Saturday, March 5, 2016
Guest blogger: Monica Valencia, second-year law student, University of San Francisco
The most disheartening part about working in Immigration Law is the disproportionate numbers of undocumented immigrants who go without legal representation.
Last week, I attended an administrative immigration court hearing in San Francisco as an observer. The waiting area was filled with men, women, and children without attorneys, looking timid and confused as to what was about to take place.
The fear is real for them. Will they be deported today? Will an officer come into the courtroom and apprehend them and their children? Will they be safe? This notion of throwing someone into the wolves is like abandoning undocumented immigrants to the harms of legal ramifications without an attorney.
Maria Gonzalez (a pseudonym) doesn’t have an attorney. A sigh of relief is let out when I tell Maria that the judge will not be deporting anyone today and that he will be granting people more time to seek legal representation.
Before I began to observe the proceedings on this day, I participated in conducting a quick “Know Your Rights” briefing in the waiting area and I also helped gather information of those that did not have legal representation. The Attorney of the Day (AOD) then reviews the information gathered and talks with each person individually. The AOD is usually an attorney who volunteers to represent persons in the proceedings who do not already have representation, but it is only for that day. After that, each person must find their own attorney.
Maria is 11 years old and she traveled to the U.S. alone from Guatemala. She didn’t really understand what was happening or what was about to take place; all she knew is that she had to be present in the courtroom on this day. She handed me her Notice To Appear and said, “Can you be my lawyer?” I explained to her that I was not an attorney and gave her a resource packet of organizations and pro bono attorneys that provide free legal assistance. She hardly looked at me after that. You could tell that she was scared.
In giving her that packet, I knew that it would be difficult for her to find a pro bono attorney to take her case because of backlogs that non-profit organizations are experiencing. Those organizations do not have the resources or bodies to provide free legal services to everyone. In that moment, I felt like a liar.
The reality for many undocumented children is that they will have to appear in court and represent themselves pro se. That is, if they do not find an attorney to effectively advocate for them and seek out legal remedies, they will have no choice but to face the immigration judge and the government attorney on their own. How can this be okay in our American system of justice?
First, children and other undocumented immigrants I encountered do not speak English and do not understand the immigration process in its entirety. I don’t understand the process completely myself, and I am a law student, so how can a three year old, a seven year old or even an eleven year old understand?
Even though they are afforded an interpreter, it takes a knowledgeable legal advocate to battle it out in court. What then of the children who have to defend themselves and protect their interests against an educated judge and a well-trained government attorney? What ever happened to an equal balance? This type of arbitrary procedure perpetuates a bully-effect – where the bigger, meaner wolf attacks the defenseless and wins.
In civil matters, as immigration proceedings are classified, a person is not entitled to an attorney at government expense like those in criminal cases. Because attorneys are not provided to children, they are deported at a higher rate than children who are represented by an attorney. In a 2014 study by the Transactional Records Access Clearinghouse of Syracuse University, a child has a 73% chance of winning their case as opposed to a child without an attorney, who only has a 15% chance of winning.
This disparity should shed a meaningful light on how capricious it is to feed innocent children fleeing persecution, systematic violence, and economic depression to the wolves by themselves without anyone to help them have a real chance at a fair fight.
When a child is fleeing their home country, it is usually a life or death situation. The outcome of the immigration proceedings could mean being sent back to face death. For this reason a child deserves an attorney in these cases; the outcome impacts the child’s life in ways that a qualified attorney can persuade an Immigration Judge to understand.
Democratic senators introduced a bill in February called the “Fair Day In Court For Kids ” act, which will ensure that Central American children seeking asylum will have access to an attorney for their proceedings. This bill also mandates legal representation for applicants with a disability or victims of torture and abuse.
A Reuters article explains the need of Due Process and fairness in immigration proceedings. “Notions of due process enshrined in our Constitution and immigration laws support a right to counsel for all indigent children in immigration court. Due process is the idea that when the government acts to affect a person’s life, liberty or property, it must do so fairly, including providing the individual with a meaningful opportunity to be heard. For children in immigration court, however, that opportunity too often depends on benevolence and luck.”
The proposed legislation is critical to the fairness of such proceedings. Unbelievably, there are those individuals who believe that children can navigate the American Judicial System and the immigration process all on their own. A senior immigration judge argued “that 3- and 4-year-olds can learn immigration law well enough to represent themselves in court.”
Not only is this immigration judge delusional, but perhaps, has lost touch with reality. With comments like, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds, [i]t takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done,” one can only assume the wolves in his den are hungry for just the right victims of a warped theory of Due Process.