immigration & the juvenile justice system -...

Immigration & the Juvenile

Justice System

© 2014 Immigrant Legal Resource Center & Legal Services for Children

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Hayley Upshaw, Senior Staff Attorney,

Legal Services for Children

Angela Vigil, Vice President

Baker & McKenzie, LLP

Topics

I. Immigration Enforcement: Political Context?

II. How can Defenders help immigrant youth?

III. Working with Immigrant Clients

2 © 2014 Immigrant Legal Resource Center

& Legal Services for Children

I. Immigration Enforcement

•


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Mass Deportation

• Obama Administration approaches two million

deportations, in five years in office.



Mass Deportation II

The Obama Administration focus is



-There is no known

federal policy for juveniles

DEPORTING

CRIMINAL

ALIENS

“

”

Immigration Holds (“Detainers”)

What is an immigration hold?

• A request from ICE or Border Patrol

• asking local jail/agency to detain an alleged deportable

noncitizen

• for up to 48 hours, plus weekends and holidays

• after s/he is eligible for release from custody -- to

enable ICE pick-up.

• Not a criminal warrant, not based on probable cause,

not issued by neutral magistrate. See 8 CFR 287.7. © 2014 Immigrant Legal Resource Center

& Legal Services for Children 6

ICE

HOLD


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The federal government cannot

require state or local facilities to

“hold” or “detain” youth for

immigration purposes.


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Federal Courts:

ICE Detainers are Voluntary

• Two federal courts recently held that detainers are not

mandatory.

– Miranda-Olivares v. Clackamas County, No. 3:12-cv-

02317 (D. Or. April 11, 2014)

– Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. Mar. 4, 2014)

• Both Courts found that local law enforcement could

be found liable for damages for unlawfully holding

individuals for ICE because they are not required to.

© 2014 Immigrant Legal Resource Center & Legal Services for Children 9

Constitutionality of

ICE holds in question

• Miranda-Olivares v. Clackamas County, the The court

ruled that the detainer did not provide sufficient proof

(probable cause) to allow the local jail to detain Ms.

Miranda-Olivares for ICE when she could have been

released on bail


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ICE Holds: Just Say No

Many jurisdictions have said they will only hold someone for ICE if they receive a

real judicial warrant for arrest, signed by a judge or a court order. An immigration

detainer is not a judicial warrant.

*Since the Oregon decision,

over 240 jurisdictions across the

country have announced that

they will no longer hold people

based on ICE holds, because of

the risk of liability.


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Federal law does not require law

enforcement to notify ICE of a

youth who is suspected of lacking

legal immigration status.

There is no duty to ask about immigration status; in

fact, many youth do not know their status.


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Legal & Policy Concerns

• Violates state juvenile confidentiality laws to report and share juvenile information?

• Undermine goals of the system?

– Separation of youth from family

– Disconnected from services

• Erode community and parental trust?

• Frustrate or interrupt rehabilitation?

– Long detention periods = Increased risk for negative outcomes

© 2014 Immigrant Legal Resource Center


Once ICE apprehends a youth,

90% are not immediately

removed/deported from the United

States. More than 90% of youth referred by juvenile justice authorities to ICE

return to the community due to reunification with a parent or family

member pending their removal proceedings.


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What happens to the youth

once they are picked up? ORR Detention (for “unaccompanied” minors)

– ORR houses juvenile justice involved youth in secure, staff secure, or therapeutic facilities (secure in Northern California, Oregon, Virginia) so youth will most likely be moved out of the state.

– Average length of stay in ORR detention = 61 days

© 2014 Immigrant Legal Resource Center


What happens to the youth

once picked up?

• Reunification Efforts

– ORR is required under federal law to reunify

youth with their families (or other sponsor).

• Approximately 7% of youth are returned to

their country of origin


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Deportation

If immigrant has a final administrative order of deportation/removal, and no stay of

deportation, ICE may deport him/her. Consulate usually issues travel documents

first.

ICE/CBP Processing Station

At the border, CBP screens all children for fear of return/human trafficking.

If child is from a contiguous country (Mexico, Canada) and is determined not to be in need of protection, they are voluntarily returned.

Children from non-contiguous countries, e.g., Central America, are usually transferred to ORR custody.

Both CBP & ICE must make a determination at arrest whether the child is “unaccompanied.”

Unaccompanied means a child who has no lawful imm status in the U.S., is under 18 years of age, & has no parent or legal guardian in the country present or available to provide care & physical custody.

If determined to be a UAC, the child must be transferred to ORR within 72 hours (as req’d by TVPRA).

Charged with immigration violations. No counsel provided and if you have counsel, not

typically allowed at this stage. Risk of losing right to hearing.

Pressured to sign documents giving up right to hearing.

Consular assistance - Vienna Convention.

Juvenile or Criminal Prosecution •Deportation process happens simultaneously or after prosecution/adjudication.

Immigrant Legal Resource Center

www.ilrc.org

Adapted from Deportation 101 by Families for

Freedom, National Immigration Project of the

NLG, NYSDA Immigrant Defense Project, and

Detention Watch Network (March 2007)

Revised September 2014.

• No right to counsel at the gov’t expense at Immigration Court or Appeals Court.

• Immigration Judge makes decision to deport and/or grant relief (lawful imm status), but USCIS has initial jurisdiction to consider Special Immigrant Juvenile Status (SIJS) and asylum applications.

• If granted voluntary departure, UAC not req’d to pay own return. • Immigration Judge is DOJ employee. • Appeal to Board of Immigration Appeals within 30 days.

• Can be detained throughout appeal.

• Circuit Courts of Appeal are extremely limited as to what immigration cases they can review.

Immigration Court System

Detention:

ICE or ORR Facilities can be federal, local/county, private.

Little is known about ICE facilities and they are generally secure.

ORR facilities include shelters, staff secure, secure, or therapeutic.

Very little control over transfer. Juvenile delinquency, drugs, suspected gang

affiliation, or any indication that minor is a flight risk increases likelihood of detention in secure setting.

UACs should receive KYR and legal screening while detained.

If child turns 18, will likely be transferred into ICE custody.

• Process may happen concurrently w/ imm court. • While in ORR custody, a parent, relative or friend

fills out reunification packet and is approved or denied.

• Option of federal foster placement if no sponsor is identified and legal services provider confirms eligibility for imm relief.

ICE/CBP Arrest

ICE• Vast majority of child apprehensions occur at the border.

• Internal apprehensions: • ICE may coordinate with local

police, juvenile probation or detention officers;

• Detainers: immigration hold while juvenile is completing sentence;

• Denial of applications for immigration benefits.

Release

Federal Courts


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http://www.immigrantjusticentwork.org/

Consequences of delinquency for noncitizen youth

• Deportation

• Loss of current legal status

• Barred from eligibility to obtain legal status**

• Apprehension by immigration authorities

• Bars to re-entry (sometimes permanent)

• Temporary bar to obtaining citizenship

• Detention in a secure facility

• Discretionary denial of immigration applications/benefits**


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II. How Defenders Can Help


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Immigration status

Pending charges

Prior criminal history

Padilla v. Kentucky

March 31, 2010

6th A duty to advise client of immigration

consequences prior to pleading guilty

Failure to advise is

ineffective assistance of counsel


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Defender’s Responsibility

to Client

What’s not enough regarding immigration consequences:

• Silence

• “You might be deported”

• “You will be deported” (told to every client)

• “Hire an immigration attorney”

• Guessing, common sense (Just assume the answer doesn’t make sense)


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Step One: Identify Immigrant Clients

1. Ask the client’s place of birth! (after you calrify that you are NOT ICE!). If Client states they are not born in the US …

Non-Citizen Client Worksheet

individual immigration status

priors and current charge/s

Prior Departures

Family ties

Clients Wishes

Step 2: Advise on Immigration

Consequences • Examine immigration law’s treatment of

client’s particular circumstances.

• Advise the client and defend against the consequences if the client chooses.

**Try to avoid adjudications for drug sales, gang, violence, DV, sex crimes if at all possible.



Gangs, Violence and Sex

Juvenile “conduct” considered as matter of

discretion in any immigration application.

Sometimes, insurmountable. • Gang activity, membership, affiliation, involvement

• sex offenses

• violent offenses

these are all high priority enforcement areas

• Judges may still grant as a matter of discretion but the

minor will have to show substantial equities and

rehabilitation. © 2014 Immigrant Legal Resource Center


Delinquency is Not a Conviction

• Juvenile delinquency dispositions are NOT “convictions” under immigration law. – Matter of Devison, 22 I&N Dec. 1362 (BIA 2000)(en banc)(“Congress has

recognized…that adjudications for juvenile delinquency are separate and distinct from criminal convictions.”)

• Most, but not all, criminal related provisions of immigration law are triggered by a conviction.


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But Bad Conduct Alone Can Trigger An

Immigration Penalty

• No conviction required: “bad acts” or conduct

alone can trigger immigration law.

– Drug trafficking incidents are especially

problematic.

• Some conduct can be forgiven in immigration

court and others cannot.


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Inadmissibility vs. Deportability

If client has been lawfully admitted to the U.S. (Permanent Resident/Green Card, Visa, etc.), may be charged with grounds of deportability pursuant to 8 USC § 1227.

If client is seeking entry or admission to the United States, may be charged with grounds of inadmissibility pursuant to 8 USC § 1182.

Grounds of deportability and inadmissibility list slightly different crimes.

Minors Tried as Adults

• Minors who are tried as adults face serious

immigration consequences from convictions.

GOALS:

• If at all possible, keep the minor in delinquency.

• If adult conviction, immigration analysis is

more complicated. GET HELP.

Intake with Immigrant Clients

Client interview:

1) Abused/abandoned/neglected by either parent?(SIJS)

2) Victim of any violent crimes in the U.S.? (U-Visa)

3) Parents/ siblings victim of a violence? (U-Visa)

4) Trafficked? (T-Visa)

5) Abuse/DV victim or same for parent? (VAWA)

6) Fear of return to home country (Asylum)

7) In the U.S. since June 15, 2007 and was under 16 when entered U.S.? (DACA)



2 ways Defender can help GET

Immigration Relief

• Special Immigrant Juvenile Status

– Requires an order from a juvenile court finding the child cannot reunify with one or both parents due to abuse, neglect, abandonment or similar basis.

• U Visa (victim of crime visa)

– Requires an agency who has the authority to investigate or prosecute a crime to certify that person is a victim and is likely to be or has been helpful to that investigation or prosecution.


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How does a defender help?

Take Initial Steps to Help Client

1. Flag forms of relief

2. Obtain necessary juvenile court order or certification for immigration

3. Connect client with immigration attorney



Delinquency Courts Can Make SIJS

Findings

The SIJS regulations at 8 C.F.R. §204.11(a) define “juvenile court” as a

court located in the U.S. having jurisdiction under State law to make

judicial determinations about the custody and care of juveniles.*

NOT just dependency courts – juvenile justice courts also able to make

SIJS findings

• Leslie H. v. Superior Court, 224 Cal. App. 4th 340 (Cal. App. 2014)

• In re Mario S. 954 N.Y.S.2d 843 (N.Y. Fam.Ct. 2012)

• Eddie E. v. Superior Court 223 Cal.App.4th 622 (Cal. App. 2013)

• In re Welfare of D.A.M, 2012 WL 6097225 (Minn. App. 2012)

* Note: regs are outdated since change in law in 2008 (TVPRA) but this definition still accurate


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How can I obtain a SIJS order for my

client?

• Options:

– Petition for SIJS Factual Findings (samples are available)

– Memorandum of Points and Authorities (samples available)

– Evidence in support of factual findings (declarations/affidavits or other evidence like probation reports, death certificates, etc)

– Proposed order (see if your state has a form order)


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SIJS Orders Should Not Be Denied

Because of Delinquency

• The federal immigration statute for Special Immigrant Juvenile Status, “commits to a juvenile court only the limited, fact finding role of identifying abused, neglected, or abandoned alien children under its jurisdiction…”

• “The juvenile court need not determine any other issues, such as what the motivation of the juvenile in making application for the required findings might be...; whether allowing a particular child to remain in the United States might someday pose some unknown threat to public safety…”

– In Leslie H. v. The Superior Court of Orange County, (2014) 224 Cal. App. 4th 340.


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How can I help my client obtain a U or T

visa?

U visa (victim of crime)

- Seek certification that client has been the victim of a qualifying crime and has been or is likely to be helpful in the investigation

• certification can be from a federal, state or local law enforcement official, prosecutor, judge, or other authority investigating criminal activity

• http://www.uscis.gov/sites/default/files/files/form/i-918supb.pdf

• Note: without this certification client cannot even apply for U visa

T visa (victim of trafficking)

- Seek certification that client has been the victim of sex or labor trafficking

- http://www.uscis.gov/sites/default/files/files/form/i-914supb.pdf


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http://www.uscis.gov/sites/default/files/files/form/i-918supb.pdf







OTHER WAYS TO HELP YOUR

IMMIGRANT CLIENTS


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Placement at Disposition

• If the minor is going to be released to a parent,

make sure that the disposition order specifies

this and includes conditions of probation.

• If the minor is going to be released to

someone other than the parent, ask to have

that person appointed as the minor’s legal

guardian and have the disposition order

specify release to the legal guardian and

include conditions of probation.



Confidentiality Issues

• Challenge information sharing between probation and ICE (usually this is happening if there is an ICE hold) if there is an argument under state law to do so.

• If state law protects juvenile records from disclosure to federal immigration authorities: – Ask judge to authorize release of documents to the immigration

attorney, and to the Office of Refugee Resettlement if the immigration attorney determines it would be in the minor’s best interests to share that information.

– If a minor later files an application for relief, it may be necessary to file a motion or appear in court to request that the information be shared with U.S. Citizenship and Immigration Services, with ICE or with the Executive Office for Immigration Review (the Immigration Court)



Immigration Enforcement

If minor has ICE hold:

• Advocate with probation to disregard the ICE hold (remember, it’s just a request)

• Ensure that client is immediately released from custody and not held beyond their release for ICE if there is a local ICE detainer policy. Report violations if applicable.

• Provide client information about what may happen if there is possible apprehension by ICE.



III. Best

Practices &

Policies


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When in doubt, refer!

• The minor should talk to an immigration attorney before turning 18, as immigration consequences are different after reaching the age of majority and the minor may lose eligibility for certain relief.

• If, in your representation of a minor, you learn that he/she is undocumented, please refer to an immigration attorney and let him/her know that it’s important to go!



Other Resources

• ILRC Website: Materials under “Remedies for

immigrant youth and children” tab http://ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth

• Free Criminal Defender Resource Library on

immigration consequences of crime and

delinquency at www.defendingimmigrants.org

• Publication: Special Immigrant Juvenile Status &

Other Immigration Options for Children & Youth

– www.ilrc.org

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http://ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth

















http://www.defendingimmigrants.org/

http://www.ilrc.org/

Contact Information

• Hayley Upshaw, Senior Staff Attorney

• Legal Services for Children

• Email: [email protected]


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mailto:[email protected]



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