Immigration Committee Scrutinizes ACS Treatment of Youth Eligible for Immigrant Status Adjustment

arlier this month, the City Council Committee on Immigration, chaired by Council Member Kendall Stewart, conducted an oversight hearing to discuss strategies to protect children in New York City’s foster care system who qualify for Special Immigrant Juvenile Status (SIJS).

As Stewart explained, SIJS is a federal law that allows certain documented and undocumented children in long-term foster care due to abuse, neglect, abandonment or guardianship to obtain lawful immigration status. For this to occur, it is crucial that they be identified and the proper legal steps taken in a timely manner. In New York State, when a youth reaches 18, they "age out" of the child welfare system. If an adjustment in their immigration status has not been completed by then, they miss out on the greatest and sometimes only chance they will ever have to obtain lawful status. They will henceforth be ineligible for services such as school financial aid, Medicaid and Section 8 housing. They will also be unable to obtain a social security number or gain lawful employment, and, of course, they will live with the constant threat of being deported to a country they no longer know.

It is the responsibility of the Administration for Children’s Services (ACS) to ensure that all youth in foster care who are eligible for this status adjustment receive legal assistance in attaining it. However, children’s advocates are gravely concerned because all too many youth are falling through the cracks, with disastrous results.

First to give testimony were Ronald Richter, Deputy Commissioner of Family Court Legal Services at ACS and Mark Lewis, ACS’s Director of Immigration Services. They briefed the committee on their agency’s work with undocumented immigrant children in foster care and ACS’s efforts to facilitate their applications for SIJS.

What emerged from their testimony, Stewart’s rigorous questioning, and the testimony of others who followed was that while ACS has made admirable strides in recent years in addressing the special needs of immigrant youth, much work remains to be done in this area, particularly given the serious, life-long consequences of failing to help an immigrant child acquire legal residency.

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Several youth advocates cited specific instances where ACS dropped the ball. For example, Ghita Schwarz, an attorney with the multi-service youth development organization The Door, told of a sixteen-year-old who fled sexual abuse in her parents' home to live with her aunt. Her aunt called in a report to the child abuse hotline, and ACS initiated an investigation. Meanwhile, ACS recommended that the aunt seek custody. The girl's parents didn’t appear in court, and the aunt was granted custody.

Subsequently, the parents moved and refused to provide the aunt or their daughter with contact information, much less financial support. ACS failed to follow up on the sexual abuse investigation, and the case was closed without ACS ever informing the aunt or the young woman that this set of circumstances clearly rendered her abused, neglected and abandoned, dependent on family court, and therefore eligible for SIJS. The young lady is an honor roll student and eager to go to college. If she hadn’t found assistance on her own, she would have little chance of ever legalizing her status.

Carmen Recalde, a staff attorney at Covenant House, said that she’s noticed that even if an ACS worker decides to investigate a case where the youth is close to turning 18, they procrastinate. "I’ve had to call the ACS caseworker numerous times to make sure that they were processing the case, thereby, allowing the child placement before their 18^th birthday," Recalde stated. "It’s important that caseworkers understand the urgency in processing these cases and, in good faith, try to help undocumented youth."

Hannah Kim, an attorney with the Legal Aid Society's Juvenile Rights Division, pointed out that although ACS’s own regulations require it to document the immigration status of every child in its care, at no point does ACS or foster care agencies under contract with it formally screen for immigration status. ACS and agencies working with it also regularly fail to obtain primary documents such as a birth certificate and passport, which immigration requires in order to process any application for permanent residence, despite the agencies’ own regulations requiring them to do so.

Along with much criticism of ACS procedures, many practical suggestions were given as to how the agency could identify SIJS-eligible youth at multiple points of contact, especially at the earliest possible stages of investigation. Lynn Neugebauer, Director of the Safe Horizon Immigration Law Project, recommended that ACS provide additional training on SIJS to all foster care agencies with whom it contracts since the foster care manager is the front line person who often could most easily identify an undocumented child. Myra Elgabry, an attorney with Lawyers for Children, proposed a very simple solution to the problem of how caseworkers untrained in immigration law can identify undocumented children: ACS should create a field in each child's case file which includes either "Country of Birth" or, "US-born/Foreign-born" categories, and make that field available to law guardians.

Ragini Shah, a clinical staff attorney and lecturer in law at the Child Advocacy and Immigration Clinic at Columbia Law School, suggested that New York City model ACS on the Department of Children and Family Services in Los Angeles and Chicago because systematically and efficiently, they each manage to identify SIJS eligible children and submit lawful permanent resident applications to the immigration service.

Finally, Dr. Ilze Earner, Director of Hunter College’s Immigrants and Child Welfare Project, submitted many excellent recommendation. They included 1) train all juvenile and family court judges on immigration status and SIJS so they understand the importance of immigration relief in permanency planning, and 2) ACS establish Memorandums of Understanding with foreign consulates to facilitate the process for obtaining foreign documents such as birth certificates, baptismal records, and other proof of identity.

Committee Chair Kendall Stewart concluded the hearing by stating his determination to pursue this extremely important issue, and he asked Dr. Earner to assist the City Council in drafting legislation regarding it.