Class action lawsuit alleges Georgia DHS denies legal representation to undocumented children

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A proposed class action lawsuit alleges that the commissioner of the Georgia Department of Human Services unconstitutionally denied legal representation and extended foster care for undocumented children and young adults.

The 20-page complaint alleges that Georgia DHS Commissioner Candice Broce violated the Fourteenth Amendment to the United States Constitution by placing undocumented child case plans in the care of the state Department of Family and Children Services (DFCS) has not implemented in time. Specifically, the case challenges Georgia DHS’ alleged policy of denying undocumented children legal representation to timely apply for a Special Immigrant Juvenile Status (SIJS) visa to further a child’s residency plan.

Without an SIJS visa, undocumented children after the age of 18 cannot receive further public benefits such as extended care services, the lawsuit states.

The filing also challenges the Georgia DHS’ alleged practice of denying undocumented children in DFCS custody notification and a hearing for denial of extended care services after the age of 18.

“Had it not been for the defendant’s violations of the plaintiffs’ rights, the plaintiffs would have received timely counsel under their case plans to obtain an SIJS visa prior to their eighteenth birthday, and they would continue to receive nursing services beyond their eighteenth birthday,” the lawsuit claims .

The lawsuit alleges that the defendant’s policies and practices regarding undocumented children in Georgia are “discriminatory, arbitrary and capricious” and do not advance essential state interests.

“Defendant’s policies and practices defeat the State’s stated interest in ensuring the moral, emotional, mental and physical well-being of dependent children like Plaintiff and similarly situated undocumented children in the Defendant’s care,” the lawsuit states.

The lawsuit emphasizes that the two pseudonymous plaintiffs are or were undocumented children in foster care who should not be reunited with one or both parents by a juvenile court due to abuse or neglect and who are eligible for SIJS visas. Because the plaintiffs were not candidates to be reunited with their parents, the case states, the Georgian DFCS had to make reasonable efforts to take all necessary steps to finalize the individuals’ plans for the permanent case, but failed to do so in a timely manner , consult legal counsel or seek SIJS visas.

The lawsuit alleges that although the Georgia Security and Immigration Compliance Act of 2006 requires immigration status verification only for persons over the age of 18, DFCS has nevertheless taken a political position that it cannot obtain the assistance of an attorney to establish a SIJS visa to be applied for as part of a residency plan for an undocumented child under the age of 18.

“As a result of DFCS’ failure to apply for an SIJS visa in a timely manner, the plaintiffs’ attorneys had to locate and engage free attorney services to apply for the SIJS visa on their behalf,” the case reads. “Such free legal services are often difficult to obtain and to the best of our knowledge the process of obtaining the SIJS visa is backlogged and delayed and taking a year or more.”

The lawsuit is intended to state the following:

“Any undocumented person under the age of 21 as of the date of this filing who (1) is in the care of Georgia DFCS or was in the care of Georgia DFCS when they turned 18; (2) has been or will be determined by a competent Georgian juvenile court that the person meets the following criteria before the age of 18: (a) that the child is dependent as defined in Georgian law; (b) that reunification with one or both parents of the child is not possible under Georgian law due to abuse, mistreatment, abandonment, neglect or similar reasons; and (c) that it would not be in the best interests of the child to be repatriated to their country of citizenship or last residence; and (3) who have been or will be denied legal representation by DFCS in the timely application of a Special Immigrant Juvenile Status visa to further their enduring plans to qualify for extended care services after the age of 18.

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