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Immigration attorney represented 3-year-old

Immigration attorney Lindsay Toczylowski talks with CNN's Poppy Harlow about representing a three-year-old in court for a deportation hearing.

Posted: Jun 30, 2018 1:30 PM
Updated: Jun 30, 2018 1:57 PM

"Your honor, meet the respondent," immigration attorney Lenni Benson said as she introduced the crying toddler in her arms to the judge that would be hearing the child's case.

Benson remembers the incident well. The child was at court with her grandmother, and Benson tried to comfort the crying girl to help the court.

"The judge was so frazzled by the crying and said, 'Can someone please take this kid out of my court?'" at which point Benson informed the judge that the child was actually one of her cases.

"She couldn't believe it," Benson recounted.

All across America, migrant children appear before immigration judges to fight for permission stay in the country. Historically, closer to one in three had lawyers, according to data maintained by a clearinghouse at Syracuse University. But recently released Justice Department data says the first two quarters of this fiscal year, 79% of kids with cases at least a year old were represented.

It's a byzantine process to navigate, even for experienced attorneys like the ones Benson works with at the Safe Passage Project in New York, which she founded to help kids in immigration proceedings. And it's a system that has existed for decades, across administrations and Congresses that have sputtered rather than improve the system.

Benson described it as a complicated version of the board game "Life" -- but one that has life or death consequences for some of the children playing it.

The issue is gaining new attention as the Trump administration has separated thousands of children from their parents at the border as part of its "zero-tolerance" border policy -- thus ensuring those childrens' immigration cases are separated from their parents', as well.

Most of the children in the system are closer to their teens, but there is no minimum age. Toddlers and infants do, in fact, appear before judges in the system to defend themselves against deportation.

"Yeah, I get that reaction a lot," said Wendy Young, president of Kids in Need of Defense, when asked how she would respond to someone incredulous at the idea of a toddler representing themselves in court. "And with good reason, because it does shock the conscious."

Defenders of the system say the immigration judges are able to help kids navigate the process, and the federal courts have upheld those procedures thus far.

Jack Weil, an assistant chief immigration judge with the Justice Department in charge of immigration judge training, famously testified in a court deposition that someone properly trained could make any child understand what was happening.

"I've taught immigration law literally to three-year-olds and four-year-olds," Weil testified in 2015. "It takes a lot of time. It takes a lot of patience. They get it. It's not the most efficient, but it can be done."

He later told The Washington Post his words were "taken out of context," but did not explain how.

In the case of the crying toddler, Benson said, the girl's mother was told by smugglers they'd both have a better chance of staying in the US if they split up, with the little girl crossing the border with another unrelated woman and her grandmother's contact info. When they were apprehended by Border Patrol, the girl was separated from the woman and put into the children's care system run by Health and Human Services. She was eventually released to her grandmother, and the girl's mother decided that's where she'd remain the safest, leaving her and her grandmother to navigate the court process themselves.

But even in more typical cases -- like those of young teens who make the trek to the US themselves, turn themselves into a Border Patrol agent and eventually are released to a relative -- the court process can take years.

When a child is apprehended at the border, they are turned over to HHS and eventually, in about 90% of cases, settled with a relative or family friend. They then are called to appear in immigration court for a "master calendar hearing," the kickoff of their court proceedings.

Many of those children are likely to get a continuance from the judge to allow them time to find a lawyer, apply for asylum or apply for some other visa that protects children. Some, though, may have a hearing date set within a year to resolve their claim.

The process is a maze. For children, by law, asylum applications go to the Department of Homeland Security first, even as the Justice Department-run immigration courts consider whether to deport them. There are other visas, like the Special Immigrant Juvenile visa for neglected or abused children, that can send the kids to DHS and state courts. All while the immigration court continues to weigh whether or not to deport them.

Traditionally, many judges have granted the kids' extensions in court to see their other applications through to completion. The process can take years in some parts of the country where the backlogs are higher.

The Trump administration, though, has started opposing continuances for what they consider outside matters, pushing judges to not grant them.

During one master calendar hearing observed by CNN in Arlington, Virginia, on Thursday, Immigration Judge John M. Bryant in a span of about 45 minutes checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.

In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in, despite the objections of the government attorney. One child, a boy named José who had just finished ninth grade, was there for his second check-in. His full asylum hearing received a court date of May 11, 2021 -- likely to be just as he is finishing high school in the US.

The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and his father, though Rodolfo's case was being heard by itself. The judge and Rodolfo made small talk about kindergarten through an interpreter before his case was continued. "Hasta luego," Bryant told Rodolfo, giving him a next court date in May 30 2019.

Experts like Young and Benson have long opposed the idea of children being able to represent themselves. Benson has resources on her group's website designed to help attorneys understand the complex peculiarities of children in immigration court. The manual on asylum -- designed for attorneys -- is 120 pages. The manual on the SIJ visa is 85. Many children may be eligible for both.

"It is a system on paper that looks like it gives opportunity to children to seek protection in the United States, but the reality of that system is daunting even for well-trained lawyers, let alone for the children themselves," Benson said.

Benson described working with kids who got up at 4 am or earlier to catch a bus or a ride to a far away immigration court. She's witnessed confused parents and relatives pleading with a judge to accept their filled-in asylum application, as the judge patiently explains to them they need to send the lengthy questionnaire to a completely different government agency via a post office box in Chicago.

Regardless of age, children in asylum hearings must answer questions like where they are from, why they are afraid to return and state the justification for their claim. Recent moves by Attorney General Jeff Sessions have only set the bar higher for immigrants to justify their asylum claim, placing the burden of proof and legal argument even more squarely on their shoulders.

And the children are not always forthcoming. Benson described an intelligent, "bright-eyed," pig-tailed 8-year-old she worked with, who showed no signs of trauma. After some time, she revealed her mother's boyfriend had been assaulting her before she moved to her aunt's home. Her aunt had no idea. The girl qualified for a visa a few years later.

Young described witnessing a 5-year-old in Baltimore Immigration Court with no lawyer.

"She was clutching a doll, she couldn't see over the microphone at the respondent's table, and she couldn't answer the questions, she was afraid," Young said. "As she was done, (the judge) asked in Spanish what the name of her doll was, and she answered 'baby, baby doll' in Spanish. And that was it."

The case had a happy ending -- the judge pointed the girl to Young's colleagues and she received a visa two years later.

"I asked my attorney what it was like to work with her and she said, 'Well, it took a lot of candy and a lot of Play-Doh,'" Young said.

As more children flood the system as a result of the administration's family separations, Young fears what could result. She is especially concerned about the administration's push to repeal laws designed to protect children -- "as imperfect as they are" -- over what officials say are the "loopholes" they create in the system that attract immigrants to come into the US illegally.

"I fear that one of the insidious agenda items here is for the administration to jettison the protections ... all the policies and procedures we built up over the years to protect the children in the system," Young said. "We were starting to get there and then under this administration -- a system that has taken us 30 years to build, it's taken them three months to tear down."

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