Understanding Your Rights as an Undocumented Immigrant in Foster Care

A lawyer from Lawyers for Children explains what rights undocumented foster children have and different visas and other paths to citizenship for immigrant youth in care.

by Represent Staff

Nothing in this article should be taken as legal advice. If you have questions about an immigration issue, talk to your lawyer as soon as possible. You should not and do not have to navigate the immigration system on your own. Help is available.

Trying to navigate the foster care system is confusing enough. If you’re in foster care and are undocumented, figuring out how to get the services you need adds another layer. To help understand how these two systems—foster care and immigration—fit together in New York, we reached out to Myra Elgabry. She is an attorney who directs the Immigration Rights Project at Lawyers for Children, which provides free legal and social work services for children in foster care.

Q: What should you do if you don’t actually know your immigration status?
This is a very common question for young people in foster care. If you’re not sure where you were born, or you know that you were not born in the U.S., it’s a good idea to speak to your lawyer about your immigration status. All youth in foster care in New York have a right to a lawyer assigned to you by the Family Court, called the Attorney for the Child (AFC). Your lawyer’s office may also have a social worker that will work with you. Your lawyer can connect you to an immigration attorney who can help determine your immigration status and see if there are ways for you to apply for a green card or U.S. citizenship.  Your case planner can also make a referral for an immigration attorney and can assist in replacing lost documents.

Don’t wait to address this. It’s very important that you speak to your lawyer as soon as possible, since replacing documents (like birth certificates) and immigration applications can take a long time. Your immigration status can affect your ability to work legally, ability to obtain financial aid for college, and eligibility for housing programs, so it is best to explore your immigration options early and not miss any deadlines.

Q: What do you wish all undocumented foster care youth knew about the path to lawful permanent residency (also called a “green card”)? 

A: Your lawyer works for you and can let you know what your options and rights are, and connect you to an immigration attorney that works with youth. Your lawyer can see if it’s possible to qualify for Special Immigrant Juvenile Status (SIJS), which can lead to lawful permanent residency (a “green card”).
You can also let your foster care case planner know your immigration status so they can connect you to an immigration legal services provider. Your foster care agency must keep your immigration status confidential, and should only share information if it is part of the process to help you get assistance. In New York City, foster care agencies and the Administration for Children’s Services (ACS) are not allowed to share any immigration status information with ICE or other immigration agencies. (You can check with your lawyer about the rules in your area if you’re outside New York City.)

It is very important to avoid going to an immigration office alone, hiring an immigration lawyer on your own, or filling out any immigration applications without a lawyer. 

Q: Can you explain what Special Immigrant Juvenile Status (SIJS) is?
Special Immigrant Juvenile Status, also called SIJS, is an immigration petition that, if granted, allows qualified youth under 21 to apply for a green card. To qualify for SIJS, a Family Court Judge or Referee must determine that you have been abused, abandoned, or neglected by at least one parent, that you cannot reunify with that parent or parents, and it is not in your best interest to return to your home country. Like any immigration application, there are several requirements, so it’s important to get connected with your lawyer as soon as possible. You must apply for SIJS before you turn 21 in New York, and you should not delay. 
There are several other immigration options like asylum, U-visa, and T-visa, that an immigration attorney will consider in addition to SIJS.  (An immigration lawyer can explain the different types of visas and figure out if you’re eligible for any of them.)

Q: What’s your advice for someone who has come to the U.S. without a parent or guardian (as an unaccompanied minor), is undocumented, and ended up in foster care?
You are not alone. There are many young people in foster care who arrived in the United States as unaccompanied minors and were able to obtain immigration assistance and achieve their goals. In New York City, there are dedicated advocates that will work to protect your rights and help connect you to the services that you need. A young person in foster care in New York City has the right to a safe and secure placement in foster care, an education, medical and therapeutic services, and the right to immigration legal services, no matter what your immigration status is. 
To best protect your rights, you should speak with your agency case planner and your lawyer about any immigration court hearings that you have scheduled or had in the past. It is very important that you do not miss any scheduled immigration court hearings. Make sure to share any identity documents or immigration agency documents you may have with your lawyer. Let them know about any past experiences with immigration enforcement or detention, any prior immigration attorney you worked with, or prior immigration filings.

Q: If an undocumented person is approached by police officers or ICE officers, what should they do?

A: You should tell a police officer or ICE officer: “I have a lawyer and I can’t speak to you without my lawyer present.” You should not answer ANY questions or share any information like your name or where you were born. In New York, you are not required by law to carry any form of ID. Talk to your lawyer about what ID or documents to carry and when it is safe to show them. Be sure that you do not run, resist, or say anything that is not true. 
If ICE or the police come to your home, DO NOT open the door. ICE can only enter your home with a paper signed by a judge, which is called a judicial warrant. You have the right to ask if they have a judicial warrant and ask them to slide what they have under your door. And, again, you should also let them know that you have a lawyer and cannot speak without your lawyer present. You do not have to answer questions or share documents.   

If you are arrested or detained, let your lawyer know as soon as you are able. Even after being detained, you should not speak without your lawyer present. You should not lie to ICE or a police officer. Never sign anything or share any papers without your lawyer present. 

Q: Is there anything else you’d like to say to undocumented immigrants in care?
The first thing is that no matter what, you have rights! You are not alone. There are many people in the foster care system who work to help immigrant youth, within foster care agencies, in child protective services, and in your lawyer’s office. If you are being mistreated in any way, you should tell your lawyer.

The good news is that many of the immigration laws have NOT changed and you may be eligible for immigration assistance. But all requirements must be reviewed with a qualified immigration attorney. 
The best way to maintain your eligibility for immigration applications is to avoid getting arrested, avoid going AWOL from foster care, check with your immigration attorney before any travel, and discuss other specific issues you have. You can talk to your lawyer knowing what you share with them is confidential and they can help guide you to the immigration assistance that you need.   

If you’re in foster care in New York City and you don’t know how to contact your lawyer, ask your caseworker for your lawyer’s name and phone number. If you want to find out on your own, call Lawyers for Children and Legal Aid directly.

Lawyers For Children
1-800-244-2540 or 212-966-6420

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A young person in foster care in New York City has the right to a safe and secure placement in foster care, an education, medical and therapeutic services, and the right to immigration legal services, no matter what your immigration status is.
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