Representing Immigrant Children

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Representing Immigrant Children

• Midwest Immigrant Human Rights Center
• Holland Knight
• April 21, 2005

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MIHRCs Pro Bono Childrens Program

• The Midwest Immigrant Human Rights Center
  (MIHRC), a program of Heartland Alliance for
  Human Needs Human Rights, is a non-profit,
  immigrant legal aid organization.
• MIHRC provides direct service to and advocacy on
  behalf of the most impoverished and needy child
  refugees, asylum seekers and immigrants.

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National Center for Refugee Immigrant Children

• Partnership of USCRI, AILA and HK
• Based in Washington DC
• Refers cases to MIHRC referrals to other
  jurisdictions

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Who are MIHRCs child clients?

• Immigrant children and youth who have suffered
  persecution, abuse, abandonment, family violence,
  forced labor, violent crime
• Detained non-detained
• From around the world
• Residing/detained in IL, IN, MI, WI

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What we do

• Case screening, assessment and acceptance
• Placement with pro bono attorneys
• Case management
• Attorney support and technical assistance

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Immigrant Children in the Midwest

• Karen Donoso Stevens
• MIHRC Childrens Attorney

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Definition Unaccompanied Minor

• Under 18 years of age
• No parent or legal guardian at time of arrest by
  immigration
• MIHRC also works with youth up to 21.

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If a minor is detained

• In federal custody case before the Immigration
  Court
• International Childrens Center, Chicago
• Shelter-care facility minimum security
• SW Indiana Youth Village, Vincennes, IN
• Secure facility

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Child arrested DHS

• Where is the child living? What is happening in
  
• the case?

ORR
DOJ EOIR
Intl Childrens Center
Immigration Court
Board of Immigration Appeals (BIA)
Transfer to other facility
Release to relative
Federal Court
Return to home country
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Adults in a detained childs life

• Shelter staff
• Assist with family reunification
• Provide some counseling
• Very limited confidentiality (mental health)
• Child Protection Advocate
• Friend to child
• No confidentiality
• ORR Field Coordinator
• Liaison b/w shelter and ORR
• No confidentiality
• Attorney

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Going to court

• Once every 2-3 months
• ICC provides transportation
• Detained childrens docket before Immigration
  Judge Jennie Giambastiani

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If a minor is not detained

• May have been released from federal custody or
  may never have had contact with immigration
  authorities
• Living with a relative
• Living at a youth residential facility
• DCFS ward

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Adults in a non-detained childs life

• Relative/guardian/sponsor
• No confidentiality
• Attorney

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Immigration Remedies for Children

• Elissa Steglich
• MIHRC Managing Attorney

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Most common remedies

• Asylum
• Special Immigrant Juvenile Status
• TU Visas
• VAWA
• Voluntary Departure

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United States Immigration Proceedings
Child arrested/referred into immigration
proceedings

• Citizenship Immigration Services
• SIJ
• VAWA
• Asylum
• T / U

Master Calendar Hearing
Merits Hearing Asylum / Adjustment (for green
card)
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Asylum Definition

• Any person who is outside any country of such
  persons nationality . . . and who is unable or
  unwilling to return to, and is unable or
  unwilling to avail himself or herself of the
  protection of that country because of persecution
  or a well-founded fear of persecution on account
  of race, religion, nationality, membership in a
  particular social group, or political opinion.
  8 U.S.C. 1101(a)(42)(A).
• International standard UN Protocol Relating to
  the Status of Refugees, Art I(2)

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Asylum Elements

• Well Founded Fear
• of Persecution
• Based on following factor(s)
• Race
• Religion
• Nationality
• Political Opinion
• Membership in a Particular Social Group
• Nexus
• Government is persecutor or cannot control
  persecutors

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Well Founded Fear

• reasonable probability
• Lower than preponderance of the evidence
• Has objective and subjective components
• Applicant must have fear (subjective)
• Fear must be reasonable, i.e., well founded
• one in ten probability
• INS v. Cardoza-Fonseca, 480 U.S. 421 at 431.

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Well Founded Fear

• Matter of Mogharrabi, 19 I N. Dec. 439 (BIA
  1987)
• Possesses belief or characteristic persecutor
  seeks to overcome
• Know or likely to become aware of characteristic
• Capability to punish
• Inclination to punish

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Persecution

• Poverty, victim of crime, bad luck not enough
• Behavior that threatens death, imprisonment, or
  the infliction of substantial harm or suffering.
  
• Sayaxing v. INS, 179 F.S3d 515, 519 (7th Cir.
  1999).
• Hallmarks of persecution are
• detention, arrest, interrogation, prosecution,
  imprisonment,
• illegal searches, confiscation of property,
  surveillance, beatings, or torture
• Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.
  1995)

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Race, Religion, Nationality

• Race Broad meaning
• Religion
• Nationality
• Not just citizenship
• May be ethnic or linguistic group
• May overlap with race
• E.g., Bosnian-Muslim religion, nationality
  Dinka Sudan race, nationality, religion

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Political Opinion

• Actual
• Imputed
• E.g., daughter of a political activist persecuted
  for the activities of her father

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Membership in a Particular Social Group

• common, immutable characteristic
• Matter of Acosta, 19 I N Dec. 211, 233 (BIA
  1985)
• members of the group either cannot change, or
  should not be required to change because it is
  fundamental to their individual identities or
  consciences
• E.g., street children in Guatemala

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Importance of Past Persecution

• Legal presumption of future persecution
• 8 C.F.R. 208.13
• DHS can rebut with proof by a preponderance of
  the evidence of changed circumstances

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One-Year Filing Deadline

• MUST file application within one year of most
  recent arrival to the United States
• INA 208(a)(2)(B) 8 C.F.R. 208.4 (a)
• Limited Exceptions
• INA 208(a)(2)(D) 8 C.F.R. 208.4(a).
• Changed circumstances
• Exceptional circumstances (e.g. illness,
  incapacity, minor status)

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Childrens Asylum Case Resources

• INS Childrens Asylum Guidelines
• http//uscis.gov/graphics/lawsregs/handbook/10a_Ch
  ldrnGdlns.pdf
• EOIR Memorandum on Procedures in Childrens Cases
• http//www.usdoj.gov/eoir/efoia/ocij/oppm04/04-07.
  pdf
• ABA Standards for Unaccompanied Alien Children in
  the US
• http//www.abanet.org/immigration/home.html
• Asylumlaw.org

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Special Immigrant Juvenile Visa

• Under 21
• Has been abused, abandoned or neglected by
  parents
• Determined eligible for long-term foster care
  by juvenile court
• Reunification with parents not feasible
• Not in childs interest to return to country of
  origin

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SIJ Process

• Step 1 (Detained cases only) Express Consent
  from DHS to access juvenile court protection
• Step 2 Juvenile Court takes jurisdiction of
  child
• Step 3 Visa application filed with CIS
• Step 4 Green card/LPR status granted by
  Immigration Court or CIS

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SIJ Resources

• DHS Memoranda
• http//uscis.gov/graphics/lawsregs/handbook/SIJ_Me
  mo_052704.pdf
• http//uscis.gov/graphics/lawsregs/handbook/AdjMem
  0135Pub.pdf

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T U Visas, VAWA

• T Has been subjected to forced labor or
  commercial sexual activity in the US
• U Has been a victim of a violent crime (e.g.
  domestic violence, sexual assault, kidnapping) in
  US cooperating with law enforcement
• VAWA Has been victim of domestic violence and
  parent abuser is resident or US citizen

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When no relief is availableVoluntary Departure
v. Removal

• In lieu of removal
• Child pays cost of return
• Ability to return to the US legally

• Government pays cost of return
• 10 year bar on reentry
• criminal penalties/ fine upon reentry

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Effective Representation

• Uzoamaka Nzelibe
• Northwestern Children Family Justice Center

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Perspectives from the Bench

• The Hon. Jennie Giambastiani
• Immigration Judge

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THANK YOU!

• Midwest Immigrant Human Rights Center
• Mary Meg McCarthy
• Elissa Steglich
• Karen Donoso Stevens
• [phone]
• kstevens_at_heartlandalliance.org