Child Migrants, Alone in Court
On Jul 3rd, 2013
BELKIS RIVERA, 14 years old, sat in the Los Angeles immigration courtroom, in a black coat and purple scarf, shaking with fear.
When Belkis was 6, the gang that controlled her neighborhood in San Pedro Sula, Honduras, killed her grandmother and then her uncle, and demanded that her brothers join as lookouts. Belkis’s mother took the boys and fled to the United States, leaving Belkis behind with family. When the gang started stalking and threatening Belkis, then 13, she followed, making the terrifying six-month journey across Mexico by herself. She was caught by the Border Patrol last September, while crossing into the United States.
Now she faced one more trauma: America’s judicial system.
In a nation that prides itself on the fact that everyone accused of a crime — murderers, rapists — has the right to a lawyer, undocumented immigrants, even when they are unaccompanied children, are not entitled to a public defender. Although some children are represented by pro bono lawyers or, for the few whose families can afford it, private lawyers, it’s estimated that more than half of them go to court alone. These children — some as young as 2 years old — have no one to help them make the case that they should not be deported.
The issue is gaining urgency. While the overall number of apprehensions of immigrants unlawfully entering the country is at a 40-year low, the number of children coming illegally and alone is surging, largely as a result of increasing drug-fueled violence in Central America, particularly Guatemala, Honduras and El Salvador. One in 13 people caught by the Border Patrol last fiscal year were under 18. Seventeen percent of them were 13 or younger. Close to 14,000 minors, twice as many as the previous year, were placed in federal custody. (This figure doesn’t include an equal number of Mexican children who were quickly deported.)
Many of these children have a legitimate fear of what could happen to them if they are sent back to their home countries. A recent study by the Vera Institute of Justice, a nonprofit group, showed that 40 percent of unaccompanied children potentially qualify for statuses that exempt them from deportation. Among the most likely possibilities: asylum, because they fear persecution in their home country, or a special immigrant juvenile status for children abused or abandoned by a parent.
And yet, while more recent legislation has improved the odds, only around 7 percent of those who were placed in federal custody between 2007 and 2009, and who had received a ruling by mid-2010, were winning their cases. Not surprisingly, those with legal representation were nearly nine times more likely to win.
In court, these children are up against trained government lawyers. They must testify under oath, file supporting documents and navigate the complexities of immigration law, with no knowledge of the country’s language or customs, and often with only the help of a translator. Children in the courtroom often seem confused and frightened. Staff members with Kids in Need of Defense, or KIND, a group whose board I serve on and the principal provider of pro bono lawyers for these children, told me of a boy in Los Angeles who carried his teddy bear for comfort and a toddler in a Texas courtroom who wet his pants when he faced the judge.
Most immigrant children come to reunite with family members, and are released to those families while their hearings proceed. But many are also fleeing harm.
Take Estefany Aracely Climaco Acosta, who left El Salvador at 12 to join her mother in Los Angeles. When Estefany was 10, an uncle arrived one morning at the mud hut the girl shared with her grandmother and other relatives. The uncle knew that only Estefany was home at that hour. He tied her hands behind her back and raped her. She screamed, but the hut was in an isolated spot. “No one could hear me,” she said, of the rapes she endured for two years. A KIND pro bono lawyer took her case and she was granted asylum last August.
Wilmer Villalobos Ortiz was orphaned in Honduras when he was 8. He was left with an abusive aunt, who whipped him with an electrical cord and forced him to quit school in the seventh grade. She put him to work 17 hours a day at her pool hall and bar, where the patrons included members of the 18th Street gang, who targeted him as ripe for recruitment. When he was 14, they asked him to join, and then they threatened him. “We will kill you,” one of them said, putting a knife to Wilmer’s stomach. “You are either with us, or against us.” They did worse things to him that Wilmer won’t discuss.
In 2008, when he was 15, Wilmer escaped, heading to the United States. He spent a month and a half riding on top of freight trains to get through Mexico. He saw members of the Zeta narco-traffickers stop his train, club a woman unconscious and snatch her young son from her arms. Another time, he saw a boy his age stumble getting on a moving train and heard his screams as the boy’s legs were cut off by the wheels.
He was caught by the Border Patrol after crossing the Rio Grande into Texas. He spent a year in two detention centers for children before landing in a group foster home in Arlington, Mass., where he attended high school while his deportation case proceeded.
His case was taken on by Daniel White of Goodwin Procter, a volunteer lawyer with KIND who normally handles transactional corporate law. He showed Wilmer what would happen in court, what questions would be asked, what to say. Last spring, Wilmer got his green card, after winning the right to stay in the United States.
Wilmer is luckier than most — each day, immigration courtrooms are filled with children who have no lawyer to represent them, and whose stories we rarely hear. These children share one constant: their suffering doesn’t end when they cross the border.
UNDER normal circumstances, the Border Patrol is supposed to transfer captured children out of its holding cells and into the custody of Health and Human Services’ Office of Refugee Resettlement within 72 hours. But last year children were held for up to two weeks in Border Patrol cells with no windows to the outside, showers or recreation space, according to a report by the Women’s Refugee Commission based on interviews with 151 detained children. Some complained of inadequate food and water. One described a cell so crowded the children had to take turns lying down on the concrete floor to sleep. The lights were never turned off.
These children need our help. In recent years KIND has recruited more than 5,000 lawyers. But they are still only able to triage their limited resources; we need far more volunteers, and more law firms willing to count pro bono work toward lawyers’ billable hours.
Pro bono lawyers are only part of the solution. These children need public defenders who are experts in immigration law. Congress should include money to hire lawyers for all unaccompanied minors as part of any comprehensive immigration reform. Yes, these children broke the law coming to this country, but if deporting them will put them in danger, they deserve a fair hearing in our courts, something anyone, especially a child, cannot get without a lawyer.
Ana Suruy wants every child to have the help she believes saved her life. In Guatemala, a drug trafficking cartel targeted Ana’s mother for extortion. When the cartel threatened to kidnap her family, Ana’s mother agreed to pay. But it wasn’t enough; the cartel poisoned the family’s dog and cat, and twisted the necks of their flock of ducks. A man left a threatening note one day under their door, singling out Ana, then 13 years old, for harm. Her mother, terrified, called the police, and then put Ana in the hands of a smuggler to take her north.
Ana made six attempts to cross into the United States. She was robbed at gunpoint, abandoned by a smuggler, saw dead migrants in the Arizona desert, and spent two days walking with no food or water, before the Border Patrol caught her and put her in a detention center in Phoenix. After three months, she was released to a cousin on Long Island. He went with Ana to her first court hearing. People had warned Ana that without a lawyer she didn’t stand a chance, but her relatives, landscapers making minimum wage, had no money to spare.
“I had so much fear,” Ana said. “I didn’t want to go back to Guatemala.” The man who wrote the threatening note had somehow obtained her cellphone number and was calling, saying he knew where she went to school in New York, and making sexually suggestive sounds. As she waited in the hallway of the Manhattan courtroom for the judge to summon her, KIND’s local pro bono coordinator came up and asked if she needed a lawyer.
Five lawyers from the firm Paul Hastings in New York would tag-team her representation over four years. They obtained Guatemalan police reports, hired an expert to testify on narco-threats and prepared Ana for what felt to her like a sustained grilling.
Last December, Ana, then 19, was granted asylum. Without a lawyer, she would most likely have been deported, like so many others. That could be the fate of Belkis Rivera, who has to return to court in Los Angeles this summer. Her mother works at a nail polish factory, and can’t afford $3,500 for a private lawyer. Now a seventh grader, Belkis will have no one to stand beside her.
On Wednesday, thousands of supporters of immigration reform rallied in Washington, while opponents of the measure tried to shout them down. People can be of different minds on the immigration issue and how to handle it, said Justin Goggins, one of Ana’s lawyers. But this is one aspect we ought to be able to agree on. Federal officials are predicting that the number of unaccompanied minors crossing the border illegally will jump by around 70 percent in this fiscal year. “At the end of the day,” Mr. Goggins said, “no kid should be out there to defend themselves in this situation with no voice.”