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opinion | Laila Hlass

Obama is not helping children who face deportation alone

A child’s floatie and shoe left behind by undocumented immigrants lie in the dirt on the US side of the Rio Grande River near Mission, Texas, in July.getty images

Josefina is one of the nearly 70,000 unaccompanied children apprehended at the border this year. After being abandoned by her father and left behind by her mother, she was terrorized by her caretakers. Trapped in her home, frequently beaten, and eventually raped at knife point, Josefina — whose name I have changed to protect her privacy — lived in daily fear until she fled to the United States. It may not be long, however, until she is forced to return to that life.

The teenager from Honduras personifies the challenges of the child refugee crisis. The president’s response has been both bold and completely contradictory. On one hand, the Obama administration is slowly trying to find attorneys for immigrant children, many of whom are fleeing violence like Josefina and many of whom must represent themselves under the current system. Such efforts, though, are being undermined as the administration speeds up juveniles’ deportations before representation can be found.

As the surge of unaccompanied minors fleeing Central America has receded from headlines, their cases have flooded the courts. A child, no matter how young, has no right to an appointed attorney in immigration court, and most youth must represent themselves.

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According to reports, about 40 to 60 percent of these children could qualify for protection from deportation under American law. The United Nations High Commissioner for Refugees, for instance, conducted a statistically significant study of recently arrived children and found that 60 percent were forcibly displaced from their home countries due to violence that could implicate the need for international protection. Yet, without a lawyer, the odds of winning are low. A second recent report found that nine of 10 unrepresented children are deported, while almost half of represented children are allowed to stay in the United States.

No matter how sensitive to a child’s needs an immigration judge may be, unrepresented children don’t stand much of a chance. Successful defenses to deportation often require completing complicated forms, collecting evidence, and sometimes filing cases in state courts —tasks that would confound most adults without law degrees. Current immigration court guidelines describe the accommodations that judges may make for children — such as permitting a youngster to use a booster seat or hold a toy while in the courtroom. Judges cannot appoint attorneys or guardians ad litem. Nor can judges consider the best interests of the child when deciding on the merits of a case.

On the positive side, some courts have decided to establish juvenile dockets, often presided over by judges particularly sensitive to children’s issues. These dockets often have the effect of increasing pro bono representation by ensuring all children show up on the same day so that they can be more easily screened by strapped nonprofits.

In a particularly inspired move, the US Department of Health and Human Services has announced a $9 million direct legal representation project to provide lawyers to 2,600 unaccompanied children in immigration court. Also encouraging, the Justice Department has partnered with the Corporation for National and Community Services, which administers AmeriCorps national service programs, to award $1.8 million towards funding about 100 attorneys and paralegals for unaccompanied immigrant children, including some in the Boston region.

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Some localities and states have joined suit. New York City instituted a program this past year to represent indigent children and adults in removal proceedings, and California Governor Jerry Brown just signed a bill appropriating $3 million for representation of immigrant children. Unfortunately, these efforts will not be enough to ensure each of the 40,000 children with pending cases has access to justice.

What’s worse, long before the federal programs could be put into place, Obama this summer issued orders to fast-track immigrant children’s deportation hearings, creating so-called “rocket dockets” throughout the country. Judges are delaying the cases of adults who often have been already waiting for years to fill their dockets with immigrant children. By the end of July 2014, the number of backlogged cases had spiked 22 percent from the beginning of the year, and it has continued to grow to 378,648 pending cases.

In Atlanta, for example, judges were reportedly seeing about 100 children a week, allowing for as few as nine days to find an attorney — an impossible feat considering limited resources. Advocates reported some children being deported before their hearing notices arrived in the mail. With the surge of immigrants put into deportation proceedings, court wait times have ballooned, while the number of immigration judges has remained about the same.

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Justice Department officials have tried to mitigate the impact of fast-tracking kids’ cases by reminding judges that they still have the authority to grant continuances. While the guidance is critical, it raises the fundamental question: Why is the United States rushing to deport children without legal representation — many of whom are likely eligible to stay in the United States anyway — when there are years-long backlogs for represented adults? Not only does it undermine the administration of justice, but it is also a waste of scarce judicial resources in an immigration court system already bursting at the seams.

The president is perhaps trying to appease the enforcement-minded public while also paying lip service to those worried about the refugee crisis. Ultimately, however, under the current approach, he accomplishes neither.

Indeed, if the administration wants to meaningfully help child refugees such as Josefina, the first step should be to rescind the fast-track order. Then efforts must be increased to ensure that, when these youth come before a judge, they have legal counsel standing by their side.


Laila Hlass is a law professor at Boston University.