Immigration courts bracing for influx of youth migrants

SAN ANTONIO – One after another, the children from Central America sat at the defendant's table in U.S. Immigration Court in this city and faced routine questions from Judge Anibal Martinez.

Do you know the charges against you? Do you have representation? Do you understand that if you don't show up to your next hearing, you could be deported?

The children – mostly teenagers from Guatemala, Honduras and El Salvador – listened to simultaneous Spanish translations through headphones and nodded in agreement. On this day, most were accompanied by attorneys or legal representatives, many of them working pro bono.

The judge smiled at the children and opened each line of questioning with a cordial greeting: "Thank you for your patience this morning." In the two rows of the visitors galley, more children: three teenage boys dressed in shirt and tie or jeans and Nike hi-top sneakers, a young woman staring down at her shoes, an older woman corralling two grade-school sons. Some had attorneys; others were there alone. All were from Central America.

Even with legal backing, the procedure was daunting for some of the teens.

"No way I could do this alone," said Jose Enrique, 17, who left El Salvador last fall after members of the MS-13 street gang threatened to kill him. He requested that his last name not be published in case he's deported and is sought out by the gangs. The teen was accompanied by a pro bono attorney in court Wednesday.

"I can't go back," he said. "If I go back, they kill me."

Suite 300 in Immigration Court here, where Martinez hears juvenile cases every Wednesday, is on the front lines of the crisis of immigrant children illegally crossing the Southwest border. That rush of unaccompanied minors – expected to reach more than 90,000 this fiscal year – has overwhelmed federal holding facilities and Border Patrol units.

It also threatens to severely strain an immigration court system already buckling under unprecedented volume. As of the end of June, the 59 immigration courts across the USA, run by 243 judges, had a record backlog of 375,503 pending cases, according to the Transactional Records Access Clearinghouse, a data research group at Syracuse University.

Wait times for hearings are averaging about a year-and-a-half, some much longer. The crush of immigrant youths could further strain that workload.

The White House has asked Congress for $3.7 billion in emergency funding, which includes $45 million for new judges plus funding for legal aid for children, and has signaled it would like to see deportations stepped up. Republican lawmakers have balked at the proposal. They want to make it easier to send the youths back.

The Justice Department has announced plans to dispatch judges to the border to speed up proceedings.

"We have an obligation to provide humanitarian care for children and adults with children who are apprehended on our borders, but we also must do whatever we can to stem the tide of this dangerous migration pattern," Deputy Attorney General James Cole said.

But immigration advocates warn that the overtaxed immigration court system already leaves thousands of children unrepresented at deportation hearings and the push to speed up deportations could leave more without legal counsel. Many of the unaccompanied minors crossing over are fleeing violent lives in countries such as Guatemala, Honduras and El Salvador and could face life-threatening situations if returned.

Last week, the American Civil Liberties Union and other groups sued the federal government for allegedly not providing sufficient legal representation to immigrant minors.

"We have these countervailing pressures: to go faster but to make sure that we go with deliberate speed … to make sure the child's rights are protected," said Judge Dana Leigh Marks, president of the National Association of Immigration Judges. "It's a very delicate balancing act."

Minors from places other than Mexico or Canada who are caught crossing illegally into the USA are required to appear at an immigration court, said Marks, an immigration judge in San Francisco. Since the hearings are civil cases, the government is not required to provide defense counsel as it is in criminal cases, she said.

Often, immigrant minors are left to fend for themselves in deportation hearings against a government-paid prosecutor presenting a case on why they should be deported, Marks said. Nationally, through June, 55% of juveniles had representation at their deportation hearings, according to the Department of Justice, which oversees immigration courts.

Being under the Justice Department poses an inherent conflict of interest: The judges are working for the very wing of government trying to deport migrants, Marks said. Immigration courts should be an independent judicial branch, like bankruptcy or tax court, which would ease the bottleneck and allow for fairer hearings, she said.

Marks currently has more than 2,500 cases pending at her San Francisco court. Her next docket opening: Spring of 2018.

"We're doing death penalty cases in a traffic court setting," she said. "The stakes are so high. If I make a mistake, I could be sending someone to their death."

A survey released earlier this year of 404 recently arrived immigrant minors by the United Nations High Commissioner for Refugees found that 58% of those interviewed would qualify for humanitarian protection under international rules.

Jonathan Ryan, executive director of Refugee and Immigrant Center for Education and Legal Services, a San Antonio legal aid group that represents many of the youth, said more of the children get deported than should. Of the more than 1,000 children he and his staff recently screened at Lackland Air Force Base, around three-fourths seemed eligible for asylum under U.S. law, he said. However, without representation, many of those will be sent back to their countries, he said.

More than 90% of the children he and his staff represent in immigration court win a favorable ruling and are allowed to remain in the USA, Ryan said. Unfortunately, he said, many don't find lawyers and are deported.

"What really determines the outcome of these cases is whether or not these children have access to competent, affordable civil legal aid, not their actual eligibility," Ryan said.

Most of the defendants in Martinez's courtroom Wednesday had lawyers, but not all started out that way. Jose Enrique, the teen from El Salvador, showed up alone at a hearing in Harlingen in March and ran into a pro bono attorney who offered to take his case. Groups like RAICES send staff attorneys to sit in on hearings across Texas to make sure the immigrant youth are being represented.

On Wednesday, Linda Brandmiller, an independent San Antonio attorney, dashed between her clients and other minors appearing without representation. She went over their rights with them, filed motions with the court and answered the judge's questions for them. Without help, the youth are likely to end up deported even if they qualify for asylum, she said.

"(The defendant) could tell the truth, have no fear in telling the truth, and still lose and get deported," Brandmiller said. "How can you defend yourself when you don't even know what the rules are?"