Attorneys and a Remedy for a Deteriorating Immigration System

1 year ago Alger Mag Editor 0

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While media headlines have been dominated by questions as to the appropriate response to ISIL abroad, and the appropriate response to racial inequalities at home, there remains an overlooked immigration crisis that grows more desperate with the passing of each fiscal year. The method the United States uses to handle unaccompanied children (UACs) continues to define the United States’ immigration system as inefficient and overly bureaucratic, specifically when looking at immigration courts. If all UACs were afforded an attorney, many of the current deficiencies in our immigration system could be mitigated.

El Salvador, Honduras and Guatemala, [1] where the majority of children fleeing to the United States come from, are plagued by a similar political illness. An immensely profitable drug industry,  fueled by the Zeta and Sinaloa drug cartels of Mexico,[2] coupled with the strict “mano dura” (iron hand) policies of the government, in which teenaged men are suspected of being in gangs and are  unjustly killed by police officers, have nurtured the development of violent gangs.[3] The influence of international gangs and Mexican drug cartels have created a driving factor, forcing children to flee, often because they are given the ultimatum to either join a gang or die.  

Determining a way to mitigate the problems associated with our immigration system should be given priority due to the crucial nature of the crisis. Upon diagnosis,  there are three problems, all with seemingly related solutions. First, UACs are improperly screened and the extent of their suffering is never known. There is also a large number of UACs who are not afforded an attorney, resulting in unjust orders of removal. Lastly , there are an overwhelming number of UACs living under unauthorized status.

UACs are screened by Customs and Border Protection (CBP) agents in accordance with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to affirm that “…the UAC has not been a victim of a severe form of trafficking in persons and there is no credible evidence that the minor is at risk should the minor be returned to his/her country of nationality or last habitual residence.”[4] CBP agents have been routinely noted to employ “restrictive standards by which to assess trafficking and fear of persecution upon return to one’s home country,”[5] making it harder for UACs to qualify for relief and  remain inconsistent with their rulings.

After an improper screening, UACs will eventually find themselves before the Executive Office for Immigration Review (EOIR), which is responsible for adjudicating immigration cases. Throughout this process UACs are typically without representation, with some estimates claiming an upwards of 79.8% of cases tried in the 2014 fiscal having been done without representation for the UAC. Only 11% of UACs were granted a form of relief when their case was heard without representation.[6]

The sheer number of UACs living under unauthorized status, meaning they are not recognized as having been given asylum nor as having immigrant status, is also cause for concern. All 456,644 cases that are still pending as of the 2015 fiscal year are also considered to be under unauthorized status. In the 2014 fiscal year, 13,204 UACs were ordered to be removed; however only 1,863 were deported, in a large part because the removal order was issued in absentia, meaning that the party never showed up to the hearing. Court cases given a ruling in absentia represent 22% of all UAC court cases and 69% of removal order cases.[7] Even when given relief, 97% of UACs are awarded “informal relief,” meaning the UAC is not granted any legal immigration status. In this instance, their case in the immigration court is terminated and they are granted unauthorized status. Regardless of which circumstance classifies a particular UAC as unauthorized, they are barred from healthcare and other basic rights that are afforded to US citizens, however are eligible for benefits like public school, which pressures local school districts quite substantially.

        A solution that would potentially  mitigate all of these problems would be to assign mandatory representation to all UACs when their case is being heard. Attorneys, specifically specializing in immigration policy with an understanding of the realities that the majority of UACs face, would be more suitable for screening UACs to better argue on their behalf. Attorneys would also be better versed in all relevant immigration laws than the CBP agents, and therefore would be more likely to adhere to the standards that these laws set.

President Obama had introduced a request for an additional “…$50 million for legal representation of UACs and child victims of mistreatment, exploitation, and trafficking in the 2016 Commerce, Justice, Science funding bill,”[8] for the 2016 fiscal year which had unfortunately been denied. Reintroducing  this request would be necessary in order to ensure that all UACs are afforded representation.

By requiring UACs to have an attorney, the amount of unjust removal orders would hopefully be reduced. Rightful representation would give 73% of UACs appearing before immigration court some variation of relief and ultimately support the ideals that the United States was founded on.[9] As the American Constitution, specifically the 6th amendment, is aimed at protecting citizens of the United States, because the hearing is taking place within U.S. borders, all those present should be afforded comparable rights.

Under the 14th amendment to the Constitution, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[10] Here, under the letter of the law, any persons should be afforded rights, especially when under the jurisdiction of a US court.

Affording an attorney to all UACs could help reduce the number of unauthorized immigrants in the United States. Of those UACs who were ordered to be removed between the 2014 fiscal year and August 2015, 93% without representation failed to appear in court so that they could be removed, compared with 23% of those with council who failed to appear.[11] Having an attorney would also, in theory reduce the total number of in absentia rulings, because if UACs have representation, they will not view their case as hopeless, and will be more willing to appear before immigration court.

        By mandating that all UACs be afforded an attorney, the deficiencies in our current immigration system will hopefully be reduced. Simultaneously, the United States will demonstrate their commitment to equal justice and protection under the law While this is only a short-term solution directed solely at domestic issues, the United States’ immigration crisis would stand to benefit greatly if implementation of these changes is followed.

By: Chris Hollenbeck

(photo:Joe Brusky, “Counter Protestors Take Over Bridge,” 2014, taken from flickr.com)

[1] Renwick, Danielle. “Central America’s Violent Northern Triangle.” Council on Foreign Relations. Council on Foreign Relations, 19 Jan. 2016. Web. 3 Mar. 2016.

[2] “Drugs and Violence in the Northern Triangle.” Transnational Institute. N.p., 08 July 2014. Web. 03 Mar. 2016.

[3] Dudley, Steven. “How ‘Mano Dura’ Is Strengthening Gangs.” InSight Crime. N.p., 21 Nov. 2010. Web. 03 Mar. 2016.

[4] Kandel, William A., and Lisa Seghetti. “Unaccompanied Alien Children: An Overview.” Congressional Research Service (2015): n. pag. Web. 1 Mar. 2016.

[5] “Findings and Recommendations Relating to the 2012-2013 Missions to Monitor the Protection Screening of Mexican Unaccompanied Children Along the U.S.-Mexico Border.” United Nations High Commission for Refugees (2014): n. pag. Web. 2 Mar. 2016.

[6] “Representation for Unaccompanied Children in Immigration Court.” Trac Immigration. N.p., 24 Nov. 2014. Web. 02 Mar. 2016.

[7] Pierce, Sarah. “Unaccompanied Child Migrants in U.S. Communities, Immigration Court, and Schools.” Migration Policy Institute (2015): n. pag. Oct. 2015. Web. 2 Mar. 2016.

[8] “The 2014 Humanitarian Crisis at Our Border: A Review of the Government’s Response to Unaccompanied Minors One Year Later.” Freedom Network USA (2015): n. pag. Web. 3 Mar. 2016.

[9] “Representation for Unaccompanied Children in Immigration Court.” Trac Immigration. N.p., 24 Nov. 2014. Web. 02 Mar. 2016.

[10] “The Constitution of the United States: Amendments 11-27.” National Archives and Records Administration. National Archives and Records Administration, n.d. Web. 04 Mar. 2016

[11] Pierce, Sarah. “Unaccompanied Child Migrants in U.S. Communities, Immigration Court, and Schools.” Migration Policy Institute (2015): n. pag. Oct. 2015. Web. 2 Mar. 2016.