Representing Unaccompanied Minors in Deportation Proceedings

An unaccompanied child is defined as a child who is under the age of 18 at the time of entry into the United States and has no parent or legal guardian available to provide care or custody. When I began working with KIND in 2009 in our Baltimore office, between 7,000 and 8,000 unaccompanied children entered the country annually. The number of unaccompanied children in the country has skyrocketed in the past few years. According to the Office of Refugee Resettlement (the component of the U.S. Department of Health and Human Services tasked with providing shelter and care for unaccompanied children until an appropriate caretaker or “sponsor” can be identified), 57,496 children were processed in fiscal year 2014, an unprecedented number. After dropping in 2015, but still significantly higher than historical levels, the number of children is rising once again, and is expected to reach or exceed the 2014 numbers in fiscal year 2016.

Most of the children are from El Salvador, Honduras, and Guatemala, also known as the “Northern Triangle,” where governments are notoriously corrupt, gang violence is rampant, and children who are particularly vulnerable are frequently preyed upon by gangs and narco-traffickers. The journey of an unaccompanied child from her home to the United States is a grueling and dangerous one. Most children recall long periods of walking in the heat, little or no food, and fear for personal safety. Some children hitchhike and ride on top of trains for much of the journey. Others travel with the help of a paid smuggler known as a “coyote.” Smugglers are often part of criminal gangs, and while they may transport groups in cars and trucks, they also frequently will rob children, arrange for kidnappings to further extort families for money, or rape children. Because of an agreement with the United States, the Mexican government has cracked down on immigration and will often detain children in substandard holding cells before deporting them back to their home countries. Many children will make the trip again. Some make it through Central America only to be apprehended at the U.S. border.

When a child is stopped at the U.S. border by the Customs and Border Protection (CBP), the child is initially placed in a crude, cold holding cell, known as a “hielera,” or “icebox” in English. Children report sleeping on floors with no blankets and limited food. CBP is required to transfer a child to the custody of the Office of Refugee Resettlement (ORR), which is a branch of the Department of Health and Human Services, within 72 hours of apprehension. Once in ORR custody, the child is placed in a children’s detention facility, which is much more child friendly. The child remains in the custody of ORR until an appropriate caretaker, also known as a “sponsor,” can be identified and agrees to care for the child until the conclusion of the child’s legal case. This person is generally a family member or family friend.

Those first 72 hours often shape how a child will be treated by the U.S. government. During this initial period, the child is required to give a statement about why he or she is in the country. Sometimes, this statement is later used against the child to attack credibility. For example, a child may not disclose abuse in the home country out of fear or mistrust, but if the child later admits to this type of mistreatment and pursues relief based on it, a government trial attorney could claim that the child is lying, not having initially disclosed the abuse.

Removal Proceedings

A child who enters the United States without legal status is immediately placed in removal proceedings, which are just what they sound like—adversarial proceedings in which the government tries to remove the child from the country. When a child is in removal proceedings, he or she has to respond to a charging document called a “Notice to Appear”; identify a defense, which requires some knowledge of the various protection-based forms of immigration relief; and withstand cross-examination by a trained government attorney. This all occurs in an extremely stressful and adversarial environment, in a language that the child does not understand. While a child may be accompanied by an adult in court, this adult is not a party to the proceedings, and it is the responsibility of the child to speak for himself or herself.

Because removal proceedings are administrative proceedings, there is no right to appointed counsel as there is in the criminal context. However, the stakes are just as high. The consequence of losing an immigration case may not be jail time, but it can be death. According to data compiled from fiscal year 2012 to fiscal year 2014 by Syracuse University, only 15 percent of children who appeared without an attorney in immigration proceedings were allowed to stay in the United States. In other words, the single most important factor in determining the outcome of a case is whether or not a child is represented in proceedings. A child with an attorney is five times more likely to gain U.S. protection. That is why KIND’s recruitment of pro bono lawyers is so important. Yet, more than half of these children do not have an attorney in their removal proceedings.

The lack of counsel leads to a system in which many procedural protections are overlooked. For example, regulations govern who should actually be served a copy of a child’s charging document. If the document is improperly served, proceedings should not be initiated. Recently, our office reviewed a charging document that was served on a child who is not quite two years old. It stated that she was served a copy of her charging document in person and provided with oral notice in Spanish of the time and place of her hearing and the consequences of failing to appear. The child barely speaks at all and certainly has no concept of what this document means. In this particular case, service was not properly made and her due process rights were violated, but situations such as this happen all the time, largely because so many children are unrepresented and there is no one to protect them.

Overwhelmingly, children do not have the resources to hire private attorneys, and while many seek assistance from pro bono and low bono legal services, the demand outweighs the capacity of organizations such as mine, forcing children to return to court, still without counsel. But without counsel, unaccompanied children do not know how to navigate the process and cannot effectively represent themselves. Instead, they stumble through. Many become frustrated and ultimately miss a court date, which results in a removal order. As I have explained to children over the years, our job as lawyers is to listen to their stories, provide support to them while they tell their stories, and then translate the most relevant, important aspects into the language of the law so that judges and adjudicators can make the best decision in their cases. A select few actually receive this benefit.

In immigration court, unaccompanied children are usually placed on special juvenile dockets, which should employ more child-friendly tactics. Over the years, I have been in courtrooms where some judges take this very seriously. One judge removes her robe and moves to the center of the courtroom to address all of the children in the courtroom prior to starting hearings, giving an overview of who everyone in the courtroom is, the types of questions she may ask, and what to expect that day. Another hands out small toys or pieces of candy to each child at the end of the hearing.

Due to the surge of arrivals, unaccompanied children are now treated as priority cases. As the backlog of cases increases in courts around the country, many judges feel pressured to give short continuances to find counsel and may spend less and less time focusing on child-friendly techniques.

The experiences of these children are sobering. One 16-year-old girl explains how her father, a notorious gang member, “sold” her to one of his friends. A 15-year-old boy tells how his father abandoned his family, leaving him to care for his schizophrenic mother, until the gangs told him to join or die. Another child, a three-year-old, has no idea why he is here and has no understanding of the gravity of the proceedings against him. His mother tells me that, after his father was murdered, she made plans for him to come to the United States.

Special Legal Protections

Special legal protections exist for unaccompanied children in the Trafficking Victims Protection Reauthorization Act of 2008.To name a few, the act requires screening for trafficking, legal orientation presentations to children, and “access” to counsel. It also exempts unaccompanied children seeking asylum from a one-year filing deadline and creates a unique procedure that allows unaccompanied children seeking asylum to initially file an “affirmative” asylum application, which is adjudicated by an asylum officer, a neutral adjudicator who is part of the U.S. Citizenship and Immigration Services (USCIS). If the application is denied, the child is then allowed a second chance, to have his or her case for asylum adjudicated in an immigration court in an adversarial process. The Trafficking Victims Protection Reauthorization Act generally recognizes that children, and in particular this vulnerable population, are in need of special protections.

While these protections are a perceived benefit to children, without an attorney, a child is likely unaware that these protections even exist, and this too can greatly affect a child’s case. Take the protection that allows an unaccompanied child to initially file an asylum application with the asylum office rather than with the immigration court. Over the years, I have seen unrepresented children state in court that they would like to apply for asylum, and a hearing on the merits has been scheduled as a result. But if a child has counsel, the application would be filed with the asylum office rather than with the court. The process going forward is vastly different, as is the likelihood for success. At a very basic level, in most jurisdictions, the asylum office has a higher approval rate than the immigration court.

One possible reason that the asylum office grants asylum more frequently than the court is the difference in procedure. After filing an application with the asylum office, a child receives an interview notice to appear with an attorney. The child and attorney sit in an office, very much like my own, and an officer basically asks the child to tell his or her story. Each interview is different, but most officers are kind and non-adversarial. There is no cross-examination by a government attorney. The role of a child’s attorney in this process is to make sure that the critical aspects of the story are brought out and to clarify any confusion that may arise. I will not say that children are not nervous or anxious in this setting. They absolutely are, but far less so than when forced to give testimony in the formality of the courtroom while facing a possibly hostile government attorney. At the end of this interview, if all goes well, the child is granted asylum and the pending court case is then closed. If the officer does not feel that the child meets the legal definition of an asylee, the case is not over. Instead, the child has an opportunity to present his or her case before the court in reinstated removal proceedings. Asylum grant rates vary by geography. For instance, Houston, the jurisdiction where I now practice, has a relatively low grant rate.

Immigration law is complex, and a lawyer can help a child navigate that complicated system. Many of the factors that lead children to migrate make them eligible for one or potentially multiple options to seek legal status. But first they need to know their legal options. For example, a girl who was abandoned by her father, a member of a criminal gang, and was told she must become the girlfriend of someone in the gang or face death because of her familial ties to her father, may qualify for both asylum and special immigrant juvenile status, a protection for children who have been abused, abandoned, or neglected. Representation of this girl could include preparing affidavits in which she describes how she was abandoned and what that meant in her life, as well as what level of threats she experienced. If the girl reunifies with her mother in the United States, her case could involve a custody determination. It could also mean that she and her mother must ask a state court to make findings, which would allow her to apply for a special type of protection, special immigrant juvenile status. There will be hearings before two different courts, an immigration court and a state court, potentially an interview before the USCIS asylum office, and interviews with USCIS. But without an attorney, this girl would not be able to navigate this complex process, likely unaware of her options, and certainly would not be able to evaluate the pros and cons of seeking each form of relief. For example, if she pursues special immigrant juvenile status, she will never be able to petition for her mother to obtain permanent legal immigration status, but in the alternative, if she pursues asylum, she may sacrifice the ability to ever return to the country where she was born. Understanding and explaining these considerations can affect children’s lives tremendously.

This past summer, I moved from KIND’s Baltimore office to our Houston office, where KIND has a staff of 14. The Houston Immigration Court is one of the busiest and most backlogged in the nation. At the end of May 2016, the Houston Immigration Court had 39,628 pending cases. (Court backlogs are tracked on the Immigration Court Backlog Tool.) At any given time, KIND’s Houston office has close to 600 open cases of children in removal proceedings. Many of these children are represented by pro bono attorneys from the private bar, students in law clinics, staff attorneys in our office, or jointly; a portion of them are children who are scheduled for intake with our staff; and a smaller portion of them are children who are still waiting for an attorney just so that they can have a chance at accessing the judicial system. This number by no means encompasses all of the children in our community who need legal services; rather, it is a select few.

Joining the Team

Much of my career at KIND has focused on recruiting, training, and mentoring attorneys who take cases through our organization pro bono. I have the opportunity to expose attorneys to this complex area of the law that many knew very little about before taking on a case through KIND. Mentoring attorneys who are representing unaccompanied children means far more than reviewing pleadings or filings and pointing attorneys to the relevant statutes. It means engaging in discussions about what it means to represent a child and, in particular, cutting through cross-cultural barriers and establishing rapport. Sometimes it means reassuring an attorney who loses a case that the attorney has done everything he or she could for the client. Other times, it means providing emotional support for an attorney who, for the very first time in his or her life, listened to a child survivor of rape retell that experience.

I have made great friends with attorneys through my work and feel a sense of pride and satisfaction in having sparked a passion in others for the work that I have chosen as my career. Soon after arriving in Houston, I met with a couple of attorneys representing a teenage boy from El Salvador. In our initial discussions, the attorneys were visibly frustrated with their client. He had missed numerous meetings and seemed generally aloof. I could tell they were struggling with the representation. But then they had one more meeting where their client finally laid bare his entire, chilling story. After that meeting, the attorneys were refreshed and reinvested in this child, and I think the child knew it. I was confident that they would do everything they could to help him make a new life for himself in the United States. I also suspect these attorneys will choose to help another child because they now understand what a difference they are making.

Representing unaccompanied children can be challenging. Many large firms encourage their junior lawyers to take on the representation of an unaccompanied child so that young lawyers can get into court and in front of a real-life client. Unfortunately, attorneys are often intimidated to take on one of our cases. They fear they do not know immigration law well enough or are not litigators and are therefore uncomfortable in court. For an unaccompanied child, just having a lawyer can make a world of difference. I have worked with transactional attorneys from large firms, solo practitioners, corporate counsel, clinical professors, and students. We all approach the work differently, but the common denominator is that we care and have something very useful to offer our clients. As lawyers, we have particular skills that can dramatically change these children’s lives. Most of us entered this profession because we want to make a difference. When a child enters my office seeking assistance, I do not know if that child will be granted legal status, but I do know that the child will be supported and served. He or she will not have to go to court alone. For me, that is what this practice is all about, and that’s what it can be for any lawyer who is willing to take on the task of representing an unaccompanied child.