With Few Lawyers, Child Migrants Fight Alone in Court to Stay in the U.S.
For the thousands of unaccompanied, undocumented minors fleeing brutal violence in Central America and attempting to enter the U.S., making the case to stay isn’t easy. Because they aren’t guaranteed a lawyer, about half of these children are forced to navigate the complex immigration system alone. Now, a class action lawsuit is challenging that policy. NewsHour’s Ivette Feliciano reports.
IVETTE FELICIANO: The girl we agreed to call Jessica was only 14 when she said goodbye last year to her grandmother, the person who raised her back in El Salvador. her journey through Mexico to Texas took a month. For her safety, we agreed to conceal her identity.
JESSICA: I felt nervous traveling, because I had no idea what could happen to us, and I felt scared at the same time.
IVETTE FELICIANO: Jessica and her grandmother had worried what would happen if she didn’t leave. Her uncle, a police officer in her home town of Zacatecoluca, had refused to hand over guns and uniforms to members of a notorious drug gang.
In retaliation, Jessica says, the gang began following her to school and home and threatened to kidnap her and other family members who lived with her.
JESSICA: It was just panic. We didn’t want to leave the house. In my town, in one week there were 29 homicides by gangs.
IVETTE FELICIANO: Jessica decided to flee to try to rejoin her parents who had left for the U.S. when she was just a toddler. They had found steady work in California and had been sending money back ever since.
In January 2014, without proper documents, Jessica and three relatives — all young women — left El Salvador together.
Jessica says during their journey, they often had no food and no place to sleep.
When they arrived in Hidalgo, Texas, border patrol agents immediately detained them.
JESSICA: I felt scared and desperate. I just wanted to get out of the room to see the sun. I felt really nervous, because I had no idea what would happen to me.
IVETTE FELICIANO: The next day, border agents transferred Jessica and the two teenage relatives with her to the custody of the Office of Refugee Resettlement, known as ORR.
That’s a branch of the federal Department of Health and Human Services, tasked with providing emergency supplies and services to immigrant minors unaccompanied by adults who arrive in the U.S.
ORR placed Jessica in a youth shelter in Texas for a month where she learned deportation proceedings against her had already begun and that she’d soon have to appear in court.
JESSICA: I didn’t know what I would do. What if they ask me something? How would I respond? I felt so scared to go in front of a judge.
IVETTE FELICIANO: ORR gave Jessica a list of lawyers who might donate their time, known as working pro-bono, but for eight months, all the lawyers she contacted said they were too busy to help.
Unlike criminal court, in immigration court, the federal government is not required to provide lawyers to defendants who cannot afford them — not even unaccompanied minors like Jessica.
But whether or not they have a lawyer makes a big difference in immigration court.
Seventy-three percent of immigrants under 21 with lawyers are allowed to stay in the U.S. That’s five times higher than the 15 percent of children without lawyers who are allowed to stay.
So far this year, there have been 19,000 immigrants under 21 who filed new requests to stay, and 62 percent of them don’t have a lawyer.
Ahilan Arulanantham, an attorney for the American Civil Liberties Union, began representing Jessica last year as a plaintiff in a class-action lawsuit brought by the ACLU and other groups against ORR, Immigration and Customs Enforcement, and the Departments of Justice and Homeland Security.
AHILAN ARULANANTHAM: The notion that a 10-year-old boy from El Salvador who can barely speak any English can advance the constitutional arguments that trained lawyers who have gone to law school would make in federal court is absurd.
IVETTE FELICIANO: The plaintiffs say requiring minors to appear in court whether they have a lawyer or not violates the constitution’s Fifth Amendment right to due process.
AHILAN ARULANANTHAM: We’re talking about children who have so much at stake, because so many of them are fleeing such severe violence and other forms of persecution, the government pays for a lawyer to prosecute the child. As a matter of fairness, we should ensure that the child has a lawyer as well.
MARK KRIKORIAN: The lawsuit is frivolous. It’s merely a political stunt.
IVETTE FELICIANO: Mark Krikorian of Washington’s Center for Immigration Studies, which advocates tighter border security, thinks the ACLU lawsuit is without merit.
MARK KRIKORIAN: If you’re an American in bankruptcy court, in foreclosure proceedings, in divorce court, you don’t get a lawyer paid for by the taxpayer. Why are illegal immigrants really better than Americans? They’re deserving of more rights and more taxpayer funds than Americans? Because that’s what the ACLU is saying.
IVETTE FELICIANO: The Department of Homeland Security reports that most unaccompanied minors do come from some of the most dangerous countries in Central America, including Mexico, El Salvador, Guatemala and Honduras.
This 19-year-old fled the violence in Honduras last year. We agreed to call him Jacob for this report. He says he has no family to return to, because his father was murdered by a drug gang and his mother has been in a Honduran prison his entire life.
JACOB: In my country people like me have one destiny, which is to end up in a gang. You’re basically like a prisoner because they’re recruit you by force. It’s a death sentence.
You join the gang, you get killed. You don’t join, they kill you. That is the life for young people. You’re basically playing with your life when you decide to come. But we did it because we truly are fleeing much worse back home.
IVETTE FELICIANO: But Jacob didn’t get past the Texas border and soon found himself in deportation proceedings without a lawyer.
A spokesman for ORR says it invites legal experts to explain — in Spanish — to all unaccompanied minors their rights and court procedures, allocating $9 million for the effort.
LEON FRESCO: Your honor it’s incredibly easy.
IVETTE FELICIANO: In a federal court hearing last year, Deputy Assistant Attorney General Leon Fresco argued, if unaccompanied minors feel their cases were handled unfairly due to lack of representation, they can appeal the decision by filling out a simple one-page form.
Fresco also said ordering the government to provide lawyers to unaccompanied minors without proper funding from Congress would send the message that, quote: “The border is completely open to children under 18.”
The Justice Department has requested $50 million to pay for lawyers for unaccompanied minors, but a U.S. senator blocked it.
Alabama Republican Richard Shelby chairs the U.S. Senate subcommittee which oversees the Justice Department’s budget.
SEN RICHARD SHELBY: There’s a lot of ways to represent due process of the children as they go through the immigration courts and so forth. Pro-bono and all kind of groups of lawyers that are tied into the immigration to do this every year. To add $50 million more, hardworking taxpayers’ money to that is something I would not do.
IVETTE FELICIANO: Instead, Sen. Shelby wants to see a greater focus on the tightening of our borders.
SEN. RICHARD SHELBY: We all have sympathy and hope and want other people in the world to be well. Starving children, starving adults, where they’re oppressed and where they don’t have opportunities we have. But we can’t take everybody in the world.
IVETTE FELICIANO: So in your opinion, who qualifies for asylum?
SEN. RICHARD SHELBY: That would be, it wouldn’t be up to me. We’ve had millions and millions of legal immigrants and political refugees.
But we’ve also had too many illegal immigrants. And if we don’t protect our borders, and if people don’t have a respect for our laws, whether they live here or they’re coming here, we’re going to have a nation of chaos.
IVETTE FELICIANO: Shelby does support allocating funds for more judges to process unaccompanied minor cases faster. Currently, there is a backlog of 456,000 immigration cases involving minors and adults.
Each case takes, on average, 16 months to complete, according to Syracuse University researchers, who also found in cases where immigrants prevailed, the cases took longer — an average of 30 months.
SEN. RICHARD SHELBY: “We need to undo the bottleneck. But we need to make sure that our laws are obeyed, that our borders are protected and that we do not waste taxpayers’ money.
I think it goes right back to these people, whether children or adults, have come here illegally. And the sooner we process them and send them back home, the better off we are.”
IVETTE FELICIANO: But without a lawyer, the ACLU’s Ahilan Arulanantham says unaccompanied minors who don’t speak English can’t make sense of the complex set of relief options available.
AHILAN ARULANANTHAM: The federal courts have repeatedly compared the immigration code to the tax code in its complexity. It’s been called like a labyrinth, like a maze.
And that’s not an understatement, having done immigration-related work for 15 years. Even I don’t understand many, many aspects of the immigration law.
IVETTE FELICIANO: Jessica is one of 27,000 unaccompanied minors who were released to U.S.-based relatives last year, while their deportation cases were pending.
She was able to reunite with the parents she had not seen since she was a toddler in Los Angeles. While her mother remains undocumented, her father, a truck driver, has a Visa to work in the U.S. He found a pro-bono lawyer to take Jessica’s case.
JESSICA: If I were deported, I’d be terrified to go back. All of my dreams, my plans, would crumble. I don’t know what the gangs would do to me.
IVETTE FELICIANO: Jessica’s next hearing is later this month.
Source: CARECEN Washington.