Children Fare Better in U.S. Immigrant Courts if They Have an Attorney


Children Fare Better with Legal Representation

Children who go before the immigration courts stand a significantly better chance of staying in the United States if they have an attorney by their side, a new analysis of court data finds.

The findings will likely add fuel to the debate now in Congress over how to shore up the backlogged immigration court system and whether to expedite deportation proceedings for thousands of unaccompanied children crossing the U.S. border from Central America.

Children in immigration courts aren't legally entitled to attorneys, but judges often delay cases to give the children time to find lawyers, which are sometimes provided by advocacy groups.

The new data show that children who do find attorneys are far more likely to win their cases, a finding that could color the deliberations in Congress over measures to speed up deportations.

In almost half of cases where a child was represented by attorneys over the last decade, he or she was allowed to stay. But nine in 10 of those without representation were sent back to their home countries, according to the report by the Transactional Records Access Clearinghouse, a project at Syracuse University that gathers and analyzes federal data.

In fiscal year 2013, 78% of children with attorneys won the right to stay in the U.S. Those without an attorney have also had more success in recent years, but still only 25% of them were allowed to stay last year.

The data also show that as case loads have climbed over the last decade, children have been more likely to appear without an attorney.

Attorneys say they are most likely to take the cases of children who have the best chance of success, a factor that likely explains some of the disparity in outcomes between children with and without legal representation.

Congress is considering legal changes that could result in speedier deportations and fewer children appearing before judges with legal representation.

Under a 2008 law designed to protect minors from human trafficking, children who cross the border by themselves from countries other than Mexico or Canada are placed with sponsors in the U.S., usually members of their families, while deportation proceedings unfold in the courts. That gives them a chance to find an attorney, who can assemble evidence that the child qualifies for the right to stay in the U.S.

Avenues available include asylum, which requires that migrants prove they have a credible fear of harm if they return home; special juvenile immigrant status, which requires showing that the child was abandoned, abused or neglected at home; or special visas for victims of crime in the U.S. or trafficking.

The system is much different for Mexican children crossing the border alone. Those children are screened by border patrol agents to see if they show a fear of return to their countries, a risk of trafficking or lack the capacity to make decisions about their status.

During this process, children aren't represented by lawyers. If they fail those tests, they are sent home quickly. Those who present a concern are put into the same system that handles the cases of Central American children. That process is drawn-out, and gives them a chance to find attorneys.

Congressional Republicans and President Barack Obama have both said they would like to treat Central American children closer to the way that Mexican children are now treated.

House Republicans have said they would insist on changing the law, to speed up deportations, as part of the president's request for emergency funds to address the surge of minors crossing the border.

"Right now Mexican children don't have a lawyer," said Rep. Mario Diaz-Balart (R., Fla.), who visited Honduras and Guatemala recently as part of a congressional delegation. "I have not heard a lot of complaints from folks that the Mexican children are being treated uniquely bad and that they have a serious problem."

He added that the existing system, with its long delays, is unacceptable. "I don't think it's in anybody's interest to have any process take three to five years," he said. "Having a process that's expedited but fair makes sense."

But changing the system could put children in jeopardy, said William Holston, executive director of Human Rights Initiative of North Texas, a Dallas-based group that represents immigrants. He said it takes time to conduct proper evaluations. Without a lawyer, he added, immigrant children stand no chance, even if they are eligible to stay.

"For most people, however they look at this issue, the idea of a child going into court with no lawyer—that' s not acceptable to most of us," he said.

Even those who don't qualify for the right to stay in the U.S. benefit from having an attorney, the TRAC data for the last decade show. The vast majority of those without an attorney who lost their cases were given formal removal orders, which means they cannot re-enter the country again for at least a decade. But among those who had an attorney, nearly half forced to leave were given a "voluntary departure," meaning they were allowed to leave without a formal immigration record

"These are highly complicated proceedings, so the expectation a child would be savvy enough and sophisticated enough to navigate that without counsel is unrealistic," said Wendy Young, president of the nonprofit group Kids In Need of Defense, which provides pro bono attorneys for children in these court proceedings.