Page 43 - Impact: Collected Essays on Expanding Access to Justice

understand that this one application involves two different court systems and the participation of two different branches of the Department of Homeland Security?
For children who have been persecuted or who have a well-founded fear of persecution on account of one of the protected grounds,49 asylum law offers the possibility of immediate protection from removal from the United States and creates basic eligibility for many social welfare benefits . For non-citizen children who are accompanied in the United States by a parent who is seeking asylum, the children will usually appear as derivative beneficiaries on their parent’s asylum application . In the alternative, non-citizen children are able to apply for asylum individually, whether they are unaccompanied or accompanied by a parent or guardian in the United States .
Immigration law does not provide free counsel for children, even children seeking asylum . Although Congress has taken steps to make the asylum process less adversarial for unaccompanied minors under eighteen years of age, the complexities of the application process, the burden of document production, and the sophisticated legal advocacy needed to establish the prima facie case mean that asylum protection may be more of a dream than a reality for many children .
In order to prioritize the growing number of children’s claims, the U .S . government announced that adult claims would be delayed while the claims of children and recently arriving adults with small children would be processed first . This policy of prioritized adjudication is openly designed in part to deter false or weak asylum claims and is also utilized in the hope that it will deter future entrants seeking asylum .50 With this change in asylum priorities, coupled with the prioritization in the Immigration Courts, the adjudication of children’s claims has truly become the tail that wagged the dog . Whether in immigration detention or operating outside of it, unaccompanied or with their parents or guardians, children cannot be expected to navigate the complex web of immigration law without competent legal counsel .
We are committed to helping children who are in removal proceedings . New York Law School houses our pro bono clinic called The Safe Passage Project . The authors teach a course that prepares law students to stand with children in the courtroom and to assist them in securing a continuance until they can find pro bono counsel . We then train and mentor the counsel . Our Project has grown rapidly from 50 cases in 2006 to over 550 in 2015 . The need outstrips our ability to find pro bono counsel to fill the gap . If we are serious about our commitment to justice and our obligations under both child welfare and international refugee protection, our government must do more to ensure that every child is represented . We cannot stand by and leave them lost in the web and vulnerable to deportation . •
49 To be eligible for asylum, a person must show that: (1) she meets the statutory definition of a “refugee,” as found in 8 u.S.C. § 1101(a)(42)(A)(2); (2) she is not subject to any statutory bars from asylum as found in 8 u.S.C. § 1101(a)(42) (defining refugees to exclude “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”); and (3) she merits a grant of asylum in the adjudicator’s discretion as found in 8 C.F.R. § 208.13 (b)(1)(i). A person meeting these three criteria may be granted asylum under 8 u.S.C. § 1158.
50 David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 u. Pa. l. reV. 1247, 1290–91 (1990). Professor Martin helped design the current Asylum Adjudication System, and the value of efficient processing of cases to avoid people using the asylum system for delay or to obtain work authorization is articulated in this seminal article.
Specific Areas for Reform: Immigration
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