The United States is facing an unprecedented refugee crisis at the U.S.-Mexico border, with the arrival in recent months of tens of thousands of unaccompanied children from Central America. In a White House briefing on August 6, 2014, Vice President Joe Biden and other senior government officials called on an audience of more than 100 representatives from national law firms, corporations, bar associations, foundations and nonprofit associations to help provide legal representation to this vulnerable population. I am happy to report that the private bar has stepped up to meet the challenge.
Background
According to U.S. Customs and Border Protection (CBP), a total of 68,541 “unaccompanied alien children” (UACs) from Central America were apprehended at the southwest border during the 2014 fiscal year (i.e., between October 1, 2013, and September 30, 2014). This represents an increase of 77 percent over last year’s total of 38,759. Most of these children came from the so-called Northern Triangle of Central America (El Salvador, Guatemala and Honduras), as well as from Mexico. Many if not most of these children are literally fleeing for their lives from criminal gangs and other sources of abuse and violence in their home countries. In fact, the United Nations has reported that Honduras is the murder capital of the world. The other Northern Triangle countries are not far behind.
The number of Central American children arriving with at least one parent (usually a mother) has also increased significantly compared to last year. Women and children who are apprehended at the U.S.-Mexico border are taken into detention and held by U.S. Immigration and Customs Enforcement (ICE) in remote facilities in New Mexico and Texas, far from the legal counsel and social services they so desperately need. These families’ applications for bond are typically either denied, or the bond is set prohibitively high ($25,000-$30,000). They are then subjected to bare-bones hearings aimed at removing them from the U.S. as quickly as possible. Under various agreements between the U.S. and Mexican governments, unaccompanied Mexican children are quickly returned to Mexico.
Children who arrive alone from a Northern Triangle country, however, must be screened to determine whether they are without a parent or guardian and, if so, must be transferred (pursuant to the Trafficking Victims Protection Reauthorization Act or TVPRA) to the Office of Refugee Resettlement (ORR). ORR must promptly place each child in the “least restrictive setting that is in the best interest of the child.” In most cases, that means release to a family member already living in the U.S., regardless of that person’s immigration status. If no family member is available, the child may be released to another sponsor, such as a foster care agency running a youth group home. Once released, the children are served with Notices to Appear in immigration court, thus commencing the government’s removal proceedings against them.
The Difference Counsel Makes
Many of these children may be eligible for asylum or other immigration relief in the U.S., which will entitle them to apply for permanent residence, and eventually for U.S. citizenship. Data from the United Nations High Commissioner for Refugees and the Vera Institute of Justice indicate that between 40 and 60 percent of unaccompanied immigrant children may be eligible for asylum or other relief. Recent anecdotal evidence suggests that the numbers may actually be higher. For example, in testimony before the New York State Assembly on September 16, 2014, New York Law School Professor Lenni Benson, who heads up the Safe Passage Project, stated that approximately 80 percent of the children that Safe Passage attorneys screen appear to be eligible for lawful immigration status.
Unfortunately, there is no right to court-appointed counsel in immigration proceedings, notwithstanding the fact that the ultimate penalty for failing to comply with what are mostly civil immigration laws can, in the most fundamental way, be more severe than a criminal sentence: removal from the U.S., sometimes leading (especially in the case of denied asylum claims) to the person’s persecution, torture or even death. Indeed, at least one youth deported to Honduras from the U.S. this year was reportedly murdered upon his return.
The Immigration and Nationality Act does provide that persons in removal proceedings are entitled to the “privilege” of being represented by counsel of their choosing – but such representation must be “at no expense to the government.” With a severe shortage of nonprofit legal services organizations available to provide representation, most children show up for their first hearing in immigration court without a lawyer.
Immigration law is legendarily difficult to navigate without qualified legal assistance. We already face what Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit has warned is an “immigrant representation crisis.” Immigrants who are represented by counsel are overwhelmingly more likely to prevail in removal proceedings than are those without counsel. As documented by the New York Immigrant Representation Study (NYIRS) – a pioneering study of the availability and adequacy of counsel in removal proceedings in New York – people facing removal in New York who have a lawyer are 500 percent more likely to win their cases than are those without representation. There is every reason to believe that the same holds true in other jurisdictions around the country.
What Immigration Attorneys Are Doing
Here at Fragomen – a firm that specializes in corporate immigration law – we have launched a nationwide pro bono initiative to represent unaccompanied immigrant children in locations throughout the U.S. The firm has selected Kids in Need of Defense (KIND) as its national partner in this endeavor. KIND was founded by Angelina Jolie and Microsoft to ensure that no immigrant or refugee child has to appear in immigration court alone. Through partnerships with more than 220 law firm, corporate, and law school partners, KIND matches unaccompanied children with pro bono attorneys who represent the children throughout their proceedings. In addition to collaborating with KIND, Fragomen is working with trusted local non-profits such as the Safe Passage Project in New York City; the Florence Immigrant and Refugee Rights Project in Phoenix; the Human Rights Initiative in Dallas; the National Immigrant Justice Center in Chicago; Unity Care in Silicon Valley; the Casa Cornelia Law Center in San Diego; and a number of other organizations around the country.
Attorneys from Fragomen and other immigration law firms are also screening children who show up for their master calendar hearings in immigration court. In busy immigration courts like those in New York and Los Angeles, there is a special juvenile docket, so that children do not have to mingle with adults in court. Since August of this year, there has also been a special “priority” juvenile docket (also known as the “surge docket” or the “rocket docket”) for unaccompanied children who have arrived in the U.S. in recent months, and whose cases the Obama administration has decided should be heard on an expedited schedule. In New York, the local chapter of the American Immigration Lawyers Association (AILA) and four local nonprofits – The Door, the Legal Aid Society, Catholic Charities and the Safe Passage Project – have come together in a coalition known as the iCare Coalition to screen children and to serve as “friends of the court” at the juvenile dockets. The Door, Legal Aid and Catholic Charities, which all provide direct legal services to immigrants, take on as many cases as they can. AILA tries to find immigration attorneys who are members of AILA to take on cases. The Safe Passage Project, which does not provide direct legal services, seeks to find pro bono attorneys to take on cases of children it has first screened. Other nonprofits taking on cases for direct representation include Central American Legal Assistance, Make the Road NY, KIND and Atlas: DIY.
AILA has also been working hard to provide counsel to women and children who are being held in the federal government’s detention center in Artesia, New Mexico. With training and mentoring by practitioners with experience in representing immigrants in bond hearings and removal proceedings, AILA members who may only have handled family-based or employment-based immigration matters in the past are spending life-changing weeks representing detained women with children. When the government started detaining mothers and children in another location – a for-profit detention facility in Karnes, Texas – Akin Gump, under the leadership of Pro Bono Partner Steven Schulman, began working with AILA, the University of Texas School of Law, and a number of private attorneys and nonprofit groups to provide pro bono legal assistance to the families detained there. In September, Akin Gump sent an associate to Karnes, who will remain there through the end of the calendar year working full-time to provide volunteer coordination and client management assistance.
Lawyers In All Fields Are Pitching In
But attorneys need not specialize in immigration law in order to be effective pro bono lawyers in immigration matters. Indeed, the model spearheaded by organizations like KIND, Human Rights First and the Safe Passage Project is to mentor attorneys from any field of law so that they can effectively represent children in immigration matters. Moreover, a number of firms that already had robust pro bono programs have taken the lead in providing counsel to unaccompanied minors who have been released to family members in cities all around the U.S.
For example, Jones Day, under the leadership of Washington, DC-based pro bono partner Laura Tuell Parcher, has taken on dozens of unaccompanied minor cases across the country, including cases of families detained in Artesia. Maureen Schad, pro bono attorney and manager of pro bono initiatives at Chadbourne in New York, has several years of experience representing children in immigration matters and has been a leader in efforts to provide pro bono representation for unaccompanied children in New York. Fried Frank’s pro bono counsel Karen Grisez reports that Fried Frank has offered its New York lawyers the chance to participate in the screening of UAC cases on the juvenile docket in New York and to take on direct representation of unaccompanied immigrant children. Fried Frank has also been working to set up a pro bono program for children on the "surge dockets" in Arlington, VA and Baltimore, and to set up a project to handle bond appeals for detained women and children.
A number of other national law firms have gotten involved in unaccompanied immigrant children cases around the country, including, but by no means limited to, Baker & McKenzie; Cooley LLP; Kirkland & Ellis LLP; Lowenstein Sandler LLP; Morgan, Lewis & Bockius; O'Melveny & Myers; Skadden; Shearman & Sterling LLP; and Simpson Thacher & Bartlett LLP.
Conclusion
Judge Dana Leigh Marks, an immigration judge in San Francisco and the president of the National Association of Immigration Judges, has famously said that presiding over removal proceedings is like hearing death penalty cases in a traffic court setting. Judge Marks was talking about regular immigration proceedings in our nation’s regular immigration courts – not the makeshift hearings-via-videoconference set up for persons held in remote detention facilities, and not the expedited proceedings in regular immigration courts to which this latest surge of unaccompanied immigrant children is being subjected.
The American Civil Liberties Union has brought suit against the U.S. government on behalf of a class of unaccompanied immigrant children. The complaint in J.E.F.M. v. Holder alleges that requiring children to appear in removal proceedings without legal representation violates the Due Process Clause of the U.S. Constitution’s Fifth Amendment, as well as the requirement under the Immigration and Nationality Act that persons charged with being removable are entitled to a “full and fair hearing” before an immigration judge.
But until and unless children in immigration proceedings are provided with court-appointed counsel, the federal government apparently expects children who cannot find their own attorneys to stand up alone in immigration court and articulate how they may be eligible to remain lawfully in the U.S. This is simply unconscionable, and this is where pro bono attorneys can really make a difference.
Published October 24, 2014.
