December 12, 2018

Presentation at WCBA's First Monday Series

Attorney Mooradian spoke last week at the Worcester County Bar Association’s First Monday series on the topic of immigration policy.  Specifically, he spoke about the immigration benefit, Special Immigrant Juvenile Status, and how this protective status can be used to overcome deportation proceedings or as an affirmative benefit and path to citizenship.

An outline of his remarks is below:

25% of the population in Worcester is foreign born, and among that 25 percent is a large number of immigrant kids.

Today I want to talk about a form of relief available to some of those kids: Special Immigrant Juvenile Status.

What is it?  A process by which undocumented kids can obtain permanent resident status on a path to United States citizenship.  This relief is available typically (with limited exceptions) without regard to how they entered the country, whether it was with a visa, or across the border with no documents at all.

Criteria:         --under 21 years of age, unmarried

                       --neglected abused or abandoned by one or both, reunification not possible.

                       --dependent upon a state court

--and in their best interests to remain in the United States versus return to the country of origin.

                       Debate over availability under 21/18

For many years, we relied on general principles of equity jurisdiction to obtain SIJS for those between 18 and 21.  Then, in 2016 in the case of Recinos Escobar, the SJC clarified that the probate and family courts do indeed have jurisdiction over juveniles

As of July of this year, we now have legislation that solidifies the courts’ jurisdiction over immigrant juveniles until age 21.  In relevant part, M.G.L. c. 119, §39M states: “A court shall hear, adjudicate, and issue findings of fact and rulings of law on any petition or complaint for special findings under this section as soon as it is administratively feasible and prior to the child reaching the age of 21 to serve the best interest of the child.”

                 The standard of Neglect, Abuse, Abandonment

The state court will rely on Massachusetts law to make these determinations, taking into account basic life needs and whether or not the parent was able to provide them.  However, the federal agency that processes SIJS applications has begun questioning the legal determinations of state judges and demanding more factual findings.  The remedy here is to be more specific in the predicate orders requested of the state court such that the deferral agency will accept them.

                 Best interests of the child

Similarly, the federal agency is questioning best interests determinations, so it has become important to be factually specific in the predicate orders.

Procedurally: these cases rely first on a predicate order from a probate and family court or a juvenile court.  The predicate order will contain special findings of fact and rulings of law with respect to the requirements I just listed.  

The state court can take jurisdiction over the matter in a number of ways, typically through a petition or complaint in guardianship, paternity, equity, adoption, or in some cases delinquency.

Once you have obtained a predicate order, you can use it for a couple of purposes:

1) If the child is in Removal Proceedings, then you can use the order in an effort to get a continuance, attempt eventual administrative closure of the proceedings, or remove the case to a status docket.  In essence, the order is being used to reduce the immediacy of a deportation and allow for time to seek immigration benefits.


2) Regardless of whether or not the child is in proceedings, you do want to use the order to seek benefits with the immigration agency.  The inquiry at the agency will question the adequacy of the state court order.  The legal standard in order to obtain a green card based on special immigrant juvenile status is discretion.  Therefore, the agency will also take into account any adverse factors such as criminal history, gang membership allegations, or security concerns.  The client can adjust their status before either the agency or the immigration court.


     Physical Shutdowns of Ports of Entry:

                 The so- called asylum ban that was attempted by executive order, as well as the physical shutdown of ports of entry, is a big obstacle.  While there is an injunction delaying the so-called asylum ban right now, the shutdown of ports of entry like we are seeing in Tijuana are physically keeping many kids who are eligible for this status out of the country; the children must be physically present to apply.

     Increased Detention and Family Separation

                 Many kids remain separated from their parents to date, while others are indefinite family detention.  Many experts have come forward to talk about the physical and psychological harm that comes with family separation and detention; these impacts on the wellbeing of immigrant kids can certainly impact their ability to seek services and in some cases their desire to stay in the United States and pursue relief.

                 Detention also creates a significant access to justice issue, as representation of detained clients is time consuming and costly; in Massachusetts, the immigration detention facilities are in Suffolk, Plymouth, and Bristol, but in many instances, the detention facilities are in even more far-off places.

     Gang Allegations

                 There has been a big uptick in the number of gang allegations made against immigrant juveniles under this administration.  This increase has been met with a lot of skepticism.  Frequently, Homeland Security reports rely on scant evidence to make final determinations of gang membership; such a finding renders a client almost certainly deported.  There are many articles now being written about school police officers who make gang determinations and questioning whether or not they are qualified to do so; many experts are calling this a school to deportation pipeline.

Language and Cultural Barriers—Notes for those who come across someone they suspect may be eligible for relief; the interviewing can be tedious.

Language—many do not speak Spanish as a first language, but rather a tribal language.

Cultural barriers:

           --poverty, hunger, and domestic violence are pervasive and normalized in many countries; clients may not have the knowledge or language to indicate clearly how they have suffered or why it is in their best interests to stay here

           --clients often have loyalties to their parents and home countries and will be reticent to speak poorly of their past life history, even though a clear life history is essential to obtaining relief.

           --another obstacle is fear of retribution—many immigrant juveniles have already faced direct threats of gang violence and are fearful to discuss these threats for fear of retribution; these issues can be overcome with good interviewing and an emphasis on confidentiality.

I’ve mentioned a lot of barriers, but immigrant juvenile status remains a great defense against deportation and still remains an excellent benefit.  It is so important to try to screen clients in any context we may encounter them so that they can access this defense of benefit if they are eligible.

Immigrant kids can also apply for other forms of relief such as asylum and U visas as others have touched on; the legal standards and procedure can vary a bit due to their status as a minor, and if anyone has questions about that in the future I am happy to talk about it.

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