Class Action Alleges Georgia DHS Denies Undocumented Children Legal Representation

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

The 20-page complaint alleges Georgia DHS Commissioner Candice Broce has run afoul of the Fourteenth Amendment of the United States Constitution by failing to timely implement the case plans of undocumented children in the custody of the state’s Division of Family and Children Services (DFCS). Specifically, the case challenges the Georgia DHS’s alleged policy of denying legal representation to undocumented children to seek a timely Special Immigrant Juvenile Status (SIJS) visa in furtherance of a child’s permanency plan. 

Without an SIJS visa, undocumented children cannot access further public benefits, such as extended foster care, upon turning 18 years old, the lawsuit says. 

The filing additionally challenges the Georgia DHS’s alleged practice of denying notice and a hearing to undocumented children in DFCS custody regarding the denial of extended foster care services upon turning 18.

“But for Defendant’s violations of Plaintiffs’ rights, Plaintiffs would have been provided timely legal assistance as part of their case plans to secure a SIJS visa prior to their eighteenth birthdays and they would continue to receive foster care services beyond their eighteenth birthdays,” the lawsuit claims. 

The lawsuit alleges the defendant’s policies and practices with regard to undocumented children in Georgia are “discriminatory, arbitrary, and capricious” and do not further any substantial state interest. 

“Defendant’s policies and practices frustrate the state’s stated interest in securing the moral, emotional, mental, and physical welfare of dependent children such as Plaintiff and similarly situated undocumented children in the Defendant’s custody,” the complaint contends. 

The lawsuit stresses that the two pseudonymous plaintiffs are or were undocumented children in foster care who a juvenile court determined should not be reunified with one or both parents due to abuse or neglect and who are eligible for SIJS visas. Because the plaintiffs were not candidates for reunification with their parents, the case says, Georgia’s DFCS was required to make reasonable efforts to complete whatever steps were necessary to finalize the individuals’ permanency case plans, yet failed to timely do so, retain legal counsel or pursue SIJS visas. 

The suit contends that although the Georgia Security and Immigration Compliance Act of 2006 requires the verification of immigrant status only for those over the age of 18, DFCS has nevertheless taken a policy position that it cannot procure the help of an attorney to pursue an SIJS visa as part of an undocumented, under-18 child’s permanency plan. 

“As a result of DFCS’s failure to timely pursue an SIJS visa, advocates for Plaintiffs had to locate and engage pro bono attorney services to apply for the SIJS visa on their behalf,” the case states. “Such free legal services are often hard to obtain, and, upon information and belief, the process for obtaining the SIJS visa is backlogged and delayed, taking a year or more.” 

The lawsuit looks to represent: 

“All undocumented individuals under the age of 21 as of the date of this filing who (1) are in the custody of Georgia DFCS or were in the custody of Georgia DFCS when they turned 18 years of age; (2) have been or will be determined by a Georgia juvenile court with jurisdiction over the individual to meet the following criteria prior to the age of 18: (a) that the child is dependent as defined by Georgia law; (b) that reunification with one or both of the child’s parents is not viable due to abuse, battery, abandonment, neglect, or similar basis under Georgia law; and (c) that it would not be in the child’s best interest to be returned to his or her country of nationality or last residence; and (3) have been or will be denied legal representation by DFCS in timely applying for a Special Immigrant Juvenile Status visa in furtherance of their permanency plans so they qualify for extended foster care services upon turning 18.” 

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