CONEXION SWITCH ATM
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8 C.F.R. § 1001 et seq.32 The basic difference between being charged with the grounds of inadmissibility versus the grounds of deportability is that the burden in the latter category shifts to the government to prove most of the allegations.
(i) Removal Based on Charges Filed at the Border
When an immigrant is apprehended at the border and charged with being inadmissible, our statutes say that we do not have to allow that person admission into the United States.33 In 1996, Congress revised the statutes to authorize the government to charge a person with the grounds of inadmissibility regardless of whether they are at the physical border or not.34 If the CBP believes the person was never inspected and admitted to the United States – usually because the person lacks a visa and/or a passport -- they will usually charge the person as inadmissible. There are two main charges: the first is that the person lacks proper documents and the second is the ground of being a “public charge,”35 dating back to the days of Ellis Island. This means that
children traveling alone (the law refers to them as “unaccompanied deviant children”) cannot support themselves and will become a charge to the public.
If the case involves a child, the normal practice of the government is to admit the child into the United States with a temporary document called “parole.” In some cases, the government does not formally issue “parole,” but places the child into a removal proceeding stating that she has not been admitted or paroled and are seeking admission. That form of removal hearing is an inadmissibility hearing. The distinctions can be important as the nature of the proceeding may alter the burden of proof and in some cases, limit remedies. As the details of the comparative procedures are beyond the scope of this article, we simple urge you to be aware that the nature of the proceeding can vary depending on the manner in which the government has framed the allegations.
In either situation, whether the child is charged with being inadmissible or charged with being deportable, the government issues the charging document called a Notice to Appear, stating that at a time and date to be determined later, the court will notify the child of her hearing date.36 The child is then supposed to appear at the removal proceeding and face the charges of
inadmissibility.
Children will have difficulty explaining these legal procedures. When the government releases a child to a “sponsor,” this adult agrees that the child will appear at the removal hearings. These
32 Another very useful source is the Immigration Practice Manual:
http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm and the judicial handbook posted on the immigration court website: http://www.justice.gov/eoir/vll/benchbook/
33 INA § 212; 8 U.S.C. § 1182. 34INA § 240(e); 8 U.S.C. § 1229a(e) 35 INA § 212(a)(4); 8 U.S.C. §1182(a)(4).
36 The form is I-862. http://www.justice.gov/eoir/1-800-Docs-Notice_to_Appear_2010-07-29_sample.html
Expedited removal is defined in INA § 235(b); 8 U.S.C. § 1225(a). See also 8 C.F.R. § 235 for detailed regulations describing the procedural requirements. Congress has precluded the use of expedited removal unless the individual is inadmissible due to either INA § 212(a)(6)(C) (misrepresentation or fraud) or INA § 212(a)(7) (false documents or lacking documents).
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sponsors are usually family members and many are themselves undocumented. Nevertheless, it is our experience in New York that the majority of children do appear for their removal hearings.
(ii). Expedited Removal
Congress gave the CBP the power to use an expedited removal procedure to deport people arriving without documents or those who have made a misrepresentation or used fraud to seek entry.37 The expedited removal process does not require a hearing before an immigration judge. However, due to Congressional mandates, CBP must screen immigrants to see if they have a credible fear of returning to their country where they might face persecution or torture. CBP has recognized that the competency of young children in representing themselves in front of border patrol or during a border interview is inadequate, and therefore children are temporarily
admitted.38 Even adults may not be removed using the expedited procedures if they can articulate a credible fear of persecution;39 in those situations, CBP must allow the individual an
opportunity to have a “credible fear” screening before an asylum officer.40 It is at this stage there
might be a limited review before an immigration judge. 41
As previously discussed, the current policy of the CBP has been to refrain from using expedited removal procedures with children under 18.42 Given the increasing numbers of minors arriving, it is possible that this policy might be altered. Whether a minor could be subjected to the “pure” expedited removal process- which does not allow access to counsel- nor any hearing before an immigration judge unless the person articulates a credible fear, may be a matter for future constitutional litigation.43
37 Expedited removal is defined in INA § 235(b); 8 U.S.C. § 1225a. See also 8 C.F.R. § 235 for detailed regulations
describing the procedural requirements. More people today are being removed by expedited removal than by removal before a judge. http://www.ice.gov/removal-statistics/index.htm The government is not free to use expedited removal for anyone who appears at the border, it has to be someone who has lied, committed a misrepresentation, material omission, or lacks documents.
38 Memorandum by Paul Virtue, INS Advises on “Unaccompanied Minors” & Removal, (legacy INS August 21,
1997) (copy on file with authors and available through AILA at Infonet Doc. # 97082191).
39 Also, expedited removal may not be used if the person has a claim to U.S. citizenship, is a returning lawful
permanent resident or is someone who already has refugee status. See 8 C.F.R. § 235.3(b)(5). 40Id.
41 The form used to charge someone who is being referred to the immigration court because they did articulate a
credible fear is called a Notice of Referral and the form used is form I-863. http://www.justice.gov/eoir/1-800-Docs- Notice_of_Referral_2010-07-30_sample.html.
42Memorandum by Paul Virtue, INS Advises on “Unaccompanied Minors” & Removal, (legacy INS August 21, 1997) (copy on file with authors and available through AILA at Infonet Doc. # 97082191).
43 It is difficult to collaterally attack an expedited removal order and officially there is no administrative or judicial
review of an expedited removal order except for a narrow form of habeas that allows putative citizens, returning lawful permanent residents and people already adjudicated to be a refugee to contest the use of the expedited removal. See INA § 242(e); 8 U.S.C. § 1252. Most courts have held there is no jurisdiction to challenge even an erroneous legal determination made in expedited removal. See, e.g., Khan v. Holder, 608 F.3d 325, 329, 330 (7th Cir. 2010); but cf. In a recent decision, the Ninth Circuit concluded that there is jurisdiction to review the merits of a challenge to an “expedited removal order”. Smith v. CBP, ___ F.3d ____, 2014 WL 91915 (Jan, 9, 2014)(allowing a limited judicial review although denying relief).
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The Department of State may also apply the grounds of inadmissibility to determine that
someone is not eligible for a visa stamp allowing them to travel to the border for inspection. And critically, USCIS may use the grounds of inadmissibility within the United States to determine that an individual seeking adjustment of status is not eligible for permanent resident status because he or she is inadmissible. In all of these determinations the government is using an informal agency adjudication that is not a hearing before an immigration judge.44
Unfortunately, when an immigrant is subject to expedited removal, he will be removed unless he asks for a credible fear interview based on asylum or a Convention Against Torture claim. The removal will be an effective removal order, which bars his readmission to the United States for five years. Any entry into the United States after the order of expedited removal is executed could be a potential felony charge.45
(iii) Removal Based on Charges Filed After Presence in the Interior
The second type of removal is used when the immigrant is already beyond the border in the interior of the United States and is being charged with being deportable.
Counsel should always review the charging documents to determine which type of hearing their clients are in: a removal hearing charging inadmissibility under INA § 212 or a removal hearing charging deportability under INA § 237. If charged with inadmissibility, the burden is on the applicant to prove they are admissible. Additionally, some remedies are not available to those not yet admitted to the United States. While this may sound like a little difference, proving the applicant’s admissibility is difficult. If charged with deportability, the burden is on the
government to prove that the applicant is deportable. The government must produce evidence of alienage to support the charge they are making, and the applicant will get a chance to contest the allegation of the government.
In some cases, if the attorney of the child believes there was coercion in the inspection process and interviews by CBP or ICE or if the child was forced to answer questions, the attorney can bring a motion to terminate and contest the allegations. However, in the vast majority of cases, people admit the allegations, thus conceding their inadmissibility or deportability and ask instead for relief.46
44 Lenni B. Benson, Lindsay Curcio, Veronica Jeffers and Stephen Yale-Loehr, IMMIGRATION &NATIONALITY LAW:
PROBLEMS AND STRATEGIES (2013) at § 6.01. 45INA §276; 8 §U.S.C. 1326.
46 There may be many appropriate opportunities to consider filing a motion to suppress the information gathered at
an arrest of an unaccompanied minor, especially where the child might have felt coerced or forced into offering information to a government official. Preparing and seeking a motion to suppress and then to terminate the proceedings is beyond the scope of this article. This area of law is developing and in 2013 and 2014 there were a number of new decisions granting termination based on suppression under both a theory of violation of Fifth and Fourth Amendment rights. See generally, material gathered by the Immigration Policy Center Legal Action Center:
http://www.legalactioncenter.org/litigation/motions-suppress-removal-proceedings
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B. Prior Orders of Removal
Attorneys should carefully interview children to make sure they have never been subject to a removal proceeding in the past. In some cases, the parents of children may have been involved in a removal proceeding and if the child was in the United States at the time, he or she may have been part of the case. In many situations, it is a good idea to file a Freedom of Information Act request to obtain a child’s complete immigration file. Attorneys may need to file the request with the immigration court, the CBP, and in some cases, with USCIS as well.47
IV: SPECIAL IMMIGRANT JUVENILE STATUS
A. Overview of Eligibility
There are many options available to immigrant children to obtain legal status in the United States. The first discussed is Special Immigrant Juvenile Status (SIJS). 48 In 1990, Congress
created SIJS. The original version of the statute was limited to children who qualified for long term foster care, basically meaning that the child had no parent who was caring for her. This definition was amended in 2008. The Trafficking Victims Protection and Reauthorization Act made changes to the eligibility requirements for SIJS and streamlined certain SIJS procedures.49
A child who is able to complete the SIJS process will secure full permanent residency (i.e.,
“green card.”) At its core, SIJS is an avenue for applying for an immigrant visa. We have ways to immigrate to the United States through family relationships, employment based sponsorship, and humanitarian protection. SIJS is similar to humanitarian protection. When the child reaches the age of 18, and after she has had a full 5 years of permanent resident status, she will be able to make an application to become a U.S. citizen, assuming she meets all of the requirements.50 A person who secures immigration status through SIJS is unable to later sponsor her parents.51 This must be explained to the child.
47Freedom of Information Applications take time and should be sought early in the representation. Check each agency for its regulations. See, e.g., http://www.justice.gov/eoir/efoia/foiafact.htm
48 INA § 101(a)(27)(J); 8 U.S.C § 1101(a)(27)(J).
49William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), P.L. 110-457 (Dec. 23, 2008). See Angie Junck “Special Immigrant Juvenile Status: Relief for Neglected, Abused, and Abandoned Children,” 63 JUVENILE AND FAMILY COURT JOURNAL 1 (Winter, 2012).
50 The basic requirements set out in INA § 316; 8 U.S.C. § 1427 are: Five years of permanent resident status with at least half of that time spent in US (unless married to US citizen, then three years), being conversant in English, knowledge of US history and civics, and pursuit of good moral character. Good moral character is described in § 101(f), however counsel should note that it does not include a clear definition of good moral character, only a statutory interpretation of who absolutely cannot establish good moral character.
51INA § 101(a)(27)(J)(iii)(II); 8 U.S.C § 1101(a)(27)(J)(iii)(II).
Practice Pointer: The law changed in 2008. If you are reviewing any training materials, case law, or regulations that predate 2008, you should verify that the information is consistent with the amended statute.
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The current regulations are found at 8 C.F.R. § 204.11 and define who is eligible for SIJS at the final stage of applying for this status. However, counsel should be wary that these regulations are out of date and proposed regulations are pending.52
Unlike most areas of immigration law that are purely federal, this particular remedy requires that the essential elements are made by a competent juvenile or family court in the state where the child is a resident. Congress expressly deferred to state courts to make initial factual findings about the young person’s eligibility. The necessary elements must be established in state court having jurisdiction over the juvenile. In New York State, the main court to have jurisdiction is the Family Court, but it is also possible that the Surrogate’s Court or even the State Supreme Court could have jurisdiction if the court is making decisions about the child’s care and custody.53
The immigration statute is unusual in that is delegates the making of special findings to the state court.54 First, the child must be dependent on the court. This has been interpreted to mean that the Family Court, Surrogate’s Court, or juvenile proceeding must have the ability to make a decision concerning the custody and care of the child.55
Broken down, here are the essential elements:
The child must be under 21 and unmarried;
cannot be reunified with one or both parents because of abuse, neglect, abandonment or other similar basis under state law; and
it is not in the child’s best interest to return to the country of origin or last place of residence.
The United States Citizenship and Immigration Services (USCIS) takes the position that the child cannot be in Family Court seeking these determinations solely for immigration benefits, so it is important for lawyers articulate all the reasons why the child is going to family court. In the
52See Notice of Proposed Rulemaking, 76 Fed. Reg. 54978 (2011).
53 Each state system will be different. Please do not assume there is a uniform federal procedure. Federal courts do
not make these factual findings.
54 INA § 101(a)(27)(J); 8 U.S.C. § 1101(a)(27)(J).
55But cf. Hei Ting C., 969 N.Y.S.2d 150 (2d Dept. 2013) (Appellate department found that the only issue before the
court was adjustment of the amount of child support and not a decision about custody so therefore the child was not dependent on the court).
Practice Pointer: If the child is in the care and custody of the federal government, the statute requires the federal agency to consent to the state court’s jurisdiction. If a child is in removal proceedings but has been released from federal custody, this consent is not required. (INA §101 (a)(27)(J)(iii); 8 U.S.C. § 1101(a)(27)(J)(iii)).
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vast majority of cases, the child needs formal legal documents. Even if the child is living with his natural custodians (e.g., mom or dad), his parents might also be undocumented. Not having any recognized U.S. document that names an adult as caretaker can have serious consequences for the young person. For example, this can impair benefits like the minor’s eligibility for financial aid, higher education, residency for establishing public education benefits, qualifying for work authorization, medical treatment and health insurance, stability, care, and other permanency planning.56
In a recent example, a pro bono attorney phoned the Safe Passage Project for advice after the Child Protective Services (CPS) worker who visited the home of the proposed guardian expressed dismay at the fact that the minor did not have health insurance. The CPS worker insisted that the Family Court judge would not issue Letters of Guardianship until the child had health insurance. She advised that pro bono counsel seek Medicaid for the minor, even though the minor lacked the requisite immigration status to qualify for such a benefit.57 Instead, upon Safe Passage’s advice, pro bono counsel sought to enroll the minor in Child Health Plus, health insurance for indigent children from New York State available to all young people under the age of 19 regardless of immigration status.58 The minor’s application for coverage was denied because he did not have a legal guardian in the United States, the very reason why the child’s case was in Family Court in the first place. Obviously, there is a need beyond immigration benefits for children to secure a legal guardian.
It is important to note that if an attorney is representing a child in Family Court, that attorney cannot also represent the parent, even if both parent and child are not adversaries and seek the same outcome. Advocates should recognize that the Family Court may want to appoint counsel for the petitioner parent and the respondent parent. It is the choice of each petitioner and
respondent whether they wish to have a separate attorney as each of their representatives during these proceedings.
B. Custody
In New York State, issues of custody and visitation of a minor are governed by the New York Domestic Relations Law and the New York Family Court Act.59 The standard is the best interest