Help in KIND: Group Guides Pro Bono Attorneys Serving Unaccompanied Child Immigrants
By Anna Stolley Persky
Jun 1, 2012, 09:50 am CDT
On an unusually warm March evening, “Alexander,” with lawyer Alexandra B. Hess by his side, talks about his journey through life so far. Less than two years ago and then 16, Alexander was hiding in the waters of the Rio Grande hoping the U.S. Border Patrol did not see him.
He had been traveling by boat with a group of illegal immigrants trying to cross from Mexico to Texas. But hearing the noise of another boat following them, the driver suddenly ordered his passengers into the water near the shoreline. The driver told them to hide and sped off, promising to return when it was safe. For two hours Alexander stayed submerged, with just his mouth exposed to breathe.
“I was terrified,” says Alexander, who prefers not to use his real name while his immigration status is being processed. “It was dark and the water was a little cold.”
On that summer night, Alexander—a native of El Salvador—did not make it to Texas. The boat driver eventually returned and took the group back to Mexico.
In an attempt less than a month later, he made it across, only to be caught and detained on U.S. soil. Alexander was held for almost a month before being released to a family friend in Virginia.
On this night, Alexander seems at times pensive and worn. And then he smiles and reveals the complexity of a teenager—impish yet reticent, no longer a boy, not quite a man.
His smile also reveals something new for him—hope. He smiled jubilantly upon learning that Hess had just received his work permit. That permit is an important but intermediary benchmark in applying for legal permanent status in the U.S., Hess says.
“This makes me feel very happy. I can fill out all the applications now,” says Alexander. “I’m one step closer to working.”
And thanks to Kids In Need of Defense, Alexander has a lawyer with him as he fights his way through the immigration process. Hess, an associate at Hughes Hubbard & Reed in Washington, D.C., is representing Alexander pro bono with guidance and assistance from a KIND case manager.
Alexander is one of thousands of foreigners who enter the United States as unaccompanied children. So long as U.S. immigration policy is trapped in a political debate, these children remain stuck in an immigration system that is almost impossible for them to navigate, advocates say. KIND and other organizations are working to ensure that an increasing number of these children get pro bono legal counsel.
“Young children who don’t speak English are appearing in court in this country without representation,” says Wally Christensen, a litigation partner at Troutman Sanders in Washington, D.C., who has handled one case referred by KIND. “I was really shocked that this could occur and did occur.”
Having pro bono legal counsel does not guarantee that an unaccompanied minor will gain the right to stay in the United States. Lawyers for unaccompanied minors face the challenge of an immigration system that, unlike family law, does not put the needs of the child first. There are specific ways for minors to obtain legal residency, but they must meet particular requirements, such as having been the victim of human trafficking.
“Seeing what it took to draw out the facts and details of his case to represent him properly in front of the judge made me realize how impossible the idea is that this child could represent himself,” Hess says. “It’s been challenging, but with diligence and tenacity, the end goal can be achieved. At this point, I’m optimistic that he’s at the cusp of gaining legal permanent residency, which will set him on the path to fulfilling his dreams.”
Alexander sits in his lawyer’s downtown office, drinking Coke and slowly relaxing as a photographer takes pictures. As he describes his journey to the U.S., he doesn’t cry.
He had already faced tremendous obstacles in his search for a happy existence. His youth, he says, was filled with abuse, neglect and pain. Alexander says his mother either ignored him or hit him. When he finally decided to leave El Salvador, he determined that his best option was to sneak into the U.S. without any family by his side.
“I just couldn’t take it anymore,” says Alexander. “If I hadn’t come here, I would still be there suffering.”
He talks of his first time going from El Salvador to Mexico and then his attempts to cross the border into Texas. “It was very difficult because we had to walk a long way. We had to suffer hunger,” he says.
By the time he reached Mexico, Alexander had joined a group of adults and other children attempting an illegal border crossing. He was the youngest person in the group without an accompanying adult.
After reaching the U.S. and being detained, Alexander was eventually transferred to a holding facility in El Paso. He says he was worried he would be sent back to El Salvador.
Meanwhile, his half-sister in El Salvador—with whom he shares a mother—contacted her father and her father’s wife, Ana Cisneros, and pleaded with them to help Alexander.
Cisneros says she really thought about whether she could take on the responsibility of Alexander’s care. Once she made up her mind to help, she filled out the necessary forms and then gathered the money for the flight to Texas for her and the trip home to Arlington, Va., for both of them.
“I pulled it all together and, thanks to God, I was able to go down and get him,” says Cisneros, who works two jobs to make ends meet.
Certainly Alexander’s situation is far from unique. The Department of Homeland Security estimates that 10.8 million unauthorized illegal immigrants lived in the U.S. as of January 2010. In that year more than 8,000 unaccompanied children, some as young as infants, entered the U.S. and were taken into custody by immigration authorities, according to the Chicago-based Young Center for Immigrant Children’s Rights.
The journey across the border is often harrowing. Children are especially vulnerable to mistreatment by “coyotes”—people smugglers—according to Kevin Johnson, dean of the law school at the University of California at Davis and an expert in immigration law. Coyotes have targeted unaccompanied girls for sexual exploitation and abuse. And there have been numerous cases in which smugglers demand additional money from the families of unaccompanied minors, he says.
“These children are vulnerable to exploitation. They are vulnerable to abuse by fellow migrants or smugglers—abuse that can range from being charged exorbitant fees to being left in the desert,” Johnson says. “And then if they end up in detention, they are in facilities that weren’t built for long-term detention and weren’t built for children.”
According to immigration experts, unaccompanied minors are fleeing a variety of conditions, including persecution, gang recruitment, violence, abuse, neglect, forced prostitution and genital mutilation. Sometimes they have family reunification as a motivator, says KIND’s executive director, Wendy Young.
It should be an immediate red flag when a child leaves his or her family or community and takes the extraordinary step of leaving the country, Young says. “Something’s wrong in that child’s life that merits attention—and probably protection.”
TRAINING ATTORNEYS, SAVING LIVES
Several nonprofit organizations focus on assistance for immigrants, refugees and, specifically, unaccompanied minors. The U.S. Department of Health and Human Services Office of Refugee Resettlement supports the Vera Institute of Justice to facilitate pro bono representation of children. The institute does this through a network of service providers, including KIND.
Kids In Need of Defense has trained 4,000 attorneys across the country to handle immigration cases involving unaccompanied minors, according to Young.
Founded by actress Angelina Jolie and Microsoft Corp., KIND recruits and matches attorneys willing to work pro bono with unaccompanied minors in need of representation. Since launching, the group has served about 3,500 children, and more than 125 law firms and corporate legal departments are providing KIND with pro bono assistance.
“It’s really heartening to see the response from the legal community,” says Young. “The issue itself is incredibly compelling. You literally could be saving a child’s life by representing him.”
Headquartered in Washington, D.C., KIND has seven field offices in major cities like Baltimore and New York, and an affiliate in Seattle.
The staff conducts the initial intake interviews. In some cases, children require multiple meetings before they will open up and discuss their situation and needs, Young says.
“Working with children is inherently different than working with adults,” she says. “To really understand what’s going on in their lives, you really have to spend some time. Each child is different. For example, if you are working with a 5-year-old, a lot of candy and Play-Doh may be involved.”
William Novomisle, who handled several cases for KIND when he was a New York City associate at Paul Hastings, says the organization is “a model of how to collaborate with law firms in a successful partnership.
“If we have a strategic question to bounce off them, then they are there to help guide us in terms of what roads have been traveled and what is likely to be successful and what is not likely to be successful,” says Novomisle, who is now the director of legal management and operations at PepsiCo in Purchase, N.Y.
Some of the lawyers working on cases for Kids In Need of Defense say the experience has been eye-opening.
“It’s heartbreaking in many ways and extremely gratifying in others,” Novomisle says. “It’s heartbreaking to hear their stories; it’s clear that the psychological scars are still there.
“But then you see them with their aunt, in a loving relationship, going to school, getting good grades, making friends. You see them starting to work through their trauma. You can see that they have hope, which is something I don’t think they had until they came to this country to start to build a new life.”
Over the years, immigration laws have changed to take children into account.
In 1985, in Perez-Funez v. INS, a federal court in California issued a nationwide permanent injunction requiring the Immigration and Naturalization Service to give a detained minor notice and an opportunity to contact a relative, friend or legal services before presenting the voluntary departure form.
The 1997 Flores v. Reno settlement requires the release of a child when appropriate to a family member, guardian or entity willing to ensure that child’s well-being and appearance in immigration court. Children who are not released must be held in the least restrictive setting appropriate to their age and special needs. The settlement also requires that all children be treated with dignity, respect and special concern for their vulnerability as minors.
While the settlement provided unaccompanied minors with standards for treatment, immigrant rights advocates said the rules were often ignored. Advocates have expressed ongoing concerns that unaccompanied minors still face poor conditions and even abuse.
To address some of these problems, U.S. Sen. Dianne Feinstein, D.-Calif., introduced the Unaccompanied Alien Child Protection Act of 2000. While this bill was never enacted, some of its aims made it into subsequent legislation, such as the Homeland Security Act of 2002.
Authority for the care and custody of unaccompanied minors was, in 2003, transferred to the HHS Office of Refugee Resettlement.
The 2007 guidelines (PDF) for immigration court cases involving unaccompanied alien children, issued by the Department of Justice’s Executive Office for Immigration Review, states that judges may consider “the best interests” of the child when determining court procedure, but not as a basis for providing relief.
The 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act further attempts to provide some protection for unaccompanied minors. Under the law, such children should be “promptly placed in the least restrictive setting that is in the best interests of the child.” This law also permits, but does not require, Health and Human Services to appoint independent advocates to argue for the “best interests of the child.”
In addition, Section 292 of the Immigration and Nationality Act allows individuals in removal proceedings to either hire an attorney or obtain pro bono counsel. But immigration hearings are considered civil proceedings; there is no guaranteed right to counsel.
Unaccompanied children have different types of relief available to them, including being granted asylum or special immigrant juvenile status based upon abuse, neglect or abandonment.
Children can also obtain T visas if they can convince a court that they were victims of trafficking, or U visas if they were victims of other criminal acts. In both situations they must be willing to cooperate in criminal investigations and prosecutions.
In the end, a minority of children are identified as eligible for any of these types of relief. The majority of cases result in deportations.
Without counsel, children tend to find it difficult, if not impossible, to communicate effectively with the immigration judge, according to immigrant rights advocates.
Some such advocates and pro bono lawyers find the system especially frustrating when children are involved. Brian Moran, a senior attorney who focuses largely on the pro bono practice at Paul Hastings in New York City, describes the treatment of children in the immigration system as unjust.
“In any other area of the law, the best interest of the children is considered,” Moran says. “In this area it is not, and that’s wrong. It’s unconscionable and it’s wrong.
“These are real kids who face serious consequences, and our laws in this area need to consider these children as children first and immigrants second.”
GREATER LIMITATIONS URGED
Over the decades, immigrant rights advocates have proposed legislation to help unaccompanied children when they arrive in the United States.
One proposal would designate each child a guardian ad litem. Advocates have also argued for Congress to pass legislation adopting international human rights standards. The 1989 United Nations Convention on the Rights of the Child provides an international framework (PDF) focused on the best interests of the child as a universal legal standard.
But foes of illegal immigration disagree. There has been a growing movement to further limit the ability of illegal immigrants to stay in this country. Advocates for improving border security cite a multitude of problems, including damage to the U.S. economy and overcrowding.
And U.S. Rep. Lamar Smith, R.-Texas, said in February that terrorists “will continue to exploit our nation’s immigration laws as long as they remain loosely enforced by the administration.”
Lawyers who work to keep unaccompanied minors here illegally don’t “really have the big picture or the best interests of America in mind,” says William Gheen, president of the Americans for Legal Immigration political action committee, a Raleigh, N.C.-based advocacy organization.
“We are already on the verge of losing complete control of our borders,” Gheen says. “What should happen is that authorities should push for voluntary deportation to convince illegals to quickly return. They should be offering these unaccompanied minors a bus or plane ticket home, not lawyers.”
But for Moran the answer is clear: “Our society has the responsibility to protect children who are most vulnerable to its laws.”
Until the conflicting views on immigration are resolved, or an exception is carved out for unaccompanied minors guaranteeing them lawyers, pro bono counsel like Hess will continue to work on individual cases to the best of their abilities.
Hess, the Hughes Hubbard associate who normally practices international trade and international arbitration, decided to take on Alexander’s case because she felt that helping children through the immigration system was a worthy cause.
She is fluent in Spanish and once thought of pursuing a career as an interpreter. Speaking Spanish helps her communicate with her client without having to bring in an intermediary. The biggest challenge for her was trying to understand the complicated web of immigration laws.
And that, says Hess, is where the KIND model was particularly helpful.
“KIND is really special in its model,” Hess says. “Its principal focus is making someone like me have what I need to represent the client. Any question I had was answered immediately.”
When Alexander appeared in immigration court in November 2010, he had no legal counsel. He said the proceeding was confusing.
Before his next hearing, Alexander linked up with KIND. After an initial intake session, he was matched with Hess.
In June 2011, Hess and Alexander appeared in the Arlington Juvenile and Domestic Relations District Court. Despite it being only a status hearing, the judge ended up ruling on the merits, granted Alexander special immigrant juvenile status and gave Cisneros custody of Alexander.
After another hearing, this time in immigration court, Alexander was able to apply for his work permit and also for a green card, or permanent resident status. He was eligible for a fee waiver, which Hess describes as critical because the two applications combined cost almost $1,500.
Alexander is awaiting the results of a background check and then an interview with an official from the U.S. Citizenship and Immigration Services.
There were days he thought he would die trying to get to the U.S., but now Alexander is attending school and learning English. He says he is grateful for the help he received and hopeful that he will be able to remain in the States.
“There is no way I could do for myself what my lawyer does for me,” Alexander says.
For now, Alexander exists in limbo. One day he hopes to be a motorcycle mechanic. In the meantime he studies, avoids computer games and plays soccer, all under Cisneros’ watchful eye. He has gotten good grades, says Cisneros, who proudly hands over certificates recognizing the boy’s scholastic achievements.
“I didn’t know him and he didn’t know me,” she says. “But from the time I signed the paper, I knew he would come to me and belong to me. He is like any child of mine—I treat him the same way I treat them.”
And that means that she makes him follow strict rules: He must do his homework, help with the chores and be obedient. He has to tell her where he is going and he can’t stay out late.
And as the interview ends and the photographer takes her final shots, Hess watches her client put on his backpack and head out of the conference room.
“It makes me feel good,” she says, “to know that he may have the opportunity to start a life in the United States.”