Immigrants in Juvenile and Family Courtrooms: Overcoming Legal Barriers and Inequities

National Association of Counsel for Children October 21, 2010

Developed by: Florida Immigrant Advocacy Center & University of Miami School of Law’s Children & Youth Law Clinic

To analyze specific case studies in which undocumented or mixed status families encounter legal and cultural barriers in juvenile and family courts.

To review immigration legal status options that may be available to undocumented immigrants.

To present best practice models to assist undocumented and mixed status families in juvenile and family courts.

To propose changes to federal law and local practices to overcome barriers and inequities faced by undocumented and mixed status families in juvenile and family courts.

Presentation Goals

Case Study #1: Case of Carmen & Marina- immigration status; mixed status families- case plan compliance- reputable immigration legal assistance- immigration remedies for families

Case Study #2: Case of Carlos- confidentiality of child welfare proceedings- best interests of (immigrant) children- immigration remedies for children- immigration system for children

Case Studies

Case Studies cont… Case Study #3: Case of Mercedes -ASFA compliance issues -Bias and discrimination toward undocumented

parents and families -Incarceration and deportation proceedings -Language barriers -Lack of services and relative placements

Undocumented and Mixed Status Families in the Juvenile and Family Courtroom

Best Practices--Protecting All Children, Without Regard To Immigration Status: A Case Study in Florida

Potential Immigration Remedies For Immigrants In Court Proceedings

Partnering With Immigration Legal Services Providers

Reforming practices and ASFA Guidelines that hinder the abilities of undocumented families to overcome barriers and inequities such as limited availability of bilingual services, inappropriate TPRs, delays in locating kinship caregivers, etc.

Presentation Overview

Every year, a significant number of immigrant children enter the dependency system due to abuse, abandonment, and neglect. Some of these children have legal immigration status, some do not, and others may have no documentation to prove their status.

In addition to children, parents and caregivers, as well as prospective family caregivers, may not have legal immigration status in the United States.

There are a growing number of children in “mixed status” households, where family members do not share the same immigration status.

Inequities Faced by Immigrants in the Child Protection Systems

I

What does it mean to be “undocumented”?

What are the consequences of being “undocumented”?

What about for undocumented children?

Immigration 101

One who is present in the U.S. without lawful immigration status or without proof of lawful status.

Examples:One who entered the U.S. on a visa that has

expired.One who crossed the U.S. border without

detection.One who obtained lawful immigration status and

subsequently lost his/her status.One who obtained lawful immigration status but

does not have proof of status.

What Does It Mean To Be “Undocumented”?

Federal Immigration Law states that an undocumented child may be subject to:

Detention by federal immigration authorities.Deportation to their home countries.

Please note: a child/adult may have a legal remedy to remain in the U.S., despite how they entered the country or their current immigration status.

What Are The Consequences Of Being

Undocumented?

Children may be detained and deported by federal immigration authorities, even if:The juvenile court has ordered the child to live in a

licensed foster home, relative placement or shelter care.

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, does not have any ties with the home country, or speak the language of the home country.

Severe Consequences For An Undocumented Child

Severe ConsequencesFor Undocumented Families

Parents may be detained and deported, and may permanently lose parental rights after removal to home countries, even if they have not abandoned, abused or neglected their children.

ASFA’s expedited permanency process interacts with aspects of U.S. immigration law to affect decision- making for immigrant families.

ASFA guidelines place added burdens on undocumented families in meeting case plan requirements.

Children are disadvantaged by culturally biased practices (e.g., juvenile court decisions and child protection system practices that prevent their placement with kinship caregivers).

History of Alien Child Rule and Statute Lessons learned:

◦ The appropriate role of the court is to protect the best interests of the child.

◦ Obtaining lawful immigration status is critical for children to achieve permanency and to be protected from deportation.

◦ Developing a relationship with a reputable immigration legal service provider is critical for the immigrant, the court, and child welfare professionals.

Protecting All Children, Without Regard To Immigration Status: A case study in Florida

“This rule is intended to resolve any question… relating to both the investigation of allegations of abuse, neglect or abandonment when the alleged victim is an undocumented alien child…[to] apply to all children in Florida without regard to alienage or immigration status…”

developed by Florida Immigrant Advocacy Center & University of

Miami School of Law's Children & Youth Law Clinic

Florida Alien Child Rule, Fla. Admin. Code 65C-9.001

Florida Statute, 39.5075(2) Whenever a child is adjudicated dependent, the department or community-based care provider shall determine whether the child is a citizen of the United States. The department or community-based care provider shall report to the court in its first judicial review concerning the child whether the child is a citizen of the United States and, if not, the steps that have been taken to address the citizenship or residency status of the child.

Florida’s Alien Child Statute

Creating a Right to Counsel for Undocumented Abused or Neglected Children in Immigration Proceedings Florida Statute 39.5075(5) is the first statute in the

nation that requires the provision of counsel for children involved in the immigration system, obligating the state to prepare and file a petition for Special Immigrant Juvenile Status for children eligible for that status.

Legislation was motivated by concerns that dependent immigrant children were aging out of foster care and ending up homeless, destitute and unable to pay taxes as a result of their irregular immigration status and consequent lack of access to employment and government services.

A child with lawful immigration status may:

◦ Work lawfully in the U.S.◦ Obtain a state-issued ID or Driver’s License◦ Obtain a social security number◦ Receive public benefits, such as Medicaid◦ Receive financial assistance for college education

Why Is It Important For An Undocumented Child To

Obtain Lawful Immigration

Status?

Potential Remedies for Undocumented Immigrants in

Juvenile and Family Courts Special Immigrant Juvenile Status Relief under the Violence Against Women Act

(VAWA) U visa T visa Asylum-related relief Derivative status through parents

Special visa for vulnerable immigrant children: who have been declared dependent by a juvenile court; where reunification with one or both parents is not

viable due to abuse, abandonment, neglect or other similar basis under state law; and

where it would not be in the child’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.

Immediately eligible for legal permanent residency

Cannot assist parents with immigration status

Special Immigrant Juvenile (SIJ) Status

A “juvenile court” means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. In many states, this could be a dependency case, delinquency or probate/guardianship. See 8 C.F.R. § 204.11(a).

The juvenile court may commit the child to care of state child welfare authorities, an individual, or an entity.

Dependent on a Juvenile Court

Provides immigration remedy for children who have been abused by a parent or step-parent. The abusive parent or step-parent must be a lawful permanent resident or United States citizen.

Also, an immigration remedy for a parent abused by their lawful permanent resident or U.S. citizen spouse.

Relief under the Violence Against Women Act (VAWA)

For (child or adult) victims of certain serious crimes. Allows one to become eligible for lawful permanent residency after 3 years.

Basic requirements for victimized individual:Suffered substantial physical or mental abuse as

having been victim of certain crimes;Demonstrates that s/he possesses knowledge of

the criminal activity; andCertification from federal, state, local authority

with power to investigate criminal activity (note: does not require criminal prosecution to occur)

Child welfare authorities and state court judges are authorized to sign U visa certifications.

U Visa

Preserving the Parent-Child Relationship Bias and Misperception in the Child Welfare

System Towards Undocumented Immigrant Parents.

Rights in the Parent-Child Relationship Are Not Diminished by Deportation.

Exploring all Options for Children of Undocumented Immigrant Parents to Maintain Relationships with Parents and Other Family Members, including Reunification with Parents in Home Country after Deportation.

Requires communicating and evaluating options across linguistic, cultural, and geographic borders.

Requires social service and family courts to commit resources and question existing routines.

Suggests a need to modify ASFA timelines to allow exceptions in the event of complicated immigration cases.

Preserving Family Rights Across Borders and Within the U.S.

developed by Florida Immigrant Advocacy Center & University of

Miami School of Law's Children & Youth Law Clinic

Examples: Local immigration legal service providers Local legal aid agencies Law school legal clinics National organizations,

◦ e.g., American Immigration Lawyers Association, American Bar Association

Local bar associations

Partnering with immigration legal services

providers

Criminal Issues Aging OutChild is in

immigration proceedings

Consult a competent immigration attorney!

◦ Michelle Abarca or Deborah LeeFlorida Immigrant Advocacy Center(305) 573-1106mabarca@fiacfla.org dlee@fiacfla.org

◦ Bernard P. PerlmutterChildren & Youth Law ClinicUniversity of Miami School of Law(305) 284-3123bperlmut@law.miami.edu

For Further Technical Assistance: