How's this for a conundrum: A teenage boy identified in court documents as S.R.I.C. was being pressured by gang recruiters in his native Guatemala, but he kept refusing to join. When one gang member sliced his leg as an inducement and other gang members threatened to kill him and the rest of his family, S.R.I.C. fled to the U.S., eventually joining his father, a lawful permanent resident on the path to citizenship, in Los Angeles.
Did S.R.I.C.'s experience in Guatemala qualify him for asylum? Maybe, maybe not. That decision is up to an immigration judge. But S.R.I.C. had more options beyond seeking asylum as he faced a deportation hearing nearly two years ago. Since his father was soon to become a U.S. citizen, he could wait to apply for legal status as a family member – though he would have to do that from outside the country. He also could apply for a waiver. But he had to decide quickly which path to pursue. Once he turned 18, if he remained in the U.S. more than six months after his birthday, he would lose the chance to get legal for several years.
Complicated? Very. And when the result of the immigration court fight is potential deportation to the place where he feared he would be killed, the stakes were high for S.R.I.C. Yet under immigration law, S.R.IC. and other minors, from infants to teens, facing deportation do not have a right to a lawyer, which meant the impoverished Guatemalan native, who had no knowledge of how the U.S. immigration court system worked, would have to face off alone against an immigration prosecutor trained in the byzantine immigration codes.
The ACLU and other immigrants' rights groups went to bat for S.R.I.C. and other minors, but a 9th Circuit Court of Appeals ruling this week bounced the case, despite clear sympathy from the court. The issue was procedural – the plaintiffs, the courts ruled, had to go through the immigration court system first, though the plaintiffs had argued that system wasn't designed to entertain their claims to a right to a government-appointed lawyer.
The clearest and fastest solution, Judge M. Margaret McKeown argued in an unusual concurring opinion, is political, and "to protect the interests of children who must struggle through that system, the problem demands action now."
The courts may eventually address the right to representation, she wrote, but it shouldn't have to.
"I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings," McKeown wrote. "While I do not take a position on the merits of the children's constitutional and statutory claims, I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve — political solutions that fall outside the purview of the courts."
The surge of unaccompanied minors at the Mexican border overwhelmed the immigration court system, she said, even prompting the government to describe the situation as a "humanitarian crisis." The government has added money to private-sector and pro bono programs, and increased the number of judges and support staff, but the task still exceeds the capacity, to the detriment of justice, let alone fairness.
"These programs, while laudable, are a drop in the bucket in relation to the magnitude of the problem — tens of thousands of children will remain unrepresented," McKeown wrote. "A meritorious application for asylum, refuge, withholding of removal or other relief may fall through the cracks, despite the best efforts of immigration agencies and the best interests of the child."
As for S.R.I.C., he eventually found a lawyer who identified a path for him based on family relief, and the government dropped the deportation case to give him time to pursue it through the Citizenship and Immigration Services. His case stands as evidence of why providing lawyers to minors, especially, facing deportation is crucial. A study two years ago by Syracuse University's Transactional Records Access Clearinghouse found that three of four unaccompanied minors represented by lawyers won permission to remain in the U.S., compared with 15% of those facing the court alone.
Uncalculated is the amount of injustice done to deserving but unrepresented minors returned to risky environments when they could well have had a legal right to stay in the U.S. – if only they had someone to make the right arguments for them.