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Unaccompanied Alien Children

The Intersection of Immigration and Family Law

Each year, thousands of unaccompanied alien children are arrested by the Department of Homeland Security (DHS).1 "Unaccompanied alien children" are children, under the age of 18, who have no lawful immigration status in the United States and have no parent or legal guardian in the United States to care for them.  DHS comes across unaccompanied alien children under many different circumstances: the children may be orphans; their family may have sent them to America in the hopes of finding a better quality of life; they may be trying to escape war; they may be running away from abuse; or they may be victims of trafficking.

This article will provide a brief overview of the disparate legal issues confronting these children and, if represented, their counsel.

Lack of Appointed Counsel

When DHS apprehends a child, it is its responsibility to attempt repatriation to the child’s home country. The case will typically make its way to an immigration judge of the Executive Office for Immigration Review (EOIR). As intimated in the opening paragraph, unaccompanied alien children are rarely represented by attorneys or any other adult in immigration proceedings.2 This lack of representation obviously leads to severe procedural and due process problems. Fortunately, however, 8 C.F.R. §1240.10(c) prevents an immigration judge from accepting “an admission of removability from an unrepresented respondent…[who is] under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend.” Thus, immigration judges must at least conduct a hearing on the issues regarding removal for such unrepresented children. Furthermore, a memorandum has been released by the Chief Immigration Judge detailing the special procedures immigration judges should use when conducting hearings regarding unaccompanied children.3 Perhaps most importantly, the memo states that immigration judges should not assume that inconsistencies in testimony from an unaccompanied child are proof of dishonesty.4

Placement Pending Immigration Proceedings

In the recent past, as many as 30% of all unaccompanied alien children were placed in secure facilities, alongside juvenile offenders convicted of crimes.5 However, that percentage has decreased to 3% since the 2003 transfer of the care of unaccompanied children from legacy INS to the Organization of Refugee Resettlement (ORR).6 8 C.F.R. §1263.3(b)(1) states that such children should be released to parents, legal guardians, or adult relatives, in that order. If such persons cannot be found or do not exist, the child will not be released except in “unusual and compelling circumstances”, even to adults willing to execute an agreement to care for the child’s well-being.7 The “unusual and compelling circumstances” language partially explains the large number of children held by ORR. This issue has reached the United States Supreme Court which held, “Where a juvenile has no available parent, close relative, or legal guardian, where the government does not intend to punish the child, and where the conditions of governmental custody are decent and humane, such custody surely does not violate the Constitution.”8

Special Immigrant Juvenile Status (SIJS)

8 United States Code §1101(a)(27)(J)/ INA §101(a)(27)(J) provides an opportunity for a special visa for children eligible for long-term foster care due to abuse, neglect, or abandonment. However, obtaining such a visa is difficult because of a variety of procedural hurdles. In addition, SIJS may lead to permanent residence (green card).

The first such hurdle is that the applicant must obtain “specific consent” from Immigration and Customs Enforcement (ICE) to ask the local juvenile court for a dependency determination if the child is in the “actual or constructive custody of the Attorney General”.9 ICE contends that a child is in constructive custody if the U.S. government is paying for the child’s care.10 Furthermore, great uncertainty exists as to what test ICE employs to determine whether it should grant “specific consent” but it appears that the traditional family law “best interests” test is part of the equation.11

Evidence of abuse and/or abandonment will need to be obtained to convince ICE to grant “specific consent.”12 Even if the evidence is strong, the request for “specific consent” may languish undecided while the child is in danger of “aging out” or ICE may deny consent without interviewing the child, conducting an evidentiary hearing, or setting forth any adverse evidence.13 Such a denial without a hearing may be partially due to ORR’s current, but legally suspect, practice of providing all of its voluminous records documenting each child’s needs, progress, and services rendered, to ICE, without consent from the child or even notification to the child or the child’s counsel.14 Thus, before requesting “specific consent”, it is important to obtain a copy of ORR’s records regarding the child. 15

If ICE grants “specific consent”, the second hurdle is obtaining an order from a local juvenile court that the child is eligible for “long-term foster care due to abuse, neglect, or abandonment” pursuant to 8 U.S.C. §1101(a)(27)(J)(i)/ INA §101(a)(27)(J)(i) and that it would not be in the best interests of the child to be returned to child’s country of nationality or country of last habitual residence pursuant to 8 U.S.C. §1101(a)(27)(J)(ii)/ §INA 101(a)(27)(J)(ii). Even in meritorious cases, it may be difficult to convince a local judge to issue the necessary findings.16

If a local judge issues an order with the necessary language, the next hurdle is convincing U.S. Citizenship and Immigration Services (USCIS) to grant the SIJS petition and “expressly consent” to the juvenile court dependency order pursuant to 8 U.S.C. §1101(a)(27)(J)(iii)/ §INA 101(a)(27)(J)(iii). If the dependency order has a “reasonable factual basis”, USCIS policy requires USCIS officials not to “second-guess” the juvenile court’s rulings.17 Unfortunately, it appears that USCIS, at least in some instances, has violated its own policy by denying express consent to SIJS petitions, finding that a child was not neglected or abandoned despite an order from a state court judge which found otherwise as the result of a formal evidentiary hearing with all parties and counsel present. Such adverse decisions by USCIS should be appealed to the Administrative Appeals Office (AAO) in Washington, D.C., but such appeals must be filed within thirty-three days of the SIJS denial.18

Minnesota CHIPS-SIJS Case Law

Minnesota state case law exists with regard to the intersection between SIJS petitions and Minnesota CHIPS (child in need of protection or service) law. In Matter of Welfare of C.M.K., a child born in China who had witnessed the savage beating of his father by local villagers, escaped to the United States through smugglers.19 The smugglers beat the child for lack of payment of their demanded fees and the child was eventually arrested in New York City by the INS.20 INS transferred physical custody of the child to Lutheran Social Services of Minnesota who placed the child in a foster home.21 Soon thereafter, the immigration court found the child deportable and denied him political asylum.22 The foster family sought to obtain SIJS status for the child by bringing a private CHIPS petition in Hennepin County Juvenile Court.23 Both Hennepin County and INS opposed the private CHIPS petition24 (a SIJS petitioner was not required to receive prior approval from INS to bring a private CHIPS petition until legislation was enacted a year later in 1997).

The Hennepin County Juvenile Court declined to exercise jurisdiction due to federal immigration law preemption over Minnesota CHIPS proceedings.25 The Minnesota Court of Appeals affirmed, holding that the child did not qualify for CHIPS protection because he was under the custody of the INS, there was no evidence that the child had been harmed while under the custody of the INS, and any allegation that the child would be harmed upon his return to China was an issue that was preempted by federal law.26

In Matter of Welfare of Y.W., a foster parent of an unaccompanied alien child from China moved the Dakota County District Court for an order permitting him to file a private CHIPS petition on behalf of the child in the hopes of then pursuing SIJS status.27 The Court granted the motion despite opposition from the county and INS (again, this was prior to the 1997 amendment that required prior approval from INS to apply to a state court for a dependency determination). Before the Court issued its written decision, the immigration court denied asylum to the child and offered him voluntary departure as an alternative to deportation.28 Prior to the child’s eighteenth birthday, the district court adjudicated the child as a child in need of protection or services, ordered his long-term placement in the foster parent’s home, and found that the child suffered from PTSD.29

Both INS and the county appealed the CHIPS adjudication.30 The Minnesota Court of Appeals reversed the district court, holding that the district court lacked jurisdiction to adjudicate the child as CHIPS because the child was already subject to deportation proceedings and in the custody of INS.31 The Court also found that INS was willing and able to provide care for the child’s PTSD.32 Judge Randall concurred specially, noting that “I am not comfortable with the INS holding itself out as Y.W.’s guardian, while at the same time they vigorously line up a case to deport him.”33

T and U Visas

An unaccompanied alien child may be a possible beneficiary of a T visa if the child has been the subject of “severe trafficking” as defined by 22 U.S.C. §7102. However, “[i]f the child cannot demonstrate that someone used ‘force, fraud, or coercion’ to induce the child to perform sexual or labor services, the child is not a victim of ‘trafficking.’”34 Furthermore, 8 U.S.C. §1101(a)(15)(T)(i)(III)(aa) requires that the child “has complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime”, although there is an exception for those children who are unable to cooperate due to psychological or physical trauma under (T)(iii).

An unaccompanied alien child is more likely to be eligible to be a beneficiary of a U visa, in that the scope of crimes covered are much broader than those under a T visa. The list of U visa crimes include such common crimes as domestic violence, rape, and felonious assault.35 However, the U visa applicant must also show that he or she suffered “substantial physical or mental abuse” as a result of the crime and that the criminal activity “violated the laws of the United States or occurred in the United States (…including military installations)”.36 The test in determining “substantial physical or mental abuse” is found at 8 C.F.R. §214.14(b)(1). The U visa applicant must also submit a Form I-918 signed by the head of a “certifying agency” (a federal, state, or local law enforcement agency, prosecutor, or judge) stating that the applicant was a victim of one of the enumerated crimes, the applicant possesses information regarding the commission of the crime, the victim has been or is likely to be helpful in the investigation or prosecution of the crime, and that the crime violated U.S. law or was committed in the United States or its military installations abroad.37

Military installations are defined expansively and even include vehicles, vessels, aircraft, encampments, and any other location under military control.38 With the incredible expansion of U.S. military activity throughout the world, it appears likely that the percentage of U visa applications may increase from foreign nationals, particularly Iraqis and Afghans living on foreign soil, who have been the victim of any of the long list of enumerated crimes while in a location under U.S. military control. However, as explained above, there must be an investigation or prosecution of such crimes.

Asylum

While explaining the asylum process is beyond the scope of this article, it should be remembered that children can apply for asylum (and Withholding of Removal and protection under the Convention Against Torture) just as adult aliens. However, there are some important differences. For instance, many adult asylum seekers are denied asylum due to the fact that they failed to apply for asylum within one year of arriving in the United States. Fortunately, this one-year deadline does not apply to child asylum seekers.39 Furthermore, children are not required to show the same level of harm upon return to their home country that an adult asylum-seeker would be required to show.40 Generally, in order to apply for asylum an applicant must show that he or she is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of his or her home 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.

Conclusion

Counsel for unaccompanied alien children have a wide array of legal options at their disposal to prevent removal of their young clients. Of course, before exercising any options, counsel should confirm that the child in question was indeed born outside the United States, as any person born in the United States is a United States citizen. However, once it is confirmed that the child was born outside the U.S., the average alien child should still have a higher chance of avoiding removal when compared to the average adult alien, if the child is represented by counsel.

Vincent Martin practices Immigration Law at Cundy & Martin, LLC. He may be reached at (952) 746-4111 or www.cundyandmartin.com

1 Ann Chandler, Judy Flanagan, and Kathleen A. Moccio, The ABCs of Working With Immigratnt Children to Obtain Special Immigrant Juvenile Status for Those Abused, Neglected , or Abandoned, Immigration & Nationality Law Handbook 300 (2006-07 ed.) and Jacqueline Bhabha, Unaccompanied and Separated Children Seeking Asylum, 26 AILA’s Immigration Law Today 30 (March/April 2007).

2 Jacqueline Bhabha, Unaccompanied and Separated Children Seeking Asylum, 26 AILA’s Immigration Law Today 30, 31 (March/April 2007).

3 May 22, 2007 OPPM re: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children.

4 Id. at 7.

5 Jacqueline Bhabha, Vulnerable and Alone: Unaccompanied and Separated Children Seeking Asylum, 26 AILA’s Immigration Law Today 30, 31 (3/4 2007).

6 Id.

7 8 C.F.R. §1236.3(b)(4).

8 Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

9 8 U.S.C. §1101(a)(27)(J)(iii)(I)/INA §101(a)(27)(J)(iii)(I)

10 Chandler, supra note 1, at 302.

11 Id.

12 Id. at 304.

13 Id. at 305.

14 Michelle Abarca, et al., No Abused, Abandoned, or Neglected Child Left Behind: Overcoming Barriers Facing Special Immigrant Juveniles, Immigration & Nationality Law Handbook, at 520, 522 (2007-08 ed.).

15 Id. at 525.

16 Id. at 532.

17 Id. at 528.

18 Id. at 529.

19 552 N.W.2d 768, 768-69 (Minn.App.1996).

20 Id. at 769.

21 Id.

22 Id.

23 Id.

24 Id.

25 Id. at 770.

26 Id. at 770, 771.

27 1996 WL 665937 (Minn.App.).

28 Id.

29 Id.

30 Id.

31 Id. at *2, *3.

32 Id. at *4.

33 Id. at *5.

34 Chandler, supra note 1, at 308.

35 See 8 U.S.C. §1101(a)(15(U)(iii) / INA §101(a)(15)(U)(iii) for a full list of crimes.

36 Id. at (i)(I), (III).

37 8 C.F.R. §214.14(c)(ii)(2)(i).

38 8 C.F.R. §214.14(a)(6).

39 8 C.F.R. §§8 C.F.R. 208.4(a)(5)(ii), 1208.4(a)(5)(ii).

40 See Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (“The Guidelines for Children’s Asylum Claims advises that ‘harm a child fears or has suffered…may be relatively less than that of an adult and still qualify as persecution.’ See Guidelines for Children’s Asylum Claims, INS Policy and Procedural Memorandum from Jack Weiss, Acting Director, Office of International Affairs to Asylum Officers, Immigration Officers, and Headquarters Coordinators (Asylum and Refugees) 14, (Dec. 10, 2998), available at 1998 WL 34032561. Indeed, other courts have used age as a determinative factor in deciding whether an applicant is eligible for asylum.”