(6) POLICY: Failure to Defer to State Custody Determinations


Summary:

Although State Courts have primary jurisdiction over child custody laws and 28 U.S. code 1738 “State and Territorial Statutes and Judicial Proceedings; Full Faith and Credit” declares that state judicial orders, including those involving child custody, “shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken,” USCIS is failing to honor the State’s ruling and custodial rights of parents, within immigration proceedings.

Specifically, USCIS is allowing non-custodial parents to engage in activities which are only afforded to the custodial parent, while denying the custodial parent his/her rights afforded to him/her by the State Courts.

Example of a case involving a resident in the State of MN:

Statute 518.003 defines parental custody rights as:

Subd. 3. Custody.

 

Unless otherwise agreed by the parties:

(a) "Legal custody" means the right to determine the child's upbringing, including education, health care, and religious training.

(b) "Joint legal custody" means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training.

 

Contrary to the above Statute as well as other States’ statutes, USCIS allows non-legal custodial parents (those who have no right to participate in major decisions determining the child’s upbringing) to:

  • Involve children in immigration proceedings;

And

 

  • Make legal arguments on behalf of the child (who they have no legal right o make arguments on behalf of).

 

USCIS goes even further to:

  • Fails to inform the legal custodial parent that his/her child is being utilized within the administrative proceeding;
  • Denies the legal custodial parent access to the proceeding involving the legal custodial parent’s child, even when the legal custodial parent has requested access;

and

  • Fails to honor the custodial parent’s right, granted by the State Court, to make determinations regarding what is best for the custodial parent’s child.

Form I-601 allows the following criminals and other aliens the ability to apply for a waiver, based on a qualifying family member (ie. Child):

  1. I have a communicablediseaseof public health significance. 
    2. I seek an exemption from the vaccination requirement because vaccinations are against my religious beliefs or moral convictions. 
    3. I have or had a physical or mental disorder and behavior (or history of behavior that is likely to recur) associated with the disorder, which has posed or may pose a threat to the property, safety, or welfare of myself or others. 
    4. I have been involved in a crime of moral turpitude (other than a purely policies offense). 
    5. I have been involved in a controlled substance violation according to the laws and regulations of any state, the United States, or a foreign country related to a single offense of simple possession of 30 grams or less of marijuana. 
    6. I have been convicted of two or more offenses (other than purely political offenses), for which the combined sentences to confinement were five years or more. 
    7. I am coming to the U.S. to engage in prostitution or, in the past 10 years, I have engaged in prostitution (including receiving the proceeds of, in full or in part), procurement of prostitution, or I continue to engage in prostitution or procurement of prostitution. 
    8. In the past 10 years, I have (either directly or indirectly) procured, attempted to procure, or to import prostitutes or persons for the purpose of prostitution. 
    9. I came to the United States or I am coming to the United States to engage in any other unlawful commercialized vice whether or not it is related to prostitution. 
    10. I have been involved in serious criminal activity and have asserted immunity from prosecution. 
    11. I am or I have been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate of the party), domestic or foreign. 
    12. I have sought to procure an immigration benefit by fraud or by concealing or misrepresenting a material fact (immigration fraud or misrepresentation). 
    13. I have been engaged in alien smuggling. 
    14. I am subject to a civil penalty because I was the subject of a final order for violation of the Immigration and Nationality Act (INA) section 274C. 
    15. I am subject to the 3-year or 10-year bar to admissibility because I was previously unlawfully present in the United States in excess of either 180 days or one year or more, respectively, and subsequently departed the United States. 
    16. I was previously removed from the United States. 
    17. I have been ordered removed or I have been unlawfully present in the United States for more than one year, in the aggregate, and I subsequently reentered or attempted to reenter without being admitted. 
    18. Other (specify):

Part 5, of form I-601 states: “Information about Your Qualifying Relative” “Provide information for your U.S. citizen or Lawful Permanent Resident through whom you are eligible to submit this application. In Item Number 9, provide a statement explaining the extreme hardship that you or your qualifying relative (U.S. Citizen, Lawful Permanent Resident, or other qualified parent or child) has or will experience if you are refused the immigration benefit you are seeking.”

USCIS allows for an otherwise inadmissible immigrant to obtain an immigration benefit through a “hardship waiver,” if they have a qualifying relative who they argue would suffer “hardship.” USCIS allows non-custodial parents to make arguments on behalf of the child within the legal administrative proceeding as well as arguments regarding the child’s welfare and what would be best for the child, even when that parent has no legal right to make such an argument.

Furthermore, USCIS refuses to allow the legal custodial parent (who has sole legal authority to represent the child’s interests in a legal proceeding) to view what legal arguments are being made on the child’s behalf. USCIS goes even further by completely disregarding the custodial parent’s arguments and determinations regarding the child’s welfare and upbringing when those arguments are contrary to the alien applicant’s statement.

USCIS also takes on the role of State Court, by making legal determinations for the child, on what USCIS believes would cause the child hardship. USCIS, however, does not have jurisdiction to make such decisions or determinations. According to the “domestic-relations exception to federal jurisdiction,” federal courts are prohibited from hearing cases involving family-law questions within the traditional authority of the states. 

The argument of whether a child will suffer hardship is not a question of immigration law, but instead a matter involving the determination of a child’s well-being and therefore falls under State Court Jurisdiction. In many circumstances the parent(s) rights and abilities to make a determination for a child’s well-being has already been established through a mutual stipulation, where both parties have already agreed that such legal authority to make decisions on the child’s well-being should be granted either solely or jointly.

USICS must require that any arguments made on behalf of a child or pertaining to a child, must ONLY be presented by one or more legal custodial parents;

 and when:

  • Sole Legal Custodial Rights are Present:, Any determinations made regarding the child’s welfare must be made by the sole custodial parent, not the immigrant and not USCIS. Any such conflicting arguments made by a non-custodial parent must be thrown out and may not be relied upon when making the adjudication.
  • Joint Legal Custodial Rights are Present: All parents having joint-legal custody of the child must be granted EQUAL access to all of the information and legal arguments presented to USCIS regarding the child, and EQUAL access to engage on the child’s behalf within the proceeding. Such joint-legal custodial parents must also have EQUAL ability to argue and participate in any legal proceeding involving their child, and any conflicting arguments must carry the same weight as their legal joint authority.

National Security:

Aliens, who engage in criminal activities and fraud, causing children to suffer trauma and hardship, are then allowed to make ex-parte, unsubstantiated claims, that the very child they harmed would, according to them, suffer hardship if the offending alien be removed. These individuals are then granted such waivers and allowed to remain in the U.S. to continue to engage in criminal activity and pose a threat to the public at large.

“Pardon Powers” are being largely abused within DHS because DHS chooses to prosecute almost all immigration-related crimes through civil administrative proceedings which in turn grant DHS the ability to offer aliens who commit immigration-related crimes, a pardon at DHS’ whim or caprice. If the crimes had been prosecuted through the criminal court system, DHS would not be afforded any ability to commute the criminal sentence. Granting criminal aliens pardons based on their procreation status is contrary to the interest of victims as well as the public at large.

Justification for a pardon based on whether a child may, based on the alien’s and USCIS’ sole discretion, suffer hardship is also entirely illogical as many non-alien criminals are sentenced to various terms through our State and Federal Court Systems, yet those criminals do not have their sentences commuted based on whether their child may suffer hardship due to their imprisonment.

Other Legal Issues:

Children are being exploited for their use to obtain immigration benefits and un-charged and un-prosecuted criminal aliens are further incentivized to procreate for the mere use of those children as pawns in their fraudulent schemes.

Children who are being utilized in immigration proceedings, specifically where it states “through whom” the immigrant qualifies, must be granted a legal voice within the proceedings. Children must not be abused by the system or denied their own rights afforded, as represented by their sole legal or joint legal custodial parent(s).