Teenage Immigrants Are Being Denied Asylum Because They Have No Right to an Attorney
Those who have a lawyer are five times more likely to be allowed to stay in the US, meaning access to legal aid can be the difference between safety and deportation.
Manuel Portillo fled El Salvador's gang violence at age 16, traveling to the United States like thousands of other unaccompanied minors to seek asylum. But when the time came for Portillo to argue his asylum case in court a year later, he says he couldn't find a lawyer to represent him pro-bono. He'd heard rumors that immigration officers would deport him if he showed up in court, so out of fear, he simply didn't go.
Instead, he "continued living normally" in Austin, Texas, where his parents had come years earlier to make money to send back to El Salvador. He went to classes for his senior year of high school, worked part-time as a cook in a local restaurant, and played soccer in his free time.
Then, one night this January, while driving home from a friend's house, a police officer pulled him over. Portillo, who is now 18, didn't have a driver's license because he's undocumented, so he was taken to the police station.
"When I saw a judge later, he said I just had to pay a fine because of the license—but then he said I'd have to go into the hands of immigration officers," Portillo told me. Because he'd missed his court date, he was placed in South Texas' Pearsall Detention Center for eight days before officials transferred him to Rio Grande Detention Center on the border with Mexico. There, an officer told him he'd be sent back to El Salvador.
The whole mess could've been solved with legal assistance—but at the time of his court date, Portillo, like nearly half of immigrant youths who enter the country, had no attorney to argue on his behalf. Between 2014 and 2015, 49 percent of minors in immigration court had no legal aid, according to data compiled by the American Immigration Lawyers Association. Out of 84,174 juvenile cases filed in that period, a whopping 41,457 of those cases were unrepresented. And since those who have a lawyer are five times more likely to be allowed to stay in the US, access to legal aid can be the difference between safety and deportation.
With the surge of asylum-seekers entering the United States from Central America due to skyrocketing murder rates and gang violence in El Salvador, Honduras, and Guatemala, the government is paying new attention to the issue. In late February, House Democrats proposed the Fair Day in Court for Kids Act, a bill that would ensure legal counsel for immigrant youths. (No votes on the bill have taken place yet.)
"We are talking about children running for their lives in many instances," one of the co-sponsors of the bill, Rep. Luis Guitierrez, said in a press release about the bill. "We need to make sure they have access to a lawyer, translator, and a fair chance to navigate the American legal system so that they can get justice if they qualify for asylum and are fighting deportation."
The Department of Justice's Executive Office of Immigration Review (EOIR) is also expanding legal services for unaccompanied minors, according to Lou Ruffino, a spokesman for the agency. Ruffino cited the justice AmeriCorps program, which provides funding for attorneys representing unaccompanied minors, and a legal orientation program for guardians of unaccompanied minors. As of March, Ruffino said the agency had already seen an increase in legal representation, with 61 percent youth cases now having attorneys.
"We need to make sure they have access to a lawyer, translator, and a fair chance to navigate the American legal system so that they can get justice." — Rep. Luis Guitierrez
But the 39 percent of youth who still can't access an attorney pay a big price. Karen Lucas, Associate Director for Advocacy with the American Immigration Lawyers Association, emphasized that the "consequences are tremendous" when kids have to defend themselves.
"We see a lot of kids who do not understand the process, and it has a great impact on their ability to access asylum," Lucas told me, citing statistics compiled by AILA that show 89.2 percent of kids deported in the past two years had no attorney.
The most common reason for their deportations, Lucas said, was failure to show up in court—often because they never received notice of the hearing in the mail. Lucas noted "numerous documented cases where kids received inadequate notices of hearings, or information was not updated on a court hotline, or a hearing was scheduled far away from where they lived."
Portillo, who was 17 when he skipped his hearing, was nearly sent back to El Salvador without ever making his case for asylum. But then, just a few days before his scheduled deportation, he got very lucky: A pro-bono attorney stepped in and filed a motion to reopen his case, arguing he lacked due process since he never had legal counsel. A judge granted the motion, and Portillo was released on bond, according to his attorney, Jacqueline Gurany.
"Manuel actually has a very strong asylum claim. He lived with [his] grandmother in an area dominated by gangs, [which] start to recruit boys at age nine or ten in the neighborhood," Gurany told me. "He also had an uncle who had been in a gang and wanted to completely renounce his involvement. Because of that, the uncle was targeted and higher level gang members told Manuel they'd target him too. The members shot and seriously injured the uncle, and when he went to the hospital, they tried to break into the hospital room to finish off the job."
If Gurany hadn't stepped forward, the details of Portillo's story would have never surfaced in immigration court—just as they don't for thousands of young people.
As for Portillo, he's been returned home to his family in Austin, where he's now working with Gurany to prepare his case for asylum. "I'm surprised Jacqueline [Gurany] helped me—and I'm so happy to have the opportunity to be here," he told me, settled in on the living room couch, "and I'll keep fighting to stay."
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