ACLU Lawyer: Illegal Immigrant Minors Fail to Appear in Court Because They Don't Have Lawyers

ACLU Lawyer: Illegal Immigrant Minors Fail to Appear in Court Because They Don't Have Lawyers

New immigration court data obtained by Politico has immigration activists arguing that the high number of in absentia rulings, missed court dates, and hasty arraignments show that the unaccompanied minors detained illegally crossing the border this year need lawyers.

This year the southern border experienced a massive wave of illegal immigration by tens of thousands of unaccompanied minors. Their illegal migration and circumstances strained government resources, resulting in a humanitarian crisis. Many of the UACs were relocated to sponsors though out the country but they are considered to still be in removal proceedings and must appear in immigration court to make their cases for asylum or other protections to remain in the U.S. legally. 

According to Executive Office of Immigration Review data obtained by Politico, from July 18-October 21 there were 11,392 master calendar hearings, 1,542 of which resulted in removal orders. Of those removal orders 1,449 were issued in absentia — or the minor failed to appear in court — 55 removal orders were issued to minors without a lawyer. Politico reports that there were also 10,773 continuances in that same timeframe.

A sticking point for immigration activists has been the lack of representation for a number of these minors and the data Politico highlighted has some concluding the government needs to be doing more to get the illegal immigrant minors lawyers and slow the pace. 

“By pushing cases too quickly through the courts, it is just form over substance — simply a veneer of due process,” Jennifer Podkul, a senior program officer at the Women’s Refugee Commission, told Politico. “Giving a kid a hearing before they have adequate time to find an attorney or to be in a position to articulate a fear of return is not justice.”

Politico argues that the lack of attorneys “stands out” as in about 66 percent of the hearing in that timeframe the UACs were said to not have lawyers. 

For example, 5740 continuances — or well over half of the total — were to allow the child more time to find legal representation. But 37 percent of these extensions were for just 60 days or less, far short of the proposed national standard of four months favored by immigrant rights attorneys.

The result is to add to the pressure on an already strained network of non-profits and pro bono attorneys available to represent the children. As the shorter continuances run out, some judges like [President of the National Association of Immigration Judges Dana Leigh Marks] will allow more time for the child to prepare a defense. But the lack of consistency adds to the challenge already posed by the lack of adequate representation.

Republican immigration hawks have protested federally funded attorneys for illegal immigrants, pointing out that doing so runs contrary to the law. Which has not stopped the Obama administration from trying. 

“The Obama administration has again ignored our federal immigration laws, which prohibit federal funding of legal representation to illegal immigrants before immigration courts,” Lamar Smith (R-TX) said in October after the Obama administration announced it would be providing $9 million to fund legal services for UACs.

“Enforcing the law is not optional. If the president worked as hard to enforce our immigration laws as he does to consistently undermine them, he would not need to use millions in tax dollars from hard-working Americans to address the surge of illegal immigrants into Texas,” Smith said.

In addition to the $9 million announced in late September, California and New York City have also set aside funds for UACs. And in June the Obama administration set aside $2 million for an AmeriCorps program to recruit lawyer for the minors.  

Still the American Civil Liberties Union has sued over the lack of UAC representation and one of its lead attorneys in that case tells Politico the data shows that the UACs need representation and if they were provided assistance they would be more likely to show for their hearings.

“This data confirms that hundreds of children are being ordered deported because they have failed to appear in court and they have failed to appear in court only because they do not have lawyers,” Ahilan Arulanantham, an ACLU immigration attorney in California, told Politico. “Over 90 percent of children who are represented do appear in court. And here you see the mirror image of that number.”

“It shouldn’t surprise you,” he added to Politico, “That a 15 year old, who is facing deportation to a violence-filled country that they fled, is not going to show up in court if they don’t have a lawyer to defend them there.”