Custody Cases Involving Immigrant Children and Special Considerations by Alejandra Morisi, Esq.

Special Consideration in custody cases involving immigrant children Alejandra Morisi, Esq. Senior Attorney amorisi@supportkind.org

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Common forms of relief for Unaccompanied Children Special Immigrant Juvenile Status (SIJS) A child who is unmarried, under 21 years of age, who was abused, abandoned, and/or neglected by one or both parents, where reunification with one or both parents is not viable and it is in the best interest of the child to remain in the United States. - Asylum [A]ny person who is outside any country of such person s nationality . . . and who is unable or unwilling to avail himself or herself of the protection of that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. T-Visa For victims of severe forms of human trafficking (sex or labor induced by force, fraud, or coercion) U-Visa For victims of qualifying criminal activity who are helpful to law enforcement/agencies in the investigation or prosecution of the crime

SIJS Eligibility (Federal) Unmarried Under age 21 (but state law age limitations) Dependent on juvenile court or placed in custody, in accordance with state law Not viable to reunify with one or both parent(s) because of abuse, abandonment, neglect, or similar basis as defined under state law Not in best interest to return to country of nationality or last habitual residence (of child and parents) (See INA 101(a)(27)(J) and TVPRA 235(d)(1))

The Road to Obtaining Permanent Residence Through SIJS Seek jurisdiction of juvenile court/dependency order Obtain SIJS predicate order w/findings Step 1 [State]: State Court Submit SIJS petition and predicate order to USCIS Step 2 Approval of SIJS Petition [Federal]: SIJS PETITION Step 3 [Federal]: Adjustment of Status Application Option 1: Adjust status in immigration court Option 2: Adjust status with USCIS

Questions to ask: Where was the child born? Was there ever a custody process and/or determination made in another state/country? Are there other siblings over 18 but under 21 who were born in another state/country? Where is the other parent? Or, in the case of guardianship, where are the parents?

Special consideration: different country of birth Jurisdiction Country as state- MD Code, Family Law 9.5-104(a) A court of this State shall treat a foreign country as if it were a state of the United States for the purposes of Subtitles 1 and 2 of this Title. Initial jurisdiction- MD Code, Family Law 9.5-201(a) Jurisdiction to make initial jurisdiction only if home state definition- 9.5-101(h). 6 consecutive months

Special consideration: previous custody determination If a custody determination was already made, then MD does not have initial jurisdiction. MD Code, Family Law 9.5-104(b): Except as otherwise provided in subsection (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this title must be recognized and enforced under Subtitle 3 of this title. Reinforced by MD Code, Family Law 9.5-303(a). Request to Register and Out-of-State Child Custody Order. MD Code, Family Law 9.5-305 Child custody determination by another state/country may be registered Petition to Modify Custody. MD Code, Family Law 1-201

Special consideration: children between 18 and 21 years of age Definition of child in MD Code, Family Law 9.5-101 (c) MD Code, Family Law 1-201(a): For the purposes of subsection (b)(10) of this section, child means an unmarried individual under the age of 21 years. An equity court has jurisdiction (b)(10): custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile factual findings requesting a determination that the child was abused, neglected, or abandoned before the age of 18 years for purposes of 101(a)(27)(J) of the federal Immigration and Nationality Act.

Special consideration: Notice and Service in Foreign Countries MD Code, Family Law 9.5-107 (a)(1): 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 or by the law of the state in which the service is made. Methods of service, MD Rules, Rules :1-321, 2-123, 2- 121. Sheriff Personal Service- PREFERRED Certified Mail Alternative Service, MD Rules, Rule 2-121(c) Service by posting or publication, MD Rules, Rule 2-122 Summons expiration- MD Rules, Rule 2-113

Special consideration: basis for SIJS findings Federal law requires a finding of neglect, abandonment, or abuse of the juvenile "under state law." 8 C.F.R. 204.11. In ordinary custody proceeding, a circuit court must enter factual findings. Simbaina v. Bunay, 221 Md.App. 440, 109 A.3d 191 (2015). The standards a circuit court should use in determining whether a child has demonstrated eligibility for SIJS.In re: Dany G., 117 A.3d 650 (2015), 223 Md. App. 707. Standard for neglect , abandoned and abuse under Maryland law, Best Interest Standard in Maryland Identified the applicable burden of proof in SIJS cases. Romero v. Perez, 182 A.3d 263 (2018), 236 Md. App. 503. Held that Maryland law requires courts to apply the preponderance of the evidence standard to SIJ petitions.

Special Consideration: the predicate order Five findings from a state court: 1) The juvenile is under the age of 21 and unmarried; 2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court; 3) The court has jurisdiction under state law to make judicial determinations about the custody and care of juveniles; 4) Reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and 5) It is not in the best interest of the juvenile to be returned to his parents' previous country of nationality. The importance of using the most updated version

Special Consideration: Guardianship proceedings MD Rules, Rule 10, Chapter 200. Petition for Appointment of a Guardian of a Person, MD Rules, Rule 10-201. Consent to Guardianship of a Minor Criteria In determining whom to appoint as a guardian, the court shall apply the criteria set forth in Code, Estates and Trusts Article, 13- 707 Maryland Code, Estates and Trusts 11-114. Show Cause Order and Service Notice to interested persons Annual Report, Rule 10-206

Special Consideration: case processing in MD MD Rules, Rule 16-302: Assignment of Actions for Trial; Case Management Plan. (b)(4): Special Immigrant Juvenile Status Matters. The plan shall include appropriate procedures for expedited case processing for petitions and motions for findings or determinations of fact necessary to a grant of Special Immigrant Juvenile Status for the purposes of 8 U.S. Code 1101(a)(27)(J).

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Why are these children coming to the United States? 16

What happened after my client got to the United States? 17 ICEinitiates Removal Proceedings Issue NTA File it with the Immigration Court ICE Child Crosses the border - is apprehended by CBP identifies child and designates child as UAC 1. 2. Child is released and travels to live with sponsor in new home LSP refers child for intake with Child ORR provides services; locates and screens sponsor; LSP does legal screening transferred to ORR custody Interactions with DHS DOJ HHS and NGOs

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