Border Kids

07.11.14

The Immigrant Kids Suing America

A class-action lawsuit filed this week on behalf of eight undocumented minors demands that children be provided legal guidance in immigration court.

Henry was 16 when he first arrived in the United States. He’d never intended to come here. But when he left his village in Guatemala to look for work to help feed his younger siblings, Henry was kidnapped and handed over to Los Zetas, one of Mexico’s most violent and powerful cartels. For one traumatic month, Henry, who at the time only spoke the Mayan dialect Mam, struggled to explain to his Mexican captors that he had no family in the U.S. whom they could extort.

Eventually, the gangsters, who were also involved in smuggling migrants, dropped Henry at the U.S.-Mexico border, where he was apprehended by Border Patrol agents. Like the tens of thousands of unaccompanied minors who’ve crossed the border in recent months, Henry was placed in Health and Human Services custody and housed in an HHS Office of Refugee Resettlement facility in Orange County, California. During the two and a half months Henry was at the facility, he says he had to go to court two or three times as his immigration proceedings began. Without the assistance of an attorney or even an interpreter who could translate what the judge or U.S. government prosecutor were saying, Henry understood absolutely nothing about his case. He was completely alone, far from home, and confused.

Finally, someone at ORR managed to get in touch with one of Henry’s relatives in Guatemala who found a cousin in Los Angeles willing to sponsor Henry. His cousin, a U.S. citizen, insisted on finding Henry an attorney. It was actually in the parking lot of L.A.’s Immigrants’ Rights Project that Henry’s cousin met directing attorney Judy London and persuaded her to take on his case. London says it took two months of working with the traumatized teen through a Mam interpreter before she was able to plead his case. But in the end, London helped Henry get a green card through Special Immigrant Juvenile Status, a program for foreign children who’ve been abused, neglected, or abandoned.

Henry’s story is harrowing, but the most unusual part of it is the fact that he was able to find a lawyer to help him navigate the immigration court system. Most kids in the same situation aren’t so lucky. In fact, more than half of all minors who go through immigration court proceedings in the U.S. do so without the guidance of an attorney. That’s why the American Immigration Council, along with the American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP, have filed a class-action lawsuit against the United States, arguing that the government should be required to provide legal representation to children during immigration court proceedings.

More than half of all minors who go through immigration court proceedings do so without the guidance of an attorney.

The suit’s plaintiff’s range in age from 10 to 17, are all native citizens of either El Salvador, Guatemala, Mexico, or Honduras, and are  scheduled to appear in immigration court without representation. One of the plaintiffs, a 15-year-old Mexican native, has lived in the United States since he was 1 year old. Another, now 16, came to the U.S. from Honduras at age 8.

If successful, the lawsuit would help far more kids than the eight named in the complaint. The current flow of undocumented minors, many from Central America, over the Mexican border into Texas—about 90,000 are expected to arrive this year in all—will eventually flood the already clogged immigration courts. Immigration proceedings are considered a civil matter, rather than a criminal one under U.S. law and as a result, defendants—regardless of age—are not required by law to be provided with counsel if they cannot afford a lawyer on their own. The groups suing the government want to make sure that all of these kids will have access to legal representation when their day in immigration court comes.

“A fair hearing means having an opportunity to be heard and they can’t have a meaningful hearing without a legal representative,” said Beth Werlin, the American Immigration Council’s deputy legal director.

This week, President Obama requested $3.7 billion from Congress to deal with the surge of undocumented minors migrating to the U.S., mostly from Central America. An unspecified portion of those requested funds would be reserved to expand legal assistance to both adults and children. On a press call outlining the details of the president’s request, White House officials also discussed plans to work with Congress on changing the rules regarding children from countries that do not directly border the United States. Now, Border Patrol agents can only send directly home apprehended unaccompanied minors from Mexico or Canada that they’ve determined (through an interview at the border) aren’t in danger of being trafficked or persecuted at home. Changing the law to allow Border Patrol agents to make the same assessments for kids from other Central American countries could significantly speed up the deportation process.

It would also deprive a lot of kids like Henry of the opportunity to present their asylum claims.

“It’s a very scary proposition to think that kids who’ve just arrived and been through a very traumatic situation would have to articulate their claim within 24 hours of arriving without the opportunity to consult with family, friends, or an attorney,” said Werlin.

Now 21, Henry has learned how to speak Spanish and English. He takes adult classes at Fairfax High School in Los Angeles and works at a furniture store. He sends money to his siblings who are still in Guatemala and he knows that if it weren’t for Judy London, he’d probably be back there, too.

“There’s no way kids can understand what’s happening in immigration court,” Henry told The Daily Beast. “Without the help of a lawyer, you cannot win.”