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III. entering Immigration Court Alone
At Miguel’s hearing, he will be asked if he would like to retain counsel . He will be given a list of organizationsinNewYorkthatprovidefreeservicesandwillhopefullyhavetheopportunitytomeet with one of the non-profit organizations for a consultation .25 Although he is likely to be granted a continuance to try to secure pro bono counsel or to allow his father to hire an immigration attorney, at the second or possibly third appearance before the immigration judge he will have to plead to the allegations that the CBP wrote in the charging document that initially placed him into removal proceedings . CBP likely charged Miguel with being an arriving alien who lacked documentation to enter the United States and who seeks to immigrate . When a person is charged as an “arriving alien,” the burden is on that person, referred to as the “respondent,” to prove his ability to enter the United States .26 In the vast majority of immigration cases the respondent, especially a child, admits the allegations and the immigration judge finds that he is removable . The case then progresses to determining whether the respondent can qualify for any relief from removal .
Iv. Possible forms of relief from removal for Immigrant Youth
A. Asylum and/or Withholding of Removal
In Miguel’s case, he may have at least two avenues of relief from removal, the first of which is asylum and/or withholding of removal based on the persecution and trauma he suffered in El Salvador and/or fears of suffering should he be forced to return . Because Miguel was apprehended by CBP without a parent or guardian and before he turned eighteen, he is classified as an Unaccompanied Alien Child (UAC) .27 He is therefore entitled to file his application for asylum with the Asylum Office of the U .S . Citizenship and Immigration Services (USCIS), as opposed to having his asylum case heard in the first instance by an immigration judge . Nevertheless, whether an asylum claim is made by a child or an adult, the applicant must show that: 1) he meets the statutory definition of a “refugee;”28 2) he is not subject to any statutory bars from asylum; and 3) he merits a grant of asylum in the adjudicator’s discretion . A child meeting these three criteria may be granted asylum under Section 208 of the Immigration and Nationality Act .
B. Special Immigration Juvenile Status: Bifurcated State and Federal Protection
In the alternative, as a second avenue of immigration relief, Miguel may also be eligible for Special Immigrant Juvenile Status (SIJS) .29 This is an unusual immigration protection that does not originate out of international treaties . Congress created the SIJS category to help homeless
25 The list of free providers is available on the EOIR website. Many of the listed organizations will not accept cases of people in detention and are oversubscribed so that it is very possible that none of the organizations will accept representation of a child who called. Please visit http://www.justice.gov/eoir/new-york-city-immigration-court for a list of providers and more information.
26 8 u.S.C.A. § 1229b; 8 C.F.R. § 1001.1 (current through May 21, 2015); 8 C.F.R. § 1.2 (current through May 21, 2015). 8 C.F.R. § 1.2 defines “arriving alien” as a non-citizen who has not yet been inspected and admitted at a port of entry.
27 See Memorandum from Ted Kim, Acting Chief of Asylum Division, to All Asylum Office Staff, on updated Procedures For Determination Of Initial Jurisdiction Over Asylum Applications Filed By unaccompanied Alien Children to All Asylum Office Staff (May 28, 2013), available at https://www.uscis.gov/sites/default/files/uSCIS/ humanitarian/Refugees%20%26%20Asylum/Asylum/Minor%20Children%20Applying%20for%20Asylum%20 By%20Themselves/determ-juris-asylum-app-file-unaccompanied-alien-children.pdf.
28 See 8 u.S.C. § 1101(a)(42)(A).
29 8 u.S.C. § 1101(a)(27)(J). A person who qualifies for special immigrant juvenile is granted lawful permanent resident status.
Impact: Collected Essays on Expanding Access to Justice