1 Of Catholic Charities Atlanta or Rebeca E. Salmon, Esq. A Salmon Firm, LLC ICAP Contract Attorney Jessica Bartelt, Esq. Catholic Charities Atlanta ICAP Staff Attorney Legalization Remedies for Undocumented Children and Families CASA Training, April 2011
2 T nonimmigrant status for victims of Human Trafficking U nonimmigrant status for victims of crimes Violence Against Women Act (VAWA) relief for domestic violence victims Special Immigrant Juvenile Status (SIJ) for child abuse, abandonment and neglect victims...what remedies are there?
3 Immigrants can be particularly vulnerable to crimes like human trafficking, domestic violence and child abuse Language barrier, separation from family and friends, lack of understanding of US laws, fear of deportation, fear of law enforcement, cultural differences Congress created several forms of immigration relief that are available to undocumented immigrants who become victims
4 Provides immigration protection to victims of human trafficking Congress wanted to aid law enforcement in investigating and prosecuting human trafficking by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution What is trafficking? Modern day form of slavery migrant workers, sweatshops, sex trade, domestic servitude T Nonimmigrant Status (T visa)
5 Trafficking v. Smuggling Purpose Smuggling Obtain illegal entry into the US Trafficking Recruiting, transporting, harboring or receipting persons by force or coercion for the purpose of exploitation Consent Consent to be smuggled May or may not have consented, or initial consent rendered meaningless by coercive or abusive actions of the traffickers Result Ends with arrival into the US Involves ongoing exploitation
6 In order to be eligible for a T visa a victim must: Be a victim of a severe form of trafficking in persons. Be physically present in the United States. Comply with any reasonable requests for assistance in the investigation or prosecution (or be under the age of 18 or cannot participate due to trauma). Suffer extreme hardship involving unusual and severe harm upon removal from the United States. Eligibility Requirements
7 Can apply for family members Eligible to work in the US 4 year duration of status (extensions are available) May adjust status to lawful permanent resident Benefits
8 Provides immigration protection to victims of certain types of crimes Congress wanted to aid law enforcement in investigating and prosecuting crime by providing a way for undocumented immigrant victims to remain in the US to assist in an investigation or prosecution U Nonimmigrant Status (U visa)
9 What crimes qualify? Rape Involuntary servitude Torture Slave trade Trafficking Kidnapping Incest Unlawful criminal restraint Domestic violence False imprisonment Sexual assault Blackmail Abusive sexual conduct Extortion Prostitution Manslaughter Sexual exploitation Murder Female genital mutilation Felonious assault Being held hostage Witness tampering Peonage Obstruction of justice *Includes attempts, conspiracy, or solicitation. *Includes any similar activity where the nature and elements of the unlisted crime are substantially similar.
10 In order to be eligible for a U visa a victim must: Be a victim of qualifying criminal activity and suffered substantial physical or mental abuse as a result of the crime. Possess information about the qualifying criminal activity. Have been, is being, or is likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity. Be a victim of criminal activity that violated a U.S. law. Eligibility Requirements
11 Can apply for family members Eligible to work in the US 4 year duration of status (extensions are available) Can Adjust status to lawful permanent resident Benefits
12 Provides immigration relief to victims of domestic violence Congress recognized that immigrant victims of domestic violence may remain in an abusive relationship because immigration status is often tied to their abuser. VAWA is a self-petitioning relief that removes control from the abuser and allows the victim to submit his or her own application that are filed without the abuser s knowledge or consent. Violence Against Women Act (VAWA)
13 Who may file? Spouses - The abused spouse of a USC/LPR (child may be included as a derivative beneficiary) Children - The abused child of a USC/LPR Including: The spouse of a USC/LPR whose child has been abused may file a self-petition based on the abuse of the child. In this case, the parent files based on abuse of the child, but both parent and child benefit. Parents The abused parent of a USC (added by VAWA 2005) VAWA immigration relief applies equally to women and men (this gender neutrality was reiterated by VAWA 2005) Who Qualifies?
14 Is or was married to USC or LPR Is child of USC or LPR Is parent of USC Marriage was in good faith Subjected to battery or extreme cruelty during the marriage Resides or Resided with the abuser Good moral character Eligibility Requirements
15 Placed in deferred action to prevent removal from the US Can work in the US Changes to the abuser s immigration status will not affect the victim s self-petition Remarriage after approval does not affect status Can adjust status to lawful permanent resident Benefits
16 Protection for children who do not have lawful status and who have been abused, abandoned or neglected in the U.S. or abroad. Applies to children who have just crossed the border as unaccompanied minors. Applies to children who were brought here by family members and grew up in the United States. This individual form of protection. This status requires interplay of federal immigration law, international treaty law and 50 different state child welfare codes. What is Special Immigrant Juvenile Status (SIJS)?
17 The Homeland Security Act of 2002 ( HSA ) reorganized federal responsibilities for juvenile aliens. Prior to the HSA, the former INS was responsible for apprehending and detaining all juvenile aliens. The Homeland Security Act of 2002 created the Department of Homeland Security ( DHS ). DHS has assigned juvenile responsibilities to the Bureaus of Immigration and Customs Enforcement ( ICE ) and Customs and Border Protection ( CBP ). Both were given responsibility for apprehending, processing, and transporting all juvenile aliens. DHS is also responsible for caring and housing accompanied juvenile aliens. Office of Refugee Resettlement ( ORR ), a section of the U.S. Department of Health and Human Services, was assigned responsibility for caring and housing unaccompanied juvenile aliens who are detained by DHS pending resolution of immigration cases enforced by DHS. FEDERAL RESPONSIBILITES FOR JUVENILE ALIENS
18 In 1990, Representative Morrison introduced legislation in the House of Representatives (H.R. 4300) that created SIJS. This became law through the Immigration Act of 1990 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) made major changes to SIJS eligibility, changing the language needed in state juvenile court orders for SIJS eligibility. Notably, it also 1) created 180-day timeline for SIJS petitions to be adjudicated and 2) sought to prevent ageouts; as long as the child files while s/he is under a valid juvenile court order (in Georgia, by age 18). BRIEF HISTORY OF SIJS: IMMIGRATION AND NATIONALITY ACT AND THE TVPRA
19 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 Section 235 of TVPRA Effective date: March 23, 2009 SIJS must be adjudicated within 180 days! Prevents age-outs File by 18- age frozen Still in proceedings grandfathered (effective December 23, 2008) Changes the Juvenile Court Order requirements from long term foster care to reunification with 1 or both parents not viable
20 TVRPA Clarified intentions of Congress in protecting vulnerable foreign born children and enhanced efforts to combat trafficking and ensure safe repatriation when appropriate Secretary of State shall negotiate agreements between the U.S. and contiguous countries with respect to repatriation procedures No child shall be returned to the child s country of nationality or of last habitual residence unless returned to appropriate employees or officials [through proper diplomatic channels] Implement best practices to ensure safe and sustainable repatriation and reintegration Determinations include assessment of country conditions through Department of State s Country Reports on Human Rights Practices and the Trafficking in Person s Report
21 Sec 235(d)(4)(A) provides: STATE REIMBURSEMENTS!! Increases access to federal funds for state agencies providing services under section 501(a) of Refugee Education Assistance Act of 1980 Makes eligible for placement and services under INA 412(d), in parity with refugee children Title IV federal financial assistance Sec 235(d)(4)(B) provides: DFCS REIMBURSEMENTS!! [s]ubject to the availability of appropriations, the federal government shall reimburse the state for state foster care funds expended on behalf of children granted Special Immigrant Juvenile Status. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
22 BASIC LAW OF SIJS: FIVE BASIC REQUIREMENTS
23 Under the age of 21 While the federal eligibility criteria extend to age 21, in the state of Georgia, juvenile court extends to age 18. It may be possible to raise arguments for extension of jurisdiction in special cases. TVRPA resolved this REQUIREMENT ONE
24 Unmarried A child s having his/her own children is not a bar to SIJS. REQUIREMENT TWO
25 Deprived under State Law Declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State (INA 101(a)(27)(J)) Deprived under Georgia Law Child could be in Independent Living Program, long-term foster care placement, Permanent Guardianship situation, group home, placed with non-parent relative or living with court-appointed guardians. REQUIREMENT THREE
26 Reunification with parent not viable Whose reunification with 1 or both of the immigrant s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. (INA 101(a)(27)(J)) Does not require the court to address both parents, one will do Caution: if one parent still caring for child not going to work! Does not require termination of parental rights REQUIREMENT FOUR
27 Best interest to remain in current placement It has been determined in administrative or judicial proceedings that it would not be in the child s best interest to return to her home country or last habitual residence REQUIREMENT FIVE
28 The child must remain under juvenile court jurisdiction for the entire time that the immigration applications are pending. (8 CFR (c)(5)) TVPRA should address this CAUTION
29 1. State Dependency Proceedings 2. File Immigration paperwork ( 1-step ) 3. Child will have two appointments with Immigration 1. Biometrics appointment 2. Adjustment of Status interview before USCIS officer 4. LPR ( green card granted) -- within 180 days of filing 4. Age 18 and if LPR 5 years -- apply for citizenship OVERVIEW OF THE SIJS PROCESS: NOT IN REMOVAL
30 1. Concurrently -- Child must attend ALL Immigration Hearings -- Dependency Proceedings in State Court 2. File Immigration paperwork ( 1-step ) and file motion with Immigration Court to end removal proceedings 3. Child will have two appointments with Immigration 1. Biometrics appointment 2. Adjustment of Status interview before USCIS officer 4. LPR ( green card granted) -- within 180 days of filing 4. Age 18 and if LPR 5 years -- apply for citizenship OVERVIEW OF THE SIJS PROCESS: IN REMOVAL PROCEEDINGS
31 Prepare well in advance Know your child Know your juvenile court Immigration Attorney is crucial! Keep options open T- visa U- visa VAWA SIJS Practical Pointers
32 Ahmed from Ethiopia abused by brother, made straight A s in high school and offered numerous scholarships Bessy from Honduras sold to drug cartel Esau from Guatemala fled hunger and neglect Maria from Mexico placed in DFCS care after getting involved with gangs Ines from El Salvador- threatened by gangs, fled while pregnant Luz from Mexico- beaten by her mother and mother s boyfriend we just want to feel safe
33 To be alone. To be alone and lost. To be alone and lost in a foreign country. To be alone, abandoned or abused, lost and in a foreign country. And to be a child.
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