Immigrant advocates, judges warn against fast-tracking border screenings

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A top federal immigration judge joined immigrant rights advocates on Friday and urged President Obama to take greater steps to guarantee legal protections for migrant families crossing the southern border.

The Obama administration, in recent months, has tucked hundreds of Central American children and parents into detention centers with the idea of getting them processed — and out of the country — as quickly as possible. Both the ongoing detentions and the front-of-the-line legal strategy are designed to deter a new wave of arrivals.

But Dana Leigh Marks, who heads the National Association of Immigration Judges (NAIJ), warned Friday that the recent migrants — especially the kids — are special cases demanding special handling. Marks said the focus on speedy processing may come at the expense of the legal protections designed to ensure their well-being.

"We know of the political reality that is putting pressure on the administration to queue these cases quickly," Marks said on a press call. "And yet, from a judge's point of view — apart from politics ... there are many challenges that we face in these cases that make them more likely to go slowly rather than quickly."

Aside from the obvious barriers of culture and language, Marks argued, legal authorities also have the difficult task of making the kids comfortable enough to relate their experiences accurately.

"We have to create an atmosphere of trust for the court to proceed effectively," she said.

Brian Moran, an attorney with the Paul Hastings firm, said it takes months to win that trust and gain enough information from the kids to make a sound determination about their ultimate placement.

"It takes awhile to get their story," he said. "Number one, they're children. They don't tell us stories in the chronological way that adults might. They're not cognizant of the legal principles that are important to us."

Putting kids on a fast-track, Moran warned, "[is] really impossible to do." 

Stephen Manning, an immigration lawyer working pro bono with migrant families at a federal detention facility in Artesia, N.M., listed a series of grievances with the system. Among them, many migrants are being deported without ever having legal representation, he charged, and the few lawyers working with the families haven't been able to advocate for their clients or call witnesses. 

"The system isn't set up here to be fair," said Manning, a Portland-based partner with Immigrant Law Group PC.

While much of the media focus surrounding the border crisis has centered on the arrival of nearly 60,000 unaccompanied children since October, tens of thousands of families have also entered the U.S. over that span.

And while a 2008 human trafficking law ensures that the unaccompanied children go through an extensive screening process, the same is not always the case for the families, according to Michelle Brané, head of the Migrant Rights & Justice Program at the Women's Refugee Commission.

"For children who are accompanied by their parents ... they are immediately placed into expedited removal proceedings, and only if they are able to articulate a fear — and [are] screened in by Customs and Border Protection to receive a full interview — do they receive one," she said.  

Aside from the facility in Artesia, the federal government has also established family detention centers in Karnes City, Texas, and Berks County, Pa. And while there was once the possibility of the immigrants being released during their screenings, the administration is now holding the detainees throughout the process, Brané said.

"All of these facilities are holding these families throughout the length of their proceedings, and it has been made very clear by the administration that they are being held there for the purpose of deporting them," she said. "The policy of the administration has been to say that there will be no releases from these facilities until the conclusion of their case."

Both chambers of Congress last week considered legislation to address the border crisis, including new funding to increase the number of immigration lawyers and judges managing the new arrivals. Neither bill went far.

The $2.7 billion package proposed by Senate Democrats won a simple majority but fell far short of the 60 votes needed to defeat a GOP filibuster. The $694 million bill championed by House Republicans passed Aug. 1 on a largely party-line vote, but it has no chance of becoming law in the face of Democratic opposition in the Senate and White House. 

Marks said she was on Capitol Hill last week pressing appropriators in both the House and Senate to hike the funding for new judges "so that all cases can be heard in a timely manner."

The administration is calling for 40 new immigration judges at the border, but NAIJ wants to increase the number by 75 each year over the next three years — the same boost called for in the comprehensive immigration reform package passed by the Senate 14 months ago, Marks said.

"Our solution to this problem is giving enough money to the system so that everybody's case is heard in a timeframe that we feel is fair," she said.