On a recent Wednesday morning, six mothers and ten children sat on hard wooden benches in a windowless courtroom, home to the Chicago Immigration Court. All of the families had come to the U.S. from Mexico, Guatemala or El Salvador between November 2014 and March of this year. They crossed illegally or approached immigration officers at the border and were found to have a credible fear of returning to their home country. None had a lawyer.
The families are part of a wave of women with children who began crossing the border in droves last summer in search of asylum. Many fled gang violence in Central America. Others sought refuge from domestic violence or dire economic conditions.
These asylum-seekers face an uphill battle, even under the best circumstances. For those without a lawyer, the odds of being provided refuge in the U.S. are even lower.
In Chicago immigration court, which has seen nearly 1,500 cases of women with children since last year, less than 14 percent are represented by a lawyer. That’s less than half the national rate, according to data collected by a center at Syracuse University that tracks immigration data.
Among the 10 immigration courts across the country that hear most of these cases, only Dallas has a lower representation rate.
“It is a shockingly low number,” said Kathryn Weber, chair of the Chicago chapter of the American Immigration Lawyers Association. “Part of the problem is that there is a lot of need and just a finite number of resources.”
Unlike in criminal court, a defendant in U.S. immigration court is not legally entitled to an attorney and the government doesn’t provide one. Immigrants must find one on their own, and doing so is crucial. Women and children with an attorney are 16 times more likely to be allowed to stay in the U.S. than those without an attorney, according to data from the Syracuse center.
The National Immigrant Justice Center, the largest provider of free and low-cost immigration representation in the Chicago area, has a network of about 1,500 pro bono attorneys in Illinois, Indiana and Wisconsin. The non-profit organization gets roughly 25 to 30 requests for representation on asylum cases each week, said Ashley Huebner, managing attorney for the organization’s asylum project, in addition to many requests for other kinds of immigration cases. They only are able to provide consultations to about 25 percent of them.
“Even before this family docket really picked up and the women and children came across the border [last summer], we were already operating beyond our capacity,” Huebner said. “We are at a point where we’ve had to turn away individuals we believe have very viable asylum claims, but we don’t have the capacity through our pro bono network and in-house to be able to serve them.”
Even with legal representation, only about one-quarter of those who apply for asylum have been allowed to stay here. That compares to less than 2 percent of those without a lawyer.
(Source: Transactional Records Access Clearinghouse at Syracuse University)
Last December, Sonia, a 24-year-old domestic laborer from Honduras, was sitting in the same windowless courtroom in Chicago’s immigration court.
“I was really, really nervous,” Sonia said in an interview, through a Spanish interpreter. “I didn’t really know what was going to happen, but a lot of people told me that they could deport me from there, so I was really afraid.”
Sonia, who asked The Reporter not to use her last name because she fears for her safety and wants to protect her family back in Honduras, fled her home last May with her then-18-month-old son. She is trying to escape her son’s father, who she said was abusive. She tried to run away before, she said, but he found her and threatened to kill her. Like thousands of others, she embarked on the perilous journey to the U.S. with only a small amount of money and the hope that she would somehow evade American immigration officials.
It took just three hours after crossing the Rio Grande for U.S. Customs and Border Protection agents to arrest Sonia and her son and the other families she was traveling with. Like the other women in immigration court, she passed an initial interview to demonstrate that she had a legitimate fear of returning to Honduras, the first step toward seeking asylum. Following procedure, U.S. Immigration and Customs Enforcement began removal proceedings, the first step toward deportation.
She was one of the lucky few who got an appointment with the National Immigrant Justice Center. The organization agreed to take on her case and is working to assign it to a pro bono attorney.
“Sonia has an incredibly strong case and one that we’re very positive about,” Huebner said. Being a victim of domestic violence from Central America has been recognized as grounds for asylum in other cases, she said. “But if she didn’t have an attorney, that strong case on its own would not be enough to get her asylum.”
Challenges of finding a lawyer
Customs and Border Protection reported apprehending more than 68,000 family groupings between October 2013 and September 2014, a 356 percent increase from the year before, and an equal number of unaccompanied children.
Amid the wave of unaccompanied children and mothers with children entering the U.S. last July, the Justice Department issued a new rule to prioritize these cases and expedite them through the immigration courts. The goal was both to serve as a deterrent to other migrants considering the dangerous journey (though immigrant advocates say this is ineffective) and “to enable prompt removal in appropriate cases,” according to a statement from Deputy Attorney General James Cole.
Immigration lawyers and advocacy groups quickly responded with concerns that expediting these cases would make it more difficult for these women and children to find lawyers to represent them.
“The cases they are prioritizing are the cases that really need more time, in order to prepare an appropriate case,” Heubner said. “You have individuals who need even more time to recover from their [traumatic] experiences in their home country and find an attorney and be in a position where they can assist their attorney to prepare for a case, and they don’t have the time to do that.”
In the meantime, individuals who have been in the country longer and are more likely to have an attorney are seeing their cases delayed and added to a growing backlog. Currently almost 450,000 cases are pending in U.S. immigration courts, including nearly 19,000 in Chicago alone, according to the center at Syracuse. That’s an average of over 2,700 cases for each of the seven judges in Chicago. The backlog has worsened because two immigration judges retired in the past year. A single judge, Jennie Giambastiani, is currently hearing all of the unaccompanied children and women with children cases in Chicago.
That backlog makes it harder to convince pro bono attorneys to take on additional cases, Huebner said, because many of them already have pending cases with hearing dates set for four, or even five, years out.
Unlike more established immigrants, most of the recently arrived women with children, like Sonia, are less likely to be able to afford an attorney, which can run anywhere from $1,000 for a simple case that requires just a single hearing to more than $10,000 per family member for a complicated asylum case, according to Michael Ibrahim, an immigration attorney at the Consumer Law Group in Chicago.
“If you’re coming with a family of five,” he said, “how are you going to pay for that?”
Toward universal representation
Nationwide, just over half of cases that came before immigration courts in fiscal year 2014 had representation. That number has risen somewhat since 2010, when it was 40 percent, but dropped from 59 percent in 2013 to 55 percent last year, according to the Executive Office for Immigration Review, which oversees the immigration courts.
Efforts are underway to fix the problem.
The American Civil Liberties Union and several other groups filed a class-action lawsuit on behalf of unaccompanied children last July, arguing that by expecting minors who can’t find a lawyer to defend themselves in immigration court, the government is violating their right to a “full and fair hearing” before an immigration judge. Only 36 percent of unaccompanied minors had legal representation as of March.
In 2013, the New York City Council allocated $500,000 for a pilot program, called the New York Immigrant Family Unity Project, to provide pro bono representation to 190 of the approximately 900 detained immigrants in New York, which does not include women with children. Last July the council approved an additional $4.9 million to fully fund the program for all detained immigrants for the current fiscal year.
A coalition of lawyers and advocates called the Chicago Immigration Court Working Group hopes set up a program like the one in New York that would provide universal representation for particularly vulnerable immigrants in deportation hearings before the Chicago court. Their priority is on detained immigrants, which does not include the mothers and their children.
“We need access to counsel for everyone across the country to try to limit these disparities and try to help everyone get relief to stay in the country if they have a good case, which many of these people do,” said Geoffrey Heeren, a professor of immigration law at Valparaiso University and a member of the working group.
The group is still doing preliminary research and, given the current state of the city’s finances, doesn’t believe now is the right time to make a proposal, Heeren said.
Immigration judges say that expanding legal representation would allow them to resolve cases faster and would save money by limiting appeals, reducing the time spent in detention, and cutting down the time spent on cases with no legal basis.
“It’s actually one of these rare win-win situations” whether you’re on the conservative or liberal side of the immigration debate, says Dana Leigh Marks, a San Francisco immigration judge and president of the National Association of Immigration Judges. “It helps judges make the decisions they need with the information they need, and to work through those cases both more quickly and more fairly.”
In the meantime, cases involving people without legal representation continue to stream into the Chicago immigration court.
On that recent Wednesday, Judge Giambastiani spoke to families through a Spanish interpreter. One at a time, she asked the seven families to stand and state their names and ages for the record. She explained through the interpreter the charges pending against them.
“Each of you expressed a desire to seek a continuance to seek an attorney,” she said to the entire group, as if reading from a script. “The court cannot assign a free attorney to you, but you can seek an attorney at your own expense and of your own choosing. Some people are under the false impression that you are required to have an attorney. It is helpful, but not compulsory.”
Her assistant handed out papers with the names of legal aid organizations. She set a hearing date for October 19 at 9:00 a.m., giving them six months to find a lawyer. Then the women and children filed out of the room.
Three more families entered; none had attorneys. And the process repeated itself.