state court tips for sijs cases - children's … · state court tips for ... •texas family...

1/24/2017

1

STATE COURT TIPS FOR SIJS CASES

DALIA CASTILLO‐GRANADOS, DIRECTORABA CHILDREN’S IMMIGRATION LAW ACADEMY

CHLOE WALKER, STAFF ATTORNEYTAHIRIH JUSTICE CENTER

Special Immigrant Juvenile Status

Custody or Dependency

Parental Reunification

Best Interest

Consent

1/24/2017

2

SIJS ELIGIBILITY REQUIREMENTS

Physically present in the US

Unmarried

Under 21 on the date of filing

Juvenile court order with findings

DHS consent

JUVENILE COURT ORDER

Best Interest

Parental Reunification

Custody OR Dependency

1/24/2017

3

CUSTODY

• “There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedures in issuing state court orders.”

USCIS Policy Manual, Part J, Volume 6, Chapter 1, Section A

• “The petitioner must be the subject of a juvenile court order that declares him or her dependent on a juvenile court, or legally commits to or places the petitioner under the custody of either an agency or department of a state, or a person or entity appointed by a state or juvenile court. Placing the petitioner “under the custody of” a person requires physical custody. A qualifying court‐appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent’s abuse, neglect, or abandonment of the pe oner. ”

• “Court‐ordered dependency or custodial placements that are intended to be temporary generally do not qualify for the purpose of establishing eligibility for SIJ classifica on. A court‐appointed custodian that is ac ng as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent, is not considered a custodian for purposes of establishing SIJ eligibility. ”

USCIS Policy Manual, Part J, Volume 6, Chapter 2, Section D, Subsection 1

CUSTODY

• “The juvenile court order must have been properly issued under state law to be valid for the purposes of establishing eligibility for SIJ classification. This includes the need for the juvenile court to follow their state laws on jurisdiction. For example, a juvenile court may not be able to take jurisdiction and issue a dependency or custody order for a juvenile who is 18 years of age or older even though the juvenile may file his or her petition with USCIS until the age of 21. There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law. ”

• “In general, the petitioner must remain under the jurisdiction of the juvenile court at the time of the filing and adjudica on of the SIJ pe on, subject to some excep ons…”

• “The petitioner was the subject of a valid order that was terminated based on age before or after filing the SIJ petition (provided the petitioner was under 21 years of age at the time of filing the SIJ pe on). ”


1/24/2017

4

Tip: Scrub all pleadings/orders of citations to the INA and focus instead on state law.

WHERE TO START‐ RESOURCES

• Texas Family Code

• Texas Bar CLE Online Library: http://www.texasbarcle.com/CLE/OLHome.asp

• Texas Family Law Practice Manual (and Forms): https://www.texasfamilymanual.com/

• Local Rules of your jurisdiction

• Travis County‐https://www.traviscountytx.gov/images/courts/Docs/local_rules_civildistrict.pdf

• Harris County‐ https://www.justex.net/Courts/Family/LocalRules.aspx

• Bexar County‐http://home.bexar.org/dc/Downloads/Bexar_County_Local_Civil_Rules_Part3.pdf

• Harris County resource: http://hbafamilylaw.org/wp‐content/uploads/2012/04/AJ‐Luncheon‐Handout.pdf

1/24/2017

5

RIGHTS AND DUTIES (153.071)Parents: Exclusive, Joint, Independent

•Written finding required to limit rights and duties (153.072)

Rights of parentsAT ALL TIMES (153.073)

•Including possessory conservatory

Rights and duties of parents during P&A (153.074)

Duties of conservators (153.076)

Rights and duties of parent SMC (153.132)

Rights and duties of parent PC (153.192(a))

•Refers back to 153.073, 074

Rights and duties of nonparent SMC

(153.371)

Rights and duties of nonparent PC

(153.376)

Quick Reference guide: CONSERVATORSHIP = Rights and Duties Managing Conservator (101.019)

• Joint (101.016) (sharing of rights and duties)

• Sole (153.132) (exclusive rights)

JMC Presumption (153.131)

•Rebutted by significant impairment to physical health or emotional development

Possessory Conservator (153.006)

•Must specify rights, duties AND conditions for P&A absent best interest of child

Parental Presumption (153.131; 153.191)

• Removed (JMC) if history of child neglect, physical or sexual abuse (153.004(b))

• Removed (MC) if voluntary relinquishment (153.373)

• Must consider intentional use of abusive physical force, sexual abuse, history or pattern of family violence (153.004; 153.005)

TIPS ON CUSTODY: PARENTAGE

Parent = mother, presumed father, legally determined father, adjudicated father, acknowledged father under relevant law, adoptive mother or father(101.024, 160.201)

Legal relationship necessary to appoint conservatorship, possession, access, support (101.025, 101.032)

Presumption of paternity creates legal relationship under operation of law (160.102(13); 160.204)

Born during or within 301 days of marriage (valid or in apparent compliance with law)

Married after birth AND voluntarily acknowledged

Not married but continuously resided during first two years of child’s life AND represented to others that the child was his own.

Rebutted by adjudication or AOP of another party

Time limitation (4 years) UNLESS mistaken belief or no possibility of conception (160.607)

Acknowledgement of Paternity creates a determination of parentage (160.102(5); 160.301)

Must be filed with VSU

Must be on prescribed form issued by certified entities: https://www.texasattorneygeneral.gov/cs/aop‐certified‐entities

Void if presumed, acknowledged, or adjudicated father already exists

***Can be challenged at any timeon basis of fraud, duress or material mistake of fact (contrary DNA evidence)

Birth certificate in another country

•Under the principle of comity, foreign legitimization should be recognized by Texas if similar to AOP

Adjudication of Paternity (160.601‐637)

Admission by party in pleading or in open court IF no reason to question the admission (160.623)

Unrebutted results of qualified genetic testing (160.631, 505)

1/24/2017

6

DEPENDENCY

8 C.F.R. 204.11(c)(3)

• “Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court.”

Matter of Jose A. Menjivar, AAO (Dec. 27, 1994)

• “[T]here is no requirement that the State court decree contain the specific statement that the beneficiary is dependent upon thecourt. The acceptance of jurisdiction over the custody of a child by a juvenile court, when the child’s parents have effectively relinquished control of the child, makes the child dependent upon the juvenile court, whether the child is placed by te [sic] court in foster care, or, as here, in a guardianship situation.”

Form I‐360

• “Provide the name of the state agency, department, or court‐appointed organization or individual with which you are placed…”


• “For an example of state law governing declarations of dependency see California Welfare and Institutions Code Section 300.”

Budhathoki v. Dep't of Homeland Sec., No. A‐16‐CA‐275‐SS, 2016 WL 7159125 (W.D. Tex. Oct. 21, 2016)

• “According to USCIS, because ‘[d]ependency is recognized under Texas law as a type of custody proceeding,’ the SAPCR orders finding a duty of child support owed to Plaintiffs do not constitute “dependency” as required by the INA.”

• “The SACPR orders do not identify any statutory or legal authority under Texas law that supports finding the child support awards established Plaintiffs' dependency.”

TIPS ON DEPENDENCY

Dependent = specific state statute

•[Child] is dependent on the Court pursuant to the Court’s authority under Texas Family Code [ ].

•Examples: Paternity‐ § 160.201; Child support‐ §§ 154.001 or 154.002

Common usage argument:

•“If the statute is clear and unambiguous, we must apply its words according to their common meaning without resort to rules of construction or extrinsic aids.” State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

•Dependent‐ someone who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else. Black's Law Dictionary (10th ed. 2014).

Equity argument:

•“In order to attain self‐sufficiency, the plaintiff and other youth in her situation need the assistance of the Probate and Family Court in the form of special findings applicable to SIJ status. If an immigrant child is able to show, for purposes of SIJ status eligibility, that he or she experienced abuse, neglect, or abandonment by one or both parents, it follows that the child is dependent on the Probate and Family Court for the opportunity to obtain relief. The child would be “dependent” on the Probate and Family Court for the assistance that is available in applying successfully for the Federal relief, i.e., SIJ status.” Recinos v. Escobar, 473 Mass. 734, 743, 46 N.E.3d 60, 68 (2016).

Tip: Make an argument of dependency under Texas law.

1/24/2017

7

PARENTAL REUNIFICATION


• “The juvenile court must find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under the relevant state child welfare laws. Lack of viable reunification generally means that the court intends its finding that the child cannot reunify with his or her parent (or parents) remains in effect until the child ages out of the juvenile court’s jurisdiction.”

• “The findings must be based upon the person (or persons) who is the petitioner’s parent (or parents).”

• “For example, if the findings are based on a father not listed on the petitioner’s birth certificate, a determination that the claimed father is the father under state law should be established in the juvenile court order.”

USCIS Policy Manual, Part J, Volume 6, Chapter 3, Section A, Subsection 2

• The juvenile court order may use different legal terms than those found in the INA as long as the findings have the same meaning as the requirements for SIJ classification.


Abuse, neglect, abandonment, or similar

basis

• Overcome JMC

• 153.004(a) “intentional use of abusive physical force”

• 153.004 (a) “sexual abuse by Respondent against child within two years”

• 153.004(b).“history or pattern of past or present child neglect, or physical or sexual abuse”

• 153.005 (c) “history or pattern of family violence, child abuse or neglect or final protective order”

• 153.131(a); 101.009 “significant impairment of child’s physical health or emotional development”

• 153.131(b) “finding of a history of family violence”

• 153.373 “voluntarily relinquished actual care, control and possession to a nonparent…”

• 153.503(1) risk of international abduction by other parent (high burden)

• 102.004 Grandparent standing “significant impairment to child’s physical health or emotional development”

1/24/2017

8


Overcome Standard Possession

Order/Unsupervised Visitation

• 153.191 “endanger physical or emotional welfare of the child”

• 153.004 (c) “commission of family violence or sexual abuse”

• 153.004(d)(1) “history or pattern of family violence in past two years”

• 153.004(d)(2) criminal sexual conduct

• 153.004(e) “history or pattern of past or present child neglect or abuse”

• 153.503(2) risk of international abduction (high burden)

• 153.433 (a)(2) Grandparent possession and access “significant impairment to child’s physical health or emotional development”

Modification of Custody

• 156.102 “endanger the child's physical health or significantly impair the child's development”

• 156.104 child abuse conviction

• 156.1045 family violence conviction


• Sample Language in Pleadings and Order

• Restricted Possession and Access based on 153.004 (e) abuse or neglect

• Pleading

• Petitioner requests that the Court find that Respondent’s access to the child should be denied because Respondent has a history or pattern of [child neglect/sexual abuse/physical abuse/child neglect and sexual abuse/child neglect and physical abuse/sexual and physical abuse/child neglect, sexual abuse, and physical abuse] directed against [name[s] of child[ren] and other parent, spouse]. [Include if applicable: A protective order was rendered under chapter 85 of title 4 of the Texas Family Code against Respondent during the two‐year period preceding the date of filing of this suit.] Alternatively, Petitioner requests that the Court find that it is not in the best interest of the child for Respondent to have unsupervised visitation with the child, because there is history or pattern of [child neglect/sexual abuse/physical abuse/child neglect and sexual abuse/child neglect and physical abuse/sexual and physical abuse/child neglect, sexual abuse, and physical abuse] directed against [name[s] of child[ren] and other parent, spouse]. Petitioner requests that the Court render a possession order that provides that Respondent’s periods of visitation be continuously supervised by an entity or person chosen by the Court.

• Order

• The Court finds that credible evidence has been presented that [name] has a history or pattern of [child neglect/sexual abuse/physical abuse/child neglect and sexual abuse/child neglect and physical abuse/sexual and physical abuse/child neglect, sexual abuse, and physical abuse] directed against [name[s] of child[ren] and other parent, spouse].

• IT IS THEREFORE ORDERED that visitation shall be under the supervision of [name of person or supervising agency or program] [on the following days and times: [list days and times of access]/on the days and times prescribed by [name of person or supervising agency or program]] :

1/24/2017

9


Pleading:• The parents of the child[ren] are or will be separated. The appointment of the parents as joint managing conservators would not be in the best interest of the child[ren]. It is in the best interest of the child[ren] that Petitioner be appointed sole managing conservator of the child[ren].

Order: • The Court finds that the following orders are in the best interest of the child[ren] because the appointment of [name] as a joint managing conservator would significantly impair the child’s [physical health/emotional development] because [name] abandoned child[ren]. IT IS THEREFORE ORDERED that [name] is appointed Sole Managing Conservator and [name] is appointed Possessory Conservator of the following child[ren]:

SMC using abandonment as

significant Impairment of emotional

development under 153.131


Tips on Reunification

• Not defined in the Texas Family Code. Therefore, the order may not be explicit as to reunification.

• Since termination of parental rights is not required, and without it, state courts will not typically wholly limit access to a child, USCIS should be flexible in reviewing custody orders.

• Argue to USCIS that no managing conservatorship and no or limited possessory conservatorship = non‐reunification.

1/24/2017

10

Sample language

• [Reunification with Respondent is not viable because] the Court finds that credible evidence has been presented that [name] has a history or pattern of [child neglect/sexual abuse/physical abuse/child neglect and sexual abuse/child neglect and physical abuse/sexual and physical abuse/child neglect, sexual abuse, and physical abuse] directed against [name[s] of child[ren] and other parent, spouse].

• [Reunification with Respondent is not viable because] [t]he Court finds that the following orders are in the best interest of the child[ren] because the appointment of [name] as a joint managing conservator would significantly impair the child’s [physical health/emotional development] because [name] abandoned child[ren].

BEST INTEREST

USCIS Policy Manual, Part J, Volume 6, Chapter 2, Section D2

• “This requires a determination by the juvenile court that a placement in the child’s, or his or her parents’, country of nationality or last habitual residence is not in the child’s best interest.”

• “The court’s finding that a particular custodial placement is the best alternative available to the petitioner in the United States does not necessarily establish that a placement in the petitioner’s country of nationality would not be in the child’s best interest.”

1/24/2017

11

BEST INTEREST

Tips on Best Interest

• A specific finding not guaranteed because Texas law is focused on rights of parent to decide where the child lives and where the visitation should occur.

• Argue to USCIS that granting SMC to parent/nonparent who resides in the US makes an implicit finding that the child should not return to the home country.

• Argue to USCIS that restricting possession and access to be supervised in Texas/travel restrictions make an implicit finding that child should not return to home country .

• Restrict Respondent’s right to exercise visitation anywhere other than Texas.

• Restrict Respondent’s ability to travel with the child outside of U.S.

• Be cautious before including a residency restriction for the SMC parent.

Sample language

• Placement in [country] is not in the best interest of the child because this Court has determined that there is no appropriate managing conservator living in [country].

• [Reunification with Respondent is not viable because] [t]he Court finds that credible evidence has been presented that [name] has a history or pattern of [child neglect/sexual abuse/physical abuse/child neglect and sexual abuse/child neglect and physical abuse/sexual and physical abuse/child neglect, sexual abuse, and physical abuse] directed against [name[s] of child[ren] and other parent, spouse] in [home country].

• IT IS THEREFORE ORDERED that visitation shall be under the supervision of [name of person or supervising agency or program] in [city, state] [on the following days and times: [list days and times of access]/on the days and times prescribed by [name of person or supervising agency or program]] and that [Respondent] is restricted from exercising possession and access of the child in [home country].

1/24/2017

12

Sample language (continued)

• IT IS ORDERED that [name of petitioner] is the sole person authorized to apply for [a] passport[s] for the child[ren], [name[s] of child[ren]]. If [name of petitioner] applies for a passport for the child[ren], [name of petitioner] is ORDERED to notify the other conservator[s] of that fact no later than [number] days after the application.

• IT IS ORDERED that [name of respondent] and any person acting on behalf of [name of respondent] is prohibited from removing [name[s] of child[ren]] from Texas or the United States and specifically from removing the child to [home country]. IT IS FURTHER ORDERED that [name of respondent] shall surrender any passport issued in the name[s] of [name[s] of child[ren]], including any passport issued to [name of respondent] and [name[s] of child[ren]], to [name of petitioner] on the date that this order is signed by the Court. IT IS FURTHER ORDERED that [name of respondent] is prohibited from applying on behalf of [name[s] of child[ren]] for a new or replacement passport or international travel visa.

CONSENT

• The TVPRA of 2008 revised INA § 101(a)(27)(J) from a requirement of “express consent” to “consent”

• Prior to 2008, INA § 101(a)(27)(J)(iii) required that the “Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status.”

• After the TVPRA of 2008, the language of INA § 101(a)(27)(J)(iii) now states “in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status.”

• USCIS Policy Manual, Part J, Volume 6, Chapter 2, Section D, Subsection 5

• “The William Wilberforce Trafficking Vic ms Protec on Reauthoriza on Act of 2008 (TVPRA 2008) simplified but did not remove the Department of Homeland Security (DHS) consent requirement. In order to consent, USCIS must review the juvenile court order to conclude that the request for SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigra on benefit. The court ordered dependency or custodial placement of the child is the relief being sought from the juvenile court, and the factual basis of each of the required findings is evidence that the request for SIJ classification is bona fide. ”

1/24/2017

13

CONSENT‐ FACTUAL BASIS


• “Template orders that simply recite the immigration statute or regulatory language are generally not sufficient. Orders that have the necessary findings or rulings and include, or are supplemented by, the factual basis for the court’s findings (for example, the judicial findings of fact) are usually sufficient to establish eligibility.”

• Supporting documents, petitions, affidavits


• “The order or suppor ng evidence should specifically indicate:

• With whom the child is placed (for example, the name of the person, or entity, or agency if the child is adjudicated dependent) and the factual basis for this finding;

• Which of the specific grounds (abuse, neglect, abandonment, or similar basis under state law) apply to which of the parent (or parent s) and the factual basis for the court’s findings on non‐viability of parental reunifica on; and

• The factual basis for the determination that it is not in the petitioner’s best interest to return to (a placement in) the petitioner’s or his or her parents’ country of nationality or last habitual residence (for example, addres sing family reunifica on with family that remains in the child’s country of na onality or last habitual residence). ”

CONSENT‐ FACTUAL BASIS

Argue that USCIS is looking to prior legislative history and prior guidance to second‐guess the state court’s findings. Applying this standard is contrary to the revised statutory language and only serves to inappropriately question the state court’s legal conclusions.

Submit court transcript.

Submit pleadings, affidavits, or any other documents submitted to the court.

Texas Rule of Evidence 6.402

The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion.

Texas Rule of Civil Procedure 299a:

Findings of fact shall not be recited in a judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes. Findings of fact shall be filed with the clerk of the court as a document or documents separate and apart from the judgment.

1/24/2017

14

Dalia Castillo‐GranadosDirector

ABA's Children's Immigration Law Academy (CILA)1303 San Jacinto Street, Rm. 940

Houston, Texas 77002Main: 346‐444‐2569Direct: 346‐444‐2570 Fax: 281‐547‐7196

dalia.castillo‐[email protected]

Chloe Walker, JD, LMSWStaff Attorney

Tahirih Justice Center1717 St. James Place, Suite 450

Houston, TX 77056P: 713‐714‐1121F: 713‐481‐1793

[email protected]

state court tips for sijs cases - children's … · state court tips for ... •texas family...

Documents