Orphans of the State

For countless undocumented immigrant kids, America is not the land of puppies and Disney trips, but the land of neglect

DCF denied the allegations. But in the end, refugee advocates and state officials settled the case with the issuance of statewide rules that prohibit DCF from discriminating against undocumented kids. Mishael, who helped write the guidelines, says the law has gone largely ignored. "We wrote the Alien Children Rule and then everyone sits on their hands," Mishael says.


Before Mishael, Zawisza, and Gomez filed their lawsuit (Roe and Doe v. Towey), DCF in Dade County had already sought help from Legal Services of Greater Miami. "At the time we had a huge number of illegal immigrant kids coming into the abuse system," says Carmen Dominguez, a DCF lawyer who worked on J-visas from 1994 until early 1997. Esther Olavarria, a former Legal Services of Greater Miami attorney, says DCF began inquiring about services for undocumented minors in the spring of 1994. "They needed assistance in representing kids they discovered were not legal residents," Olavarria says.

But the collaboration between pro bono attorneys and the state agency wasn't formalized until after Mishael sued and the Alien Children Rule was drafted. By then Legal Services had become the Florida Immigrant Advocacy Center, and in July 1996, DCF officially contracted them to file J-visa petitions for children in state custody.

According to Olavarria, who headed the project from FIAC's end, she received a couple of hundred referrals during her tenure from 1992 to 1997. FIAC also set up training for caseworkers and DCF lawyers and established an understanding with INS in which the federal agency would agree to waive all filing fees.

The hardest cases to detect, according to Olavarria, were those of children who had been in foster care from a very early age. "Those kids who had assumed they were born here, those were the hardest cases to piece together," Olavarria says. In fact according to Dominguez, DCF ignored those children until after Alan Mishael's lawsuit. Initially DCF assisted only those alien children just coming into the system. "As a result of that lawsuit, caseworkers had to go back and identify every kid that had been in the system for years," says Dominguez. The DCF lawyer doubts her job was assigned to someone else once she transferred to another position. "To be honest with you, I don't think anybody took over after I left," Dominguez admits. "The only reason I was designated for the job was because there was this brouhaha over Alan Mishael's case. I think the system may just have gone back to the way it was after I left."

"We suspected that eligible children were not being identified," says Rebecca Sharpless, an FIAC attorney who assumed Olavarria's position from June 1997 until November 1999. "These are kids who at the end of their time in foster care are being released to no futures," Sharpless says. "They don't qualify for financial aid to go to college and they have no legal status to work or reside in the United States."

Sharpless credits half a dozen responsible caseworkers but says getting referrals in general was an obstacle. "Despite our efforts no systematic attempt was made to inform caseworkers of this project."

In April 1999 Sharpless and attorney Christina Kleiser from FIAC collaborated on J-visa petitions. In July DCF renewed its contract with FIAC. Monthly training sessions were to continue as part of the agreement, but it wasn't until December that DCF attorneys finally attended a class.

Efforts to continue identifying J-visa kids indeed seem to have died down in Miami. (In Broward they are now just beginning. There's no contract with FIAC, but the agency does employ the services of two pro bono attorneys.) And while FIAC in Miami continues to provide services to children DCF refers to them, there is no Carmen Dominguez on DCF's end to help speed up the process.

Currently Kleiser has a list of approximately seven kids who potentially qualify for J-visas. By the end of March, only two caseworkers had called her with two more cases. "There has just been a real lack of referrals of these kids, and we know there are a lot more out there," Kleiser says. The attorney is setting up three more caseworker training sessions for April. "It's not enough," she says. "But we're definitely trying to figure out who to target."


Manuela should have been targeted much earlier. Her many U.S. guardians left her out in the cold, even when she had a child to care for. After a male friend from Carol City demanded sex in return for a place to stay, she left, and for a day sat in front of a Winn-Dixie supermarket with her eighteen-month-old child. Manuela hadn't eaten in three days and only had a bottle of milk for her boy. Police picked her up late in the night.

That's how Manuela came into foster care. Since then she's dropped out of high school twice. After nearly two years in state custody without a green card, and therefore without the services for which she would have been eligible, she finally received it by mail in January. At least now Manuela and her children receive Medicaid.

Kyle's future looks darker. "When he calls all he does is cry," says Olivie, Kyle's mother. "I don't know what I'm supposed to do. I don't know who is supposed to help me." According to attorney Alan Mishael, few options are left. Odds are INS will deport Kyle either to the Bahamas, where he was born, or Haiti, where his roots are. Or where the state claims they are.

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