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  DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 13: Cross Program Protocols
13-20  Immigration Issues in the Child Welfare System
Cross Program Protocols
13-20  Immigration Issues in the Child Welfare System
Reference Points
Overview
DFCS Policy on Immigration Status
Identifying the Need for Immigration Services
Child Welfare System Flowchart
Notifying a Consulate when a Child Who is a Citizen of the Country Represented by the Consulate is Taken into Temporary Custody
Language Issues
Reference Points
Working with Immigrant Families in DFCS Context
Cultural Engagement and Assessment Tool
PRUCOL (Permanent Residence Under Color of Law)
Reuniting Immigrant Families Act : SB1064
Ice Directive:Facilitating Parental Interests

Special Immigrant Juvenile Status

Violence Against Women Act
U-Visa
Nonimmigrant Status T-Visas

 Deferred Action Childhood Arrivals (DACA)

Other Issues Related to Immigration and DFCS
Education and Immigrant Children
DFCS Staff Resource Contacts
Related Web Sites
Source Documents
Other References


Reference Points
Effective Date: 07/01/06
Last Updated: 9/15/2014
 Legal Basis:
Popup Window Unites States Citizenship and Immigration Services
Popup Window Immigration Act of 1990
Popup Window Reuniting Immigrant Families Act: SB1064
Popup Window US Immigrantion and Customs Enforcement: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities
 Non CWS/CMS Forms:
MS Word Notification to Mexican Consulate (SCZ 330)
MS Word

Notification to Consulate (SCZ330a)

[Other than Mexican Consulate]

MS Word Request and Consent to Notify the Mexican Consulate of Dependency Proceedings (SCZ 331)
MS Word Out-of-Country Adoptions Referral Form (SCZ94)
bullet G-845 Supplement - PRUCOL - (Medi-Cal form not online)
 CWS/CMS Forms:
bullet Services Management Section:  Contact Notebook


Overview  

Child welfare services are provided to children and families without regard to immigration status. The Department of Family and Children's Services (DFCS) does not conduct investigations into the immigration status of children and families brought to the Agency’s attention; however, learning a family member’s immigration status may be necessary in determining eligibility for services, may enable DFCS to obtain federal reimbursement for the provision of child welfare services, including preventive and foster care services, and could indicate the family’s eligibility to receive other services. Identifying services for which immigrant children and families may be eligible, and then making the appropriate referrals, is a critical aspect of protecting and serving Santa Clara County’s immigrant children and families.

The Immigration Services Committee provides internal and external resources to the DFCS staff regarding the specific needs of immigrant children in the child welfare system.  The Committee provides consultations to social workers at all levels: Emergency Response, Dependency Investigations, Voluntary Services, Continuing Services, Adoptions and Non-Minor Dependents.

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DFCS Policy on Immigration Status  

It is DFCS policy only to ask clients about immigration status if a program or service to which DFCS wishes to refer that client makes eligibility determinations based on immigration status or when an inquiry is necessary for reimbursement purposes. 

 

Further, DFCS employees shall not disclose immigration status information to the U.S. Citizenship and Immigration Services ("USCIS", formerly Immigration and Naturalization Services, "INS") or any person or agency, including law enforcement, without first consulting with a supervisor and County Counsel.

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Child Welfare System Flowchart   Social workers must recognize the importance of collecting culturally crucial information as part of the evaluation of the case plan so as to identify and integrate relevant immigration information as it affects the sequence of decisions regarding cases in the child welfare system.  The purpose of the flow chart below is to illustrate how and when immigration issues may arise during the timeline of a child welfare case.

Child Welfare System Flowchart
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Identifying the Need for Immigration Services  

DFCS staff should be sensitive to the fact that many immigrants are reluctant to interact with government officials or employees for fear of being reported to the U.S. Citizenship and Immigration Services ("USCIS", formerly known as Immigration and Naturalization Service or "INS".)  Therefore, staff members should not inquire about immigration and/or United States citizenship status until after they have engaged the family and explained the purpose of the inquiry.  Information obtained by DFCS, including immigration status of family members, is confidential.  Staff should first consult with supervisors before communicating any information about an undocumented or documented immigrant.

The best way to determine whether a foster child might need immigration assistance is to look at his or her birth certificate. If the child has a U.S. birth certificate, that child is a United States citizen and does not need immigration assistance. To get a copy of a foreign birth certificate, take the child to the consulate of his or her home country. If possible, obtain a copy of the child’s birth certificate and collect other relevant documents, including a foreign passport and dispositions in any family court or criminal or delinquency proceedings, to facilitate the status adjustment process. 

Immigrant families with immigration issues, including undocumented status, can and should be referred to certain agencies for free legal assistance or case consultation.  DFCS has a special contract with Catholic Charities to assist child welfare staff.

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Notifying a Consulate when a Child Who is a Citizen of the Country Represented by the Consulate is Taken into Temporary Custody  

DFCS has entered into an agreement with the Mexican Consulate addressing the protocol when Mexican nationals becomes involved with the child welfare system.  This protocol is to be applied to all clients with citizenship in countries other than the United States.

When a child is taken into temporary custody, the social worker:

  • Determines the child's citizenship/resident status.
If the child is .. Then the social worker..

Is a citizen of a country other than the United States

Contacts the Consulate of the child's country of birth and notifies that consulate staff that the child is in temporary custody.

Has dual citizenship (U.S. and another country) or is eligible for dual citizenship status

  • Offers to contact the consulate, if the parents state that they want the consulate notified abouttheir case.

 

 

If a petition is filed on behalf of a child who.. Then the social worker..
Is a citizen of a country other than the United States
  • Notifies the child's consulate of the date, time and location of the Jurisdictional/Dispositional Hearing.
    • Notifications to consulates are made preferably by fax but may also be made by telephone or email.
    • See the following Confidentiality paragraphs.

  • Documents the notification in CWS/CMS Contact Notes.
Has dual citizenship (U.S. and another country) or is eligible for dual citizenship status
  • Offers to contact the consulate, if the parents state that they want the consulate notified about their case.

 

Confidentiality

The Consulate may come to court to request permission to attend a juvenile dependency hearing.  However, the Consulate is not a party to the matter and may not receive documents from the case file, including court reports, without approval from the Court. (WIC § 827)

The parents' and child's names and addresses, dates of birth, telephone numbers, and a brief and general overview of the parents' situation can be provided to the Consulate.

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Language Issues  

Speakers of any language may report abuse or neglect to the Child Abuse and Neglect Center.  It might not always be possible to determine if a family needs an interpreter before making the home visit.  A person's native language is not necessarily evident from his or her name; what appears to be a Spanish surname could be Portuguese, or the individual might speak an indigenous Latin American language and not be proficient in Spanish. 

Under State regulations, DFCS is required to ask clients their preferred language for oral and written communication and to document the preferred language(s) in the client's case file.  Further, the Department must offer and provide interpreter services, upon request, in the language the client has specified for oral communication.  Clients are not prohibited from providing their own interpreter, though the Department cannot require them to do so. It is prohibited to use minor children as interpreters, except temporarily under extenuating circumstances or at the specific request of the client.  These regulations are in compliance with Title VI of the Civil Rights Act.

See OPP Chapter 2-4: Identifying the Client's Primary Language

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Working with Immigrant Families in DFCS Context  
  • The social worker is sensitive to the legal status of the family and may ask about the family’s legal status to determine eligibility for services. 
  • If the social worker learns that family members are undocumented, a report to U.S. Citizenship and Immigration Services (USCIS, formerly INS) is never made.
    • The social worker may wish to inform the family of this DFCS policy, if asked.
  • If the family tells the social worker that family members are undocumented, the social worker:
    • Advises the family  that they have a right to contact their local national consulate.
    • Makes efforts to find needed services that the family can access and/or for which the family qualifies. 
      • The parents may be referred to parenting classes and other free services offered or contracted through DFCS.
      • Family Preservation money may be requested to fund certain services. 
    • May document the information, if it pertains to needed services and/or the case plan.
      • For example, if, as part of the child abuse report, a reporter indicates that a woman is being abused and is fearful of seeking help because she is undocumented, that information should be documented in some way to alert the responding worker that referrals for DV advocacy might be indicated.
      • Referrals to services must be documented, including, for example, a referral to Catholic Charities for immigration services.

  • Legal status, in and of itself, is not documented in the case file or contact notes, if there is no connection to services needed by the family.
    • For example, a referral to parenting classes would not be connected to a person's legal status.
  • Do not refer to the family's immigration status in a petition, unless the status is relevant to the issues in the allegations.
    • Consult with County Counsel for wording of petition language, if the allegation involves disclosure of a person's immigration status.
  • Discuss the legal status in a court report only if and as it pertains to recommended services and the case plan.
  • If an undocumented child was removed from the family and in out-of-home care, the social worker applies for PRUCOL.

 

Consultation is available for social workers working with families facing immigration issuse, please contact the designated DFCS staff .

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Cultural Engagement and Assessment Tool  

The Cultural Engagement and Assessment Tool is useful in assisting the social worker to determine additional stressors the family is experiencing as a result of being an immigrant to the United States.  It guides the social worker in developing a case plan to meet the specific needs of the immigrant family.   Click here to access the tool.

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PRUCOL  

Children who are undocumented are only eligible for restricted Medi-cal benefits, and, upon entering foster care placement, costs may need to be paid from all-county funds.  Therefore, when a child becomes a dependent of the court and is placed in out-of-home care, the social worker must explore PRUCOL (Permanent Residence Under the Color of Law) status for the child.  A PRUCOL application to U.S. Citizenship and Immigration Services (USCIS) allows that agency to recognize the court dependent status of a child.  Through the PRUCOL process, DFCS is informed by the USCUS if there is any pending action that would limit the child's U.S. residence, eg. a deportation action being pursued.  PRUCOL allows the Social Services Agency/Department of Eligibility Benefits (DEBS) to explore approval of full-scope medi-Cal and federal or state funding for the child.  PRUCOL is not a separate U.S. citizenship, and Immigration Services (USCIS, formerly INS) classification (such as Lawful Permanent Resident Amnesty, etc.), and no immigration benefits result from it.

For additional information regarding applying for PRUCOL, please consult with DFCS staff and contact resources (click link).


See OPP Chapter 18-2.3: PRUCOL - Permanent Residence Under the Color of Law.

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Reuniting Immigrant Families Act:SB1064  

On September 30, 2012, Senate Bill (SB) 1064, entitled the “Reuniting Immigrant Families Act”, was signed into law by Governor Brown. The legislation became the first in the country to address family separation issues as a consequence of the current immigration enforcement system, including addressing the barriers to family reunification for detained and deported immigrant families in the Child Welfare System. Additionally, SB1064 prioritizes keeping children with their families and out of the public child welfare system whenever possible and ensures that separated families receive appropriate care and due process.

 

When a parent has a child in the foster care system either prior to or because of immigration enforcement, it is very difficult for them to fulfill their court requirements to either reunify with their children or for their children to be placed with their relatives. Once in the detention system, parents have great difficulty communicating with their social worker and attorneys, visiting their children, participating in family court proceedings, fulfilling their required court mandated services or accessing supportive services. Eventually, many parents lose their parental rights and the children either remain in foster care or are adopted.

 

SB1064 keys components which effect child welfare services are:

  • Authorizes the court to  consider barriers to a detained or deported parent's access to services and ability to maintain contact with his/her child when considering termination of family reunfication services.
  • Affirms that immigration status per se is not a disqualifying factor in evaluating placement of a child with a relative (including their own parent). Further, authorizes use of a relative’s foreign consulate identification card or passport as a valid form of identification required for a criminal records check (WIC§309(d)(1) and 361.4(b).  
  • Requires the California Department of Social Services provide guidance to social workers on referring children eligible for Special Immigrant Juvenile Status to receive assistance in acquiring protective status. Case workers and court staff are sometimes the first and only person an immigrant child or family encounters who may be able to identify their eligibility for this immigration relief option.
  • Requires CDSS to provide guidance to counties and municipalities to establish Memorandums of Understandings with appropriate foreign consulates in child custody cases. (Article 37 of the Vienna Convention on Consular Relations clearly states that consular officers have the right to assist their nationals in cases of death, guardianship or trusteeships and that consular post shall be informed without delay.)

 

 

The Reuniting Immigrant Families Act (SB1064) Overview and factsheets from the Immigrant Legal Resource Center www.ilrc.org

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ICE Directive: Facilitating Parental

 Interests

 

On August 23, 2013, U.S. Immigration and Customs Enforcement (ICE) issued a directive on Facilitating Parental Interests in the Course of Immigration Enforcement Activities, or the Parental Interest Directive. The Directive is a response to the large and growing number of U.S. citizen children with immigrant parents or guardians who have been detained or deported, and is meant to ensure that detained and removed parents and guardians can maintain a relationship with their children and make decisions in their best interest.

 

The Directive is intended to promote family unity by ensuring that parents and legal guardians of U.S. citizen or Lawful Permanent Resident (LPR) children who are placed in immigration detention and/or removal proceedings are able to make decisions regarding their child’s care, maintain contact with their children, and participate in family court proceedings impacting upon their parental rights. The Directive requires particular attention to cases of parents or legal guardians who are primary caretakers, parents or legal guardians who are involved in family court or child welfare proceedings, and parents or legal guardians whose minor children are physically present in the United States and are U.S. citizens or LPRs.

 

The Directive reminds ICE personnel of the existing obligation to weigh whether prosecutorial discretion is warranted given a host of relevant factors, including whether an individual is a parent or guardian of a U.S. citizen or permanent resident child, or the primary caretaker of a child, but it does not expand ICE’s prosecutorial discretion policy. Mandatory detention laws still trump humanitarian considerations, meaning that if a parent, guardian, or primary caretaker is subject to mandatory detention, or poses a risk to safety and security, he or she must be detained.

 

Specifically, the Directive requires that ICE:

 

1.

Establish a national Parental Rights Coordinator and designate a Field Point of Contact (POC) in each field office to serve as the POC on all issues related to parental rights in that given area;

 

2.

Hold parents in detention facilities that are reasonably close to where their children are living and, when necessary, to the location of family court or child welfare proceedings whenever possible;

 

3.

Facilitate detained parent’s ability to participate in family court and child welfare proceedings that affect their parental rights, if a parent provides evidence of a hearing and facilitation of their participation does not pose an undue logistical burden to ICE or raise safety or security concerns, including the option of participation in court proceedings via video or teleconferencing when in-person participation is not possible;

 

4.

Facilitate visits between detained parents and their children when a parent can demonstrate that such visits are required by the child welfare system as a precondition for family reunification;

 

5.

Accommodate, to the extent practicable, the efforts of parents with final orders of removal to make arrangements for their children, including to obtain travel documents so that their children may join them in the parent’s home country or to arrange for a guardian so their children may remain in the U.S.;

 

6.

Provide detained parents or guardians, or their representatives with sufficient notice of deportation, when such notice does not raise a security concern, so that coordinated travel arrangements may be made for the parent’s children, if desired;

 

7.

Coordinate, to the extent practicable, detained parents’ access to attorneys, consulates, courts, and family members in the weeks prior to deportation, if the parent wishes to execute a guardianship agreement for their child, complete a passport application for their child, or purchase airline tickets or make other travel arrangements so that children can join them in their home country;

 

8.

Consider, on a case-by-case basis, facilitating the temporary return of a parent through humanitarian parole to participate in a hearing related to termination of their parental rights. In such cases, the family court must determine that the parent’s physical presence is required and the parent must assume all costs. In addition, parents must immediately depart the country at the conclusion of the hearings, and may not apply for any immigration benefits or forms of relief while in the U.S.;

 

9.

Coordinate between relevant DHS entities and the Department of Health and Human Services Administration for Children and Families to develop methods for improving communication and cooperation between the immigration enforcement, family or dependency courts, and child welfare systems; and

 

10.
Develop training materials to assist Field Operation Directors (FODs), Field POCs, and other relevant ICE personnel on the implementation of this Directive.

 

Guide to Applying the ICE Parental Interests Directive to Child Welfare Cases from the Immigrant Legal Resource Center www.ilrc.org

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Special Immigrant Juvenile Status (SIJS)  

Dependent children who are neither U.S. citizens nor lawful permanent residents can apply for lawful permanent residency when reunification with one or both parents is not viable due to abuse, neglect, or abandonment.The procedures which give a child Special Immigrant Juvenile Status (SIJS) are dependent both on foster care status and the timely filing of an application.  Workers should promptly bring any such situation to the attention of the DFCS County Counsel.  Because discharge from foster care can impact a Special Immigrant Juvenile Status application, workers should consult with County Counsel and immigration attorneys prior to the child’s discharge from foster care to "independent living" or dismissal of the case.

See OPP Chapter 13-20.2: Special Immigrant Juvenile Status (SIJS).

For additional information regarding applying for SIJS, please consult with designated DFCS staff.

 

 

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Violence Against Women Act  

A collection of federal laws, known generally as "VAWA" (Violence Against Women Act), is designed to protect immigrant abused spouses and children who are afraid to seek police protection because the domestic violence perpetrator has threatened to withhold immigration status from the victims if they do so.  These laws enable battered spouses and children to obtain lawful immigration status without sponsorship from their abusive partners.  In order to be eligible, the batterer must be either a U.S. citizen or lawful permanent resident (green card holder).  No relief is available under these specific laws if the DV perpetrator is neither a United States citizen nor a legal permanent resident.  If you think a parent or child who has been battered might qualify for a legal status under these circumstances, there are many organizations that can assist with the application process. You should make an appropriate referral immediately to one of the local domestic violence services agency.  Often, domestic violence shelters have attorneys specially trained to do these types of "VAWA" self-petitions.

For additional information regarding VAWA, please consult with designated DFCS staff ( click link).

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U-Visas   

U-Visas come under the provision of the Trafficking and Violence Prevention Act of 2007.  This type of immigration relief encourages victims of violent crime to report to law enforcement without worry about their own immigration status. Applicants, who have suffered substantial physical or mental abuse, must be able to cooperate with law enforcement in the prosecution of the crime where they were victims (Domestic Violence, battery and rape fall under this category).  Law enforcement must certify that the victim is assisting in the prosecution of the perpetrator of the abuse.  The perpetrator need not be convicted as long as the victim has aided the prosecutorial process.  Applicants for the U-Visa must not have been convicted of aggravated felony.  The U-Visa is about the crime itself and not the status of the perpetrator or victim.  The U-Visa is another type of immigration relief available to victims of violent crime when VAWA is not an option.  It is imperative to have assistance from a qualified immigration attorney.

For additional information regarding U-Visas, please consult with designated DFCS staff ( click link).

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Nonimmigrant Status T-Visas

 

In October 2000, Congress created the “T” nonimmigrant status by passing the Victims of Trafficking and Violence Protection Act (VTVPA). The legislation strengthens the ability of law enforcement agencies to investigate and prosecute human trafficking, and also offer protection to victims. Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers lure individuals with false promises of employment and a better life. Traffickers often take advantage of poor, unemployed individuals who lack access to social services. The T Nonimmigrant Status (T visa) is a set aside for those who are or have been victims of human trafficking and protects victims of human trafficking by allowing victims to remain in the United States to assist in an investigation or prosecution of human trafficking.

The statute allows victims to remain in the United States if it is determined that such victims could suffer, "extreme hardship involving unusual and severe harm" if returned to their home countries. After three years with the T status, victims of human trafficking may apply for permanent residency.

 You may be eligible for a T visa if you:

  • Are or were a victim of trafficking, as defined by law
  • Are in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking·
  • Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or you are under the age of 18, or you are unable to cooperate due to physical or psychological trauma)
  • Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States.

For additional information regarding T-Visas, please consult with designated DFCS staff ( click link ).

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 Deferred Action Childhood Arrivals (DACA)

 

 Deferred action is a discretionary determination to defer action to remove an individual from the United States.  It is regarded as an act of prosecutorial discretion.  It is written assurance that the youth will not be deported for two-year period.  The youth can have work authorization for that same two-year period and must show economic necessity.  It is renewable for an additional two-year period if not terminated. Under DACA, applicants are eligible for SSN and, in most states, a driver’s license.

Deferred Action for Childhood Arrivals (DACA) Fact Sheet (English) from the Immigrant Legal Resource Center www.ilrc.org

 [Deferred Action for Childhood Arrivals (DACA) Fact Sheet (Spanish)]

For additional information regarding DACA, please consult with DFCS staff ( click link ).

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Other Issues Related to Immigration and DFCS  
  • Dual Citizenship

The United States recognizes dual citizenship under some circumstances. Children who may have dual citizenship should be considered United States citizens, but DFCS may still be required to contact the consulate general of the other country of citizenship. If such contact is necessary, contact Catholic Charities or other immigration service agency.

  • Temporary (Protective) Custody

In the case where a child who is not a United States citizen is taken into temporary custody (removed from the home), DFCS may be required to notify the consulate general of the child’s country of citizenship. Staff should contact County Counsel working on the case in this situation.  They should also inform the family members that it is their right to contact their home country’s consulate for assistance, if they so wish.

  • Kinship Care

DFCS is required to seek suitable relatives for kinship care. Undocumented relatives can be considered as a resource for children. For all persons, including undocumented relatives, to  be considered as foster parents, however, they must be able  to demonstrate visible means of financial support other than the foster care rate and they must meet the other criteria for becoming kinship resources. Note that relatives residing outside the  United States CAN be considered as a placement resource for children in foster care. Organizations are available to arrange for home studies in other countries to explore relatives as placement resources. See the list of DFCS staff resources for further information. 

  • Adoption

When the Court has ordered the plan of adoption for a child with relatives who live abroad, the social worker:

  • Completes the Out-of-Country Adoption Staffing Referral From (SCZ94)
  • Attaches to the SCZ94:
    • The child's birth certificate
    • The DIF Assessment
    • Any document related to Special Immigrant Juvenile Status, if applicable
  • Submits the SCZ94 with attachments to the social work supervisor of the Resource Family Unit.
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Education and Immigrant Children  

Regardless of their immigration status, all children are entitled to a free public education in their local school district. In fact, they are required to attend school until they are 18 years of age.

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DFCS Staff Resource Contacts  
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Related Web Sites  
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Source Documents  
PDF Immigration and Naturalization Resource and Practice Guide/Santa Clara County, Dept. of Family and Children's Services

PDF

PDF

Agency Memorandum #03-13:  Immigration Services: Part 1 - Internal Support Resources

Immigration Options for Undocumented Immigrant Children - Fact Sheets (Immigrant Legal Resource Center

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Other References  
bullet OPP Chapter 13-20.1: Placing Children In and Returning Children From Mexico
bullet OPP Chapter 13-20.2: Special Immigrant Juvenile Status (SIJS)
bullet OPP Chapter 13-20.3: Immigration and Naturalization: Information and Resources
bullet2 Cultural Engagement and Assessment Tool
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