[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.

                          ____________________