IMMIGRATION AND ITS IMPACT ON INTERNATIONAL FAMILY LAW

June 20, 2014 11:00 a.m. – 12:15 p.m.

Presented by:

Moderator: Christina Angell, Law and Mediation Offices of Christina L. Angell, San Francisco, CA

Gary Caswell, Nunez & Caswell, San Antonio, TXMonica Eav, Law Offices of Robert D. Ahlgren and

Associates, P.C., Chicago, IL

Overview of Immigration Law FundamentalsI. Federal government agencies involved in

immigration matters and sources of authorityII. “Marriage” and “children” under immigration lawIII. Forms of immigration status in the U.S.IV. Removal proceedingsV. Selected forms of relief from removal

I. Federal Government Agencies Involved in ImmigrationWithin the U.S.:

Formerly: Immigration and Naturalization Service (INS)

Since 2003: U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS)

Removal proceedings: U.S. Department of Justice, Executive Office of

Immigration Review (EOIR) U.S. Department of Homeland Security, Immigration and

Customs Enforcement (ICE)

Outside the U.S.:U.S. Department of State, Visa Office

I. Where does immigration law come from?STATUTE: “INA” = Immigration

and Nationality Act, codified at 8 U.S.C. 1101 et al., e.g. “Section 245(i) of the INA”

REGULATIONS: 8 C.F.R. et al.USCIS POLICY MEMORANDAADMINISTRATIVE AND

FEDERAL COURT DECISIONSBoard of Immigration Appeals

(“BIA”)U.S. Courts of Appeal

II. “Marriage”To be valid for immigration purposes:

Legal where performed (including same-sex marriage, proxy marriage, first-cousin marriage)

“Bona fide”, i.e., not entered into for the sole purpose of obtaining immigration benefits

Note: Marriage to a U.S. Citizen or Legal Permanent Resident does not automatically confer any benefit or immigration status to spouse or children

II. “Children” Unmarried Under 21 years old (generally)

Child Status Protection Act sometimes prevents age-out Stepchildren

Treated same as a biological child, if marriage was entered into before child turned 18 years old

No adoption or legal custody by stepparent is necessary Adopted children

Adoption must take place while child is under age of 16 (generally) If Hague Convention on Intercountry Adoption applies:

Adoption agency must be accredited by Council on Accreditation Studies must be done in both countries re: fitness of the adoptive parents and fitness

of the child to be adopted If child has two living parents, they must be incapable of providing proper care for the

child If non-Hague Convention adoption:

Must establish legal and physical custody of child by the adopting parent/parents for at least 2 years

III. Types of Immigration StatusU.S. Citizenship

Able to petition for other family members to immigrate to U.S., can live/work inside or outside U.S.

Legal Permanent ResidentAble to petition for spouses and unmarried children

only, can lawfully work and reside in the U.S.Must not “abandon” residence in the U.S.

Non-Immigrant StatusAble to enter the U.S. for limited purpose and timeframe

IV. Removal ProceedingsAKA Deportation ProceedingsBefore an Immigration Judge in an Immigration Court

under the U.S. Department of Justice“Respondent” = defendant“Assistant Chief Counsel for DHS-ICE” = prosecutorCharge(s): Present in the U.S. in violation of immigration

lawNo age limit – babies can be named as respondentsCertain forms of “relief from removal” are available under

the INAIf relief is granted by the Immigration Judge, Respondent

usually becomes a Legal Permanent Resident, or at the least will be allowed to continue residing in the U.S.

V. Relief: AsylumCan be filed “affirmatively” with USCIS or “defensively”

as a defense in removal proceedingsUnable or unwilling to return to home country, due to

past persecution or well-founded fear of future persecution in home country on the ground of race, religion, political opinion, or membership in a particular social group

Membership in a social group examples: Filipinos of mixed Chinese-Filipino ancestry; young women of a certain tribe who oppose female genital mutilation; Guatemalan women; difficulties in defining social group for children who fear gang-related violence in Central America

V. Relief: Cancellation of Removal of Non-Permanent ResidentsSection 240A(b) of INAAt least 10 years of continuous residence in

the U.S. up until the date that removal proceedings are initiated

Has been a person of good moral character during the 10-year period

Does not have certain criminal convictionsIncluding certain crimes of domestic violence

If removed from the U.S., LPR/USC spouse, parent(s), and/or child(ren) would suffer exceptional and extremely unusual hardship

V. Relief: VAWA Cancellation of Removal“Battered or subjected to extreme cruelty” by U.S.

Citizen or Legal Permanent Resident spouse or parent

Present in U.S. for at least 3 years before application

Good moral character during 3-year periodCannot have certain criminal convictionsIf deported, extreme hardship would result to the

respondent him/herself, or his/her U.S. Citizen/Legal Permanent Resident child, or his/her U.S. Citizen/Legal Permanent Resident parent

V. Relief: Special Immigrant Juvenile Status (SIJS) Section 101(a)(27(J) of the INA Self-petition by a child (under 21, unmarried) who has been abused,

abandoned, or neglected by one or both parents 1st step: Action in a state court that has jurisdiction over custody and care of

juveniles. Child is dependent on the juvenile court, or ward of the state, or under the

custody of an individual/entity appointed by the state/court. Judge must make specific findings that: 1) reunification with one or both

parents is not “viable” due to the abuse/abandonment/neglect and 2) it is not in child’s best interest to be returned to home country.

In many states, such as IL, child must be under 18. 2nd step: File Form I-360 self-petition with USCIS, including judge’s findings. 3rd step (in some cases, can be simultaneous with 2nd step): File I-485

application for permanent resident status. Generally, once an I-360 petition has been approved, Immigration

Judges will terminate removal proceedings to allow the child to continue with the 3rd step.

V. Relief: VAWA PetitionsSelf-petition by an individual who resided in a domestic

relationship with abusive spouse, parent, or adult son/daughter (elder abuse)

Abuser is/was USC or LPR“Battery or extreme cruelty” (mental and/or physical)If divorced, must file within 2 years of divorce, wait to

remarry1st step: File form I-360 self-petition with USCIS2nd step (sometimes can be done simultaneously with 1st

step): File Form I-485 application for permanent resident status

Once I-360 petition has been granted, Immigration Judges will usually terminate to allow Respondent to continue with 2nd step.

V. Relief: U VisasVictim of crime that took place inside the U.S. (no time

limit)Certain crimes qualify (e.g., rape, sexual abuse, domestic

violence, felony assault, stalking, labor exploitation)Victim was/is likely to be helpful in investigationCertification by one:

Law enforcementProsecutorJudge

Non-immigrant status, but can apply for Legal Permanent Resident status after 3 years of continuous residence with U Visa

Once U Visa status has been granted, Immigration Judges will terminate proceedings.

Overview of Hague Convention on Child Abduction

HAGUE CONVENTION OVERVIEWPotentially applies were a child has been taken

from his habitual residence in one Contracting State to another Contracting State.

Addresses the issue of forum: where should custody and visitation issues be decided? 91 Contracting States Agree that it is in the best interest of the child that the judicial or administrative authority of the State of his habitual residence make custody/access determinations (Preamble)

OVERVIEW CONT’DGoals: Secure prompt return of wrongfully removed

or retained children and ensure rights of custody and access of one Contracting State are effectively respected in the other Contracting States

Left-behind parent may file an application with the Central Authority of the child’s habitual residence or any other Contracting State for assistance (Art 8) or apply directly to the judicial or administrative authorities (Art (29)

States must use the most expeditious procedures available (Art 2) and judicial and administrative authorities shall act expeditiously (Art 11)

International Child Abduction Remedies Act (ICARA)

Hague Convention Implementing legislation for the U.S.

Wrongfully removed or retained children shall be promptly returned

Left-behind parent may file in State or Federal Court

Courts shall not decide merits of custodyPrescribes burdens of proof for exceptions to returnCourt ordering return shall order respondent to pay

court costs, legal fees, foster or other care, and transportation

Exceptions or defenses to Return of Child (BOP = Preponderance)“Well-settled”: If proceeding commenced more than 1

year after removal, the Court shall also order the return unless it is demonstrated that child is now settled in the U.S. (Art. 12)

Age-out: Convention ceases to apply once child turns 16 (Art. 4)

Petitioning parent was not actually exercising custody rights at time of removal or consented to or subsequently acquiesced in the removal or return (Art. 13a)

“Mature Child”: Child objects to return and is of sufficient age and maturity to have his views taken into account (Art. 13)

Exceptions or defenses, cont’d(BOP = Clear and Convincing)“Grave risk”: Return would expose child

to physical or psychological harm or “otherwise place the child in an intolerable situation” (Art. 13b)

“Human rights” exception: U.S. can refuse to send child back if return would violate its fundamental principles relating to human rights and fundamental freedoms (Art. 20)

U.S. Supreme Court CasesAbbott v. Abbott, 130 S. Ct. 1983 (2010).

Visitation only + Ne Exeat = Rights of Custody.

Chafin v. Chafin, 133 S. Ct. 1017 (2013).Return of child does not render appeal Moot.

Lozano v. Alvarez, No. 12–820 (2014). Secreting child location does not toll Art. 12 - 1

year rule.

Hypotheticals

Hypothetical #1 (Lopez Sanchez): 3 Mexican children are raised by mother, who separated from father since children were

young. In 2011, maternal aunt takes children across the border illegally to the U.S., to reside with

maternal uncle. Mother demands that children return. Aunt brings children to border, but oldest child

refuses to return to Mexico. Instead, he and 2 younger children turn themselves in to ICE border authorities.

Children are placed in removal proceedings by DHS. Children are placed in foster care. Mother files Hague petition in Mexico for her children’s return. Mother files petition in U.S. District Court in San Antonio, TX. Children’s pro bono counsel files asylum applications for children before USCIS. Children’s pro bono counsel also files state court action regarding children and their

biological parents’ custodial and other rights. In federal court action, children’s pro bono counsel argues that the relevant immigration

statute trumps Hague Convention. Also argues that the “grave risk of harm” and the “human rights” exceptions to Hague Convention apply, due to allegations that mother’s ex-boyfriend was violent and/or a gang member.

District Court judge orders return of children under Hague Convention but grants stay of order pending appeal.

While 5th Circuit Appeal is pending, children are granted asylum by USCIS. Children are now 16, 14 and 9 years old.

Hypothetical #2:Indian man comes to U.S. on an H1B work visa, wife

accompanies him with an H4 visa as his spouse. They go on to have 2 children born in the U.S.

Husband becomes an LPR through his employer, but does not file application for his wife.

Husband is abusive.Wife wants a divorce and to stay in the U.S.Pending dissolution of marriage, wife wants to return

to home country with children to visit her dying parent.Husband says he will consider renouncing custody if

she agrees that she will not seek spousal and/or child support.

Hypothetical #3:3 children: 16-year-old born in Honduras who

came to U.S. illegally with his parents over 10 years ago; 10-year-old and 5-year-old, both born in the U.S.

Both parents are Hondurans who have been present in the U.S. illegally for over 10 years

Father is primary breadwinnerFather gets arrested by ICE and is placed in

removal proceedingsMother files for divorce and wants to move

back to Honduras with 3 children