The first meeting of the International and Immigration Law Section Council after the annual meeting was held in the Chicago Regional Office on August 17th. Much of the meeting was devoted to continuing legal education program possibilities and concepts.
Section Council Vice Chair, Pradip Sahu attended for the Section the ISBA CLE Coordinators Conference. The Section Council members them discussed a CLE concept concerning asylum. This was presented by David Austin and included valuable suggestions from Mary Meg McCarthy from the National Immigrant Justice Center. David was requested to complete a proposal for a CLE to be submitted to the ISBA in early September.
Scott Gertz suggested a CLE program on Darfur. Cindy Buys suggested some sub-points concerning Darfur that have to do with international legal issues or treaty proposals. We requested that Scott have his proposal circulated among the Section Council members, and looking at a program after the first of the year.
Pradip Sahu is to attend a meeting of the Intellectual Property Section Council to see if a joint program could be developed on both domestic and international intellectual property questions.
For several years, the Section Council has had an outreach to the various law schools that have Illinois State Bar Association student chapters. The outreach involves offering to present a panel discussion on employment opportunities in international and immigration law. Mark Wojcik as Board Liaison confirmed a outreach panel to be held at Northern Illinois University in Dekalb in October and a November program at The John Marshall Law School.
The vast majority of the Section Council members are attending and participating in the program and planning of activities. All members of the Section owed a debt of gratitude for the work done by the Council members.
Thank you to Juli Campagna for providing two articles and Oana Pantilimon for her article. Also thank you to the United States Department of Commerce and Ambassador Karan K. Bhatia for their information concerning international trade. We have also included another request from the National Immigrant Justice Center for volunteers to provide pro bono representation in asylum cases.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
During the 2007 Spring Meeting of the American Bar Association Section of International Law, the Honorable Sang Yoon Lee, a judge from South Korea was very kind to offer some thoughts regarding the latest changes in the judiciary system in Korea and the new Free Trade Agreement between the United States and the Republic of Korea.
Mr. Sang Yoon Lee has been a judge for the past 14 years in South Korea and is now pursuing his mandate at the Embassy of the Republic of Korea as the Counselor for Judicial Affairs for the Embassy of the Republic of Korea in Washington, D.C.
Q: Mr. Sang Yoon Lee, what does it take to become a judge in the Republic of Korea?
A: The Court Organization Act states the qualifications for judges as persons who have passed the National Judicial Examination and have completed the two-year training program at the Judicial Research and Training Institute or those who have obtained qualifications as lawyers. The Chief Justice and the Justices of the Supreme Court are appointed by the President of the Republic and must be confirmed by the National Assembly. The Chief Justice with the consent of the Council of Supreme Court Justices appoints the judges. Unlike the United States, the Republic of Korea has a special career system for judges. They are usually selected from young lawyers and begin their career from an early age. The panels are usually comprised of one judge or three judges. A young judge starts his/her practice as an associate judge, being part of a three-judge panel at the trial court level. In general, a single judge presides over a trial. However, a panel of three judges is required to sit for cases deemed of greater importance: cases involving a controversial amount exceeding approximately $100,000 or incalculable amounts in civil cases and serious criminal cases. After seven years of experience, an associate judge can preside as a single judge at the trial court level, and later—after another five years—also become an associate judge for the Appellate Court. It usually takes more than 15 years of experience in order for a judge to become a presiding judge for the District Court.
Q: Could you explain a little bit more about the judicial system and the changes that are taking place as we speak?
A: In Korea, neither the jury system nor the participation of laymen or specialists in the bench was allowed. However, public participation in the judiciary has been discussed in depth in the context of promoting the spirit of judicial democracy. On April 30, 2007, the Korean Congress finally approved the implementation of the jury system, particularly in criminal trials concerning serious crimes, such as murder, robbery, rape, or bribery. The defendant can choose whether to have a jury trial or not. A jury’s verdict or the opinion regarding the sentencing is not binding. Also, oral argument is having much more importance than ever in civil and criminal proceedings and Korean Sentencing Commission has been recently established to set up a Sentencing Guideline by 2009.
Q: It seems that the judiciary system in the Republic of Korea is a mixture between the civil and the common law systems. How will this affect the legal education in Korea?
A: Another new and important issue in the Republic of Korea is establishing an efficient system for legal education with specialization and international competitiveness, and setting up a new qualification system for lawyers. To this end, currently establishment of graduate-level law schools is seriously under consideration. The rate of passing the Bar is extremely low: only 3.5 percent of the people who take the Bar actually pass it. The future system requires that high-school graduates will have to pursue undergraduate studies and then enroll in specialized law schools before having access to a career as a lawyer or judge.
Q: Let us talk a little bit about the role that lawyers play in the Korean judiciary system. You mentioned supra that the judiciary system in the Republic of Korea differs from the one in the United States. How will the new reforms influence the role of lawyers?
A: This is a very good question. The role of lawyers is also an important issue in our country lately. The new judicial reform in the Republic of Korea provides for an extended role for the lawyers. If until now the lawyers usually had to submit papers and written statements in order to support their case, they are now using detailed and sophisticated pleadings and oral arguments in explaining and supporting their cases from the very first stage of the trial. This measure is another way to gain the public trust in the judiciary system.
Q: We all know that the United States and the Republic of Korea have finally agreed on signing the Free Trade Agreement. Could you please provide us with some of the insights and difficulties regarding this agreement?
A: The negotiations for the Free Trade Agreement between the Republic of Korea and the United States started at the beginning of 2006. The negotiators met almost 10 times in order to reach common understandings on the major issues, such as: autos, agriculture, trade remedies or textiles. One of the major debates during the negotiations was the investment dispute resolution procedure. According to the new agreement, in case a dispute arises between the foreign investor and the Korean or U.S. government, the foreign investor can choose between arbitration and local remedies. The scope of indirect expropriation and the fact that even national court decisions could be subject to arbitration challenge have been strongly debated. It was compromised that non-discriminatory regulatory actions that are designed to protect public health, the environment and real estate price stabilization do not constitute indirect expropriations.
Q: What about the process of negotiating itself? Do you think the differences in culture and legal systems between the United States and the Republic of Korea influenced the negotiations?
A: There is no question that there are certain differences between the cultures and legal systems of the United States and the Republic of Korea. There are obviously two distinct negotiating styles: eastern and western. The eastern style can be characterized as making arguments based on ideological platforms, where an agreement is usually made after a third party imposes it on the two negotiating parties. Western negotiation is the classical “give and take” style approach. This is rooted in compromise and is much more logical in the minds of Americans. Our negotiators were familiar with both methods; though there were elements of both styles present, it was important to be consistent, so I think it is fair to say that the negotiations were generally held with a western style of negotiating. The most important matter in a negotiation process is the expectations of each party. As long as each party will have its expectations fulfilled by the end of the negotiation process, everybody will be content.
Q: How do you think the new Free Trade Agreement between the United States and the Republic of Korea will influence the trade and economic relations between the two countries?
A: These two countries have come a long way in their trade and economic relations. I am positive that the new Free Trade Agreement between the United States and the Republic of Korea is a major step forward that will benefit the trade and economic relations between the two countries for the years to come.
Mr. Sang Yoon Lee, thank you very much for sharing your thoughts about the latest changes in the judiciary system in Korea.
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Ms. Pantilimon is a Fulbright Scholar holding an LL.M. degree in International Business and Trade Law from The John Marshall Law School in Chicago. She is a licensed attorney in Romania and has obtained a Master in European Union Law from Titu Maiorescu University in Bucharest. She can be reached at oanapantilimon@hotmail.com.
De Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007).
A child’s testimony that he prefers to stay with the parent who wrongfully retained him in violation of the Hague Convention on the Civil Aspects of International Child Abduction (Convention) may be sufficient to overcome the petitioning parent’s right to have the child promptly returned to his country of habitual residence.
The 10th Circuit held that a 13-year-old boy’s in camera interview with a magistrate judge—where neither the parents nor their counsel were in attendance—provided sufficient evidence to defeat a repatriation claim brought by his mother, with whom he was living, in Canada.
The Convention protects children from wrongful removal or retention in a foreign country and establishes procedures for their return. The Convention applies to all children under the age of sixteen. A remedy is available only when the child was removed from a signatory country to the Convention and retained in another signatory country. Both Canada and the United States are states parties to the Convention. In the U.S. implementing legislation for the Convention, Congress declared that “persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention.” International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§11601-11610. Courts are specifically directed to decide cases in accordance with the Convention.
In an action for the return of a child to the habitual residence, a petitioner must prove only that the child was removed or retained “wrongfully.” Under Article 3 of the Convention, the removal of a child is wrongful when it breaches the custody rights of a person, an institution or any other body, either jointly or alone, under the law of the State where the child was habitually resident immediately before the removal or retention; and the party with custody was actually exercising those rights at the time of removal or retention, or would have exercised those rights but for the removal or retention. Habitual residence is the ordinary residence of the child prior to removal. A person can have only one habitual residence.1
Under Article 19 of the Convention, the court’s authority is limited to determining the merits of the abduction claim. It may not decide the merits of the underlying custody claim. The federal implementing legislation grants concurrent jurisdiction to state and federal courts to hear ICARA claims.
Petitioner must establish that the removal was wrongful by a preponderance of the evidence.2 A respondent who opposes the return of a child may advance four defenses set out in the Convention.3 All defenses are narrowly construed.4 In this case, however, the court did not look to any of the four affirmative defenses. Instead, it based its decision on a fifth consideration found in Article 13 of the Convention. As the court noted, this consideration is left to the court’s discretion and “allows for refusal to order the return of a child where ‘the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account of its views.’”5 What the court failed to note is that the same article requires the court to “take into account the information relating to the social background of the child provided by the Central Authority or other component authority of the child’s residence” when considering this or any of the four affirmative defenses.6 There was no evidence that such information was sought, submitted, or weighed.
Although the court did not follow the Convention in applying the “age and maturity” exception, it did look to case law for guidance. When applying the “age and maturity” exception as the sole basis for refusing to repatriate a child, courts must apply a stricter standard than they would if the child’s wishes were part of a broader analysis.7 If the court finds that the child has been unduly influenced or indoctrinated by the retaining parent, the court will not take the child’s wishes into account.8 The court called the inquiry both fact intensive and idiosyncratic.
The parents of Jonathan Pitts, a 13-year-old, were in a custody dispute at the time of the ICARA action. Jonathan spent the summer of 2005 at his father’s home in Oklahoma. He traveled on a round-trip ticket from Canada, where he lived with his mother. Jonathan had lived with his mother since infancy. They had lived in her native Sri Lanka for nine years before fleeing to Canada in 2003. He and his father had stayed in touch, and this was not his first trip to Oklahoma. The father wanted to keep his son in Oklahoma, and had told him so on earlier visits. Jonathan testified that he had not felt ready to stay there until the summer of 2005.
Although his mother brought an immediate claim, the federal district court refused to order Jonathan’s return to Canada. While noting that “courts in signatory nations take violations of the Convention very seriously,” the court rejected the mother’s argument that the child had been swayed by his father’s lavish gifts and lifestyle.
The factors supporting this court’s application of the “age and maturity exception” were the child’s intelligence, his ability to express himself, and his well-developed understanding of his situation and his parents’ positions. In Canada, he told the magistrate, he had a sister with whom he got along as well as a lot of friends. He had also made friends in Oklahoma, and had joined the football and wrestling teams there. His father’s house was “really big.” His dad had given him “a computer and everything he needed for school.” He told the court that he wanted to stay in his father’s town because he thought the school was better. There is no evidence that he had ever attended the school. Based on this testimony, the court found that Jonathan had made his decision “without apparent adult indoctrination.”
Ms. De Silva, a Sri Lankan refugee living in Canada, argued the appeal pro se.
The 10th Circuit found that the refusal to order the child returned was not an abuse of discretion.
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* Juli Campagna is a trade lawyer and adjunct professor in the Global Legal Studies LL.M. program at The John Marshall Law School in Chicago. She can be reached at jcampagna@abanet.org.
1. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993).
2. 42 U.S.C. §11603(e)(1).
3. For the available affirmative defenses, see Convention on the Civil Aspects of International Child Abduction, arts. 12, 13, and 20, Oct. 25, 1980, 1343 U.N.T.S., 19 I.L.M. 1501. [hereinafter Hague Convention] For the differing burdens of proof required of the respondent according to the defenses asserted, see 42 U.S.C. §11603 (e)(2).
4. De Silva v. Pitts, 481 F.3d 1279, 1285 (10th Cir. 2007), citing Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).
5. Hague Convention, art. 13.
6. Id.
7. De Silva v. Pitts, 481 F.3d at 1286 citing Blondin v. DuBois, 238 F.3d 153, 166 (2d Cir. 2001).
8. Id. citing In re Robinson, 983 F.Supp. 1339, 1343-44 (D. Colo. 1997).
Former Employees of Merrill Corp. v. United States, Ct. Int’l Trade, No. 3-00662, (Slip Op. 07-46), 3/28/07.
Despite five administrative filings and three remand results denying Plaintiffs, the Former Employees of the Merrill Corporation, certification for Trade Adjustment Assistance (TAA) under the Trade Act, the Department of Labor has still not managed to support its findings with substantial evidence.
Merrill produces SEC documents and other legal, business and financial documents. The plaintiff-claimants are U.S. workers who were part of Merrill’s Financial Document Services group. They used to typeset, edit and format the documents after receiving faxed, electronic or hard-copy versions of the requisite information from businesses and law firms. In 2003 plaintiffs lost their jobs when Merrill shifted their work to its facility in India.
Under the TAA, 19 U.S.C. §§2271 et seq., workers who have lost their jobs to shifts in overseas production are entitled to receive employment-related services such as career counseling and workshops; vocational training; job search and relocation allowances; income support payments; and a Health Insurance Coverage Tax Coverage. A key to eligibility for laid-off American workers is that the articles now produced overseas and coming in to the U.S. be “like or directly competitive” with the articles that the displaced workers used to produce. Congress did not define the term “article” in the statute.
In order to pursue their benefits, employees must first apply for and receive a certificate of eligibility from the Department of Labor. Once they receive the DOL certificate, they can apply for specific assistance from the labor offices in their individual states. Each state has its own agreement with the DOL.
The United States Court of International Trade (USCIT) has exclusive jurisdiction over final denials of requests for certificates of TAA eligibility. Although the Court may affirm the DOL’s determination, or may set it aside in whole or in part, the USCIT may not certify petitioning workers. Instead, the USCIT must remand the action to the DOL in those instances where it finds, as it did in this case, that the agency’s determination “is not supported by substantial evidence on the record.”
In the instant case, Labor changed its arguments on each remand. On the most recent (the third), the agency denied plaintiffs’ claims arguing that Merrill employees do not produce articles, as required under the statute, but “simply produce articles incident to the provision of a service.” The TAA does not protect service workers. Even if the records were articles, the DOL asserted, they were intangible articles, providing further basis for denying the plaintiffs certification. Labor also repeated its earlier argument that because each set of financial records produced by Merrill was “unique,” the records now produced by Merrill’s Indian facility were not “substantially equivalent for commercial purposes” to those formerly produced by plaintiffs in the U.S. facility, and could not, therefore, meet the statutory standard of “like or directly competitive” articles.
Because the USCIT had established, as a matter of law, that the Merrill employees participated in the production of an article, in Merrill II, the court “[did] not appreciate Labor’s attempt to reargue the point.” The relevant distinction between article and service goes to the worker and the article produced; the employer itself does not have to be a manufacturing facility in order for a “separated” employee to qualify.
The court further held that the distinction between tangible and intangible articles was contrary to the purpose of the Trade Act, which “is to provide assistance to workers who are displaced from their jobs due to increases in ‘imports of articles like or directly competitive with articles produced by’ the displaced workers or due to a shift in production outside the United States.”
In response to Labor’s arguments of “uniqueness,” the Court reiterated that TAA benefits are not limited to workers engaged in mass-production articles. Neither the statute nor Labor’s own regulations set forth such a requirement. What’s more, under case law, the DOL’s “mass-production requirement for TAA certification eligibility” had already been found “not in accordance with law and contrary to” congressional intent.
Critically, Labor had previously certified two other groups of workers whose circumstances were substantially similar to the Merrill employees.’
Labor certified displaced workers of Lands’ End who had produced “digitized embroidery designs from customers’ logos.” These logos were both unique and intangible. Like the Merrill claimants, the Lands’ End employees created the electronic logos to satisfy a customer need, and the designs were electronically transmitted to Lands’ End. “In all functional and material respects,” the Court found, the employees at both firms “had the same responsibility: to convert information into a digital format for later use.”
Just last year, Labor certified workers at Capital City Press. The Capital City employees also created documents electronically. They lost their jobs when the company shifted production to the Philippines and India, and then imported the publications in electronic format. The Court held that the Capital City employees’ and the Plaintiffs’ situations were identical in all relevant respects.
On its fourth remand, Labor must explain its reasoning behind denying the Merrill Plaintiffs the TAA certification it granted to the Capital City employees. The unfortunate plaintiffs remain in legal limbo.
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* Juli Campagna is a trade lawyer and adjunct professor in the Global Legal Studies LL.M. program at The John Marshall Law School in Chicago. She can be reached at jcampagna@abanet.org.
Ambassador Karan K. Bhatia, Deputy U.S. Trade Representative, Office of the United States Trade Representative made a presentation in Chicago in early August providing background information on Free Trade Agreements.
As part of his presentation, Ambassador Bhatia presented information prepared by the Office of Trade and Industry Information of the International Trade Administration of the U.S. Department of Commerce. Export-supported jobs linked to manufacturing account for over 5 percent of the private sector employment in the state of Illinois. Nearly 16 percent of all manufacturing workers in Illinois depend on exports for their jobs, based on 2003 data last available.
These figures are, if anything, understated. They do not include manufacturing and non-manufacturing jobs involved in the export of non-manufactured goods such as farm products, minerals or services.
The Ambassador pointed out that 13,972 different companies exported goods from Illinois locations in 2005. 12,430 of these companies have fewer than 500 employees. Such small and medium size firms generate nearly 23 percent of Illinois’s total merchandise exports in 2005.
Looking at foreign investments, in 2004, non-U.S. controlled companies employ 235,600 workers in Illinois. The major sources of such foreign investments into Illinois included the United Kingdom, Germany, Japan, France and Switzerland. Nearly one-third of these jobs, 71,000 workers were in the manufacturing sector. Such foreign controlled companies accounted for 10 percent of the total manufacturing employment in Illinois.
The integration of Illinois into the world market is apparent and spreads throughout the state. Illinois export shipments of merchandise in 2006 totaled $42 billion. This is the fifth largest figure among the states. That was a 64 percent increase since 2002.
Illinois’s largest export market by far has been its NAFTA member, Canada. Illinois exported $12 billion worth of merchandise to Canada and another $3.4 billion to Mexico. Other top markets include the United Kingdom, Japan, Australia, Germany, China, Belgium, the Netherlands and Brazil.
Illinois’ leading export category is machinery manufacturers, which account for 28 percent or $11.8 billion of the total merchandise exports. Other top exports are chemical manufacturers, computer and electronic products and transportation equipment.
In future issues of The Globe we will highlight the proposed or completed Free Trade Agreements with Korea, Colombia, Panama and Peru.
The National Immigrant Justice Center is recruiting pro bono representation in asylum cases. Following is the list of cases for which the Center needs volunteers. The Center emphasizes “Our pro bono attorneys tell us that representing vulnerable immigrants is one of the most personally enriching and rewarding experiences of their careers. Your representation in asylum cases could make the difference between an asylum seeker finding safe haven in the United States or being deported to a country where she or he would face persecution, torture, or even death.
If you are reluctant to volunteer because you are unfamiliar with immigration law, don’t worry—we provide training and backup support. You will notice that our case list is organized into sections based on the type of case the client has. Within each section, the cases are loosely ordered by urgency. Some of our clients need assistance to prepare Affirmative Applications for Asylum and representation during their interviews at the Asylum Office. Others clients already have Master Calendar or Merits Hearing dates set with the Immigration Court and need assistance preparing for an appearance at their asylum hearings. Urgent Cases, Adult Detention Cases, 7th Circuit Appeal Cases, Cases for Survivors of Domestic Violence and Cases for Unaccompanied Minors are included in separate sections of the list. Asylum hearings usually last half a day, with little or no discovery and minimal pleading or motion practice. Please note that Master Calendar hearings are only preliminary hearings at which a final trial date is set. Master Calendar hearings are similar to arraignment hearings in criminal cases and require minimal preparation.
For more information about these cases, please contact Jefferson Mok at 312.660.1307 or jmok@heartlandalliance.org.
Affirmative Applications for Asylum
1. P. is a 42-year-old man from Equatorial Guinea. He needs to file his affirmative application with USCIS by October 25, 2007. P. speaks Spanish and French and lives in Chicago. (155607)
P. became a pastor in 1989. In 1993, during a government crackdown on political activists, two students hid at P.’s home. Government security agents known as “Ninjas” went to P.’s home and found the students. They arrested all three men and transported them to a detention facility known to be a place where people were tortured. The security agents accused P. of political activism and beat him repeatedly. P. was then transferred to the infamous Black Beach prison where he was held for about three months. In 1995, government agents killed two of P.’s friends and P. preached about the deaths. In 1996, another of P.’s friends was arrested and also held at Black Beach. P. would visit him and while at the prison, P. began preaching regularly to some of the other inmates. In 2000, P. requested permission to preach at the prison. He began officially preaching at Black Beach in 2001 and during his visits, he discovered that many political prisoners were held there. In 2003, the prison guards accused P. of allowing other visitors into a forbidden part of the facility and detained him. While detained, P. witnessed a strange incident in which the security agents attempted to coerce P.’s cellmate into killing another inmate or face being killed himself. P. was ultimately able to escape the prison with the help of the brother of fellow pastor, who was a colonel in the army. Throughout 2003, P. was able to avoid other detentions with the colonel’s protection. However, in 2004, the colonel fell out of favor with the president and fled to Cameroon. During his escape, he hid at P.’s family home. In 2006, while at a conference of pastors in Cameroon, P. learned government officials were searching for him because they thought he had helped the colonel escape. P. obtained a visa to the U.S. while in Cameroon. After a brief return to Equatorial Guinea, P. fled and arrived in Atlanta, Georgia in October 2006.
2. E. is a 43-year-old woman from Zimbabwe. She needs to file an affirmative application for asylum with USCIS by May 29, 2008. E. speaks English and lives in Evanston, Illinois. (156074)
E. worked for the Catholic Institute of International Relations (CIIR) from 1986 to 2002, helping train volunteers from the United Kingdom to work with local Zimbabweans on development and health projects. At the end of the 1990’s, when Zimbabwe’s main political opposition party, the Movement for Democratic Change (MDC), gained momentum, the government cracked down on suspected supporters. In May 2002, security agents abducted E. and accused her and her organization of funding opposition activities. The agents beat E. and detained her in a cottage with two other women who had also been beaten. After two days, the agents released E. but warned her that if they ever found out that she was helping the political opposition, they would kill her. Throughout this period, E. often received threatening phone calls. E. left the CIIR in 2002 after her contract was up. She joined the Red Cross in 2003 as a program coordinator. In 2004, she became a member of the MDC, a group she has always supported and in which her brother has been a member since 1999. After joining the MDC, she received frequent threats against her life, and unknown gunmen fired at her house on several occasions. Her home was ransacked on several occasions. She tried reporting these incidents to the police but she believes they may be complicit in the harassment and threats. E. fled Zimbabwe by way of South Africa in May 2007 and arrived in Atlanta, Georgia.
Asylum Master Calendar Hearings
3. J. is an 18-year-old man from El Salvador. His next Master Calendar hearing is on September 28, 2007. J. speaks Spanish and lives in Chicago, Illinois. (155909)
J. is an 18-year-old man from a small town in El Salvador along the border with Guatemala. He was detained as a minor in April 2006 and filed his asylum application in January 2007 with an attorney who is now withdrawing representation. His next Master Calendar Hearing is Sept. 28, 2007.
Members of the Mara Salvatrucha approached J. several times in the street between December 2005 and February 2006 demanding that he join their gang and run drugs between El Salvador and
Guatemala, because people under the age of 18 are not checked for documents or drugs as they cross the border. They threatened to hurt him or his family if he did not join. He fled the country as a minor in February 2006, arriving in the U.S. in April 2006. In March 2006, gang members approached three of his sisters and told them that they would kill J. if he did not join their gang upon his return. J. fears that he will be killed if he returns to El Salvador and does not join the Mara Salvatrucha.
VAWA Petitions for Domestic Violence Survivors
Pursuant to the Violence Against Women Act (VAWA), U.S. immigration law offers protection to immigrant spouses and children who have suffered violence and psychological abuse at the hands of a U.S. citizen or a lawful permanent resident abuser. The VAWA self-petition is similar to an affirmative asylum application, except the applicant does not have to appear for an interview after filing the application. Many VAWA applicants will also be applying for legal permanent residency simultaneous with the self-petition. For most of these cases, there is no specific filing deadline, but given the vulnerable situation these individuals face, NIJC encourages pro bono attorneys to file the self-petitions as quickly as possible. Please note that attorneys need to attend a training that specifically covers VAWA petitions before taking one of these cases.
4. I. is a 28-year old woman from Mexico. I. is eligible to apply for U-Visa Interim Relief and may include two of her children as derivatives on her application. I. speaks Spanish and lives in Waukegan, Illinois. (153225)
I. first entered the United States without inspection in 1998. After years of abuse, I. tried to leave her abusive partner two years ago, but he returned to her house only a few months ago. He has continued to abuse her by forcing her to have sex, choking her, and threatening to kill her. I. finally fled the situation and is now living in a shelter with her children. She has obtained an order of protection and although she is receiving counseling at A Safe Place and with the Lake County Health Department, she is having problems with depression. I. is eligible to apply for U-visa Interim Relief and may apply for employment authorization upon a grant of deferred action. Two of I’s four minor children are undocumented and may apply for U-visa Interim Relief as derivatives of their mother.
5. A. is a 31-year old woman from Mexico. A. is eligible to apply for U-Visa Interim Relief and may include her daughter as a derivative on her application. A. needs extra advocacy in obtaining a signed U-Visa certification form from law enforcement. A. speaks Spanish and lives in Cicero, Illinois. (152602)
A. first entered the United States in May of 1993 without inspection and with her partner and their oldest daughter. On several occasions, A’s partner hit her and caused bruising on her arms. She never called the police until November of 2006 because he threatened with hurting her more. In November 2006, A. went to get an order of protection after her partner hit their daughter. A. went to court and testified and her partner went to jail for a week. DCFS is involved in this case and A. has two good court advocates on her behalf. A. is eligible to apply for U-visa Interim Relief and may apply for employment authorization upon a grant of deferred action. A’s oldest daughter is undocumented and may be included as a derivative on her mother’s U-visa application. A. lives in Cicero and speaks Spanish. *Please note: The majority of A’s U-visa application is already completed; however, A. has had difficulty obtaining a signed U-visa Certification form from law enforcement. Her case will require advocacy on the part of the pro bono attorney to obtain cooperation from law enforcement officials.
6. A is a 45-year old woman from Mexico. A. is eligible to file a VAWA self-petition and include one of her children as a derivative. Upon a grant of deferred action, they will be eligible to apply for employment authorization. A. speaks Spanish and some English and lives in Goshen, Indiana. (155235)
A. entered the United States with a tourist visa in 1989. A. divorced her first husband, with whom she has two children, in 1998. A. met her abusive second husband in school in 1999. They lived together for seven years before they married in 2006. They have two children together. A.’s husband threatens her with calling immigration and sending her to Mexico so that he can take her kids. A.’s husband has been physically abusive and in 2000, caused her a miscarriage due to physical abuse. A’s husband has called the police on A. on several occasions and blames her for the physical abuse. A. has obtained at least three orders of protection against her husband and they are currently separated. A’s husband was recently released from jail after violating the most recent order of protection. A. is eligible to file a VAWA self-petition and may include one son as a derivative. Upon a grant of deferred action, they will both be eligible to apply for employment authorization. With a valid social security number, her son will be able to attend college.
7. L. is a 23-year old woman from Mexico. L. is eligible to apply for U-Visa Interim Relief. She needs extra advocacy in obtaining a signed U-Visa certification form from law enforcement. L. speaks Spanish and lives in Chicago, Illinois. (155035)
L. entered the United States without inspection on July of 2001 and met her abuser that same year. They lived together for about two years and their daughter was born in September of 2002. In December of 2003, L’s offender accused her of cheating and started to hit her all over her body. He held a gun to L’s head and threatened to kill her. By the summer of 2004, L and the abuser had separated, but he continued to stalk her. On one occasion, he snuck into her car after L. had gotten out to drop something off. When L. got back into the car, he beat her and took her car keys. L called the police but did not press charges. L. is eligible to apply for U-Visa Interim Relief. L. speaks Spanish and lives in Chicago, Illinois. *Please note: The majority of L’s U-visa application is already completed; however, L. has had difficulty obtaining a signed U-visa Certification form from law enforcement. Her case will require advocacy on the part of the pro bono attorney to obtain cooperation from law enforcement officials.
8. M. is a 54-year-old woman from Germany. M. is eligible to apply for U-Visa Interim Relief. She needs extra advocacy in obtaining a signed U-Visa certification form from law enforcement. M. speaks German and lives in Chicago, Illinois. (150384)
M. entered the United States with a tourist visa in December of 1989. She met the offender in East Germany, he is from Poland. She got married in Germany and had one child in Germany. M. came with her abusive husband to the Untied States. M. came to the United States under the impression that her stepmother could apply for her to become a resident. M. divorced her partner in order to be legally here, but she still wanted to have a family with him. Once here, he completely changed. He would drink and physically abuse her and the children. M. has a criminal case pending against her partner as he violated the order of protection.
*Please note: M. has had difficulty obtaining a signed U-visa Certification form from law enforcement. Her case will require advocacy on the part of the pro bono attorney to obtain cooperation from law enforcement officials.
Cases for Unaccompanied Minors
The cases of unaccompanied immigrant children often involve seeking Special Immigrant Juvenile Status (SIJS). Attorneys who handle children’s cases through NIJC may be asked to assist their clients in seeking SIJS alone or in conjunction with asylum. The case description will always indicate whether seeking SIJS is appropriate.
SIJS is an avenue through which some immigrant minors may ultimately receive lawful permanent residency. SIJS is available to undocumented children who have been abused, abandoned, neglected or orphaned. If the child is in the custody of the federal government, the first step towards SIJS is to request permission, or “Specific Consent,” from Immigration and Customs Enforcement (ICE) to enter into state court and seek a dependency order. If the child is not detained, the case may proceed immediately to the second step. The second step involves asking the court of the state where the child resides to issue an order declaring the child a ward of the state. The state court must find that the child has been abused, abandoned or neglected, that the child qualifies for long-term foster care, and that it is not in the child’s best interest to return to his or her country of origin. Once the child has been declared a ward of the state, the SIJS petition may be filed with United States Citizenship and Immigration Services (USCIS) using Form I-360. Once the I-360 is approved, the child may seek lawful permanent residency based on his or her approved SIJS petition.
As with all cases placed with pro bono attorneys through this list, NIJC will provide technical assistance to attorneys who handle cases that involve SIJS.
9. M. is a 17-year-old girl from El Salvador. She is eligible for SIJS. M’s first Master Calendar hearing is on August 16, 2007. In order to proceed with the SIJS, M. will need to obtain specific consent from ICE headquarters to allow her to proceed in state court. After receiving consent from ICE, the attorney handling this case will need to seek a dependency order in Illinois state court. M. speaks Spanish and is currently housed in an unaccompanied immigrant minors’ shelter in Chicago. (153437)
M.’s father is an alcoholic and has been largely absent in her life. When M.’s mother passed away in 2006, M. and her younger sister became orphans due to their father’s complete lack of concern for their well-being. M.’s adult siblings in Honduras were unwilling to take her in. Left with no one to care for her, M. decided to come to the United States where she had hoped to be with her other siblings. M. was arrested by the border patrol upon arrival. M.’s siblings in the US were found to be unfit custodians, and the government refused to release M. into their care. M. is afraid of returning to Honduras where there is no one to take care of her. M. is eligible for SIJS.
Thank you,
Mary M. McCarthy, Director mmccarthy@heartlandalliance.org
Lisa Koop, Supervising Attorney lkoop@heartlandalliance.org
Jefferson Mok, Asylum and Pro Bono Project Coordinator, jmok@heartlandalliance.org
National Immigrant Justice Center
(formerly the Midwest Immigrant & Human Rights Center)
208 S. LaSalle, Suite 1818
Chicago, IL 60604
(312) 660-1307
www.immigrantjustice.org