RECOMMENDATIONS FOR SIJS STATE COURT PREDICATE ORDERS IN CALIFORNIA 1 October 2015

Transcription

1 RECOMMENDATIONS FOR SIJS STATE COURT PREDICATE ORDERS IN CALIFORNIA 1 Octber 2015 In light f increased scrutiny f Special Immigrant Juvenile Status (SIJS) 2 state curt predicate rders by U.S. Citizenship and Immigratin Services, advcates are advised t include a brief summary f the factual basis supprting the eligibility findings fr SIJS within the state curt predicate rder. The fllwing are recmmendatins fr what infrmatin t include in state curt predicate rders riginating ut f family curt custdy cases, prbate/guardianship cases, and dependency and delinquency cases in Califrnia, including sample language. Suggested Language fr SIJS Predicate Orders in Family Curt Custdy Cases The Request fr Order Regarding Minr s Eligibility fr Special Immigrant Juvenile Status came n fr hearing in Dept. [NUMBER] f the abve entitled curt n [DATE] at [TIME] befre the Hnrable [JUDGE]. Petitiner appeared and was represented by cunsel. [Respndent als appeared.] The curt finds that [NAME] was brn in [LOCATION] n [DATE], and that [he/she] is a citizen and natinal f [COUNTRY]. The curt further finds that this curt has jurisdictin under Califrnia law t make judicial determinatins abut the care and custdy f juveniles, as a family law curt in [COUNTY], [STATE]. The minr has been legally cmmitted t, r placed under the custdy f an individual r entity appinted by a State r juvenile curt lcated in the United States, in that this curt granted minr s [mther/father] sle legal and physical custdy f the minr. The minr remains under this curt s jurisdictin. The curt further finds that reunificatin f the minr with ne r bth f [his/her] parents is nt viable due t [abuse, neglect, abandnment, r a similar basis fund under Califrnia law]. 1 The Immigrant Legal Resurce Center is a natinal, nnprfit resurce center that prvides legal trainings, educatinal materials, and advcacy t advance immigrant rights. The missin f the ILRC is t wrk with and educate immigrants, cmmunity rganizatins, and the legal sectr t cntinue t build a demcratic sciety that values diversity and the rights f all peple. Fr the latest versin f this dcument, please visit Fr questins regarding the cntent f this guide, please cntact Rachel Prandini at rprandini@ilrc.rg. Legal Services fr Children (LSC) was funded in 1975 as ne f the first nn-prfit law firms in the cuntry t prvide free legal representatin and scial wrk services t children and yuth and has been representing SIJS eligible yuth in San Francisc fr the past 25 years. LSC als hsts the Bay Area/NrCal SIJS Taskfrce t prvide supprt and training t ther attrneys representing SIJS-eligible yuth. Fr questins, please cntact Hayley Upshaw at Hayley@lsc-sf.rg. Katie Annand, Law Offices f Katie Annand, and Kate Manning, Senir Attrney at Legal Advcates fr Children and Yuth bth cntributed significantly t this guide, which culd nt have been written withut their expertise. 2 Fr a brief intrductin t Special Immigrant Juvenile Status and seeking SIJS findings in Califrnia curts, see ILRC, Special Immigrant Juvenile Status (SIJS) Primer: Hw t Seek SIJS Findings in Califrnia Superir Curts, Immigrant Legal Resurce Center 1

2 IDENTIFY WHETHER REUNIFICATION IS NOT VIABLE DUE TO ABUSE, NEGLECT, ABANDONMENT AND/OR A SIMILAR BASIS UNDER STATE LAW. In cnsidering which grund(s) t include, cnsider definitins f abuse, neglect, abandnment and ther similar bases under state law including: Abuse: Physical harm inflicted nnaccidentally (Welf. & Inst. Cde 300(a)); Victim f sexual trafficking (Welf. & Inst. Cde 300(a)); Sexual abuse (Welf. & Inst. Cde 300(d)); Act f cruelty (Welf. & Inst. Cde 300(i)); Abuse defined bdily injury, sexual assault, etc. (Fam. Cde 6203); Histry f abuse (Fam. Cde 3011(b)); Histry f sexual abuse (Fam. Cde 3030(a)); Dmestic vilence (Fam. Cde 6211); Criminal child abuse (Penal Cde , , , 273.5) Neglect: Cnduct f parent resulting in serius emtinal damage (Welf. & Inst. Cde 300(c)); Harm as a result f failure r inability t supervise r prtect (Welf. & Inst. Cde 300(b)); Neglect/cruel treatment (Fam. Cde 7823(a)); Criminal child neglect (Penal Cde 270, ) Abandnment: Child left withut prvisin fr supprt (Welf. & Inst. Cde 300(g)); Child left in the care f ne parent, with failure by ther parent t prvide supprt fr 1 year, r withut cmmunicatin frm the ther parent, with intent t abandn (Fam. Cde 7822(a)(3)); Death, inability r refusal t take custdy, r abandnment (Fam. Cde 3010(b)); Criminal child abandnment (Penal Cde 270) Similar basis: Death (leaves the child withut any prvisin fr supprt - Welf. & Inst. Cde 300(g)); Finding that placement with a parent wuld be detrimental t the child s health, safety, r welfare (Fam. Cde 3041); Other emerging arguments? See als: Case law n custdy determinatins under Califrnia law WITH 2-3 SENTENCES DESCRIBING THE FACTUAL BASIS FOR MINOR S INABILITY TO REUNIFY WITH MOTHER/FATHER, FOR EXAMPLE: Specifically, minr s father abandned her at the age f [ ]. Minr s father has nt prvided any financial r emtinal supprt since that time, nr has the father attempted t cntact minr in the last [ ] years; r Specifically, minr s father was physically and emtinally abusive t the minr. The father hit the minr with a belt n a weekly basis, leaving bruises and welts n the minr s bdy. Further, the father repeatedly tld the minr that she was gd fr nthing. The curt further finds that it is nt in the minr s best interest t return t [his/her] previus cuntry f natinality, [COUNTRY]. INCLUDE 2-5 SENTENCES DESCRIBING THE FACTUAL BASIS FOR WHY RETURN TO COUNTRY OF ORIGIN IS NOT IN MINOR S BEST INTEREST, LOOKING AT FACTORS SUCH AS: Best interests under Califrnia law (Fam. Cde 3011): health, welfare, safety, amunt and nature f cntact with parents, histry f abuse, dmestic vilence, substance abuse, etc. Abuse, abandnment, r neglect by a parent r ther family member in hme cuntry 2015 Immigrant Legal Resurce Center 2

3 Child s physical safety in the U.S. versus hme cuntry Gang vilence r threats made against the child in the hme cuntry Child s cmmunity and family ties in the U.S. Custdial parent s ability and willingness t prvide care fr the child in the U.S. versus availability f adult caretaker in the hme cuntry Accessibility f medical, educatinal r scial services in the U.S. versus in the hme cuntry Child s fear f retaliatin by abusive family members in hme cuntry Fr example: The minr des nt have any family wh can care fr him in [COUNTRY]. His father was abusive and neglectful. The minr has n ther family members in [COUNTRY] able r willing t prvide care and custdy. Further, minr s well-being was threatened by gangs n multiple ccasins. He was assaulted by gang members cming hme frm schl, and verbally threatened that he wuld be killed if he did nt jin the gang n three ccasins. Client is safe in his mther s care and custdy and is attending schl in the United States. Suggested Language fr SIJS Predicate Order in Guardianship/Prbate Curt Prceedings Cmplete GC-224 In Attachment 5, include a brief summary stating the factual basis fr each finding: IDENTIFY WHETHER REUNIFICATION IS NOT VIABLE DUE TO ABUSE, NEGLECT, ABANDONMENT AND/OR A SIMILAR BASIS UNDER STATE LAW. In cnsidering which grund(s) t include, cnsider definitins f abuse, neglect, abandnment and ther similar bases under state law, including: Abuse: Physical harm inflicted nnaccidentally (Welf. & Inst. Cde 300(a)); Victim f sexual trafficking (Welf. & Inst. Cde 300(a)); Sexual abuse (Welf. & Inst. Cde 300(d)); Act f cruelty (Welf. & Inst. Cde 300(i)); Abuse defined bdily injury, sexual assault, etc. (Fam. Cde 6203); Histry f abuse (Fam. Cde 3011(b)); Histry f sexual abuse (Fam. Cde 3030(a)); Dmestic vilence (Fam. Cde 6211); Criminal child abuse (Penal Cde , , , 273.5) Neglect: Cnduct f parent resulting in serius emtinal damage (Welf. & Inst. Cde 300(c)); Harm as a result f failure r inability t supervise r prtect (Welf. & Inst. Cde 300(b)); Neglect/cruel treatment (Fam. Cde 7823(a)); Criminal child neglect (Penal Cde 270, ) Abandnment: Child left withut prvisin fr supprt (Welf. & Inst. Cde 300(g)); Child left in the care f a nn-parent fr 6 mnths withut any prvisin fr supprt, r withut cmmunicatin frm the parent(s), with intent t abandn (Fam. Cde 7822); Death, inability r refusal t take custdy, r abandnment (Fam. Cde 3010(b)); Criminal child abandnment (Penal Cde 270) 2015 Immigrant Legal Resurce Center 3

4 Similar basis: Death (leaves the child withut any prvisin fr supprt - Welf. & Inst. Cde 300(g)); Finding that placement with a parent wuld be detrimental t the child s health, safety, r welfare (Fam. Cde 3041); Other emerging arguments? See als: Case law n dependency determinatins under Califrnia law WITH 2-3 SENTENCES DESCRIBING THE FACTUAL BASIS FOR MINOR S INABILITY TO REUNIFY WITH MOTHER/FATHER, FOR EXAMPLE: The minr is unable t reunify with his father due t abuse and abandnment. The father physically abused the child by hitting him with his hands and belt, and then abandned the child at the age f [ ]. Further, the minr is unable t reunify with his mther due t neglect, in that his mther failed t prtect the minr frm the abuse perpetrated by his father. The minr is unable t reunify with his mther due t abandnment. The mther abandned the minr when he was [ ] years ld. Since that time, the mther has failed t prvide fr the minr s financial r emtinal supprt. Specifically, the minr s mther abandned the child at the age f [ ] and has nt cmmunicated with the child since that time r prvided any financial supprt. In additin, the minr s father was abusive and neglectful t the child, in that he physically abused the minr n an almst daily basis, beating the child with a stick, and frcing the child t leave schl and begin wrking in the fields at the age f [ ]. INCLUDE 2-5 SENTENCES DESCRIBING THE FACTUAL BASIS FOR WHY RETURN TO COUNTRY OF ORIGIN IS NOT IN MINOR S BEST INTEREST, LOOKING AT FACTORS SUCH AS: Best interests under Califrnia law (Fam. Cde 3011): health, welfare, safety, amunt and nature f cntact with parents, histry f abuse, dmestic vilence, substance abuse, etc. Abuse, abandnment, r neglect by a parent r ther family member in hme cuntry Child s physical safety in the U.S. versus hme cuntry Gang vilence r threats made against the child in the hme cuntry Child s cmmunity and family ties in the U.S. Ability and willingness f guardian t prvide care fr the child in the U.S. (including authrity t prvide fr medical, educatinal, mental health and ther needs) versus availability f adult caretaker in the hme cuntry Accessibility f medical, educatinal r scial services in the U.S. versus in the hme cuntry Child s fear f retaliatin by abusive family members in hme cuntry Fr example: The minr des nt have any family wh can care fr her in [COUNTRY]. Her mther abandned her, and her father was abusive and neglectful. The minr has n ther family members in [COUNTRY] able r willing t prvide care and custdy. Further, Client s well-being 2015 Immigrant Legal Resurce Center 4

5 was threatened by gangs n multiple ccasins. She was assaulted by gang members cming hme frm schl, and verbally threatened that she wuld be killed if she did nt jin the gang n three ccasins. It is nt in the minr s best interest t return t [COUNTRY]. The minr has n ne t care fr him in the hme cuntry. The minr was threatened by [ ] when he lived in [COUNTRY], and was assaulted by the same gang n tw ccasins. It is in the minr s best interest t remain in the United States, where he is safe in the custdy f his guardian and attending high schl. Suggested Language fr SIJS Predicate Order in Dependency/Delinquency Prceedings Cmplete JV-224 In Attachment 4, include a brief summary stating the factual basis fr each finding: IDENTIFY WHETHER REUNIFICATION IS NOT VIABLE DUE TO ABUSE, NEGLECT, ABANDONMENT AND/OR A SIMILAR BASIS UNDER STATE LAW. Fr yuth in dependency prceedings, yu shuld generally be citing the grund(s) that are in the dependency petitin that the Curt has fund true under Welfare and Institutins Cde Sectin 300. In delinquency prceedings, when cnsidering which grund(s) t include, cnsider definitins f abuse, neglect, abandnment and ther similar bases under state law including: Abuse: Physical harm inflicted nnaccidentally (Welf. & Inst. Cde 300(a)); Victim f sexual trafficking (Welf. & Inst. Cde 300(a)); Sexual abuse (Welf. & Inst. Cde 300(d)); Act f cruelty (Welf. & Inst. Cde 300(i)); Abuse defined bdily injury, sexual assault, etc. (Fam. Cde 6203); Histry f abuse (Fam. Cde 3011(b)); Histry f sexual abuse (Fam. Cde 3030(a)); Dmestic vilence (Fam. Cde 6211); Criminal child abuse (Penal Cde , , , 273.5) Neglect: Cnduct f parent resulting in serius emtinal damage (Welf. & Inst. Cde 300(c)); Harm as a result f failure r inability t supervise r prtect (Welf. & Inst. Cde 300(b)); Neglect/cruel treatment (Fam. Cde 7823(a)); Criminal child neglect (Penal Cde 270, ) Abandnment: Child left withut prvisin fr supprt (Welf. & Inst. Cde 300(g)); Child left in the care f a nn-parent fr 6 mnths withut any prvisin fr supprt, r withut cmmunicatin frm the parent(s), with intent t abandn (Fam. Cde 7822(a)(2)); Child left in the care f ne parent, with failure by ther parent t prvide supprt fr 1 year, r withut cmmunicatin frm the ther parent, with intent t abandn (Fam. Cde 7822(a)(3)); Death, inability r refusal t take custdy, r abandnment (Fam. Cde 3010(b)); Criminal child abandnment (Penal Cde 270) Similar basis: Death (leaves the child withut any prvisin fr supprt - Welf. & Inst. Cde 300(g)); Finding that placement with a parent wuld be detrimental t the child s health, safety, r welfare (Fam. Cde 3041); Other emerging arguments? See als: Case law n dependency determinatins under Califrnia law 2015 Immigrant Legal Resurce Center 5

6 WITH 2-3 SENTENCES DESCRIBING THE FACTUAL BASIS FOR MINOR S INABILITY TO REUNIFY WITH MOTHER/FATHER, FOR EXAMPLE: Minr s [mther/father] [abused/abandned/neglected] the minr in that [track the language that was sustained in the dependency petitin as it pertains t each parent: e.g., The child is in the jurisdictin f the curt withut prvisin and supervisin. The mther failed t prtect the child in that she allwed the child t leave [cuntry] withut apprpriate prvisin and supervisin. The alleged father used physical means t discipline the child and has anger management prblems fr which he requires assessment and treatment. ] Nte: if yu need t prvide mre infrmatin than is in the petitin, yu can submit a separate case summary r declaratin t USCIS. The minr has been cmmitted t the [care, custdy and cntrl f the Alameda Cunty prbatin department] and it has been determined that he cannt be reunified with his [mther/father] due t [abuse/neglect/ abandnment/a similar basis under state law]. Specifically, the minr s [mther/father/parents] abandned the child at the age f [ ] and [has/have] failed t prvide any financial r emtinal supprt since that time. In additin, the child s [mther/father] had been physically abusive prir t abandning the child, hitting him with a belt and hands n a regular basis. INCLUDE 2-5 SENTENCES DESCRIBING THE FACTUAL BASIS FOR WHY RETURN TO COUNTRY OF ORIGIN IS NOT IN MINOR S BEST INTEREST, LOOKING AT FACTORS SUCH AS: Best interests under Califrnia law (Fam. Cde 3011): health, welfare, safety, amunt and nature f cntact with parents, histry f abuse, dmestic vilence, substance abuse, etc. Abuse, abandnment, r neglect by a parent r ther family member in hme cuntry Child s physical safety in the U.S. versus hme cuntry Gang vilence r threats made against the child in the hme cuntry Child s cmmunity and family ties in the U.S. Ability and willingness f ne parent/fster parent/guardian/ther t prvide care fr the child in the U.S. versus availability f adult caretaker in the hme cuntry Accessibility f medical, educatinal r scial services in the U.S. versus in the hme cuntry Child s fear f retaliatin by abusive family members in hme cuntry Fr example: It is nt in the child s best interest t return t [COUNTRY]. The child has n ne t prvide care and custdy fr him in [COUNTRY], as he was abandned by his bilgical parents and has n ther relatives willing r able t prvide care and custdy. Further, the child s wellbeing was threatened in [COUNTRY], in that he was threatened by gangs n [ ] ccasins. Rather, it is in the child s best interest t 2015 Immigrant Legal Resurce Center 6

7 remain in the United States where he is receiving services frm the curt and attending high schl. It is nt in the child s best interest t return t [COUNTRY]. The child was brught t the United States by his parents at the age f 4 and has n memry f [COUNTRY] and n immediate family t care fr him there. He is receiving supprtive services under the Curt s supervisin and is attending high schl with a plan t graduate Immigrant Legal Resurce Center 7