After her father abandoned the family and her mother traveled to the U.S. to earn money for her children, Maria struggled. At home in Honduras, gang members tried to coerce her into becoming the “girlfriend” of one their members.
So three years ago, Maria fled with her younger brother. The children traveled north through Texas until they reached New York where they reunited with their mother. At 14, Maria — whose name has been changed for this story to protect her identity — joined tens of thousands of other children escaping violence and danger in their native countries.
Once inside the U.S., Maria encountered a new challenge: how to persuade immigration court to let her stay in the country without a lawyer defending her. The first time she went to the courthouse, she faced the judge and government attorney with only a court-appointed translator at her side.
The experience terrified her.
“They explained a little to me, but they didn’t help with my fear,” Maria says. “I didn’t feel that they would help much and without a lawyer we were so alone. We didn’t have anyone to guide us.”
Maria’s mother eventually helped her connect with the New York Legal Assistance Group, a nonprofit organization that took on her case and helped her get on track for a visa. She is now on the verge of graduating from high school and she says she plans to pursue a career as a police officer.
“When I got my lawyer, I felt protected,” Maria says. “But that first time I didn’t know what to do.”
Thousands of other undocumented immigrant children never get a lawyer and continue to experience that fear and uncertainty during deportation proceedings. Others choose to avoid court, exposing themselves to in-absentia removal orders.
Over the past few months, finding legal representation has become even more challenging for immigrant children in New York City because Manhattan’s federal immigration court has eroded several of the practices and provisions designed to help children connect with nonprofit and pro bono attorneys inside the courthouse, say four lawyers who direct programs that connect with unrepresented children at 26 Federal Plaza.
Legal Aid Society’s Immigrant Youth Project supervising attorney Beth Krause says the changes have led to fewer children getting legal representation and will likely doom more children to deportation — even if their situations or experiences merit asylum, protected status or visa eligibility.
“What this means is there are many, many children who are not getting consultation with a lawyer and many kids who do have relief available but, if they don’t talk to a lawyer, might not know it and give up,” Krause says.
Though children have no legal right to government-funded counsel in immigration court — a reality reaffirmed by the U.S. Ninth Circuit Court of Appeals in late-January — New York City’s court used to provide some accommodations to help children find attorneys. The court consolidated the juvenile docket on specific days and assigned the cases to specific judges with experience presiding over children’s proceedings.
The court also shared docket information with nonprofits like New York Law School’s Safe Passage Project, Catholic Charities, Legal Aid, The Door and other Immigrant Child Advocates Relief Effort (ICARE) participants and permitted the organizations to meet with children in empty courtrooms or other spaces.
These provisions enabled children to access free legal counsel because the organizations knew how many unrepresented children would appear at court and when their case would be called. The accommodations also facilitated more efficient courtrooms — especially on days when a judge’s docket includes dozens of cases — because lawyers could prepare their young clients for court and guide them through proceedings.
Gradually, however, the court has scattered children’s proceedings throughout the month and assigned the cases to various judges who are at times unfamiliar with child-friendly practices or special legal provisions granted to children, such as longer filing deadlines, say Krause, Safe Passage Project Director Lenni Benson, Catholic Charities Supervising Attorney Jodi Ziesemer and The Door’s Director of Legal Services Eve Stotland.
The court has even prevented the nonprofit organizations from screening children inside empty courtrooms or other spaces throughout the building, the four attorneys say.
Debate about dockets
In an emailed statement, Executive Office of Immigration Review (EOIR) spokesman John Martin told City Limits that the “New York City Immigration Court continues to assign cases involving juveniles, including unaccompanied alien children, on a separate docket the last week of each month, as needed.”
In a follow up statement, Martin told City Limits that EOIR records indicate “that during the weeks of Dec. 19, 2017, and Jan. 22, 2018, there were approximately 350 juvenile cases assigned to the New York City Immigration Court in each of these weeks.”
Martin also pointed to a memo issued by the Department of Justice in December 2017 instructing courts to “conduct cases involving juvenile respondents, particularly unaccompanied children, on a separate docket or on a fixed time in the week or month.”
“If the number of cases does not warrant a separate docket, courts should attempt to schedule children’s cases at a specific time on the regular docket but separate and apart from adult cases,” the memo continues.
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).
The declining rate of representation for children in deportation proceedings
|Fiscal Year||Total Juvenile Cases||Share Represented|
(Source: Data compiled by the Syracuse TRAC using information
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.
The translator’s diligence and the defendant’s comprehension can vary by case, however.
For example, at a proceeding late last year for a Chinese immigrant with mental illness who stuttered his responses and rocked forward and backward in a self-soothing manner, a translator conveyed only a tiny fraction of the statements made by the judge, the government’s attorney and the client’s own attorney.
A ‘mess’ at the courthouse
While the lawyers interviewed by City Limits used various synonyms for disorder to describe the present state of affairs — what Stotland referred to as “mishegas” — a lack of transparency has forced attorneys to speculate about the changes.
“What I think is happening is they are scheduling the old juvenile cases for the last week of the month, but there are literally hundreds of juvenile cases that are not being set on a juvenile docket and the court seems overwhelmed.” says Ziesemer from Catholic Charities. “It has just been a mess.”
Krause from Legal Aid says limited communication from the court has left the attorneys unsure about why the changes have occurred and why they have been prevented from using empty spaces in other parts of the building to meet with children.
“It could be an intentional effort to make it so confusing and frustrating, especially for unrepresented people, that they just don’t bother showing up,” Krause says. “There are so many possibilities, but it’s not a transparent process.”
Krause says the changes may have occurred due to general “chaos” since the Trump administration took over and that Assistant Chief Immigration Judge F. James Loprest may have his hands tied by his superiors.
Loprest has not scheduled a formal meeting with organizations and rarely responds to correspondence, Ziesemer, Benson and Krause say.
The court told City Limits and the legal organizations that they took away the screening rooms because they plan to construct more courtrooms and bring on more judges.
“We are continuing to seek ways to accommodate attorneys who wish to meet with clients at the immigration court,” Martin told City Limits in an email.
For adults, the courthouse experience serves as a test of endurance in the grim face of bureaucracy, a challenge further complicated by fear. For children, it can be a confusing nightmare.
After arriving at 26 Federal Plaza, a few blocks north of City Hall, an individual who visits the court must first wait on line outside, where security personnel look through bags. Next, the individual passes through airport-style security, stripping shoes and belts, emptying pockets and walking through a metal detector while agents shout instructions.
After that, the individual enters the lobby, walks to the elevator bank and travels to the 12th floor to verify where their proceeding will take place. A guardian, sponsor or other adult custodian typically accompany children, but kids often arrive on their own. For example, Benson says she met a seven-year-old boy whose mother feared being detained if she entered the courthouse and waited for her son at a coffee shop across the street.
Once on the 12th floor, the individual finds their name, courtroom and the time their proceedings begin on one of several lists — at times including more than 50 names — posted on a large bulletin board. After locating the courtroom at which they will appear, the individual can sit in one of the drab waiting rooms on the 12th or 14th floor, where additional courtrooms are located, but only if they can find an open seat amid dozens of respondents, guardians, lawyers and translators.
Court information is posted in English, which poses another challenge. On a recent day, one man wore a handwritten sign around his neck that said he did not speak English and needed assistance. The sign proved useful when someone offered to help him.
Small courtrooms line the hallways on both floors and surround the waiting rooms. Security agents sit at desks or pace the hallways, pointing people to the bathrooms and demanding that people delete cell phone photos of the court. The guards have recently begun ushering pro bono attorneys out of the hallways when they try to meet with unrepresented children, Benson and Stotland say.
Government attorneys drag metal carts filled with case files through the hallways while attorneys wait for clients to appear and defendants determine who will translate for them.
The nonprofit teams maneuver through this environment searching for children who lack representation. When they find them, they conduct their consultations — often touching on sensitive information — in the open.
“There are very, very vulnerable children on these dockets,” Krause says. “Though it’s rare, we meet with children who we might be able to protect right there by doing a safety screening and finding out if they’re in danger. But if we can’t meet with them, then we can’t protect them.”
The court’s decision to take away private space has also affected the attorneys’ ability to conduct “Know Your Rights” trainings and prepare children for court, says Ziesimer, who supervises the immigration project for Catholic Charities. She says her organization, which represents children in detention as well as non-detained, unaccompanied children, regularly brings up to 40 children to court.
“We take kids into the hallway and then get pushback from the guards,” Ziesimer says. “The waiting rooms are chaotic. On many days there are more than 100 people in the waiting rooms.”
“It’s not at all private, it’s hard to hear the kids and they’re reluctant to talk about their legal case when so many people are within earshot,” she continues. “But there’s really no alternative.”
A nationwide problem
The changes inside New York City’s immigration court reflect problems in courthouses nationwide. Over the past few years, representation rates have fallen for children and courts have altered their juvenile dockets.
As of August 2017, 88,069 children had cases pending in immigration courts nationwide, reports Syracuse’s TRAC based on EOIR records obtained through Freedom of Information Act requests.
According to TRAC, about three-quarters of unaccompanied minors who began proceedings in the 2017 fiscal year still lack representation. As in New York City, the rate of representation has decreased significantly in the past three years at the nation’s next four busiest immigration courts in Los Angeles, Houston, Arlington and Miami.
The declining rate of representation for children in
|Fiscal Year||Los Angeles||Houston||Arlington||Miami|
(Source: Data compiled by the Syracuse TRAC using information acquired through FOIA requests from EOIR, as of December 2017)
Meanwhile, children and adults are appearing on the same court dockets before judges with little experience presiding over children’s cases, lawyers from Houston and Los Angeles say.
“In Houston, we are seeing the juvenile dockets are not remaining 100 percent juvenile,” says Claire Doutre, the managing attorney at the Kids In Need of Defense (KIND) office in Houston. “We are also seeing a lot more judges who are hearing mixed dockets. The majority are adults and a handful of children.”
For years, Doutre says, the dockets remained separate and proceedings generally occurred at specific times of the day.
In Los Angeles, three judges continue to preside over most juvenile dockets, but there have been “a few outliers where unaccompanied children are mixed into adult dockets,” says Joanna Fluckey, Senior Direct Representation Attorney at the KIND office in Los Angeles.
Fluckey says attorneys at the Los Angeles courthouse have not been permitted to use empty spaces to meet with unrepresented children and that the mixed dockets foster an even scarier experience for children.
“The children have been traumatized in their home countries, traumatized by their journey and if they’re on the adult docket, they’re among very different types of cases,” she says. “It’s more frightening to be in that environment than one where the judge is able to maintain child-friendly practices throughout the docket.”
Like undocumented immigrant children in New York City, Fluckey says kids across the Los Angeles area have a tough time finding legal counsel and are left to figure out the chaotic system on their own.
“We are struggling to keep up with the needs of unaccompanied children and the risk to them is so high,” Fluckey says. “I don’t think a child could be expected to navigate court alone.”