Tcl - Undocumented Immigrant Children: Legal Considerations Regarding Human Service Needs - September 2005 - Juvenile Law
| Jurisdiction | United States,Federal |
| Citation | Vol. 34 No. 9 Pg. 93 |
| Pages | 93 |
| Publication year | 2005 |
2005, September, Pg. 93. TCL - Undocumented Immigrant Children: Legal Considerations Regarding Human Service Needs - September 2005 - Juvenile Law
September 2005
Vol. 34, No. 9 [Page 93]
Juvenile Law
Undocumented Immigrant Children: Legal Considerations Regarding Human Service Needs
by Barbara J. Shaklee
This column is sponsored by the CBA Juvenile Law Section to apprise practitioners of substantive and procedural information concerning the field of juvenile law.
Column Editors:
Ellen Toomey-Hale, an attorney in Platteville - (303) 907-7598,Toomeyhale@aol.com and Barbara J. Shaklee, Assistant Director of the Human Services Legal Section of the Denver City Attorney's Office - (720) 944-2965, barbara.shaklee@dhs.co.denver.co.us
About The Author:
This month's article was written by Barbara J. Shaklee, Denver, Assistant Director of the Human Services Legal Section of the Denver City Attorney's Office - (720) 944-2965, barbara.shaklee@dhs.co.denver.co.us. The author thanks law clerk Anne Kellogg, who provided technical assistance, final cite checks, and Shepardizing.
Undocumented immigrant children in child welfare or juvenile delinquency cases are subject to federal restrictions on benefits. This article examines these laws and exceptions that may apply. It also discusses how community resources may be used when federal benefits are unavailable.
In recent years, budgets at the federal, state, and county levels have shrunk for human services needs. Because immigration and eligibility for state and federal benefits have become more restricted, immigrant families are particularly affected. Undocumented immigrants (also referred to as undocumented "aliens"), especially children,1 are caught between these economic and policy conditions. Without state or federal reimbursement for the costs, counties struggle to provide ongoing protective services for undocumented immigrant children and their families.
Under federal law, any abused or neglected child, regardless of immigration status, is eligible for short-term emergency medical care, shelter, or other services necessary to address the emergency.2 Each case must be reviewed individually to determine what services are necessary.
This article is written for practitioners who encounter undocumented children in child welfare or juvenile delinquency cases. It discusses federal restrictions on benefits for undocumented immigrant children. The article analyzes the emergency medical exception to the general rule that government funding is not available to unqualified children. It examines how some young people may become eligible for benefits through a special immigrant status. Finally, the article discusses ways to locate community services and implement creative strategies to conserve the scarce resources available to undocumented immigrant children and families.
"Qualified" and "Unqualified" Aliens
In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA").3 Among other things, PRWORA created the Temporary Assistance to Needy Families ("TANF") program. TANF replaced what had been referred to as "welfare" - namely, Aid to Families with Dependent Children, the Job Opportunities and Basic Skills Training programs, and the Emergency Assistance program.4
TANF provides states with federal funding and flexibility to develop and implement state-specific programs designed to give assistance, services, and work opportunities to certain qualified low-income families.5 TANF explicitly excludes "unqualified alien" children and families from eligibility for state or local public benefits, except in certain specified and limited circumstances.6 "State or local public benefit" is defined broadly to encompass all welfare, health, housing, food, and other similar services that children and families might need
for which payments or assistance are provided to [eligible persons] . . . by an agency of a State or local government or by appropriated funds of a State or local government.7
Thus, "unqualified alien" children and families cannot receive Medicaid health benefits.8 The PRWORA specifically states that Congress intended to have the provisions narrowly construed, in order to restrict illegal aliens' access to any public benefit.9 Action by Congress that restricted such access has been upheld by courts.10
General "Qualified Alien" Criteria
There are limited situations where a person may be deemed a "qualified alien" and, thus, be eligible for benefits under TANF. However, it is difficult for immigrant children and families to satisfy such eligibility requirements. To receive a public benefit, an individual must be a "qualified alien" at the time he or she applies for, receives, or attempts to receive such benefit.11 In general, the individual must be:
1) lawfully admitted for permanent residence under the Immigration and Nationality Act;
2) granted asylum;
3) a refugee who is admitted into the United States;
4) paroled into the United States for a period of at least one year;
5) an alien whose deportation is being withheld;
6) granted conditional entry; or
7) a Cuban or Haitian entrant.12
Children meeting any of these definitions rarely are on the usual juvenile court caseload.
"Battered Alien" Criteria
Under federal law, certain "battered aliens" also may qualify for public benefits. Battered aliens include adults and children who have been battered or subjected to extreme cruelty in the United States by a spouse, parent, or any family member residing in the same household as the aliens, with the consent or acquiescence of their spouse or parent.13 Moreover, there must be a substantial connection between the battery or cruelty and the need for the sought benefits.14 Battered aliens in need of services must no longer be residing with their batterers. Finally, battered aliens are qualified only if they already have filed a petition to be qualified and such petition is pending.15
These requirements significantly limit the ability of children involved in dependency and neglect proceedings to qualify as "battered aliens." The precipitating incidents in dependency and neglect cases include a broad array of circumstances, such as medical neglect, drug exposure, or domestic violence between parents. However, such circumstances do not always include physical abuse or battering of a child.
The requirement that the child cease to reside with the batterer presents additional barriers that a child - who is involved in a dependency and neglect proceeding - rarely will overcome. First, most dependency and neglect cases involve children who currently reside with the...
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