August 11, 2014

Years ago—before such cases were making headlines and further gridlocking Congress—I represented twin ten-year-old boys from Honduras. They had fled physical abuse from family members and persecution by street gangs. But one of the greatest injustices they had to endure was in the courtroom in the United States, being subjected to an arduous process designed for adults . The experience showed the beginnings of what we are facing today on a much larger scale: An outdated immigration system that doesn’t meet the needs of today’s realities.

An Inconsistent Process
Currently, there are thousands of children—from Central America and around the world—in need of legal representation in the immigration courts. Many of these children are victims of violence, trafficking, or are otherwise at risk for persecution in their home countries. They are waiting for a determination of whether they will be sent back or allowed to seek relief through the U.S. immigration system.  In recent years, courts have allowed grants of asylum based on cases of domestic violence or gang persecution. However, the case law has been sporadic and unequal, often varying by the federal circuit in which the case is heard.

What’s more, children arriving in the U.S. do not know about the complexity of our laws or justice system. They need someone not only to guide them through the process, but also to help them seek out family members and ensure that basic needs such as food, shelter, and medical care are provided.  Unfortunately, legal resources are spread woefully thin: As of July 2014, only 228 full-time immigration judges were working in field offices, handling a nationwide caseload of more than 375,000 cases. With 90,000 refugee children expected to arrive this year, our system is poised to become even more overloaded, continuing to fail young children on all counts.

Attorneys Are Responding
Given the urgent need to connect thousands of children with appropriate legal representation,  chapters of the American Immigration Lawyers Association (AILA) in Chicago and throughout the country are coming together to find experienced counsel to volunteer their time.

Attorneys in Miami, for example, are signing up for a particular court date, to act as a “friend of the court.” The process is similar to how a public defender may function at initial appearances in criminal court, ensuring that immigrant children have representation.  But while this effort helps those children who have already been transferred to courts in cities in the interior of the country, it doesn’t reach the growing number of children in detention along the border. In response, some attorneys are traveling to the region to ensure that children receive due process.

A number of groups have also filed a lawsuit asking a federal court to prohibit the government from pursuing deportation proceedings against children from noncontiguous countries unless they have legal representation. Recognizing that some children are currently being deported before they can access legal resources, the lawsuit is designed to ensure compliance with the due process requirement of the Fifth Amendment and the Immigration and Nationality Act’s provisions requiring a “full and fair hearing.”

AILA Chapters in Chicago and other cities are seeking volunteers to assist children in the detention centers for their initial interviews with immigration officers, protecting against abuses and ensuring the child’s claims are being heard. AILA offers free training—online and in select cities—for attorneys who want to assist.

The Need for Long-Term Solutions
The efforts of AILA and volunteer attorneys can make a positive difference in individual cases.  But when considering the severe lack of funding and dearth of qualified counsel available at the systems level, the reality is that the immigration bar is essentially trying to put a Band-Aid on a severed limb.

AILA estimates that the funding required to manage the already-existing backlog of immigration court cases plus the influx of children would be ten times more than what was included in President Obama’s request for $3.7 billion to address the humanitarian crisis at the border, which is currently stalled as Congress is on summer recess. However, while additional funding is certainly necessary, appropriations must be focused in a way that will solve this crisis in a manner that comports with due process and humanitarian concerns. Congress must exercise caution in implementing hasty legislative measures without properly considering all consequences, especially as related to the provisions of the Trafficking Victims Protection Reauthorization Act, which affords legal protections to children from noncontiguous countries.

But other solutions exist: One option is legal aid or public defender offices for children. Given that most jurisdictions already have special public defenders for juvenile criminal cases, a system for our immigration courts is within reach. The government should also better fund existing legal aid organizations for children, allowing them to hire more staff and access necessary resources. Both options would provide employment possibilities for young lawyers under the supervision of more experienced attorneys.

Most of all, we must remember that we are working with children, young kids no different from those we see playing in the yard next door or at the school down the street. Children do not belong in jails or courtrooms, nor should they be left to fend for themselves. I applaud members of the bar who are volunteering time, seeking training, and assisting however they can. I believe we have a legal and moral obligation to do so.

Sara Elizabeth Dill is an attorney and partner at the Law Offices of Sara Elizabeth Dill, a former Commissioner on Immigration for the American Bar Association and a member of the American Immigration Lawyers Association.. She is also a member of the Group of 500.

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