Victoria Pickering

An immigration rally at the White House in February 2017.

When interviewed by City Limits, directors for the four organizations that work with unrepresented children inside the courthouse each questioned Martin’s statement, saying the court schedules children’s cases throughout the month and often fails to separate juvenile and adult proceedings.

“They’re just not doing that. On the last three days of the month, there might still be a juvenile docket but they’re doing [children’s proceedings] every single day,” Benson says. “I was just there on [January 25 — the last Thursday of the month] and the courtrooms I was in were a mix of adults and children. Those were not special dockets.”

Benson — who has access to confidential docket information through the Justice America program — told City Limits that she counted 60 separate dates where children have been scheduled to appear for proceedings between January 8 and April 8, despite the memo’s instructions and the court’s statement about consolidated dockets. Benson also says she counted hundreds of first-time hearings for children spread across 27 different judges. Previously, she says, two or three specific judges handled juvenile proceedings.

Benson shared the dates with City Limits, but says she cannot share the confidential reports used to aid children in finding pro bono counsel

Krause, Ziesemer and Stotland— all of whom have worked at the courthouse or overseen teams that identify, screen and provide representation or referrals to undocumented immigrant children without representation — backed up Benson’s statements.

In the past, the nonprofit legal groups used this docket information to coordinate teams to visit the court, but inconsistent scheduling across a sprawling courthouse prevents small teams of attorneys from physically reaching children without representation, Stotland says. Proceedings occur in dozens of courtrooms spread across two separate floors and each floor is separated into narrow corridors by courtrooms and an elevator bay, which makes the task of finding children a challenge, she says.

“The court is playing games with children’s lives and it is inexcusable that the court would prevent children from accessing legal counsel,” Stotland says. “To add insult to injury, the court not only ended the partnership [with nonprofit legal assistance groups], they’re pretending that it’s still going on.”

The ‘single most important’ factor

With about 26,500 juvenile deportation proceedings since 2005, New York City’s immigration court at 26 Federal Plaza hosts the most children in the country, followed by Los Angeles and Houston.

Despite the efforts of various pro bono legal assistance organizations partially funded through a partnership between the City Council and the Robin Hood Foundation, the percentage of children receiving representation has decreased over the past three years. Of the 5,580 children whose deportation proceedings began in Fiscal Year 2016 — October 1, 2015 to September 30, 2016 — 73 percent had representation. Last year, 37 percent of 3,697 children of children had representation and so far this year, just 27 percent of 624 children have gotten representation, according to data compiled by the Syracuse University Transactional Records Access Clearinghouse (TRAC).

Kids Without Counsel

The declining rate of representation for children in deportation proceedings
in New York City, Fiscal Year 2016 to 2018:
Fiscal Year Total Juvenile Cases Share Represented
2016 5,580 73%
2017 3,697 37%
2018 624 27%

(Source: Data compiled by the Syracuse TRAC using information

acquired through FOIA requests from EOIR, as of December 2017)

Deportation proceedings typically take years to resolve, which means children whose cases began earlier have more opportunities to get legal representation, but ramped up immigration enforcement has left legal service agencies “swamped” and led to less representation overall says Audrey Carr, Director of Immigration at Legal Services NYC.

The limited ability of attorneys to provide counsel to unrepresented children inside the courthouse has only increased the burden on other legal providers, Carr says.

“We have seen an uptick in the number of children calling us looking for assistance and part of the issue is that, like every other nonprofit agency, we are at capacity,” Carr says. “We attribute some of that uptick to not getting assistance at the courthouse.”

A 2017 report by the New York Immigration Coalition outlines the “crushing demand” on the 121 organizations that provide immigrant legal services in New York City and states that nearly all pro bono legal service providers are at or near maximum capacity, sometimes with three-month long waiting lists.

Representation is vital in immigration court and often means the difference between protection and deportation. In fact, whether or not a child has an attorney serves as “the single most important factor” influencing childhood immigration cases, according to an analysis by Syracuse’s TRAC.

Between 2012 and 2014, immigration judges ordered deportation in only 12 percent of cases involving an unaccompanied child who appeared at court with attorney representation, Syracuse’s TRAC reported. In contrast, judges ordered deportation for 80 percent of unaccompanied children who appeared at court without representation during that same period.

The New York City court’s coordination with nonprofits helped address this chasm by enabling teams of lawyers and associated volunteers to visit the courthouse on days when scores of children arrived for proceedings. There they identified children who lacked attorneys and provided guidance and referrals in private spaces.

“The child may never learn anything about legal remedies that are possible if they don’t have a competent consult,” says Benson, who estimates that 80 percent of children she encounters are eligible for some form of deportation protection. “[Now] we’re chatting with children in the hall with clipboards. It’s not ideal for doing a full screening.”

Benson’s Safe Passage Project enlists New York Law School students to provide legal, administrative and emotional support to the children at the courthouse. During initial screenings, the law students learn about the children’s experiences, help them complete forms and refer them for representation — a process otherwise held up by weeks-long waiting lists at overburdened advocacy organizations around the metropolitan area. The students also provide guidance and correct misinformation to help assuage fears of immediate deportation.

“I have seen situations where an adult has told a child, ‘We don’t go to court because we can’t afford an attorney,’ not realizing that one of the nonprofits might help,” Benson says. “If we are there, we educate the public about the process, how to look for competent counsel, how to avoid scams.”

Safe Passage Project staff and students continue to visit the courthouse during the last week of each month but are unable to reach as many children as before, Benson says.

Immigration judges at the Manhattan court do have a short list of free legal resources that they provide children and, according to the memo issued by the Department of Justice in December 2017, are mandated to supply this sort of reference list. The court has yet to approve the distribution of a list of seven additional providers drafted by ICARE members, Krause and Stotland say.

Even when children receive the reference list, the court expects them to contact the organizations on their own, regardless of their age, ability or language of origin — a particular challenge for speakers of indigenous languages — says NYLAG attorney Crystal Fleming.

“[The children] are being left out in the cold to fend for themselves without a lawyer and it is overwhelming,” Fleming says. “They’re very nervous that they won’t be able to exit the courtroom. They’re so scared and sometimes they don’t end up going because of everything they hear on the news.”

In theory, the government has a responsibility to ensure each defendant understands the court proceedings and their responsibilities, but the presence of a court-appointed translator usually suffices to fulfill that responsibility, Fleming says.

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