchildrenthatisoperatedorcontractedbytheDepartmentofJuvenileJustice;oranyotherpersonlegallyresponsibleforthechild'swelfareinaresidentialsetting;andalsoincludesanadultsitterorrelativeentrustedwithachild'scare.Forthepurposeofdepartmentalinvestigativejurisdiction,thisdefinitiondoesnotincludethefollowingpersonswhentheyareactinginanofficialcapacity:lawenforcementofficers,exceptasotherwiseprovidedinthissubsection;employeesofmunicipalorcountydetentionfacilities;oremployeesoftheDepartmentofCorrections.
The Intersection of Federal Immigration Law and State Law
4
CaseLawI.FloridaCasesDecidedPriortotheImmigrationSurgeS.H.v.DepartmentofChildrenandFamilies,880So.2d1279(Fla.4thDCA2004)[Affirmeddenialofprivatedependencypetition]Privatepetitionwasfiledonbehalfofchildallegingparentshadabandonedhim.ThepetitionstatedthattheparentsforcedchildtoleaveGuatemalainordertoworktosupporthisfamilyandafterhisarrivalintheU.S.parentsprovidednosupportbutmaintainedtelephonecontact.Childwaslivingwithuncle.Trialcourtdeniedthepetition.TheFourthDCAheldthatthepetitiononlyestablishedparent’ssentchildtoU.S.tolivewithuncle.Therewasnoproofthatuncle,whoqualifiesasacaregiverunderChapter39,hadabandonedthechild..F.L.M.v.Dep'tofChildren&Families,912So.2d1264(Fla.4thDCA2005)[Reversed,Caseremandedforentryofanorder,nuncprotunc,declaringthechilddependent.]Afterchild’sparentsdied,heleftGuatemalaandmovedtoFlorida.Atthetimeofhispetitionhehadnocaregiverlegallyresponsibleforhiswelfare.Thechildfiledapetitiontoadjudicatehimselfdependentinordertoapplyforspecialimmigrantjuvenilevisa.DCFrespondedthatthechildfitwithinthemeaningof“abandoned”sincehehadnoonetocareforhimorlegallyresponsibleforhim.Althoughthetrialcourtgrantedthepetitionattheadjudicatoryhearing,itlaterrefusedtosigntheorderanddeniedthedependencypetition.OnappealDCFreverseditsposition,itarguedthattherewereproceduraldeficienciesinthepetitionthatprecludedthereversal,thatthechilddidnotmeetthestatutoryrequirementtobefounddependent,andpublicpolicyshouldprecludechildrenwhoarenot“truly-needy”from
seekingdependencystatusforimmigrationpurposes.TheFourthDCAheldthat:1.DCFwaiveditsproceduralargumentsbyfailingtoraisethematthetrialcourt.2.TheAppellantwasnotabandonedbecausethestatutedefinedabandonedasthefailure,whilebeingable,toprovideaminorchildwithsupport;howevertheparentshereweredeceasedandunabletoprovidefortheirchild.3.ThechildfitwithinthemeaningofdependentunderSection39.01(14)(e),becauseAppellantwasaminorchildinFloridawithoutparentsorlegalguardianand4.IfachildqualifiesforadeclarationofdependencyundertheFloridastatutes,thechild'smotivationforseekingitisirrelevant.“Iffederallawgrantsarighttoalienchildrentoregularizetheirimmigrationstatusbyfirstobtainingastatecourtadjudicationofdependency,thenthereisnobasisforfailingtodeclareachilddependentsolongasheorshemeetsthestatutorycriteriafordependency.”D.C.F.v.K.H.,937So.2d807(Fla.5thDCA2006)[Reversedsummarydismissalofprivatedependencypetition]TheFifthDCAheldthatthetrialcourtviolatedtheappellant’srighttodueprocessbysuaspontesummarilydismissingthepetitionbeforetheappellantconcludedpresentingevidence.L.T.v.Dep'tofChildren&Families,48So.3d928(Fla.5thDCA2010)[Reverseddismissalofprivatedependencypetition,Caseremanded.]Child’sparent’sweredeceasedandafterbeingrescuedfromacapsizedboatoffthecoastof
The Intersection of Federal Immigration Law and State Law
5
Floridahewasplacedbyimmigrationauthoritieswithhisunclewhopetitionedthecourtforadeclarationofdependency.Thecourtgrantedlegalcustodytotheunclebutdeniedthedependencypetitionfindingthechild,whowas3daysshyofturning18wasnotdependentbecausehehadhisuncletocareforhim.TheFourthDCAheldthat:1.Atthetimeofthetrialthechildwasanorphanwithnocaregiverlegallyresponsibleforhiswelfare.2.Thecaregivingunclewasa“merevolunteerwithoutlegalappointment.”3.Thechildthereforemetthestatutoryrequirementsfordependency.4.Thecasewasnotmootdespitethechildturning18becauseithadtheeffectofcontinuingtodeprivehimofalegalbasisforadjustinghisimmigrationstatus.IntheInterestofT.J.,59So.3d.1187(Fla.3dDCA2011)[Reversedsummarydenialofprivatedependencypetitionremandedfordeterminationofdiligentsearch.]Child’smotherwasdeceasedandhisfather’swhereaboutswereunknown.Shewasresidingwithherauntatthetimethedependencypetitionwasfiled.Theauntdidnothaveajudiciallyconferredlegalstatusasthecustodianorguardian.Thetrialcourtdeniedthedependencypetitionandsuggestedthatafamilylaworderofcustodybeobtained.Italsodeniedtheamendedpetitiononthegroundthefatherwasnotserved,thoughdeclinedtoaddresstheaffidavitsofdiligentsearchthatwerefiled.TheThirdDCAheldthat:1.Thechildwaslivinginthestatewithoutaparentorlegalcustodianwhichstatedaprimafaciecasethatshewasdependent.2.Itwasunfairto
characterizeherpetitionas“backdoor”routetonaturalizationasitisa“legalbasisforregularizingachild’simmigrationstatus.”3.ThemajoritydesiredfurtherevidenceofdiligentsearchII.FloridaCasesDecidedAftertheImmigrationSurgeFirstDCADept.ofChildrenandFamiliesv.S.A.E.,184So.3d615,617(Fla.1stDist.App.2016)[Affirmingthedenialofthedependencypetitionevidencewasinsufficienttoestablishchild’sdependency].ThemotherfiledaprivatepetitionfordependencyinthecircuitcourtandsoughttohaveherchilddeclaredadependentchildduetoabandonmentbythefatherintheirnativecountryofHondurastwelveyearspriortothefinalhearing.TheFirstDCAfoundthattheonlyriskofimminentharmtothechildwasthepossibilityofdeportationandreturntoHondurasbyfederalauthorities,andnotanyharmcausedbyabuse,neglect,orabandonmentbyhismother,father,oranyothercaregiver.TheFirstDCAheldthattheuseofabandonmentbyoneparentinachild'scountryoforigin,withlittlepresenteffectonthechild,tosupportanadjudicationofdependencywasamisapplicationofthatstatuteleadingtoabsurdresults.Thecourtnotedthatapetitioner'sadmittedintenttouseanadjudicationofdependencytosupportfederalimmigrationproceedingsdoesnotprecludeapetitionerseekingsuchanadjudication.ThiscasewasfoundtobefactuallysimilartoInreB.Y.G.M.,176So.3d290(Fla.3dDCA2015);andInreK.B.L.V.,176So.3d297(Fla.3dDCA2015)(DCFappealingthetrialcourt'sadjudicationofdependencybasedonundisputedfacts).
The Intersection of Federal Immigration Law and State Law
6
InreY.V.,160So.3d576(Fla.1stDCA2015)[Trialcourt’sdismissalofdependencypetitionreversed,primafaciecaseofdependencyestablished,remandedforproceedings.]ChildsoughtdependencydeclarationonassertionthathewasabusedandneglectedbyhisparentsinHondurasandhadnoparentorlegalcustodianabletocareforhimThechildtraveledtotheU.S.byhimself,andwasplacedbyfederalauthoritieswithanuncle.Thetrialcourtdismissedchild’sprivatedependencypetitionbecausetheeventsgivingrisetothedependencypetitionoccurredinHondurasandbecauseitviewedthepetitionasanattempttocircumventfederalimmigrationlawandthecourtlackedjurisdiction.TheFirstDCAheldthat1.Thecircuitcourthadjurisdictionoverthecasebecausethechildwasnotinfederalcustody.2.NeitherFloridanorfederallawdirectsstatecourtstorejectdependencypetitionsmotivatedbyadesiretoobtainSIJS.3.Florida’sdependencylawistobeinterpretedliberallyanddoesnotrequirethattheallegedharmtothechildoccurwithinFlorida.4.WhereapetitionmeetsFloridadependencyrequirements,petitionerwasentitledtoahearing.4.Thepetition’sallegationsofabuseorabandonmentbytheparents§39.01(15)(a)andhavingnoparentorcustodytoprovidesupervisionorcare§39.01(15)(e)didnotrequireproofofsubstantialriskofimminentharm.SecondDCAPerCuriamAffirmances:IntheInterestofD.C.No.2D15-2332(Fla.2ndDCASeptember30,2015)[Childlivingwithuncle]IntheInterestofM.P.,No.2D15-2065(Fla.2ndDCASeptember25,2015)[Petitionerover18]
ThirdDCAInreF.J.G.M.,No.3D15-546(Fla.3dDCA2016)[Affirmingdenialofprivatedependencypetition]Childallegedthathewasabandonedatbirthbyhisfather.HismothercametotheU.S.whenhewastwo,leavinghiminthecareofafamilyfriend.EightyearslaterhetraveledtotheU.S.fromHonduras,andwasplacedbythefederalgovernmentwithhismother.Therewerenoallegationsofabuseorneglectbythemother.Trialcourtdeniedthepetitionafter7minutehearing.TheThirdDCAheldthat:1.Thechilddidnotqualifyasadependentwherehewasnotatriskofabusefromhismotherandabandonmentbyhisfatherwastooremoveintime.2.Thetrialcourt’sfailuretoconductanevidentiaryhearingwasnoterrorbecausethepetitionwasinsufficientonitsface.ThirdDCAurgedtrialcourtstoincludespecificfactualfindingsandlegalconclusions,findingthemhelpfulinallcasesandnecessaryinsome.Thedissenturgedreviewoftherecent“thoughtful”opinionsinotherstatesthatexaminedtheintersectionbetweenstatelawandimmigrationlaw.MostparticularlytheNewJerseySupremeCourtdecisioninH.S.P.v.J.K.,121A.3d849(N.J.2015)butalsoInreEstateofNinaL.exrel.Howerton,41N.E.3d930(Ill.App.Ct.2015);Simbainav.Bunay,109A.3d191(Md.Ct.Spec.App.2015).Italsonotesthelackofsupportforthemajority’sfindingthatlongtermabandonmentistooremoteasamatteroflaw.InreS.A.R.D.,182So.3d897(Fla.3d(DCA2016)[Affirmingdenialofprivatedependencypetition]S.A.R.D.assertedinhispetitionthathewas
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borninHondurasandlivedprimarilywithhismotheranduncleafterhisfatherabandonedhimwhenhewassevenyears.HeleftcametotheU.S.afterhisunclediedandhismotherbeganneglectinghim.Thedependencypetitionwasfiled9dayspriortohis18thbirthday.TheThirdDCAheldthat:1.Giventheproximitytohis18thbirthday,thechildwasnotinsubstantialriskofimminentabuseabandonmentorneglectbyhismother.2.Theabandonmentbyhisfatherwastooremotetobethebasisfordependency(notingthesimilaritywithO.I.C.L.v.DepartmentofChildren&Families,169So.3d1244,1247(Fla.4thDCA2015).ThecourtalsofoundthattheSIJprovisionsoftheImmigrationandNationalityactwereintendedtoprotectchildrenwhoenteredtheU.S.theirfamilies.InreB.R.C.M.,182So.3d749(Fla.3dDCA2015)December*FloridaSupremeCourtAcceptedJurisdictioninAugust2016*[Affirmingsummarydenialofprivatedependencypetition]B.R.C.M.wasborninGuatemalaandabandonedbybothhisfatherandmotherbythetimehewasfouryearsoldandwasraisedbyhisgrandmotheruntilhewasfourteen.Heleftbecausehisgrandmotherwastoooldtocareforhimandhisfearofgangs.HecametotheUSandwasplacedwithhisgodmotherandsoughtspecialjuvenileimmigrantstatus.TheThirdDCAheldthat:1.ThepurposeofthedependencyprovisionsinChapter39wastoprovideservicestochildrenwhoaretrulyabandoned,abusedorneglectedandnotjustpursuingSpecialJuvenileImmigrantStatus.2.Theabandonmentandresultingneglectbyfailingtomakearrangementsforhiscarewastooremoteintimetobeabasisfordependency.3.TherewasnoallegationthatB.R.C.M.wasabusedbyhisgodmother.4.AlthoughagodmotherisnotenumeratedasacaregiverinCh.39,thecourt“declinedtoassumethatthestatutewasmeanttoexclude
peoplenotspecificallyenumerated.:Thelengthydissentsetsforthacontrastingviewoftheroleofcourtsinimmigrationcases.Itfirmlyassertsthateachcasewarrantsindividualizedconsiderationandadjudicationratherthansummarydenial.InreB.Y.G.M.,2015WL4268719(Fla.3dDCA2015)(july)[PetitionforreviewbyFl.Sup.Ct.ispending][Affirmingdenialofprivatedependencypetition]B.Y.G.M.wasabandonedbyherfatherasaninfant.Whenshewasthree,hermotherleftherinthecareofhergrandparentsinElSalvadorandcametotheU.S.B.Y.G.M.fledElSalvadorbecausehercouldnotprotectherfromgangviolenceandharassment.Shecametolivewithhermother.B.Y.G.M.petitionedfordependencystatusonthegroundsthatshewasabandonedbyherfather.Onrehearing,sheadditionallyarguedthatthereisnoremotenesslimitationonapetitionforabandonmentandthatFloridalawallowsafindingofdependencybasedontheabandonmentofoneparentTheThirdDCAheldthat:1.Theabandonmentwastooremoteanddidnotcauseharm.2.Thechildisnotatsubstantialriskofimminentabuse,abandonmentorneglect.3.ThiscaseisdifferentthanY.V.asthechildisresidingwithhermother.InreK.B.L.V.,176So.3d.297,(Fla.3dDCA2015)July[Affirmingdenialofprivatedependencypetition]ThechildfiledaprivatepetitionallegingthathewasabandonedbyhisfatherandwenttotheUStolivewithhismother.TheThirdDCAfoundthat1.Abandonmentbythefatherwastooremoteintimeintheabsenceofacontinuingthreatofharm.2.Thechildwas
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safeandsecureinthecustodyofhismotherandnotatsubstantialriskofimminentabuse,abandonmentorneglect.PerCuriamAffirmances:W.O.V.v..Dept.ofChildrenandFamilies,No.3D16-8(Fla.3dDCA2016)InreD.A.M.,185So.3d535,536(n4)(Fla.3dDCA2015)S.F.A.C.v.Dep'tofChildren&Families,182So.3d745(Fla.3dDCA2015)PublishedDissent.InreE.P.N.,180So.3d249(Fla.3dDCA,2015)PublishedDissentH.D.C.H.M.v..Dept.ofChildrenandFamilies,176So.3d392(Fla.3d.DCA2015)M.J.M.L.v.DepartmentofChildren&FamilyServices,170So.3d931(Fla.3dDCA2015).InreJ.A.T.E.,170So.3d931(Fla.3dDCA2015)D.A.O.L.v.Dep'tofChildren&Families,170So.3d927(Fla.3dDCA2015)IntheInterestofW.A.Z.R.,87So.3d245(Fla.3dDCA2015)FourthDCAInreO.I.C.L.v.Dept.ofChildrenandFamilies,169So.3d1244(Fla.4thDist.App.2015).*CaseatissuebeforetheFloridaSupremeCourt.*[Affirmingdenialofdependencypetition]O.I.C.LallegedthathewasabandonedandneglectedbyhisparentsinGuatemala.HewaslivinginFloridawithanunclewhenhepetitionedfordependency.TheFourthDCAfoundthat:1.Theuncle’spresenceandcareforthechildprecludedafindingof
abandonmentandtherewerenoallegationsofabuseorneglectagainsttheuncle.2.Theallegationsabouttheparentsweretooremotetosupportthedependencypetitionwithoutashowingofacontinuingthreatofharm.3.Povertyisinsufficienttoconstituteneglectabsentevidencethattheparentshadtheabilitytocareforthechildbutrefusedtodoso.4.Thetrialcourthastheresponsibilitytoexaminepetitionscarefullyandnotdecidethemforthesakeofexpediencyorsimplicity.Thedissentnotesthattherewasnofindingthattheunclewasthelegalcustodian,thereforetheclaimthathehadnoparentorlegalcustodianshouldbeconsidereduponremand.PerCuriamAffirmances:R.J.Pv.Dep'tofChildren&Families,4D15-1306(Fla.4thDCAAugust12,2015)P.J.Pv.Dep'tofChildren&Families,4D15-1191(Fla.4thDCAJuly29,2015)
OtherStateResponsesI.SupremeCourtofNewJersey:H.S.P.v.J.K.,223N.J.196,121A.3d849(2015)opinionheld:
TheFamilyPartplaysacriticalroleinaminorimmigrant'sattempttoobtainSIJstatusbutthatroleiscloselycircumscribed.TheFamilyPart'ssoletaskistoapplyNewJerseylawinordertomakethechildwelfarefindingsrequiredby8C.F.R.§204.11.TheFamilyPartdoesnothavejurisdictiontograntordenyapplicationsforimmigrationrelief.Thatresponsibilityremainssquarelyinthehandsofthefederalgovernment.Nordoesithavethejurisdictiontointerpretfederalimmigrationstatutes.TheFamilyPart's
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roleintheSIJprocessissolelytoapplyitsexpertiseinfamilyandchildwelfarematterstotheissuesraisedin8C.F.R.§204.11,regardlessofitsviewastothepositionlikelytobetakenbythefederalagencyorwhethertheminorhasmettherequirements*201forSIJstatus.Tothatend,FamilyPartcourtsfacedwitharequestforanSIJpredicateordershouldmakefactualfindingswithregardtoeachoftherequirementslistedin8C.F.R.§204.11.Whenanalyzingwhetherreunificationwith“1orboth”parentsisnotviableduetoabuse,neglect,orabandonment,theFamilyPartshallmakeseparatefindingsastoeachparent,andthatdeterminationshallbemadebyapplyingthelawofthisstate.ThisapproachwillprovideUSCISwithsufficientinformationtoenableittodeterminewhetherSIJstatusshouldbegrantedordenied,inaccordancewiththestatutoryinterpretationoftheSIJprovisionappliedbythatagencyAccordingly,wereversetheAppellateDivision'sdecisioninH.S.P.andtheFamilyPart'sdecisioninK.G.Bothfailedtoaddressalloftherequirementsidentifiedin8C.F.R.204.11.ThepanelinH.S.P.alsoimproperlyappliedthelawofthechild'scountryoforiginratherthanthelawofthisstatetoaddresswhetherthejuvenilehadbeenabused,neglected,orabandonedinhisorherhomecountry.Weremandbothcasesforfurtherfindingsconsistentwiththisopinion.
II.MarylandLegislationH.B.315,signedintolawinApril2014,andgoesintoeffectinOctober2014AlteringthejurisdictionofanequitycourttoincludecustodyorguardianshipofanimmigrantchildpursuanttoamotionforSpecialImmigrantJuvenilefactualfindings
requestingaspecifieddetermination;anddefiningtheterm"child"tomeananunmarriedindividualundertheageof21yearsunderspecifiedcircumstances.Thebill,H.B.315wasbackedbyadiversecoalitionincludingtheMarylandLegalAidBureau,theMarylandOfficeofthePublicDefender,theHomelessPersonsRepresentationProject(HPRP),familylawattorneys,andchildwelfarerepresentatives.III.CaliforniaAssemblyBillNo.900,enactedasChapter694[ApprovedbyGovernorOctober09,2015.]THEPEOPLEOFTHESTATEOFCALIFORNIADOENACTASFOLLOWS:SECTION1.(a)TheLegislaturefindsanddeclaresallofthefollowing:(1)CalifornialawgrantsthesuperiorcourtsjurisdictiontomakejudicialdeterminationsregardingthecustodyandcareofchildrenwithinthemeaningofthefederalImmigrationandNationalityAct,includingthejuvenile,probate,andfamilycourtdivisionsofthesuperiorcourt.ThesecourtsareempoweredtomakethefindingsnecessaryforachildtopetitiontheUnitedStatesCitizenshipandImmigrationServicesforclassificationasaspecialimmigrantjuvenileunderfederallaw.(2)Specialimmigrantjuvenilestatus,underthefederalImmigrationandNationalityAct,offersinterimrelieffromdeportationtoundocumentedimmigrantchildrenunder21yearsofage,ifastatejuvenilecourthasmadespecificfindings.(3)Thefindingsnecessaryforachildtopetitionforclassificationasaspecialimmigrantjuvenileinclude,amongothers,afindingthatreunificationwithoneorbothparentsisnotviableduetoabuse,neglect,abandonment,orasimilarbasisunderstatelaw,andafindingthatitisnotinthechild’sbestinteresttobereturnedtohisorhercountryoforigin.(4)Despiterecentchangestolawthat
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eliminateambiguityregardingthejurisdictionofsuperiorcourtstomakethefindingsnecessarytopetitionforspecialimmigrantjuvenilestatus,misalignmentbetweenstateandfederallawcontinuestoexist.(5)Federallawallowsapersonunder21yearsofage,whootherwisemeetstherequirementsforspecialimmigrantjuvenilestatus,tofileforreliefasaspecialimmigrantjuvenile.InCalifornia,however,individualswhoarebetween18and21yearsofagehavelargelybeenunabletoobtainthefindingsfromthesuperiorcourtnecessarytoseekspecialimmigrantjuvenilestatusandthereliefthatitwasintendedtoaffordthem,solelybecauseprobatecourtscannottakejurisdictionofindividuals18yearsofageorolderbyestablishingaguardianshipoftheperson.Thisistruedespitethefactthatmanyunaccompaniedimmigrantyouthbetween18and21yearsofagefacecircumstancesidenticaltothosefacedbytheiryoungercounterparts.(6)GiventherecentinfluxofunaccompaniedimmigrantchildrenarrivingtotheUnitedStates,manyofwhomhavebeenreleasedtofamilymembersandotheradultsinCaliforniaandhaveexperiencedparentalabuse,neglect,orabandonment,itisnecessarytoprovideanavenuefortheseunaccompaniedchildrentopetitiontheprobatecourtstohaveaguardianofthepersonappointedbeyondreaching18yearsofage.Thisisparticularlynecessaryinlightofthevulnerabilityofthisclassofunaccompaniedyouth,andtheirneedforacustodialrelationshipwitharesponsibleadultastheyadjusttoanewculturalcontext,language,andeducationsystem,andrecoverfromthetraumaofabuse,neglect,orabandonment.Thesecustodialarrangementspromotepermanencyandthelong-termwell-beingofimmigrantchildrenpresentintheUnitedStateswhohaveexperiencedabuse,neglect,orabandonment.
(7)Guardianshipsofthepersonmaybenecessaryandconvenientfortheseindividualsbetween18and21yearsofage,althoughayouthforwhomaguardianhasbeenappointedretainstherightsthatanadultmayhaveunderCalifornialaw.(b)ItistheintentoftheLegislaturetogivetheprobatecourtjurisdictiontoappointaguardianforapersonbetween18and21yearsofageinconnectionwithaspecialimmigrantjuvenilestatuspetition.ItisfurthertheintentoftheLegislaturetoprovideanavenueforapersonbetween18and21yearsofagetohaveaguardianofthepersonappointedbeyond18yearsofageinconjunctionwitharequestforthefindingsnecessarytoenablethepersontopetitiontheUnitedStatesCitizenshipandImmigrationServicesforclassificationasaspecialimmigrantjuvenile.