Undocumented Youth and Family Law Proceedings. King County Bar Association Continuing Legal Education December 5, 2014

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1 Undocumented Youth and Family Law Proceedings King County Bar Association Continuing Legal Education December 5, 2014 Mary Van Cleve, Columbia Legal Services Zaida Rivera, Northwest Immigrant Rights Project Rebekah Fletcher, Kids in Need of Defense

2 Surge of Youth Family Law Cases Undocumented Youth (1) Children apprehended and deemed unaccompanied > detained by federal government > released to parent/relative/adult caretaker (2) Undocumented children who have never been apprehended > residing with parent/relative/caretaker Increased number of youth released WA, often NPC cases Also, recent Executive Order may lead to more family law cases.

3 Undocumented Youth may be eligible for Special Immigrant Juvenile Status (SIJS) Consult with immigration attorney (or referral from immigration attorney) to make sure SIJS is appropriate. SIJS is a nonimmigrant visa. It then allows qualifying youth to petition the federal government for lawful permanent residence (green card). Lawful permanent residence: protects against deportation, allows for work authorization, ID ( documented ), eligible for federal student financial aid, after 5 years of LPR can petition for citizenship.

4 First step in getting SIJS: State Court Findings State court order with predicate findings required before petitioning immigration authorities for SIJS status Any Washington state court with jurisdiction over the placement of a child can issue findings. Possible proceedings are: Dependency, TPR, NPC, Guardianship, Adoption, Delinquency, Dissolution/Legal Separation, Paternity/Parentage, Parenting Plan Modifications, DVPO s, CHINS and ARY.

5 SIJS State Court Findings Separate, predicate order with required findings recommended other pleadings not filed with visa petition. Child must be under State court jurisdiction at time of filing, AND at the time visa is adjudicated unless jurisdiction ended on account of age (e.g., at age 18).

6 What are SIJS State Court Findings? Court has jurisdiction to make judicial determination about the custody and care of a juvenile; Under 21; unmarried; Youth is declared dependent or legally committed to or placed under custody of an individual or entity appointed by the court; It is not in youth s best interest to be returned to his or her parents previous country of nationality or last habitual residence; and Reunification with one or both of the parents is not viable due to abuse, neglect or abandonment or similar basis found in state law.

7 Closer Look: It is not in youth s best interest to be returned to his or her parents previous country of last habitual residence Generally, the same factors considered in other best interest determinations under state law. Other factors: comparing access to food, shelter, and education in the U.S. and country of origin. Also of importance may be the ability of the youth s parents to keep the youth safe if return home is to an area of gang violence.

8 Closer Look: Reunification with one or both of the parents is not viable due to abuse, neglect, or abandonment or similar basis found in state law. SIJS findings may be obtained if youth is living with one parent. Abuse, neglect, abandonment or similar basis (e.g., no parent available dependency finding) is viewed under WA law, even if it might seem culturally appropriate in the home country. Under federal law: reunification not viable is not further defined; no requirement that parental rights terminated or that reunification will never be viable.

9 Sources of Law 8 USCA 1101(a)(27)(J) Implementing regulations at 8 CFR (new regulations pending since 9/11) Congress deferred to state courts to make the predicate findings

10 Nonparental Custody Cases Potential custodian is the client, not the youth. Parents may be amenable to joining the petition, making service easier (and allowing for waiver of final order. In this situation, a finding of parental unsuitability is not necessary.) Potential custodians or other relatives may be able to provide declarations to help establish record for SIJS findings. If parents not joining, pleadings that support a finding that the parents are unsuitable custodians may dovetail with those for obtaining SIJS findings.

11 Service of Process RCW 4.28 addresses personal services, service by mail, publication Civil Rule 4 (i) Alternative provisions for Service in a foreign country List of authorized methods 4(i)(G) as directed by order of the court Must comply with international treaties Reasonably calculated under all circumstances to give actual notice Motion for Order Approving Alternative Method of Service

12 Translation Issues Court forms available in Spanish Motion for payment of interpreter? RCW (3) cost born by non-english speaking person initiating case, unless indigent Interpreter resources Washington State Court Interpreter Program Translator Database Washington State Coalition for Language Access Interpreter and Translator Directory Private interpreting services Evergreen Interpreting and Translating Services (telephonic, inperson, or document translation)

13 Contact Information Mary Van Cleve Zaida Rivera 206 Rebekah Fletcher