Children in the immigration system need more legal protection

The vast majority of the 66,000 unaccompanied Central American children who have surrendered at the southwest border still do not have attorneys. Desperate advocates, seeking lawyers to represent kids as young as 6 appearing alone in court to fight deportation, are being forced to tinker around the edges of an unfolding legal crisis.

Many immigration judges — their courtrooms packed daily with unaccompanied children (UC) who have fled all manner of violence in their countries — are relying on a model called Friend of the Court (FOC) to help them try to adhere to a lawful, and fair, process.

The problem is that FOC does exactly what its name suggests — it exists to help the court and not the child, and some suggest it expedites a process stacked heavily against the unrepresented child. FOC is a like a tourniquet where surgery is required. (Unlike other courts, lawyers are not guaranteed in immigration court.)

With the Obama administration seeking “fast-track” child deportations, judges cannot keep pace and themselves argue that speed compromises accurate and lawful decision-making. “Speeding up the process creates an unacceptably high risk of legal errors,” the National Association of Immigration Judges said in a recent statement.

Even without the child “surge,” 228 immigration judges nationwide are already juggling about 375,500 cases with an average decision time of 587 days. The administration has shoved the children to the front of the line, reassigning judges to UC dockets and requiring initial or “master” hearings within 21 days instead of months.

Advocates are torn over the FOC as a primary court tool. In the Miami Immigration Court, four judges have been assigned to UC “rocket dockets,” fast-paced appearances of about 150-200 unaccompanied children, and now children with parents, in the courtrooms on any given day.

Four local groups have, or will, become the FOC for these judges: Catholic Legal Services of the Archdiocese of Miami, the Cuban-American Bar Association, Americans for Immigrant Justice, and, perhaps shortly, the local chapter of the American Immigration Lawyers Association (AILA).

FOCs have streamlined the court’s ability to efficiently gather information; pointed out government errors in service and paperwork; encourage judges to grant longer continuances so children can find lawyers; and orient the child to courtroom procedures, all of which provide some modicum of protection.

But last month, Chief Immigration Judge Brian M. O’Leary issued a memorandum setting a bright line for FOCs on the “limitations on the proper use” of a FOC.

“The FOC is a stop-gap and not the answer,” said Michael Vastine, a law professor at St. Thomas University School of Law in Miami Gardens and secretary of South Florida AILA. “The alternative was to watch the system crash, and the kids would unnecessarily suffer.”

The quandary for advocates is that FOC likely provides a veneer of due process while aiding the government’s goal of swiftly deporting children. The argument has weight: About half of represented children are allowed to stay, while 90 percent of those without have been ordered removed.

There are efforts afoot:

▪ New York City, San Francisco and the state of California have allocated funds to pay for lawyers.

▪ U.S. Health & Human Services has allocated $9 million over two years to help 2,600 kids.

▪ AILA national has signed up about 800 lawyers and organizes trainings.

▪ AILA South Florida is seeking attorneys and may organize events to match them with kids.

In Seattle, a federal court denied a preliminary injunction seeking one-year continuances and legal representation for unaccompanied children. The court, however, said it was “sympathetic to plaintiffs’ plea for legal assistance with the immigration maze in which they now find themselves.”

While laudable, these are piecemeal efforts for a crushing child-refugee crisis. Children, regardless of their immigration status, should be afforded more rather than fewer legal protections precisely because they are children.

It is shameful that, with our astounding national wealth and reputation as a human-rights beacon, the administration is putting the hammer to children, and legal advocates are literally begging for help.

Jordana A. Hart is an immigration attorney in Miami and co-chair of the Media Advocacy Committee of the South Florida chapter of AILA.

This story was originally published October 8, 2014 at 6:25 PM with the headline "Children in the immigration system need more legal protection."