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Para Ser Legal: Unaccompanied minors (02 11 19)

In This Episode:

Immigrant parents that lose their children to adoption. Options for unaccompanied minors to achieve legal status. The story of two sisters that we helped to stay in USA. The lawyer Andres Mejer explains all of this in today’s show.

Transcription

Hi my name is on this method. Welcome to this episode of para ser legal in English. Today we’re going to be talking about three subjects. We always going to talk about three different segments. One is. Immigration in the news. Immigrants in the news subjects that are relevant to you. Secondly we believe that educate clients and our best clients for that reason we always have an education segment where we’re trying to teach you something that might be relevant to your path to get. Legal status. And third we’re going to give you a case study a real life story a client that that we helped. What happened how it happened and how it can affect you. So today in our news segment we’re going to talk about. How deported parents may lose their kids to adoption. When that happens how it happens particularly in the context of a Trump zero tolerance family separation policy that he had in 2018. Secondly we’re going to talk about unaccompanied minors. Who are they. What’s an unaccompanied minor and what are their options. And lastly we’re going to talk about two sisters who were unaccompanied minors and. How they were able to achieve legal legal status in the United States. So coming back to. Here we are now in our new segment for the day. Deported parents. And how they may lose their kids to adoption. So the zero tolerance crackdown which ended in June. Separated hundreds of kids from their parents actually thousands. But there are still today in 2019 hundreds of kids that remain in detention. Remain detained or in shelters or in foster care and not with their parents. officials have also said that over 200 kids are eligible for reunification meaning.

Parents are bad people or parents are dead. It’s usually bad people not dead but one of the parents may have passed away and the other one may be a criminal and poses a danger to their kids. And for those reasons they won’t. Reunify and who’s a danger and who is it and who gets to decide it’s something that we’re going to be talking about specifically on this segment in conjunction with Alexa and her mom. Now here in that states.

We have 50 different states which means in some cases 50 50 different sets of laws.

Immigration is federal. So if a child is separated from her parents and they’re both put in removal proceedings the Office of Refugee Resettlement is the one who has. Office of Refugee Resettlement. Is part of. Department of Homeland. Security and Health and Human Services SA Health and Human Services. They’re the agency that’s charged. With. Maintaining and making sure these kids are in a safe environment. So one of the conditions by which the Office of Refugee Resettlement under the Office of Health and Human Services. One of the conditions by which that they give. Custody to foster care parents in whatever term you want to use custody at the end of the day the agency is saying here take care of this kids will pay you for it but the care of these kids. One of the conditions is those parents can not file and cannot receive. Guardianship or cannot adopt the kids. They signed the agreement under federal law. They understand it. But. Like I said 50 different states. 50 different laws. And. A state judge may not know that federal requirement.

And that’s what happened with Alexa. So today she’s five years old. She was separate from mom for half of her life two and a half years. And it took a judge less than 30 minutes to decide. That. Foster parents Sherrie and Corey Barr would become Alexa’s guardians and then her mother would would be a danger to her. Now. Here.

Is very important. Neither mother. Nor attorney were even notified of the proceedings. She was detained. She was fighting deportation. She had no idea that someone’s trying to take her daughter away from her. Now that doesn’t happen in New Jersey. That cannot happen in New Jersey because there is a requirement that you notify the parents or. You made a diligent effort to do so. And the judge really takes a hard stance as to what a diligent effort is. You can’t just say I called them on that the message. You really have to put in detail all the steps that you did. Otherwise the judge doesn’t have jurisdiction to hear the case. Now the bar said that Alexis mom. The foster parents said that Alexis mom. Was abusive. She was a criminal and should be a danger to Alexis. And the judge felt that that was sufficient. And. Approved the guardianship. Now. No matter the bar’s intentions and I firmly believe that they had good intentions they really thought that. Alexa was in danger. But the point is. They should never have been able to get that far. So in Missouri that was the couple that was allowed to adopt a baby whose Guatemalan mother was picked up by ICE in a raid. She fought for seven years and ultimately lost. The foster couple were able to legally adopt the child despite the requirements that they not do so under the Office of Refugee Resettlement policy. That they signed that they knew of and that they signed. Now we don’t have all the details. What’s important is an at least.

One situation it happened but it’s not the only one. There was another. Case in Nebraska where a Guatemalan mother also a Guatemalan mother. Got her kids back after a five year legal battle.

Five years in over a million dollars in legal services now most of that was donated by a pro bono attorney.

But the point is it costs a million bucks and five years to get her child back.

Now Alexis mom was a victim of domestic violence. She had five kids. Alexis was the youngest. Her father was abusive. I mean physically so so bad so that unless his mom had a permanent mark in a dent in your head from the hits that she received from her father and the abuse got much worse when electric dad found them and a woman became much more violent. She was hospitalized and more than one occasion when she had enough. She filed for divorce and she asked for custody and Alexis father went to the police and make made false charges that Alexis mom was in essence prostituting her kids for sex and for money.

Now those charges were false. They were not substantiated. Neither the judge nor the police took it beyond a report. But that report was the basis by which when Alexis and her mother came into the United States.

Alexis mom was considered a criminal. Alexis was separated from her mom and treated as an unaccompanied minor because Mom was considered a criminal.

Now that was only an allegation that wasn’t even a conviction there was never a conviction. But it was enough to separate and that was the basis by which. The bars said mom was abusive. Look she’s prostituting her kids. You can’t send this child back. We want her we’ll take care of her lover. And it took the judge 28 minutes to agree.

Now Mom was ultimately deported. Why. Simple reason is she didn’t have an attorney. It’s just that simple. She had a damn good case for asylum. Particularly the time that that she had filed there was past persecution. Lots of evidence it was reported. Hospital records police reports third party witnesses.

Alexa’s dad was a bad guy. Period.

And she had legitimate fear to go back. And yet she was deported. Now. 80 percent of people who are deported do so do not have an attorney. Now it doesn’t mean just because you have an attorney your case is going to be granted. No because 14 percent of those that are deported also have an attorney and still they were deported. So who your attorney is also matters. But on top of it your facts matter. You know if you’re lying if you’re not found credible if you can’t prove anything if you don’t make a good a good witness because you know you keep on getting your dates and your times confused you’re going to have a problem with or without an attorney. But it doesn’t change the fact that 80 percent with an attorney get deported. Only 14 percent with an attorney get deported. That a huge difference. So if you can find yourself an attorney. But the point of it is. Alexa’s mom was deported. It took two and a half years until they were reunited. Now when.

And how they were reunited. It’s because Alexis mom took to social media took to Facebook and it went viral. Her government got involved the lot of agencies in the Chicago area became involved to help her to reunite her with her daughter.

And when Alexa came back she didn’t necessarily recognize her mom. She didn’t speak Spanish anymore. She only she had to relearn Spanish. And she was constantly asking what am I going back home and homos with. The bars where she had been for the past two years. Sad story but but. Happy ending at the end. Although unfortunately they’re reunited in Salvador which is. Not the best country in the world to be. Rather than here in the United States. So if you find yourself in removal proceedings make sure you get the advice of an attorney. Do yourself a favor give yourself the best shot going forward.

So education. This is the second segment of this segment and we believe that educated clients are the best clients that the day I’m going to talk to you about unaccompanied minor Alexa was considered an unaccompanied minor.

So what is an unaccompanied minor. It’s somebody who’s under 18 years when they arrive and they arrive without a parent or a legal guardian and they have no legal status. Now remember Alexa came with her mom. She was two and a half years old when she came but because her mom was considered a criminal based on a false allegation she was treated as an unaccompanied minor because Mom was not deemed.

Worthy or able to take care of child now the accusations were horrific but they weren’t true.

An accusation is very different than a conviction. Now.

What are some of the benefits. Well if I’m an I’m an unaccompanied minor I’m not going to be detained very long. I’m going to be released through the Office of Refugee Resettlement either to foster care or to a friend or family member someone I am not limited by the one year deadline to file asylum from when I answered. I’ll explain what that is in a moment and I can file affirmatively. What does that mean. Means even though I’m in removal proceedings I can request that the off the asylum office hear my case. Close my my deportation my removal proceedings. And if the asylum officer. Finds that I meet the criteria will give me asylum. If the officer denies me then I get a second opportunity in front of a judge and then I’m the removal proceedings. So there’s some good options for it to be treated as an unaccompanied minor. Now.

What kind of relief to unaccompanied minors typically apply for. This usually is the most common ones that are. It’s asylum. A TV especially within juvenile now asylum especially juvenile. We discussed at length in prior programming but let’s let’s refresh for those that don’t recall it didn’t see it for asylum. I need to show that I fear persecution. I have a well-founded fear of persecution. It can’t just be that you know what I have been in my country 20 years and I don’t know what I’m going to find. That ain’t it. It has to be I was previously persecuted or I have a really good reason to believe that I will be if I go back number one.

Number two I have to be afraid of either the government who’s going to persecute me or a group that the government can’t control like a criminal organization. And 3 I need to show why I’m going to be persecuted by the government or a group. And it has to be for a particular reason. There are five race religion nationality political opinion or particular social group. It has to be one of those five. I can’t just say well I’m Mexican and if I go back the criminal organizations will extort me for money because they’ll find out that I hate the US.

That ain’t enough. Every single Mexican can say that. You need to show why your situation is different than everybody else and why you in particular have.

A good reason to be afraid again because something bad happened to me already. So I was attacked. I just had an interview with somebody just yesterday where. He was attacked by a criminal organization. And it’s 18. He was shot and he gets. Horrible scars up and down his arm from from the bullet that almost killed him.

He almost lost his arm and he would attack the second guy that cracked the skull. And he has a big scar on his head. Now if you still choose to show what was the reason why he was attacked. Was it race religion nationality political opinion people show social group but he can show past persecution. So it’s likely if they attacked them once they attacked him the second time. Now they also killed his brother so if he if he if he if he can document the reason he has a solid claim for either asylum or.

Something like asylum. Because there are there are at least five different kinds of asylum depending on certain circumstances. So we’ll just call them all asylum in the general sense. Second thing unaccompanied minor can apply for is the TV visa TV is a means victims of trafficking. Sex trafficking could be labor like indentured servitude type of trafficking but you have to show that you were a victim of that. You need to show that you assisted law enforcement mean that usually the police but as an athlete could be theD.A. could be the FBI could be a variety of different governmental organizations but an organization that has authority to investigate the crime in which you were a victim. So you help them either to investigate or you help them in the prosecution. Meaning if you ask to testify you shut up. If they called you to court you showed up. You can’t just ignore it and that you suffered extreme hardship if removed from the US now extreme hardship is a known standard. It’s the standard for almost all waivers. But even in those waivers you’re showing how someone else will suffer extreme hardship how your parent how your spouse or your child who is aU.S. citizen card holder will meet that standard here. You just have to show how you will suffer extreme hardship if you are deported back to your home country. TVC gets that for four years. There’s waivers that are included after those four years you can apply to become a green card holder. Once you’ve had that for five years you can apply to be aU.S. citizen. So it’s a really good way to change your status if you meet the criteria. Third option is special immigrant juvenile that we’ve spoken about that in the past especially within juvenile is a great way for some kids. But it doesn’t help everybody but it does help some. There are three different stages we’re going to talk a little bit in more detail about this because our case example that talked about money Diana and how those two sisters were able to get special specialist to plus that status and were able to get to stay in the United States. Now there are three steps. The first is in New Jersey. You need to have a trial in front of a family court judge where that judge has to make specific findings he or she that has this has to make a finding five things one you’re over 21. I’m sorry you’re under 21. If you’re 21 you don’t qualify. You have to be a minor under 21. Secondly you’re not married because if you are you’re independent it’s like be considered over 21. So you’re not married. Third you’re dependent on somebody. It could be a parent. It could be a family friend or it could be the courts.

You need someone to help you in some fashion for you can’t be reunited with one or both of your parents because it is one or both of your parents who abandoned you abused you mistreated you in some fashion.

That’s usually the hardest part. Last is it’s not in your interest to be returned to your country. Now big difference if you’re from Spain then if you’re from El Salvador. Country conditions matter options in that country matter. Crime in that country matter. But it’s case specific. What happened to you in Spain that would cause you. It doesn’t give you a good option. Let’s for example say that there’s a recession there is 20 percent unemployment there’s inflation there’s no jobs there’s high crime. So again that’s not actually what’s going on in Spain. But my point is even in a westernised country there can be conditions where it’s not to your interest to return. Think of what was happening in Greece. Think of the situation. Italy now.

So you know every country is different. Every case is different. You have to focus on your situation.

Once the judge finds makes his or her special findings you then have to apply to immigration and say please recognize this decision by the judge.

Now that’s weird. Why are we asking immigration to recognize the decision by a judge. Because. Especially in the juvenile is a federal program. But here we have a state judge making findings. And now we’re asking that.

Federal agency USCIS tests apply that those findings why does that happen. Because there is no federal court for family law or for juveniles in. You know there is criminal there’s tax.

There’s a there’s civil cases but there’s no family case. Family Court cases are decided on a state level. So here we have a federal statute giving a state judge authority to make factual decisions by which immigration will then review and then determine pursuant to its statute.

So Judge just makes those five findings. And immigration has the final say whether they grant him or her special immigrant juvenile status.

Once that happens you need to wait for a visa to become available. Typically it’s one or two years that can be as much as three. You then can apply to become a lawful permanent resident. Once you’ve had become a love resident or green card holder for a year you can apply and be aU.S. citizen. Important caveat If you get your green card especially in juvenile you will never be able to apply for other either parent. They want to avoid this in this scenario where husband and wife commit some fraud make certain allegations give the child the green card and then the child applies for one parent then the parent applies for the other parent and all of a sudden you have the abused person the abuser who was the cause of the abuse and resulted in child getting getting a green card. Also getting the green card based in part on that conduct. That’s a big no no. That’s what they’re looking to avoid. So spent so. Unaccompanied minors. Three basic three common ways in which they would seek legal status asylum U T Visa and special immigrant juvenile U visa. They could also apply but it’s less common because they have to be in the United States. Had to have occurred in the United States. And typically we’re looking at a situation where a minor is here for less than a year. It’s not common that they’re a victim of crime. But think of the trafficking scenario if the trafficking likely happened in the United States that also could be defined as a U visa although it’s harder.

There are the requirements.

It is possible so thank you for listening to our education segment. I hope you’re better informed about what an unaccompanied minor is. And now in our case study I want to show you an example of how we applied a special immigrant juvenile status to get legal status to two unaccompanied minors. We’ll just call them muddy and add up facts or accurate names or not. So here are two sisters. Father was a drunk father was abusive but he abandoned them. They have no contact with dad. They as far as they recall they can’t even remember what Dad looks like now. Maria who is who is older she has some memory of dad because she was about 4 or 5 when he left and was 1 2 and she has no memory of that so came in they were minors.

They were alone.

Mom was here already in the US. Mom filed for custody in the Family Court had to notify Dad. Now that was interesting because they haven’t they haven’t seen her dad in over 20 years. So they use the last known address of where dad was and it was a challenge to get jurisdiction on him. But ultimately the judge granted it. They testified there was a trial by which mom Maria and Anna all testified and proved that they were under 21 that they were single. That the Marie and Anna were dependent on mom that they were abandoned by Dad who doesn’t help them in any way. And also he was abusive before he abandoned them. He was a drunk and went and when he drank when he got drunk he became really violent.

And that was the reason why they separated and they’ve had no contact ever since and that it was in Maria and then as best interest to stay in the US and not go back to their home country. So that part normally is the easy part. But here I mean granted it is a trial but it’s a trial where there isn’t an attorney on the other side that’s trying to poke holes in your case. If you’re filing for asylum and you’re in front of an immigration judge. Well the government’s going to have an attorney. And that attorney is going to try to show that your facts are inconsistent that what you’re saying today differs from what you said in other occasions. We’ll try to say that listen. OK. Maybe something bad might have happened you in this part of the country but there’s nothing that prevented you to move to another city or another state and start over and then you’ll be fine. You know you don’t have that opposing point of view who some are more effective than others but it doesn’t change the fact that they’re out to get you in the family court setting in especially juvenile that usually doesn’t happen because the other parent usually doesn’t show up. Now they can show up and they can bring an attorney and they can try to fight and argue and say that what you’re saying is not true that he wasn’t a drunk it really was a good guy even though he hasn’t seen the kids for 20 years. It’s a hard case to make. But on some occasions it happens now here the problem was compounded because the judge that made her initial findings. Retired. So. And the judge’s order. Well when the judge signed the order. Judge created an addendum and in that addendum. She only referenced the older sister didn’t reference the younger sister. So we didn’t initially catch that. It was filed with immigration. The judge sent the addendum after the fact. We had to file urgently because the older daughter Maria was going to turn 21 and it had to be filed before she turned 21. So it was filed literally within days before. And then when the judge provided the order we forwarded it. And the older daughter was approved the younger daughter was not initially because the the mistake that the judge made only included the addendum on one system.

And so. OK. OK. We reapplied to the court to fix it. Problem is that judge had retired and the judge that now heard especially in juvenile cases was not the judge that heard the testimony and made the decision. So we need to have a new audience. We needed to notify Dad again. We need to go through that whole process get to make that Judge comfortable to it that. Anna did meet all the requirements. We did it. And the judge signed it and we submitted it to immigration and immigration. Also we approved it and now also has a special and United States. Maria has had it for almost three years and she’s about the point now where she can file for a green card and that’s about it for less than that.

So she can’t yet file for it. There isn’t the priority date is not yet current for her to apply for a green card but she will in five years after that they will be able to be US citizens and is also about to get married and about to get married to aU.S. citizen. But that doesn’t matter. And she doesn’t need her spouse to apply for her because as especially moving juvenile she can adjust that way. Now if she had just gotten special look into you about status and she didn’t want to wait three years and she’s now married to a to aU.S. citizen. Well in those narrow circumstances her spouse can apply for her and she’ll adjust quicker.

But again it’s more expensive it takes in most cases that will take longer. And it’s probably unnecessary but every case is different. And you have to evaluate every case on its own merits. So special immigrant juvenile is a good situation for many for the reasons explained before the family court setting. This is a more controlled setting. It’s a faster setting. You’re not going to wait a year in New Jersey you might take two or three months before you get your date. Now sometimes it takes longer because getting notice on the parent who’s abandoned or abused or mistreated well could be harder because he or she may not have been in that state.

So that makes it much harder to actually get that notice to that individual in a way that the judge that the court rules and the judge concedes meets those requirements if not the judge doesn’t have jurisdiction and decision is invalid. And we definitely don’t want that.

So for many special live a juvenile is a good situation. But again it’s not as good as a U visa for example because you visa can help the whole family special immigrant juvenile only helps the kids can never benefit the adults. So we typically look for a scenario that helps everybody U Visa is one that comes to mind. Visa is another asylum code as well because if the kids file for asylum and they get it.

Well parents can also be included depending on the age of the kids. Parents may not get a sound and make it withholding of removal. But again one petition one hearing one trial and then you tag on the other. Family relatives who maybe didn’t have the same risk as the child because they would not then in removal proceedings. So every case is unique. You got to look at the situation. It is complicated. But for many especially the juvenile is the best option. It was for Maria and Anna and they’re much happier for having had that opportunity. So thank you very much for listening to this segment. I hope you found that helpful in the first part. We talked about deported parents may lose their kids through adoption. Secondly we talked about what is an unaccompanied minor and.