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June 18, 2015 Articles

Unaccompanied Child Immigrants: Representation Needs and Efforts

By Monique Sherman

If you have turned on the news recently, chances are you have heard about an unprecedented "surge" in the number of unaccompanied minors and families from Central America entering the United States at the southern border over the past year. Almost 70,000 unaccompanied minors entered the United States primarily from El Salvador, Guatemala, and Honduras in 2014. If they are apprehended at the time of entry or thereafter, they are generally placed in removal (deportation) proceedings in immigration court. Many of these children are eligible for special immigrant juvenile status (SIJS) or asylum. But, they need attorneys to assist them in presenting these claims. Without an attorney, unaccompanied children are ordered removed approximately 90 percent of the time. With an attorney, over 70 percent of such children are allowed to stay in the United States. From a process point of view, an influx of so many unrepresented respondents in immigration courts around the country has overwhelmed the courts. In an effort to ensure the process runs smoothly, Vice President Joe Biden urged pro bono legal assistance for children in August 2014.

Around the country, the legal community has developed various approaches to meeting the intense need for representation among young people in removal proceedings. Here, readers will find a short description of the legal help that is needed, two models for providing that assistance, and resources available for volunteer attorneys who represent unaccompanied minors and those who would like to become involved.

The Need for Legal Representation
Most young people who arrive in the United States and who are placed in removal proceedings will apply for one of two forms of relief: SIJS or asylum. (For a detailed summary of each claim, see Annie Chen, "An Urgent Need: Unaccompanied Children and Access to Counsel in Immigration Proceedings," 16 Children's Rts. Litig., no. 4, Summer 2014, at 2.). They need attorneys to represent them in immigration court so that they can obtain continuances while they work on obtaining legal counsel and to help them pursue the appropriate form of relief. The following descriptions of those processes are merely an overview of what one of these young people needs to do in order to stay in the United States. Each is the subject of in-depth trainings offered by various legal services providers. It is no wonder that children who came here without even their parents need representation in order to have a chance of success in this process.

Removal proceedings. Young people who have arrived in the United States since June 2014 often face court hearings every few weeks (in stark contrast to the typical immigration court continuance, which can be months, if not years long). The length of continuances between court dates varies by jurisdiction, but in most jurisdictions, individuals who have arrived since June 2014 have been placed on "surge" dockets with frequent court appearances. At these court hearings, attorneys are needed to assist respondents to request continuances in order to obtain ongoing counsel. After ongoing counsel is obtained, and while such counsel pursues the appropriate claims for relief, the limited pro bono counsel appears in court at the continued hearings and/or requests that the court administratively close or terminate the proceedings while claims for relief are adjudicated.

Special immigrant juvenile status (SIJS). This is a special form of relief for young people who were abused, abandoned, or neglected by one or both parents with whom reunification is therefore not a viable option. In order to apply for SIJS, the child must obtain a state court order placing him or her in the custody of an individual or agency. The child also must obtain special findings from the state court verifying that the child has been abused, abandoned, or neglected by a parent, that reunification with that parent is not viable, and that returning to the child's home country is not in his or her best interest. Once the child has obtained these findings, he or she can apply to the U.S. Citizenship and Immigration Services (USCIS) for SIJS. If the immigration court terminates removal proceedings, the child can also apply to adjust immigration status to that of a lawful permanent resident. If proceedings are not terminated, the child can still apply to the court to adjust his or her status.

Asylum. Many of the young people who are part of the "surge" are additionally, or alternatively, eligible for asylum. Individuals who have a well-founded fear of persecution in their home countries on the basis of race, religion, national origin, political opinion, or membership in a particular social group are eligible for asylum. Most of the young people in this wave have fled intense violence by the gangs, such as the MS-13, that are prevalent in Central America. Those who were targeted due to a specific characteristic or due to their own behavior can claim persecution on the basis of membership in a particular social group.

Although adults must pursue these claims in court in an evidentiary hearing, children who arrived unaccompanied may submit the asylum application for adjudication to USCIS. Instead of an evidentiary hearing, they have an interview with an asylum officer in a nonadversarial setting.

Two Responses

New York City. In New York, a coalition of legal services organizations has staffed the surge dockets at immigration court on a daily basis. In addition, the Legal Aid Society, The Door, and Make the Road are operating a pro bono model that brings in volunteers to screen clients before they get to the courtroom. These screenings are used to refer the potential clients to the appropriate legal services organization or pro bono counsel. These pro bono opportunities are bite-sized, given that they only entail the initial screening.

Other organizations, such as the New York Legal Assistance Group and New York Immigration Coalition, are hosting regular legal clinics where legal services attorneys, together with pro bono volunteers, perform legal intake and help clients understand their potential legal avenues for relief from deportation. Again, this is a one-time pro bono opportunity so that even lawyers with limited time can get involved and assist with the crisis.

San Francisco. In San Francisco's Immigration Court, unrepresented respondents have long been assisted by the San Francisco Bar Association's (BASF's) Attorney of the Day Program. The Attorney of the Day Program is an application-only program and is intended to be staffed by attorneys with significant immigration experience. When the "surge" dockets began in San Francisco on very short notice, the BASF stepped up recruitment efforts among private immigration attorneys to staff these dockets. Additionally, attorneys from legal services organizations, such as Centro Legal de la Raza and Community Legal Services in East Palo Alto (CLSEPA), among others, began staffing specific dockets to help the community. These attorneys perform legal intake with the respondents, represent them in their master calendar hearings that day, and help ensure they have the appropriate referrals to obtain ongoing representation.

Additionally, while the legal services providers continue to refer clients to pro bono counsel for assistance with their SIJS and asylum applications, these organizations have also formed a coalition funded by the City of San Francisco. Through this coalition, the organizations have been able to hire additional attorneys to represent this population of unaccompanied minors in their removal proceedings and applications for relief, and to do the work necessary to refer such clients to pro bono counsel.

Many of the legal services organizations that handle immigration cases and refer them to pro bono counsel additionally host regular intake workshops or legal clinics at which prospective clients may come to be screened for legal relief and to be referred to counsel.

In June 2015, San Francisco's Immigration Court implemented the preexisting plan for its new juvenile docket. Young people who entered the country previous to June 2014 have been placed on this docket. CLSEPA is coordinating a pro bono volunteer effort to meet with young people prior to their court appearance, perform legal intake, and represent them on a limited basis at the court hearing.

A Note about the Need for Representation of Adults with Families
In addition to the large number of unaccompanied minors who need representation, there are thousands of children who made this same journey north with their parents, for many of the same reasons. Some of these families are detained, sometimes for months, at one of the family detention centers. Congressional leaders have expressed concern around conditions of detention for mothers and children. See Elise Foley, "Backlash Against Mass Family Immigrant Detention Grows as Senate Democrats Pile On," Huff Post Politics (June 2, 2015). All of these families, detained or not, must pursue their asylum claims in court, where they have also been placed on dockets with accelerated schedules. This population has even less access to legal services than unaccompanied immigrant children.

Throughout the country, legal services organizations and pro bono attorneys have been working around the clock to ensure that as many of these young people as possible have access to representation. Private funders and federal, state, and local governments in a variety of locations have stepped up to fund legal services organizations in recognition that the expertise at those organizations is what enables their work to be leveraged by pro bono volunteers.

Unfortunately, many young people are still in need of representation to avoid being sent back to dangerous situations in their home countries. Attorneys interested in volunteering to represent these clients should explore the resources below to find out which organizations in their local area have cases to refer. Attorneys can indicate their interest in volunteering on the Immigrant Child Advocacy Network website, and can search for organizations on the Unaccompanied Children Resource Center.

In addition, a Yammer website has been launched specifically to link lawyers around the country representing unaccompanied immigrant children—whether full-time or on a pro bono basis, so that they can ask questions and share information. 

Keywords: litigation, children's rights, unaccompanied child immigrants, immigration court, removal proceedings, deportation, special immigrant juvenile status, asylum, legal services organizations, pro bono opportunities

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Monique Sherman – June 18, 2015