The Rights of the Unaccompanied Alien Children and the Duties of Federal, State, and Local Governments

1
The Rights of the Unaccompanied Alien Children
and the Duties of Federal, State, and Local
Governments

• 300 P.M. T U Non-Immigrant Visas
• Kristin Zipple-Shedd, Supervising Attorney,
  Catholic Charities
• Maurice Hew, Clinic Director and Professor of
  Law,
• Thurgood Marshall School of Law
• Michelle Permenter, Director of Victim Witness
  Unit,
• Harris Co. District Attorneys Office
• Houston Community College
• 5601 West Loop
• Houston Texas
• July 31, 2o14

2
Human Trafficking and the T Visa

• Catholic Charities
• Cabrini Center for Immigrant Legal Assistance
• Kristin Zipple-Shedd

3
Forms of Human Trafficking

• Forced commercial sexual exploitation The
  recruitment, harboring, transportation,
  provision, or obtaining of a person for the
  purpose of a commercial sex act, in which a
  commercial sex act is induced by force, fraud, or
  coercion, or in which the person forced to
  perform such an act is under the age of 18
  years.
• Forced labor The recruitment, harboring,
  transportation, provision, or obtaining of a
  person for labor or services, through the use of
  force, fraud, or coercion for the purpose of
  subjection to involuntary servitude, peonage,
  debt bondage or slavery.
• 22 U.S.C. 7102(8)

4
Elements of Human Trafficking

• Force
• Physical beatings
• Sexual Violence (rape)
• Drug/Alcohol abuse
• Withholding of documents
• Deprivation (lack of food/water)
• Physical restraint
• Confinement/Isolation
• Fraud
• False documents
• False offers of employment (American dream
  enticement)
• Deception
• Coercion
• Debt bondage (repayment of expenses)
• Psychological Abuse
• Control through threats of violence to victim or
  victims family
• reporting to immigration officials

5
Two UAC HT Survivors

• Juan left his home in Honduras due to extreme
  poverty at the age of 7 and lived on the streets
  until he came to the U.S. at age 13. After
  entering the U.S., Juan walked from Laredo to El
  Paso where he met Mr. B, who offered him food
  and shelter. He worked on the ranch and in the
  family business from 5am until 6pm seven days a
  week, lived in unsanitary conditions without
  enough food or water, and feared for his life.
  

• Sandra came to the U.S. with her boyfriend, who
  promised her work caring for his aunts children.
  However, after they arrived in Houston, he left
  her with his aunt, who forced her to work at a
  cantina to pay off a debt she didnt know she had
  accrued until after she arrived. Sandra endured
  physical, sexual, verbal, and emotional abuse as
  her perpetrators forced her to work 12 hours a
  day doing things at the cantina that continue to
  haunt her.

6
Purpose of T (and U Visas)

• Humanitarian/Protection of Victims
• Public Interest
• Encourages victims to cooperate with law
  enforcement and facilitates trust between police
  and immigrant community
• Holds perpetrators accountable

7
Immigration Remedies for HT Victim Continued
Presence

• Temporary authorized stay in the U.S.
• One year, can be renewed
• Valid only as long as the government deems it
  necessary
• Employment authorization
• Not a path to permanent status
• 22 U.S.C. 7105(c)(3)

8
Immigration Remedies T Visa

• Lawful T visa status for 4 years, INA 214(o)(7)
• If law enforcement certifies that victims
  presence is necessary, status may be extended
• Employment Authorization , 8 C.F.R.
  214.11(l)(4)
• Same benefits to derivative beneficiaries
• Possibility of adjustment to Legal Permanent
  Residency

9
Immigration Remedies T Visa Requirements

• Victim of severe form of trafficking in persons,
• Physically present in the United States on
  account of human trafficking or the investigation
  of human trafficking,
• Suffer extreme hardship involving unusual and
  severe harm if removed from the United States,
  and
• Cooperate with Law Enforcement in the
  investigation or prosecution of trafficking,
  unless victim is under 18 or waiver

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Element 1 Victim of Severe Form of Trafficking

• Involuntary Servitude. 22 U.S.C. 7102(5) (2008)
• see 18 U.S.C. 1584.
• Peonage. See 18 U.S.C. 1581.
• Debt Bondage. 22 U.S.C. 7102(4).
• Slavery. See 18 U.S.C. 1583.
• Forced Labor. See 18 U.S.C. 1589.
• Forced Commercial Sex Act. 22 U.S.C. 7102(8)(a).

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Element 2Physically Present on Account of
Trafficking

• Present because s/he was trafficked,
• Present because s/he recently escaped from a
  trafficking scheme, or
• Present in the US as direct result of past
  trafficking
• Even one trip back to home country can eliminate
  T-visa option.
• 8 U.S.C. 1101(a)(15)(T)(i)(I) (2008) 8 C.F.R.
  214.11(g) (2008).I

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Element Three Extreme Hardship

• Age and Personal Circumstances
• Physical or Mental Illness
• Trafficking-Related Physical or Psychological
  Consequences
• Loss of Access to Courts
• Laws, Social Practices, or Customs of Home
  Country
• Risk to Physical Safety or of Being Re-victimized
  
• 8 C.F.R. 214.11(i)

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Element FourCooperation with Law Enforcement

• I-914, Supplement B, Declaration of Law
  Enforcement Officer for Victim of Trafficking in
  Persons (uscis.gov)
• Victimization
• Investigation and/or Prosecution
• Victims Cooperation with Law Enforcement
• Unlike the U Visa, certification is not required
  (although good as it is primary evidence of
  cooperation)
• Secondary Evidence
• Victim Declaration
• Communication with Law Enforcement
• Copies of Correspondence
• Affidavit from Liaison

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T (and U) Visa Derivative Family Members

• Two main rules
• Must be a qualifying family member
• Must be admissible, and not culpable in the
  qualifying crime
• Victim over 21
• Spouse, children (under 21 and unmarried)
• Victim under 21
• Spouse, children (under 21 and unmarried),
  unmarried siblings under 18, parents
• The Applicant may apply for Derivatives who live
  in the US or abroad. If the derivative lives
  abroad, he/she will need to go through consular
  processing in order to enter the US.

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• Trafficking Information and Referral Hotline
• 1-888-3737-888

16
Contact Information

• Kristin Zipple-Shedd
• Supervising Attorney, Crime Victims Program
• kzipple-shedd_at_catholiccharities.org
• 713-875-6550

17

• U VISAS

18
U Visa Summary Requirements8 U.S.C.
1101(a)(15(U) INA 101(a)(15)(U),8 CFR 214.14

• Victim of a statutorily-listed crime in violation
  of U.S. law or in US territories or possessions
• Rape, torture, trafficking, incest, dom.
  violence, sexual assault, abusive sexual
  contact, prostitution, sexual exploitation, FGM,
  being held hostage, peonage, involuntary
  servitude, slave trade, kidnapping, abduction,
  false imprisonment, blackmail, extortion,
  manslaughter, murder, felonious assault, witness
  tampering, obstruction of justice, perjury or
  attempt, conspiracy, or solicitation to commit
  any of the above-mentioned crimes, or any
  similar activity in violation of federal, state
  or local criminal law INA 101(a)(15)(U)(iii)
• Helpfulness in a criminal investigation or
  prosecution.
• Substantial physical or mental abuse.
• Law enforcement certification of helpfulness
  INA 214(p)(1). Unlike the T, I 918 B
  certification form required for approval of U
  status.

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CERTIFYING AGENCY

• A Federal, state, or local law enforcement
  agency, prosecutor, judge, or other authority
  responsible for the investigation or prosecution
  of a qualifying crime or criminal activity.
• 8 CFR 214.14 (a)(2)
• 6 month rule-the certification must be signed
  within the six months immediately preceding the
  filing.
• 8 CFR214.14 (c)(2)(ii)

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FAMILY MEMBERS8 CFR 214.14(a)(10)

• If victim 21 years of age or older-
• Spouse and or children
• If victim 21 years of age or younger
• Spouse, children, parents, unmarried siblings
  under the age of 18

21
INADMISSIBILITY BENEFITS

• Under INA 212(d)(14) all grounds of
  inadmissibility may be waived for U nonimmigrant
  applicants EXCEPT INA 212(a)(3)(E)
• Nazi persecution, genocide, torture,
  extrajudicial killing
• Waiver standard
• Discretionary
• If in the public or national interest

22
U VISA Benefits

• ADMINISTRATIVE
• Lawful immigration status for a four-year
  duration unless more time required for
  investigation or prosecution - INA 214(p)(6)
• Can file an I-539 to extend status
• Derivative family member cannot be issued
  duration longer than principal
• U visa is a temporary visa. Can seek permanent
  residency status, after the U.
• Employment authorization.
• Continued Presence

23
U VISA BENEFITS

• Removal Proceedings
• Administrative stay of removal order INA 237(d)
• Administrative closure or joint motion to
  terminate removal proceedings for one who has
  established a prima facie case for a T or a U 8
  CFR 214.14(c)(ii)
• Termination of removal proceedings for one whose
  T or U is approved.
• Criminal Proceedings
• Termination of criminal proceedings

24
Contact Information

• Maurice Hew, Jr.
• Clinic Director and Associate Professor of Law
• Thurgood Marshall School of Law
• 3100 Cleburne Street
• Houston, TX 77004
• 713.313.7275(tel)
• 713.313.1191(fax)
• Board Certified, Immigration and Nationality
  Law,
• Texas Board of Legal Specialization

25
T and U Non-Immigrant VisasWorking with the
Immigrant Community

• Harris County District Attorneys Office
• Victim Witness Division
• Michelle Permenter

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Why Provide a Certification?

• Identify and prosecute criminals
• Encourage reporting of crime
• Overcome obstacles to victim cooperation
• Provide humanitarian relief

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What Obstacles are faced in Obtaining the Law
Enforcement Certification?

• Agency does not have certification policy
• Misunderstandings and misperceptions certifying
  agencies have about the process

28
Does the Harris County District Attorneys Office
have a Policy?

• Will review only cases where charges are filed
  and are pending or disposed cases up to three
  years post disposition date.

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Contact InformationMichelle Permenter,
DirectorVictim Witness DivisionHarris County
District Attorneys Officepermenter_michelle_at_dao.
hctx.netWork [phone]Fax [phone]