Lenni Benson’s Testimony to the NY State Assembly – September 2014

New York State Assembly
Hearing on Unaccompanied Minors
September 16, 2014
Testimony of Professor Lenni Benson, Director Safe Passage Project
[email protected] 212-431-2336

The Immigrant Child Made Visible in New York

I thank the New York Assembly for this invitation and opportunity to talk about the needs of immigrant families and children in New York and to explore ways you, our leaders and representatives can anticipate and serve all of our communities who are meeting these children throughout New York. As we meet them in our schools, playgrounds, stores, workplaces, and neighborhoods, we have to know that their story begins in New York with the immigration court. If we could but adjourn this hearing and walk outside the hall and down Broadway, in just a few blocks North we would come to a tall office tower, 26 Federal Plaza. If I could guide you through the maze of security and elevators and crowds of people, you would see, as I see, a very sad reality of our legal system — Children alone at a defense table. For it is the choice of our federal government to place children apprehended alone at our borders or within our interior into removal or deportation proceedings. But as we have seen this summer, when the number of children arriving greatly increased, the children are no longer only a story of immigration controls. Although these children are all subject to the deportation process, the question we face now in New York is how will we treat these children relocating to our state. How will we plan and prepare for the responsibilities we share to care for and to educate these young people? How will we help our communities and institutions meet the needs of the newcomers? Through these remarks, I hope to help make the lives of these children visible.

Picture your favorite nine year old. Can you see him? Is his hair slick and neatly cut in the latest Mohawk? Can you see her? Is she wearing a new dress with ruffles and a small black velvet jacket? I can see them. I saw children just like these at court last week and I have met and interviewed with my team of volunteers hundreds of similar children. But let us picture a nine-year-old boy, Miguel, who traveled to the United States from El Salvador. He sits in the Respondent’s chair at the defense table. He is dressed in new jeans so new they are still stiff. His shoes are shiny black and his white socks are visible where his feet dangle from the edge of the Respondent’s chair. His knuckles are gripping the arms of the chair and he darts his eyes about the courtroom. He turns frequently to look at the interpreter translating the words of the judge sitting on the raised bench. He looks back behind him, his eyes searching for someone, anyone? The judge begins and she is gentle, “Can you tell us your name?” Quietly, so softly the digital recording is likely not to have heard, “Miguel.” “Are you here with anyone today?” The small head shakes slowly no. “Who brought you to the court today?” Miguel visibly grows smaller, his shoulders droop, his head drop and his eyes face the floor. The judge tries again, “Miguel, is there an adult with you? Someone who could sit with you?” Again the dark head shakes no.

This is the scene I saw a few years ago. I watched as the judge and the government attorney struggled with their roles, the system, and I could not just sit and watch. I was in the courtroom observing as I completed a study of the immigration courts for the federal government. I slowly rose and I offered to serve as a “Friend of the Court.” This unusual role, allows an attorney to help the unrepresented person in the immigration proceeding. The court recessed and I was able to take Miguel to another room to interview him. I learned that his mother had brought him to the court and had waited downstairs, afraid to come into the building because she had no immigration papers. I learned that Miguel’s father had left the family when he was very young and that his mother came to New York to find work and to send money home to Miguel and his grandmother. Miguel drew a picture for me of his home in El Salvador and showed me the walled garden where he and his cousins could play. But he also drew a series of dark lines over the windows and front of the house and explained these were the bars his Uncle put on the house “to keep the bad men out.” I asked Miguel why did you come to the United States and he said, “My grandmother told me that she was too old and too small to keep me safe. She said I had to go to join my mother in the states.” Miguel traveled for over six weeks from El Salvador. He walked, rode trains and grown ups gave him rides in trucks and cars. At the end of his journey to Northern Mexico, a grown up had him call his grandmother to send money so that he could be given a ride in a truck across the border. When the truck stopped, Miguel was told to get out and he was with a group of ten other young boys. The smuggler told them, “Now you walk.” Miguel and the boys were arrested by a the border patrol and eventually transferred to a shelter in Florida. A few weeks later, his mother paid for a plane ticket and he was released to her in New York. Miguel told me, “I did not really remember my mother but when I heard her voice I knew it was her.”

I was able to take Miguel down to his waiting mother and to bring them both back to the courtroom. As the Friend of Court, I asked for a continuance on their behalf to help the family find pro bono counsel. And when I returned to my office I brought them with me and I called a former student and asked if she would represent Miguel. Today Miguel is a permanent resident. While his mother continues to live in the United States without status, Miguel was able to secure status through a federal statute called Special Immigrant Juvenile Status. I know that today you will hear a great deal about this visa category and asylum and other remedies for these children. For that is the great irony. These children face deportation alone but they have statutory rights to real immigration protection. If they could but find a competent, motivated and skilled attorney, they might not only defend the deportation process but they could navigate the complex series of agency and court adjudications necessary to secure an immigrant status that will allow them to live safely in the United States.

There are no cameras allowed into record the deportation removal hearings. Can you see the young child sitting alone? Can you picture Miguel? If there were time I could tell you hundreds of similar stories. But, I pause to seriously and earnestly invite you to join me and to come and observe. As our elected leaders and people dedicated to the welfare of the people of New York, I urge you to come and see for yourselves and I have no doubt that you will be challenged, engaged, and moved to remedy the procedures you see there.

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. Happily many attorneys are coming forward to volunteer. In July, August and the beginning of September nearly 800 attorneys have attended our free trainings and we have six more trainings planned for the remainder of this month. Yet relying on pro bono alone will not meet the legal needs of this vulnerable population.

In our assessment over 80% of these children qualify for one or more forms of status in this country and another ten percent should qualify for prosecutorial discretion that would allow them to remain because their families are here and they have no one to care for them in their country of origin. It is based on this personal experience and the work of our volunteer attorney and students that I speak to you today about the needs of these immigrant youth.

Why does our State bear a responsibility for these newly arriving immigrant children?

First, it has always been our state governments that have primary responsibility for the care, protection and education of children in our midst. Although, some may want to blame a faulty immigration policy and to seek greater government enforcement, the tradition of this state and of the United States is to protect the welfare of children.

Why must our State educate immigrant children?

For more than thirty years, the U.S. Supreme Court made clear that even children residing in the United States without immigration status have a right to attend our public schools. See Plyler v. Doe, 457 U.S. 202 (1982).

Moreover, in this global world and a large nation of fifty states, we know that families are mobile. These immigrant children may, at first blush, seem different than the child who moves to our state from New Jersey or from Florida or from California, but under our statutes and under customary international law, these children have the right first to be considered as “children.” And as such our State constitution, our statutes and our wise experience knows that we are a stronger, healthier, richer, empowered community when we care for and educate the young people living in our cities and towns. As the focus of today’s hearing is not on the education needs of these children, I pause here only to mention, that the children arriving from Central America in the past few years have often experienced tremendous trauma and fear both in their country of origin and on the journey North. These experiences are part of who they are. These past wounds and injuries impact their ability to learn, to focus, to study and to feel safe. I urge the legislature to consider providing additional social workers and other support for educators so that these vulnerable learners will have a chance to learn and with support can thrive. I know the immigrant children will be important contributors to the learning environment for all of our state’s children. These are brave young people. They have experienced a great deal and many have been incredibly resourceful in fending for themselves. When we interview the children at the immigration court about what they hope for, almost universally, the children answer “school.” For many, their education has been interrupted by violence or by poverty. While these children are here (and in my view, most will succeed in finding a legal way to remain) we must prepare and plan for their successful integration into our schools.

Why must our family court system serve these immigrant children?

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 your 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.

Immigrant children are interacting with people and systems in New York communities on a daily basis. New York has a duty to ensure each child’s basic rights are protected. The family court is the system currently in place that can maintain this touch point between the children and the State.

But 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.

What Should the State Assembly Do?

As legislators you can make a huge difference. Last year you expanded resources for our family courts. 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 are an integrated part of the immigration process for many young people. At a minimum I would encourage funds for state wide training of court personnel, special attorneys and a hot line for the attorneys to answer technical questions. Perhaps the creation of models 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.

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 specialities. Together, our City Bar lawyers have offered free trainings in the family courts for the panel attorneys.  But 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.  While these trainings are making some strides, they are not sufficient. More trainings and knowledgeable attorney are crucial.

The recent surge of children coming across the border has put even greater pressure on New York government. New York is the second leading state in receiving these children. Safe Passage Project, along with a coalition of other not-for-profit groups, has been working steadfastly to provide legal representation to the many children that have come to New York in the past months. As an experienced juvenile docket provider we have expanded our volunteers to be at the court weekly and with the other surge providers have screened and counseled over 300 people but this level of emergency service cannot be sustained without more resources.

New York State should be supplementing what the Federal Government has provided. While the Safe Passage Project is part of a coalition applying for Americorps funding from the Federal government, these funds only provide partial salary to a limited number of staff. The State should step up to match the federal government’s funds and to create additional funds. For example, New York State could offer loan forgiveness to lawyers who work in child welfare or immigrant rights.

There is precedent for the Federal government to give block grants to communities to help fund resettlement of refugees in a community. In June of 2014, the Federal Office of Refugee Resettlement website told the public that while it could not accept donations on behalf of the many children crossing the border during the surge crisis, the public could make donations to one of several refugee resettlement groups. The problem with this solution is that people have to be officially granted refugee status before these groups are funded and can assist them. The children crossing the border during this time period have not been declared refugees and thus those groups cannot be of assistance. In this spirit of block resettlement grants, the state should seek post hoc resettlement funding as these children are settled in New York communities.

In closing, New York has a responsibility to protect all children living in the State and needs to equip its court system with the resources it needs to do this and until the Federal government acts to fill the gap of providing legal services for indigent children, I urge the State Assembly to consider emergency funding for experienced non-profit legal services providers.

Respectfully Submitted,

Lenni B. Benson
Professor of Law, Director Safe Passage Project
New York Law School
185 West Broadway  C-244
NY NY 10013
(212) 431-2336
www.safepassageproject.org

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