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Child migrants face new crisis: Uneven justice

5 Mar

After fleeing Central America, child migrants now face a very uneven brand of justice in U.S. immigration courts, where access to a lawyer and the location of the court itself are often the deciding variables in who stays and who doesn’t.

A POLITICO analysis of government data shows that fully 88 percent of the removal orders issued since July have gone to children without an attorney. What’s more, a juvenile assigned to judges in Texas, North Carolina and Georgia in the past 16 months was at least three times more likely to receive such an order than a child in California, Florida or New York.

The same humanitarian crisis that gripped the White House and Congress last year is now a less visible one of American justice. And it still poses a major test for the Obama administration, which promised compassion and fairness in the treatment of the child migrants but also contributed to the current problem by expediting deportation proceedings.

The analysis shows that instead of a relatively uniform system of federally administered justice, what emerges is more of a patchwork quilt.

“I’m baffled by why the government can’t speak with one voice. It’s the luck of the draw,” said Rebeca Salmon, an immigrant defense attorney in Atlanta. “The worst part is that you land in Georgia vs. landing in California and you’re going to be 90 percent more likely to lose all your due process protections and be deported. That is a huge problem at the federal level.”

Since last summer, substantial progress has been made in finding attorneys for the children, and the cases of the great majority are still pending. But thousands are still without counsel. And thousands more, according to the data, have already been caught in the undertow, forced to live now under the threat of removal orders that will kick in with true force once they turn 18.

President Barack Obama’s decision last July to greatly expedite deportation proceedings — before he had secured money for counsel — has had a lasting impact.

The stated goal was to send a signal to discourage more children from coming. But critics say the speed of these so-called rocket dockets overwhelmed the small community of defense attorneys, and individual judges seized the chance to quickly issue removal orders or pressure the children to accept voluntary departure.

How much this “get tough” stance by Obama truly affected the flow of future migrants is still a matter of debate. The pace of border crossings is down from last year. But the credit may go as much to Mexico, which has greatly increased its own deportations of Central Americans attempting to cross Mexico to reach the United States.

There’s no doubt, however, that Obama’s decision has had a dramatic effect on the immigration courts — and the children already in government hands.

Cases were moved to the front of the line so that master calendar hearings or arraignments could be held within 21 days of a child being turned over to the courts. The pace was exceptional for a system that was already underfunded and struggling with a major backlog of prior cases. From mid-July to Christmas, there were 24,333 arraignment hearings for unaccompanied children, more than 1,000 per week.

This record is central to a federal lawsuit coming to a head before U.S. District Court Judge Thomas Zilly in Seattle. Closing arguments are slated for Friday.

Brought on behalf of 11 child migrants, ages 3 to 17, the suit names Attorney General Eric Holder as the chief defendant. It argues that “to fulfill its statutory and constitutional obligations, the Government must ensure that no child faces the life-altering prospect of deportation without legal representation.”

Holder himself told Congress in 2013 that for a child to be without counsel in a deportation proceeding is “simply not who we are as a nation.” And in oral arguments on Sept. 3, Justice Department attorneys insisted there was never any intent to rush the children through the immigration courts without allowing time for them to try to obtain legal counsel.

But the results on the ground have often been quite the opposite, according to the data. Despite millions of dollars in new funding for more lawyers, many children are still being asked to make difficult legal decisions without counsel to advise them.

“I know the attorney general’s office is saying there’s no pressure, they can continue [the cases] as long as they want, but I don’t think anybody’s seeing that on the ground,” said Mark Bowers, a staff attorney with Legal Services of Southern Piedmont in Charlotte, North Carolina. “Things have gotten better. … But at some point you feel like you’re a triage surgeon in the battlefield. There’s only so much you can do, and there are so many of them.”

To measure this, POLITICO examined data provided directly by the Executive Office of Immigration Review, which oversees the courts, as well as a broader set of numbers also collected from EOIR by the Transactional Records Access Clearinghouse, a nonprofit based at Syracuse University in New York.

Any such analysis is complicated by the fact that EOIR began a new coding system for the unaccompanied children in the middle of the crisis last summer. But taken together, the sample — cross-checked against other reports by the Department of Homeland Security — offers a fair benchmark for the cases over the past 16 months.

TRAC, established in 1989, has a respected record of collecting public government data from law enforcement and domestic security agencies and making it available under the Freedom of Information Act. In the ongoing immigration debate, TRAC’s public website includes tools that allow a visitor to sort through its data from EOIR and assess how much variation there has been from one state to the next.

Working with these numbers, POLITICO looked at 26 states in which the immigration courts handled the vast bulk of the more than 62,300 juvenile cases included in TRAC’s data from EOIR for all of fiscal 2014 and the first months of fiscal 2015.

Ninety-three percent of the children came from Central America, with Honduras, El Salvador and Guatemala leading the way. These totals closely track DHS data on the number of unaccompanied children encountered in the same period.

The sample of court cases inside the U.S. covers a far larger area than just those 26 states, since the jurisdiction of immigration courts in one state can cross into others. For example, the Dallas immigration court handles migrant cases not just in northern Texas but also Oklahoma. The Atlanta court reaches into Alabama. Charlotte extends into South Carolina.

Taken as a whole, the state-by-state breakdown provides a snapshot of how different the outcomes can be for children across the nation. The names of the immigration judges, like those of the children, are protected.

POLITICO’s focus was on two measures: the level of legal counsel provided to the children and what share of the cases ended with removal orders or voluntary departure.

Having legal counsel emerges as a huge asset for the children. Many have difficulty with English, and some from Guatemala speak a Mayan dialect, rather than Spanish. The government always has a lawyer on its side; the child without counsel is at an immense disadvantage.

While most of the 2014-15 cases are still pending in the courts, about 20 percent have been completed. The outcomes are stark: Nine out of 10 juveniles subjected to a removal order or voluntary departure had no lawyer. Seven out of 10 who did have a lawyer won decisions allowing them to stay longer in the U.S.

In Massachusetts, where about half the children have had legal counsel, 6 percent of the cases have ended thus far with orders of removal or voluntary departure. In Illinois, where more than 80 percent of the children lacked counsel, the data show that about 21 percent of the cases ended with these tougher results.

The legal risks of not having a lawyer are aggravated by the very different approaches children face from one court to the next.

North Carolina tops the list with the toughest outcomes: An estimated 34 percent of the juvenile defendants ended up either subject to an order of removal or agreeing to voluntary departure. Georgia and Texas trailed closely at 30 percent and 29 percent, respectively.

That’s far higher than the average national rate of 15 percent for such outcomes. Courts in a diverse mix of states — Maryland, Pennsylvania, Missouri, Oregon, Arizona, Nevada and Tennessee — all come close to that national average. And there is a spread on each side: Minnesota, like Illinois, is higher; Virginia and New Jersey stand out for being much lower.

In response to questions from POLITICO, EOIR said it takes “seriously the need to fairly and accurately apply the law to the facts of each case before the immigration courts.”

But the agency did not address the specific evidence that some courts have been much quicker than others to issue removal orders. EOIR said it “takes steps to evaluate disparities in immigration adjudications” but cautioned that “perceived or actual disparities often result from variations in the law applicable to the type of case, the facts presented, and a host of other factors.”

But even allowing for some margin of error in the data, child defendants in Texas, Georgia and North Carolina are far more likely to receive a removal order or agree to voluntary departure.

From a national perspective, immigration judges in these three states handled about 26 percent of all juvenile cases in the past 16 months. But their share of all the removal or voluntary departure orders in the same period was double that, about 53 percent.

Indeed, if the combined totals for Texas and North Carolina are paired against those for California and Florida — two other big migrant states — it can seem like two worlds.

Each pair of states started from the same point: about 14,100 juvenile cases initiated in fiscal 2014 and 2015. But the number of removal and voluntary departure orders in Texas and North Carolina was 3.5 times the level in California and Florida.

That means almost 3,100 more children were adversely effected — all in a single federal system.

Bill Holston, who lived through those months as executive director of the Human Rights Initiative in Dallas, said the pace has since slowed in Texas, but the cost imposed on those children caught in the early dockets last year was very real.

“Tragedy is a better word,” he said. “Dockets were proceeding more rapidly than institutions could respond. The demand went up by 90 percent, and our resources were exactly the same. Eventually there were greater resources for these kids, but a lot of those kids had already been through the system by the time the system was really adequate.”

A closer look at North Carolina’s situation is telling. The three-judge immigration court in Charlotte suddenly found itself last year among the top 10 in the nation, given the number of children who relocated with relatives in North and South Carolina.

Prior to this, Charlotte had not been a major hub for immigration cases, so there were fewer experienced immigration lawyers readily available. As the backlog grew, judges became less patient in granting continuances as children tried to find representation.

“Children who do not have attorneys by their second master calendar hearing are routinely ordered removed or urged to take voluntary departure,” reads the sworn declaration of one North Carolina attorney, which was entered in January in support of the Seattle lawsuit.

Tin Thanh Nguyen, a second immigration defense lawyer, said there has been a big push to find more pro bono attorneys, but “there are still not enough … to really provide the legal services that the children need.”

The situation is even more difficult, he said, if a child wants to seek asylum because of life-threatening gang violence at home in Central America.

“Because of the nature of asylum work, there are not a lot of attorneys who want to take on these cases pro bono because it is just a lot of work,” Nguyen said. ‘There are a lot of children and a lot of the women and children coming out of the family detention facilities, who don’t have enough [money] to have any legal representation at all.”

Changing demographics — and the more anti-immigrant politics of the South — are a force, too.

“We have a lot of Central Americans in North Carolina and South Carolina. Most people don’t understand that,” Nguyen said. “They think everybody gets resettled in California. But what we’re seeing now is North Carolina, South Carolina, Georgia, Tennessee becoming a destination for a lot of Central Americans.”

The numbers bear this out. Texas will always be at the forefront of the debate, but as the number of border crossings surged in the Rio Grande Valley, immigration courts across the South were forced to carry more of the load than courts in Arizona or Colorado, or even New Jersey and Pennsylvania.

As early as May 2014, the Atlanta court began rearranging its dockets to deal with the crisis. But to the dismay of the immigrant-rights community, the female judge who had been handling the juvenile docket was sidelined. Instead, two male judges with less experience dealing with juveniles took the lead role handling the priority docket for the unaccompanied children.

The speed of the juvenile hearings greatly increased. What had been typically a once a month docket became twice a week.

“They have about 70 kids on Tuesdays and Thursdays. They don’t have training to deal with children. They are mad because they have these extra dockets,” said Salmon, who is in and out of the Atlanta immigration court as an attorney for the nonprofit Access to Law Foundation.

“The judges are either feeling pressure or they have decided to make it a priority to get these cases off the docket as fast as possible,” said Jessica Daman, a staff attorney with the Latin American Association, an Atlanta nonprofit. “It hasn’t gotten better. … We still see a lot of kids getting insufficient continuances to get representation. Around December and January in particular, we had a lot of kids walk into our office with removal orders where they either didn’t get notice of the hearing or they attended their second hearing without representation.”

The result of all this speed is more to clear court dockets than to resolve the future for the children.

As a rule, juveniles can’t be sent back alone to their home countries until they reach 18. The end result is the creation of a new class of young migrants, living under a legal cloud that makes it harder for them to plan their future.

This can be especially true for those who agree to voluntary departure — and then attempt to stay.

At first blush, voluntary departure can seem a more attractive option than a removal order. Deportation carries with it penalties that make it harder for an individual ever to come back to the U.S. A child who agrees to voluntary departure enjoys more of a clean slate, almost a “no harm, no foul” arrangement that makes it easier to apply to re-enter the U.S. legally in the future.

The catch is that the removal order is subject to appeal, whereas a child who agrees to voluntary departure and then stays past the allotted time — typically 120 days — has given up all chance of finding a lawyer and filing an appeal.

“You can’t ask for voluntary departure and not complete it. That’s serious,” said Salmon. “But if you are fleeing gang recruitment and threat of death, can you really safely go home? The second you overstay, it converts to an order of removal and it carries with it a 10-year bar to any adjustment.”

The fact that hundreds of children are making this type of decision without legal counsel is a major concern for immigrant-rights advocates.

“The kids who do end up with orders and voluntary [departure], you are really creating a situation where it’s a gray area again,” said Jenna Carl, an attorney and deputy director for immigration and legal services at Catholic Charities in Dallas. “And yes, they are going to have a shadow over them.”

“It dramatically changes their ability to succeed,” said Salmon. “We’ve seen it because for kids to work with our foundation we tell them they have to stay in school, they have to learn English, they have to stay out of trouble. We are very clear about what the expectations are.

“If you then turn around and tell a kid now you’ve got a removal order, 90 percent of these kids want to drop out of school,” Salmon said. “You are really marginalizing the most vulnerable among us.”