Kids and Padilla – Client Focused Representation Can Make Dreams Come True
Padilla is a client focused decision. It recognizes that immigration consequences are often the most important issue to a client. It also recognizes that justice is best served when parties to proceedings craft resolutions that avoid overly harsh consequences. The spirit of Padilla is an affirmation of client focused representation that can extend beyond criminal defense. Yet, all too often I hear defenders say that Padilla does not apply to children. This article is to encourage you to provide juvenile clients with the client focused representation Padilla embraces.
Increasingly, federal immigration law impacts juveniles and the juvenile justice system. For example, when parents are deported children can end up in child protection or delinquency proceedings from fending for themselves on the street. All too frequently, young clients are precluded from programming options because they lack lawful immigration status or are subject to an immigration hold. Some children, fearful of deportation, hide in the shadows. Working with such cases can be frustrating and heart wrenching but it doesn’t need to be – the child’s crisis can be an opportunity to apply the spirit of Padilla to obtain a lawful immigration status which provides permanency and stability to the child. Furthermore, you may be the only attorney your client ever works with as immigration does not provide attorneys to children facing immigration enforcement actions.
Child clients are often unaware that they qualify for a legal immigration status even though there are many potential immigration statuses available to children. Derivative citizenship, Adjustment of Status to Lawful Permanent Resident, Asylum/Refugee status, Deferred Action for Childhood Arrivals (Dreamer./DACA), Special Immigrant Juvenile Status, Violence Against Women Act Protections, and U or T status for victims of certain crimes or trafficking are just a few of the options for children to become lawful immigrants. Early screening of the client is key to identifying and obtaining appropriate relief. Failure to do so not only limits case resolution possibilities, but may also permanently bar the child from obtaining a valid immigration status. What can a defender do to avoid these dire consequences? There are a variety of options but the following five steps provide a framework for client focused representation that meets the needs of young clients:
1. Ask each client – “where were you born?” If it’s not the U.S., inquire about the client’s immigration status. Request copies of any immigration documents that may have been issued to the client. In some cases, family members may refuse to provide the client with his or her documents. Ask the court to order the family to turn over the child’s documents.
2. Develop immigration resources. I know, you are probably thinking, that’s easy for you to say. However, there are free resources available to help you understand the immigration options available to children. The Immigrant Legal Resource Center provides excellent, free information at: http://www.ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth. Pro Bono Net (http://www.probono.net) and the Florence Immigrant and Refugee Rights Project (http://www.firrp.org) also provide free immigration resources. The American Immigration Lawyers Association and the Defending Immigrants Project regularly conduct CLEs.
3. Engage the Court. Juvenile Courts, tasked with acting in the best interests of the child, should be vigilant to protect a child’s eligibility for immigration relief. Yet, change is not always welcome when resources are in short supply. Some courts are reluctant to entertain immigration issues. Keep making the request, eventually you will prevail. My office (Hennepin County Public Defender) took a variety of steps before we prevailed. For example, we worked to educate the court about the benefits available to children. We sought allies in social workers, guardians and probation officers. In one notable case, the victim of a carjacking asked the court to give the child a chance. The effort has paid off. Judges in our district are generally sensitive to the immigration issues of children.
When raising immigration issues, defenders should exercise care to ensure immigration does not use the record against the child. For this reason, in Chambers discussions are preferred. Use the discussion to educate and persuade the Judge about the need for consultation with an immigration lawyer. Be aware that federal immigration law may mandate that a state court judge make specific findings on the record. For example, before a child can apply for a lawful permanent resident status (i.e. “green card”) through Special Immigrant Juvenile Status (SIJS). Often state court judges are unaware of this authority or its scope. They can also resist making the findings. My office litigated a case in which we repeatedly asked to the Court to consider making findings. Each time we made the request, the Judge indicated she would deny. We kept at it for several months. Ultimately, we filed a motion and the court issued a written denial. Lawyers from our office took the appeal pro bono. The result is a Minnesota Court of Appeals decision that may be helpful to you. Matter of DAM, No. A12-0427 (Minn. Ct. App. Dec. 10, 2012) (unpublished) found that a wide range of state courts can make SIJS findings (i.e. delinquency, guardianship, CHIPS, etc.), clarified that a state court’s findings do not bestow any immigration status on SIJS applicants, and provides helpful guidance for state judges seeking to interpret the relevant immigration statute.
4. Embrace the Challenge and Enlist Immigration Services. Immigration lawyers can be critical allies in the representation of noncitizen children. In addition to providing immigration advice, they are likely to have experience working cross-culturally and may have important information about the conditions in a child’s birth country. It can be challenging to find the right immigration lawyer. There are national organizations that provide pro bono services to immigrant children. Kids In Need of Defense and the Immigrant Children’s Legal Program at USCRI are two such programs. Local nonprofits may also provide immigration services to children and may be a powerful partner in obtaining an immigration status for your client. For example, Legal Aid in Minneapolis, Minnesota regularly works with public defenders representing child clients in Minnesota. (For info about Legal Aid’s work with immigrant children contact Rebecca Scholtz) Once you’ve found an immigration lawyer, be patient. He or she may not be an expert in juvenile law, may use idioms unique to immigration law, and may make requests that annoy you. Take the time to develop a common language and a solid professional relationship. Eventually, you will gain an invaluable resource in your efforts to meet the needs of your client.
5. Celebrate your Success. Many children qualify for immigration benefits. Sharing your success stories with other juvenile justice professionals supports efforts to address the needs of immigrant children. For example, last week we learned that a client received lawful permanent residence (i.e. a “green card”) through the order (SIJS findings) we obtained in his delinquency case. This formerly undocumented, young man is now legally able to work, obtain a state ID and driver’s license, and qualify for educational benefits. Several clients we’ve screened have returned to school to earn their high school degrees in order to qualify for immigration benefits. One young client who obtained her lawful immigration status after a screening in CHIPS proceedings, is now able to work towards her dream of becoming a nurse rather than fear deportation from her U.S. citizen infant. Another case involved a child in delinquency proceedings who obtained immigration relief as the victim of a crime. He now has successfully completed his programming, obtained a work permit, and is on his way to becoming the first person in his family to graduate from high school. Such outcomes are incredibly rewarding. Each of them depended upon the work of their defender. Through working to obtain a lawful immigration status for a noncitizen client, you can make a child’s dreams come true.