Undocumented Central American minors not getting due process in US immigration cases

In the United States, thousands of immigrants – many of them underage, mentally ill or otherwise vulnerable – risk deportation as they face the court system without legal counsel.

Of the 375,000 cases currently pending in immigration courts throughout the nation, more than 40,000 involve juveniles. But because the US government does not guarantee counsel for undocumented immigrants, more than two-thirds of those children appear in court without a lawyer, according to the latest report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which tracks immigration data.

“These children, like so many others who contact our office each day, live in fear of being sent back to the violent countries they fled but have no idea how to defend themselves in a courtroom,” Talia Inlender, a staff attorney for the nonprofit law firm Public Counsel, told the American Immigration Council last week.

The issues of adequate legal services and how to provide them are increasingly the center of discourse on immigration, as more than 60,000 minors – most seeking to escape crime and violence in Central America – pushed past the US-Mexico border over the last few months. The number represents the biggest influx of non-citizens into the United States in recent years and is a challenge to programs aimed at providing legal counsel for immigrants across the country.

“How do we ensure that due process is adhered to [in immigration court]? Because every person should be entitled to that process, especially when liberty is at stake,” said the Hon. Robert A. Katzmann, chief judge for the US Court of Appeals for the Second Circuit and a speaker at a panel at the American Bar Association (ABA) annual meeting held in Boston last weekend.

Moderated by Al Jazeera America journalist Ray Suarez and consisting of immigration specialists, the panel discussed the plight of unrepresented immigrants and the challenges facing lawyers and advocates who push for immigrant legal services. 

“It really does offend the sense of justice to have people represent themselves, by themselves,” said Raha Jorjani, the first full-time immigration defense attorney for the Alameda County public defender’s office in Oakland, Calif.

Oakland first hired in-house counsel for non-citizen defendants in 2009. In those four and a half years, Jorjani said, immigration advice “went from kind of important to indispensable” as Alameda County public defenders learned more about both the immigration system and their clients’ perspectives.

For instance, they found that many immigrants are willing to take heavier punishment if it means being allowed to stay in the United States after serving time, Jorjani added.

“They would rather spend more time in prison than be torn away from their families,” she said.

That reality is part of what drives the New York Immigrant Family Unity Project (NYIFUP), launched November last year. The program aims to provide legal counsel for all poor immigrants in New York City and is based on a 2011 study, which found that legal counsel was a major factor for successful outcomes in immigration cases. Yet 60 percent of detained immigrants and nearly 30 percent of non-detained immigrants in New York courts went unrepresented.

“I could see in case after case the carnage that results when families and individuals are without counsel,” said Katzmann, who led the study.

NYIFUP, a collaboration among the Vera Institute of Justice, the Cardozo Law School’s Immigration Justice Clinic and other organizations, has to date received almost $5 million in support from the New York City Council.

But reform is a slow process, especially when it comes to moving such a large system, said Juan P. Osuna, director of the Department of Justice’s (DOJ) Executive Office for Immigration Review and the third member of the ABA panel. Immigration proceedings can take anywhere between a few months to several years to complete, according to TRAC data.

The DOJ, which has prioritized the cases of unaccompanied minors crossing the border, has faced criticism for what some are calling an expedited deportation process.

“A lot of these young people … don't even speak English, and they don't understand what's happening … [I]t's basically like a conveyor belt to deportation,” Thanu Yakupitiyage, communications coordinator for the New York Immigration Coalition,