1 / 35

Representing Immigrant Children

Representing Immigrant Children. Midwest Immigrant & Human Rights Center Holland & Knight April 21, 2005. MIHRC ’ s Pro Bono Children ’ s Program.

blade
Download Presentation

Representing Immigrant Children

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Representing Immigrant Children Midwest Immigrant & Human Rights Center Holland & Knight April 21, 2005

  2. MIHRC’s Pro Bono Children’s 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.

  3. National Center for Refugee & Immigrant Children • Partnership of USCRI, AILA and H&K • Based in Washington DC • Refers cases to MIHRC; referrals to other jurisdictions

  4. Who are MIHRC’s 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

  5. What we do… • Case screening, assessment and acceptance • Placement with pro bono attorneys • Case management • Attorney support and technical assistance

  6. Immigrant Children in the Midwest Karen Donoso Stevens MIHRC Children’s Attorney

  7. 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.**

  8. If a minor is detained… • In federal custody; case before the Immigration Court • International Children’s Center, Chicago • Shelter-care facility; minimum security • SW Indiana Youth Village, Vincennes, IN • Secure facility

  9. Child arrested DHS ORR Where is the child living?What is happening in the case? DOJ: EOIR Int’l Children’s Center Immigration Court Board of Immigration Appeals (BIA) Transfer to other facility Release to relative Federal Court Return to home country

  10. Adults in a detained child’s 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

  11. Going to court… • Once every 2-3 months • ICC provides transportation • Detained children’s docket before Immigration Judge Jennie Giambastiani

  12. 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

  13. Adults in a non-detained child’s life • Relative/guardian/sponsor • No confidentiality • Attorney

  14. Immigration Remedies for Children Elissa Steglich MIHRC Managing Attorney

  15. Most common remedies • Asylum • Special Immigrant Juvenile Status • T&U Visas • VAWA • Voluntary Departure

  16. 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”)

  17. Asylum: Definition • “[A]ny 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 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)

  18. 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

  19. “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.

  20. “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

  21. “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)

  22. 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]

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

  24. 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

  25. 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

  26. 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)

  27. Children’s Asylum Case Resources • INS Children’s Asylum Guidelines • http://uscis.gov/graphics/lawsregs/handbook/10a_ChldrnGdlns.pdf • EOIR Memorandum on Procedures in Children’s 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

  28. 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 child’s interest to return to country of origin

  29. 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

  30. SIJ Resources DHS Memoranda • http://uscis.gov/graphics/lawsregs/handbook/SIJ_Memo_052704.pdf • http://uscis.gov/graphics/lawsregs/handbook/AdjMem0135Pub.pdf

  31. 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

  32. When no relief is available…Voluntary 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

  33. Effective Representation Uzoamaka Nzelibe Northwestern Children & Family Justice Center

  34. Perspectives from the Bench The Hon. Jennie Giambastiani Immigration Judge

  35. THANK YOU! Midwest Immigrant & Human Rights Center Mary Meg McCarthy Elissa Steglich Karen Donoso Stevens (312) 660-1305 kstevens@heartlandalliance.org

More Related