[Congressional Record Volume 160, Number 117 (Thursday, July 24, 2014)]
[House]
[Pages H6797-H6798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHILDREN ARE A VULNERABLE POPULATION
(Ms. LOFGREN asked and was given permission to address the House for
1 minute and to revise and extend her remarks.)
Ms. LOFGREN. Madam Speaker, in this country, we have reached the
consensus that victims of human trafficking should be provided help.
That consensus was north-south, east-west, conservative-liberal, and
Democrat-Republican. Human trafficking victims need protections.
Now there is a discussion of truncating that protection, and we must
say that would be wrong. We know especially for child victims that
special care must be taken to elicit the facts of what has happened.
And the idea that we would short-circuit that process for children who
are human trafficking victims at our border is unconscionable.
Now we have received a letter from the National Association of
Immigration Judges telling us the ground truth: that special care must
be taken for child victims. These are not the same as other cases.
I include for the Record a letter from the National Association of
Immigration Judges.
National Association of
Immigration Judges,
San Francisco, CA, July 22, 2014.
Hon. John Boehner,
Speaker,
House of Representatives.
Hon. Nancy Pelosi,
Democratic Leader,
House of Representatives.
Re Special Concerns Relating to Juveniles in Immigration
Courts
Dear Speaker Boehner and Democratic Leader Pelosi: The
National Association of Immigration Judges (NAIJ) is a
voluntary organization formed in 1971 with the objectives of
promoting independence and enhancing the professionalism,
dignity, and efficiency of the Immigration Court. We are the
recognized collective bargaining representative of the fewer
than 230 Immigration Judges located in 59 courts throughout
the United States.
Our nation's Immigration Court system is currently facing
an unprecedented surge in the numbers of unaccompanied minors
who have presented themselves at our southern border seeking
shelter. As you and your colleagues consider how to address
this complex and urgent situation, we would like to offer our
expertise to help inform your decision-making. The opinions
provided here do not purport to represent the views of the
DOJ, the Executive Office for Immigration Review or the
Office of the Chief Immigration Judge. Rather, they represent
the formal position of the NAIJ, and my personal opinions,
which were formed after extensive consultation with members
of the NAIJ.
In the legal arena, it is universally accepted that
children and juveniles are a vulnerable population with
special needs. Since the passage of the William Wilberforce
Trafficking Victims Protection Reauthorization Act (TVPRA) in
2008, Congress has codified special provisions such as non-
adversarial adjudication of unaccompanied children's asylum
claims and, to the extent practicable, access to legal
services through pro-bono representation. The law recognizes
that these children are especially vulnerable to potential
human trafficking and abuse. From the perspective of
practicalities, because of their vulnerabilities and lack of
full competency, Immigration Court cases involving children
and juveniles must be conducted in a different manner than
those of adults. Immigration Judges are charged with assuring
that those who come before them understand their rights and
responsibilities under governing law. For minors, it can be
especially challenging to effectively communicate the
complicated nuances of our law and the possible remedies
which may be available to them. Immigration judges are
trained to alter their demeanor and lexicon to adapt to the
more limited life experiences and understanding of minors,
but that alone is not enough. The judge must carefully gauge
the response they receive to be sure that the minor truly
understands what he or she is being told, rather than
feigning compliance in order to please the judge as an
authority figure.
Judges must assure that a minor is put at ease in an
inherently stressful and unfamiliar setting. These
precautions are not solely for the benefit of the minor, but
are a practical necessity for a judge in order to obtain the
information necessary to arrive at a fair and accurate result
based on a true understanding of the child's situation. To do
[[Page H6798]]
so, an atmosphere of trust must be established, and a rapport
developed which assures that the minor is both emotionally
able and psychologically willing to discuss issues which may
be embarrassing, shameful or traumatizing. In order to
accomplish this, a judge frequently has to take more time
than in the case of an adult to make the child feel
sufficiently safe so as to fully participate in the hearing.
This often involves multiple hearings, so that familiarity
with the people, location and general process can ease
tensions and inspire confidence.
Because many of the juveniles we see in proceedings come
from countries where governmental authorities are corrupt or
pose a danger to them, Immigration Judges need to be
particularly aware of the environment in which their hearings
are conducted, so that their neutrality and independence is
clearly demonstrated, enabling a minor to address difficult
issues without fear or a feeling of futility. We must go to
great lengths to create an courtroom environment where our
hearings are not perceived as coercive. Frequently we find
that both children and adults who appear in Immigration Court
do not understand the difference in the roles of the
government trial attorneys and judges, and even when provided
pro bono counsel, assume that everyone associated with the
proceeding functions as a prosecutor or law enforcement
official. At this early stage some of our judges have
reported concerns about the lack of quality of interviews
that have resulted in ``negative credible fear'' findings and
summary deportation orders at the border. For all these
reasons, it is particularly important that Immigration Judges
be the ones charged with making these crucial determinations,
rather than Border Patrol agents.
The complexity of a judge's job is increased exponentially
due to the language and cultural differences which we
routinely encounter, as well as the limitations upon minors
who are not represented by attorneys. Under governing
regulation, children under sixteen without responsible adults
to help them cannot accept service of the charging documents
which initiate removal proceedings, and those under fourteen
without a responsible adult cannot enter pleadings to those
charges. In addition, in the vast majority of cases, the
burden of proof to demonstrate eligibility for relief rests
on the minor, even though their ability to gather the
evidence necessary to support their claim--whether it is
personal documentation, general country conditions
information or expert opinions--is greatly reduced because of
their age. In many cases, the lack of corroborating evidence
may be fatal to a claim for relief from removal. This is even
more true for a child's case, since their ability to provide
clear, consistent and detailed testimony that could support a
claim without corroborating evidence may be compromised by
their age.
All these factors lead inexorably to the conclusion that
removal proceedings regarding juveniles should not be subject
to strict time constraints regarding scheduling or decision-
making. Judges need the ability to tailor the time frames of
various aspects of the proceedings to the emotional, physical
and psychological state of the individual in court. The
ability to find local counsel or obtain supporting evidence
and documentation can vary significantly depending on an
individual's age, mental capacity and custodial
circumstances.
The adage ``haste makes waste'' is apropos to the context
of these cases, because speeding up or truncating the process
creates an unacceptably high risk of legal errors which
directly lead to higher rates of appeal. Rather than making
the process move more quickly overall, the opposite occurs as
appeals cause a backlog and delay at the higher levels of our
court systems, which in turn, drives up the fiscal costs of
these proceedings. This effect has been proven by past
experience when proceedings at the Board of Immigration
Appeals were ``streamlined'' only to result in an outcry from
the federal circuit courts and harsh criticism of the lack of
proper records for them to review, resulting in remands
rather than resolutions. Similarly, bypasses to Immigration
Court proceedings such as expedited removal proceedings have
been subject to serious criticisms by neutral observers,
including the U.S. Commission on International Religious
Freedom and United Nations High Commissioner on Refugees. In
this situation, the concern is not that ``haste makes
waste,'' but that hasty decisions could result in loss of
lives or limbs, by deporting individuals to a country where
they face persecution.
It is our experience that when noncitizens are represented
by attorneys, Immigration Judges are able to conduct
proceedings more expeditiously and resolve cases more
quickly. Judges have found that cases with legal
representation generally 1) reduce the number and length of
proceedings for benefits for which individuals are
ineligible; 2) generally require fewer continuances for
preparation (including when applications must be processed
with other agencies); 3) obviate appeals based on a lack of
understanding regarding legal rights or concerns about
fairness; 4) take less hearing time for judges because they
are better researched and organized; and 5) tend to reduce
the number of futile claims which utterly lack a basis in the
law. Because of those and several additional reasons why
attorneys are beneficial to our process, allowing judges to
grant reasonable requests for continuances, based on their
knowledge of the local availability of low fee and pro bono
counsel, ends up being the most time-efficient approach.
A due process review of the fundamental fairness of any
proceeding requires consideration of three distinct factors:
first, the nature of the private interest affected; second,
the risk of an erroneous deprivation through the procedures
used and the probable value of additional or substitute
procedural safeguards; and finally, the fiscal and
administrative burdens that those additional or substitute
procedural requirements would place on the government.
Immigration Judges are in the best position to guarantee due
process, while at the same time efficiently and fairly
conducting removal proceedings. However, to do so, they must
be given the flexibility to balance the needs of the
individual appearing in court with the interests of an
expeditious adjudication based on the unique situation
presented in each case. Rigid deadlines hamper rather than
enhance that ability, and artificial constraints on the time
necessary to fairly adjudicate cases will likely promote
litigation, rather than resolve individual cases. For all
these reasons. NAIJ strongly opposes the proposed
implementation of a seven-day adjudication time frame for
these cases.
With the proper allocation of resources to allow the hiring
of sufficient Immigration Judges and support staff to assist
them, we would be able to schedule all hearings within
appropriate time frames. Justice would be served and legal
challenges to individual outcomes reduced. While the need to
address the surge in juveniles is seen as paramount now, the
overall context of this crisis cannot be overlooked. As of
today's date, there are only 228 full time Immigration Judges
in field offices, handling a nationwide caseload of more than
375,500 cases. The average time to decision nationally has
now climbed to 587 days. The unfortunate and ironic fact is
that with long delays, people whose cases will eventually be
granted relief suffer, while those with cases which will
ultimately be denied benefit. Individuals with ``strong''
cases are trapped in limbo inside the United States while
family members abroad become ill and die, family members who
can provide them with eligibility for an immigration benefit
die, and their claim for relief becomes stale by the passage
of time. Conversely, those individuals who do not qualify for
benefits, or who have adverse discretionary factors making
them undeserving of legal status are allowed to remain for
years, possibly accruing eligibility for relief, while their
cases are pending.
We believe that the totality of this situation deserves
your immediate attention, so that fairness and balance can be
assured to all who appear in our nation's Immigration Courts.
If the general needs of our entire caseload are sacrificed to
address the short term crisis, we fear that the overall
reputation of the Immigration Court system will be damaged
unnecessarily and irreparably.
Of course, if we can provide any additional information or
answer specific questions you may have, please just let us
know.
Very truly yours,
Dana Leigh Marks,
President.
____________________