The Two-Way
6:27 pm
Fri August 8, 2014

A Top Immigration Judge Calls For Shift On 'Fast-Tracking'

As the Obama administration says the number of unaccompanied minors crossing the Southwest border is declining, the White House is being urged to stop fast-tracking their deportation hearings. That call is coming from an unusual source: one of the nation's top immigration judges.

"We know of the political reality that is putting pressure on the administration to hear these cases quickly," said Judge Dana Leigh Marks, president of the National Association of Immigration Judges. But, she said, fast-tracking increases the likelihood of further clogging the court system, as the practice could lead to appeals based on noncitizens' lack of understanding of the U.S. process.

"The court system itself is extremely well-served when noncitizens who appear before us are represented by attorneys," Marks said.

Fast-tracking also could lead to delays because the Department of Justice has placed the minors' cases ahead of tens of thousands of pending immigration cases.

Marks' comments came on the heels of reports (here and here) that there is a shortage of pro bono lawyers available to meet the crunching demand for representation for the minors. Typically, asylum claims can take up to a year to reach a hearing. The Department of Justice has instructed immigration judges to hold deportation hearings within 21 days after a minor is apprehended.

"There's no one to represent these people," said Claire Fawcett, an attorney for Centro Legal de La Raza in Oakland. "In immigration hearings, you have the right to an attorney, but you have to pay for your attorney, and most of the minors are living with family here, but they are very low-income."

Fawcett spoke outside San Francisco's immigration court. She was one of a small group of lawyers who volunteered to come to the courthouse and perform on-the-spot initial assessments to see whether the minors have a valid asylum claim and a basic understanding of their rights in the proceedings.

The minors will ask for a continuance so that they can get an attorney for their next court hearing, Fawcett said. She added, "So we're trying to give them as much help as possible upfront and then try to refer their cases to organizations who can help them."

But across the country, lawyers with nonprofit groups that help immigrants with their legal problems are already overwhelmed.

"It's not like we've been able to staff up in response to the recent crisis. So there's no extra capacity among the nonprofit organizations," said Simon Sandoval-Moshenberg, an attorney with the Immigrant Advocacy Program of the Legal Aid Justice Center in Falls Church, Va.

"We're being asked to take a lot of extra cases and that's fine. But we can't possibly be expected to do it on an expedited basis," he added.

Although the minors have a right to an attorney, the government is not required to provide them with legal counsel, so many go to immigration courts with no representation. According to government data collected by Syracuse University, over the past 10 years, fewer than 50 percent of unaccompanied children had lawyers. Without representation, 90 percent are ordered deported.

A minor represented by an attorney stands a very good chance of remaining in this country, according to the TRAC Immigration Project at Syracuse.

One reason is that immigration law is very complicated, and asylum cases require a lot of work to build a credible case.

The White House appears to know what's at stake. This week, Vice President Biden told an audience of constitutional scholars and immigration activists that the Obama administration is looking for ways to deal with the border crisis without any action from Congress

"We need lawyers; we need trained lawyers, to determine whether or not these kids meet the criteria for refugee status," Biden said.

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