2020 AILA Conference: Day 1, Session 5: SIJS

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Hi! Welcome to Tsang & Associates. It’s an exciting week. It’s AILA’s 2020 virtual conference. I’m gonna do a review for each session. Well, not every session, but the sessions that I’m attending and we’re gonna be sharing it with you.

Now if you’re not familiar with AILA, it’s American Immigration Lawyer Association. It’s the largest immigration lawyer association in the United States, probably in the world. Each year thousands of attorneys around the world will be gathering to discuss the pressing immigration issues of the day, discussing strategies and tips, and AILA will be inviting the top immigration lawyers on these subject matters to present their findings.

Now before we get started a quick disclaimer. The opinions expressed in this video are solely mine. Even though I am an AILA member, my opinions do not represent the opinions of AILA organization nor even the opinions of the speakers themselves. You can download the original video and presentation from AILA University so you can fact check everything I’m saying.

My goal is to present a short condensed summary of the presentations that I witnessed and also express some kind of my opinion. If you like this kind of video, please subscribe, follow, and you can also look to AILA University. They provide awesome content.

[1:11] Day One Session Five: this is the last one for me today. I hope you guys all have been enjoying the videos. This is SIJS: Special Immigrant Juvenile (Status). This is a very special classification for children who have been abandoned, abused, or neglected by their parents in their home country. They are here. They are under the court’s supervision, and it is in the best interest of the child to get a green card in the U.S. It’s extremely complicated and we have great immigration attorneys talking about this subject.

[1:41] Here are the speakers (Anna-luisa Padilla, Kathleen E. Irish, Pamela Florian). The best immigration attorneys on this subject with one particular shout out to previous AILA president Anna Luisa Padilla, who championed children’s rights and it’s a pleasure hearing her voice again. It’s been a long time. She’s on the cutting edge of this type of case and it’s so awesome to hear what she has to say.

So a little background on SIJS. It’s not too difficult to understand. It’s just a process that’s complicated, so if you are a child that has been neglected, abused, or abandoned, you can prove to family court that you have suffered this neglect and it is in your best interest as a child to grow up in the U.S. as opposed to going back to your home country. Then the family court will issue a predicate order, and once you get this predicate order, whether it’s somebody else taking care of you or the government taking care of you, you take it and file it along with your I-360 application to USCIS. They will review it, and once USCIS approves it, the child can file a I-485 and get their green card.

The key difference is, instead of a company petitioning a foreign worker with an I-140, now it’s the child self-petitioning. Instead of marrying a U.S. citizen and proving a bona fide marriage with an I-130, now it’s a child proving that the family court has already approved the predicate order and therefore filing an I-360. It’s a simple three-step process, but each step is extremely difficult and takes a long, long time.

[3:06] The first step is to get a predicate order, and all the speakers pretty much agree that it’s such a difficult and complicated and long process that you are better served by giving it to an experienced family law attorney. Now, if you yourself are an experienced family law attorney and you know how to navigate the family court system and the juvenile court system, and get things to expedite and get things to go before a judge, and you work with the court clerks, then it is extremely worthwhile for you to do. If not, it is a completely different field of practice, and if you try to do both and you’re not experienced, you might adversely affect a child because you really need to get that predicate order before the child turns 18, before the child turns 21, so that you can file the I-360 and lock in the age so that they can get the green card. If you somehow malpractice and didn’t file the right forms and the case gets delayed by three years or four years, and then now the child aged out, you just ruined this child’s life.

[3:56] The second thing to emphasize is that this is related to family law. So, unlike immigration law, family law is a state-by-state practice, and actually, county by county also has different procedures. Each court has their own procedures, so if you’re not familiar with a particular court, if your client is in a different jurisdiction and you’re not used to that court or that state law, you cannot actually practice there unless you have the state bar license. So, immigration law is a federal law, it’s you can practice anywhere, but if you’re not licensed and if you’re not familiar, it’s actually extremely ill-advised to practice this area of law, and it’s better that you just outsource it to another family law attorney.

[4:34] For example, here in California, we actually file a lot of SIJS (Special Immigrant Juvenile Status) cases because you can get the predicate order before the child turns 18. So, if the child is 12 or 13, you file it. You wait maybe two or three years, you get the predicate order when the child’s 15, 16, or 17, and then you can file the I-360. It may take a couple of years, but the child will still be able to get the green card before they graduate college, right? So, that’s a very, very important time stamp that most people should know. If you’re in one of those jurisdictions where you have to file after you turn 18, then you might not get your predicate order until the child is already 22, and then you start the I-360, then you kind of age out, and then it might be too late. So, that’s something you really need to pay attention to.

[5:12] Now, how do you prove that the child has been neglected, abandoned, or abused? The speakers share story after story, and in our own experience as well, you don’t need something super crazy. One of the craziest stories that I heard from the sharing is that the parent forgot to take a kid to get their teeth checked at the dentist, and there were cavities. And suddenly, that’s considered neglect, and therefore the kid can get a green card in the U.S. That seems pretty intense, and that’s an awesome story, but that just shows kind of the far end of it. In my opinion, that is like super small neglect. I mean, if that qualifies, if you leave the car in the parking lot with the windows up for an hour, does that count as neglect? You know, there’s a police report that’s filed in Shanghai, and suddenly the kid is like hyperventilating, does that count? You know, so I mean, I wouldn’t file a case and go through the entire process with that claim alone. If that’s a supporting argument, right? Maybe you didn’t get your cavities checked, maybe you didn’t enroll in school, maybe you’ve been locked up in a basement for a year, and you haven’t done anything productive in your life, and you’re malnourished. Okay, that’s a pretty strong claim that there was neglect and abuse.

But essentially, building this case is key, and the reason why it’s actually different and much more difficult compared to other types of cases is because your client is the child. Maybe this kid is only 12 years old, 10 years old, some are even younger. How do you pull facts from the child, ask them questions, get them to trust you, and get them to think creatively and write their testimony? It’s extremely difficult. When you’re working with adults, they are well-organized, they can prepare documents, they can search their email. Maybe this kid has nothing. How do you even document his abuse when he was locked up in a basement? If you guys know, please leave a comment below.

[6:49] So there’s a testimony of the child that’s main and primary, but what else is there? Maybe their relatives? Maybe right after his abuse, he told somebody that told somebody, and yes, it’s double hearsay, but at least it’s something, right? And maybe the lack of evidence is a sort of evidence, right? He didn’t attend school for three years, he cannot even speak or write or even be able to do math, and he’s already in seventh grade in Asia, and that shows huge neglect. What, you’re Asian, you’re in seventh grade, and you can’t do calculus? There’s something wrong with you, right? That’s the kind of evidence we’re talking about, right? The lack of ability or lack of evidence can be used as affirmative argumentation. So, you really have to be creative in getting this sort of documentation to prove to the family court, ‘Hey, this child has suffered neglect and abuse overseas. America is a better country. This child will really be able to grow and develop here, and they will be able to make America great. Please grant us, uncle, grandparents, the adoptive rights to take care of this child, and the child will file with USCIS to get a green card.’

[7:51] So the different speakers share about their experience going through this process, and even though the family court itself, the procedures, are long and arduous and there’s a lack of resources to finally get the child before a court judge to be able to get this predicate order, it is not undoable. And most of the time, the judge is actually very, very understanding because they see these cases all the time, and they see worse cases. And so yes, granting an order to somebody to take care of the child is something, just go ahead and do it, right? Just do it. I mean, what’s the option? Kick the kid out of the country and send them back to suffering? Most judges, when presented with good documents, won’t do that.

[8:26] Now, that’s level one. Level two, once you get that family court order, you have to file the I-360 with USCIS. Now, this process is extremely long, and there’s no processing time. It’s really up to the discretion of USCIS and their resources. And so, this process can take two years, three years, or even longer. The good news is that we are seeing a lot of successful approvals with this type of case. The cases are mounting higher and higher. One key reason is because it’s not up to USCIS to adjudicate whether or not the child has really suffered abuse. The state law, the state judge, already determined that. And now, USCIS just reviews everything else, and if everything else is in order, they should just approve it. Now, that is not the experience of USCIS officers. They always have discretion and they maintain the last authority on immigration status. And so, they will always issue an RFE (Request for Evidence) if they think it’s a weak case. And if you get a Request for Evidence or a Notice of Intent to Deny by a USCIS officer because they don’t think the child has enough abuse, enough neglect, and enough abandonment to qualify for a green card, you need to remind the officer that, ‘Hey, a family court judge already reviewed this. This person has been trained, this person has seen all these sorts of cases day in, day out. This is what they’re good at, and they know the psychology and the impact that has done on the kid. And by the way, not only did they approve it, here’s all this additional evidence that we are providing you,’ and really convince the officer. So typically, these cases do get approved. It’s just long, and there’s a lot of documentation.

[9:54] And step three, once the I-360 gets approved, then it’s just straightforward Form I-485 application. Now, of course, when the child has filed for Form I-485, you do want them to meet all the other requirements, right? And so, a lot of times, these kids come into the country with fraudulent documentation or with a false belief that they are U.S. citizens. Think about it. They’re in elementary school, they’re in junior high, they are seeing all their classmates. They’re all U.S. citizens. They’re swearing the oath of allegiance to the flag every single day. They think they’re U.S. citizens. So, they might have told a few people that they’re U.S. citizens. Typically, when you have falsely claimed you’re a U.S. citizen, that’s a complete bar to getting any type of immigrant paperwork. In the case of children, especially SIJS cases, this type of case, that can be waived. So, during the Form I-485 application, you really need to document all of that because this is the time to do it. If you don’t do it now and later on, you get a green card and then later on, they’ll revoke your green card, then you’re in trouble.

[10:47] Those are all the pro tips from our amazing speakers. Now, on top of these tips on how to deal with these applications, they constantly remind the practitioner, ‘Hey, look, your client is a child. You don’t want them to relive that horrific experience of their abuse. Some abouses are not just one time. Some abuse might last over years and years, and we’re talking about their own parents abusing them, neglecting them. Think about what it’s doing to their psyche. Think about what that’s going to do to their self-confidence and to their upbringing and to their self-image.’ So, you really want to be patient with them. You really want to care for them. And if you’re treating this like a case, it’s not like an ordinary case. You really have to be by the child’s side, and you really need to take some classes.

[11:30] Those are really good advice, and I know as attorneys, that’s not our training. We’re not trained to comfort and take care and nurture children. We are trained to take facts and make it as good of a story as possible to zealously advocate for our client. But in this instance, zealously advocating for a client in one way might actually cause detrimental harm to their growth. And you really need to take a step back. And also, when you do take care of the kid, when you do really understand them, you might actually build a better case. So, you just need to be patient. A lot of the attorneys have been saying, ‘You know, you sometimes need to take two hours or three hours, take them outside of the office, take them somewhere where they’re comfortable, maybe meet with them at their home in order to elicit this powerful explanation.’ And you might want to talk to more than them. You might want to talk to a whole bunch of people, and you have to take ownership of this. You cannot just throw this whole thing to the client, to the child, and say, ‘Hey, 12-year-old, I know you’re not even in high school yet, but here, give me these 50 documents or here, write this convincing brief for me and feed me the information I need.’ You know, you might need to help them as if you are their parent because maybe when they’re here, their aunts and uncles and grandparents, maybe they can’t help, right? And because if they can help, maybe they would have already done so.

[12:47] Basically, here’s my two cents. Basically, this is what they’re saying: you, as the attorney, you’re the Mandalorian, and your client, the child, is Baby Yoda. Protect Baby Yoda, and Baby Yoda will protect you.

And that’s a wrap for day one, five videos. It was fun. I think I still have pretty good energy. Tomorrow, we have a lot more episodes. And a little shameless plug: I’m speaking at a networking event, talking about how to get a job if you’re a law student. If you guys want to improve your resume, feel free to attend. 

[13:13] If you’ve never been to AILA’s national conference, after each session, typically all the attorneys will get together and ask the speaker questions, they will ask eachother questions, they will disucss the issues at hand. It’s a super fun time networking event before the next session starts. Now, since we’re not at the conference, but I’m pretty much treating it as if I’m at the conference for the next 4 days, if you have any ideas or suggestions, please leave a comment below, or email us, or call us. Just let us know your thoughts and we’ll be happy to engage with you. 

Again, a huge shoutout to AILA University for putting together this conference on such a short notice, especially given the pandemic, as well as all the speakers that carved out their time, prepared this presentation to help educate the rest of the AILA community on these important topics. I know I personally gain a lot from it and I go every single year. Now for the viewers, if you like if you like this video or are interested in more videos like this, please subscribe, leave a comment, let us know what other things you want to see, and we’ll be happy to create more videos that are like this. 

Have a great rest of the conference. Take care. Bye-bye.