Since last July, 352 children without lawyers have succeeded in having their removal proceedings terminated or administratively closed — two measures of potential progress toward asylum or special immigrant juvenile status. At the same time, 4,711 children without counsel were ordered removed or compelled to accept voluntary departure — an outcome that surrenders the defendant’s right to appeal in the future.
That’s a 13-fold difference and a world apart from what’s still a difficult experience for those who can find a lawyer.
In the same nine-month period, 2,459 children with legal counsel succeeded in having their removal proceedings terminated or administratively closed — seven times the number for children without lawyers. Just 1,096 were ordered removed or took voluntary departure, less than a quarter of the total for child migrants without legal representation.
When broken down court-by-court, the odds are even longer, especially in the South. Indeed, the disparities pose a real challenge for President Barack Obama, who promised equal treatment and compassion for the children.
The latest data were released to POLITICO under a Freedom of Information Act request filed after a March court hearing in Seattle, where Justice is fighting a lawsuit challenging Obama’s decision last summer to expedite deportation proceedings for the children without first assuring them legal counsel.
The president has since sought more funding for the children’s legal representation, albeit with limited success given opposition from Republicans in Congress. The Seattle lawsuit argues that the numbers are still inadequate and the deportation proceedings violate the children’s rights to counsel and due process under the Constitution.
An important test is whether the children have adequate access to two major paths of relief, each expanded under a 2008 human-trafficking law.
The first is to apply for asylum, given the increased gang violence and drug trafficking in Central America, which contributed to the surge in border crossings last year. The second rests more on each child’s direct family situation and his or her ability to qualify for special immigrant juvenile status, a step toward permanent residency.
Each has its challenges. The 12-page application for asylum must be in English and ultimately can require significant documentation. Pursuing special immigrant juvenile status might seem easier but first requires a child to navigate a thicket of state courts to secure the required predicate order — a nearly impossible task in some jurisdictions.
Much, too, depends on the immigration judge’s willingness to allow extra time by granting continuances or suspending the removal proceedings by administratively closing the process.
Practices vary from court to court. Many judges favored continuances, allowing them to maintain some oversight. In the case of children without counsel, a sympathetic judge might do this, in fact, for the good of the child so that he or she is not lost in the asylum system.
But given the record surge of cases after Obama’s order, more judges are under pressure to clear their dockets, and the administrative route is more frequent in some courts. The numbers are not dispositive of relief granted, but when combined with the number of terminated cases, the data serve as a good indicator of how the children are faring.
Certainly in making its case in Seattle, Justice has spoken in the context of administrative closures. And in the March hearing, the department argued that this path is readily available to all children seeking asylum.
“They attend the hearing, they tell the judge that they have a fear of removal to their home country, and the judge administratively closes their removal proceedings. I think that’s it,” Deputy Assistant Attorney General Leon Fresco told U.S. District Court Judge Thomas Zilly, who is presiding in the Seattle case.
Later, Fresco returned to the same subject, assuring Zilly that an immigration judge can close the proceedings without the child having the burden of presenting expert testimony. “More than likely, Your Honor, the judge would ask, ‘Are you afraid to go home?’ ‘Yes.’ ‘Why?’ ‘Because they shot my parents.’ ‘Okay. You get asylum,’” Fresco said, according to the court transcript.
Veteran immigrant-defense attorneys were furious at the time, saying Justice had grossly understated the hurdles facing the children. POLITICO submitted its FOIA request to try to test the conflicting claims against the government’s own data.
The Executive Office of Immigration Review, which oversees the immigration courts, responded by providing a computer run for the outcomes of more than 8,660 cases for unaccompanied children from last July 18 through April 14. Still pending in the courts are an estimated 18,000-plus cases not included in the FOIA reply. But the raw data provided by EOIR filled more than 320 pages and covered both outcomes for individual courts and whether the child defendant did or did not have legal representation.
The numbers plainly show that children with lawyers have fared far better than those without. All this has happened when the special protections under the 2008 law have been hotly contested by Republicans in Congress. And it would appear that some judges have chosen to effectively negate those protections for children without counsel.
Consider, for example, the outcomes of cases in Atlanta and Miami immigration courts, both under the same 11th Circuit court of Appeals.
Since July, Atlanta’s court has issued 324 removal orders for children without lawyers, versus only one case where the removal proceedings were closed or terminated. Down the road in Miami, the same data shows that 188 children without legal representation were ordered removed, while 73 succeeded in having their hearings closed or the cases terminated.
The administration would argue that the EOIR numbers are overly bleak in that so many children were ordered removed “in absentia” when they failed to show up in court in the first months after Obama’s order.
The outcomes are more equitable for those children who do appear — with or without a lawyer, Fresco assured Zilly in the March hearing. And in defense of his exuberance about the asylum process, it was later said that Fresco was speaking in shorthand and only about those immigration courts operating under the more liberal regime of the Ninth Circuit on the West Coast.
This approach makes some sense from a purely tactical standpoint. The child plaintiffs in the lawsuit are drawn heavily from areas like Los Angeles and Seattle, where the pace of removal orders has been much slower. But even in these more liberal jurisdictions, the EOIR numbers show that child migrants with lawyers are far more successful in having their cases closed or terminated than those children without legal representation.
In Los Angeles, just eight children without lawyers have had their removal proceedings terminated since July, compared with 223 for those with lawyers.
But for Obama, the bigger issue is one of governing the whole country, not just the Ninth Circuit. The question then is whether his administration — in trying to win a short-term legal advantage — has turned a blind eye to the even greater inequities for the children elsewhere in the country.
The EOIR data clearly highlights these disparities. And the issue will be important to the next stage of the Seattle case where immigrant rights attorneys hope to certify an expanded class of child plaintiffs and make the suit a national class action.
It’s not clear yet how far Zilly, who was nominated by President Ronald Reagan, is willing to go. But in an April 13 ruling, he denied Justice’s motion to dismiss the entire suit, saying the right-to-counsel claim was too vital to be put off and deserved “an answer.”
During the March hearing and again in his opinion, Zilly also hinted that the government should consider having at least a staff attorney in each immigration court to advise the child of his or her rights during the removal proceedings.
“The removal proceedings at issue in this case pit juveniles against the full force of the federal government,” Zilly wrote. “The government initiates the proceedings, it is represented in them, and its discretion in executing removal orders is insulated from judicial review. Moreover, courts have repeatedly recognized ‘with only a small degree of hyperbole’ that the immigration laws are ‘second only to the Internal Revenue Code in complexity.’”