While the political debate over the status of undocumented immigrants continues, a group of law firm, public interest, corporate and government leaders met on August 6 at the White House to discuss how best to protect the human rights of children and families who have arrived at our borders fleeing violence in Central America by assuring that they have legal counsel.
As leaders of law firm pro bono practices, and members of the Association of Pro Bono Counsel (“APBCo”), we know that private law firms play an important role in delivering legal services to this vulnerable population under the guidance and leadership of the public interest law community. Indeed, we estimate that the nearly 100 firms with APBCo members provide, on average, more than 6,000 pro bono hours per year to immigrants – including refugees seeking asylum, immigrant women needing protection from abusive spouses, and unaccompanied children fleeing abuse, abandonment or neglect.
But now the crisis of children alone at our borders requires more. It needs innovation and coordinated, rejuvenated resources from every direction - legal services organizations, law firms, corporations, and government.
Volunteer lawyers need the mentoring and training of excellent non-profit public interest organizations, like Kids In Need of Defense (KIND), National Immigrant Justice Center, Esperanza, and Human Rights First, to name a few. These and similar organizations identify immigrants in need, screen cases, and train and mentor volunteer attorneys through every step of the representation. This work requires funding, and while law firms can and do donate to these organizations, the government must do more to support the legal services infrastructure that guarantees that due process protections are afforded to everyone in the immigration system.
This influx of families and children requires more than the usual case referral, though. We all – legal services organizations, law firms, corporations, government – must work together to develop common-sense innovations that will allow the process of evaluating claims to proceed more efficiently and effectively. This crisis cannot be resolved by pushing tens of thousands more cases through already overburdened and underfunded immigration court and state court systems.
The immigration courts have taken the important step of establishing “children’s dockets,” allowing judges and prosecutors to develop expertise in working with unaccompanied immigrant children. Still, this system can work better. DHS prosecutors should be required to meet and confer with counsel for these immigrants to determine whether a full court hearing is necessary, or whether the case can be resolved in whole or in part out of court. Federal civil courts require parties to engage in this “meet and confer” process, limiting the burden on the courts. The immigration courts should also allow “limited appearances,” where appropriate, so that lawyers can appear on behalf of a child or family for one hearing without being obligated to follow the case until the end.
The immigration courts do need to move cases efficiently. But pro bono lawyers cannot be expected to handle cases that are sped through the system on “rocket dockets” requiring unreasonable and arbitrary case completion dates that deny the individualized attention that due process demands. Volunteers must first be trained in this specialized area of the law, and then will need time to evaluate their clients’ claims and help them prepare for hearings.
State courts should follow the lead of the immigration courts by creating “unaccompanied children’s dockets” to hear the dependency claims that underlie an immigration remedy known as “Special Immigrant Juvenile Status” or “SIJS.” Consolidating SIJS dependency proceedings in a single docket within a court will allow the proceedings to move more efficiently, perhaps enabling a handful of attorneys to represent the children in these proceedings.
We surely have no monopoly on good ideas to help alleviate the backlog of cases caused by the influx of families and children fleeing violence in Central America. Innovation requires all of us rolling up our sleeves together – the courts, the Department of Homeland Security, non-profit legal services organizations, and the bar. And the administration and Congress must work together to find the funding so that non-profit legal services organizations can put these innovations into practice. Increased innovation and resources will help us chart a path through this challenge together, in a way that makes our nation proud of how we treated the families and children fleeing violence in Central America.
Schulman is the president of the Association of Pro Bono Counsel (APBCo) and the pro bono partner at Akin Gump Strauss Hauer & Feld. Lash is a board member of APBCo, and managing counsel for Pro Bono and Public Interest Services at O’Melveny & Myers. Vigil is a founding board member of APBCo, and director of Pro Bono and Community Service for North America at Baker & McKenzie. The views expressed are the personal views of the authors and do not necessarily reflect those of their associated firms.