Before undocumented children can attempt to have a normal childhood in the United States, they face a challenge more daunting than anti-immigration protesters and detention centers. That challenge is the American legal system.
“The idea that a child can navigate immigration proceedings is absolutely ridiculous,” said Bill Silverman, shareholder at Greenberg Traurig and head of the firm’s pro bono program in New York. “I think there is a complete failure of due process when a child is defending him or herself in an immigration proceeding.”
There has been a surge of Latin American children who have crossed the U.S.-Mexican border within the last year. Over 47,000 children have trekked across the border without a parent or guardian from Oct. 2013 to May and have been caught by the U.S. Border Patrol, according to the Pew Research Center. The majority of these children are fleeing poverty and violence in their home countries in Central America before starting another journey through the American immigration system.
What starts in a detention center ends in an immigration court that decides whether or not these children are allowed to remain in the U.S. Only half of these children receive access to any kind of legal representation, according to statistics published by the TRAC Immigration project at Syracuse University in their July report. Unlike in criminal cases, the U.S. government is under no obligation to provide legal counsel for these kids. Also, most of these children do not have the money to independently hire a lawyer or have enough understanding of the American legal system to know how and where to find one.
“The percentage of successful litigants in a deportation hearing when they’re unrepresented is tiny, and you can imagine why,” said Caroline Heller, who is also a shareholder at Greenberg Traurig and works with the firm’s pro bono efforts. “There are language barriers. There’s even a … lack of understanding that they may be eligible to stay in the United States. To explain to a teenager or eleven- or twelve-year-old that they’re able to stay here because they’ve been abandoned or neglected, that’s not a conversation that is had with these children. And even if it was, that’s not something they can advocate for themselves. That’s asking an extraordinary feat from a child.”
When undocumented children represent themselves before an immigration court, there is only a 1 in 10 chance that they will be allowed to remain in the country while children with a lawyer are allowed to stay 47 percent of the time, according to TRAC.
Connecting Kids to Lawyers
Greenberg Traurig is part of the pro bono effort to increase these children’s access to lawyers to at least give them a shot at staying in the United States. Greenberg Traurig is working along side the nonprofit Kids in Need of Defense (KIND), which advocates on behalf of unaccompanied children and places them with a lawyer if they are eligible. KIND works with multiple law firms throughout the country, but since their partnership began in April, Greenberg Traurig has taken on 25 cases involving 48 lawyers. Their clients range from ages 11 to 17, and they are from Honduras, El Salvador and Guatemala.
The firm has 29 offices scattered throughout the U.S., but all of its pro bono efforts focused on local cases. Greenberg Traurig decided to work with KIND because they wanted to help tackle a national issue that their multiple offices could work on together. The firm’s lawyers – including some who have never done pro bono work – were eager to take these cases, according to Heller.
“There is a lot of enthusiasm for these cases because you can’t imagine a more sympathetic client than a child without a lawyer,” she said. “If you have a child, imagine your own child being abandoned or neglected because you died. You’d want a lawyer to step up and help them. You’d want a community of compassionate people to help them. That’s what has touched the attorneys at our firm – you’re dealing with children. They’re the most vulnerable population in the world and these children in particular.”
Greenberg Traurig contributes their legal expertise, while KIND trains the lawyers on how to work with kids coming from rough backgrounds. Working with young migrants presents an initial challenge for lawyers because a lot of these children have experienced poverty and abuse, and are reluctant to talk about it. The clients that the firm represents have either been abandoned by their parents, had their parents die or been threatened by gang violence in their home country.
“One of the themes throughout the cases that we have are actual violence or threats of violence in the home country from gangs. [For one client,] gangs were trying to extort money from her family. She was getting recruitment pressure from the gangs,” said Silverman about one of their clients who was found eligible to remain in the U.S.
KIND teaches the lawyers how to build relationships with these kids because information like that – while difficult to talk about – is what helps these kids win their case. Abused and abandoned children are eligible for Special Immigrant Juvenile status through family court. Lawyers are not only tasked with navigating children through the legal process and whatever exemptions they may be entitled to, but to help them tell their stories to prosecutors.
“In the hearing, the government attorney had a pretty strong cross examination of our client – not to say that that was inappropriate because that’s what he was hired to do. … It was a contested hearing, and it would have been very difficult for the child to withstand the arguments of a good lawyer,” said Silverman about the experience of one of the firm’s clients.
Matter of Law, Not Politics
While their lawyers see these kids as vulnerable and in need of help, not everyone agrees with their point of view. After the news of how many children illegally crossed into the U.S. broke, there has been a wave of anti-immigration protests calling for these kids to be deported, the border to be secured and reforming the immigration system. Silverman recognized how politicized this issue has become but says that the firm’s pro bono work isn’t a stand for or against illegal immigration.
“We are taking a strong stand on the need for due process, and that I do not think is a partisan issue. It’s simply a question of fairness in the process. We are often speaking up and speaking out for the legal rights of these children,” he said.
“I think that’s a little part of what fundamentally gets lost in part of the conversation even though there are laws on the books that allow certain unaccompanied minors with certain histories and situations to stay. That’s the law of this country, and to simply say ‘oh, they immigrated illegally, they’re not allowed to stay here’ is not the answer. There are laws that allow them to stay, and they are entitled to due process,” she said.
The law Heller is talking about is the Trafficking Victims Protection Reauthorization Act, which was originally passed in 2008 and was amended in 2013. Under that act, the Border Patrol is supposed to identify if the unaccompanied minors are eligible to stay in the U.S. and then sent to Health and Human Services to be placed with family members or in detention centers. The act also says that the children are eligible for “relief” and access to people to advocate on their behalf.
Because of the large number of kids who are being processed and will have to go before immigration judges, President Barack Obama wants to fast track the process.
Silverman agrees that the immigration process for the children can be streamlined, but it shouldn’t come at the expense of their rights.
“If [the federal government] wants to streamline the process, then they have to do it in a balanced way that has a meaningful screening process in place. I think what troubles many of us is that if you put that responsibility with Border Patrol agents, there’s really a question of if they have the ability to screen those children who have the potential for getting released. If you’re questioning them in a public place or not asking the right questions or if you haven’t been trained adequately, I’m concerned that any streamlining will put some of these children in grave danger,” he said.
Just the beginning
According to TRAC, nearly 95 percent of the juvenile immigration cases filed in 2014 are still pending. Without reform, an increase in immigration judges or a way to stop children from migrating, the number of cases will continue to rise.
“I think this creates a tremendous burden on the system, and I think that it will also lead to a backlog,” said Silverman.
The need for lawyers isn’t stemming either. Lead also by the demand of lawyers wanting to take on these kinds of cases, Greenberg Traurig is working towards round two with KIND.
“I believe that there is great potential for more lawyers to get involved. There are not enough pro bono resources to address the legal needs of these children,” said Silverman. “We have every intention of doing another wave of these cases just to keep up with the demands from our lawyers. I think that there is a great deal of interest in working on these cases because it’s kind of why a lot of us when to law school in the first place.”