By Marsha M. Mansfield and Stacy Taeuber
(This article was first published by the Sargent Shriver National Center on Poverty Law and is reprinted with permission.)
The Immigrant Justice Clinic at the University of Wisconsin Law School was created in 2012 to provide a sound clinical experience for law students and quality pro bono representation for Wisconsin’s growing immigrant population. The Clinic works closely with the National Immigrant Justice Center in Chicago to represent immigrants in detention and removal proceedings and with Madison’s Community Immigration Law Center to offer other forms of immigration relief. The Clinic expanded in fall 2013 to include a “Humanitarian Law Track” to give legal services to noncitizens who are seeking various forms of humanitarian relief. Due to rising need, the Immigrant Justice Clinic is increasingly concentrating on the needs of undocumented immigrant children in Wisconsin.
One of the more troubling immigration trends has been the dramatic increase in the number of children traveling unaccompanied to the United States, even as the overall number of apprehensions of immigrants unlawfully entering the country is at a 40-year low. Before 2011, an average of 6,000 to 8,000 unaccompanied migrant children traveled to the United States each year. That number jumped to almost 14,000 in 2012, and by 2013 nearly 25,000 unaccompanied migrant children found their way to the United States. Since October 1, 2013, a record 47,017 have been apprehended along the southern border, a 92 percent increase over the same period in 2013. Projections for the fiscal year of 2014 indicate that a staggering 90,000 unaccompanied migrant children will arrive in the United States this year. President Obama recently called the surge a humanitarian crisis and ordered the Federal Emergency Management Agency to coordinate a response.
Most of these children are coming from El Salvador, Guatemala, Honduras, and Mexico. Many of them flee their home communities due to violence associated with drug trafficking, severe intrafamilial abuse, abandonment, exploitation, or deep deprivation. Some of these children are trafficked into the United States for sexual or labor exploitation. Under Section 235(b)(3) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, once caught and detained by immigration authorities, these minors are to be transferred into the custody of the U.S. Department of Health and Human Services’ Office of Refugee Resettlement within 72 hours. In practice, however, these children often remain locked up in crowded cells with no windows, showers, or recreation space for weeks, in some cases where the lights are never turned off. The Immigrant Justice Clinic has heard several minors tell of being held for many days in the infamous “hieleras,” or “freezers,” holding cells kept at an uncomfortably low temperature.
Unaccompanied migrant children in the United States are placed in removal proceedings with no right to government-appointed counsel or guardians ad litem in the vast majority of cases. Consequently, most of these children, often with limited education and English skills, confront immigration judges and government attorneys alone in court. Considering the fact that only 8 percent of adult immigrants without counsel prevail in immigration court, it is difficult to overstate the challenges that unaccompanied minors face in immigration court without counsel. As a result, many unaccompanied minors are deported and returned to the dangerous situations they were so desperate to escape.
Many of these minors are eligible for Special Immigrant Juvenile Status, a form of federal immigration relief available to unaccompanied immigrant children who are under 21, unmarried, under the jurisdiction of a juvenile court, and who, for reasons of abuse, abandonment, or neglect, cannot be reunified with one or both of their parents in their country of nationality. These are particularly difficult cases because the parents of these children often reside in countries that are not signatories to the Convention on the Civil Aspects of International Child Abduction. The Convention’s general purpose is to deter international child abduction and provide a legal process for the prompt return of abducted children to their home countries. But when one parent resides in a non-signatory country, the lack of access and cooperation between countries complicates the process of establishing the necessary facts for Special Immigrant Juvenile Status.
The Immigrant Justice Clinic had had some success using the guardianship process to obtain the requisite court findings for a petition for Special Immigrant Juvenile Status. Another recent success stemmed from the creativity and industriousness of a collaboration between the Immigrant Justice Clinic and the University of Wisconsin Law School’s Family Court Clinic.
Special Immigrant Juvenile Status
Congress created the Special Immigrant Juvenile Status in 1990 with the enactment of the Immigration and Nationality Act § 101(a)(27)(J). The status is now codified at 8 U.S.C. § 1101(a)(27)(J), and directions for implementation are found at 8 C.F.R. § 204.11. These laws must be read in conjunction with Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which amended Special Immigrant Juvenile Status definitions and eligibility requirements.
To apply for Special Immigrant Juvenile Status, a state juvenile court must have made certain findings of fact. Pursuant to 8 C.F.R. § 204.11(a), the term “juvenile court” is defined as “a court located in the United States having jurisdiction under state law to make judicial determinations about the custody and care of juveniles.”
Once the court determines that it has jurisdiction under state law “to make judicial determinations about the custody and care of juveniles,” it then must find that the child is one:
- “who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with [one] or both … parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law,” and
- “for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.”
The juvenile court’s role in the federal immigration process is limited to making very specific factual findings concerning the child. The juvenile court does not make any decisions about the child’s entitlement to Special Immigrant Juvenile Status or to any immigration benefits. Rather, the juvenile court’s findings are simply a prerequisite to the child’s filing of the I-360 Petition for Immigrant Juvenile.
Finding Hope for Abused Children
Karina and Loris (names have been changed to protect the minors’ identities) were born in Honduras. When Karina and Loris were very young, their mother, Maria, was forced to flee Honduras to escape a sexually and emotionally abusive relationship with their father, who has ties to violent gangs in Honduras. The Honduran police were unable or unwilling to protect Maria from her husband. Seeing no other way out, Maria left the country and left her young daughters in the care of their grandmother, Maria’s mother, Bianca.
In late 2005, Karina and Loris’ older sister Lupe revealed that their father had been sexually abusing her. Bianca helped Lupe report the sexual abuse by her father to the authorities. The father was convicted of sexual assault and sentenced to prison for a few years. As a result of his arrest and criminal charges, the girls were placed with Honduras’ version of child protective services. A month later, child protective services released the girls back into their grandmother Bianca’s care.
Up until 2012, Karina and Loris lived in relative peace with their grandmother. During this time they maintained close communication with their mother, Maria, who was living in Wisconsin. Maria sent the grandmother money to take care of the girls and provide for all their needs. However, in 2012 the father resurfaced in Karina and Loris’ lives. He moved into their grandmother Bianca’s house with them, and they became the next victims in his cycle of physical and sexual abuse. After a short time, he took the girls from their grandmother’s house and moved them back into his home, where they lived among drugs, guns, and increasing violence.
Maria found out that her daughters had been taken by their father and arranged for family friends to help the girls escape from their father’s control and bring them to the United States. The girls traveled from Honduras through Guatemala and Mexico and crossed the border into Texas, where immigration officials apprehended them in May 2013. They were held in a juvenile immigration detention facility in southern Texas for a few months and then were paroled into their mother’s care in Wisconsin. They have lived in Wisconsin since August 2013. They are now enrolled in school, receiving therapy, and trying to rebuild their lives as normal young girls. However, their removal proceedings remain pending in the Chicago Immigration Court.
Using Family Court to Obtain Immigration Relief
Maria came to the Immigrant Justice Clinic seeking help for her daughters. Students from the Immigrant Justice Clinic approached the Family Court Clinic for help, and together they worked to find a way for the girls to petition for Special Immigrant Juvenile Status. Students from the clinics worked closely together, each learning something about the other’s area of law as they researched a way to help Maria and her daughters.
The students first determined if a family court matter could be filed in a court that could make the requisite findings. The students researched various family and juvenile actions. Guardianship was not an option because the girls were residing with their biological mother. Although we could establish the grounds for terminating the father’s parental rights, we rejected that option because termination of parental rights cases are bifurcated in Wisconsin, and in the first phase, the parent’s rights are considered tantamount. The students considered a child protective services action (“CHIPS,” meaning “children in need of protection or services”), but that type of action raised the same concerns as a termination of parental rights.
Maria’s additional desire to obtain a divorce led us to conclude that a divorce proceeding would be the action most likely to succeed. The students decided that, as part of the divorce proceeding, they could ask the court to enter some sort of special protection or custody order for the girls that would state the elements necessary to satisfy the requirements for Special Immigrant Juvenile Status. We considered filing an order of protection for Maria to give her greater peace of mind as well as a level of protection if her husband showed up in Wisconsin.
The Legal Process
The toughest legal issue that the two clinics faced was jurisdiction, as the students had to notify the husband of the proceedings. Maria had no idea where he was, and the students soon learned that no one else knew, or would say, where he was. He had at times threatened to come find Maria and the children in the United States. Territorial jurisdiction is typically either in personam or in rem. Generally, in personam judgments are binding on a person only if the person is or was physically present in the state issuing the judgment. However, more recent Supreme Court opinions have dramatically limited the requirements for personal jurisdiction, and states have followed suit byenacting laws that allow for jurisdiction when a person has minimum contacts with the state that is exercising jurisdiction or when the judgment simply adjudicates “status.”
Family relationships are among those matters in which most forum states have such a strong interest that their courts will adjudicate matters affecting those relationships even though one of the parties to the relationship may have had no personal contact with the forum state. This is certainly true in Wisconsin: “When the action is an action affecting the family, and when the residence requirements . . . have been met, a court having subject matter jurisdiction need not have grounds for personal jurisdiction in order to make a determination of the status of a marriage.”
The Uniform Child Custody Jurisdiction Enforcement Act (adopted in Wisconsin as Wisconsin Statutes Chapter 822) governs child custody proceedings that determine the status of children and bases the exercise of jurisdiction on the status exception to personal jurisdiction. Child custody proceedings include proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
The students concluded that the court would have “home state” jurisdiction over the girls once they were in Wisconsin for six months. Service could be made in the divorce via publication. The question was whether we could satisfy the requirement of Wisconsin Statutes § 822.08, the notice provisions of the Uniform Child Custody Jurisdiction Enforcement Act. Those notice provisions vary slightly from the language typically seen in the civil procedure statutes: “Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process …. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective” (emphasis added).
Therefore, after filing for the divorce and requesting a temporary order hearing, the clinic students prepared and filed affidavits demonstrating that Maria was unable to obtain her husband’s current address despite due diligence and thus was unable to serve the respondent personally with notice of this action. We proceeded with service by publication under Wisconsin Statutes §§ 822.08 and 801.11(1)(c), mailed a summons and petition to the respondent’s last known address, and mailed a copy of the summons and petition to local law enforcement in Honduras, requesting their assistance in serving the respondent. But no one appeared to know the respondent’s whereabouts. We argued that publication in Wisconsin was reasonable in that no one had actual knowledge of the husband’s whereabouts and that he could conceivably be in Wisconsin. (He had in fact recently made threats to come find Maria and the girls, saying that he knows they live in Madison, Wisconsin.)
In the students’ argument to the court in support of jurisdiction, they cited a Wisconsin Court of Appeals opinion that “emphasize[d]” that “there are no immutable rules of jurisdiction under the Uniform Child Custody Jurisdiction Act, only preferences.” (The Uniform Child Custody Jurisdiction Act was replaced by the Uniform Child Custody Jurisdiction Enforcement Act in 1997.) The basic purpose of the Acts is to ensure that a custody decree is rendered in the state that can best decide the case in the best interests of the child. When determining jurisdiction under the Acts, “[t]he court must always act in the best interest of the child.”
In addition to the jurisdictional issue, the students found themselves educating the court on the law of Special Immigrant Juvenile Status. Such claims are still relatively new in Wisconsin courts, as advocates and the legal system struggle to keep up with the growing noncitizen population. Thus both a Family Court Clinic student and an Immigrant Justice Clinic student appeared in court and responded to the judge’s questions. While the judge was concerned about the issue of jurisdiction, she was ultimately persuaded by the students’ legal arguments and by the compelling need for protection and stability for Karina and Loris. The judge entered an order in the divorce action that included the findings required for the Special Immigrant Juvenile Status petition.
Upon leaving the hearing, the Immigrant Justice Clinic students immediately filed a form I-360 Petition for Special Immigrant with United States Citizenship and Immigration Services for each of Maria’s daughters. The Immigrant Justice Clinic was able to get the girls’ removal proceedings continued until 2016, allowing plenty of time for the administrative agency to adjudicate the I-360 petitions. Once those petitions are approved, the girls will be eligible to apply for “adjustment of status,” a change that will grant them lawful permanent residence and eventual eligibility for citizenship. While we are not there yet, we are confident that our hard work and collaboration will succeed and that the girls will win a new, safe future in the United States.
