TENNESSEE DOES THE RIGHT THING ON “SIJ” JURISDICTION – Will Other States Follow Suit? – Young Lives & Our Own Human Dignity Are At Stake!

https://herstontennesseefamilylaw.com/

The Herston Family Law Group reports:

Facts: Child was born in Guatemala 16 years ago. Child’s father abandoned the family over four years ago. Child’s mother struggled to provide for the family, which forced Child to drop out of school after the sixth grade because his mother was too poor to pay for him to continue. After dropping out of school, Child worked in the cornfields. Child’s family ate once or twice a day and typically ate only the corn they grew.

In 2015, Child left Guatemala and traveled to the United States, where he was apprehended by immigration authorities. He was placed in the temporary custody of his paternal uncle in Tennessee. Child has lived in Tennessee since that time, and has been enrolled in school in Tennessee.

In 2016, Child’s uncle petitioned for the appointment of a guardian for Child requesting, among other things, a specific finding regarding whether it is in Child’s best interest to be returned to Guatemala.

After hearing, the trial court found that both of Child’s parents had willfully abandoned Child. The trial court refused, however, to make a finding as to whether it was in Child’s best interest to be returned to Guatemala because the trial court ruled that it lacked jurisdiction to make such a determination.

Child’s uncle appealed.

On Appeal: The Court of Appeals reversed the trial court.

Some children present in the United States without legal immigration status are in need of humanitarian protection because they have been abused, abandoned, or neglected by a parent. Special Immigrant Juvenile (“SIJ”) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status, i.e., a “green card.”

A child cannot apply for SIJ status without an order from the juvenile court that contains factual findings based on state law about the abuse, neglect, or abandonment, family reunification, and the best interest of the child. It should be noted, however, that the state court order does not grant SIJ status or a “green card”; only federal immigration authorities can grant or deny these benefits.

The state-court proceeding is just the first step of a three-step process to obtain a green card. Once the state court has made the specific findings, the child can apply to federal authorities for SIJ status. If SIJ status is granted, then the third step is applying for a green card.

The Court determined that the Tennessee trial court had jurisdiction to make the finding as to whether it is in Child’s best interest to be returned to Guatemala:

[T]he trial court had jurisdiction to hear the Petition for Appointment of Guardian pursuant to Tennessee Code Annotated § 34-to-101.

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In the case now before us, [federal law] establishes that in order to apply for special immigrant juvenile status, the Minor must have, among other things, an order from a Tennessee court placing him in the custody of an individual appointed by the court, a determination that reunification with his parents is not viable due to abandonment [or other possible grounds] as found under Tennessee law, and a determination that it would not be in the Minor’s best interest to be returned to Guatemala. The trial court’s Order Appointing Guardian appointed the Minor’s uncle [as the] guardian of the Minor, placed the Minor in the custody of the Minor’s uncle, and found that reunification of the Minor with his parents was not viable due to willful abandonment. The trial court, however, failed to make a finding with regard as to whether it is in the best interest of the Minor to be returned to Guatemala. We note . . . that making such finding does not guarantee that the Minor will be granted special immigrant juvenile status. This finding, however, is a required predicate for the Minor to apply for such status.

The Petition for Appointment of Guardian properly contained a request seeking a finding regarding whether it is in the Minor’s best interest to be returned to Guatemala. We find and hold the trial court had jurisdiction to make this requested finding.

Thus, the case was remanded to the trial court to determine whether it is in Child’s best interest to be returned to Guatemala.

In re Domingo C.L. (Tennessee Court of Appeals, Middle Section, August 30, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.”

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In one of my long past lives, private practice, I had some role in the legislation that created the Special Immigrant Juvenile “SIJ” status. This seems one of the most appropriate uses of the law ever!  Saving young lives, getting them green cards, and building a better future for America, one case at a time! Can’t get much better than that!

Thanks so much to the always wonderful Roxanne Lea of Richmond, VA for sending this to me!

PWS

10-02-17

 

 

 

REVEAL: DUE PROCESS OUTRAGE — DHS MOVES TO DEPORT VULNERABLE CHILDREN WHO HAVE BEEN APPROVED FOR GREEN CARDS — FEDERAL COURTS NEED TO STEP UP TO THE PLATE AND END THE MISUSE OF EXPEDITED REMOVAL BY DHS!

https://www.revealnews.org/article/a-judge-said-these-kids-get-a-green-card-ice-says-they-get-deported/

Bernice Yeung writes in Reveal:

. . . .

“A Pennsylvania judge and the U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security, have decided that V.G. deserves to stay in the United States.

But another arm of department, Immigration and Customs Enforcement, says he must go. And, under what’s known as “expedited removal,” immigration officials can skip the traditional removal process in front of immigration judges.

Instead, officials are given wide latitude to deport migrants under expedited removal, if those migrants are captured within 100 miles of the U.S. border, have been in the country for less than two weeks and don’t have valid travel documents.

Under this deportation regime, the U.S. government has freedom to deport migrants like V.G. and his mother – who were found soon after they crossed the border without immigration papers – with little due process and limited ways for migrants to contest the order.

President Barack Obama made wide use of the policy, and President Donald Trump favors expanding it further.

Created in 1996, the expedited removal policy has been controversial since the start. Those who seek to tighten the borders laud the policy for its efficiency and for promoting deterrence. But immigrant and asylum advocates say that it lacks checks and balances and gives too much discretion to border patrol agents.

But it’s a policy susceptible to errors without a meaningful process to correct them.

Once an immigration official has placed a migrant into expedited removal, there are few ways to contest it. People who can show they are authorized to live in the country are able to challenge expedited removal in federal court. Asylum-seekers also have a chance to make a case that they have a fear of returning to their home countries, but they cannot appeal an unfavorable decision.

Everyone else is returned to their home countries as quickly as possible. They are then barred from returning to the United States for five years.

The U.S. Commission on International Religious Freedom, which has observed expedited removal proceedings since 2005, has found “serious flaws placing asylum seekers at risk of return to countries where they could face persecution.” The ACLU has also documented a case of an asylum-seeker who was quickly deported, only to be raped after she was sent back across the southern border.

Multiple U.S. citizens have been accidentally deported through expedited removal. Foreign workers and tourists with valid visas have also been turned away, prompting a judge to write in a 2010 decision that the expedited removal process is “fraught with risk of arbitrary, mistaken, or discriminatory behavior.”

Nonetheless, various courts across the country have agreed that the law is clear: The courts cannot intercede in expedited removal cases, even if there’s a reason to believe the outcome was unjust.

This has put kids like V.G. in legal limbo, stuck between two competing government mandates. They have a special status to stay in the United States. At the same time, the Department of Homeland Security says it has the authority to deport them.

Immigration officials declined to comment on pending litigation. But in court documents filed in V.G.’s case, the government says the children’s deportation orders are final and their special status doesn’t change things, especially since they have not yet received their green cards.

V.G.’s attorneys argue, among other things, that a federal court has previously required the government to revisit the deportation orders of children once they’re granted the humanitarian status.

That requirement, they say, also extends to expedited removal cases.”

. . . .

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In addition to being bad policy, this clearly isn’t due process! It’s time for Federal Judges get out of the ivory tower and start enforcing the requirements of our Constitution! Assuming that recent arrivals apprehended at the border with no claim to stay in the U.S. might not get full judicial review (a proposition that I question), these kids are different, having been approved for green cards and merely waiting in line of a number to  become available in the near future. In the past, the policy of the DHS has invariably been to allow such individuals to remain in the U.s. pending availability of a visa number — even when that process might take years.

Thanks much to Nolan Rappaport for spotting this item and forwarding it to me!

PWS

07-10-17

Two New Tools To Help You Understand/Practice Immigration Law: 1) USCIS “StatPack” & 2) Travel Ban Litigation Guide!

Nolan “Eagle Eyes” Rappaport kindly alerted me to this comprehensive source of USCIS immigration and citizenship data:

https://www.uscis.gov/tools/reports-studies/immigration-forms-data

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Additionally, Dan “Mr. Blog” Kowalski over at Lexis was kind enough to send me this like to a nationwide “Travel Ban” Litigation Database from “Lawfare,”  helpfully organized by Circuit:

https://urldefense.proofpoint.com/v2/url?u=https-3A__lawfareblog.com_litigation-2Ddocuments-2Dresources-2Drelated-2Dtrump-2Dexecutive-2Dorder-2Dimmigration&d=DQIFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=CeRQeXwCO1XABbcnui0VccohOAIcGihPTU6SjunQmI&m=8DFHNqD9Wh7TH2g60EeuBylX7190m96Q_YTMDTMs5P0&s=evpzDZD-Isv1nTFviIW1D-wNdPdmyJyu9fl1qEQXgf8&e=

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Check both of these out! Thanks again to Nolan and Dan for their tireless efforts to promote an informed approach to immigration law and policy!

PWS

05-07-17

 

 

Huge Win For TPS In 9th Circuit — Court Blasts DHS’s “Rube Goldberg” Interpretation — Allows Adjustment Of Status — Ramirez v. Brown

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf

“And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country—in this case, the country that the Attorney General has deemed unsafe— though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful

permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255(i), but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.

In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under §1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.”

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Although the 9th Circuit’s decision makes sense to me, and is consistent with a previous ruling by the 6th Circuit, the court notes that the 11th Circuit agreed with the DHS position. Consequently, there is a “circuit split,” and this issue probably will have to be resolved by the Supremes at some future point.

I had this argument come up before me in the Arlington Immigration Court. After conducting a full oral argument, I ruled, as the 9th Circuit did, in favor of the respondent’s eligibility to adjust. While the DHS “reserved” appeal, I do not believe that appeal was ever filed.

One of the things I loved about being a trial judge was the ability to hear “oral argument” from the attorneys in every merits case where there was an actual dispute.

PWS

04-01-17