YourABA: October 2012
YourABA October 2012 Masthead

Be ‘kind’ by representing a child
in immigration court

Unaccompanied immigrant children are left to fend for themselves during removal proceedings because legal counsel is not guaranteed for them in immigration court. But no child should have to manage complex and often adversarial removal proceedings on his or her own, says Kristin Petri, managing attorney of the children’s program at the Rocky Mountain Immigrant Advocacy Network, outside of Denver.

This is why the American Bar Association Solo, Small Firm and General Practice Division has partnered with Kids in Need of Defense, or KIND, to recruit and train volunteer lawyers to assist unaccompanied children ranging in age from as young as 3 up to 18. KIND has created a pro bono movement of law firms and other organizations that strive to ensure that no child appears in immigration court without representation. To volunteer for a case, click here.

Working with children in a multicultural environment

1. Assume nothing. Always ask questions regarding specific behaviors, values, attitudes and perspectives.

2. Pay attention to any signs of spirituality or religiosity and respect a child or family’s closely held beliefs.

3. Don’t insist on eye contact. In many cultures, this is considered to be a sign of disrespect.

4. If you do not speak the child or the family’s language, find a skilled interpreter who’s not related to any party.

5. Seek out personal experience with the various cultural groups you might be serving. Keep in mind that if your only contact with a particular cultural group is in your capacity as a volunteer lawyer, then your exposure to that culture is necessarily limited.

6. Acknowledge the legacy and presence of cultural and racial bigotry and prejudice in the United States. Appreciate the difficulties and problems individuals and families encounter trying to live and thrive in a cultural setting that is at best different from their indigenous culture and at worst perhaps antagonistic toward their specific cultural orientation.

7. Explain the need for any and all information requested, and if possible, delay asking the most personal questions until the child or family has had time to understand the need for the information and has built a relationship with you.

Source: Kristin Petri, Rocky Mountain Immigrant Advocacy Network

Lawyers who require training on representing children in immigration court can access Immigration Hearings 101 training tools here. Training resources include a two-part video led by experienced immigration lawyers, a PowerPoint presentation, a training book and six free podcasts covering issues from asylum to voluntary departure.

Indeed, representing a child requires specialized knowledge, particularly when it comes to ethical considerations that may not exist when representing an adult. “Because state professional responsibility rules can vary in some aspects that are critical to representation of a child, please be sure to review the rules in your jurisdiction,” says Petri, in a training podcast on ethical issues in working with children and families.

Paramount to representing a child in immigration proceedings is an understanding of the lawyer’s role, Petri says. “To the greatest extent possible, representation of a child before immigration court should reflect zealous advocacy and furtherance of the expressed or stated interest of the child client as opposed to trying to assume a best-interest advocacy role,” she says. “For example, even when a child may have several strong defenses to deportation, if the child, after being carefully and thoroughly informed of her legal options and the spectrum of possible consequences and outcomes of those options, still insists it is her wish to return to her country of origin, the attorney may not pursue a course of action contrary to her wishes.”

If a child is ambivalent or unable to articulate goals, the lawyer should pursue the child’s legal interests, which may be informed by assessments of the child’s best interests, Petri says. “It is more common than not for the child’s stated and best interests to align, but it is critical that the distinction not be blurred or forgotten throughout the course of representation,” she says. “The best way to ensure this is through the creation of a clear, open and trusting attorney-client relationship.”

Communication is the cornerstone of a successful relationship between the lawyer and the child client and requires the lawyer to engage in intentional and thoughtful exploration of who the young client is and what his or her goals are, Petri says. Discovering the child’s interests, favorite foods and music, vocational goals, family composition and history, and even daily routine can help a child client feel better understood and respected.

Pro bono attorneys often report that building a trusting relationship with a child client is one of the most rewarding and challenging aspects of their cases,” Petri says.

Child clients may be distrustful for a whole host of reasons, and their initial interaction with their lawyer may only tell a fraction of their real story, she adds. “Rapport-building occurs over time and involves more than just repetitive questioning about factual background that is often the basis for a defense to remain in the United States but also can be very painful for the child to recall and relive,” Petri says.

Not only can relationship-building be challenging in these cases but so can protecting the child client’s confidentiality. That’s because so many individuals are involved in a case: for instance, a federal or local case worker, their supervisors, a court-appointed special advocate, a foster parent, group home staff and supervisors, and doctors, just to name a few, Petri says. It’s “all too easy to slip into a mode of working with the other service providers around the child, and child clients may actually presume that this is the norm,” she says. “Obtaining informed consent sparingly and specifically from the client to release information needed to assist in the course of the representation is critical to moving many cases along, but remember a child’s relationship with these other providers may end or be disrupted suddenly. Frequently review, update and revoke releases as needed and be sure to frequently update the client on your interactions with others.”

Between the various service providers, family members and children, it can be common for conflicts of interest to arise as well, Petri says. A teenager, for example, may have diverging goals and interests from his guardian’s. “There may be other times when a government entity is at odds with a child’s wishes,” she says, “perhaps in a situation where child protection believe it’s in the best safety interest to remain in the United States … but the child is homesick for a recently deported parent and life like it used to be in their country of origin, no matter how difficult that life was.”

When cases are so emotionally charged, a little sensitivity can go a long way. A lawyer who is cognizant of cultural differences (see sidebar) and a child’s stage development, for instance, can yield better results during interviews, according to Petri.
The client’s age will affect how he or she interprets and answers questions, Petri says. Between the ages of 6 and 11, a child will interpret questions literally and will only answer the question you ask. “Thinking is not hypothetical in this age frame,” she says. “Children have limited ability to think about the future and limited ability to answer what-if questions.”

With children ages 12 and up, Petri says, “Their answers to questions may be framed with what should have happened or what could have happened. They may focus on their own needs exclusively and they may seek escape when feeling helpless. Rebellion is also very common among teenagers and a fair amount of resistance, so you may have to spend considerable time in building rapport with a teenage client.”

No matter the child’s age, it’s important to use clear language, especially in interviews. “Explain all legal jargon, even basic concepts like parties, charges, case, guardian, hearing and so on,” Petri says. And avoid complicated relationship words. “Instead of talking about stepfathers, ex-wives, mom’s boyfriend, maternal grandfather, use names: Joe, Maria.”

Avoid abstract concepts, like abuse, control, discipline and custody, Petri says. “These are hard concepts for a child to understand in their native language, much less in a foreign language,” she says.

“Use the child’s words and ask her to describe further,” adds Petri, about interviewing a child client. “And allow time for the child to answer. Count to 10 before offering to rephrase the question or asking a new question.”

Finally, says Petri, “always reassure the child again and again, and reassure rather than bargain. ‘Is this hard to talk about? You’ve been working really hard. I’d like to ask you a few more questions …'"

Try as much as possible to create a safe and caring environment for the child, Petri says. Perhaps that means meeting in the child’s community or home rather than on the 20th floor of your office building.

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