Immigration Judge Dana Marks sat in her ninth-floor office on Monday next to four giant plastic bins filled with immigration cases – people who have waited years for their day in court to determine if they can stay in the United States. Their cases have now been moved to the back of the line, behind thousands of Central American and Mexican children apprehended at the border.
Starting last Thursday, two judges in San Francisco Immigration Court were assigned special dockets packed with children from the border who had been reunited with relatives in Northern and Central California. Since then, more than 400 kids facing deportation – from anxious teens to toddlers with their parents – have filled the two specially designated courtrooms for their initial court appearances, where they are advised of their rights and given hearing dates in August, September and October.
The flood of new cases is straining a court that was already overtaxed before tens of thousands of children started crossing illegally into the United States.
“The border surge cases are now getting top billing on our dockets, and this immigration court has already been resource-deprived to the point of being anorexic,” said Marks, who had 2,482 cases on her docket July 25, before the surge of cases began arriving.
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Seeking to dissuade more children from streaming to the border, the Obama administration several weeks ago sped up deportation hearings for the more than 57,000 unaccompanied minors detained at the Southwest border from Oct. 1 through June 30, along with the many thousands of other children who came with their parents. Immigration judges across the nation have been reassigned to those cases, which must be heard within 21 days after the Department of Homeland Security files deportation charges with the court.
Marks, speaking as president of the National Association of Immigration Judges, said the Justice Department hasn’t given the immigration courts a rationale for moving the border surge cases to the front of the line. She said the administration doesn’t seem to be following “any reasoned logic” other than trying to stop the flow of migrants to the border by demonstrating that they will be quickly deported.
Deputy Attorney General James Cole, in a statement issued July 9, said the Obama administration is seeking to strike a balance between treating migrants humanely and dissuading others from also heading north. “Individuals who embark on a perilous journey from Central America to the United States are subject to violent crime, abuse and extortion as they rely on dangerous human smuggling networks to transport them through Central American and Mexico,” Cole said. “We have an obligation to provide humanitarian care for children and adults with children who are apprehended on our borders, but we also must do whatever we can to stem the tide of this dangerous migration pattern.”
At this point, 3,150 unaccompanied minors have been connected with relatives and assigned to California courts, according to the U.S. Office of Refugee Resettlement. As of the end of June, 851 kids had been placed with families in the Bay Area, and 61 were in the Sacramento area, said Susan Bowyer of the Immigration Center for Women and Children in San Francisco, which links the families of border kids to legal and social services.
Two-thirds of the kids are between 16 and 18, and about 8 percent are under 12, Bowyer said. Three-quarters of the new arrivals are boys.
An army of pro bono or nonprofit attorneys is lining up to deal with the rush of cases, but often the children and their families don’t know where to start to find a lawyer, said Bowyer, who with immigration attorney Helen Beasley has helped train over 100 attorneys.
“The legal community’s freaked out because there are not enough lawyers to do this level of work,” Bowyer said.
Nearly half of the children represented by competent attorneys have been allowed to stay in the United States, compared with only 10 percent of unrepresented kids, Bowyer added.
On Monday, the detainees appearing in immigration court included a teenage girl from El Salvador whose father had been killed, and a teenage boy from Guatemala now living in Sacramento, who said his grandfather was attacked by gangs while carrying loads of wood on his back to sell to feed the family. Unlike many of those waiting for a hearing, they had lawyers. Others were assigned to one of a handful of pro bono lawyers who advised them of their rights and provided them with a list of attorneys.
In order to avoid deportation, migrants generally have to convince a judge that they qualify for asylum based on a well-founded fear of persecution on account of their race, religion, ethnicity, political opinion or social group, Bowyer said. Despite horrific tales of gang intimidation and violence coming out of Honduras, Guatemala and El Salvador, this bar often can’t be met, because the victims can’t prove they were targeted because of their membership in a particular group, she said.
While it’s too early to know how many of the Central American immigrants awaiting a hearing will be allowed to stay, attorneys and immigration advocates nationwide have raised concerns that the Obama administration is moving so quickly that many of those facing deportation won’t have time to prepare a case or find qualified legal representation.
“All of the nonprofits have very limited resources, and because these hearings are happening so quickly, it’s hard to get experienced counsel,” said Ilyce Shugall, directing attorney for the immigration program at Community Legal Services in East Palo Alto. “There’s simply not enough resources for everybody to get representation that quickly.”
Even before the surge in Central American cases, the San Francisco Immigration Court, which handles most deportations in Northern California, was already drowning in a backlog of cases. About 25,000 cases were pending before the court in June, according to new data from the Transactional Records Access Clearinghouse at Syracuse University – more than triple the 8,000 cases pending before the court in 2008.
Backlogged cases are growing nationwide, but not as quickly as in San Francisco. Pending cases there are, on average, 604 days old, up from 387 days in 2008. The average age of cases completed this fiscal year in San Francisco was 717 days.
“Some cases that have been on our dockets for three to five years are off calendar to make room for the surge cases,” Marks said. “We’re sending people letters saying your hearing this August has been canceled until further notice. That’s very upsetting for these individuals.”
Sacramento immigration attorney Douglas Lehrman said a client of his from Afghanistan received a letter on July 25 informing him his case had been postponed for a year. “All of a sudden, for political reasons, your case is bumped so we can expedite the deportation of children,” said Lehrman.
Asylum seekers forced to wait for years could see their chances hurt by the delay, Marks said. Witnesses can die and traumatic memories can fade. In the meantime, people who rightfully should be deported get to stay in the country longer while their cases are postponed.
She suggested that one way to resolve the cases of the border children fairly and quickly would be to reunite the kids with their parents, then move the parents to the front of the line to have their cases adjudicated. “If the parents get to stay in the U.S., let the kids stay, great. But if the parents have no legal status and are required to leave, it’s likely that the children will go with them. Nine times out of 10, kids will follow their parents, either here or back home.”