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NEW YORK, N.Y. -- In a hallway on the fourteenth floor of a hulking federal building in lower Manhattan, a teenager with gelled hair checks his appearance repeatedly on his smart phone. Two Hispanic women sit in an adjacent waiting room, talking in low voices, a sleeping child between them. His stroller is parked nearby, piled high with two backpacks, an aqua-colored windbreaker, and a Winnie-the-Pooh doll.
A young woman in jeans shyly approaches a volunteer who asks, “Tienes un abogado?” (Do you have a lawyer?) Clutching a sheaf of documents, the teen shakes her head no.
Every weekday, scenes like this play out in New York’s “priority dockets,” the immigration courts that handle cases of unaccompanied children who arrived at the U.S./Mexico border last summer. The priority dockets (also known as “surge dockets”) were announced in July, and began processing unaccompanied children in August. Since then, New York social service providers and volunteer lawyers have worked to ensure that the needs of these unaccompanied children are met.
The Obama administration’s Department of Justice created the priority dockets as part of a broader strategy of deterrence. The administration’s hope is that, by speeding up the resolution of cases and processing quicker removals, word will spread throughout Central America that making the journey north is not worth it.
In 2014, about 68,000 unaccompanied children were detained at the border, including children from Mexico. While these numbers have since dropped, they are still significant; U.S. Customs and Border Protection reports that 7,771 unaccompanied children from El Salvador, Honduras, and Guatemala have been apprehended in FY 2015 to date. Children from Mexico generally are sent back under U.S. law.
Most of these kids are eventually released to the custody of a parent or guardian already in the U.S. New York receives the second-largest number of these unaccompanied children released to sponsors (5,955 in FY 2014); only Texas has more.
But for these kids the journey is far from over. While they may be with a family member, they still have a court date. The Obama administration has set a target date of 21 days from initial processing for each child to appear in court, and they may or may not have a lawyer. By law, all unaccompanied immigrant children are entitled to legal representation – yet the U.S. government is not obligated to provide them with such representation.
Last fall, the New York City Council and two philanthropic groups announced a grant of $1.9 million towards increasing access to counsel for unaccompanied children in removal proceedings.
Wendy Young, president of Kids In Need Of Defense says that many children face a daunting task, navigating the immigration court system on their own. “Most of these kids are absolutely not getting the legal representation that they need,” she notes. “The sheer numbers is putting pressure on the system, and the fact that cases are moving rapidly makes it harder for young people to find an attorney.”
Young stated that unless the U.S. immigration system can ensure just outcomes for unaccompanied children, “we run the risk of returning them back to the same dangers that they fled.”
Nationally, according to Syracuse University’s Transactional Records Access Clearinghouse, 32 percent of unaccompanied immigrant children were represented by counsel. In New York, the figure is higher, with 43 percent of unaccompanied children accessing legal representation.
Having legal representation makes a difference in whether a child is allowed to remain in the U.S. Syracuse University found that almost three-quarters of represented children were allowed by the court to remain in the U.S., whereas only 15 percent of unrepresented children had a similar outcome.
Syracuse University found almost three-quarters of represented children were allowed by the court to remain in the U.S., whereas only fifteen percent of unrepresented children had a similar outcome.
Cases in the priority docket are heard separately from other immigration cases, and the children range from infants up to age 18. As an alternative to removal, the types of relief that unaccompanied children may be eligible for include asylum, Special Immigrant Juvenile Status, and visas for victims of trafficking and crime.
New York attorneys say that it is not always easy to determine whether children qualify for deportation relief. “These kids have been through a lot,” said Jennifer Durkin, a member of the American Immigration Lawyers Association and a longtime volunteer in the children’s docket. “They have come over the border, they have been in detention, and they have been through traumatic situations on their way here. So by the time they get to us, they have been through the wringer.” She said that it is a challenge, for instance, to get a child to open up about possible domestic or sexual abuse. “We are, in effect, asking them to trust a total stranger with their story.”
In New York, the priority dockets are structured so that children are not intimidated by the proceedings. Judges typically do not wear robes, and they address children by their first names. They may allow them to bring a toy or stuffed animal into the courtroom. To help put children at ease, some judges like to ask children about soccer or baseball.
Immigration court, however, is an adversarial proceeding. Judges adjudicating children’s cases walk a fine line between ensuring that the children before them understand the gravity of their situation, and not frightening them. The fact that the parents involved may be undocumented or non-English speakers creates the potential for more confusion. Some parents who receive a notice to return for another court date mistakenly believe that they are receiving “papeles” (papers), meaning that their child has won the right to stay in the country.
Obtaining legal representation is only one hurdle faced by New York’s unaccompanied immigrant children. “We are dealing with a very vulnerable population, one without a voice,” said JoJo Annobil, Attorney-in-Charge of the Immigration Law Unit at the Legal Aid Society. “They come in and join parents who are also vulnerable, so you have both children and adults who are afraid. You have so many variables here, but we try and work through it.”
“Dealing with children is not the same as dealing with adults, because children have a lot of emotional issues,” said Annobil. “They have experienced trauma. Plus, they have not just legal issues but also social, mental health, and educational needs.” He notes that many unaccompanied children are rejoining parents or other family members whom they have not seen in years, which creates additional stress in their home lives.
An attorney who works with immigrant minors rejected the notion that these unaccompanied children came to the U.S. as a result of the Obama administration’s immigration policies. “I’ve never had a child say to me, ‘What about DACA?, or a parent saying to me, “What about DACA?”
Annobil rejected the notion that these unaccompanied children came to the U.S. as a result of the Obama administration’s immigration policies. “I’ve never had a child say to me, ‘What about DACA?, or a parent saying to me, “What about DACA?” (referring to the Deferred Action for Childhood Arrivals program established in 2012).
“I’ve had children who, when you ask them about life in their home country, they burst into tears,” said Desireé Hernandez, Supervising Attorney for the Safe Passage Project, a non-profit organization serving the legal needs of immigrant youth in New York. “The screening interviews we do with children are heartbreaking. They tell us about gang recruitment, about how they were working at age 11. They tell us that they were being abused, that they have no one to take care of them, or that their family members back home were killed.”
“I don’t hear anyone talking about DACA or citizenship,” Hernandez said. “I say to anyone who believes that these kids’ claims are not credible to come to court and see how young, how traumatized they are.”
Volunteer attorneys in New York say that the legal community has responded well to the needs of unaccompanied immigrant children. This is due in part to the infrastructure already in place (the relatively large numbers of attorneys and law students here, and their willingness to do pro bono work) and the availability of funding for assistance programs. Last fall, the New York City Council and two philanthropic groups announced a grant of $1.9 million towards increasing access to counsel for unaccompanied children in removal proceedings.
In response to an email query, Lauren Alder Reid, Counsel for Legislative and Public Affairs at the Department of Justice, stated that the Executive Office for Immigration Review (EOIR) could not estimate how long the priority dockets would continue, because the EOIR does not provide speculative responses. “EOIR provides prompt first hearings before an immigration judge for those in certain defined priority groups,” she said, “including unaccompanied children, and we are providing timely and fair adjudication of the cases before the agency.”
Meanwhile, one unintended consequence of the priority dockets is that they have taken precedence over other pending immigration cases. Thousands of other immigrants seeking to adjust or resolve their status have had their cases put on hold until November 29, 2019. So instead of moving things along quickly, the priority dockets have created new backlogs in an already-overloaded system.
Despite such realities, attorney Desireé Hernandez says that she remains optimistic about helping unaccompanied immigrant youth. “When we see positive results, that is our reason to be hopeful. We celebrate the little successes,” she said. “When we see these kids going on with their lives, going to school, winning green cards, it reminds us that we are giving them a second chance at life. One by one, we are helping change the life of a child – and that is very rewarding.”