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Child Attorney Trial Notebook for Deprivation Cases in Georgia’s Juvenile Courts |
Mary
Hermann Child Attorney Consultant Carl Vinson Institute of Government |
For
print copies, please contact the Supreme Court of Georgia's Committee
on Justice for Children www.gajusticeforchildren.org Phone: 404.657.9219 |
SIJS Flow Chart for Undocumented Foster Children
Deprivation Complaint / Probable Cause / Petition Issue
↓
Deprivation Adjudication
↓
Non Reunification / Termination of Parental Rights
↓
Special SIJS Order with particular findings of fact
↓
Application for SIJS status (min. 12 month prior to 18 birthday)
Form I --360
Form I -- 485
Form I -- 639
Form I -- 765
Form G325A if Child over 14 years
Proof of Age
G-28 Attorney Entry of Appearance
Fee Waiver Application
Certified Copy of Juvenile Court Order
Photos
Fingerprint card
Adit Sheet
↓
Adjustment of Status & Adjustment Interview
Medical Exam/ Form I -- 693
↓
Permanent Resident
↓
Five Years then application for Naturalized Citizenship
See: http://www.ILRC.org to get manual
SIJS (Special Immigrant Juvenile Status) Outline
How to get undocumented alien foster child legal documentation & what documentation means for the child??
Problem
children of foreign birth, who are not legally in US &
have entered State foster care as the result of abuse, neglect or abandonment, "deprived" &
are not going to reunifiy with family, "non-reunification" or TPR &
Not in best interest of child to be returned to country of origin &
Child is expected to age out of the foster care system &
Prior to turning 18, child needs permanent, lawful immigration status
Why a problem - once child turns 18, if no lawful status then subject to deportation, cannot lawfully work, not eligible for in-state tuition
Definitions
SIJS (Special Immigrant Juvenile Status)
alien
green card
undocumented alien
eligible for long term foster care
Adjustment of status
Express consent
Aging out
Reunification not viable option
Return to country of origin not viable option
Who is eligible to become a permanent resident through SIJS?
under 18, deemed eligible for long term foster care as the result of abuse, neglect or abandonment - need explicit court order findings
under the jurisdiction of the Juvenile Court - court must retain jurisdiction until completion of SIJS application
family reunification NOT a viable option for the child -- need explicit court order findings
return to the country of origin NOT in the child's best interest -- need explicit court order findings
Bad Mark against child - may be waived
involvement with drug trafficking, prostitution,
committed visa fraud
other crimes
HIV +
Previously deported
Other requirements
medical exam
fingerprints
proof of age
photos
certified copy of Juvenile Court orders - permission from Court?
Fees for application
Audit sheet???
How to prove reunification Not Viable
How to prove return to country of origin Not Viable
Entering foster care because of abuse, neglect or abandonment NOT for purpose of getting lawful immigration status
Child interview
limitation of SIJS
cease to be the child of the birth parents
SIJS will NOT benefit birth parents or siblings
Not in best interest to return to country of origin
Violence Against Women Act Petition
DFACS attempts to give custody of undocumented alien foster child to relatives who are also undocumented
Asylum Claim
social group
race
religion
political prosecution
nationality
SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)
Special Immigrant Juvenile Status (SIJS) provides lawful permanent residency to children who are under the jurisdiction of a juvenile court and who will not be reunified with their parents due to abuse, neglect or abandonment.
What are the benefits of Special Immigrant Juvenile Status (SIJS)?
Allows the child to remain in the United States and eventually obtain lawful permanent residency (a "green card").
Provides an employment authorization document that allows the child to work and serves as a government-issued identification card.
Who is eligible for SIJS?
A child who is under the jurisdiction of a juvenile court, where the court has found (a) that the child cannot be reunified with either parent because of abuse, neglect or abandonment, and (b) that it would not be in the child's best interest to be returned to the home country.
What are the requirements for SIJS?
The juvenile court either must declare the child to be a court dependent or must legally commit the child to a state department or agency. This should include children in dependency proceedings, delinquency proceedings, and guardianship through a probate court.
The SIJS application will include a special order signed by the juvenile court finding that the child is "deemed eligible for long-term foster care," because of abuse, neglect or abandonment. Eligible for long-term foster care means that family reunification is not an option, and generally the child will be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation. The court's order, or a social worker's statement, must provide at least a brief reference to facts supporting the finding of abuse, neglect or abandonment.
The juvenile court must find that it is not in the child's best interest to return to her/his country of origin. This can be proven through an interview with the child, a home study in the home country, or other evidence showing there is no known appropriate family in the home country.
The child must be under 21 and unmarried. The child's age can be proven with a birth certificate, passport, official foreign identity document issued by a foreign government. The child can be a parent.
The child must remain under juvenile court jurisdiction until the immigration application is finally decided and the child receives the green card. This is important to keep in mind because the immigration interview may not be scheduled until three months to three years, or even longer, after the SIJS application is filed, depending on the local immigration office backlog and complexity of the case.
VIOLENCE AGAINST WOMEN ACT (VAWA)
The Violence Against Women Act (VAWA) permits an abused child of a U.S. citizen or lawful permanent resident to self-petition for a green card without the cooperation of the abuser.
What are the benefits of VAWA?
Allows the child to remain in the United States and eventually obtain lawful permanent residency (a "green card").
Provides an employment authorization document that allows the child to work and serves as a government-issued identification card.
Allows the child to receive some public benefits (Medi-Cal, food stamps, CalWorks, etc.)
Who is eligible?
A non-citizen child abused by a U.S. citizen or lawful permanent resident parent
A non-citizen abused by a U.S. citizen or lawful permanent resident spouse
A child (whether abused or not) of a parent who was abused by a U.S. citizen or permanent resident spouse. In other words, a child can receive VAWA benefits even if he or she was not abused, as long as the child's parent qualifies for VAWA due to abuse.
NOTE: Both male and female abused children (or spouses) are eligible to apply
What are the requirements for VAWA for children?
The abusive parent is or was a U.S. citizen or lawful permanent resident
The child resided at some point in time with the abusive U.S. citizen or lawful permanent resident parent, in or out of the United States. Any period of visitation will count.
The
child qualifies as a "child" under immigration law
This
means that the child is unmarried and under the age of 21
This
includes:
Natural born children born in wedlock
Stepchildren where the marriage creating the step-relationship occurred before the child's 18th birthday
Adopted children where the adoption was finalized before the child's 16th birthday and the child has been in the adoptive parent's physical and legal custody for two years
Children born out of wedlock where the child has been legitimated by the father or can show a bona fide parent-child relationship
The child must be a person of "good moral character"
Children under the age of 14 are presumed to be of good moral character and are not required to submit any evidence of good moral character
Children over the age of 14 must prove good moral character with police clearance letters
The
abuse must constitute battery or "extreme cruelty"
"Extreme
cruelty" can include psychological or emotional abuse
The
child need not have suffered physical abuse to be eligible for VAWA
FAMILY VISAS
Some children may be able to immigrate legally
though a U.S. citizen or lawful permanent resident family member.
What are the benefits of immigrating through a family member?
A family visa permits a child to immigrate to the United States through a family member. To immigrate means to become a lawful permanent resident ("green card" holder).
Who is eligible to immigrate through a family member?
Some non-citizens can immigrate quickly through a relative. These include the spouse, unmarried child under 21, or parent (if the child is 21 years or older) of a U.S. citizen. Others may have to waive up to several years to immigrate. These include sons or daughters of U.S. citizens who are married or over age 21; spouses and unmarried sons and daughters of permanent residents; and siblings of U.S. citizens where the citizen is 21 years or older. How long a child will have to wait to immigrate through a family member depends upon what country the child was born in and the relationship to the family member who submitted the visa petition.
What are the requirements for immigrating through a family member?
Immigration through a parent
The U.S. citizen or lawful permanent resident parent must prove his or her citizen or resident status and must prove the required parent-child relationship with the child
Parent-child relationship includes natural born children born in wedlock, stepchildren (if marriage creating the step-relationship occurred before the child turned 18), adopted children (if the adoption was complete before the child turned 16 and the child has been in the legal and physical custody of the adoptive parent for at least 2 years), and children born out wedlock (if legitimated by the father or can prove a bona fide parent-child relationship)
The U.S. citizen or lawful permanent resident parent must be willing to help the child through the process by attending immigration interviews and submitting an affidavit of support.
The children of lawful permanent residents will have to wait many years (approximately 4-7 years) before they are eligible to apply for lawful permanent residency. During that waiting time, they cannot remain in the United States.
Immigration through a sibling
The sibling must be a U.S. citizen and must be at least 21 years old to petition for the child.
The U.S. citizen or lawful permanent resident sibling must prove his or her citizen or resident status and must prove the required sibling with the child
The U.S. citizen or lawful permanent resident sibling must be willing to help the child through the process by attending immigration interviews and submitting an affidavit of support
Children who are siblings of U.S. citizens will have to wait many years (approximately 12-22 years) before they are eligible to apply for lawful permanent residency. During that waiting time, they cannot remain in the United States.
U VISAS
U visas is for children who are victims of serious crimes
and are helpful in the investigation or prosecution of those crimes.
What are the benefits of the U visa?
The U visa begins as a temporary visa that allows the child to remain legally in the United States. After three years, the child U visa-holder can apply to obtain lawful permanent residency.
Provides an employment authorization document that allows the child to work and serves as a government-issued identification card.
The Citizenship and Immigration Service (formerly the INS) can issue a U visa to the child and to the child's parent under certain circumstances.
What are the requirements for the U visa?
The child must have suffered substantial physical or mental abuse as a result of having been the victim of one of the following crimes: rape, incest, domestic violence, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, abduction, unlawful criminal restraint, false imprisonment, felonious assault, witness tampering, or attempt, conspiracy, or solicitation to commit these or similar offenses in violation of federal, state or local criminal law.
The child or his or her parent, guardian, or next friend has information about the criminal activity and has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
The child must obtain certification from a federal, state of local law enforcement official, prosecutor, judge, or other authority investigating criminal activity, or from a CIS official that shows that he or she has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime
U.S. CITIZENSHIP
Some children born outside the United States may already be U.S. citizens without knowing it.
What are the benefits of deriving or acquiring U.S. citizenship?
Provides most of the rights and privileges available to children born in the United States, including the right to vote and certain constitutional protections
How might a child acquire U.S. citizenship?
Some children who were born outside of the United States to a U.S. citizen parent inherited U.S. citizenship at the time they were born. If a child's parent, or even grandparent, may have been a U.S. citizen at the time the child was born, the child should consult an immigration specialist to see if the child in fact is a U.S. citizen. Under most circumstances, the following children would be U.S. citizens even if they are born outside of the United States:
Children of two U.S. citizen parents
Children with one U.S. citizen parent and one U.S. national parent if the citizen parent had been physically present in the United States for a continuous period of one year
Children of one U.S. citizen parent and one non-citizen parent if the citizen parent was physically present in the U.S. for at least 5 years, at least 2 of which were after age 14
How might a child derive U.S. citizenship?
Under most circumstances, a child automatically becomes a U.S. citizen if, before he or she reaches the age of 18 all of the following events happen (in any order):
The child becomes a lawful permanent resident,
The child's mother or father is or becomes a U.S. citizen, and
The child lives in the United States in the U.S. citizen parent's legal and physical custody
Under most circumstances, an adopted child automatically becomes a U.S. citizen if:
The adopted child becomes a lawful permanent resident before the age of 18,
The adopted child is legally adopted by a U.S. citizen before the age of 16,
The adopted child has been in the U.S. citizen's legal and physical custody for at least two years, AND
The adopted child is currently residing in the legal and physical custody of the U.S. citizen adoptive parent
How can a child prove his or her U.S. citizenship?
The child can apply for a "certificate of citizenship" (Form N-600) through CIS. Additionally, we suggest obtaining a U.S. passport through the U.S. passport office as proof.
ASYLUM
Asylum is for children who fear persecution in their home country because of their race, religion, nationality, political opinion or membership in a particular social group.
What are the benefits of asylum?
Allows the child to remain in the United States and eventually obtain lawful permanent residency (a "green card).
Provides an employment authorization document that allows the child to work and serves as a government-issued identification card.
Allows the child to receive some public benefits (Medi-Cal, food stamps, CalWorks, etc.)
What are the requirements for asylum?
The child must apply within one year of arriving in the United States unless he or she was prevented from applying by changed or extraordinary circumstances. Some forms of family abuse and domestic violence might be considered extraordinary circumstances. Detention by immigration officials can also be considered extraordinary circumstances.
The child must fear persecution from the government of the home country or from a group that the government is unwilling or unable to control (for example, guerrillas or death squads).
The fear must be based on the child's race, religion, political opinion, nationality or social group.
In some cases, asylum has been granted based on severe domestic violence or issues involving gender (such as threat of female genital mutilation in the home country), even if the persecution and abuse was committed by family members.
Note: This form of relief is very complicated. Children who may qualify for asylum must consult with an expert immigration practitioner before applying.
TEMPORARY PROTECTED STATUS
Children from certain countries that have experiences devastating natural disaster, civil war or other unstable circumstances may be able to obtain Temporary Protected Status (TPS).
What are the benefits of Temporary Protected Status (TPS)?
Provides temporary permission to stay in the United States
Provides temporary work authorization
In recent years, the United States has designated countries such as Angola, Bosnia-Herzegovina, Burundi, El Salvador, Guinea-Bissau, Honduras, Kosovo, Liberia, Montserrat, Nicaragua, Sierra Leone, Sudan and Somalia for TPS or similar relief
What are the requirements for TPS?
The child only needs to prove that he or she is a national of a current TPS country and has been in the United States since a required date.
The child does not need to prove that he or she will be singled out for persecution in the home country.
The child cannot be subject to one of the criminal, security-related, or other bars to TPS.
Which countries are currently designated for Temporary Protected Status?
The countries on the TPS list change. As of this writing (August 2004), they include:
Burundi
El Salvador
Honduras
Liberia
Montserrat: (ends effective February 27, 2005)
Nicaragua
Somalia
Sudan
For updated information about which countries are currently designated TPS and what requirements nationals of those countries must meet to qualify, go to the CIS website at www.cis.gov and follow the directions to get to information about Temporary Protected Status.
Immigrant Legal Resource Center Publications
The ILRC publishes the following books about areas of immigration law relevant to family and juvenile court issues. For a more complete list of ILRC publications, and for information on the most current pricing and editions available, please call (415) 255-9499 ext. 782, or visit the ILRC website at www.ilrc.org.
The VAWA Manual: Immigration Relief for Battered Immigrants is a comprehensive guide for advocates working with immigrant survivors of domestic violence. This manual includes in-depth information on the VAWA self-petitioning requirements and process, adjustment of status, inadmissibility and waivers, consular processing, conditional permanent residency, VAWA cancellation of removal, special immigrant juvenile status, the new T and U visas, gender-related asylum, and public benefits.
Special Immigrant Juvenile Status for Children in the Dependency System. This practical manual includes a clear explanation of the law and a discussion of problem cases, a sample completed application form, sample juvenile court judge's order, and a summary both of immigration adjustment of status applications and other types of immigration relief for children. Also available as a free download at www.ilrc.org.
A Guide for Immigration Advocates is a large and comprehensive book about immigration law, written for paralegals. It includes clearly written material discussing forms of relief that would apply to children such as family visa petitions, suspension and asylum.
Family Unity: A Guide for Practitioners and Community Organizers discusses the Family Unity program which could benefit children whose parents became permanent residents through one of the amnesty programs.
California Criminal Law and Immigration. This is a comprehensive manual on the representation of non-citizens who have been accused or convicted of crimes. Using California law as a model, it discusses all the grounds of inadmissibility and deportability related to criminal offenses. Topics include drug convictions, admissions, addiction and abuse, aggravated felon status, crimes involving moral turpitude, and firearms offenses, as well as recent legislation. The manual includes an annotated chart analyzing 70 offenses under California law. It also features a comprehensive chapter on how to obtain post-conviction relief, including a discussion of legal requirements, practice tips, and sample briefs and papers, as well as a chapter on immigration holds and detainers.
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 GACC is an affiliate of the National Association of Counsel for Children |
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