As soon as Ana* emerged from her most recent immigration court appearance, a team of volunteers from the New Sanctuary Coalition surrounded her. It was a Thursday afternoon in March, and the group of volunteers had traveled from neighborhoods throughout New York City early that morning to hover in the courthouse waiting room and offer encouragement.
“How are you feeling?” someone asked cheerfully.
Ana’s boyfriend, Rodrigo, put his hand on her chest to feel her racing heartbeat.
“Still nervous,” Ana said in Spanish, a slight smile creeping across her face.
It was a little after 1 pm, more than four hours since Ana had taken off her boots and walked through the courthouse’s airport-style security checkpoint in pink fuzzy socks. It was the fourth time she said she had to appear before a judge since she had arrived from Honduras four years earlier, at age 16, amid a wave of unaccompanied minors fleeing gang violence and poverty throughout Central America. On each of these occasions, she faced the judge on her own, without an attorney.
“She’s always very nervous the night before court,” Rodrigo said of Ana, who had turned 20 just the day before. “She cries, and she gets really scared. I tell her, ‘It’s OK. You have all these people with you.’” He gestured toward nearby volunteers from the New Sanctuary Coalition, whose members accompany immigrants without attorney representation to court in order to provide emotional support and demonstrate solidarity.
Though the group provided reassurance throughout the morning, Ana still had to approach the judge alone, with only a court-appointed translator at her side. At the hearing, the immigration judge verified her current address and instructed her to attend family court to file a petition for Special Immigrant Juvenile Status, or SIJS, a classification for undocumented immigrants under the age of 21 who have been abused, neglected, or abandoned by at least one parent. Leading up to the proceeding, Ana said she felt nervous because she had received conflicting information about her eligibility for relief and feared she might be detained.
“People have told me I might not qualify for [SIJS],” she said in Spanish. “I never know what’s going to happen when I’m here in court and I still don’t have a lawyer.”
As Ana explains, she decided to leave Honduras after other young people in her hometown posted nude photos of her on Facebook, leading family members to beat her and another man to threaten her. To get to the United States, she traveled through Mexico in a series of minivans, taxis, and buses with the help of a coyote. But not far from the border, she said, the coyote demanded more money, which neither she nor her mother, who remained in Honduras, could afford to pay. The coyote then threatened to leave her in Mexico with a local gang unless she had sex with his son.
The abuse, gang threats, and rape Ana experienced would all likely have qualified her for SIJS or asylum before Jeff Sessions’s recent decision to end asylum for victims of domestic and gang violence—and she may yet qualify; but without a lawyer, she has had to navigate the confusing process on her own. And in all too many cases, that means a much higher chance of deportation.
Ana’s lack of representation reflects a disturbing but routine trend in immigration courts across the country: No matter how young they are, kids have no legal right to court-appointed counsel, which means that tens of thousands of children—including those as young as 3 years old—attend court without a lawyer each year. This courtroom reality predates the Trump administration’s chilling policy of separating kids from their parents at the US-Mexico border; but, as stories of toddlers representing themselves at deportation hearings make brutally obvious, more children are suffering without legal representation since Trump took office.
Though the number of unaccompanied minors who have been apprehended at the southwest border decreased significantly during the 2017 fiscal year from its peak totals in 2014 and 2016, the United States has initiated more deportation proceedings against children in 2018 than in any other year for which data is available, according to the most recent data collected by Syracuse University’s Transactional Records Access Clearinghouse, or TRAC. (One factor complicating these statistics: the courts have recently made changes to the way that cases have been classified, making it difficult to compare this past year to preceding ones with complete accuracy.) The deep backlog of cases has pushed pro bono providers to capacity and fueled an increase in the number of children who appear in court without an attorney—even among those who crossed into the United States several years ago.
Of the 158,136 children who began deportation proceedings between the start of the 2014 fiscal year and the end of the 2016 fiscal year, just under two-thirds, or 102,105 minors, have secured a lawyer to represent them, according to TRAC.
A sudden surge in the number of children starting deportation proceedings in 2017 and 2018 means that tens of thousands of more children have entered courtrooms without attorney representation. In fact, less than one-third of the 172,742 children who began their proceedings in the 2017 and 2018 fiscal years have attorneys, a trend that advocates say will likely lead to more deportations. In an analysis of deportation proceedings, the data-gathering clearinghouse TRAC identified attorney representation as the “the single most important factor” influencing outcomes.
The statistics bear that out: Among children whose cases were initiated in 2014 and 2015, only 10 percent of those who had attorneys were sent back to their home countries; by contrast, only 10 percent of children who didn’t have representation—known as “pro se” respondents in legal jargon—won the right to stay. In contrast, during roughly the same period, some 82 percent of the 32,737 unaccompanied children who were issued a final order of deportation lacked representation.
And there is little hope for improvement any time soon. In January, the US Court of Appeals for the Ninth Circuit ruled that children do not have a constitutional right to court-appointed counsel in immigration court and said that ensuring that right “could further strain an already overextended immigration system.” The American Civil Liberties Union blasted the ruling as a “truly brutal decision” because representation has an overwhelming impact on whether children are allowed to remain in the United States.
“The number of children without representation is a particularly poignant illustration of a much bigger problem: You don’t have a right to an attorney,” said Camille Mackler, immigration legal policy director for the New York Immigration Coalition. “Low-income immigrants have to find their own lawyers. In New York, there is a good nonprofit network, but we aren’t even scratching surface of the need.”
According to Immigrant Advocates Response Collaborative, the average immigration case in New York lasts 651 days, though many providers report cases lasting more than four years, because “there is no such thing as a simple case,” Mackler said.
Nonprofit legal service providers around the country are already over capacity and the demanding nature of each child’s case can make it difficult for pro bono attorneys to take on new cases and provide adequate representation, said Beth Krause, supervising attorney at the Legal Aid Society’s Immigrant Youth Project.
“You might be in Bronx Family Court one day, you might be in immigration court [in Manhattan] the next day, then you might be in Bethpage, Long Island at the Asylum Office and then you put in an application with [United States Citizenship and Immigration Services] so you’re all over the place,” Krause said.
In the absence of a right to government-funded counsel, city and state programs to ensure representation for children would “level the playing field and make sure every child has representation in a proceeding that, for these kids, is literally a matter of life and death,” Krause said. New York has begun implementing and funding such a program.
But pressure from the Trump administration has led to hastier decision-making by judges and reduced the amount of time that many children have to find a lawyer, said Elizabeth Simpson, a senior staff attorney at the National Immigration Project of the National Lawyers Guild
“Attorney General Sessions is making the problem worse by forcing immigration judges to rush their cases through the system, denying continuances, and giving immigrant kids even less time to seek legal representation for asylum cases that could prevent deportation to a death sentence,” Simpson said.
For children who escaped violence and poverty in their native countries and survived treacherous treks to the US border, immigration court looms as the next nightmare. Without some right-place-right-time good fortune, they rarely have a lawyer guiding them through their first few frightening court dates.
Thus, kids must contend with a complex and chaotic bureaucratic apparatus that operates in two unfamiliar languages—English and legalese—and can trigger awful memories of threats, abuse, and detention.
As soon as Angel arrived in the United States, he was detained by Border Patrol agents and sent to a facility in Florida. The soft-spoken 17-year-old had traveled to the United States from Guatemala on his own, where he had been living with his grandparents since his mother abandoned him. After months in custody, he was released to live with his father in the Bronx.
During Angel’s first court appearance, his father, who also lacks legal status, waited for him near the courthouse for seven hours with no idea what was happening to his son and no guarantee Angel would even get to leave.
When Angel’s case finally got called at the beginning of the afternoon session, the judge demanded to know why his father did not accompany him into the courthouse. The judge’s aggressive questioning disturbed him, Angel said. He feared disobeying the judge, whom he perceived as the arbiter of his freedom, but he did not want to betray his father’s whereabouts, he said.
The judge then informed Angel that he faced an order of deportation and told him to get a lawyer. But Angel did not know where to start looking—or whether he even had the right to stay in the United States.
“I felt trapped and anxious and I didn’t know what would happen if I said my dad was outside waiting,” Angel said in quiet Spanish, his attorney and father seated nearby. “I didn’t know where I’d find a lawyer and it would have been difficult to look for one.”
Fortunately for Angel, lawyers from an organization called The Door were at the courthouse representing other immigration cases and reached out to him. The Door provides various services to children and young adults in New York City, including pro bono representation for undocumented immigrants in deportation proceedings, and is now assisting him with his application for Special Immigrant Juvenile Status.
A few months later, as Angel sat inside an office at The Door, he described his first experience at the courthouse—and the intrusive security checkpoint he was required to pass through.
“When I entered [the courthouse], it reminded me of when I was detained in Texas because there were people there who were checking all of us who came from other countries,” Angel said. “In that moment, I thought, ‘This will be a struggle.’”
Metal detectors manned by gruff, uniformed officers are a nuisance to which many Americans have become accustomed, but the encounter can elicit traumatic memories for young migrants terrified of being sent back to detention.
Those same security measures may startle Jose, another young migrant, when he attends his first court appearance in Kansas to begin his defense against deportation. Jose arrived in the United States in mid-February, about a month before his 18th birthday, after making the long trek by foot and bus from Guatemala to Texas. The trip took 27 days, including four days at the border waiting for the law enforcement to thin, he said.
When Jose finally crossed into the United States, he spent another three days in the desert without food before Border Patrol agents found him and locked him in a facility he referred to as a “refrigerator.” He wore nothing but a T-shirt and was eventually transferred to a warmer juvenile-detention center near Tucson, he said.
The day before his birthday, First Friends, a New Jersey–based organization that provides support services for undocumented immigrants, interceded with the Office of Refugee Resettlement, which is responsible for unaccompanied minors (and now immigrant children forcibly separated from their parents), and offered to provide a temporary residence for Jose at a house they operate in Jersey City. If he had turned 18 in the juvenile facility in Tucson, he would have been transferred to adult immigration jail for an indefinite amount of time.
Jose spent four days in New Jersey, after which First Friends helped him get a bus ticket to Kansas, where his aunt lives. The night before the next leg of his journey, Jose sat on a chair in his way station’s mint-green bedroom and explained his decision to leave his home and family in Guatemala.
“There’s no work. You could get a job for a day, but you can’t feed your family with one day of work,” he said in Spanish, a suitcase and duffel bag on the floor in front him. “That’s why there are so many gangs and so much violence.”
“There was one gang that wanted me to join and I said, ‘No,’” he continued in Spanish. “I want to help my family and protect them. I don’t want that gang-member life or to be called a gang member. In the streets, they’re either going to the hospital or they’re killed.”
Now the question is whether Jose can convince a judge that these fears merit asylum in the United States—a challenge that demands not only resilience but, likely, an attorney (all the more so in the wake of Sessions’s announcement that gang violence will no longer be grounds for asylum). But finding that attorney will be difficult in Kansas, said First Friends Director Sally Pillay.
“Whether he gets representation or not is going to be the tricky part for him, especially since he just came into the country so recently,” Pillay said, adding that First Friends has remained connected with Jose and that his family continues to support him in Kansas—though he does not yet have an attorney. “The responsibility is on the children, and we realize that they took this journey and that they’re very resilient, very resourceful and very brave. So, with that in mind, we hope they’ll be resilient and resourceful wherever they go.”
Immigration court also demands resilience from the adults tasked with absorbing the horrible experiences of children every single day. Like social workers and therapists, empathic judges and lawyers must contend with their own secondary traumatic stress.
Immigration Judge Dana Marks pointed to research into the effects of secondary trauma on immigration judges and said that presiding over cases where children lack attorneys can be “emotionally draining.”
“Without a lawyer to help them, how am I to tell from a brief interview that this child is struggling with post-traumatic stress?” said Marks, who is authorized to speak to the media as president emeritus of the National Association of Immigration Judges, or NAIJ, a labor union. “How do I get the information I need if the child is so traumatized that he or she is not able to be trusting?”
Marks, an active judge in San Francisco, said the NAIJ favors the presence of attorneys in children’s cases because they enable the court to run more efficiently and increase the accuracy of decisions.
“The law charges judges with the responsibility of investigating a situation thoroughly enough to determine whether someone might have eligibility,” Marks said. “But that starts out with the assumption that you have a respondent who is not emotionally traumatized, not mentally compromised, and not too young to be at full mental capacity so that they can engage with you.”
Ever-shifting enforcement priorities, constant confusion, and general chaos within the immigration system further complicate the experience for judges deciding children’s cases as well as the lawyers tasked with representing them.
“Immigration law is complicated and it’s constantly changing,” said Jessica Ramirez, a former immigration attorney with Catholic Charities in Newark. “It’s very scary for children. I’m going to do personal-injury law because my heart can’t take it anymore.”