Children Forced to Serve as Their Own Attorneys in Immigration Court
Fernanda Santos, © 2016 New York Times News Service
TUCSON, Ariz. — After a long, scary trek through three countries to escape the gang violence in El Salvador, a 15-year-old boy found himself scared again a few months back, this time in a federal immigration court here. There was an immigration judge in front of him and a federal prosecutor to his right. But there was no one helping him understand the charges against him.
“I was afraid I was going to make a mistake,” the boy said in Spanish from his uncle’s living room, in a modest cinder-block house on the south side of this city. “When the judge asked me questions, I just shook my head yes and no. I didn’t want to say the wrong thing.”
Every week in immigration courts around the country, thousands of children act as their own lawyers, pleading for asylum or other type of relief in a legal system they do not understand.
Suspected killers, kidnappers and others facing federal felony charges, no matter their ages, are entitled to court-appointed lawyers if they cannot afford them. But children accused of violating immigration laws, a civil offense, do not have the same right. Immigration court is, in fact, the only court in the United States where the government has no obligation to provide lawyers for poor children and adults, legal experts say.
Having a lawyer makes a difference. Between October 2004 and June of this year, more than half the children who did not have lawyers were deported. Only one in 10 children who had legal representation were sent back, according to federal data compiled by the Transactional Records Access Clearinghouse, a research group connected to Syracuse University.
“We have looked for any legal system in the United States where children are required to represent themselves against a government lawyer — child welfare proceedings, juvenile delinquency proceedings. We have not yet found one, and the government hasn’t found one either,” Stephen Kang, a lawyer for the American Civil Liberties Union’s Immigrants’ Right Project, said in an interview.
“What we have in immigration court is an out-of-step system,” Kang said. “Children face federal prosecutors at adversarial court hearings that can have life-or-death consequences for the children involved.”
A class-action lawsuit, filed by the ACLU and other civil rights organizations, is trying to change that.
In a brief filed in the 9th U.S. Circuit Court of Appeals, where the federal government is contesting the court’s authority to hear the case, Justice Department lawyers insisted that “aliens in civil administrative removal proceedings have the privilege of being represented by retained counsel, but do not possess either a constitutional or statutory right to appointed counsel at taxpayer expense.”
Yet the government has also spent millions of dollars paying for lawyers to represent unaccompanied children in immigration courts — from modest programs in Baltimore and Tennessee to a $55 million effort by the Department of Health and Human Services in cities throughout the United States.
In remarks to the Hispanic National Bar Association in 2014, then-Attorney General Eric Holder said, “Though these children may not have a constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel.”
Kathryn Mattingly, a spokeswoman for the Executive Office of Immigration Review, a part of the Justice Department that oversees the nation’s immigration courts, reiterated the position in an interview this month, saying in an email, “in general, legal representation enhances the effectiveness and efficiency of immigration proceedings.”
Most of the children appearing in immigration courts are from Central America, escapees of the poverty and street violence that make El Salvador, Guatemala and Honduras some of the most dangerous countries in the world.
Two summers ago, the children captured headlines when they surged across the U.S.-Mexico border, surprising authorities and overwhelming a system that was not prepared to absorb them. They were detained in a Border Patrol station in McAllen, Texas, and a warehouse in Nogales, Arizona, sleeping side by side behind chain-link fences, on thin mattresses spread on the concrete floor.
A crackdown by Mexican authorities stemmed the flow, but the numbers are rising again, especially in the Big Bend region of Texas and around Yuma, Arizona, as smugglers have adjusted their routes to evade authorities.
The 37,714 Central American children apprehended along the southern border from Oct. 1 to July 31, or the first 10 months of the current fiscal year, was 33 percent higher than the 28,387 children caught during all of the 2015 fiscal year and not far from the 2014 record of 51,705, according to Border Patrol statistics.
The number of children in shelters changes daily, said Victoria Palmer, a spokeswoman for the Office of Refugee Resettlement. As of Aug. 1, 7,900 unaccompanied children were under federal government supervision, with 2,300 beds still available in the shelters, she said.
The challenge has been helping these children once they go to court.
“Our waiting list got to be so long, it wasn’t fair to put anyone else on a waiting list,” said Sara Van Hofwegen, a lawyer who represents unaccompanied children for Public Counsel, a public-interest law firm in Los Angeles. “We tell the kids, ‘Sorry, call in six months, call some other time.’ It’s pretty common they’ll call five, six places and none of them is accepting new cases.”
In 2014, Matt Adams, legal director for the Northwest Immigrant Rights Project in Seattle, joined Public Counsel, the ACLU and other civil rights groups in suing the federal government on behalf of nine Central American children, ages 10 to 17, who were representing themselves in deportation hearings. This year, a judge gave one of the children, an indigenous boy from Guatemala, an ultimatum: Find a lawyer or come to his next hearing prepared to petition for asylum on his own. (The lawsuit gained class-action status in June.)
The boy from El Salvador, whose family allowed him to be interviewed only if his name were not used because they did not want to jeopardize his pending asylum case, tried to hire his own lawyer. His uncle and legal guardian said one lawyer offered to take the case for $6,000; the family decided against paying when the lawyer seemed hesitant about the boy’s chances of success.
The uncle took the boy, his dark hair styled in a mohawk that droops along the nape of his neck, to his first immigration hearing in April, hoping to stand up and speak for him. But, the uncle said, the judge did not let him. So the boy plopped himself in the defendant’s chair, slipped on the headphones that piped in the English-to-Spanish translation, and shook his head as much as he could until the judge told him he had to speak.
On their way out, a lawyer from the Florence Immigrant and Refugee Rights Project, which has been representing young people facing deportation for years, handed the uncle a business card.
“Our overall goal is to represent every child that comes through immigration court,” said Lauren Dasse, the project’s executive director.
The lawyers gave 7,500 know-your-rights presentations to children in Arizona shelters last year, she said. Lawyers tell the children about the role immigration judges play and what happens in court.
They also handed the children business cards, at the shelters and outside courtrooms, and encouraged them to call.
The uncle said he was suspicious when the lawyer approached his nephew, and wondered why anyone would want to do this for free. Still, his nephew made an appointment.
On Aug. 5, the judge gave the boy an extension so his application for relief could be prepared and presented.
He will be back to court in October. This time, with a lawyer.
To Learn More:
U.S. Asylum Approvals for Immigrant Children Vary Greatly Depending on Filing Location (by Amy Taxin, Associated Press)
Immigrant Detention Breaks up Families, Enriches Private Prison Companies (by Danny Biederman and Noel Brinkerhoff, AllGov)
Federal Judge Orders Obama Administration to Stop Automatically Detaining Women and Children Seeking Asylum (by Noel Brinkerhoff and Danny Biederman, AllGov)
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