Due Process for Immigrant Children and Families: More Than Legal Representation
C. Mario Russell
January 26, 2016
The due process clause is one of America’s great inspirations, one of its better angels. Indeed, the clause’s birth in 1868 — over presidential veto by Andrew Johnson and conjoined with the equal protection and birthright citizenship provisions — firmly rooted it at the center of the American legal experience going forward. The legislative debates of the day show how intimately the clause was related to concerns of ethnicity that had created national division and became one of the causes of civil war: How could the nation sustain the inequalities of Dred Scott and continue to treat differently those of African descent, those of Chinese origin, those of Gypsy roots whose parents had come or been forcibly brought to build the country?
Today we are confronted with new challenges and needs, including the needs of children in flight, which evoke some of these distant historical themes. Those challenges and needs, like the social and legal challenges the post-war reconstruction framers faced, are an opportunity to explore creatively our own humanitarian impulses and legal imaginations at the point where material, legal, social, and collaborative imperatives intersect. So, setting aside the question of eligibility for asylum or Special Immigrant Juvenile (SIJ) or other forms of relief, the larger question is how do we choose to respond to the needs of those most vulnerable who are in flight from chaos, danger, abuse, violence, depravity, and basic existential insecurity in Central America? If we acknowledge a role and a responsibility, what is it and how is it executed?
This year, by conservative projections, 6,000 unaccompanied alien minors (UAMs) will be placed on the New York City immigration court docket; at the same time approximately 5,200-6,000 children and parents — adults with children (AWCs) —will also be put on the docket for removal proceedings. Most are from the Northern Triangle states of Central America. These estimates roughly match what we saw in 2014, which seems to put us back where we began when the crisis reached its first peak. With only about one-third of those cases represented by private counsel and another significant percentage disappearing or with non-viable claims, about 3,000 UAM and another 3,000 AWCs will have no attorney to help in their complex cases.
In my remarks I would like to address the impact and challenges of unaccompanied minors on the court and on our work at Catholic Charities. But I would also like to speak about the broader due process context for children and families in removal proceedings — to speak about their “due process rights” and their experience “before and outside” of the court; that is, both in detention and in their families and neighborhoods in New York — like book-ends on the court experience.
Children come to the United States with the hope for something new. They are not unlike adult refugees, even those who don’t necessarily fit the definition. But what we do for and expect of adult refugees and migrants does not work with children. Because they are children, they need a different and higher level of care. In 2006 I met 16-year-old Genoveva and began to work with her on her SIJ claim in family court and with USCIS. By early 2008 her removal case had been terminated and the adjustment of status petition had been granted. Several months later the green card arrived in the mail at my office. It is still there. I have not seen or spoken to Genoveva for more many months, and no amount of searching with a team of students or a report to the authorities helped. Genoveva had moved from living with one “uncle” to another, unsupervised, and had, simply, disappeared.
The same happened to Carlos, though for him proceedings were never completed because he disappeared before any adjudication took place. Or, Daniel, who was 17-years-old and about to age-out of Office of Refugee Resettlement (ORR) detention in New York and into adult detention in New Jersey. He had a strong SIJ claim — motor chain marks on his back from his father’s abuse — but no access to the family court. We had to litigate through to the NY Court of Appeals to demand that the Westchester County Social Services take him into its care. You have all experienced these stories.
The questions I would posit are: Can we and will we extend more support? Can we and will we extend our imagination to visualize “due process” more holistically so that it includes the life needs of these most vulnerable?
CATHOLIC CHARITIES WORK
I was asked to give an overview of our work and experience in this area. Catholic Charities is primarily a social services agency (we have over 1,000 employees) with a substantial immigration legal services component. Thus, we attend to human needs from a broad range of perspectives — food, housing, case management, and others.
With respect to immigrant children, over the last many years, we have engaged about a dozen initiatives through three areas of programming: legal, detention, and integration. Within our legal programs, we provide:
- “Surge/Priority Docket” Court Representation Collaborative
- Deportation Defense for Children
- Children with Adults – Deportation Defense
We represented more than 400 children and adults in court last year.
Through our shelter/detention programs, we provide know-your-rights presentations and individual consultations. Last year, we provided 2,800 consultations and 180 know-your-rights presentations in 11 facilities.
With respect to integration (support and reunification), we offer:
- Case Management for unaccompanied minors
- Case Management for adults with children
- A National Call Center
- Legal Orientation for Sponsors (LOPC)
- Central American Minors Refugee/Parole or “CAM” Program
- South Bronx Soccer Program
- Terra Firma Medical-Legal Partnership
- ESL through our International Center
Last year, we assisted more than 1,000 children/families via case management services, 1,600 parents who attended 130 LOPCs, and 7,000 persons who received orientations/referrals through our call center.
Now, let me describe what I see as the fundamental due process concerns in each of these areas:
LEGAL: It is a question of “Access”
Many of us have heard about the legal work of the Immigrant Children Advocates Relief Effort (ICARE), a collaborative funded by the NY City Council, the Robin Hood Foundation, and the New York Community Trust, to assist unaccompanied children in proceedings and on the priority dockets of the New York immigration court. This work has been going since 2014, with staffing of children’s dockets four days a week, which includes presence in court, legal orientation presentations, and, of course, competent and effective consultations.
This commitment has yielded incredible results. As of today, we have accepted 745 cases for representation, concluded 147 successfully and will conclude 364 in the upcoming months. About 60 percent of the cases are SIJ and 25 percent asylum. But, please note, this representation has primarily funded children residing in New York City. About 50 percent of arriving children are in Long Island, and another 10 percent in the Lower Hudson Valley. That’s almost 1,000 about whom we know nothing.
So what are the needs? There are two: Access to Counsel and Access to Substantive Remedies.
Due Process Needs 1: Access to Counsel
The need for counsel is increasing, commensurate with apprehensions on the southern border. These are up by a factor of almost 120 percent, with 17,000 in the last three months, compared with 8,000 in the same period the year before. The question is whether and how the ICARE collaborative will be able respond.
But that’s just unaccompanied children. What about the 5,200-6,000 adults with children? We project that about 1,700 will be unrepresented, many (of course) with viable claims. Again, these are children and families in New York City, Long Island, and the Lower Hudson Valley.
The facts about access to counsel, as set forth in the June 2015 American Bar Association (ABA) study on representation of minors, underscores the imperative:
- 73 percent will succeed with counsel; only 15 percent will succeed alone
- 92 percent will appear in court if they have counsel; 27 percent will appear alone
The access to counsel deficit finds expression at the more granular level, where daily competing demands force errors and undermine due process:
- Some of the children’s notices to appear (NTAs/I-770) out of McAllen, Texas, are stamped “refused to sign”;
- Some NTAs and notices of hearing do not make their way to the child due to communication gaps; and
- In some cases, people are being forced forward through Master Calendar pleadings despite lack of counsel.
Due Process Needs 2: Access to Substantive Remedies
The second due process access “need” is substantive. Phrased as a question, what kind of law and theories of remedies exist and are appropriate for children? There is a theory of “substantive due” process within immigration, running from the dissent in Harisiades v. Shaughnessy (1952) in which the notion of “vested rights” under the due process clause was considered (for LPRs), to Francis v. INS (2d Cir., 1976) (finding substantive 212(c) rights for a non-departed LPR), to Zadvydas (2001) (requiring review of detention in a reasonable time). We know there is room to imagine and apply substantive immigration/human rights — life and liberty rights — under the 14th Amendment.
What might this look like? I don’t mean to suggest the legal viability of any of the below, but I would suggest that inquiry around them is merited:
- Engaging broad parole authority, whether supervised release or even parole-in-place? I note the need for advocacy in support of temporary protected status (TPS).
- Non-refoulement authority under the “safe and sustainable repatriation” provisions of the Trafficking Victims Protection Act (TVPRA)?
- Amplification of the “best interests” provisions of the TVPRA, in concert with principles in the Convention on the Rights of the Child, as potential sourcing for substantive engagement?
- Correction to the federalism problem with regard to family court adjudications for SIJ?
DETENTION: A Question of Review and Fairness
As I noted, Catholic Charities works with a dozen or so shelters in the New York area. In meeting and interviewing almost 3,000 children a year, we see a range of issues that surely deny due process.
A few of the principal issue areas are:
- Children who are without reunification options or if reunification is rejected have no real alternative. These children end up in adult Immigration and Customs Enforcement (ICE) custody and cannot access state care systems. Why not expand long-term foster care and/or the Unaccompanied Refugee Minors Program?
- ORR’s unreviewable authority over shelter custody means: no bond, no release on recognizance, no ability to challenge a rejected reunification request, and no ability to challenge level of custody placement.
- Children who are held for law enforcement purposes in order to prosecute or disrupt crime, whether as witnesses or as a deterrent (as in the case of Mexican children detained to disrupt smuggling routes). Often, they are held despite the recognition (see Flores) that children should not be detained.
- The problem of the “geography of detention”: because only 10-20 percent stay in detention, by definition that time is wasted/lost, both for legal proceedings and in the child’s life process. In addition, this geographical disconnect increases the odds of error in transfer and venue change and, therefore, in in absentia orders being issued, which can result in waste of resources if not unfair results.
INTEGRATION: It is a Question of Support and Reunification
Finally, though certainly not last as a priority, is integration. This work speaks to the need for meaningful support and unification of children within their families and communities. Without this bulwark against strong negative life currents, the chances of the child (and the adult caregiver) being able to thrive and “stay on track” with all that is new and expected of her is compromised. One such casualty is the child’s legal process itself. Indigence and poverty alone are forces that already increase the risk of alienation and disconnection, which make the task of staying on track even more challenging. Will the child work or go to school? Will he or she potentially become the target of or involved with local gangs? Will he or she become alienated from his parents and drift from the home? Perhaps fall into drug use or abuse? Perhaps not properly deal with past trauma or depression? Perhaps be vulnerable to trafficking?
The need for this kind of support is in sync with the due process need for cogent release protocols, legal counsel, and good legal remedies. This is not an afterthought or a luxury item. It is not an ancillary add-on. It is a vital need for a generation of young people who will become citizens of New York, whether with a capital “C” or lower case “c.”
As I mentioned, Catholic Charities case managers have been providing transitional support services to thousands of unaccompanied alien minors and families from Central America for over 10 years. Before that, we worked with unaccompanied refugee minors from China and Haiti and will soon be engaging with Immigration and Customs Enforcement to help settle and support families released from Texas and other places to New York.
Over the years, our case management teams have worked closely with child legal teams to provide coordinated support. Ensuring the child is healthy or stays in school improves the chances of his attending court, and if the child goes to court and is “on track” about his legal future, his odds of remaining healthy and in school improve. The same goes for mental health, addiction intervention, and criminal conduct. This is not a precise science. Success in one area does not equal success in the other. However, synergies between services improve probabilities for successful outcomes.
Most notably, our Terra Firma project has taken this principle of synergistic thinking a step further. Created as a “medical-legal partnership” between Catholic Charities and Montefiore Hospital, where medical, mental health, legal, and social supports are offered in a coordinated fashion under one roof, Terra Firma has offered a new view into how children can be helped to attain a better life and greater liberty with fewer impediments. Since the initiative began in 2013, it has served almost 200 patients with their medical needs, 70 with psychotherapeutic assistance, 126 with legal representation, numerous with group support encounters, and a smaller more recent cohort with ESL and aesthetic enrichment classes. The team of doctors, psychologists, lawyers, and case managers work together to bring forward a unified plan.
Examples of Terra Firma’s clients include Edwin, who had been denied at the asylum office because he did not disclose serious trauma (a beheading) he had witnessed in his home country. Edwin began to come to Terra Firma, where he would receive medical care, case management support, as well as mental health counseling and legal support before the Immigration Judge. After much therapy with his Terra Firma psychologist he was able to discuss that pivotal moment of trauma in his testimony before the Immigration Judge. In addition, the psychologist testified in court as to the effects of PTSD and why the failure to include that fact at the AO was a symptom of psychological trauma and not a credibility question.
Another time, a child, whom we had met in detention in New York and who had made his way to Washington DC, called to tell us he was homeless in Washington, DC. The Terra Firma staff immediately arranged for him to connect with a family in New York, took care of his travel, and “enrolled” the boy in the program. His immigration case is now on track and he is thriving.
This is only a sample of our work and clients. But these examples are representative of the whole and serve as concrete expressions of a rich and vital nexus between legal and life needs that can enliven the meaning of due process.