Report: Asylum-seekers from Central America aren't receiving adequate legal counsel

by Nuri Vallbona

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Women and children asylum-seekers from Central America are not getting adequate legal counsel when entering the United States, according to a report released Tuesday by the Jesuit Refugee Service/USA in partnership with law schools around the country. As a result, migrants with no representation are more likely to lose their asylum claims than those who do get legal counsel.

The report, "A Fair Chance for Due Process: Challenges in Legal Protection for Central American Asylum Seekers and Other Vulnerable Migrants," outlined results from a survey done at 13 Jesuit law schools. The findings highlighted the efforts and challenges legal representatives face in providing services to this migrant population. Among the issues cited were high case loads that resulted from clients in expedited removal dockets; lack of access to clients before they were deported; denial of asylum based on gang-related violence; and lack of access to counseling and support services.

Researchers and attorneys in the project said their goal was to raise awareness of these issues and to give lawmakers incentives to bring about change.

"The biggest issue overall is the lack of legal representation," said lead author Giulia McPherson, assistant director for policy at Jesuit Refugee Service/USA, a service and research organization that advocates for refugees around the world. "There are more than 81,000 juveniles in particular who are without legal representation, and that 46 percent of unaccompanied children going before an immigration court are without an attorney."

Without legal representation, their chance of "seeking asylum or securing some sort of reprieve is very small," McPherson said.

Because of pending litigation, the Executive Office for Immigration Review declined to comment about the lack of representation. "Outside of that, EOIR generally does not comment on third-party publications," said Kathryn Mattingly, assistant press secretary for the agency.*

Law professor Bill Hing of the University of San Francisco, one of the schools that participated in the survey, said part of the problem was the expedited removal process that the Obama administration implemented when asylum-seekers arrived in record numbers in 2014.

"Once the administration did that, it created chaos all over the country among service providers," Hing said. About 100 new cases a day were added to the expedited calendars that he and others dubbed "rocket dockets."

Since the courts operated swiftly to deport, Hing said, many clients were denied their court hearings because immigration officials kept "losing applications and notices of appearances" filed by lawyers. One woman was about to be deported when a pro bono attorney filed an emergency stay. "They took the woman off the airplane," Hing said. "People have been deported who haven't had their full day in court."

"Even in a part of the country like San Francisco where there are many nonprofits and very good pro bono attorneys, the need could not be met," said Hing, who along with his team of law students and a full-time attorney are now handling 55 open immigration cases.

While the Executive Office for Immigration Review reprioritized dockets in July for unaccompanied minors, families in detention, families in alternative to detention programs and others in detention, the agency "is maintaining the priority case groups announced last July," Mattingly said. "Please note that those adults with children in DHS family residential centers would have been a priority prior to the reprioritization of our case groups because the detained population is the long-standing priority at EOIR."

Another problem cited was the "near impossibility" to win asylum claims based on gang-related violence.

"Existing guidance to immigration courts discourages judges from recognizing those fleeing criminal or gang violence as a protected class," the report said. "The shocking implication of this is that thousands are in peril of deportation back into a situation of severe danger due to the lack of proper counsel."

As a result of the gang violence, many of the asylum-seekers had experienced some sort of trauma, especially children, according to the report. But counseling services were hard to get because "institutions offering legal services do not have the resources to extend to counseling services," survey respondents said.

While the report criticized U.S. policies for the lack of legal representation among asylum-seekers, it noted the efforts of the Department of Justice for its Justice AmeriCorps program that enrolled lawyers and paralegals in 2014 to provide legal services to unaccompanied minors from Central America. It also mentioned the Department of Health and Human Services, which in 2014 announced "a $9 million grant to the U.S. Conference of Catholic Bishops and the U.S. Committee for Refugees and Immigrants to deliver similar services, over the course of two years."

NCR reached out to representatives of the Department of Homeland Security and Immigration and Customs Enforcement, but they declined to comment. The Department of Health and Human Services did not reply to requests for comment.

McPherson said the next step is to organize in-person meetings to raise awareness about the issues in the report.

"We're planning to disseminate this widely to members of the administration and members of Congress who work on these issues to make sure that they're aware of some of the challenges we raise," McPherson said.

The report recommends that lawmakers stop the expedited removal of children and families, guarantee their legal representation, and increase funding for counsel. They also urged the courts to recognize asylum claims based on gang violence and provide counseling services when necessary.

Hing said he hoped the meetings would bring about change. "I hope the administration understands the human rights nature of these individuals and what they've gone through. They've really gone through horrendous situations, and the administration really ought to do the right thing and just slow things down."

*This story has been updated to add comment from Mattingly.

[Nuri Vallbona is a freelance documentary photojournalist and is currently a lecturer at the University of Texas.]

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