Children Fare Better in U.S. Immigrant Courts if They Have an Attorney

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Children who enter the U.S. illegally have a significantly better chance of gaining the right to stay if they have a lawyer by their side in immigration court, according to a new analysis that underscores the challenges Congress faces as it considers speeding up deportations.

Nearly half of all minors represented by lawyers in immigration court in the past decade eventually won permission to remain. But nine out of 10 without legal representation were sent back to their home countries, according to the report by the Transactional Records Access Clearinghouse, a project at Syracuse University that gathers and analyzes federal data.

The findings are likely to fuel the debate in Congress over whether to expedite deportations—a process that would give fewer children a chance to obtain legal representation—as a surge of unaccompanied minors from Central America puts pressure on an already backlogged immigration court system. More than 57,000 children have been apprehended so far this fiscal year, more than double last year’s rate, with the total expected to reach 90,000 by year’s end.

The White House and Congress have been struggling to respond to the surge. Congressional Republicans and President Barack Obama have both said they support expedited deportations that would treat the cases of Central Americans similarly to the current process for Mexicans, who are often processed and sent home within days. Many Senate Democrats, however, are sharply opposed, and House Minority Leader Nancy Pelosi (D., Calif.) said Wednesday she is as well.

Meanwhile, a new survey found that about half of adults believe the legal process for dealing with Central American children who enter the U.S. illegally should be accelerated, “even if it means some children eligible for asylum are deported.” The survey was conducted July 8 to July 14 among 1,805 adults and released Wednesday by the Pew Hispanic Research Center, a nonpartisan think tank.

In the nation’s immigration courts, children aren’t legally entitled to attorneys, but judges often delay cases in order to give the children time to find lawyers, who are sometimes provided by advocacy groups. As caseloads have climbed over the last decade, children have been more likely to appear without an attorney, the data show.

That’s a problem for the entire system, said Dana Leigh Marks, president of the National Association of Immigration Judges, a union, who is also a judge in San Francisco. She said children have no way to assess what information might be relevant for the judge to evaluate their case, or might be afraid to disclose it.

“It helps the immigration judges tremendously when people are represented by attorney,” she said. “It’s even more important when you have children or juveniles in the process.”

In recent years, children with and without lawyers have had better luck in immigration court, but those with lawyers still do much better. In fiscal year 2013, 78% of children with attorneys won the right to stay in the U.S. That was true for only 25% of those without attorneys.

Attorneys say they are most likely to take the cases of children who have the best chance of success, a factor that likely explains some of the disparity in outcomes between children with and without legal representation. Still, the data suggest that without legal representation, some children are deported who might otherwise qualify to stay.

Currently, it can take years for a child’s case to be adjudicated. The long waits are a function of a severely backlogged immigration-court system, which had more than 375,000 pending cases as of June 30, including nearly 42,000 juvenile cases. Proponents of expedited deportations believe the delays are reinforcing perceptions in Central America that children who make it to the U.S. can stay.

Mr. Obama has requested $3.7 billion in emergency funding to address the immigration crisis. That includes $64 million for the Justice Department to add immigration judges and to provide children with lawyers and legal assistance. The president has also proposed changing a 2008 law that would result in speedier deportations.

Under the 2008 law, which was designed to protect minors from human trafficking, children who cross the border by themselves from countries other than Mexico or Canada are placed with sponsors in the U.S., usually members of their families, while deportation proceedings unfold in the courts. That gives them a chance to find an attorney, who can assemble evidence that the child qualifies for the right to stay in the U.S.

Avenues available include asylum, which requires that migrants prove they have a credible fear of harm if they return home; special juvenile immigrant status, which requires showing that the child was abandoned, abused or neglected at home; or special visas for victims of crime in the U.S. or trafficking.

The current system is much different for Mexican children crossing the border alone. Those children are screened by border patrol agents to see if they show a fear of return to their countries, a risk of trafficking or lack the capacity to make decisions about their status.

During this process, the Mexican children are not represented by lawyers. If they fail those tests, they are sent home quickly. Those who present a concern are put into the same system that handles the cases of Central American children.

House Republicans have said they will insist on changing the current law to speed up deportations of children from other countries as part of the president’s funding request. They say it is unacceptable to continue funneling these juvenile cases into the severely backlogged immigration courts.

“I don’t think it’s in anybody’s interest to have any process take three to five years,” said Rep. Mario Diaz-Balart (R., Fla.), who visited Honduras and Guatemala recently as part of a congressional delegation. “I have not heard a lot of complaints from folks that the Mexican kids are being treated uniquely bad,” he added.

Advocates say that changing the process for Central American children could put them in jeopardy of being returned to dangerous conditions in their home countries, which have high rates of homicide and criminal gang activity.

This month, a coalition of nonprofits and lawyers filed a class-action lawsuit accusing the federal government of failing to provide legal representation to children facing deportation. The representation is key to making sure cases are handled fairly, said Ben Johnson, executive director of the American Immigration Council, a Washington, D.C., nonprofit that is part of the group that filed the suit on behalf of several unrepresented minors.

“It’s an outrage that we’re asking people who have no ability to represent themselves to try to stand in those complicated proceedings and respond to a judge and arguments being made by trained lawyers,” he said.

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If you missed this very insightful piece on how immigration may make things even worse for the migrants themselves, which was posted yesterday as “The economics behind the border pile-up: It’s more complicated than you think” do so now.

It is also from WSJ. The author is doing research in Central America himself and has written an entire book on it (which I am thinking of buying).