Undocumented Youth and Family Law Proceedings King County

Undocumented Youth and Family Law
Proceedings
King County Bar Association
Continuing Legal Education
December 5, 2014
Mary Van Cleve, Columbia Legal Services
Zaida Rivera, Northwest Immigrant Rights Project
Rebekah Fletcher, Kids in Need of Defense
www.columbialegal.org
Surge of Youth
Family Law Cases
Undocumented Youth
(1) Children apprehended and deemed unaccompanied >
detained by federal government > released to
parent/relative/adult caretaker
(2) Undocumented children who have never been apprehended
> residing with parent/relative/caretaker
Increased number of youth released WA, often NPC cases
Also, recent Executive Order may lead to more family law
cases.
www.columbialegal.org
Undocumented Youth may be eligible for
Special Immigrant Juvenile Status (SIJS)
Consult with immigration attorney (or referral from
immigration attorney) to make sure SIJS is appropriate.
SIJS is a nonimmigrant visa. It then allows qualifying youth to
petition the federal government for lawful permanent
residence (green card).
Lawful permanent residence: protects against deportation,
allows for work authorization, ID (“documented”), eligible for
federal student financial aid, after 5 years of LPR can petition
for citizenship.
www.columbialegal.org
First step in getting SIJS: State Court
Findings
State court order with predicate findings required
before petitioning immigration authorities for SIJS
status
• Any Washington state court with jurisdiction over
the placement of a child can issue findings.
• Possible proceedings are: Dependency, TPR, NPC,
Guardianship, Adoption, Delinquency,
Dissolution/Legal Separation, Paternity/Parentage,
Parenting Plan Modifications, DVPO’s, CHINS and
ARY.
www.columbialegal.org
SIJS State Court Findings
Separate, predicate order with required
findings recommended
– other pleadings not filed with visa
petition.
Child must be under State court jurisdiction at
time of filing, AND at the time visa is
adjudicated unless jurisdiction ended on
account of age (e.g., at age 18).
www.columbialegal.org
What are SIJS State Court Findings?
•
Court has jurisdiction to make judicial determination about the custody
and care of a juvenile;
•
Under 21; unmarried;
•
Youth is declared dependent or legally committed to or placed under
custody of an individual or entity appointed by the court;
•
It is not in youth’s best interest to be returned to his or her parents’
previous country of nationality or last habitual residence; and
•
Reunification with one or both of the parents is not viable due to abuse,
neglect or abandonment or similar basis found in state law.
www.columbialegal.org
Closer Look: It is not in youth’s best interest
to be returned to his or her parents’ previous
country of last habitual residence
Generally, the same factors considered in other “best interest”
determinations under state law. Other factors: comparing
access to food, shelter, and education in the U.S. and country of
origin. Also of importance may be the ability of the youth’s
parents to keep the youth safe if return home is to an area of
gang violence.
www.columbialegal.org
Closer Look: Reunification with one or both
of the parents is not viable due to abuse,
neglect, or abandonment or similar basis
found in state law.
•
•
•
SIJS findings may be obtained if youth is living with one parent.
Abuse, neglect, abandonment or similar basis (e.g., “no parent available”
dependency finding) is viewed under WA law, even if it might seem
culturally appropriate in the home country.
Under federal law: “reunification not viable” is not further defined; no
requirement that parental rights terminated or that reunification will
never be viable.
www.columbialegal.org
Sources of Law
• 8 USCA §1101(a)(27)(J)
• Implementing regulations at 8 § CFR
204.11 (new regulations pending since
9/11)
• Congress deferred to state courts to make
the predicate findings
Nonparental Custody Cases
Potential custodian is the client, not the youth.
Parents may be amenable to joining the petition,
making service easier (and allowing for waiver
of final order. In this situation, a finding of
parental unsuitability is not necessary.)
Potential custodians or other relatives may be able
to provide declarations to help establish record
for SIJS findings.
If parents not joining, pleadings that support a
finding that the parents are unsuitable custodians
may dovetail with those for obtaining SIJS
findings.
www.columbialegal.org
Service of Process
• RCW 4.28 addresses personal services, service by mail,
publication
• Civil Rule 4 (i) Alternative provisions for Service in a foreign
country
• List of authorized methods
• 4(i)(G) as directed by order of the court
• Must comply with international treaties
• Reasonably calculated under all circumstances to
give actual notice
• Motion for Order Approving Alternative Method of
Service
www.columbialegal.org
Translation Issues
• Court forms available in Spanish
• Motion for payment of interpreter?
• RCW 2.43.040(3) cost born by non-English speaking person
initiating case, unless indigent
• Interpreter resources
• Washington State Court Interpreter Program Translator Database
http://www.courts.wa.gov/programs_orgs/pos_interpret/
• Washington State Coalition for Language Access Interpreter and
Translator Directory
http://www.wascla.org/directory/
• Private interpreting services
• Evergreen Interpreting and Translating Services (telephonic, inperson, or document translation)
http://evergreeninterpreting.com/
www.columbialegal.org
Contact Information
• Mary Van Cleve
[email protected]
206-287-8622
• Zaida Rivera
[email protected]
206
• Rebekah Fletcher
[email protected]
206 359 6203