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National Association of Counsel for Children
 October 21, 2010
Developed by:
Florida Immigrant Advocacy Center
& University of Miami School of Law’s
Children & Youth Law Clinic
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To analyze specific case studies in which
undocumented or mixed status families encounter
legal and cultural barriers in juvenile and family
courts.
To review immigration legal status options that may
be available to undocumented immigrants.
To present best practice models to assist
undocumented and mixed status families in juvenile
and family courts.
To propose changes to federal law and local practices
to overcome barriers and inequities faced by
undocumented and mixed status families in juvenile
and family courts.
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Case Study #1: Case of Carmen & Marina
- immigration status; mixed status families
- case plan compliance
- reputable immigration legal assistance
- immigration remedies for families
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Case Study #2: Case of Carlos
- confidentiality of child welfare proceedings
- best interests of (immigrant) children
- immigration remedies for children
- immigration system for children
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Case Study #3: Case of Mercedes
-ASFA compliance issues
-Bias and discrimination toward undocumented
parents and families
-Incarceration and deportation proceedings
-Language barriers
-Lack of services and relative placements
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Undocumented and Mixed Status Families in the
Juvenile and Family Courtroom
Best Practices--Protecting All Children, Without
Regard To Immigration Status: A Case Study in
Florida
Potential Immigration Remedies For Immigrants In
Court Proceedings
Partnering With Immigration Legal Services Providers
Reforming practices and ASFA Guidelines that hinder
the abilities of undocumented families to overcome
barriers and inequities such as limited availability of
bilingual services, inappropriate TPRs, delays in
locating kinship caregivers, etc.
Inequities Faced by Immigrants in the Child
Protection Systems
Every year, a significant number of immigrant
children enter the dependency system due to abuse,
abandonment, and neglect. Some of these children
have legal immigration status, some do not, and
others may have no documentation to prove their
status.
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In addition to children, parents and caregivers, as
well as prospective family caregivers, may not have
legal immigration status in the United States.
There are a growing number of children in “mixed
status” households, where family members do not
share the same immigration status.
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What does it mean to be “undocumented”?
What are the consequences of being
“undocumented”?
What about for undocumented children?
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One who is present in the U.S. without lawful
immigration status or without proof of lawful status.
Examples:
One who entered the U.S. on a visa that has expired.
One who crossed the U.S. border without detection.
One who obtained lawful immigration status and
subsequently lost his/her status.
One who obtained lawful immigration status but
does not have proof of status.
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Federal Immigration Law states that an undocumented
child may be subject to:
Detention by federal immigration authorities.
Deportation to their home countries.
Please note: a child/adult may have a legal remedy to
remain in the U.S., despite how they entered the
country or their current immigration status.
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Children may be detained and deported by federal
immigration authorities, even if:
The juvenile court has ordered the child to live in a
licensed foster home, relative placement or shelter
care.
The child does not have any relatives in his/her
home country who can care for him/her.
The child has lived in the U.S. for most of his/her
life, does not have any ties with the home country,
or speak the language of the home country.
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Parents may be detained and deported, and may
permanently lose parental rights after removal to
home countries, even if they have not
abandoned, abused or neglected their children.
ASFA’s expedited permanency process interacts
with aspects of U.S. immigration law to affect
decision- making for immigrant families.
ASFA guidelines place added burdens on
undocumented families in meeting case plan
requirements.
Children are disadvantaged by culturally biased
practices (e.g., juvenile court decisions and child
protection system practices that prevent their
placement with kinship caregivers).
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History of Alien Child Rule and Statute
Lessons learned:
◦ The appropriate role of the court is to protect the
best interests of the child.
◦ Obtaining lawful immigration status is critical for
children to achieve permanency and to be protected
from deportation.
◦ Developing a relationship with a reputable
immigration legal service provider is critical for the
immigrant, the court, and child welfare
professionals.
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“This rule is intended to resolve any
question… relating to both the investigation
of allegations of abuse, neglect or
abandonment when the alleged victim is an
undocumented alien child…[to] apply to all
children in Florida without regard to alienage
or immigration status…”
developed by Florida Immigrant
Advocacy Center & University of
Miami School of Law's Children &
Youth Law Clinic
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Florida Statute, 39.5075(2)
Whenever a child is adjudicated dependent, the
department or community-based care provider shall
determine whether the child is a citizen of the United
States. The department or community-based care
provider shall report to the court in its first judicial
review concerning the child whether the child is a
citizen of the United States and, if not, the steps that
have been taken to address the citizenship or
residency status of the child.
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Florida Statute 39.5075(5) is the first statute in the
nation that requires the provision of counsel for
children involved in the immigration system,
obligating the state to prepare and file a petition for
Special Immigrant Juvenile Status for children eligible
for that status.
Legislation was motivated by concerns that
dependent immigrant children were aging out of
foster care and ending up homeless, destitute and
unable to pay taxes as a result of their irregular
immigration status and consequent lack of access to
employment and government services.
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A child with lawful immigration status may:
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Work lawfully in the U.S.
Obtain a state-issued ID or Driver’s License
Obtain a social security number
Receive public benefits, such as Medicaid
Receive financial assistance for college education
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Special Immigrant Juvenile Status
Relief under the Violence Against Women Act (VAWA)
U visa
T visa
Asylum-related relief
Derivative status through parents
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Special visa for vulnerable immigrant children:
 who have been declared dependent by a juvenile court;
 where reunification with one or both parents is
not viable due to abuse, abandonment, neglect or
other similar basis under state law; and
 where it would not be in the child’s best interest
to be returned to the alien’s or parent’s previous
country of nationality or country of last habitual
residence.
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Immediately eligible for legal permanent residency
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Cannot assist parents with immigration status
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A “juvenile court” means a court located in the
United States having jurisdiction under State law
to make judicial determinations about the
custody and care of juveniles. In many states,
this could be a dependency case, delinquency or
probate/guardianship. See 8 C.F.R. § 204.11(a).
The juvenile court may commit the child to care
of state child welfare authorities, an individual, or
an entity.
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Provides immigration remedy for children who have
been abused by a parent or step-parent. The abusive
parent or step-parent must be a lawful permanent
resident or United States citizen.
Also, an immigration remedy for a parent abused by
their lawful permanent resident or U.S. citizen
spouse.
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For (child or adult) victims of certain serious crimes.
Allows one to become eligible for lawful permanent
residency after 3 years.
Basic requirements for victimized individual:
Suffered substantial physical or mental abuse as
having been victim of certain crimes;
Demonstrates that s/he possesses knowledge of
the criminal activity; and
Certification from federal, state, local authority with
power to investigate criminal activity (note: does
not require criminal prosecution to occur)
Child welfare authorities and state court judges are
authorized to sign U visa certifications.
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Bias and Misperception in the Child Welfare
System Towards Undocumented Immigrant
Parents.
Rights in the Parent-Child Relationship Are
Not Diminished by Deportation.
Exploring all Options for Children of
Undocumented Immigrant Parents to Maintain
Relationships with Parents and Other Family
Members, including Reunification with
Parents in Home Country after Deportation.
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Requires communicating and evaluating
options across linguistic, cultural, and
geographic borders.
Requires social service and family courts to
commit resources and question existing
routines.
Suggests a need to modify ASFA timelines to
allow exceptions in the event of complicated
immigration cases.
developed by Florida Immigrant
Advocacy Center & University of
Miami School of Law's Children &
Youth Law Clinic
Examples:
 Local immigration legal service providers
 Local legal aid agencies
 Law school legal clinics
 National organizations,
◦ e.g., American Immigration Lawyers Association,
American Bar Association
 Local bar associations
Criminal
Issues
Aging Out
Child is in
immigration
proceedings
◦ Michelle Abarca or Deborah Lee
Florida Immigrant Advocacy Center
(305) 573-1106
[email protected]
[email protected]
◦ Bernard P. Perlmutter
Children & Youth Law Clinic
University of Miami School of Law
(305) 284-3123
[email protected]