Amid growing violence in Central America and Mexico, thousands of unaccompanied immigrant children have sought safety and stability in the United States over the past several years. After reaching a peak in the summer of 2014, the U.S. saw a slight decrease in the numbers of such children coming to the U.S. last year; however, fiscal year 2016, which began on October 1, 2015, has thus far seen another dramatic increase in children from El Salvador, Guatemala, and Honduras crossing the southern border. But one thing that has not changed is the lack of legal representation for many of these vulnerable children.
After being apprehended at the border, unaccompanied children are placed in removal proceedings in immigration court, where an Immigration Judge will determine whether the child can remain legally in the U.S. or will be deported. Though the federal government is represented in these proceedings by trained, experienced Immigration and Customs Enforcement (ICE) attorneys, individuals in removal proceedings, including children, are not provided an attorney to represent them – the Immigration and Nationality Act (INA) currently provides noncitizens the right to legal representation, but “at no expense to the Government.” Thus, if children cannot afford to pay costly attorneys’ fees or are unable find pro bono representation on their own, they will be forced to defend themselves in these extremely complex proceedings.
Given the sheer numbers of children in need of representation, nonprofit legal service providers have been stretched beyond capacity in recent years, struggling to meet the demand for low-cost or free legal services. While the federal government currently funds some initiatives to increase representation, such as the Vera Institute of Justice’s Unaccompanied Children Program and the more recently created justice AmeriCorps, the need is still greater: despite the best efforts of attorneys and nonprofits around the country, almost 50% of all unaccompanied minors are unrepresented by counsel during their removal proceedings in immigration court. 89.4% of children ordered removed (deported) in the last two years did not have any attorney; that number climbs to 96.6% of children ordered removed in absentia (in other words, ordered removed because they did not appear at their hearing).
And having an attorney is often the deciding factor in whether a child is able to remain in the U.S. legally. Most unaccompanied minors who qualify for immigration relief apply for asylum and/or Special Immigrant Juvenile Status (SIJS), two forms of legal status that involve very complex requirements and application processes.
In order to be granted asylum, individuals must demonstrate that they fear persecution in their home country on account of their race, religion, nationality, political opinion, or membership in a particular social group. Because most unaccompanied children’s asylum claims tend to be based on domestic violence or child abuse, or persecution by vicious gang members, their claims often rest on them proving that they fear persecution on account of their membership in a particular social group, which involves an even higher evidentiary burden. This category of asylum applicants must show that they are part of a social group that can be defined with “particularity” and that has “social distinction” (legal terms of art that are still being fought over in court cases around the country), and that their home country’s government is either unable or unwilling to control the non-state actor persecuting them. Not only do they have to sufficiently complete the asylum application form, but they have to present incredibly complex legal arguments demonstrating how they meet each eligibility requirement, supported by expert testimony, country conditions reports, and documentary evidence from their own lives. Obviously this is a challenging task for anyone to accomplish without the assistance of an attorney with specialized training – whether an asylum seeker has legal representation has been found to be the single most important factor determining the outcome of the case. Imagine how much more difficult it becomes for a minor child who entered the U.S. without his or her parents, most likely does not speak English, and has been traumatized by so much in such a short lifetime.
SIJS, on the other hand, is a form of relief available to children who are unable to reunify with one or both of their parents due to abuse, abandonment, or neglect. But before a child can apply for SIJS and eventually lawful permanent resident status before U.S. Citizenship and Immigration Services (USCIS), s/he first has to be declared dependent on a state “juvenile court,” usually through guardianship or custody proceedings, and obtain a predicate order making certain special findings about the child and his or her parents. It is impossible to apply for SIJS without attaching a certified copy of that predicate order from state court, but it is highly unlikely that a child and his or her guardian would be able to navigate that process without legal representation. While most state family and juvenile courts have resources in place to assist individuals with simple guardianship or custody cases pro se (without an attorney), the vast majority of those resources will not include assistance with obtaining an SIJS predicate order. Many state court judges are unfamiliar with, or sometimes even hostile towards, SIJS and believe that they cannot or should not make the requisite findings (despite the fact that Congress designated state courts as the only appropriate bodies to do so); others have afforded different interpretations to amendments made to federal immigration law in 2008, so that more legal arguments may be required before the state court. Accordingly, it is very unlikely that a state court judge would spontaneously issue an SIJS predicate order to a child without it being requested and explained by an attorney. Additionally, while a child can apply for SIJS before USCIS until age 21, the laws governing the maximum age for state courts to take jurisdiction over guardianship or custody cases varies by state and sometimes even by type of proceeding – nuances that a non-English-speaking child without an attorney is unlikely to identify.
Thankfully, more and more government officials are recognizing what attorneys and advocates have known for years – these children need and deserve greater access to legal representation. Last month, a group of Democratic senators introduced the Fair Day in Court for Kids Act of 2016, which was then introduced in the House of Representatives by another group of Democratic lawmakers shortly thereafter. The law would provide counsel, “at government expense if necessary,” to all unaccompanied children in removal proceedings, as well as to other vulnerable populations such as those with disabilities, victims of “abuse, torture, or violence,” and others as necessary to ensure fair and efficient proceedings. Additionally, it seeks to “improv[e] immigration court efficiency and reduc[e] costs” by automatically providing all noncitizens in immigration court with access to relevant documents in their government file, a huge improvement over the current process of having to file and wait months for the results of a Freedom of Information Act (FOIA) request for each individual in proceedings. The bill also provides for increased access to “Know Your Rights” presentations and counsel to noncitizens in immigration detention facilities, and creates a pilot program for case management services to vulnerable populations as well. Advocates enthusiastically welcomed the bill, but it of course remains to be seen whether it will actually be enacted into law.
The proposed law follows the filing of a lawsuit in federal court in Seattle in 2014. J.E.F.M. v. Lynch (originally J.E.F.M. v. Holder) is a nationwide class action lawsuit arguing that the government’s failure to provide legal representation to unaccompanied children in removal proceedings violates both the INA and the Constitution’s Fifth Amendment guarantee of due process, and seeking to require the government to provide counsel to these children. The suit is ongoing, but sworn testimony from the proceedings recently made headlines when Assistant Chief Immigration Judge Jack Weil stated in a deposition that he has “taught immigration law literally to 3-year-olds and 4-year-olds.” Legal and child development experts scoffed at the notion that such young children could effectively represent themselves in court, and three former Immigration Judges filed a brief in the case this week, pointing out that “[a] typical three-year-old cannot tie her shoes, count to 100, peel a banana, or be trusted not to swallow marbles.” Immigration lawyers have been posting (adorable) videos of their own young children trying to “defend” themselves, further demonstrating the nonsensical nature of the judge’s claims.
Whether or not the judge’s comments were “taken out of context,” as he claims, they highlight the absurdity of the situation these children are in. In recent years, steps have been taken to provide representation to other vulnerable noncitizens through the Executive Office for Immigration Review’s National Qualified Representative Program (NQRP), which provides representatives to certain individuals found to be mentally incompetent to represent themselves in removal proceedings. In an ideal world, many would like to see all noncitizens provided counsel in removal proceedings. And in fact, in a Senate Judiciary Committee hearing following Judge Weil’s remarks, Senator Patrick Leahy said he had “never heard such a stupid, stupid, stupid thing from a judge or anyone else” and asked Attorney General Loretta Lynch why the Department of Justice did not simply halt hearings for unrepresented children; she responded, “[w]e may find ourselves there. . . . And I think we’re looking at various ways to get legal counsel appointed in every situation.”
Though that ideal world may still be far in the future, there is a growing consensus that representation should at least be provided to the most vulnerable populations appearing before the immigration courts. Teenagers and toddlers should not be sent back to their deaths without a meaningful opportunity to defend themselves, and they cannot do that on their own.