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When Unaccompanied Children Cross The Border, Judges Can't Always Help


This is TELL ME MORE from NPR News. I'm Michel Martin. We'd like to start today by going back to the crisis at the U.S.-Mexico border. You've probably been hearing about the tens of thousands of unaccompanied children who've been finding their way to the U.S. from Mexico and Central America. Well, this has actually been going on for some time now; the Border Patrol has been seeing a huge increase recently. Apprehensions of unaccompanied children have nearly doubled from this time last year. And in the current fiscal year alone, more than 70,000 children are expected to be apprehended at the border. We wanted to talk about what happens next so we've called upon Dana Leigh Marks. She is an immigration judge based in San Francisco. And she's president of the National Association of Immigration Judges, and that's how she happened to be in Washington, D.C., where we caught up with her. Thanks so much for coming in, your honor.

DANA LEIGH MARKS: Thank you for making time for me.

MARTIN: And I want to make clear for our listeners that you are an immigration judge. You are not speaking in behalf of the Justice Department. So with that being said, you know, we know that the Border Patrol and shelters are overwhelmed by this surge of unaccompanied children at the border. And I just wanted to ask, do you remember a point at which you asked yourself what's going on here, at which this kind of increase became visible to you?

MARKS: We felt a steady creep of cases going upward in terms of the numbers of unaccompanied minors that we see in our proceedings. But we have been in the midst of an incredible surge in caseload overall in the past 5 to 10 years.

MARTIN: Five to 10 years. So has it been a thing where all of a sudden it kind of just happened one day or has it been kind of this kind of gradual thing? At which point - as I said, I mentioned you're in touch with your colleagues because of your role as the president of the association. Was there a point at which you all turned to yourselves and said what's happening here or was it obvious what was motivating this? Did you know what was motivating this huge increase in caseload?

MARKS: We weren't able to tell what was motivating it. But we definitely saw the dramatic rise of caseload over the years. Since 2006, there's been a 117 percent rise in our pending caseload. The immigration judges now, 230 sitting immigration judges across the country, handle a docket of over 360,000 cases. So overall, our dockets are just enormous, causing delays of more than 578 days on average when people are non-detained and causing tremendous pressure for us to reshuffle resources in order to address detainees to make sure that they are not incarcerated for lengthy periods of time.

MARTIN: Now, we spoke recently with Dallas Morning News staff writer Dianne Solis. We talked to her last week. She's been covering this and she explained that children at the border are treated different depending on where they are from. Here's a short clip from our conversation.


DIANNE SOLIS: Mexico, because it is contiguous to the U.S., it's part of a legal situation in which the children or the juveniles are simply sent back. The Central Americans are not. And the Central Americans who are apprehended and are unaccompanied and juvenile, they're taken into shelters, supposedly within 72 hours.

MARTIN: So what happens next? If the children now are taken into custody, if they're - as we heard from Dianne, the Mexican children are generally sent back immediately. But the Central American kids have to come before some administrative figure. Is that the case?

MARKS: Well, you have this huge net of people being apprehended, both at the border and in interior. And a certain percentage of those cases flow into the immigration courts. There are certain procedures when someone is caught immediately at the border or where someone has been removed previously where they won't come to an immigration court, there's some administrative bypasses. But particularly in cases of vulnerable populations, such as unaccompanied minors, there is a requirement that within 72 hours they are connected to health and human services individuals who try to help find safe placements for them to reunite them with family members, legal or illegal. And the Department of Homeland Security has to make a decision at that time whether they issue a charging document and file it with the immigration courts, which is what triggers the responsibility of the immigration judges to begin to move to action.

MARTIN: So what happens when a child - I mean, when a child appears before you, as a judge, what do you want to know? I mean, are most of these children - what do they want? Are they seeking to be reunited with a relative who's already here? Are they seeking asylum?

MARKS: Any immigration proceeding before the immigration court has two components. And the first is do you have a legal right to be in the United States? And that's often pretty short and sweet because people don't have a claim to be here legally. But the second part is whether there's any immigration benefit that they can qualify for under the law. Do they deserve protection because they would be persecuted in their home country? Asylum. Do they have family members with whom they can be reunited and perhaps eventually get a relative petition that would sponsor them? Are they unaccompanied minors who are at risk of abuse, and can they qualify for a special immigrant juvenile status?

MARTIN: So - and if you're just joining us, we are speaking about the influx of unaccompanied children at the U.S.-Mexico border. We're talking about the role of immigration judges. Here joining us now is Dana Leigh Marks. She is the president of the National Association of Immigration Judges. She is an immigration judge. She just wants to make clear that she's not speaking on behalf of the Justice Department in her capacity right now. You know, people are asking themselves, why now? Why is this huge influx of children coming now? Some of it seems to be based on rumor that children will be in fact allowed to stay. But a lot of the kids who are old enough to speak for themselves are saying they're fleeing gang violence. They are fleeing gang recruitment. They say that they have a choice, either they join a gang and face what that all involves or they're going to be killed. Does that qualify them for asylum? Is that a legitimate basis for asylum?

MARKS: That's one of the very thorny issues for these children who are not entitled to an appointed attorney. Unlike the criminal justice system, where every person who comes before a judge has a legal right to have an appointed attorney if they can't afford one, immigration proceedings are considered civil in nature, even though the people there are not voluntarily there. So they don't have a legal right to appointed counsel. And when they try to make a claim for asylum, it can be very difficult because there's about five different statutory components to meeting the definitions required to qualify for asylum. And the thorniest is this nexus requirement. No matter how seriously you've been harmed in the past, something may be serious enough to amount to persecution, you have to show that it's on account of a protected statutory basis. And these gang cases fall into an evolving area of the law, something called particular social group. Most of these claims are not based on traditional bases that we all kind of know and recognize easily like political opinion or religion or race or nationality. Those are much easier to define. Particular social group is included in the definition, but it's not clear whether someone who's been singled out and targeted by a gang is going to qualify under the very complicated requirements of being a particular social group, who their government either cannot control or their government is acquiescing in their persecution.

MARTIN: How many of these children are accompanied by lawyers? How many of these children have lawyers?

MARKS: I don't know if the statistics have been broken out for juveniles. But overall, 40 percent of the people in immigration proceedings nationwide do not have attorneys and 85 percent of people who are detained do not.

MARTIN: As I mentioned, your meeting with your fellow immigration judges is part of your portfolio as president of the National Association of Immigration Judges. What are they talking about, about this, right now? Do they have a request of the Justice Department? Do they have an ask - what are they saying...

MARKS: Well...

MARTIN: ...With the situation, would alleviate the situation or at least help make it better?

MARKS: For more than a decade, we have been the canary in the minefield singing ourselves hoarse trying to explain that there's a scarcity of resources that prevents us from being able to be nimble in these situations, to have adequate resources to devote to these kinds of emergency situations. The National Association of Immigration Judges actually advocates that we be taken out of the United States Department of Justice and be configured as a separate court, an article 1 court, which would be like the tax court or the bankruptcy court. We feel that the stream of resources to the courts have been impeded by the fact that we are housed in a law enforcement agency. And admittedly that's a technical legal argument that doesn't capture America's attention, but we feel it's a long-term structural reform that actually needs to be implemented in order to avoid crises such as these.

MARTIN: Where would you be housed then? To what entity would you belong? Would you become part of the Department of Homeland Security? Would you be considered - where would you be?

MARKS: We would be independent.

MARTIN: Likewhat?

MARKS: Like the tax court...

MARTIN: Like the tax court.

MARKS: Right. And only our administrators might be housed in something like the Department of State.

MARTIN: Interesting...

MARKS: It's one option.

MARTIN: Interesting. Finally, before - I don't know if this question makes you uncomfortable, but I wanted to ask - is there oftentimes, as a person kind of in the middle of the stream, I've heard other judges say that there are just cases that haunt them. And I just wonder if there's a case that's haunting you at the moment?

MARKS: There are some heartbreaking cases. What you can do as a judge to deal with that is to try to do the best you can for the person in front of you. There are times we all are very frustrated by the restraints put on us by the law. The judges have been advocating that we be given more discretion. That instead of rigid rules set out by Congress, that broader categories and policies be spelled out and allow the people in the trenches, the judges in the field, to make those calls based on all the unique facts and circumstances of an individual case.

MARTIN: So what you're saying is that the discretion that you have in this, in this area, is actually fairly limited.

MARKS: That is correct.

MARTIN: OK. So asking again, is there a case that sticks with you where your discretion was limited, where you - or just that - it just was difficult for you, was it because of time constraints or information constraints that you felt you just weren't sure? Do you mind?

MARKS: Personally, I had a 10-year-old Honduran boy whose several family members - aunts, uncles, cousins - had been killed by gangs and who was sent by his family to the United States. And fortunately for him, he was in San Francisco where we have a very engaged pro bono community. He had an excellent attorney. I granted his case but was reversed on appeal because the appellate board felt that the law had been pushed beyond the appropriate limits.

MARTIN: And what happened to him? Do you know? He was deported?

MARKS: He's still in process. So I'm not sure.

MARTIN: Dana Leigh Marks is an immigration judge based in San Francisco. She's speaking to us in her capacity as president of the National Association of Immigration Judges. And she joined us here in our studios in Washington, D.C. Your honor, thank you so much for speaking with us.

MARKS: Thank you, Michel. Transcript provided by NPR, Copyright NPR.

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