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McAllen Monitor: EDITORIAL: Fixes needed to federal immigration court system
Washington,
November 30, 2014
McAllen Monitor: EDITORIAL: Fixes needed to federal immigration court system
Eric Gay | The Associated Press Detainees walk in a line at a U.S. Customs and Border Protection processing facility, Wednesday, June 18, 2014, in Brownsville. More than 60,000 unaccompanied children who have entered the country illegally this past year. Posted: Sunday, November 30, 2014 12:54 pm
Editor's Note: This is the third in a series of editorials about the challenges of immigration.
Inside the Department of Justice’s Executive Office for Immigration Review (EOIR) Courtroom No. 3 in Harlingen earlier this month, 17-year-old Jose David Navarro-Menjivar sat before Judge Eleazar Tovar in a chair that was visibly too big for the teen. Wearing a bright red jacket, neat haircut and infectious smile, the undersized teen from Honduras answered questions respectfully with the aid of a court-ordered interpreter. He said he has an uncle in the United States and he requested reunification with him rather than deportation back to Central America.
Judge Tovar, a 20-year veteran of the bench who has said he will retire next year, patiently walked the teen through the proceeding — the boy’s first court appearance since his apprehension on charges of illegally crossing into the United States. The judge followed strict court protocol and repeatedly ensured that the boy understood his rights. In U.S. immigration courts one is deemed guilty once it has been established a person has illegally entered the country or entered without proper documents, until they can demonstrate they have a right to stay here under current laws. Jose’s next court date was then scheduled for Jan. 21, 2015.
It all happened within minutes and while Jose was one of 41 federal juvenile cases slated for Judge Tovar’s court that day, he was one of only seven defendants who actually showed up for court, as required by federal law. And that’s not surprising because about 70 percent of immigrants who are detained for illegally crossing into this country reportedly are not showing up for their court hearings, Rep. Henry Cuellar, D-Laredo, who sits on the Homeland Security Subcommittee, told The Monitor’s editorial board.
It exemplifies major problems with our American immigration court system, which seems ill-equipped to track defendants, hear cases in a timely fashion, transfer cases to other courts or assist defendants in filling out the proper forms when they relocate cities, and is unable to locate so many who are scheduled for deportation.
The immigration court system is the crux of immigration policy for this country, but little is known about how it works, how it is funded, and how effectively it is carrying out all of its mandates. It moves at a glacially slow pace and accounts for the most significant bottleneck to much of the nation’s immigration process.
Oversight seems minimal, reporting is often opaque, and public access — which would shine a much-needed light on this problem — is limited.
Overall, the United States’ federal immigration court system is woefully overburdened, inadequately staffed and full of complex regulations that make it exceedingly difficult to navigate, and there are relatively few lawyers who specialize in this field.
Yet these courts are at the center of all immigration issues and these judges decide who will legally stay in this country and who will be deported back to their home countries. Serious restructuring of our U.S. immigration court system and added resources and personnel are necessary if judges, like Tovar, are to implement recent guidelines set forth earlier this month by President Barack Obama who enacted the most sweeping immigration actions of any president since Ronald Reagan.
Therefore, after observing several immigration hearings and interviewing scores of immigration attorneys and other court system experts, we believe major changes need to occur. This includes radical changes to the treatment of juvenile immigrants, including more legal assessments and special counsel assigned to them. We also advocate:
>> Immigration court hearings be expedited. Current immigration court cases are often delayed by years, not months. The average wait time for a court appearance is 900 days, Cuellar says. That’s about 2.5 years, and is plenty of time for a released defendant to get established in society and accept the risk of not appearing in court to avoid a possible deportation sentence.
>> The addition of immigration judges and court personnel. Currently there are only 59 federal immigration courts and 241 immigration judges nationwide, the EOIR told The Monitor. In the region considered “South Texas,” which includes Houston, Pearsall, Port Isabel, San Antonio and Harlingen, there are 19 permanent immigration judges and five additional available judges, EOIR said.
More staff will be necessary to clear current and pending immigration cases, especially as more court cases are expected to be added as part of President Obama’s Nov. 20 sweeping executive actions to immigration policies that will result in more deportations and more filings to legally stay in this country.
After delaying action on this issue for years and following a contentious midterm election that saw many Democrats defeated, President Obama wielded his ability to impose executive actions and ordered sweeping changes to U.S. immigration policy. He ordered that immigrants with convictions, those affiliated with gangs and terrorist organizations and threats to national security, as well as those with multiple misdemeanors and anyone who has come here since Jan. 1, will be a priority for removal from this country. In addition, he enabled an estimated 5 million immigrants who are here to legally apply to stay in this country temporarily, including children brought here before a certain date and parents of legal U.S. citizens.
But implementation of these orders falls under the Department of Justice’s EOIR courts, as well as law enforcement branches that are under the U.S. Department of Homeland Security. New rules for filing applications and deportation processing have not yet been established and could take 90 days to six months according to several memos issued on Nov. 20 by Homeland Security Secretary Jeh Johnson. Undoubtedly this will trigger thousands, if not millions of new cases or changes to existing immigration court cases to the already overburdened court system.
We agree with President Obama when he said he wanted more accountability of the estimated 11 million immigrants who are here illegally, saying they should “come out of the shadows.” We also agree that those who are dangerous to the public and our public’s welfare should be removed from our borders. But with only 59 immigration courts throughout our nation, implementation of these rules will require substantially more courts and judges. Currently, many foreign-born nationals must travel hundreds of miles to get to a federal immigration court, thus making it costly, cumbersome and often impossible for them to attend their scheduled EOIR hearings. This might result in many skipping out on court proceedings, like so many defendants who failed to show up for Judge Tovar’s court earlier this month.
In the Rio Grande Valley, for instance, the only EOIR courts are located in Harlingen and Port Isabel, where most of the cases of adult detainees are heard via video teleconferencing. During last summer’s surge of detainees, immigration lawyers tell us, existing court cases were tabled for the entire months of June and July as the three full-time federal immigration judges in Harlingen dealt with new arrival cases.
Local leaders, like Hidalgo County Judge Ramon Garcia, told a congressional subcommittee that came to McAllen in July to investigate the surge that more federal immigration judges are desperately needed, as well as more resources to help local law enforcement and humanitarian efforts. But such requests have been mired in political bickering that has overshadowed this contentious immigration issue.
And in Texas, particularly, politicians have been divided over whether to focus on securing the border to prevent immigrants from migrating or calling for the investment in federal courts and other humanitarian resources for those who have already come. But not enough attention has been given to the failing federal immigration court system.
Gov. Rick Perry told lawmakers at the July 3 hearing: it’s “catch and release” under the current system. “You get caught, you get given a summons to appear ... and everyone knows how that will turn out,” Perry said. “Those are nuanced messages that if you can get across the border, you have opportunity to move around.”
If that’s the case then don’t give them the opportunity. Adjudicate cases quickly and fairly and with the proper resources and strict adherence to the laws that will still allow defense lawyers for foreign nationals to fully present their cases for staying here — whether it be requests for asylum; legitimate ties to U.S. citizen family members; their potential contributions to society as skilled graduates; or their credible fears and reasons for not returning to their home countries due to violence and gangs there.
A report by Transactional Records Access Clearinghouse of Syracuse University found that as of June 30, 2014, EOIR immigration courts had 375,503 pending cases. Of these, 41,641, or 11 percent, were juvenile. The remaining 333,862 cases, or 89 percent, were adult cases, according to the report. Some of these cases had been pending since 2005 and have been rolled over year after year with little action. This caseload is up from 350,330 cases pending at the end of fiscal 2013, EOIR reports.
In Harlingen, immigration cases increased 60 percent from 2012 to 2013 — 5,852 cases received in 2012 to 9,350 cases received in 2013, which was the largest such jump in the nation. As of Aug. 31, there were 10,382 cases pending in Harlingen, EOIR wrote in an email to The Monitor.
Secretary Johnson reiterated President Obama’s new immigration orders when he visited the McAllen Border Patrol headquarters on Nov. 21 and said that under the new guidelines there will be “fast-tracking” of deportations of what he calls “Priority 1” and “Priority 2” cases, which includes security threats, recent arrivals and those who have abused the visa or visa waiver programs.
More court resources Beyond personnel is the issue of resources. During multiple visits to the Harlingen court this month, we found that the computer system in Judge Tovar’s courtroom had gone down several times and his staff did not have access to necessary information.
The copier in the courtroom also often did not work and a clerk had to leave the courtroom after every hearing and walk elsewhere to make copies of adjudication orders. Also, the judge suspected that many cases were transferred to courts in other cities where defendants had relocated, but the proper transfer papers were not put through the system.
As a result, the docket remained clogged with cases in which the defendants did not show up and the judge was unaware of their whereabouts. All of these inefficiencies within the court system only serve to waste Judge Tovar’s valuable time and that of his scant, two-person court staff.
The 2014 pending immigration caseload is the highest ever, according to a statement by Juan Osuna, director of the EOIR in a congressional report obtained by The Monitor.
“The pending caseload is directly tied to both the number of cases that DHS files in the immigration courts and EOIR’s ability to complete those cases with available resources,” according to Osuna.
We would argue they are not successfully completing cases.
Massive detentions The backlog in courts also has caused other problems within the immigration system. This includes increased detention times for thousands of mostly women and children. Immigration lawyers tell us that many of the “family units” consisting of adults who crossed with children during this past year’s mass influx of an estimated 254,000 undocumented immigrants through South Texas, remain in federal custody at detention facilities throughout the country with little chance of seeing a judge before year’s end. Some cases have been set for 2016.
How and if cases will be fast-tracked and deportations increased of those who came after Jan. 1, 2014, as now stipulated by President Obama, is hard to imagine with such a clogged legal system.
Repeated calls by The Monitor to the Office of Refugee Resettlement, an arm of the U.S. Department of Health and Human Services that is in charge of all juvenile immigrant detainees, and requests for statistics on total numbers of family units remaining in detention facilities were not answered.
>> Therefore, we call for more transparency on the disposition and numbers of immigration cases and more timely details released on deportations by the federal government.
>> We also call for greater access to federally operated detention facilities and for more information on the number of detainees being held, their location, ages, date of entry and circumstances and the cost to the federal government for holding them.
Secretary Johnson wrote in a memo following President Obama’s announcement of immigration reforms: “The intent of this new policy is to provide clearer and more effective guidance in the pursuit of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparency in the annual reporting of our removal statistics to include data that tracks the priorities.”
We applaud his pledge to provide more deportation data, and likewise request more timely data relating to immigration from other federal departments, such as Health and Human Services and the Department of Justice. Linda Brandmiller, an immigration lawyer from San Antonio, who is chairman of the Laws Relating to Immigration and Nationality subcommittee of the State Bar of Texas, says many of her clients have complained of mistreatment in federally-run detention facilities.
Brandmiller, who represents detained juvenile and has been one of very few lawyers with access to Texas detention facilities, says children and women are held for indefinite periods and there appears to be little effort by federal officials to fully screen their individual cases or to work toward releasing defendants to sponsors or reunifying them with family who are in this country legally. There also are allegations of sexual and physical abuse of female detainees.
She is particularly opposed to the opening next month of a new, 2,500-bed detention facility in Dilley, about 75 miles southeast of San Antonio. She worries about the concept of incarcerating entire families indefinitely while they are awaiting immigration court hearings. She also fears it will end up being a massive, impenetrable holding facility not subject to public oversight of which the public or defense lawyers have little access or knowledge about. This facility is to replace the 500-bed facility in Karnes City, which, she says, currently has only one psychologist: a male, who evaluates mostly women and children, many of whom claim to have suffered unspeakable horrors, rapes and tragedies in their home countries or during their migration to the United States.
Brandmiller and other immigration lawyers say a basic flaw of the current U.S. immigration system is that there are not enough protocols in place to fully screen or protect children or allow the staff or resources to fully identify all components of their immigration cases, which could make them eligible for special visas or asylum.
A July report by the United Nations High Commissioner for Refugees, the international intergovernmental United Nations organization entrusted by the United Nations General Assembly with protecting refugees, strongly advocates for more screening and protection of displaced children.
The report, “Children on the Run,” which studied hundreds of unaccompanied children who crossed into South Texas wrote: “Of foremost concern to UNHCR is that all unaccompanied and separated children be consistently and appropriately screened for protection, and once identified, have full access to seek and receive international protection that takes into account their age and experiences in a child-sensitive manner.”
The report advocated for “increased staff and training and other mechanisms, to ensure the systematic identification of children with potential international protection needs ... including the assessment of a claim for refugee status, asylum or any other form of international protection.”
Therefore, we call on Congress and the president to:
>> Ensure that the necessary assessments are made for every child who crosses our border. This should include Mexican youth, as well, who, under current laws, are immediately repatriated back to Mexico once contact is made with family members and/or officials with the Mexican consulate.
>> The promotion of nonprofit organizations and those with legal backgrounds as well as mental health professionals to step forward and offer their services – similar to the faith-based initiatives promoted during the George W. Bush administration. We applaud efforts by the State Bar of Texas to recruit lawyers to help in immigration cases, regardless their field of expertise. Thousands of lawyers, law clerks and others familiar with judicial proceedings, as well as translators, are needed to help reduce a backlog of cases and to ensure that all children receive the legal tools necessary to argue their cases.
>> Strengthen laws that prevent preying on immigrants, including more stringent oversight of the services ofnotarios who often illegally claim to offer legal representation and services to immigrants in fraudulent schemes that often bilk immigrants out of thousands of dollars and do little to further their cases.
>> Allow more children and families be moved from detention facilities to more hospitable environments under the care of “sponsors” while they are awaiting adjudication. As of July 31, there were 37,477 children released nationwide to sponsors — with 5,280 children released to sponsors in Texas, the most of any state, according to statewide reports obtained by The Monitor. It is impossible to give these numbers further context because of the limited current information the government has released.
This responsibility should fall entirely on the federal government. Communities all must help by recruiting qualified sponsors who are willing to care for youth and women, as well as soliciting responsible volunteers who are willing to assist the youth. This includes volunteers to help with counseling, mental health screenings or just a warm hand to hold.
Catholic Charities USA, for instance, is one organization that has begun a program to encourage sponsorships of immigrants and offers courses to help train citizens on how to responsibly help foreign nationals. This includes the ongoing humanitarian efforts that Catholic Charities of the Rio Grande Valley have provided to immigrants in downtown McAllen at Sacred Heart Church since June, which has received international praise and recognition. Many more such programs are needed and encouraged nationwide and in other Valley communities.
While it would be ideal for the federal government to help recruit, organize and train sponsors, we call for something more fundamental: based on what countless volunteers have told us who have been turned away by federal officials, we call on the federal government to simply give these groups access to the children and other immigrants in custody.
But in asking for more volunteers we also are asking for the federal government to maintain strict oversight of all sponsors, especially of those caring for released unaccompanied children. As we believe it is infinitely better for these unaccompanied youth to be among family, rather than in large, federally-funded detention facilities, we also believe these sponsors should be monitored.
Protecting children Finally, we strongly believe that it has become necessary to create separate courts for juvenile immigrants. While current dockets often are set aside for youth on certain days, we believe it would be far better if each immigration facility had at least one judge who only heard youth cases on a daily basis and was well-versed in connecting and understanding and helping these young, displaced immigrants.
Accordingly, we also advocate treating juvenile defendants differently from adults, as is done in U.S. court proceedings for American citizens. Currently, all immigrants who are accused of entering the United States illegally are treated to the same court. We have been told that the current system is not set up for children, nor has it ever been taxed to such a current extent following last summer’s migration of 60,000 unaccompanied youth and thousands of children who came with adults who crossed the Rio Grande here.
Child advocates tell us that children as young as 18-months-old are required to protect their own interests under today’s current system. Clearly they cannot do that. And sadly, our country does not have enough child advocates to help them.
“There isn’t really a separate system for kids,” said Jennifer Nagda, policy director for the Young Center for Immigrant Children Rights, which is based in Chicago. “There is very little that distinguishes a child’s immigration process from an adult.”
Under the current system, ORR is required to provide all detained foreign national youth with access to legal services, therefore every shelter around the country is required to have a contract with legal services, says Meghan Johnson, managing attorney for South Texas Pro Bono Asylum Representation Project, commonly called ProBar.
The organization is based in Harlingen and offers free legal services to immigrant youth and is sponsored in part by the State Bar of Texas. However, because there are so few immigration attorneys and even fewer child advocates versed in the federal immigration law system, this access to legal services often comes down to a two-hour “Know Your Rights” presentation that ProBar gives the kids to quickly prep them for court. Johnson tells us that there is no way for them to individually counsel each child who is held in detention facilities, nor for them to hear every component of every child’s case to better assist them. ProBar serves 15 different shelters in the Valley alone, with a total of 1,600 beds, she said. “Our organization’s primary focus is to orient the children in a child-friendly way as to the removal proceedings that they are now engaged in and to do it in a way that helps them try to participate in their proceedings,” Johnson said.
The federal government does contract cases whereby advocates may serve as guardian ad litem on behalf of children, but only on referred cases and the most extreme cases where, we’re told, there are multiple issues. There are thousands of children who get no legal advice other than the introductory court seminar, during which time Johnson’s organization also explains what a judge is, how a U.S. courtroom is set up and how they are to behave. Those who are fortunate to receive special free counsel in court tend to include youth with multiple case factors that qualify them for special assistance. This could include charges of abuse or threats against the youth; sexual assault; human trafficking of the youth by others and fear of repatriation to their country due to criminal activity, such as gang violence and drug cartels, extreme young age or language barriers.
They are kids like 16-year-old Usvaldo Hermenegillo Ramirez-Martin of Guatemala, who speaks the indigenous Mayan language of Mam. He went before Judge Tovar in Harlingen on Nov. 18 and told the judge that he understands Spanish “poquito” (a little). He said that in his village they write and speak only in Mam and that he does not know how to read Spanish. The federal translator assigned to him in court spoke to him in Spanish. Usvaldo also was assigned Elizabeth Rieser-Murphy, a staff attorney for the Young Center based here in the Valley, as guardian ad litem to represent his best interests. And he was assigned a lawyer from ProBar.
Usvaldo told Judge Tovar that he has an uncle in the United States and asked to be reunified with him. The judge noted the special counsel and guardian ad litem and set his next court date for Jan. 21, 2015.
Immigration lawyers tell us that the most important screening that youth foreign nationals have when they are apprehended is a “credible fear interview” when they say if and why they are scared to repatriate to their home country, which could make them eligible for asylum or other special visas, such as a T-Visa for human trafficking cases, or a U-Visa, which relates to abuse and crimes committed against the immigrant in this country. When the surge of immigrants came across last summer, we were told, however, that individualized credible fear interviews were fast-tracked and most immigrants were often too traumatized to quickly answer crucial questions and they did not pass the screening. They said credible fear screenings for juveniles especially were not given the time and attention needed to fully establish cases.
>> Based on that, we believe that Congress must extend the number of T-visas and U-visas issued, and ensure that special attention is given to these cases, particularly to children. Currently there is a national cap of 10,000 U-visas issued annually for those who suffer crimes on U.S. soil, if the victim agrees to assist and/or testify in court. We’re told the visas are distributed within the first month of each year and that waits for U-visa cases that are approved now average 18 months.
>> Congress also must increase the number of asylum cases granted. The EOIR reports that in 2013 there were 36,674 asylum cases received and only 9,933 asylum cases granted; only 92 to Hondurans; 153 to Guatemalans; 181 to those from El Salvador and 155 to Mexicans.
These are the countries that most immigrants are fleeing to our borders from to escape poverty, gangs, violence and increasing murder rates.
They are children like Jose and 14-year-old Kleily Yajaira Mishel Herrera-Juarez of Guatemala who told Judge Tovar that she has an aunt in this country; 16-year-old Raul Wladimir de la Cruz-Olovacha of Ecuador, and 14-year-old Fernando Jose Rodriguez-Guillen of Honduras who said he has a sister in the United States. But that’s all we know about these children. They were ushered in and out by officials with HHS and we have no idea where they are being detained or for how long.
But each case is compelling and complex and deserves our country’s utmost attention and care. Each case will result in lives forever affected and changed. And each case should be handled with our country’s best abilities, which we cannot say is currently being done under the current immigration court system.
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