Politico
By David Rogers
August 11, 2015
One
year later, child migrants from Central America are still paying a
heavy price for President Barack Obama’s decision last summer to rush
them into deportation proceedings
without first taking steps to provide legal counsel.
New
government data this week offer a first, full-year tally for the
immigration courts, and the numbers show that among the 13,451 cases
completed since July 18, 2014,
barely half the children had legal representation.
The
picture has improved over time, but in 38 percent of the cases
completed since last Christmas, the child was still without counsel.
Even since mid-April, there have
been an average of 100 case completions per week in which there is no
record of a defense attorney.
At
one level, this picture is skewed by the stubbornly high level of
deportation orders issued by judges “in absentia,” when the child
defendant does not appear in court.
But migrant rights attorneys argue that this is a Catch-22 situation:
Without access to counsel, more children stay away and have no realistic
chance of appeal.
Local
governments, such as New York City, have stepped in to try to fill some
of the holes. But Republicans in Congress are refusing to provide money
sought by Obama for
attorneys. And a bill introduced by Rep. Hakeem Jeffries (D-N.Y.) in
March to require the Justice Department to appoint counsel remains
buried in the House Judiciary Committee.
The
political stalemate in Washington has driven constitutional appeals to
the federal courts, but thus far, these have produced more promises than
real relief.
On
April 13, U.S. District Judge Thomas Zilly in Seattle ruled that the
right-to-counsel claim for the children raised a genuine question of due
process and deserves “an
answer.” But in the months since, Zilly has been largely silent even as
close to 1,500 more children have had their cases completed without the
benefit of a lawyer.
Indeed,
after all of the public furor over the border surge last summer, the
children seem to have dropped off the political map.
The
press and courts are much more aggressive in addressing recent
complaints about the administration’s practices at family detention
centers, for example. Many more
children are impacted by the right-to-counsel issue, but it has none of
the same visibility.
The
fresh numbers this week come from the Executive Office of Immigration
Review, which oversees the immigration courts from within Justice. Soon
after Obama’s decision
last year, EOIR altered its record-keeping to keep closer tabs on those
unaccompanied children from Central America most affected — as opposed
to juveniles more broadly in the immigration courts.
Through
the past year, POLITICO has collected these reports as a running marker
— so to speak — of what the children were facing. For the first time,
the new EOIR totals
cover the full 12 months from July 18, 2014, through July 28 of this
year.
In
that period, the nation’s immigration judges held a total of 29,233
master calendar hearings to arraign the children, who had crossed the
Southwest border in record
numbers last spring and early summer. The fast pace in the courts was
at Obama’s direction, and the White House hoped this get-tough approach
would send a message to families back in Central America and also save
its immigration reform agenda in Congress.
In
fact, the number of border crossings by unaccompanied children dropped
off, largely because of Mexico’s increased help in intercepting migrants
traveling from Central
America. But the level of gang violence in the region — most especially
El Salvador this year — remains a concern. Against this background, the
administration recently began a new round of Spanish-speaking media
announcements dubbed “Know the Facts” and targeted
at families in Mexico, El Salvador, Guatemala and Honduras.
But
in the same time frame, Obama’s gamble on immigration reform has fallen
on hard ground. And the rapid pace of the so called “rocket dockets”
that he set in motion
clearly overwhelmed the fragile network of pro bono lawyers and
nonprofit legal aid groups available to the children.
In
the first months, from July 18 to Dec. 23, 2014, for example, EOIR
tallied 4,250 case completions, in which just 27 percent of the children
had an attorney. By mid-April
this year, that share had grown to about 40 percent. Just counting the
cases completed from April through July, about 58 percent of the
children impacted were assisted by counsel.
Nonetheless,
even in this narrow, refined window, almost a third of the children are
still having their future decided without the benefit of defense
counsel. And the
record continues to show that those without lawyers are most likely to
receive orders of removal or feel pressured to agree to voluntary
departure.
Among
the cases completed since last summer, fully 57 percent resulted in
removal orders or voluntary departure, according to EOIR.
Overwhelmingly, children without attorneys
have been most vulnerable, and of the 7,237 deportation orders since
last July, 6,315 were issued in absentia.
Given
the lack of federal assistance, New York City has opted to commit its
own funds in a public-private partnership with charitable groups like
the Robin Hood Foundation
and New York Community Trust. An estimated 1,600 children have been
screened thus far as they are called before the immigration judges. The
goal is to establish a connection with a service provider and then seek
attorneys for them.
“Because
of the lack of action at the federal level, I felt we had to do
something,” said Melissa Mark-Viverito, who pushed for the initiative as
speaker for the New York
City Council. “Now they have a fighting chance.”
Danny
Alicea, a young attorney with the big immigration law firm Fragomen,
Del Rey, Bernsen & Loewy, works in tandem with the council’s effort
as part of a separate outreach
program sponsored by the City Bar Justice Center, part of the New York
City Bar Association.
“One
of the great things about having this fellowship at the City Bar
Justice Center is that the city bar is the go-to place. I have the
capacity to recruit hundreds of
lawyers,” Alicea said. But as a practical matter, he says, children are
still falling through the cracks — unable to find assistance.
“Yes,
the children are at least meeting with a lawyer and having a lot of
their needs met by the service provider,” he said. “But there are so
many children, I don’t think
it’s possible at this point to say they all have a lawyer representing
them.”
Just
30, Alicea is most proud of a picture of himself heading into
immigration court with a 1-year-old client. “He knows one word, and it
is gracias,” he said.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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