For Undocumented and Abused Kids, a Legal Lifeline

By MIRELA IVERAC Mirela Iverac – 27 mins ago

Aicha arrived in the U.S. in 2005 with a fake passport, a small bag containing all of her possessions, and an enormous amount of teenage exhilaration. "I was so excited," the West African native recalls, because "I could live with one of my biological parents."

A bright girl with sparkling dark brown eyes, Aicha was 15 when she boarded a plane to New York City to move in with her father, whom she barely knew, having spent just one week with him back when she was 7. Her father, whose family had forbidden her to have any contact with her mother since she was 3, had left her in the care of his cousin and his two wives, who would whip her, she says, if they thought she hadn't done enough housework. Aicha also says she was raped when she was 5 and then again at 13. (See photos of Immigration Detention in Arizona.)

Aicha, who asked that her last name not be used because she is still seeking legal residency, thought that her father had saved her by bringing her to New York. But soon after her arrival, she says, he kissed her on the lips. The next day, when he tried to kiss her again, she rebuffed him. After that, things "got worse," she says, adding that he beat her and tried to sleep with her.

According to the most recent estimates from the Department of Homeland Security, there are some 2.7 million undocumented children and young adults living in the U.S. No one knows how many of them have come to the country to be reunited with a parent only to be abused by that parent. It's hard enough for kids to talk about being beaten or molested at home. But it's even harder when telling the authorities is coupled with the fear of detention or deportation, particularly if, as in Aicha's case, going back to your home country would be an even worse fate than living with an abusive parent in the U.S.

Some undocumented minors wind up in foster care because they seek help at runaway shelters or because hospitals and public schools are trained to look for signs of abuse at home. Some kids like Aicha find a trusted adult willing to apply for guardianship. And depending on the children's circumstances - and, often, on geography - social-service agencies can help them try to obtain legal permanent residency. Because without a green card, these kids not only run the risk of being kicked out of the country, but as they grow up, they will find themselves barred from most jobs and, in some states, unable to get financial aid for college. (Comment on this story.)

To help undocumented minors who are abused, child-advocate groups are turning to a federal statute that created something called special immigrant juvenile status (SIJS). To qualify, applicants have to be under 21 and unmarried, and they have to prove not only that it is not in their best interest to return to their country of origin, but that reunification with one or both parents is not possible due to abuse, abandonment or neglect. They also have to have been in foster care or been declared dependent on the juvenile court, which typically occurs in the context of a legal guardianship proceeding. In the 2010 fiscal year, 1,241 petitions were approved nationwide, up from 857 the previous year.


"SIJS really is a wonderful piece of legislation," says Rebecca Press, a lawyer who works at the Door, a social-service agency in New York that works with disadvantaged youths and is helping Aicha apply for legal residency. "It has the ability to help most abused, neglected and abandoned children."

The process begins with lawyers drafting an affidavit charting their young clients' history of abuse. Then these undocumented immigrants have to testify in juvenile court, and if a judge decides they meet the requirements for applying for SIJS, they are able to apply simultaneously for SIJS and lawful permanent residence before the U.S. Citizenship and Immigration Services, which tends to send young people their green cards and SIJS approval at the same time. (See TIME's video from Joe Klein [EM] In Arizona, an Illegal Student Wants to Enlist)

But not every applicant gets approved. Aicha encountered problems early on in court because her father contested the guardianship. He did that, he said in a phone interview with TIME, because he did not want to be characterized as an abuser in any court document. The charge is not true, he says, and could result in him losing custody of his two sons, ages 4 and 11. "How am I gonna abuse my daughter sexually?" he says. "I am not that kind of a person."

Even though a therapist at a social-services agency wrote in a report, "As a result of [her father's] constant abuse, Aicha suffered from extreme anxiety and depression" - and even though the girl was admitted in 2008 to Bellevue Hospital, where she was diagnosed with depression and post-traumatic stress disorder and kept for treatment for about a month - there was no physical evidence linking her suicidal tendencies to her father's alleged transgressions.

Lawyers say they don't necessarily need to prove in juvenile courts that SIJS applicants have been abused by a parent - they only need to show that the young person's reunification with a parent is not viable. In that process, rather than relying on medical records, which are not available in most SIJS cases, the emphasis is put on the affidavit and the young person's testimony before the judge.

Aicha's case never got that far, however, because her friend's mother withdrew her petition for legal guardianship. The school friend's family had taken her in after she left Bellevue and did not want to go back to her father's house. Aicha graduated with honors in 2009, and that summer the friend's mother had agreed to become her legal guardian. But when Aicha's father contested the guardianship, the woman - after a few appearances in court - backed out because she feared it would turn into "a protracted legal battle," according to Press. Subsequently, Aicha's case was closed in court in December. (See TIME's photoessay: A Murder by the Border)

She still had a few other options, although none of them were created solely for young people. One was an application for a U visa, which is available to undocumented and abused immigrants who have suffered substantial physical or mental abuse in the U.S. and have assisted government officials in the investigation or prosecution of such criminal activity. If granted, the U visa allows them to work legally and stay in the U.S. for up to four years and to apply for permanent residence after three years.

But since Aicha's father was never charged with any crimes, due to lack of evidence, she and her lawyer are instead preparing to file a petition for legal residency under the federal Violence Against Women Act (VAWA). The act includes a provision directed at children who have suffered substantial physical or mental abuse by a parent who is a U.S. citizen or lawful permanent resident. Press decided to petition for VAWA because Aicha could not find another guardian after the first one withdrew.

Although Aicha's first attempt to gain legal residency did not succeed, SIJS petitions generally work well in major metropolitan areas, where a lot of them are filed, says Laila Hlass, a staff attorney at Loyola University's law clinic in New Orleans. In many other parts of the country, however, judges in state courts may not be familiar with the federal law, even though it has been on the books for 20 years. "A judge may dismiss a case when he sees it deals with someone who is not a U.S. citizen, even though it's against the law," Hlass says. She sees the protection of abused, undocumented young immigrants as a work in progress.


"The first step of creating the law and regulations, we've taken," Hlass says. "The next step is reviewing the application of the law." Because in a lot of places, it's really hit or miss, she says. "We need to look at how it's applied across the country and what we can do to improve it."

In the meantime, Aicha dreams of becoming a surgeon. She spent a semester in college, but couldn't afford to go back for more. Right now, she is earning $110 a week under the table by tutoring, and that's not enough to save money for school. Aicha hopes to find a better paying job if she gets employment authorization.

Although she was incredibly disappointed when her SIJS case fell through, Aicha says she is cautiously optimistic about her VAWA petition. "I feel scared," she says. "But I hope and think that this time everything will turn out the way it's supposed to."

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