Page 42 - Impact: Collected Essays on Expanding Access to Justice

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child .44 The child’s attorney usually knows to request either a long continuance or an adjournment as the other applications for relief move forward . And in many cases, if the child is successful at the Asylum Office or in securing the family court Special Findings Order necessary to seek Special Immigrant Juvenile Status, the attorney may be able to terminate removal proceedings in immigration court . Further adjudications for the child’s lawful permanent residence status, which are interview-based and non-adversarial by design, would then take place before the benefits agency of DHS, the U .S . Citizenship and Immigration Services (USCIS) .45 But what if the child is pro se?
vI.The Difference representation makes
To put it simply, if a child is detained and unrepresented, or if a child is released but unrepresented, it is extremely unlikely that he will be able to successfully navigate the many agency and court jurisdictions . One study of case outcomes posited that when a child is represented he has more than an 80% chance of successfully ending the removal hearing and obtaining some form of status . On the contrary, an unrepresented child is ordered removed (deported) 90% of the time .46 In November of 2015, the web magazine Politico published an analysis of the cases involving juveniles and found that out of the sample of 7,600 cases reviewed, 2,800 children were ordered removed after a single hearing when they were not represented by counsel .47 If these children had access to counsel it is very likely that they would have taken the steps necessary to pursue available legal remedies . But almost all of these remedies are found in adjudicatory bodies outside of the EOIR . In other words, just going to Immigration Court with or without counsel doesn’t help the child . If the child is going to obtain asylum or other relief, he or she must navigate the complex jurisdictional barriers and successfully complete adjudications in other tribunals .
Pause for a moment . Do you feel you understand the legal path a child like eight-year-old Miguel must take? The choices he must make? To obtain SIJS, Miguel’s father must first initiate proceedings in state court, likely to obtain an order of custody or guardianship over Miguel .48 Then, Miguel must make a motion for the state court judge to make certain “special findings” enabling him to petition USCIS for SIJS . At the same time, Miguel would need to appear for his scheduled hearings in Immigration Court and could terminate his removal proceedings after USCIS has either accepted or approved his petition for SIJS . Finally, Miguel would file for adjustment of status before USCIS . Would you feel prepared and competent to prepare petitions, fee waiver requests and applications in so many different types of courts and agencies? Do you
44 office of The chief immigraTion Judge, u.s. deP’T of JusTice exec. office of immigraTion reView, immigraTion office PracTice manual (2009), available at http://www.justice.gov/eoir/pages/attachments/2015/02/02/practice_manual_ review.pdf.
45 In some regions of the country, advocates prefer to complete the SIJS case before the immigration judge, if possible, because of delays before uSCIS. See kids in need of defense, manual for Pro bono aTTorneys, ch. 4, sPecial immigranT JuVenile sTaTus 22, available at https://supportkind.org/wp-content/uploads/2015/04/Chapter-4- Special-Immigrant-Juvenile-Status-SIJS.pdf.
46 Representation for Unaccompanied Children in Immigration Court, Trac immigraTion, http://trac.syr.edu/ immigration/reports/371/ (last visited Feb. 21, 2016). Safe Passage Project has found that very few children are ultimately unsuccessful if they have counsel. We have found that the majority of children who have been ordered removed are those children who lose contact with counsel or cases in which the child never appeared in the Immigration Court and the child may have had no opportunity to be informed about his or her eligibility for relief.
47 See Rogers, supra note 12. The article explains that the journalist received a 175-page Excel spreadsheet with children’s ages and outcomes in the cases. Id. The cases were filed between mid-July 2014 and August 31, 2015. Id.
48 In New York a child cannot initiate a proceeding in family court until he or she is fourteen. N.Y. Surr . Ct . Proc . Act § 1703. State law varies and that adds to the confusion and complexity.
Impact: Collected Essays on Expanding Access to Justice