Newly released government data show an immigration court system under stress as judges face pressure to expedite deportation cases even as thousands of child migrants – many under 14 and with no grasp of English — are still without attorneys to represent them.
The fast pace of arraignments has been quite extraordinary, with 11,392 master calendar hearings held from July 18 to October 21 or more than 800 a week. Of the 1542 removal orders issued in the same time period, 94 percent fell on children having no counsel
“That is shocking but it is what the statistics show,” said Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges. “People, who are not represented, tend to lose at a much, much higher rate. It’s very concerning because when it is children, you are concerned if they have been fully advised of their rights. And if it is in absentia at their first hearing, how do we know?”
“By pushing cases too quickly through the courts, it is just form over substance — simply a veneer of due process,” said Jennifer Podkul, an attorney and senior program officer at the Women’s Refugee Commission. “Giving a kid a hearing before they have adequate time to find an attorney or to be in a position to articulate a fear of return is not justice.”
In fact, the numbers suggest the full impact of the expedited process has not yet been felt because of the abundance of continuances granted by judges allowing more time for children to seek counsel.
That’s forced a pause, so to speak. But more than a third of these continuances will begin to run out in the coming weeks, posing a fresh challenge for the courts and also Congress.
Republicans are far stronger after Tuesday’s election and as a rule have opposed efforts to provide public funding for attorneys. Nonetheless, the child migrant issue will be back on the table in the next few weeks as lawmakers come to grips with final appropriations for the 2015 fiscal year which began Oct. 1.
The GOP must contend then with not only the inequities of the current situation but also the fact that the shortage of defense counsel — and frequent continuances — hurt the Republicans’ own goal of expediting the process.
The new data was released by the Executive Office of Immigration Review in response to written questions submitted by POLITICO. Many details are still lacking, but it offers one of the fullest pictures yet of where the children stand now in the legal system.
The rapid-fire arraignments — urged on by the White House in an effort to deter future border crossings — are just a first step in that process. And judges have typically put on the brakes by issuing as many as 10,773 continuances in the same period.
But the lack of counsel stands out. In nearly two-thirds of these same hearings, EOIR lists the children as without legal representation and there is a real disparity over how the courts treat these defendants.
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For example, 5740 continuances — or well over half of the total — were to allow the child more time to find legal representation. But 37 percent of these extensions were for just 60 days or less, far short of the proposed national standard of four months favored by immigrant rights attorneys.
The result is to add to the pressure on an already strained network of non-profits and pro bono attorneys available to represent the children. As the shorter continuances run out, some judges like Marks will allow more time for the child to prepare a defense. But the lack of consistency adds to the challenge already posed by the lack of adequate representation.
Thus far, the White House has taken a hands-off position, refusing to set some minimum standard for the time allowed by the courts to find counsel.
“The length of continuances, including those to seek counsel, is wholly based upon the facts and circumstances of the specific case, and the discretion that the immigration judge may use to evaluate the motion itself,” said Lauren Alder Reid, a spokesperson for EOIR.
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Marks herself agrees that local conditions vary too much to set a single standard and an open ended approach is better. But she is not unsympathetic with those who see a “mixed message” in the administration’s policy and acknowledges that practices can vary widely from one court to the next.
In her case, for example, she is giving shorter continuances to keep a tighter leash on cases but fully expects the total time allowed to find a lawyer won’t change. And if a child fails to show up when first called to be arraigned, Marks said it is standard practice in her court to allow a second chance given the short notice allowed under the expedited dockets.
“Local practices differ,” Marks said. “Here in San Francisco, if somebody doesn’t show up at their first hearing, we tend to give them a second opportunity to appear rather than order them in absentia the first time. That apparently doesn’t happen everywhere. So that’s where you get into these differences and it is hard to know. I don’t get pushback for that from my local government attorneys. Maybe in other places they do get that pushback.”
Indeed, the disparities and uneven justice are well illustrated by the EOIR data.
Of the 1804 cases listed as completed, 85 percent or 1542 ended with orders of removal, which carry with them criminal penalties and make it far harder for that child to try to re-enter the U.S.
By comparison, just 47 children were given the route of voluntary departure, which avoids future felony charges.
Breaking this down further, of the 1542 removal orders, 1449 were issued in absentia, meaning the child failed to appear at the appointed court hearing. In another 55 cases, children showed up without a lawyer and met with the same result.
What drives the larger number of in absentia rulings is a matter of dispute. The responsibility to appear falls on the child, and many will argue that the children came illegally and have now disappeared into the nation hoping to avoid the courts.
But there is strong evidence that children, if provided lawyers, are far more likely to engage with the legal system. Moreover, the quick pace of the arraignments aggravates the situation by leaving less time for mailed notices to reach the defendants. Even now, defense attorneys say, the government has yet to provide a simple zip code map to help families know what immigration court will be handling the child’s case.
“This data confirms that hundreds of children are being ordered deported because they have failed to appear in court and they have failed to appear in court only because they do not have lawyers,” said Ahilan Arulanantham, an immigration attorney with the American Civil Liberties Union in California. “Over 90 percent of children who are represented do appear in court. And here you see the mirror image of that number.”