Unaccompanied Minors and Accelerated Immigration Court Procedures

The recent increase in the number of unaccompanied children (UAC) crossing the border has gained a lot of media attention over the last few months. In response to the crisis, the Obama administration has adopted a number of new procedures to speed up the processing time for such cases.

Submitted by: Eleanor Lewis, Robina Public Interest Fellow, Volunteer Lawyers Network

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Deferred Action for Childhood Arrivals (DACA) Renewal Applications

The United States Citizenship Immigration Services began accepting Deferred Action for Childhood Arrivals (DACA) applications on August 15, 2012. Through March 31, 2014, the agency approved 553,197 DACA applications. Out of those, 4,429 came from Minnesota. As DACA turns two years old, we have much to celebrate and much left to do—including ensuring applicants timely request renewal so their DACA status does not lapse. The purpose of this tip is to raise awareness around initial and renewal DACA applications. Read more >>

Submitted by: Claudia Vincze Turcean, VLN Robina Fellow

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Special Immigrant Juvenile Status

A relatively little known provision of the federal immigration law, called Special Immigrant Juvenile Status (SIJS), allows certain noncitizen children who have been abused, neglected, or abandoned by one or both parents to obtain lawful permanent resident (LPR) status.1 For an eligible child, obtaining LPR status through SIJS can be life changing in terms of the stability it provides. Children who obtain LPR status through SIJS are protected from deportation, can live and work in the United States permanently, can apply for U.S. citizenship after 5 years, can obtain a Social Security number and a Minnesota driver’s license, and are eligible for certain public benefits including financial aid for college and Medical Assistance.

Many children may not realize that they could be eligible for this important benefit; some age out of eligibility and miss this opportunity. The purpose of this Practice Tip is to provide information about the SIJS requirements and process, and to equip readers to identify potentially eligible children and assist them in accessing immigration legal help.  Read More>>


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Submitted by: Rebecca Scholtz, Liman Fellow and Attorney, Mid-Minnesota Legal Aid

Basics of Deferred Action for Childhood Arrivals

On June 15, 2012, the Secretary of Homeland Security announced the issuance of President Obama’s Executive Order that allowed consideration for deferred action of childhood arrivals (DACA) who meet certain eligibility requirements as outlined below. This is a determination to defer removal action of a person as an act of prosecutorial discretion. A person who has received deferred action will stop accruing unlawful presence during the time the deferred action is in effect. Upon approval, childhood arrivals receive deferred action status for a period of two years, subject to renewal, and may be eligible for employment authorization. Deferred action does not erase previous or subsequent periods of unlawful presence. Due to the fact that this is a discretionary determination, the Department of Homeland Security can terminate at any time. Read More>>

Submitted by Diana Villella Larson, Managing Attorney of the Spanish Legal Services Program

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Immigration Terms that Every Attorney Should Know

Regardless of the area of practice, immigration terms will likely come up while discussing a client’s case. This is a brief overview of some basic immigration statuses that may relate to your client:

Undocumented: The person has no visa or legal status in the U.S. This does not indicate that he/she entered the country without status. The person may have a pending application for legal status. Neither length of residence nor relationship to a US citizen automatically confers any sort of legal status.

Nonimmigrant VISAS/Temporary lawful status: For a temporary stay in the U.S. holders are admitted to the U.S. for a specific purpose and are restricted to the activity consistent with their visas. The visas are issued prior to entry to the U.S. by a U.S. consulate or embassy. Temporary visa holders can obtain permanent status through employment opportunities or family relationships.

Business Visas: H, L, E, I, O, P, R

  • These visas allow the holder to work in the U.S.
  • Each letter corresponds to a specific type of work/businesspractice; i.e. film, science, athletes, etc. ?

Visitor’s Visa

  • B-1: holders can visit U.S for business purpose, but not seek employment or be employed. Intended for conferences, meetings, etc.
  • B-2: Standard tourist visa. Usually holders can stay in the U.S. for 3-6 months at a given time. They cannot seek work.

Student Visas: F, M, J

  • F: holder must be a full-time student and have proof fromschool as well as financial support
  • M: holder can pursue nonacademic study (high school,junior colleges, vocational schools)
  • J: Visa for education and cultural exchange programs

Family Related

  • K1: Nonimmigrant visa for fiance? of US citizen
  • K1 holder and US citizen fiance? must be married within 3 months of immigrant’s entry into the country
  • K2: Nonimmigrant visa for a spouse of US citizen
  • V: spouses and children of lawful permanent residents

Refugee, Asylee, Relief visas: A person who has been admitted conditionally to the U.S. due to threat of persecution in home country.

Refugee: Granted to people who apply from outside the U.S. Status is granted and the holder is allowed to entry to the U.S. Allowed to work and can apply for lawful permanent residency after being present continuously for one year in the US. The Refugee could be deported due to criminal conviction.

Asylee: Granted to people after entering the US. Entry can be legal or undocumented. Upon successfully receiving asylum the holder can legally work and can apply for legal permanent residency after one year. Asylee may be deported due to a criminal conviction.

Relief Visas
U Visa: Applicant has suffered from a criminal activity that occurred in the U.S. and is helpful or likely to be helpful to US law enforcement.

S Visa: Issued to people who assist US law enforcement to investigate and prosecute crimes and terrorism. Also known as the “Snitch” Visa.

T Visa: Issued to victims of trafficking.

Temporary Protected Status (TPS): Conferred on an entire nationality based on dire situations such as civil wars, natural disasters, etc. Countries include Burundi, El Salvador, Honduras, and Nicaragua. TPS may only last for specific time periods due to country conditions.

Lawful Permanent Residents (LPR): “Green card” holders. Noncitizen who have been lawfully admitted to live and work permanently. LPRs may travel in and out of the country and may become a U.S. citizen after a certain number of years, usually 5. May be deported or face other immigration consequences due to criminal convictions.

Conditional Permanent Residents: Also have a “green card” but it expires after two years and is usually issued to individuals who received LPR status through a marriage less than two years old (see K1, K3 visas above).

Rights of LPR: work, live, travel in and outside U.S., apply for Social Security/SSI/Medicare benefits, apply for a driver’s license, attend public schools and colleges, own property; request a visa for spouse and unmarried children to come to US.

NOTE: Right to vote. LPRs do not have the right to vote in US elections. There are some exceptions for local elections

Employment Authorization Document: Document issued to immigrants who have pending applications for other types of statuses. The EAD can usually be filed along with the application for the visa/status. The EAD can be renewed The EAD can be filed for: Asylees/refugees and their spouses and children; TPS applicants; Students (restrictions apply); Specific Nonimmigrant visa holders/applicants; Applicants who have filed for adjustment of status (usually filed for a Green card); Others including U- visas applicants, T-visas, and others.

US Citizens (USC): Citizenship is acquired via:

  1. Birth in the US, Puerto Rico, US Virgin Islands, Guam, American Samoa and Swains Island.
  2. Citizenship acquired from US citizen parent: person was born outside of US to USC parent.
  3. Naturalization: The person is born outside of US; gained citizenship by applying and receiving citizenship through the naturalization process. This usually involves passing a test on civics and English.
  4. Derivative Citizenship from Naturalized US parent: A person becomes a USC if he or she was a minor when one or both parents became naturalized citizens.
Submitted by Katherine Longwell J.D. 2015 

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IMMIGRATION BASED CLAIMS FOR SUPPORT IN FAMILY COURT

INTRODUCTION:

A new immigrant to the United States is required to have a sponsor(s) who asserts that the sponsor will financially support the immigrant. An individual sponsored in this way who is a legal permanent resident, commonly referred to as a “green card” holder, may be able to make a claim for monthly support payments in a dissolution based on the immigration affidavit of support. Immigration affidavits of support as a basis for claiming spousal support is a relatively novel claim. Binding law in Minnesota on the topic of enforcing affidavit of support as a contract does not exist at the time of this writing.  This note is for informative purposes only and to provide a starting point for attorneys interested in pursuing this type of claim.

The “Affidavit of Support”, form I‐864 is a document required to become a green card holder.  This document may entitle the green card holder, or sponsored immigrant, support up to 125% of the federal poverty guidelines from their sponsor, who is often their spouse.  If your client makes more than 125% of the federal poverty guidelines, this tip does not apply. If your client has not yet obtained their green card, their sponsor may not have filed out form I‐864, but form I‐134 which does not create the same contractual rights.

WHY BRING AN IMMIGRATION BASED SUPPORT CLAIM?

A support claim based on an affidavit of support is distinct from a claim of spousal maintenance. An immigration based support claim has several advantages versus spousal maintenance (but you can and should bring both claims where appropriate).  Be aware that the Court could choose to offset a contract amount with maintenance, or vice versa.  Also, if maintenance was awarded at a rate at or above 125% of the federal poverty guidelines, your client would not be eligible to enforce the I‐864 contract. Reasons to seek an immigration based support claim include:

  • Length of time‐ the I‐864 provides for payments until:  sponsored immigrant  earns 40 quarters of qualified social security (typically 10 years) or when the green card holder (sponsored immigrant) becomes a citizen (at least 5 years) or when they are ordered removed. This could be helpful for clients in short term relationships.
  • Payors Income Not a Factor – An immigration based claim is not based on family law factors in Minn. § 518.552 like duration of relationship or sponsor’s ability to pay.
  • Frequency of Payments – May be able to get monthly payments for your client where maintenance would not typically allow for payments‐ such as when the sponsor is receiving disability, or has not been working.
  • Tax Implications – Can you offer to drop the issue in exchange for property like a payment of a 401K at a higher rate so that this will not be reported as income on taxes?   Otherwise, report as income on taxes.

Immigration based claims of support also have some disadvantages when compared to spousal maintenance:

  • Contract Claims are Dischargable – Contractual rights are dischargable in bankruptcy.  One option is to get an agreement from the other party to secure the debt with real property or an interest in a 401K.
  • No Binding Authority – There is no binding precedent authority on enforcing the I‐864 as a contract right in Minnesota. Therefore results may vary from judge to judge and venue to venue. The attorney bringing the claim will also need to brief the court on the issues as it may be completely new to the hearing officer.  If you are representing the sponsor, there are issues regarding the congressional intent of the form, and whether it was created as a way to reimburse the government for assistance a sponsored immigrant receives, or whether the sponsored immigrant has the right to bring the claim as an individual, and whether jurisdiction is appropriate in a state family law court.

TIPS ON BRINGING A CLAIM:

Step 1:  You will need a copy of your client’s affidavit of support, form I‐864.

  • You can request a copy of this form or other immigration records, request them by filling out and faxing an immigration Freedom of Information Act form.  This form can be found at www.uscis.gov under the “forms” section as form G‐639.

Step 2:  Arguing jurisdiction in family court is appropriate

Since this is an issue of first impression in Minnesota you may need to argue why the trial court has jurisdiction to address this claim, especially because you are asking a state court to enforce a federal law contract issue. Possible arguments for the court having jurisdiction over the claim include:

  • Immigration forms involve federal law, and jurisdictions are split as to whether the person being sponsored has the right to sue on their own behalf, or whether only the government has the right to sue on behalf of assistance they provide when the sponsored party falls below 125% of the federal poverty guidelines.  This issue has not been decided in Minnesota.
  • The governing statute enforcing the I‐864, 8 U.S.C. §1183a(1)(C) provides that, “the sponsor agrees to submit to the jurisdiction of any [f]ederal  or [s]tate court for purposes of actions brought under [8 U.S.C. §1183a](b)(2).”
  • The I‐864 contractual obligation can be enforced by the sponsored alien.  8 U.S.C. §1183a(1)(B).   An action to enforce an affidavit of support can be brought against the sponsor in any appropriate court by a sponsored alien with respect to financial support.  8 U.S.C. §1183(e).
  • Because the majority of the proceeding will involve state divorce law, state court is the most appropriate venue.  Federal Courts have discretion to remand “all matters in which State law predominates.”  28 § U.S.C. 1441(c).

Step 3:  Arguing to enforce the I‐864 as a contract.

  • Argue offer, acceptance and consideration using case law from other jurisdictions, and the language contained in the form I‐864 and its instructions.  The language in the form and instruction contain the terms of the contract, spelling out issues like “consideration” and how long the obligations continue.
  •  Federal courts that have addressed the issue have consistently found that form I‐864 is a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form; state courts that have addressed the issue have also held that I‐864 is a binding contract.  (See www.fordwlaw.com/practice‐areas/family‐law/  for an example motion with citations).  Again, at the time of writing this there is no binding authority in Minnesota on the issue, and even outside of Minnesota there are Courts that have held the I‐864 is not a binding contract that a sponsored immigrant can enforce.

CONCLUSION:
Claims of spousal support based on I‐864 affidavits represent a potentially powerful tool in the family law practitioner’s tool belt. However, due to the lack of binding authority the basis for bringing a claim will vary from court to court and judicial officer to judicial officer. Attorneys should check updated case law and consult with other practitioners in their practice area before making a claim.

Submitted by Shauna Kieffer, Ford Law Office

A NEW ORDER FOR THE BORDER: New Requirements for Lawful Entry into the U.S.

There’s a train wreck coming, but few know about it. Starting January 8, 2007, new requirements for lawful entry into the United States will catch many U.S. citizens off-guard. For some the moment of panic will hit when they try to reenter the U.S. For others, panic will set in when they try to depart the U.S, especially those with children not living with both parents.  You’ll see frantic individual parents try to check in for an international flight without having a proper release, custody or travel document to take their minor child outside the U.S. By becoming familiar with the following requirements, you’ll be able to advise your clients to steer clear of the train wreck and hopefully undertake foreign travel in the Western Hemisphere without incident. You may also see that it applies to you for that upcoming Caribbean dream vacation.

What’s New?

The Intelligence Reform and Terrorism Prevention Act of 2004 requires that by January 1, 2008, travelers to and from the Caribbean, Bermuda, Panama, Mexico and Canada have a passport or other secure, accepted document to enter or re-enter the United States. This new requirement is being phased in and a final deadline will appear in the federal register in the coming months. For now, the proposed timeline is:

  •  January 8, 2007 – Applied to all air and sea travel to or from Canada, Mexico, Central and South America, the Caribbean, and Bermuda.
  • January 1, 2008 – Extended to all land border crossings as well.

(Pay careful attention to the above dates. The January 8, 2007 requirement is for air and sea travel and was delayed one week to allow travelers returning from December holidays to return before the new requirement. The 2008 deadline for land borders presently remains set for January 1, 2008.)

How is this different from current requirements?

This is a change from prior travel requirements and will affect all United States citizens entering the United States from countries within the Western Hemisphere who do not currently possess valid passports. This new requirement will also affect certain foreign nationals who currently are not required to present a passport to travel to the United States. Most Canadian citizens, citizens of the British Overseas Territory of Bermuda, and to a lesser degree, Mexican citizens will be affected by the implementation of this requirement. For many years U.S. citizens, and some citizens of other countries in the Western Hemisphere including Canadians, have not been required to present a passport or other specific forms of secure identification to enter the U.S. Instead, a wide variety of less secure documentation has historically been accepted.

How do I get a passport?

United States citizens can visit the State Department’s travel website www.travel.state.gov, or call the U.S. National Passport Information Center: 1-877-4USA-PPT; TDD/TTY: 1-888-874-7793. Passport information for those seeking passports in Hennepin County can be found at:http://hennepin.us/portal/site/HennepinUS/menuitem.b1ab75471750e40fa01dfb47ccf06498/?vgnextoid=3f3f7b979d274210VgnVCM10000049114689RCRD

Does anyone need to apply for a passport in person?

You’ll need to apply in person if:

  • You are applying for a U.S. passport for the first time;
  • Your expired U.S. passport is not in your possession;
  • Your previous U.S. passport has expired and was issued more than 15 years ago;
  • Your previous U.S. passport was issued when you were under age 16;
  • Your currently valid U.S. passport has been lost or stolen.

You’ll need two identical passport style photographs of yourself, proof of U.S. citizenship, and a valid form of photo identification such as a driver’s license.

Are there any additional requirements for minors?

Application procedures for minors are the same as those for adult applicants with the addition of the following requirements (These requirements apply to renewals as well as first time applications):

Under 14: Whether renewing or applying for the first time, both parents must appear in person and present proper ID to execute the application. If your circumstances do not allow both parents to appear, you must provide one of the following:

  • Child’s certified U.S. or foreign birth certificate (with translation, if necessary) listing only applying parent
  • Consular Report of Birth Abroad or Certification of Birth Abroad listing only applying parent
  • Court order granting sole custody to the applying parent (unless child’s travel is restricted by that order)
  • Adoption decree (if applying parent is sole adopting parent)
  • Court order specifically permitting applying parent or guardian’s travel with the child
  • Judicial declaration of incompetence of non-applying parent
  • Death certificate of non-applying parent

If your circumstances do not allow both parents to appear, and you cannot provide the above documentation, you must provide a notarized Statement of Consent (DS-3053) signed by the non-applying parent. This form is available from the U.S. Department of State web site and from county offices where you can make in person application.

In all cases, the minor must be present at the time of application. Whether renewing or applying for the first time, the minor’s birth certificate is required to prove parent-child relationship.

Age 14-17: One parent must appear in person and present proper ID to provide parental consent. The minor must be present.

You should allow at least 8 weeks to process your passport in advance of travel. The length of time needed to process any application may vary due to application volume or failure to provide all necessary information and documentation. Expedited processing is available for an additional fee. Foreign nationals should contact their respective governments to obtain passports.  Following is a link to offices of foreign consulates in the U.S.: http://www.state.gov/s/cpr/rls/

What if I need expedited processing for a passport?

If you choose expedited service, you will receive your passport within about two weeks.

  1. Expedited service incurs an additional fee of $60.00 plus overnight mailing fees ($13.65 each way).
  2. You should provide a copy of your travel itinerary or plane tickets to prove need for expediting.
  3. If you will be traveling in less than two weeks, or need your passport immediately due to visa requirements, you should contact a visa service to hand deliver your application to a passport agency.

A visa service is a private company that you can hire to act as a courier. For a fee, they will hand deliver your application to one of 13 passport agencies located throughout the United States. To use one of these services you should take the following steps:

Search online using keywords like “visa service” or “passport service”; or look in a local phone directory under “passports.” Compare and select the company and service level that best fits your needs. Contact that company right away to make arrangements. They will make you aware of all of the additional documentation and fees required. Even with expedited processing the entire process could take anywhere from 24 hours to over a week, depending on the company and service level you choose.

Other than a passport, what types of documents will be acceptable under this initiative?

The government expects that acceptable documents must establish the citizenship and identity of the bearer through electronic data verification and will include significant security features.  Ultimately, all documents used for travel to the United States are expected to include biometrics that can be used to authenticate the document and verify identity.

The passport is the document of choice right now because of security features and general availability. Individuals traveling within the Western Hemisphere are encouraged to obtain a passport.

For land border crossings, other documents that are being considered are SENTRI, NEXUS and FAST program cards.  These are current international frequent traveler programs (see www.cbp.gov for further information). The Border Crossing Card, (BCC – also known as “laser visa”) is also being considered as a substitute for a passport and a visa for citizens of Mexico traveling to the United States from contiguous territory.

No currently existing documents other than the BCC, SENTRI, NEXUS or FAST cards are under active consideration as substitutes for the passport. The Departments of Homeland Security and Department of State are working to determine acceptable alternative documents other than a passport and will make that announcement soon.

Will this requirement apply to travel between the United States and Puerto Rico or the U.S. Virgin Islands?

The Western Hemisphere Travel Initiative will not affect travel between the United States and its territories. U.S. citizens traveling between the United States, Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa will continue to be able to use established forms of identification to board flights and for entry.

If traveling outside the United States or a U.S. territory, a passport or other secure document will be required. For example, a person may travel to and from the United States to the U.S. Virgin islands without a passport or other secure document, but under proposed regulations, a passport or other secure document would be required to re-enter the U.S. Virgin Islands from the British Virgin Islands or another country as of December 31, 2006.

Foreign nationals traveling to a U.S. territory from the mainland U.S. and seeking to return to the mainland U.S. will undergo immigration inspection and are advised to have all necessary visas and entry documents to present when returning.

Where can I check for further requirements?

http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_2223.html

What can one use to show permission of the other parent when traveling with a minor child?

First of all it is advisable to check with the airline, travel agent, or cruise line regarding required documentation for traveling with any minor. In addition to the child’s passport, one should also bring with a certified copy of the child’s birth certificate, and identification such as a school ID, driver’s license or a state ID card. The parent should also bring a copy of his or her marriage, divorce/custody papers if possible. Keep a copy of all of these at home or with a relative when traveling. Following is a sample affidavit that may be used to show permission of the other parent.

 

In the Matter of                  )                                                         AFFIDAVIT OF

The Marital Termination )                                                         NAME OF NON-TRAVELING

Agreement of:                     )                                                        SPOUSE

Name of Plaintiff                )

vs.                                          )

Name of Respondent        )

Case No. _________________

___________________________________________________________________

ACKNOWLEDGMENT OF NOTICE AND RELEASE OF CONSENT FOR INTERNATIONAL TRAVEL FOR VACATION PURPOSES ONLY OF MINOR CHILD OF MARRIAGE, NAME OF CHILD OR CHILDREN

 

COUNTY OF _____________ )                    NOTE: NAME OF COURT OF DIVORCE

_______JUDICIAL DISTRICT  )                    AND JURISDICTION IN HEADER

STATE OF MINNESOTA               )

 

1. That I am the biological and legal father of a male/female child(ren), Name of Child, Children, born in city and country of birth, and date of birth, month, day, year.

2. That on Month of Marriage, and Year, I married traveling parent’s name, who changed her name during our marriage to (if name changed of spouse) and that she is the biological and legal mother of name of child/children.

3. That on date of entry___________________(month,day,year) of Judgment of MTA/divorce, dissolution, a marital termination agreement changed the name of my former spouse, from name of married name of former spouse if changed, back to her maiden name, name after divorce/dissolution/MTA if changed, the agreement between the aforementioned adult parties covering joint legal and physical custody has been duly approved by a family court judge, and filed with the Minnesota family court for _____ County in the _____ Judicial District, and has become a final judgment/decree.

4. That said marital agreement specifies and permits the right to travel outside of the home state, of Minnesota, and home country, United States, for up to a 30 day period per year.

5. That I have been duly informed, and I consent to my child/ren and full names, traveling to Specify Places of Travel and Dates of Travel, for (specify purpose of travel) summer vacation purposes, with traveling spouse (mother/father) , and a period, up to two weeks thereafter, should an unexpected medical or similar emergency occur. (Allow time and permission for emergencies)

WHEREFORE, I respectfully submit my consent, as the legal mother/father and guardian for permission to travel with the legal father/mother and joint legal custodian/guardian of names of child/children of the minor child of the aforementioned marriage, internationally, to city, country or countries, during the day, months, year of travel (i.e. month of ____ 2006).

Further your affiant sayeth not, except that this affidavit has been made in good faith

 

Dated: ________

Subscribed and sworn to before me                                      _______________________

The ____ day of ____  2006                                                            Signature of Affiant

 

__________________________

Notary Public

 

 

By Steven C. Thal