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Unaccompanied Minors

By Donna Mallard | May 2, 2015
News

Law Office Management

May 2, 2015

Unaccompanied Minors

Finding lawyers to handle the immigration cases of unaccompanied minors, even for children as young as four, is a daunting challenge.

At last, more than two hours after the hearing started, it was almost Carlos's turn. The slender teenager sat hunched at the edge of a long wooden bench, beside his aunt. "I always have to go last," he whispered, kneading his hands together. The courtroom was smaller than he'd imagined before his first visit and the judge less intimidating, but even on his second visit the proceedings made him anxious.

When Carlos left his home in Honduras one year ago this month, he had no idea he'd be entering the United States during the biggest immigration surge in decades-as one of nearly 70,000 Central American and Mexican children fleeing poverty and rampant gang violence over twelve months. Nor was he prepared to navigate a complex immigration enforcement system that was precariously stretched under their weight.

By comparison he was lucky. Carlos didn't have to cling to train tops and beg for food to make it through Guatemala and Mexico. Though his family was poor, his mother had owned a small plot of land and she sold it to pay for a string of bus rides north. For his 1,500-mile trip, Carlos brought only the clothes he wore and a piece of paper on which he'd scribbled the phone number of an aunt in California. Eight days after he set out from his remote village near the El Salvador border, Carlos climbed into a small boat and crossed the Rio Grande into Hidalgo, Texas, he says. Within hours he was detained by Border Patrol agents and placed in a detention facility. He dreaded being sent back to the dangers he knew at home.

But Carlos (to protect his privacy, just Carlos) was designated an unaccompanied minor, a title that gave him protections adults in his situation don't have. The law requires that Carlos be screened to determine if he had been trafficked or if he might have an asylum claim, then turned over to the Office of Refugee Resettlement (ORR).

Agency officials tried to contact Carlos's aunt, but the phone number he had was no good. He says he spent some eleven days in a Texas detention facility, though his sense of time might be skewed; there were no windows, so he could never tell if it was day or night. The place was overflowing, and he says he slept on the floor without a blanket. He was always cold and barely got enough to eat. Then at dawn one day he and roughly two dozen other children were put on a plane. They asked where they were going, but Carlos says nobody would tell. He was sure the flight was headed straight to Honduras.

Six hours later the group landed in New York, where the children learned they'd be living at a new facility. "We were so happy," Carlos says. The temporary shelter was one of many around the country the government had started using because border facilities were overflowing. After Texas, the new home was a haven: People were kind to him, and he got to attend classes. The ORR eventually tracked down Carlos's aunt, and once she'd passed a background check they let her fly him to California, chaperoned by a flight attendant. He had a notice to appear in San Francisco immigration court about two months later.

Like Carlos, all children detained at the border without their parents need a safe place to live while they face removal proceedings. The ORR is charged with finding that place, usually with a family member or a volunteer sponsor. Most often, these guardians live in California, Texas, or New York. Between October 2013 and February 2015 more than 6,900 unaccompanied minors joined caretakers in California, and as they make their way through the state's immigration courts everyone involved is feeling the effects: Judges carry impossible caseloads, legal aid groups strained beyond capacity scramble for help, state court judges find themselves playing an unexpected role in the minors' fates, and getting representation is a struggle-even for children as young as four. The situation is worst in rural parts of California where legal resources can be scarce, and nowhere is the crisis more acute than the state's Central Valley.

From the back of the San Francisco courtroom, Carlos watched as the judge waved to a five-year-old asylum seeker: "Hi, Maria!" Maria, who'd spent much of the past two hours crawling around under the benches, gave a shy wave from her grandmother's lap. Next a 15-year-old girl who'd fled El Salvador took her turn before the judge and made her way out of the courtroom, leaving just Carlos's case on the docket. As the teen situated himself at the respondent's table, the judge phoned Carlos's lawyer. Some 180 miles away in her law office in Fresno, Camille K. Cook, an immigration specialist at Salazar & Cook, picked up.

Carlos lives with his aunt and uncle in Mendota, a small farming town outside Fresno where cantaloupes are abundant, lawyers are few, and unemployment can top 40 percent in drought years. He found his way to Cook through a volunteer attorney at his first hearing and can only afford her help because it's free. As the judge leafed through Carlos's file he noticed Cook's goodwill effort. "I appreciate that," he said. "Doing our best," she responded with a brightness belying a full workload intensified by four complex pro bono cases.

Though the majority of California's young lone immigrants-unaccompanied alien children, or UACs, as they're often called-have ended up in Los Angeles County and the San Francisco Bay Area, a significant number are living in rural parts of the state such as Kern and Fresno counties. The ORR counts at least 700, but it records figures only for counties home to more than 50 unaccompanied minors. Another factor, advocates say, is that minors placed in big cities often end up moving to the Central Valley or other rural areas with their relatives. Overall, the Bar Association of San Francisco (BASF) estimates that nearly one in five unaccompanied minors appearing in San Francisco Immigration Court lives in the Central Valley.

Getting free legal help there, or anywhere outside the state's metropolitan centers, can be challenging; finding support for a complicated case like Carlos's is especially difficult. Comparatively few immigration attorneys work in Fresno, for example, and perhaps only a handful have the specialized knowledge to handle his case.

But for children like Carlos, access to legal representation is largely what determines whether or not they're deported. Three years' worth of Executive Office for Immigration Review (EOIR) data analyzed by Syracuse University in November 2014 shows that UACs without attorneys were allowed to remain in the United States in only 15 percent of cases. (The EOIR is a separate agency within the Department of Justice that includes the immigration courts and the Board of Immigration Appeals.) Meanwhile, children who had attorneys were granted relief in nearly three quarters of cases. Yet only one-third of the UACs in immigration proceedings as of last October had a lawyer. "We have children in court appearing on their own," says Carole Conn, director of public service programs at BASF's lawyer referral service. "There's no other court that would allow a child to stand in an adversarial setting without representation."

The key reason for the deficit, advocates say, is the limited availability of qualified pro bono counsel, since most UACs and their families can't afford to hire help. And unlike in criminal court, immigration court respondents have no broad legal right to a lawyer. Although the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 establishes other broad protections for UACs and enlists the secretary of Health and Human Services to help ensure that most get counsel, it excludes respondents from Mexico and Canada. (Pub. L. No. 110-457.) The legislation compels the independent child advocate (appointed by the HHS secretary) to "make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge." Still, nonprofit legal aid organizations and attorneys working pro bono don't have the resources to manage today's volume of young lone immigrants. "You're talking about cases that require time," says Eliana Kaimowitz, a consulting lawyer with the privately funded California Rural Legal Assistance Foundation in Sacramento. "There are language barriers, cultural barriers; we're talking about kids who need specialized legal attention."

Compounding the problem, as part of the Department of Justice's plan to deal with the surge and deter further migration, it launched an expedited processing protocol for UAC cases that bumps them to the head of calendars: "rocket dockets" for immigration courts. When the change was announced last July, then-Deputy Attorney General James M. Cole stressed a commitment to humanitarian care but explained, "[W]e also must do whatever we can to stem the tide of this dangerous migration pattern." Under the new guidelines minors who entered this country alone-as well as those who came in with parents-get court dates as early as two weeks from the time their charging documents are filed with the immigration court.

"It makes no sense to take the most vulnerable group of immigrants with the least ability to access counsel and put the most onerous time requirements on that group," says attorney Judy London of Public Counsel's Immigrants' Rights Project in Los Angeles. "Rocket dockets add more misery to an already overwhelming situation." She notes that the rushed hearing schedule leads judges to order many children deported simply for failing to appear in court, and ensures that most of those who do appear won't have found competent lawyers.

Judge Dana Leigh Marks, president of the National Association of Immigration Judges, says the rush has bad effects all around: While UACs are hustled into court unprepared, cases not on the rocket docket that get pushed back three or four years can suffer. The result, Marks says, is that judges' ability to ensure due process is undermined.

Never mind that for the children in proceedings, what's at stake is often a matter of survival. (Marks, a 28-year veteran of San Francisco's court, refers to cases like Carlos's as "death penalty cases heard in a traffic court setting.")

"The immigration courts have never been as overwhelmed as we are now," Marks says, acknowledging the toll taken by years of chronic underfunding and limited judicial autonomy. In her view, the decision to rush the wave of unaccompanied minors through the system has pushed it to the brink. "This is the last straw that has completely undone us as a court system," she says. "It's led to untold chaos."

In San Francisco, 13 immigration judges oversee 29,000 cases-roughly 2,200 each. The judges average 36 hours a week on the bench, leaving vital research and review to be conducted in the margins, or on personal time.

All Congress gave the immigration courts to help deal with the surge of cases was supplemental funding for videoconferencing and digital audio recording equipment in courts, says EOIR spokeswoman Kathryn Mattingly. To bolster staffing, the courts have had to shift resources internally, says Mattingly, based in Falls Church, Virginia. This made it possible to fund new positions for 67 judges and more than 100 legal assistants, she says, though less than a third of the additional judges are in place. On the other hand, a significant amount of federal, state, and local money has been set aside for unaccompanied minors' legal representation. Last year the HHS dedicated $9 million to help pay lawyers for 2,600 UACs over two years. The cities of San Francisco and New York each allocated about $2 million each for legal services, and last September, Gov. Jerry Brown signed SB 873, channeling another $3 million to 17 legal aid organizations throughout California (5 offer services in the Central Valley).

One warm morning last November, down the street from Fresno's historic Warnors Theatre, UC Davis law professor Leticia M. Saucedo took the stage at a small business center. "Our goal is due process," she told the lawyers and advocates crowding the brightly lit room. "Our goal is to ensure that there's legal representation and support for every unaccompanied minor in the Central Valley." Saucedo was addressing the newly formed Unaccompanied Minors Central Valley Collaborative, launched by the UC Davis law school's immigration clinic, California Rural Legal Assistance Inc. (CRLA), and the California Rural Legal Assistance Foundation.

The coalition originated last fall after the California attorney general's office called meetings with major law firms and legal aid groups to discuss expanding representation for unaccompanied minors in the Central Valley. The players who attended pointed out that reaching children in urban centers was only part of the challenge; getting help for kids in rural areas would be even tougher. "There's no thriving immigration legal services community in the Central Valley; there isn't in Sacramento either," explains the CRLA Foundation's Kaimowitz. "There are very few people for very complex cases."

To get more lawyers involved, the AG's office asked UC Davis, CRLA, and its sister organization to take the reins and form a plan. (Because the foundation does not rely on federal funding, it generally has more freedom to represent noncitizens; however, restrictions are looser for certain victims of abuse-and unaccompanied minors often are among them.) The partners decided their best bet was to hold a training session for local attorneys that promised continuing legal education credit. Experts from Davis's immigration law clinic, along with other experts, would present the basic issues pertaining to the minors; then, hopefully, the participants could be recruited to take a child's case pro bono, working with an expert mentor. After several months of meetings and conference calls, the Unaccompanied Minors Central Valley Collaborative held its inaugural training.

Turnout was better than expected. When the 60 chairs filled quickly, attendees took to standing at the back of the room. Many of the lawyers who attended had already volunteered to take a case, but advocates of all kinds also showed up-including a pair of United Farm Workers representatives hoping to find somewhere to refer people who called them for help.

As the training got under way, the crowd learned how to screen minors to determine what form of relief might be available to them. Some might be eligible for asylum if they can prove that upon returning to their home country they'd be persecuted on account of "race, religion, nationality, membership in a particular social group, or political opinion." By itself, the threat of gang violence-which many of these children are fleeing-does not meet the "particular social group" standard laid out in the Immigration and Nationality Act, UC Davis specialists explained. To make a successful case for asylum, then, lawyers must show that the minors belong to another qualifying group, too: for instance, Christians in Honduras whose religious beliefs lead them to oppose the Mara 18 gang there. Alternatively, children who don't have a good case for asylum but who are victims of certain crimes laid out in the INA, and who aid law enforcement with the investigation, could be eligible for a U visa. Victims of sex or labor trafficking might apply for a T visa.

Seasoned attorneys from UC Davis and from Legal Services for Children and the Immigrant Legal Resource Center in San Francisco clicked through slide after slide. The training participants took notes on the complex processes, some starting to look a bit dazed. But the scribbling slowed when Dr. Amana Ayoub of the Center for Survivors of Torture took the microphone and began explaining that she's never worked with an unaccompanied minor who didn't suffer from "layer upon layer" of trauma. Ayoub described a set of crucial considerations involving sensitivity: Because of the violence they've experienced at home, and the traumas faced along the trek north and in detention centers, almost all UACs suffer from post-traumatic stress disorder-and the very process of preparing for court can retrigger it. But sometimes to build a case, lawyers have to dig up details of a child's traumas. Negotiating linguistic and cultural barriers to coax that story out-humanely but expeditiously, given the brisk pace of these dockets-takes skill born of decades' experience; many of those in the audience were being asked to do this work for the first time. Brows crinkled, and few people looked eager to take up the challenge.

Since the training session late last fall, organizers say, 15 unaccompanied minors in the Central Valley have been placed with volunteer attorneys (including some solo practitioners), and seven mentors are overseeing their cases. But those who work most closely with the children who show up unrepresented in San Francisco say much more help is needed.

"The Central Valley is our biggest challenge," says Adina Hemley-Bronstein, who coordinates immigration cases for BASF's lawyer referral service. For more than 25 years the referral service has run the Attorney of the Day program at immigration court, staffing it with two experienced attorneys who volunteer to shepherd lawyerless respondents through their first hearings. (Carlos was one they helped.) When the expedited hearings started last summer, the program stepped up its staffing to eight volunteer attorneys per day.

California has immigration courts in Adelanto, Imperial, Los Angeles, San Diego, and San Francisco. The San Francisco court's jurisdiction is vast, stretching from Bakersfield to the Oregon border. Hemley-Bronstein says that Fresno, Sacramento, Tulare, Monterey, San Joaquin, and Sonoma counties have provided the bulk of nearly 450 cases from underserved areas that crossed her desk. Only about one-third of these cases involve unaccompanied minors; the other children are in proceedings with families. All of these respondents-about 950-entered during the surge and are subject to expedited proceedings. Hemley-Bronstein points out that her tally reflects only respondents who arrived in court without representation and interviewed with a volunteer attorney of the day.

Once those initial hearings are over, it's Hemley-Bronstein's job to make referrals for the flood of cases. She seeks out a nonprofit legal organization to either take on the case or find a pro bono attorney who will. For Central Valley cases, she often turns to Oakland's Centro Legal de la Raza. Its five immigration lawyers are working 250 "surge" cases, the majority of which are based in the East Bay or the Central Valley, says Eleni Wolfe-Roubatis, the center's immigration program director.

"We represent a lot of unaccompanied minors in the Central Valley," Wolfe-Roubatis says, "but there are more than we can absorb." Centro Legal is a partner in the new Central Valley collaborative, but the association hasn't yielded many new resources. "There just isn't a great pro bono base," she says. "Now, everyone is at capacity."

Perhaps the most significant obstacle to expanding legal help for unaccompanied minors is, ironically, a program intended to protect these children. As part of the Immigration Act of 1990, Congress created Special Immigrant Juvenile (SIJ) status to shelter abused or abandoned immigrant children. The program offers a road to citizenship but it's convoluted, proceeding in stages at three government entities.

To be eligible for SIJ status in California courts, a respondent must be no more than 17 years old, unmarried, and have a state juvenile court either appoint a legal guardian or declare the child a dependent of the court. The same court must also determine that it's not in the child's best interest to return to his or her home country; and that family reunification isn't possible because of abuse, neglect, or abandonment by one or both parents. If all these conditions are met, the case proceeds to federal immigration court and the United States Citizenship and Immigration Services for resolution.

In theory, specialists say, special immigration juvenile status is great: Who can better look after the interests of a child than a juvenile court judge? But in practice things play out differently, Abigail Trillin, executive director of Legal Services for Children, told the crowd at legal training in Fresno. "What that means is 50 different states making different types of determinations in different types of courts." In California it means differing rulings in 58 counties. And since state court judges often aren't accustomed to dealing with immigration matters (especially in the Central Valley), Trillin warned, "The first thing they're going to tell you is, 'I don't have anything to do with this; I'm not an immigration judge.' I've literally had judges say, 'Why are you in my court? This is not my problem.' "

Recognizing these complications, California has made efforts to streamline SIJ proceedings. Last year SB 873 set aside funding for unaccompanied minors and included language to clear up the state courts' role. According to Curtis L. Child, the state Judicial Council's chief operating officer, there was concern that "these tended to look like federal immigration cases, and therefore they were not being heard."

A few days after the bill was enacted, Child circulated a 19-page memo to presiding judges and executive officers of California's superior courts, detailing the law's expected impacts on filings in juvenile, family, and probate guardianship proceedings. The memo also explained the new affirmative responsibility on the courts to make necessary findings regarding eligibility for SIJ status when there is a showing of sufficient evidence. "We've been reaching out to courts" to clarify the changes in state law and the obligations judges are under to make predicate findings, Child says.

Another major challenge for advocates of minors seeking SIJ status has been the paucity of case law in California. "Until this year there were not a lot of published opinions," says Kristen M. Jackson, an attorney with Public Counsel in Los Angeles. "We've had 25 years of opportunity [since the Immigration Act of 1990], but the reality is that very few cases have gone up to the courts of appeal."

Earlier this year, however, two California appellate courts issued corrective orders in two cases-one in Alameda County and the other in Orange County-in which state trial judges had declined to make SIJ status findings. (In re Israel O., 233 Cal. App. 4th 279 (2015); Eddie E. v. Superior Court of Orange County, 234 Cal. App. 4th 319 (2015).)

Jackson says these recent appellate rulings have buoyed immigration advocates all over the country. "The lower courts are more comfortable making [required] findings once they have approval from [a] higher court."

The first SIJ status case Carlos's immigration lawyer took on didn't go well. "The court here didn't know what we were doing," Camille Cook says. She had to go to the Fresno courthouse multiple times to convince the judge that her case belonged in superior court. "We know how to deal with San Francisco Immigration Court," Cook says. What makes SIJ cases so complicated is dealing with state court as well. "There are lots of moving pieces, lots of forms moving back and forth, lots of steps," she says.

Wolfe-Roubatis of Oakland's Centro Legal concurs. Her team takes on as many minors' asylum cases as they can handle, she says. Yet kids in the Central Valley whose only option is SIJ status usually must find help elsewhere. One possibility for streamlining resources would be splitting cases: Central Valley attorneys would handle the initial juvenile court proceedings, then hand off the respondents to Bay Area nonprofits when their cases shift to federal court. Still, says Wolfe-Roubatis, for that to happen "we need to have attorneys in [the] Central Valley offering services."

When she first met Carlos, Cook wasn't sure how she could help him. Referred by Legal Services for Children, Carlos showed up in her office less than one month before his 18th birthday-leaving only weeks for her to complete the state court proceedings necessary for him to obtain special juvenile status. After running through her standard intake process, Cook says, she stopped taking notes and looked him in the eye. "Why did you make the difficult decision to leave your home and come up here?" she asked in Spanish. Carlos answered that he is one of eight children, and he started talking about his siblings. Cook saw a pattern. "Why are all the boys leaving?" she asked. Carlos was reticent at first, but eventually he divulged what she suspected: The situation at home was really bad, and not just because of crushing poverty. Carlos's dad beat him almost every day, and his mother could do nothing to stop it.

Cook already had one pro bono SIJ case on her hands and no time to spare. But three weeks later, she'd filed Carlos's petition for appointment of guardianship.

Cook is now on her fifth SIJ case. Recently she got a call from a nonprofit asking for her help with a four-year-old who faced proceedings alone. The boy lives with his mother in Salida, a small town outside Modesto. "They begged me to take it," Cook says. "I said I'm happy to mentor someone. I'd much rather talk on the phone than take it myself; I'm close to maxed." But there was no one to mentor. Cook took the case.

Viewed from behind, Carlos's ears stuck out past his cropped hair, making him look especially young as he sat before the immigration judge in San Francisco in February. Nervously, he fingered the wooden paneling on the desk while Cook, responding through a speaker phone, updated the judge on his case: In October a superior court judge in Fresno had made the necessary findings and appointed legal guardianship to Carlos's aunt, Cook explained. The judge looked over at Carlos. "Who's sitting next to you?" he asked. "Mi tia," Carlos said. The court interpreter nodded, telling the judge, "My aunt." The judge hung up with Cook and turned again to Carlos: "Come back June third," he said, adding, "though your case may be closed by then. Any questions?" Carlos shook his head. He added his new Notice to Appear to the sheaf of papers he kept neatly stacked in a red folder, tucked the folder under his arm, and with his aunt walked out the courtroom door.

How Lawyers Can Help

To do supervised work pro bono on a Central Valley unaccompanied minor case, contact Aidea Macedo at the Unaccompanied Minors Central Valley Collaborative, 559/486-5200, or asmacedo@mse-law.com.

Vanessa Rancaño is a freelance journalist based in Oakland.

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Donna Mallard

Daily Journal Staff Writer

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