For many undocumented youth in Washington fleeing violence and neglect for a better life in the United States, a new state law could mean the difference between gaining permanent residency or being deported.
A federal program called Special Immigrant Juvenile Status grants immigration benefits — such as a temporary guardian or a green card — to foreign unaccompanied minors found to be abused, abandoned or neglected by their parents or previous guardians. Immigrants up to age 21 are eligible for this status, according to U.S. Citizenship and Immigration Services.
While the federal government manages the immigration program, state juvenile courts must first determine if the child should be reunited with their families back in their home countries or if they would be better off with a new guardian in the United States. However, Washington’s juvenile courts could only hear such cases until age 18, preventing hundreds of 18- to 20- year-olds from taking part in a program that the federal government said they qualified for.
“That’s what was so hard,” said Tim Warden-Hertz, a directing attorney for the Northwest Immigrant Rights Project. “Talking to a young person who’s been through a really tough situation. They’ve been abandoned, abused or neglected; and you’re saying ‘unfortunately you found us too late, you’ve already turned 18 so there just isn’t a way for us to get into state court to do that.’”
A recent Washington state bill closes this disparity between state and federal law by expanding state court jurisdiction on SIJS cases to youths up to age 21. The bill passed with broad bipartisan support. It was similar to legislation passed by other states, such as Maryland, who also recognized the discrepancy.
The NWIRP and legal nonprofit Columbia Legal Services lobbied lawmakers to close the gap. After three months of deliberation and testimony from SIJS enrollees and guardians, state lawmakers passed the bill, which will go into effect on July 23.
“It makes a huge difference for someone to have that stability,” Warden-Hertz said. “Someone can go from such a vulnerable situation then, all of the sudden, has all these doors open to them, which is such an important thing for our Washington communities. This doesn’t fully solve things in one step, but it is necessary.”
These state law amendments are especially important due to the high number of undocumented juveniles entering the United States over the last three years. The U.S. Border Patrol arrested about 68,500 unaccompanied minors in 2014, a 77 percent increase from the previous year. They detained almost 60,000 in 2016, many of whom could not be immediately returned to their home countries due to a federal law that protects unaccompanied minors from Honduras, El Salvador, and Guatemala from immediate removal.
From 2013 to 2014, U.S. immigration courts saw the number of juvenile removal proceedings more than double to almost 57,000 cases, most recently totaling more than 45,000 cases in 2016. These cases only account for proceedings involving an individual under the age of 18, so local totals are expected to rise due to the expansion of juvenile jurisdiction up until the age of 21.
An increase in juvenile removal proceedings and SIJS cases is expected to put an increased burden on nonprofit immigration organizations and pro-bono lawyers.
“I love what I get to do and we get to make such a difference, but one of the really hard parts is that we do have to turn people away,” Warden-Hertz said. “There’s not enough hours in the day to take all these cases and for many types of cases we have very long waitlists. For a case like this, you can’t get put on a waitlist if you’re about to age out of the program.”
Legal representation has been identified as one of the most important factors influencing the outcome of a court case, especially for immigration proceedings regarding unaccompanied minors. In a study of removal proceedings for unaccompanied minors from 2012 to 2014, children with legal representation were allowed to stay in the U.S. 73 percent of the time, while children without representation were allowed to stay only 15 percent of the time.
The study also found that these children had legal representation in only about 32 percent of pending cases as of Oct. 31, 2014.
The U.S. Constitution says that all people have a right to legal counsel in criminal court and if you can’t afford it then one will be appointed free of charge. But this right is not extended to individuals going through removal proceedings in immigration court.
Without court-appointed counsel, these unaccompanied minors must pay for private attorneys if they can afford them, find pro-bono attorneys who have space in their schedules or represent themselves, most likely in their second language.
According to data compiled by Syracuse University, an increase in the total number of cases filed drives down the proportion of those cases where the defendant has an attorney. As the influx of unaccompanied minors swelled in 2013, immigration courts saw a decrease in the percentage of juvenile cases represented by an attorney.
Washington could see a similar pattern. While the expansion of Washington’s SIJS eligibility could offer unaccompanied minors a pathway to a green card, it could increase the overall demand for pro-bono immigration counsel, Warden-Hertz said.
“If we had more resources, we would be able to do more of this work, so we are always trying to increase our capacity to serve more people,” Warden-Hertz said. “We are always looking for pro bono attorneys who would be interested in committing to do a number of these types of cases.”
NWIRP is involved in a long-term, ongoing lawsuit to secure the right to a court-appointed counsel for individuals under the age of 18 in immigration court, according to Warden-Hertz. This would help to take some of the burden off of pro-bono attorneys and likely increase the proportion of unaccompanied minors allowed to stay in the United States.