Vol. 39, No. 5

Unaccompanied but not unrepresented: Bar associations, lawyers assist immigrant children

by Robert J. Derocher

Colorado Bar Association President Charley Garcia needed a firsthand look.

He was researching the issue of unaccompanied immigrant children pouring into the courts seeking U.S. residency last fall when he entered Immigration Judge Mimi Tsankov’s Denver courtroom to view the situation himself. It did not take long for Garcia to be convinced that there was a serious problem—and that the bar association could help solve it.

“To see these children in a courtroom, by themselves, facing a plaintiff’s attorney for Homeland Security and a sitting judge in her official robes, you can’t help but think: ‘There is something wrong with this,’” Garcia says. “I think everybody understands what a problem this is.”

Soon thereafter, Garcia took the unusual step of asking the bar’s executive council to approve a $50,000 matching grant to help provide legal representation and related services for unaccompanied immigrant minors in Colorado. Once the council approved the request, he began writing columns and appearing at events to promote the efforts.

“I expected some pushback, but I haven’t seen it,” Garcia says. “It’s about the children—much more than it’s about immigration.”

It was a story that made international headlines last year. Nearly 70,000 Unaccompanied Alien Children were detained at the United States’ southwest border from October 2013 to October 2014, according to U.S. Customs and Border Protection. And in the legal fallout, more than 400,000 total cases—not just those involving the surge in children—are believed pending in immigration courts across the country as the United States launched required removal proceedings, according to the Unaccompanied Children Resource Center.

A special American Bar Association working group launched last fall by ABA President William C. Hubbard has joined forces with immigration and child advocacy organizations to promote changes in how the federal government handles such cases, as well as ways to help the children through the legal system. At the same time, many bar associations have also initiated programs to encourage lawyers to provide pro bono representation for unaccompanied children, along with other assistance.

Although border detentions have eased, Hubbard and others say there remains a pressing need to provide representation for unaccompanied immigrant minors. That is why the efforts of bar associations—both nationally through the ABA and locally through state and metro bars—are critical not only to ensure fair representation, but also to provide a humanitarian helping hand for immigrant children.

‘It’s a fairness issue’

Like Garcia, Hubbard got a better inkling of the severity of the immigration situation when he saw it up close, visiting a federal detention center and an immigration court in Texas last summer with ABA immediate past President James Silkenat and other ABA leaders. Many state courts—which often handle special immigration cases involving abused juveniles—have also been affected by the influx.

What they found were thousands of children—some as young as toddlers—trying to flee increasingly dangerous situations involving abuse, neglect, sexual assault, human trafficking and drug and gang violence. More than three quarters of the children detained by U.S. Customs and Border Patrol in 2013-14 came from Honduras, El Salvador and Guatemala—numbers 1, 4 and 5 in worldwide homicide rates, respectively.

What they also discovered was that there was no government requirement to provide counsel for children facing mandatory removal proceedings, and that there was a dramatic difference in outcomes for those who received lawyer representation compared with those who didn’t: Seventy-three percent of those with lawyers were allowed to stay in the country, while only 15 percent of those children without representation were allowed to remain, according to Hubbard.

“These young people were determined to go through adverse and dangerous situations. They just yearned for safety, as much as anything else,” Hubbard says. “It’s a fairness issue. It’s a due process issue.”

It is also an issue that is far from confined to the border crossing states of Texas, New Mexico and Arizona. Many detained children were placed with sponsoring family members throughout the country in areas with significant Central American populations to await hearings. Texas was the state receiving the most of the more than 53,000 sponsored children in 2013-14, followed by New York, California, Florida, Virginia and Maryland. More than 5,000 children were released to sponsors in the suburbs of Washington, D.C., and another 3,000 each were released in Los Angeles County and in Nassau and Suffolk counties on New York’s Long Island.

As stories of crowded immigration dockets and unrepresented children grew, Hubbard established the ABA Working Group on Unaccompanied Minor Immigrants. Recognizing that the issue cut across multiple disciplines, he appointed Mary Ryan, chair of the ABA Standing Committee on Pro Bono & Public Service, and Christina Fiflis, chair of the ABA Commission on Immigration, as co-chairs of the working group.

The immediate goal, they say? Finding pro bono legal representation for as many children as possible.

“There’s still an enormous number of children not being represented,” Ryan says. “A lawyer with any background can do better than a child who has no understanding whatsoever of the legal system.”

To that end, the working group has made education about the immigration issue and training of lawyers for pro bono service a top priority. And they’ve reached out to other ABA groups and committees for help. The ABA Solo, Small Firm and General Practice Division and Business Law Section are working with the Angelina Jolie/Microsoft-backed group KIND (Kids in Need of Defense) to train and match pro bono lawyers with unrepresented children in immigration cases. The ABA Section of International Law set up similar training sessions in Washington, D.C., and New Orleans in April.

The working group also includes members from other ABA groups: the Commission on Hispanic Legal Rights and Responsibilities, Section of Individual Rights and Responsibilities, Section of Family Law, Section of Litigation, Commission on Youth at Risk, Section of International Law, Business Law Section, and the Solo, Small Firm and General Practice Division. Several of those groups have also contributed money that will be used to fund the hiring of a short-term professional consultant who will advise the working group about best practices and procedures to advance its mission.

In addition to KIND, the ABA is working with other immigrant advocacy groups across the country not only to find volunteer attorneys, but also to lobby in Washington for changes in funding and policy that would require representation for unaccompanied immigrant children and add more judges in busy immigration courts.

“I think this is the ABA at its best,” Hubbard says. “We’ve been able to pull together some talented people throughout the organization—and it’s been a collaborative effort [with other organizations].”

Collaborative efforts, successful programs

The collaboration, cooperation and spirit of growing volunteerism at the national level to address the issue of unrepresented immigrant children is also an emerging theme at state and local bars. Several such bars have implemented or expanded programs to meet growing needs in their communities.

In Colorado, the CBA rarely provides funding for legal outreach or service organizations, Garcia says—that is usually left for the bar foundation. When the Colorado Chapter of the American Immigration Lawyers Association and the Rocky Mountain Immigrant Advocacy Network approached Garcia for the bar’s help in fundraising, it was different. Once Garcia and the CBA’s executive council saw the plight of unaccompanied immigrant children, the matching grant program was arranged.

“It seems like when attorneys see what it looks like for a child to go through these things in court alone, it is the most powerful motivator for them to get involved,” says Abbie Johnson, managing attorney for the RMIAN Children’s Program. “Some [lawyers] say after a case that they want to take on another.”

With more than 30 new children’s cases coming to the Denver immigration court each month, RMIAN and AILA have helped train more than 100 lawyers, mainly in the Denver area and many with little or no immigration or family law background, she adds. The groups appealed to the CBA for financial help to hire a pro bono coordinator, add more training materials, bolster mentoring opportunities and increase awareness in the legal community.

With CBA members helping lead the charge, AILA and RMIAN were more than halfway toward their $50,000 fundraising goal in mid-April, Garcia says, with hopes that it will be surpassed.

The Pro Bono Resource Center of Maryland, the pro bono arm of the Maryland State Bar Association, attracted more than 150 lawyers to its first training session last fall, part of the center’s Unaccompanied Children Pro Bono Project, says PBRC Deputy Director Jennifer Larrabee. The center has been actively working with immigration service organizations throughout the state, and also recently started a Listserv to link experienced immigration attorneys with volunteers.

“The initial response was great. Something about these cases touched attorneys, and it resonated with them,” says PBRC Executive Director Sharon Goldsmith. “We have a legal process here, and these kids need representation.”

In Nebraska, where more than 350 unaccompanied immigrant children were released to sponsors, the Immigration Section of the Nebraska State Bar Association has been working with groups such as Catholic Charities of Omaha, Justice for Our Neighbors-Nebraska and Lutheran Family Services of Nebraska to assist children in legal cases and with a variety of related issues, says Shane Ellison, chair of the Immigration Section and director of JFON-NE.

One of the most successful programs, he says, is the “Attorney of the Day,” which brings volunteer attorneys (who are alerted in advance by a Nebraska state bar and local AILA Listserv) to court in Omaha to represent unaccompanied children. A $10,000 grant was used to launch the program, which helped 122 children in 2014.

“We try to the best of our ability to zealously represent them,” Ellison says. “The demand is so great, we’re always trying to do more.”

Hubbard, along with Ryan, Fiflis and the ABA working group, hope that the collaboration—inside and outside the legal profession—continues to blossom, leading to solutions to the unaccompanied immigrant minor crisis in the courts. In particular, they’re optimistic that the ABA can help state and local bar leaders create successful programs like those in Colorado, Maryland, Nebraska and other locales such as New York, San Francisco and Dallas.

“It’s not dependent on how one feels politically about immigration,” Fiflis says. “We need as many volunteers as we can get and to remove as many obstacles as we can. It’s absolutely critical that [the children] feel that they’re being treated fairly.”