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Without a Lawyer in Immigration Court, Children Are Lost

Posted on January 28, 2015 by Alice Kenny  |  Share

   

 

The premier Spanish-language newspaper, El Diario, turns to Catholic Charities Director of Immigrant and Refugee Services C. Mario Russell for regular updates on immigration reform.  By C. Mario Russell

Catholic Charities New York Isabel, 16 years old and 4 months pregnant, fled Honduras with her aunt last April. They were on the run because Isabel’s boyfriend’s brother, a notorious gang leader, had assassinated Isabel’s mother weeks before and they feared retribution for having reported the murder to the police. U.S. Immigration apprehended Isabel at the border and transferred her to the Bronx for deportation proceedings. Six months later, in October, I met Isabel, who was a very young, new mother. She had not yet seen an immigration judge and her asylum-filing deadline was about to pass. She had no lawyer. Had Isabel crossed the border alone—like the 51,000 children who did so last year—she would have been placed in temporary shelter care with the Office of Refugee Resettlement. She would also have been given a legal orientation and consultation. She would have immediately seen a judge. And she might have been assigned a free lawyer through a federal program or through a collaborative legal defense program for Unaccompanied Minors in New York City.

By some estimates, almost 50-percent of Unaccompanied Minors have a lawyer. But Isabel is not an Unaccompanied Minor. She crossed the border with her aunt so the Department of Homeland Security labeled her an “accompanied” child. This means Isabel’s deportation case was put indefinitely on hold. She was not entitled to shelter care or to a legal orientation and she was not eligible for a free lawyer. Last year, over 68,000 children like Isabel—accompanied by family—were apprehended at the border. Little has been reported about these children. But the consequences for children facing the court system alone are staggering. Unable to mount a case in their own defense—whether for asylum or special immigrant juvenile protection—they might permanently be disqualified because of missed filing deadlines and, as a result, ordered deported in absentia.

A 2011 report from a panel headed by a federal judge found that immigrants with lawyers are five times more likely to win their cases than those who represent themselves. A recent analysis shows that 90-percent of children who have a lawyer appear in court. But without a lawyer, only 10-percent, most lacking the courage, knowledge or understanding of English and U.S. law, attend these key proceedings. This should not come as a surprise. What 16 year old facing deportation to a violence-filled country would show up in court without a lawyer to defend her?

Children facing life or death consequences in immigration court shouldn’t suffer because there is not enough legal assistance. While not every child may have a legal right to remain here, each deserves due process and legal representation in court. The U.S. Constitution's Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring a "full and fair hearing" before an immigration judge should require the government to provide all children with legal representation in their deportation hearings. Isabel and children like her deserve defense. * Names have been changed

 

Mario Russell is Senior Attorney and Director of Immigrant and Refugee Services at Catholic Charities, 80 Maiden Lane, NY, NY 10038. He teaches immigration law at St. John’s University School of Law.

Read this in Spanish now in El Diario.