In a Phoenix courtroom, a teenage boy clad in a black dress shirt and matching tie sat in the witness stand recently, softly answering in Spanish a spate of questions from his attorney.
The 17-year-old explained, through an interpreter, that he first entered the country in early 2014, that he never faced criminal charges in his native Honduras, and that he would like to work as an auto mechanic here. A few minutes later, Judge John Richardson pronounced the words the teen and tens of thousands of other minors who have arrived here alone from Central America undoubtedly hope to hear:
"You are now a permanent legal resident of the United States."
This year's groundswell of minors coming across the US-Mexico border has begun to stabilize. Some 2,424 unaccompanied youths were apprehended in September, compared with more than 10,000 in June, according to US Customs and Border Protection. But the summer surge is stretching an immigration court system that was already trying to cope with a huge backlog of deportation cases that often take years to conclude.
As of August, the number of pending cases before the Department of Justice's immigration courts totaled 408,037, up from 344,230 in 2013, according to the nonpartisan Transactional Records Access Clearinghouse at Syracuse University.
Under a White House directive, courts are sending minors to the front of the line as they focus on the cases of the more recent arrivals. Indeed, hearings are being scheduled for the youths in a relatively short time. But the some of the same factors that result in lengthy, drawn-out cases for adults fighting deportation – including a shortage of judges, not enough pro-bono attorneys, case continuances, and transfers from one state to another – are also slowing down proceedings for minors.
For example, between July 18 and Sept. 2, immigrations courts adjudicated 337 of 5,363 cases involving minors from Honduras, Guatemala, and El Salvador who crossed the border after May 1. In the completed cases, 304 youths were deemed deportable. On the remaining 33 cases, Immigration and Customs Enforcement (ICE) exercised its prosecutorial discretion, which usually staves off deportation.
With Congress so far unwilling to grant special funding to address the crush of underage immigrants, the Department of Justice has reallocated resources and courts have reassigned judges and adjusted juvenile dockets. But significant hurdles remain.
Since immigration violations are civil and not criminal offenses, the government is not required to provide attorneys for the youths. But legal representation for the minors is at the crux of a class-action suit that the American Civil Liberties Union (ACLU) and other advocacy groups filed in July to force the federal government to pay for legal representation for the unaccompanied youths.
The government is seeking dismissal of the suit, while at the same time the Department of Justice has awarded $1.8 million in grants to groups providing legal assistance to minors. And in late September, the federal Department of Health and Human Services, which is charged with the care of border-crossers who are minors and come without a guardian, announced it also would provide $9 million in funding over two years toward legal representation for the youths.
The numbers of underage immigrants fleeing gangs, crime, and poverty has climbed steadily in recent years and shot up dramatically in the summer. Data show that 51,705 unaccompanied minors from the three "northern triangle" Central American countries were detained in fiscal 2014, which ended Sept. 30. The previous year, the number was 20,805, according to Customs and Border Protection.
Advocacy groups across the country have been working to recruit lawyers that can provide free legal counsel to minors.
One such group, Kids in Need of Defense, has trained some 7,000 attorneys – including many lawyers who specialize in areas other than immigration, such as real estate – to work with the minors, says Megan McKenna, a spokeswoman for the nonprofit headquartered in Washington.
"Even with that huge response, because of the incredible numbers of these kids, we still need so much more to help them," she adds. "Before this emergency, we estimated about 50 percent of kids didn't have attorneys, and now our estimate is at least 70 percent." [Editor's note: This quote has been corrected from the original version.]
Efforts to ensure legal counsel for minors in some cases affect the intended swift proceedings. Immigration judges have been granting continuances that postpone hearings to give youths more time to enlist attorneys.
To advocates for the young immigrants, that's a good thing.
"If a child is represented, the appearance rate is extremely high," says Ahilan Arulanantham, an attorney with the ACLU of Southern California. "If the child is not represented, then it drops substantially and there's a lot of dispute about what that number is."
But advocates for tougher immigration policies say the government could do more to move minors through the system faster.
"Obviously you need more judges, but it's going to take more than that," says Ira Mehlman, a spokesman for the Federation for American Immigration Reform in Washington.
The government needs to close loopholes in the law initially crafted to protect children from trafficking, he adds, and laments that efforts in Congress to amend the legislation and speed up deportations have gone nowhere.
Transfers and continuances
By now, most of the children have been released from detention shelters run by Health and Human Services and placed with sponsors, usually relatives, while awaiting court proceedings. The fact that many youths made an initial court appearance in the city where they were being detained and then moved elsewhere also has delayed cases.
In Phoenix, the Honduran teen was one of a handful in court that day. The names of several other boys who were absent were called out as having been transferred to courts in other states.
Many of the minors are seeking asylum, a form of refugee status that is bestowed on those who can prove they have been persecuted in their home country. Other forms of legal relief include special immigrant juvenile status – which can be granted to children who have been abused, abandoned or neglected – and visas for victims of crime or trafficking.
The type of application the Phoenix youth had filed was not discussed in court, but a pro-bono attorney stood by his side during the brief hearing. She later declined to discuss the case of her young client, whose case took about six months.
Ms. McKenna, of Kids in Need of Defense, says many of the children who were part of the summer uptick were granted continuances, and their legal future may soon become clearer.
"We're going to see in the next few weeks, when the children come back to court, what happens if they don't have an attorney," she adds.
What's happened to the kids ordered deported?
It is unclear whether the 300 minors who received removal orders between mid-July and early September appeared in court or had access to legal counsel. In such instances, the Justice Department's Executive Office for Immigration Review turns cases over to the Department of Homeland Security (DHS).
Immigration and Customs Enforcement, which functions under DHS, wouldn't disclose whether the minors have been deported to Central America or remain in the US.
"If an immigration judge orders an unaccompanied child removed from the US, or grants voluntary departure, ICE arranges for the child's safe return to his or her country of nationality according to ICE policy and procedures," the agency said in a statement. "ICE recognizes that unaccompanied children are a particularly vulnerable population and must be repatriated with special consideration and care."