New Jersey immigration attorneys say that an influx of minors across the Mexican border is starting to be felt in the state’s immigration courtrooms, putting pressure on already heavily burdened nonprofit legal teams as they scramble to provide representation to as many children as possible.
These minors — many of whom are teens and preteens — are fleeing gang violence and abusive homes, attorneys say. Once caught, they are detained in shelters run by the U.S. Department of Health and Human Services. From there they are often released to family or family friends around the country, including New Jersey, where there is a large population of both documented and undocumented immigrants, attorney say.
Because there are only a small number of nonprofit legal groups or private attorneys who have experience with immigrant minors, many of these children and teens get minimal representation, if any. That leaves them in virtually impossible situation, fending for themselves in a language they don’t understand in a legal system that is typically tailored to adults rather than children.
And even the best legal representation is no guarantee of a chance to stay in the United States with friends and family. Deportation is all too common a fate for many of these children, returning to the same situation — personal, political, or both — that they originally fled.
By the Numbers
Federal officials did not have state-by-state or court-by-court figures for unaccompanied minors, but 13,625 children and teens were served nationally by the federal Office of Refugee Resettlement’s Unaccompanied Alien Children Program during fiscal year 2012. In addition, the Department of Homeland Security referred 24,668 unaccompanied children nationally to the resettlement office in 2013 and federal officials say the number could be as high as 60,000 in 2014 and 90,000 in 2015.
The numbers have grown so high in recent years, officials say, that many courts have created separate juvenile dockets to move minors through the system more efficiently and to provide better service to the children and teens. The Executive Office of Immigration Review in the U.S. Department of Justice said a separate juvenile docket hears cases in Newark on Wednesdays. Immigration attorneys in the state say that there are often between 15 and 25 cases heard by the juvenile docket each week and that there are only between 30 and 50 attorneys in the state with expertise with immigrant minors.
“Over the past five years, there has been a steady increase in the number of children who have gone through that process here,” said Elissa Steglich, the managing attorney for the Immigrant Rights Program at the American Friends Service Committee in Newark. She added that the influx of younger immigrants “really reflects the humanitarian crisis in Mexico and Central America and the security concerns that children there have.”
A federal plan, called Justice AmeriCorps, to train and provide about 100 attorneys and legal aides nationally for unaccompanied children facing deportation should help, attorneys and other advocates say, though New Jersey is likely to see no more than one or two of the volunteers.
Critics of federal immigration policy, including New Jersey Citizens for Immigration Control, say the program and others that aid immigrants will only attract more undocumented minors into the country. Immigration control groups like the Federation for American Immigration Reform at the national level and New Jersey Citizens for Immigration Control at the state level view programs like Justice AmeriCorps and the renewal of the federal Deferred Action program as signaling that the United States is not serious about controlling its borders.
The Obama administration announced on June 5 that it was renewing the Deferred Action for Childhood Arrivals program, which administratively forestalls potential deportation for two years for undocumented immigrants who came to the United States before their 16th birthday. More than 500,000 unauthorized immigrants applied for deferral during the program’s first two years.
The president also announced in a letter to Congress on June 30 that the U.S. Department of Homeland Security would be streamlining the removal or deportation process for minors snagged at the border, increasing penalties for smugglers and seeking funding for additional border agents, judges, and facilities. The letter did not identify a price tag for the program, but The New York Times reported on June 2 that he would be seeking $2 billion to cover the cost of his new deterrence strategy.
Characterized as ‘Insanity’
Gayle Kesselman, cochairwoman of New Jersey Citizens for Immigration Control, described the Justice AmeriCorps program as “insanity,” and said the administration was unconcerned with the impact that immigration had on American workers.
“We have a federal government that is looking to provide jobs and legal services for illegal immigrant children and teenagers,” she said. “This is why we have a flood of illegal immigrant children across our borders.”
She said that unemployment among teens remains high and that “making it easier for young people to come into this country illegally … makes no sense.”
Advocates for undocumented immigrants disagree. They say the influx is being caused by a spike in violence in Central and South America. Vera Parra, an organizer with Faith in New Jersey (formerly PICO New Jersey), likened it to a refugee crisis.
“There are powerful and violent forces pushing children out of their country,” she said. “It really is a refugee issue. It is something that — UNICEF and UN peacekeepers should be there, the same way as with other refugee issues. There needs to be a paradigm shift in the way we are thinking about the kids who are coming in.”
Parra tells the story of Edgar, who had lived in the United States until he was about 10 years old when his family was deported to Mexico. He attempted to reenter the United States two years ago when he was about 14 in an effort to escape growing gang violence in his village, Parra said. Edgar “saw so much violence there, saw his friend get shot,” so he attempted to cross the border on his own. He was detained and eventually sent to the Elizabeth Detention Center, before he was released to family.
Edgar was lucky, Parra said, because he had access to an attorney, but too many child and teen immigrants lack representation, meaning their often-legitimate protection claims do not get heard. “Many (of these children) would be able to qualify for some sort of status or relief,” she said.
Edgar’s story is not unusual, said Kimberly Krone, youth justice attorney with the American Friends Service Committee. She has two current cases, male teens from Guatemala, that share some similarities with Edgar. Both fled violence — in the home and from gangs. Both were detained at the border more than a year ago while crossing and placed with either family or friends in New Jersey in 2013. Both teens qualify for Special Immigrant Juvenile Status, a protected status that means they were fleeing abuse, abandonment or neglect by at least one parent or guardian in their home country, Krone said.
Most of the minors she sees qualify for such status, Krone said, but the process is long and cumbersome, involving multiple court visits, making representation crucial to ensure that the teen and child immigrants have access to all of the resources to which they may be entitled. Gang violence is common, she said, and there are “definitely a lot of young boys who come because of gang recruitment, who have been beaten up multiple times and who feel that if they resist they will lose their lives.”
This drives them across the border, she said, where they often are caught and detained. They remain in federal custody for an average of about 40 days, Krone said, before they are placed with family or friends who are subjected to background checks to ensure that the minors can be cared for.
Their Days in Court
Once placed with a family, the minors may face numerous court appearances — both in immigration court, where they are facing removal proceedings, and in family court, which reviews their family status and, if a minor is granted legal status and issued residency papers, approves guardianship.
“Children are not guaranteed an attorney in immigration proceedings,” Krone said. “If they can’t afford one, they are relying on a couple of organizations in New Jersey. Cases are time-intensive and there are only so many cases that we can represent at one time.
“We’re not increasing our capacity,” she added. “More and more minors are unrepresented.”
Steglich pointed to a report by the United Nations High Commissioner for Refugees, issued earlier this year. According to the report, 58 percent of the 404 “displaced children” from Central America and Mexico interviewed by UNHCR were “forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”
Steglich said it is a combination of “gang violence in Central America, other criminal organizations, and a lack of security that oftentimes makes it dangerous for children even to go to school.” There also could be situations in which children were left with caretakers in their home countries who are no longer capable of caring for the children, due to illness or local economic issues.
A February 2014 report issued by KIND — Kids In Need of Defense, a national organization with an office in Newark — identified similar issues driving child immigration. In addition to the gang violence and problems at home, it said that drug violence and natural disasters like the Haitian earthquake also are forcing children across the border, though New Jersey attorneys say the vast majority in the state come from Mexico and South and Central America.
KIND’s report also outlined specific issues facing juveniles during removal proceedings, including language (both a lack of English and a failure of the court to use language appropriate to the age of the minor), the antagonistic nature of court proceedings, the length of proceedings, and the minors’ inability to understand the ramifications of what is happening in court.
“Lacking representation means that a positive outcome is far less likely and that a child’s experience during the proceedings will be unnecessarily negative and in some cases traumatic,” the report says.
Violence and Corruption
Minors are coming from countries beset by violence and where government corruption is common, attorneys said. They can feel intimidated by the legal process, especially because they and many of their caretakers do not speak English. This causes some to miss court appearances, which could lead to an order of deportation.
“Court and formal proceedings are a new phenomenon for them,” Steglich said. “Even if a judge says they are eligible, the information is not available enough for even a child with an adult caretaker to do the research and work on their own.
“Even the most simple application, if a child or caretaker, if they share with judge that they have a fear of return, the judge may hand them an application form in English with no translation available,” Steglich said. “They have to complete the form in English, file it in a certain location and with a certain cover sheet, get a receipt, and then come back to court with the receipt.
“They have to do all of these little things that even many attorneys who don’t regularly handle children’s cases aren’t aware of,” she added. “To place that burden on someone who is unrepresented is unfair.”
Steglitch says the Newark immigration court has made efforts on behalf of juveniles — the juvenile docket has a more relaxed environment and offers more cohesive services for children — but the lack of representation remains a significant issue. And Catholic Charities offers a family orientation program to help minors and their guardians understand the process. But “most of the immigration bar handles adult cases,” Steglich said.
“It is built for adults, but there is a great need for attorneys who are working with children, who know the specialized laws and procedures for children and how to work with children,” she said.
And this has a great impact on how immigrant minors fare in court. Even with the children’s docket, which is in place in about a dozen states nationally, none of the administrative processes — outside or inside the courtroom — are child friendly or even non-English-speaker friendly,” Steglich said.
“They are geared toward having an attorney to guide you,” she said.
Wendy Spencer, chief executive officer of the Corporation for National and Community Service, which will administer the Justice AmeriCorps program, said the new program should help provide representation for a vulnerable population.
Providing Critical Support
“Young immigrant children entering the U.S., often under dangerous circumstances, represent some of the most vulnerable individuals who interact with our immigration system,” she said June 6. The lawyers and legal aides recruited by the program “will provide critical support for these children, many of whom are escaping abuse, persecution, or violence.“
The Justice AmeriCorps program is a partnership with the U.S. Justice Department and the national Corporation for National and Community Service and will be will be administered through the national AmeriCorps program. It sets aside $2 million for the creation of a federal program to enroll and train about 100 lawyers and paralegals and have them work in 29 of the nation’s busiest immigration courts, including Newark.
According to the CNCS website and interviews with New Jersey attorneys, the lawyers and paralegals will be provided to host organizations in New Jersey that provide representation in the Newark court, which serves the entire state.
The program is seeking organizations willing to host volunteer attorneys and paralegals, who would be provided with a “living allowance” of up to about $24,000 a year and could be eligible for additional funding for education.
“How we treat those in need, particularly young people who must appear in immigration proceedings — many of whom are fleeing violence, persecution, abuse, or trafficking — goes to the core of who we are as a nation,” U.S. Attorney General Eric Holder said June 6.
New Jersey immigration advocates say they welcome the help. But they also say the relatively small size of the program is likely to limit its impact – 100 attorneys means no location is likely to have access to more than a handful of additional lawyers.
Non-profits like the American Friends Service Committee, KIND, and the Immigrant Justice Clinic at the Rutgers School of Law in Camden are attempting to address the shortfall, but “funding is always a challenge for nonprofits.”
“Nonprofits have no one to turn to,” Steglich said. “It is a recognition that in order to provide access to qualified and knowledgeable council, we need help. This program can give us a huge helping hand.”
Joanne Gottesman, director of the Immigrant Justice Clinic, agreed.
“Kids have not been legally considered competent (in the U.S. justice system) because they are minors,” she said. That means they are treated differently in court than adults. The same should be the case for undocumented youth, she said.
“For me, it is an issue of fundamental fairness,” she said. “Are we the kind of country where we have children who are facing extreme circumstances and violence in their own country and have them face the consequences of removal without representation?”
Kesselman, however, disagreed. The program will just make it easier for minors to enter and stay in the country, which is contrary to what the American people want.
“This program demonstrates how completely out of control and insane our federal government has become,” she said.