Monday, July 21, 2014
The Border Children---They are Not Criminals and They Need Counsel
Our nation's response to this humanitarian crisis at the border has not been clear or coherent. From the right and left the voices which have defined the debate have been guilty of the same underlying misconception: that these children must be "criminals" and that they need to be returned to their home countries at the earliest possible time. However this is not true. First, children (and even adults fleeing persecution) are not criminals if they are at the border and declare themselves afraid to return home. It is a flagrant violation of international law and also our domestic laws (The Refugee Act of 1980) to brand them criminals and fail to fully consider their claims. It is a violation of not only our legal but ethical duties to misapprehend their status, expedite their removals, and ignore their pleas for help.
To frame the debate as merely an enforcement issue misses the crucial bedrock issue: whether or not these kids are entitled to protection as refugees (or applicants for asylum since they are now within our borders). We also have other ways to deal with persons who approach our border and face dire consequences if returned. One possible way to deal with the issue is through temporary protected status (TPS), a form of humanitarian relief. TPS is a form of relief which Congress can create for certain persons from specified countries which are facing upheavals. This status is temporary but humanitarian in nature. It is another possibility which no one is talking about. TPS has been available in the past for persons from El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria, depending on several other factors such as the exact dates of entry of the applicant, the registration period, and criminal history, if any.
People have also focused too narrowly on the assumption that "asylum" is the sole and exclusive remedy for all these children. This assumption misses the mark. It assumes, for example, that the whole range of other relief, depending on many variables and each case’s specific circumstances, would be unavailable to them. It is precisely counsel's job to evaluate in individual cases what relief there may be, to advise one's client about a variety of different types of relief. While there are limits (the so-called "cap") on the number of T-visas for persons who have been trafficked and U visas for crime victims, this does not exhaust the possible types of relief. There is a possibility that some may be eligible for Special Immigrant Juvenile (SIJ) status. SIJ petitions can be filed for certain kids who have been abused, abandoned or neglected by one or both parents. But there is no possibility of such relief for these children where there is no counsel, since SIJ requires that a predicate state court order be obtained from a state court. No child without counsel is going to be able to navigate the intricacies of family court, let alone the immigration court process.
This brings me to the paradoxically-named "HUMANE" Act recently proposed by Representative Cuellar and Senator Cornyn. The idea that a decision on these kids' claims should be rushed is severely flawed. Under the proposed law, the hearing before the immigration judge is to occur within 7 days after the initial 72 hour initial period whereby the children are placed with HHS. There is no question that 7 days does not leave children (or anyone for that matter) sufficient time to secure legal representation. The children then would be deported (likely) or provided an expedited date for a final hearing. Having represented many children in immigration courts and administrative contexts, there is absolutely no way that a child will have the ability to communicate their claims with the court sufficiently on their own to allow for a full and fair proceeding. It is just not possible given the limitations of a child's lack of sophistication. Such a "HUMANE" Act is therefore -- on its a face -- a blatant violation of due process. Such due process, it is well-settled, is owed to immigrants who appear before the immigration courts. The "expedited" nature of these proposed proceedings would have the strange and untoward consequence of providing less due process protection to children versus similarly situated adult respondents.
A Syracuse University study recently reported the latest statistics concerning children facing removal proceedings. (The report is available online here: https://trac.syr.edu/immigration/reports/359/). This report presents crucial information missing from the debate thus far. According to the report, the outcome if an attorney is present is as follows: "In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States." If the child had no attorney the following outcome resulted: "Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country." From these recent statistics tracking approximately 100,000 cases, the conclusion is clear: with representation the chances are about 50/50 a child may be able to obtain relief. Without an attorney, their chances drop to 1 in 10.
To the extent we are painting with a broad brush, this is error. Pope Francis got it right when he said: "This humanitarian emergency requires, as a first urgent measure, these children be welcomed and protected. These measures, however, will not be sufficient, unless they are accompanied by policies that inform people about the dangers of such a journey and, above all, that promote development in their countries of origin." The underlying worry, expressed by both the right and left, that granting relief or seeming to welcome those in need will make us seem weak is misguided. It is true that we should devote resources to helping other countries with their gang and other problems. It is true that we should warn intended immigrants, refugee children and their parents of the extreme dangers of travel. But once they are here, they are our responsibility and as a nation of compassion and commitment we should demand no less.