Immigration & the Juvenile

Justice System

Angie Junck, Supervising AttorneyImmigrant Legal Resource Center

Hayley Upshaw, Senior Staff Attorney, Legal Services for Children

Topics

• Part I: Political Context: Immigration Enforcement

• Part II: Padilla v. Kentucky: Obligations for Juvenile Defenders

• Part III: How can juvenile defenders help immigrant youth?

I. Immigration Enforcement

•

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

“”

How does ICE deportover 400,000 people a year?

ICE Access Programs and ICE holds • §287(g) (only in 2 counties)

• Criminal Alien Program (CAP)

• Secure Communities Program (S-Comm)

• Operation Community Shield, Law Enforcement Support Center, etc.

Access Programs Combined With 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.

ICE HOLD

The federal government cannot require state or local facilities to “hold” or “detain” youth for immigration

purposes.

Immigration Enforcement:AG Says ICE holds are Voluntary

In December 2012, Attorney General Kamala Harris issued a memo explaining that ICE holds are merely requests.

-They are voluntary, not mandatory.

- Not the role of local law enforcement to enforce immigration law.

10© 2014 Immigrant Legal Resource Center

& Legal Services for Children

Immigration Enforcement:ICE says ICE holds are Voluntary

• Letter from ICE to Rep. Adam Smith and other House of Representatives, dated February 25, 2014

“While immigration detainers are an important part of ICE’s

effort to remove criminal aliens…they are not

mandatory as a matter of law.”

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 12

Constitutionality of ICE holds in question

• In Miranda-Olivares v. Clackamas County, the Clackamas County Sheriff in Oregon held Ms. Miranda-Olivares on a detainer although she could have been released on bail and then transferred her to ICE.

Constitutionality of ICE holds in question

• Miranda-Olivares v. Clackamas County: – The Federal District Court in Oregon held that Clackamas

County had unlawfully detained Ms. Miranda-Olivares and would have to pay her damages for unlawfully holding her.

– It does not matter what immigration status Ms. Miranda-Olivares has. Being held on the detainer violated her Fourth Amendment right against unlawful arrest and detention.

– 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.

“It appears that local governments will place themselves in legal jeopardy in an effort to support federal regulation which, according to the federal (and state) government, is merely a request…”

“We advise our clients to NOT honor ICE detainers unless there has been a probable cause hearing (which involves more than the arraignment)”

The Aftermath

Many sheriffs 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, the majority ofCalifornia’s Sheriff Departments have

announced that they will no longer hold people based on ICE holds, because of

the risk of liability.

40+ out of 58 counties will

no longer hold

people based on ICE holds

17© 2014 Immigrant Legal Resource Center & Legal Services for Children

The California TRUST Act

•

California TRUST Act• Prohibits local law enforcement agencies from

detaining noncitizens pursuant to ICE holds past the time they would otherwise be released.

• But some people are disqualified by certain criminal/juvenile records.

• Gov. Code §§ 7282, 7282.5

• Effective Jan. 1, 2014.

• Applies statewide in all 58 counties.

Reconciling Miranda-Olivares and the CA TRUST Act

• The California TRUST Act does not alter the impact of the Miranda-Olivares decision.

o The TRUST Act explicitly does not—and could not—permit any detention that would violate federal law, including the Fourth Amendment.

o The TRUST Act does not, and could not, provide independent legal authority to detain individuals on ICE detainers; it simply places state law limitations on compliance with ICE detainers.

© 2014 Immigrant Legal Resource Center & Legal Services for Children

Reconciling Miranda-Olivares and the CA TRUST Act

• If localities follow Miranda-Olivares…– No immigration detainer is enforced unless it is

accompanied with a judicial determination of probable cause

• If ICE provides a judicial determination of probable cause then the TRUST Act applies

TRUST Act Exceptions for Juveniles:

1. Federal Crimes Issues: • Outstanding federal felony warrant

2. Current registrant of California Sex or Arson Registry

1. Some Federal Crimes, Sex/Arson Registrant

TRUST Act Exceptions for Juveniles:

• Juvenile was adjudicated for an offense that:– 1) was committed when the

juvenile was 16 years of age or older and

– 2) is listed in Cal. W&I Code section 707(b)

2. Adjudicated of Certain Juvenile Offenses

TRUST Act: Floor Not a Ceiling

• Cities and counties may expand protection beyond the TRUST Act, e.g. have fewer or no disqualifying convictions.

• TRUST Act provides that a more generous local law or policy will control

Other Legal and Policy Issues

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.

State Laws Do Not Require Probation to Report Immigration Status

• Cal. Penal Code § 834(b)--requiring local officials to report any person suspected of being in violation of immigration laws to imm authorities-- is on the books, but was declared unconstitutional.

• H&S Code § 11369 requires arresting agencies to report immigrants to immigration authorities for certain drug offenses.

California Confidentiality Laws

• W&I §§ 827 and 828 prohibit the dissemination of juvenile case files and information without a court order.

• Statutory language and legislative history indicate that immigration authorities ARE NOT exempt from having to obtain a court order to access juvenile information and case file.

Policy Concerns

• May undermine goals of Cal. W&I § 202– Separation of youth from family– Immigration apprehension, detention, & removal

proceedings may not be in their best interest– Disconnected from services

• Erode community and parental trust• Frustrate or interrupt rehabilitation efforts?

– Long detention periods resulting in increased risk for negative outcomes

Once ICE apprehends a youth, the youth in most cases will not be 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.

What happens to the youth once picked up?

• ORR Detention– 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

What happens to the youth once picked up?

• Reunification Efforts– ORR is required under federal law to reunify youth

with their families (parents or other relatives).

• More than 90% of juvenile justice involved youth are reunified with family members and therefore, return to their communities.

• Once returned to their communities, ORR is usually no longer involved in providing services to the youth.

• Approximately 7% of youth return to their country of origin.

II. Padilla: Effective Assistance of Counsel

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

CA Appellate Court Decisions on IAC

• People v. Soriano, 194 Cal.App.3d 1470 (1987)(ineffective assistance of counsel for failure to investigate the immigration consequences and advise a noncitizen of them prior to plea)

• People v. Barocio, 216 Cal.App.3d 99 (1989)(ineffective assistance to fail to request a non-deportable sentence)

• People v. Bautista, 115 Cal.App.4th 229 (2004)(ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense)

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)

Immigration Consequences Should Be Considered by DAs and the Juvenile Court

• Deportation is a “penalty” not a “collateral consequence” of the criminal proceeding.

• “Informed consideration” of immigration consequences by the defense AND THE PROSECUTION during plea negotiations, in order to reduce likelihood of deportation and promote interests of justice, is appropriate.

Possible immigration 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**

Delinquency is Not a Conviction

• Juvenile delinquency dispositions are NOT considered “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.

But Bad Conduct Alone Can Trigger An Immigration Penalty

• Numerous crime-related immigration laws can be triggered by “bad acts” or conduct alone. – Drug trafficking incidents are especially

problematic.

• Some conduct can be forgiven in immigration court and others cannot.

Immigration Consequences of Delinquency

Evidence of the juvenile conduct will be used as a matter of discretion in any immigration application; in some cases it is insurmountable.• Watch out for gang activity, membership, affiliation, and

other allegations of gang involvement, sex offenses, and violent offenses.

• Judges may still grant as a matter of discretion but the minor will have to show substantial equities and rehabilitation.

III. Ways Juvenile Defenders Can Help Immigrant Clients

Identify Immigration Issue & Advise Client

1. Identify immigrant (noncitizen) clients by using screening tool.

– Does anyone in their family have legal status?

2. Research immigration consequences of the delinquency case based on 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.

Flag Forms of Relief & Take Initial Steps to Help Client

1. Ask questions to flag possible forms of relief. (See questionnaire in materials.)

2. If client is unable to reunify with one or both parents due to abuse, abandonment or neglect, request Predicate Order (JV-224). If client has been the victim of a qualifying crime for U visa or has been a victim of human trafficking, request certification from the law enforcement agency or the Court.

3. If possible, connect client with immigration attorney.

Intake with Immigrant Clients• In interviewing client, find out if client

– has been abused, abandoned or neglected by either parent (SIJS eligibility)

– has been the victim of any violent crimes in the United States or if their parents or siblings have been the victim of a violent crime (U eligibility)

– has been trafficked (T eligibility)– has been the victim of abuse/DV or parent has

been victim of abuse/DV by citizen/LPR (VAWA)

– has fear of return to home country (Asylum)– or been living in the U.S. at least six years since

before the age of 16 (DACA)

Role of Local Jurisdictions in Immigration Relief

• Special Immigrant Juvenile Status– This requires juvenile courts to sign orders

with certain findings regarding the abuse, neglect, or abandonment of a youth that would him or her to apply for legal status before the federal government

• U Visa (victim of crime visa)– This 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. Without this certification, a youth cannot even apply for legal status.

Role of the Juvenile Court in SIJS

• The entry of SIJS findings by the local juvenile court are necessary for a juvenile to apply for SIJS.

– Leslie H. v. The Superior Court of Orange County, (2014) 224 Cal. App. 4th 340. See also B.F. v. Superior Court, (2012) 207 Cal. App.4th 621

© 2014 Immigrant Legal Resource Center & Legal Services for Children 47

SB 873: SIJS

• “If an order is requested from the superior court making the necessary findings regarding [SIJS]…and there is evidence to support those findings…the court shall issue the order.” (emphasis added)

SIJS Juvenile Court Orders Should Not Depend Upon Delinquency History

• The federal immigration statute for Special Immigrant Juvenile Status, “commits to a juvenile court only the limited, factfinding 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.

Requesting SIJS Predicate Order• If the minor has disclosed abuse, abandonment or

neglect, file a motion requesting an SIJS predicate order (preferably at the time of disposition)

• The JV-224 form is the required form for juvenile courts (300 and 602) in California to use in SIJS cases.

• Sample motions requesting the SIJS predicate orders are available. Defenders may want to include a declaration from the minor (and/or non-offending parent) about the abuse, abandonment or neglect to include with motion.

• Get certified copy of the JV-224 once granted

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, file a guardianship petition 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). See sample motion.

• Please ask the 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 an 827 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:• Ensure that they are immediately released

from custody and not held beyond their release for ICE. Report violations.

• Provide client information about what may happen if there is possible apprehension by ICE. (See deportation map at www.ilrc.org.)

DeportationIf 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.orgAdapted 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

• 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

When in doubt, refer!• Keep in mind that many minors do not

understand their immigration status and what the consequences are of being undocumented.

• If a minor is undocumented, he/she should be encouraged to speak with an immigration attorney right away to see whether he/she can apply for any legal status.

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!

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

• U.S. Citizenship and Immigration Services Website: www.uscis.gov

• Legal Services for Children: (415) 863-3762• SIJS caseworkers toolkit at www.brycs.org/sijs

Resource

A Noncitizen Youth in the Juvenile Justice System

by Annie E. Casey

© 2014 Immigrant Legal Resource Center & Legal Services for Children

Resource

http://trustact.weebly.com/

Contact Information

• Angie Junck, Supervising Attorney• Immigrant Legal Resource Center• Email: ajunck@ilrc.org

• Hayley Upshaw, Senior Staff Attorney• Legal Services for Children• Email: hayley@lsc-sf.org

Thank you!