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Unaccompanied Children: The

Journey from Home to Appearing

before the Immigration Court in the

United States

An IAN webinar, presented jointly with CLINIC and KIND

March 23, 2011

Panelists

• Tanisha Bowens, Sr. Project Coordinator, Pro Bono Project for Kids (CLINIC)

• Sarah Bronstein, Attorney, Training and Legal Support (CLINIC)

• Diana Castaneda, New York National Legal Services Director (KIND)

• Alice Fitzgerald, National Attorney Coordinator for Pro Bono Recruitment (KIND)

• Natalie Sullivan, Director (IAN)

Picture by Ehow.com

Mariana’s Story

Data source: Vera Institute of Justice UCPBP: Unaccompanied Children Pro Bono Pilot Project

Guatemala

(N=3,556)

31%

Honduras

(N=3,553)

30%

El Salvador

(N=3,120)

26%

Mexico

(N=847)

7%

Other

(N=491)

4%

Ecuador

(N=268)

2%

Demographics of Children Served: NationalityFor Children Provided Initial UCPBP Services Between April 1, 2006

and September 30, 2008, N=11,852

Data sources: Office of Refugee Resettlement and Vera Institute of Justice UCPBP: Unaccompanied Children Pro Bono Pilot Project

Ages 13 to

17

(N=10,414)

90%

Ages 1 to 12

(N=1,050)

9%

Ages 18 or

older

(N=146)

1%

Demographics of Children Served: AgeFor Children Provided Initial UCPBP Services Between April 1, 2006

and September 30, 2008, N-11,852

Data Source: Office of Refugee Resettlement

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The Journey: home to border

– Poverty

– War

– Persecution

– Gang recruitment

– Family or

government neglect

– Abuse and physical violence

– Human trafficking

- Reunify with family

- Education and employment

opportunities

The Journey: home to borderWhat starts the journey? The Journey: home to border

• Victimization along the way:

– Violent crimes:

• rape

• assault

• robbery

• human trafficking

– Smuggling debts

The Journey: home to borderWhat can happen along the way?

The Journey: home to border

• Other complications:

– Pregnant and parenting teens

– Mental health or medical needs

– Criminal histories

– Crime or trafficking victims

The Journey: home to border The Journey: home to border

More than 8,000 children travel to the

United States alone on an annual

basis and end up in immigration

custody.

Who are they?

Where do they come from?

Why do they come here?

Statistics

Children in Custody

Photo credits (left to right): Latinalista.com, Southernstudies.com, Losangelesjuveniledefense.com

Arrested at the border Internal Enforcement Action

Juvenile Adjudications and contact with law enforcement

Children in Custody Children in Custody

Photo credit (left to right): Crpcorp.info, Latinalista.net

Children in Custody

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Children in Custody

• UAC (unaccompanied child) must be

placed in the least restrictive setting that is in the best interest of the child.

• ORR may consider:

– Danger to self

– Danger to community and

– Risk of flight

Children in Custody Children in Custody

ORR-DUCS has 3 levels of detention:

1. Shelter Care

– No fences

– No restraints unless minor is a threat to others or herself

2. Staff-Secure Care

– Shelter with fence

3. Secure Care

– Similar to juvenile hall

Children in Custody

Release from ORR custody

• ORR may release child to reunify with a

“sponsor”

– Preferably a parent or adult family member

– Certain undocumented relatives may sponsor

• Child still in removal proceedings

– No right to appointed counsel

Release from ORR custody

• U.S. law requires all people entering the United States to present themselves for inspection at a Port of Entry upon arriving to the U.S.

• People who present themselves for inspection but do not have the proper documents, OR who cross into the U.S. at a place other than a designated port of entry and are detained by Department of Homeland Security, may also be deported immediately.

• Children (other than Mexican or Canadian) who are caught entering the U.S. without a parent or legal guardian may NOT be deported without first having their case heard by an Immigration Judge.

Why is my Client- Child in

Removal Proceedings?

• Administrative Hearings

• Initiated by DHS by the filing of the Notice to Appear (NTA)

• DHS is represented by counsel in court

• Overseen by Administrative Law Judges

• Several Courtroom “Players”

• Two types of hearings - Master Calendar and the Individual Hearing

What are Removal Proceedings?

• DHS- Dept. of Homeland Security

– Citizenship & Immigration Services (CIS)

– Immigration & Customs Enforcement (ICE)

– Customs & Border Protection (CBP)

– ICE Officers, Trial Attorneys (TAs), Asylum

Office Interviewers, Service Centers

• DOJ - Dept. of Justice

– Executive Office for Immigration Review (EOIR)

– Board of Immigration Appeals (BIA)

– Immigration Judges (IJs)

• HHS- Dept. of Health &

• Human Services (HHS)

– Office of Refugee Resettlement (ORR)

– Unaccompanied Refugee Minors (URM)

– Div. Of Unaccompanied Children’s Services (DUCS)

– Shelter Workers, Therapists, Field Coordinators

• State Courts

– Juvenile Court: family court, juvenile delinquency, probate court

Who are the Players?

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• Enter your Appearance

• Request an adjournment, if necessary

• Do the pleadings

• State forms of relief your client will be seeking

• File applications for relief

• Update the court re: status of on-going proceedings

• Schedule the individual hearing

The Master Calendar Hearing

• This is the “trial”

• Present documentary evidence (prior to hearing)

• Present witnesses (your client; others if possible)

– Direct examination

– Cross examination by ICE counsel

• Closing statement

• Generally, Judge issues decision immediately upon

conclusion of the hearing

The Individual Hearing

Common Forms of Relief for Children

• Asylum

• Voluntary Departure

• Special Immigrant Juvenile Status (SIJS)

• U status: victims of serious crime

• T status: trafficking victims

• Temporary Protected Status

Common Forms of Relief for

Children

• 8 USC §1158(b)(1), INA § 208(b)(1) governs asylum

Definition of Refugee

• Any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protections of, that country because of persecutionOR a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

-8 USC §1101(a)(42), INA §101(a)(42)

Asylum

• Recruitment as child soldier or gang member

• Child forced into prostitution or marriage

• Female genital mutilation (FGM)

• Political activity of child or his/her parent

• Child targeted based on sexual orientation

• Vulnerability as street child

• Victim of domestic violence or gang violence

• Other forms of persecution or abuse

Potential Asylum Claims for Children

• An alternative way to leave the United States without receiving an order of deportation or removal.

• Child can arrange his/her own departure within the time period given by the Judge.

• Maximum time allowed:– 120 days from master calendar hearing

– 60 days from individual hearing

• May have to post a bond, demonstrate travel document (passport), or present proof of travel arrangements

• Should obtain proof of timely departure

• Failure to depart voluntarily will result in a removal order being issued; penalties ensue.

Voluntary Departure

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Special Immigrant Juvenile Status

• Children who have been the victims of

abuse abandonment or neglect

• Pathway to legal permanent residence

• State court must make “SIJS findings”

• File I-360 application with USCIS

• Adjustment adjudicated by USCIS or IJ

Special Immigrant Juvenile Status U Status

• U non-immigrant status:

– Victims of certain crimes listed in INA

– Helpful in investigation or prosecution of crime

– Pathway to legal permanent residence

U Status

T Status

• T non-immigrant status:

– Victims of severe form of trafficking

– Complied with law enforcement

• unless under age 18

– Removal would cause extreme hardship

– Pathway to legal permanent residence

T Status Temporary Protected Status

• For citizens of designated countries

• Present in the U.S. on required date

• Natural disasters, civil war

• Some have tried “derivative” TPS for children

• Temporary status, not a pathway to

permanent residence

Temporary Protected Status

• Under current U.S. law, there is no right to appointed counsel in immigration

removal proceedings, which are considered civil, rather than criminal in

nature, even if the respondent is a child.

What Difference Does a Lawyer

Make?• An adversarial system that includes the government’s

lawyer and the Immigration Judge

• Pleadings to the allegations and charges set out in the Notice to Appear (the charging document)

• Making requests for relief under U.S. immigration law

• Filing appropriate forms and supporting documents in English by certain deadlines

• Meeting the burden of proof in an adversarial hearing

• Trying to understand the nature of the proceedings, as well as the consequences of the Immigration Judge’s Order

A CHILD WITHOUT AN ATTORNEY IN

IMMIGRATION COURT MUST FACE THE FOLLOWING ALONE:

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• Children who proceed without an

attorney are three times more likely to

be deported and sent back to

uncertain and often perilous fates.

• No child should have to face

immigration court alone.

Why do we need volunteers?

• Programs like KIND and CLINIC help

children find pro bono attorneys in law firms, corporations and elsewhere in the

legal community.

• We need compassionate and committed

people to help these children. It’s an opportunity to change the life of a child

forever.

Volunteers (cont.)

• Answer the child’s questions about the legal

proceeding

• Address the child’s fears

• Explain the legal options

• Prepare application(s) for relief

• Accompany/represent the child in court

The Role of the Advocate

By working with an unaccompanied child, an

attorney can:

• Make sure the child understands the legal proceedings and the available legal options

• Make it easier for the Judge to evaluate the

case by presenting a well-researched, well-documented application for relief

• Ensure that each child appearing in

Immigration Court receives fair treatment

Affecting the Outcome:

• KIND matches children in proceedings with pro bono attorneys and offers the attorney training and support

• KIND has offices in seven cities, has partnered with more than 100 major law firms and corporations

• KIND cities: Baltimore, Boston, Houston, Los Angeles, New York City, Newark, Washington, DC

Getting Involved

• KIND hosts trainings about the immigration process and legal remedies. No immigration

experience required; KIND has trained more than 2,000 attorneys.

• KIND’s staff of Pro Bono Coordinators in the various sites provides ongoing support and mentorship to pro bono attorneys through the

duration of the cases.

Training and Support

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• Contact one of KIND’s Pro Bono Coordinators http://www.supportkind.org/about-us/contact-us.aspx

• Contact Alice Fitzgerald, National Attorney Coordinator for Pro Bono Recruitment afitzgerald@supportkind.org

MAKE A DIFFERENCE IN THE LIFE OF A CHILD

*Visit www.cliniclegal.org/pro-kids for complete case acceptance criteria.

Forms of Relief Served by the

National Pro Bono Project for

Children

IAN Resources

• Visit the IAN Immigrant Children’s Issues library for comprehensive resources on:

– Children and Asylum

– Children in Detention

– Children and Immigration Enforcement

– Children in Removal Proceedings

– And More

• Join the discussion on Children’s Issues on the IAN Community Forum

Join the Immigration Advocates Network

Join a community of over 4,000

advocates dedicated to protecting

and promoting the rights of

immigrants in the United States.

To learn more, visit

www.immigrationadvocates.org