The Border Kid Crisis Hits the Courts

A new DOJ directive has immigration courts scrambling to prioritize the “border kid” cases and nonprofits scrambling to protect vulnerable children from exploitation.

Jay Janner/Austin American-Statesman/MCT, via Landov

Down at 26 Federal Plaza, the massive building that houses New York City’s immigration court opens at 8:30 every weekday morning. By 8:45 on a recent Thursday, the 12th-floor pro bono room is packed. Bewildered adolescents, many of them accompanied by equally confused guardians, spill out into the hallway.

These kids—boys sporting polo shirts and the typical teenage overdose of hair gel, girls in conservative cardigan-covered dresses—look like they should be going to a birthday party or a school dance. But they are the elusive “unaccompanied minors” better known by the nickname “Border Kids,” who have flooded across America’s southern frontier in unprecedented numbers. The massive influx of children has crowded detention centers and prompted congressional hearings. President Obama called it a humanitarian crisis. Articles and TV news specials have detailed the Border Kids’ harrowing journey from violent Central American cities through Mexico’s cartel country. Countless political commentators are weighing in on what impact the minors might have on the already fraught fight over immigration reform.

READ MORE: A Border Kids Journey to America (INFOGRAPHIC)

For these boys and girls in polo shirts and dresses, their crisis does not end at America’s border—another set of trials lie ahead once they enter the U.S.

In an effort to dissuade the flow of undocumented children, the U.S. Department of Justice issued instructions in August for immigration courts around the country to prioritize the Border Kids ahead of other cases. Previously, a solo child entering the States would have been placed at the end of a very long immigration court backlog, and could have lived in the country for a year or more before facing deportation. Now, all minors who crossed the border during the surge this summer are required to make their first appearance before an immigration judge within 21 days of being apprehended by Border Patrol.

Which brings us back to the chaotic scene at 26 Federal Plaza. Kids ranging from 17 down to elementary-school age mill about, waiting to be called by the court. Today, 37 of them are scheduled to appear before Judge Virna Wright. Judge Wright goes down the priority docket, calling each of the 37 kids and their guardians to the bench one at a time, asking through a Spanish translator whether they are in school and if they have a lawyer. She tells each of them to come back to court on October 2 and encourages them to use that time find a lawyer—and one who will actually show up. Though many of the kids who are called before Judge Wright say they have an attorney, very few of them are accompanied by one. The large number of kids given short periods of time to appear in court has created a desperate market for less savory lawyers looking to prey on this already vulnerable population. Wright seems intent on making sure the kids and families in her courtroom aren’t taken advantage of.

“If he doesn’t come, you don’t have an attorney,” she says. “If you’re going to pay someone, they have to come to court. Don’t let anyone tell you otherwise.”

While the children wait—some of them with family members who were already living the States, others totally alone—a paralegal named Elvis Garcia Callejas offers a legal orientation in Spanish. He’s there to tell the kids what rights they have in court and potential ways they can avoid deportation.

Callejas, 24, is a case manager with New York’s Catholic Charities. A decade ago, he was also an unaccompanied minor hoping to make it to America. He came to the U.S. from Honduras by himself when he was just 15, making the dangerous journey against his mother’s wishes. He also went through deportation proceedings, but was eventually granted a green card with Special Immigrant Juvenile status for abused or neglected children. He’s not just there to help the kids and their families, but to empathize with what they’re going through.

“The most important thing for [the kids] to understand is that they need to come to court,” Callejas told me. He explained that notices to appear in court are written in English, so immigrants often can’t understand them and don’t show up out of fear that they will be immediately deported.

“They also need to find a lawyer they can trust,” Callejas said. “People are so scared that if they don’t have an attorney they will be deported, so they either don’t show up or they rush to get an attorney and get taken advantage of.”

He calls over a woman holding a blue sheet of paper. It’s not a legal document but a simple change of address form, with two sets of empty lines for an old address and a new one. The woman says in Spanish that she paid a lawyer $500 to fill it out for her.

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Callejas’ know-your-rights presentation is more relevant than ever. New York has received more unaccompanied minors this year than any state other than Texas. And the U.S. government is not legally required to provide a lawyer for people going through immigration proceedings—even for young kids. So New York-based advocacy groups like the Safe Passage Project, The Door, the Legal Aid Society, Catholic Charities and the American Immigration Lawyers Association have sprung into action, rallying volunteers, interpreters and pro bono attorneys in a joint effort to help guide the Border Kids through the complex and confusing world of immigration court.

Claire Thomas, a diminutive blonde wielding a clipboard, is an adjunct professor at New York Law School and a staff attorney with the Safe Passage Project. The nonprofit is dedicated to providing legal assistance to undocumented minors facing deportation hearings. Thomas is checking off the names of kids who are scheduled for hearings today, and then placing each child with a legal volunteer, who will screen to determine who is in need of pro bono representation, and who might be eligible to stay in the country.

The Safe Passage Project has been offering these kinds of services to juveniles since it was first founded in 2008, but the Border Kid crisis has stretched the group’s resources. In addition to the 37 kids on the surge docket today, there are another two dozen on the regular juvenile docket, taking place in another courtroom down the hall. In all, Thomas has more than 60 children to help today—and some days, she’s had close to 90 cases.

“We’re really stretched to capacity,” Thomas told The Daily Beast, explaining that while the Safe Passage Project has about 300 volunteer pro bono attorneys, most of them do not have immigration law backgrounds, and require significant training from the organization’s small but mighty staff of three. “Before we were managing about 30 cases a month, now we’re getting 30 cases a day. We don’t have the resources to train and mentor these pro bono attorneys to be able to confidently and competently help these children.”

The sudden influx of kids into deportation proceedings only magnifies an existing debate over whether the government should provide attorneys for impoverished minors in immigration court. The five immigrant rights’ groups currently suing the Department of Justice on behalf of eight undocumented minors say that it should.

Though the American Immigration Council, the ACLU, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP originally filed suit in July, the groups submitted a new brief ahead of a hearing in Seattle last month, with signed declarations from immigration attorneys in North Carolina, Texas, Ohio, and New York confirming that they’ve recently seen large groups of minors called into initial hearings at an unprecedented rate. The groups argue that there are not nearly enough pro bono immigration attorneys to represent all of the unaccompanied minors who crossed the border during this summer’s surge—as of August 31, the number of Border Kids had reached 66,127—making the need for government-sponsored attorneys more urgent than ever.

“In the past, attorneys appearing with their clients for the first time were regularly given approximately 60 days to prepare. But now attorneys representing children are receiving as few as three weeks,” William Holston, executive director of the Human Rights Initiative of North Texas who has practiced pro bono immigration law since 1986, wrote in his signed declaration. “In my experience, it generally takes at least 90 days to properly prepare an asylum application. This is because it requires a lot of time to establish a relationship with a client and obtain the details that are necessary to include in the application. This is especially true for a child, particularly a traumatized child. It can take even longer when the child is represented by a pro bono lawyer who is practicing outside of his or her field of expertise and balancing a pro bono case with a paying practice.”

For its part, the Department of Justice argues that neither the U.S. Constitution nor the Immigration and Nationality Act requires funding for lawyers for immigrant kids, and that halting immigration proceedings for all minors until such a requirement is created, as the lawsuit demands, would be a slippery slope.

“That would create a magnet effect that the United States is not prepared to handle,” Deputy Assistant Attorney General Leon Fresco said during the hearing in Seattle this month. “That is free education for all those children being funded by localities and the states. That is whatever medical claims those children need plus an insecure border because you have now sent the message internationally that no one here is going to be removed.”

Rather, the DOJ says Congress should approve funds to ensure that minors—many of whom may be eligible for relief—are not forced to defend themselves in immigration court alone. But the White House has made three requests to Congress for additional funds for legal services for unaccompanied minors since this summer’s crisis, and so far none of them have been met.

Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges, explains that attorneys are especially helpful in juvenile cases because kids are more likely to be too traumatized, intimidated, confused, or simply shy to provide all of the facts needed to determine whether they may be able to benefit under immigration law.

“It’s almost like mining,” she told The Daily Beast. “When you’ve got a lawyer, they’ve already taken away the rock that isn’t precious metal. They’ve spent the time with these kids, building trust and finding those gold nuggets. Without a lawyer the judges are doing the excavation.”