New York City Council
Hearing on Unaccompanied Minors
September 29, 2014
Testimony of Professor Lenni Benson, Director Safe Passage Project
[email protected] 212-431-2336
Pro Bono Responses to the Needs of Immigrant Youth Facing Deportation
Council member Menchaca and committee members, how very grateful I am to live in New York and to have the honor to present this testimony to this committee. Law professors and advocates across the country have been watching the leadership of the New York City Council and its unprecedented support for legal representation for New York residents facing removal or deportation. Speaker Mark Viverito, Council leaders and other government leaders such as Commissioner Nisha Agarwal and her staff, and Public Advocate Leticia James, have dedicated many hours to learning about the needs of children apprehended by the Department of Homeland Security and placed into removal proceedings. I appreciate this opportunity to thank you for your time and energy and, of course, to now ask you to listen as I describe some of the challenges these children face.
I know that many of you here today have taken the time to come and observe the removal proceedings being held just a few blocks North at 26 Federal Plaza. You have stood in the same complex security lines and taken the elevator to the twelfth floor and observed the very young children and sponsors coming to the removal hearings. A few weeks ago, I was guiding some of the Council Staff and we watched as a young boy respectfully asked the court if he should come back if he cannot find an attorney. The Immigration Judge said, “Yes, you must come back whether you find an attorney or not. You have a right to an attorney but the government will not provide one for you.” The Judge continued, “Have you talked to the people outside, they are from an organization that will try to help you find an attorney.” Our Safe Passage Project was the organization outside that day. We began helping children in removal proceedings for just this reason. We are part of a coalition of several providers who stepped up to try to fill a void created by the lack of a public defender system for children in removal proceedings. For many years, The Legal Aid Society, The Door, Catholic Charities, The New York Chapter of the American Immigration Lawyers Association and Safe Passage Project have been regularly offering free legal consultations and serving as the child’s “friend” at the initial hearings called “Master Calendars.” Every child not represented by private counsel or a nonprofit such as Kids in Need of Defense was greeted by our volunteers, interviewed and helped through the initial hearing. Children should not have to sit at a defense table alone.
But that regular juvenile docket work by Safe Passage and the other organizations was not sufficient to help all the children facing deportation. We knew that many children were being heard on other judge’s dockets and we all struggled to find ways to extend our help to these children. And when the number of children apprehended and placed into removal grew this past summer, the Immigration Court told us that Washington had ordered that all children be scheduled within 21 days of the date the DHS lodged the charges with the court. Adults with children apprehended this summer were also to be scheduled on a priority docket but the court had up to 28 days to schedule those cases. The coalition of the experienced providers organized and stepped up to cover these new “Priority or Surge dockets”. We recruited aid and support from the pro bono community and the experienced immigration providers such as Central American Legal Assistance, The City Bar Justice Fund, Make The Road, and VOLS. Together we called our collaboration ICARE: Immigrant Children Advocates’ Relief Effort. We began August 13 and continue today. Every child or adult with children on these new fast-tracked dockets has been greeted and interviewed by members of our coalition. We have offered help and information on finding counsel; referrals for health and psychological support; we have offered information about the possibilities of qualifying for immigration status such as asylum or special immigrant juvenile status. With your leadership and help we have been able to refer people to representatives of the Department of Education to help children enroll in New York City schools and to enroll in Child Health Plus Health Insurance.
This is an excellent beginning but now the truly hard work begins. Each of children we have seen needs representation. Safe Passage Project is designed as a model of pro bono representation where we provide closely mentoring to the pro bono counsel. After our volunteers and law students have interviewed a child, we prepare a detailed assessment memoranda about the legal strategy a pro bono attorney can pursue to assist the child secure status in the United States. We find that close to 90% of the children qualify for some form of immigration relief. In approximately 60% of the cases we believe the children can qualify for Special Immigrant Juvenile Status. 40% qualify for asylum. Many children qualify for both. Others have been victims of trafficking or victims of crimes within the United States that may qualify them for protection and visas. Finally, even if none of these forms of relief are available, a child deserves the opportunity to ask for the government to consider a request for prosecutorial discretion—to request a suspension of the removal efforts and to allow the child to remain, at least temporarily due to the specific hardships and equities in the child’s family situation. But all of these forms of relief require legal research, drafting of affidavits, applications and finding supporting evidence. In many the child must navigate at least two other forums, court systems or components of the DHS before the application can be completed. In my professional opinion, based on thirty years of experience, no child and few adults can competently navigate the application procedures on their own. The need for counsel is imperative. Counsel makes the promise of human rights and humanitarian protections a reality.
Navigating the Legal Maze: A Case Example
To help you understand the legal procedures involved in a typical child’s immigration case let me share a story of one of our clients whom I will call “Angelica.” We met Angelica, a smart and bubbly 8 year old at one of our regular juvenile docket screenings. She had been apprehended at the Southern Border and held by the federal government in a shelter for children. Angelica is Honduran. Her mother had left her in the care of her grandmother and the family had not had regular contact with Angelica’s father. The grandmother did the best she could to care for Angelica but she was ill and she feared for Angelica’s safety if she let her go outside to walk to school alone or to play. Mostly, Angelica was made to stay at home. When we talked with her she asked for paper. She saw a big notepad and jumped up to show us that she “loves, loves, loves Math.” She quickly sketched out a division problem on the note pad. “I want to go to school and learn more.”
When she was in detention, Angelica’s mother was afraid to ask for her release and begged a sister to sponsor her daughter. This sister, Angelica’s Aunt “Mercy” agreed to do so. Mercy became Angelica’s sponsor and as required brought her to her removal hearing. Angelica and Mercy immediately adored each other. Angelica’s mother had not been home very much when she was young and shortly after her release to her Aunt, the mother left the family again. Phoning once in awhile but not living with Angelica or Mercy on a regular basis. When we met Mercy and Angelica and explained that we would help Mercy become Angelica’s lawful guardian, both of them smiled thankfully. Mercy told us that she had tried to learn how to become Angelica’s guardian but that the process seemed overwhelming.
Pro Bono Representation at the Master Calendar in Removal Proceedings:
Safe Passage Project recruited an experienced pro bono attorney, Janet Porro, to help the family prepare the guardianship application. We recruited a Spanish speaking law student to work with the legal team. Part of our model is to ask students to commit to the legal work in the same way that we find pro bono counsel. Ms. Porro, the pro bono counsel guided, Aunt Mercy and prepared young Angelica for a guardianship petition in Brooklyn’s Family Court. Ms. Porro had never handled any immigration matters before. She was willing to take on this case because of the involvement of the law student and supportive mentoring of the Safe Passage Project. I assisted Ms. Porro to register as an attorney with the Immigration Court and stood by her as she made her first appearance before Judge Rohan. She sought a continuance for the purpose of securing Special Immigrant Juvenile Status for Angelica. As she explained to Judge Rohan, she would be assisting Angelica’s Aunt Mercy to file a guardianship proceeding in Brooklyn Family Court and then she would seek a special order from that court needed to qualify Angelica for federal protections. Judge Rohan granted a six-month continuance and the immigration case adjourned. Step One is complete, now the family must navigate the state family court procedures.
Pro Bono Representation at the State Family Court:
A guardianship petition can involve many stages in the family court but potentially the most difficult is getting the initial documents filed and then serving process on the child’s parents. New York State law also involves a background check on every person living in the household with the potential guardian and the child. Adults have to be fingerprinted and to list every address they have used in the past 28 years. Adults who are not living with immigration documents in the United States are often afraid at this stage of a guardianship proceeding. They are fearful that the fingerprinting or document filings might result in a DHS investigation. Aunt Mercy had immigration status and was not afraid to go forward, but there are other households where pro bono counsel has to patiently explain that in New York, these applications and petitions have not resulted in arrests or referrals to immigration.
Many weeks after the initial filing, the day came for Angelica and Mercy to have their guardianship hearing before the court, Angelica was very prepared. She had made a binder of all her math tests and spelling tests and wanted to show the judge how well she was doing in school. The family court judge announced that Angelica’s affidavit submitted with the guardianship petition was sufficient but Angelica said she really wanted to speak. The Judge let her testify and Angelica told the court how much she loved her Aunt. She told the court how safe and happy she was now in the United States and that she loved going to school and loved coming home and sharing her day with her Aunt Mercy. When she finished, everyone in the courtroom had tears in their eyes, even the court’s bailiff. The judge granted Aunt Mercy guardianship over Angelica and went on to grant Ms. Porro’s motion for Special Immigration Juvenile Findings. The court found that Angelica met all of the required criteria—this is an elaboration of the Court’s order:
- Angelica is under 21 years of age.
- Angelica is unmarried.
- Angelica is dependent on the family court and a guardianship was issued committing Angelica to the care of her Aunt.
- One or both parents had abandoned, abused or neglected Angelica. In this case, abandonment by her father was fully established.
- It was not in Angelica’s best interest to return to Honduras as no adult was able to care for her, protect her, and she had not been allowed to regularly attend school.
It was a very happy day in Family Court but Angelica had really only completed a part of her journey toward status.
Pro Bono Representation before the U.S. Citizenship and Immigration Service (USCIS):
After the family court issued the Special Findings Order, Ms. Porro prepared a visa petition for Angelica. This government form I-360 is used to qualify the child for Special Immigrant Juvenile Status. Because Angelica was already in removal proceedings, the federal regulations require that the petition is filed with the USCIS. The typical adjudication period for this petition is approximately four to six months. The adjudication is done completely by mail and Ms. Porro had to provide the USCIS with supporting documentation to prove that Angelica met the visa requirements.
Return to the Immigration Court:
While the visa petition was being adjudicated, Ms. Porro appeared before Judge Rohan in immigration court to report on the status of the case. She was accompanied by Angelica because it was summer vacation; Judge Rohan had been willing to waive Angelica’s attendance once Ms. Porro entered the case. At this hearing Angelica was prepared again and presented Judge Rohan with a folder full of certificates of attendance, math quizzes, spelling tests and book reports. The government prosecutor also reviewed the folder and returned it to Angelica. Ms. Porro made a motion to terminate the removal proceedings and provided the government with proof of the filing of the visa petition for special immigrant juvenile status. The prosecutor agreed and Judge Rohan granted the motion.
[Today, the government is opposing motions to terminate until the USCIS has officially approved the visa petition. Thus children like Angelica may have to return to court for additional hearings. Further the DHS reluctance to terminate causes more court congestion. The Judge has to save a spot on her docket for this case and cannot add another juvenile – creating pressures throughout the court system. And these delays are not benign for the youth. The delay can cause very real harm for a graduation-age teenager who may be unable to apply for federal financial aid for higher education prior to graduation because of the delay in adjudicating her visa petition.]
Adjudication of the Visa Petition and a New Application Before USCIS:
Now that Ms. Porro had successfully ended the removal proceedings, she was able to prepare the final petitions and applications for Angelica. This process is called adjustment of status. For many immigrants who are in removal this procedure is unavailable because they entered the country irregularly. However, Congress specifically authorizes waivers for children seeking special immigrant juvenile status. To complete this stage of the application, Ms. Porro, Angelica and Mercy had to prepare biographical data, a medical exam for Angelica, a lengthy questionnaire form, obtain photos and Angelica’s original birth certificate. The family also sought a waiver of the nearly $1,000 filing fee. Several weeks later, all the documents and applications were assembled and the adjustment of status application was filed. Now the family had to wait for an adjustment of status interview to be scheduled before the USCIS.
Approximately four months later, the interview day came, Angelica stuck to her tried and true method of providing her folder of certificates of achievement, Aunt Mercy took off another day from work to travel with Angelica and Ms. Porro to the adjustment interview. After a thirty minute interview, the USCIS officer announced, “Congratulations Angelica, today you are a permanent resident of the United States.”
From start to finish the process took approximately 14 months, three hearings at the immigration court, three appearances at the family court, two filings with the USCIS, and at least three lovely binders of school papers presented by the irrepressible Angelica.
I am a full time law professor who teaches traditional law courses to first year students and upper division courses in administrative and immigration law. I have been a scholar and attorney of immigration law for over thirty years. And I became a professor after twelve years of immigration practice because I wanted to improve the education and skills of attorneys who worked in this field and because I wanted to have a voice in the policy and development of the law. But in all those years and after dozens of articles, books, amicus briefs, speeches and presentations, the most important and valuable work that I do is my own pro bono work – the creation and management of The Safe Passage Project.
Safe Passage Project has trained and mentored students and attorneys to serve as Friend of the Court for hundreds of children. We then go on to prepare an assessment and strategy for every case and work diligently to recruit and train pro bono counsel. Since August of 2012 we have seen over 340 children and help transition these children to representation in 268 cases; we continue to recruit counsel for the remaining cases. Between August 13 and today we have assisted screening and counseling at the surge dockets and have seen over 150 children.
Happily many attorneys are coming forward to volunteer. In July, August and the beginning of September nearly 800 attorneys have attended our free trainings. Between September 15 and today we conducted more free trainings and more than 1,000 attorneys attended or listened remotely to these trainings. [At several of these trainings we presented at national law firms who offered the training programs to their colleagues in other states and cities.] We have firm pro bono commitments from many more attorneys and firms. Yet relying on pro bono alone will not meet the legal needs of this vulnerable population.
Pro Bono work in this field requires close mentoring not only to handle the complexity of the interactions between family law and immigration law; there are also special skills needed in working with youth and particularly with young people who have faced real physical and psychological trauma in their countries of origin or on their journeys. Further, even for the children who find a stable home in the United States, the integration to our education system and adapting to the new rules of the household can cause a lot of stress for these young people. Older teens may feel tremendous pressure to seek work or to drop out of school to support themselves.
Your financial support will enable us and other organizations to proactively begin the representation of these children as early a stage as possible. To help recruit, train and mentor pro bono counsel through the legal hoops and hurdles. Your support will also allow us to develop special programs like the one we are offering this evening on how attorneys and law students can understand the special demands of working with victims of trauma.
Your support means the world for these children and will build capacity throughout our great city because we will be training a generation of attorneys and students to understand these complex laws. Your support is a real and meaningful investment in human rights.
Is there more the City Council can do?
Others testifying today may provide more background into the special needs of these vulnerable children and youth. I am going to add a bit more to my description of the need for support in our family courts.
As I mentioned, many of these children are placed with “sponsors” after being released from federal custody and apprehension by the Department of Homeland Security. Being a federal sponsor has no legal significance other than the adult agrees to bring the young person to immigration court. The sponsorship is not a guardianship, it is not a contract, it does not automatically confer legal obligations or rights upon the adult.
Almost all of these children do not live in two parent households here in the United States. They are placed with grandparents, aunts, uncles, cousins, older siblings, friends of the family and in some cases with a single parent. The children need for these informal sponsor to obtain state guardianship orders not just because of the immigration process but because our federal system anticipates that our experts in our child protection courts – our new Family courts or in some upstate counties our Family divisions – will have the expertise to ensure that the children are placed with supportive and appropriate adults. Even in cases where children are placed with a natural parent, it may be critical to that child’s integration, health and safety that the natural parent secure a family court order naming her as sole custodian or him as guardian. There are many examples of why a parent or relative needs these orders of custody or guardianship but some of the most pressing are the ability to enroll the child in health care insurance; the ability to enroll the child in school may require proof of the child residing in the home; the ability to apply for a passport without both parent’s signatures; etc. But even more importantly, our pro bono lawyers have seen time and time again, the joy that comes into the face of the trouble immigrant child when the court officially names a parent as sole custodian or a guardian as the protector of the child. These children have, largely not have the care and stability of adults who are publically committing to protect and guide them. There is a tremendous emotional and psychological power to the granting of the guardianship in family court. It is usually a day of joyous tears.
But as I explained there is a secondary reason beyond the need for care and planning for these children, and that is that our federal government has delegated to the state dependency courts or family courts, the power to make factual findings about the needs of immigrant children. The federal statute asks that the court make findings that establish the follow elements: the child is under 21, unmarried, and has been abused or abandoned or neglected by one or both parents and it is not in the best interest of that child to be returned to his or her country of birth or residence due to that lack of parental protection.
If the family court or juvenile dependency judge makes these findings, the child is then allowed to petition for a special immigrant status. This special status allows the child to transition from someone facing deportation to a lawful permanent resident.
Safe Passage Project volunteer attorneys have represented children in all the family courts in the city of New York, in Nassau, in Suffolk, in Rockland, in Westchester, in Dutchess, in Putnam, in Orange and we even have assisted young people in other counties North and West. As our reputation for mentoring and training has grown we regularly receive calls from lawyers and churches and individuals across the state. Many want to know about family court procedures, timing, and best practices before these family courts.
Others testifying today are likely to explain the need for more resources for trained immigration attorneys able to help the children navigate the family courts. I agree. But I also believe we have a great resource in our family courts, our children’s panels and our skilled family law attorneys who need more support and training to adequately serve this the child who has to navigate the gaps between immigration and child welfare law.
I have for a number of years been the chair of the City Bar Immigration Committee and in that capacity have convened an active subcommittee of attorneys who cross these fields and specialties. Together, our City Bar lawyers have offered free trainings in the family courts for the panel attorneys. We have also been building dialogues with the Office of Court Administration and with many administrative and managing judges. On October 6, 2014, together with Professor Liebmann, I will meet with the family court committee to discuss the court’s needs and ways that we can try to meet the needs of these immigrant youth.
Recently the State Legislature expanded funding for the family courts creating new judgeships and expanding funds for the entire system. The City of New York makes a difference in these courts by funding nonprofits through the DYCD to help families in need in the courts and through our Administration for Children. I hope that today we can begin a process of evaluating the work loads of the family courts and expand again. There may be many ways that additional funds and training can improve access to civil justice that not only are needed for these families seeking stability but also are an integrated part of the immigration process for many young people.
I have shared several ideas for the State Assembly in testimony I presented on September 16 but perhaps the City can take the lead and create a model that could be emulated in other regions of the state. For example, the City might create hotline where pro se members of the public could get questions answered about filing guardianship and custody petitions. A hotline for legal technical advice to other attorneys whether the private bar or pro bono attorneys, would be very valuable.
Perhaps the City could fund a model pro se office, such as the federal court Pro Se office which helps the more than 30% of federal petitioners grapple with complex procedural rules so that their complaints and petitions have a hope of making it past the court clerk’s desk.
In conclusion, I thank you for this opportunity to help illuminate some of the issues facing immigrant youth and to share a few ideas about supporting our family courts. I am very happy to serve as a resource for the council and the city as it explores these matters further.
Once again, we thank you for your leadership in this arena. I can assure you that the efforts you are making to provide legal resources and pro bono mentorship will transform many, many lives.
Lenni B. Benson
Director, Safe Passage Project
Professor of Law, New York Law School