Why Immigration Judges Say Cornyn and Cueller's Solution to the Surge Won't Work
Republican Senator John Cornyn and Democratic Congressman Henry Cuellar this week were heralded, by The Dallas Morning News among others, for their proposal to hire scores of new immigration judges to begin ruling on child migrant cases within a week or so of their arrival, as a show of force to the Central American countries where gang violence has sent thousands of kids streaming across the Texas border.
Gage Skidmore Sen. Cornyn wants to expedite unaccompanied kids through the legal system in his "Humane Act."
"They need the strongest possible signal -- planeloads of deportees returning home in defeat -- to understand that this is not a route to success," the News wrote in an editorial on Tuesday.
It would be a strong signal, no doubt. It also, say advocates, lawyers and immigration judges, would be a disaster.
Under a 2008 law designed to protect trafficking victims, Central American kids apprehended by Border Patrol agents are placed into federal custody and reunited with their families as they await their day in court, which takes years. Some have legal claims to stay, and some don't -- but few are ultimately deported before their 18th birthday, according to experts and immigration lawyers.
Under the Texas lawmakers' proposal, the kids would be treated more like those from Mexico, who are turned around at the border. They would need to file a claim with immigration court within a week of being screened by the Department of Health and Human Services. From there, a judge would have to make a decision on their case within 72 hours, and many of the kids would be shipped right back.
But that's impossible, says Dana Marks, president of National Association of Immigration Judges and an immigration judge for 27 years.
"Immigration law is repeatedly compared to tax law in terms of complexity. So it's problematic to think that a judge can explain to minors what their rights and responsibilities are," Marks says. "And to do it in an expedited fashion is extremely difficult. Another concern about a tight deadline is that the kids are traumatized from the journey. Psychologists will often document that children won't be able to talk about what they've gone through if they've had a trauma."
Marks says between multifaceted asylum cases, hundreds of pages of legal documents, and an overburdened system, each individual case is extremely complicated. It involves not just intimate familiarity with the American immigration system, but becoming acquainted with the individuals' home country's legal system. And immigration judges are exhausted: Marks has roughly 2,500 pending cases currently on her docket, and is not unusual in this. Most non-immigration judges only have about 440 pending cases at a time.
Even with 40 more judges, rushing cases through the legal system within 72 hours is not just an impossibility -- it's dangerous.
"The stakes for these kids can be life threatening. We often say we're doing death penalty cases if a person is fleeing persecution," Marks says. "If a judge makes a quick call and sends them back to their home country, they risk the fate of sending them back to possible death. And that's why it seems unrealistic that this bill would be workable."
Stacy Jones, an attorney for the U.S. Committee for Refugees and Immigrants, works with many of the unaccompanied immigrant kids that are currently pouring into the U.S. She says creating a solid relationship with young clients is a critical step in the process -- and that takes time.
"It's tough. You need to get their whole story," Jones says. "The younger a child is, the less able they are to articulate what happened to them or why they came to the U.S., and the younger they are, they're likely not traveling with a ton of documents. Obviously when you're representing a child you try to to build a relationship and trust with them. ... All of these kids have gone through terribly traumatic situations, and you need to build this relationship to be able to talk about very troubling things."
Bill Holston agrees. He's the Executive Director of the Human Rights Initiative of North Texas, which helps refugees navigate the immigration system. The group's cases often take months to build and years to adjudicate, and not only because of the beleaguered system.
"These deadlines are draconian," he says. "It's not easy for child to sit down with attorney, or even have access to an attorney, and to have an adequate amount of time to explain what's happened."