Arriving Alone: Legal Aid for Detained Immigrant Children

Katya Valasek:

We're joined today by Angelique Torres, a lawyer at a legal aid nonprofit focused exclusively on immigration. Let's start with legal aid as a concept. Can you put that term into context for someone who isn't familiar with it?

Angelique Torres:

Legal aid is an expansion of access to justice for those who don't have the financial means to pay a private attorney. It's surrounded by services, mainly family restraining orders, divorce, housing, public benefits, and immigration services.

Katya Valasek:

So, you said that this is a resource or point of access to legal counsel for people who don't have funds to hire an attorney on their own. So where does the funding come from? Who pays you for the work that you do?

Angelique Torres:

It's different for each legal service provider. When I worked in the past, for one, it was grants from the state. However, the current position I am in is a not-for-profit organization not associated with any state agency, but we received federal funding from the government, specifically the Department of Health and Human Services, to provide know your rights presentation and legal screenings to kids who are detained in government custody.

Katya Valasek:

And the focus of your work, is that driven by your funding sources?

Angelique Torres:

Absolutely. It limits our ability to provide certain services to the children. There is a clause of mandatory representation for voluntary departure.

So if a child says they do want to go back, we automatically have to trigger that and say, we will represent you in that. All the other reliefs that they could apply for would be discretionary for us to offer that to them, but we still do.

Katya Valasek:

So coming into law school, was your goal to find a job in legal aid?

Angelique Torres:

Yes. I always knew legal aid was my path. I knew that I wanted to be the voice of the most vulnerable populations in Connecticut.

I always knew Connecticut was going to be where I landed. It's where I'm from. I teetered here and there with the type of law I wanted to do, just because emotionally, immigration is such a toll.

I always knew I wanted to do it, but in law school, I'm like, maybe I don't. Maybe that's not it. But I did the clinic there and had real cases in immigration, and I was like, okay, this is definitely what I want to do. Legal aid was definitely where I was going to land.

Katya Valasek:

So now let's talk about your legal aid organization. It's called KIND, and your client is right there in the name, Kids in Need of Defense. Before we talk about your clients, how big is your office?

Angelique Torres:

Our office is pretty expansive, not just within the United States. We do other services in Europe and Central America as well.

Katya Valasek:

How about your specific office?

Angelique Torres:

My specific office is pretty unique, as right now, we are the only office with a detained service. So, we are the only ones representing detained kids in custody. Of course, there's kids released in the community living with family now, but we are the only ones representing the kids in custody.

Katya Valasek:

Who are the kids that are your clients?

Angelique Torres:

We strictly represent unaccompanied children. So, I will probably reference them as UACs or UCs, but these are children who come to the border or a port of entry under the age of 18 and came without a legal guardian or parent. So according to the Trafficking Victims Prevention Reauthorization Act that Congress passed in 2008, if a child is at a port of entry or the border alone, we take custody to prevent trafficking. And by we, I mean Border Patrol or ICE.

Katya Valasek:

Trace for me how they connect to you once they are detained at the border.

Angelique Torres:

So, once they're detained and they are taken into custody, by law, they stay at maximum in ICE custody for 72 hours. At that point, ICE would transfer custody to the Health and Human Services Department under the Office of Refugee Resettlement. I would say ORR, Office of Refugee Resettlement, has contracts around the United States to shelters or different programs that house the children.

So once the child gets transferred, it's a lottery system. I don't think there's a way to know why a kid is in Connecticut versus the shelter in New York or in New Jersey. But once they're in Connecticut, the case managers that are assigned the cases at the shelter will call us as the legal service provider to give a “Know Your Rights” to the child along with the legal screening and offer services if they wish to pursue anything.

Katya Valasek:

Where are you meeting with them initially? Are you going to the shelters?

Angelique Torres:

We are. Currently in Connecticut, there's a long term foster care program for the children. So, they don't necessarily live in a shelter setting, but there is a facility point of contact where we do meet them.

Katya Valasek:

What have you found is one of the best ways you can get one of these children to open up to you and start to share their stories?

Angelique Torres:

I think, honestly, just being honest with them and giving them the information they need and just say, like, you have all the information to make a decision on your case. We never pressure them to make a decision, even though we hope they would make a decision. We do represent their expressed wishes. So, if they wish to go back, we would honor their wishes, of course.

Katya Valasek:

It sounds like what you're saying is that voluntary departure is one of the ways that their case can resolve. But you said you always follow their wishes. So, what are the other avenues for resolution?

Angelique Torres:

So for humanitarian relief, which, you know, defense work that we do, we represent them, they are defendants per se in court, is special immigrant juvenile status, asylum, T visas, U visas, and family petitions although that's very rare with these kids because they usually either don't have family here or the family that they do have don't have status either. I've had a rare case where a mom was already a green card holder, which she can petition for her kids at that time.

Katya Valasek:

Yeah. As you're having conversations with your clients, they're telling you about their experience, you're building trust. How do you explain to a child the legal implications of their different options?

Angelique Torres:

It's very hard and each time is very different because you have to take the kid where they are. We've had kids with some disabilities. I have a current client who is mute and deaf.

You just have to figure out where they are. And then going over each relief is very hard because specifically most of the kids do qualify for special immigrant juvenile status. And that's for children who have been neglected, abused, or abandoned by their parent.

But it's also using like Connecticut law to determine what neglect and abandonment and abuse is. We're saying like that's educational neglect. But of course it's their parent and they're like, I'm not going to speak bad about my parents.

So I don't want to do that. And we try to navigate like nothing will happen to them. You're not speaking bad. It's just the circumstances of you in Connecticut, the status of the child, were you neglected or not? It's not whether your parents are terrible people neglecting you. Sometimes we do have conversations with parents in home country and having, you know, together whether the goal is they do want to stay, they're eligible for this, but they don't want to speak bad.

And, the parents usually are okay with it. And then at that point, the child is okay. It's just very hard to navigate that because sometimes we don't always have the number to parents in home country.

They don't have service. You can't always have that conversation, but it takes going back and forth and then re-evaluating their goal. Like, do you want to stay in the US or not?

If you're not ready for it, we understand, but this is the only way to do it. But it can take months, honestly, to get them to understand the implications, why they're eligible for something, how to do it, especially for SIJ, which is Special Immigrant Juvenile Status. You have to go to state court first and then send that order to USCIS, which is United States Citizenship and Immigration Services.

But the child thinks you're automatically going to immigration court and that's not it. State court is completely different and it's very hard to navigate.

Katya Valasek:

Yeah. So you mentioned that for Special Immigrant Juvenile Status, you're going to need to go to state court first. Is the legal process the same for the other options as well or does it vary depending on what you're pursuing?

Angelique Torres:

No. SIJ is a very unique relief. I think when Congress was creating SIJ as a form of relief, they realized, okay, we're not going to touch family law.

That's up to the states to do that. So I think that's the reasoning we do have to go to state court to get those orders. However, with asylum, T visa, U visa, it is strictly federal law there.

So we go straight to USCIS or bring it up as a defense if they're in immigration court.

Katya Valasek:

And is it just the type of relief that's being sought that determines the path that you'll take with your clients?

Angelique Torres:

We try to determine which path they want. For example, like a T visa, you can petition for family members, whereas for SIJ, it's only for the child. It's status.

The child can never petition for a parent, which makes sense because you're saying that they neglected you. But T visa opens up that option to have dependents or to petition for someone else.

Katya Valasek:

So, we've talked a lot about how you connect with your client, the child directly. You also mentioned that you will sometimes connect with their parents if you can. Where else are you looking to build the record?

You mentioned caseworkers. Are you getting information from them?

Angelique Torres:

Yes and no. So the caseworkers do, they're like subcontractors of Office of Refugee Resettlement. So we limit information since they do technically share information to the government about the child.

But there are organizations out there. For example, there's the Young Center, which is an independent organization that is a child advocate. So we technically refer the child there if we think they need a child advocate.

This is a third party that could file appearances in court and offer best interest determinations for the child to the judge or in any other capacity for housing, or they could assist the child in some way. So we definitely use them as a resource, absolutely. And the difference is we always represent the child's expressed wishes, even if we think it's not their best interest.

Katya Valasek:

So where are you doing the advocacy? Are you making these arguments in writing? Are they oral argument in open court? Are they just in judges chambers?

Angelique Torres:

So, for the children, for example, if we start an SIJ case, we're creating the documents, we're doing the forms, getting an affidavit from the child under testimony and under oath. We file it in court in Connecticut for the detained kids. They don't necessarily have to appear at court for the state court process.

The state court does offer them another attorney, the Public Defenders for Juvenile. So that attorney is their voice, even though we filed it. So they technically, I guess, have two attorneys.

That attorney visits the child in the facility as well, gets to know them, make sure everything is accurate, there's no inconsistencies, and then asks them what they want. In court, they report what the child wants, everything is good. Usually, service is probably the biggest issue, making sure the parents are served, whether that's publication in home country.

Once the judge grants order and signs it, we do the form I-360. It's a USCIS form. Once we sign it, we just send it to the USCIS office, and then we wait for a decision on it.

Most of these are affirmative applications. I-360s always go to a USCIS office. Asylum, if we are doing an asylum case for unaccompanied children, they always go to an asylum office first.

That's one of the protections that UACs have. Instead of going to court, where the judge is going to say yes or no, they get two chances. They go to the asylum office, get interviewed.

If the asylum officer says, no, this is not asylum, then they get referred to court, and then we have a second chance at court to have a trial on asylum. As for U Visa, T Visa, it's the same, USCIS, and you just kind of wait for a decision.

Katya Valasek:

So, you gave two examples of someone else stepping into these children's orbit throughout the process. One was with the SIJ case where a public defender will step in, and then the other is at the asylum office where you said that they'll be interviewed again. I would assume that you at that point are prepping them that, again, there is an adult who's going to come in and ask you questions, and you need to be open and honest with them.

Do they typically trust you at that point to take your advice to heart?

Angelique Torres:

Yes. At that point, we've gotten enough information to even file an asylum application where we feel this is an application, this is not frivolous, this is a true fear of return to their home country. So, with us, they do feel, I think, trust.

However, at asylum interviews, attorneys do not speak. We are there to make sure their rights were not violated. So we do have to prep them extensively.

We have to do country conditions, which are basically pamphlets of supplemental evidence showing that police in that area where the child lives doesn't protect the community or the basis of the claim, whether it's gender violence or whatever, is prevalent in this area, just some supplemental evidence along with an affidavit for the child.

I have a story. One child, he's so shy, and he just asked me, do I have to speak at this interview? I'm like, you're only speaking at this interview. It's going to be between you and the officer. So we do have a prep ready for him.

The child may be responsible for bringing an interpreter themselves, which is interesting for asylum offices. They just don't provide that. So, depending on the language, it could be really hard.

Most of our clients are Spanish speaking. So we do have a volunteer list of great people who volunteered to just go to the asylum offices. So they are part of the prep as well, just in case maybe there's a dialect or accent issue that we know before the actual interview so that we know the information is being translated correctly.

So it's a lot of work prior to, but once the attorney's there, we take notes and maybe do a closing statement. But all of it is the child speaking.

Katya Valasek:

So that's interesting. So you're there. You're not supposed to speak.

You're there making sure that their rights are not violated. If that were to happen, would you then speak up and it would be on the record of that interview? Is that what would happen if something happened that you felt was a violation of your client's rights?

Angelique Torres:

Absolutely. And if it's referred to court, we can bring that up at court as well.

Katya Valasek:

So another line of work that happens in parallel to your efforts to get them granted legal status is habeas petitions. Can you explain what that is?

Angelique Torres:

A habeas petition is bringing a suit in terms of bringing the body to court or bringing the issue to court at our organization and others as well. It's not just other legal service providers around the U.S. They have taken up habeas petitions where the detention of the child has taken too long. They have a sponsor readily and available to receive the child.

I would say most of the kids are coming to the United States to reunite with a parent that maybe left when they were four years old, two years old, sent money home, but now the child is at an age where they want to be with their parent, which is a real and probably the most common scenario; that there's somebody in the U.S. that can receive them, whether it's an uncle, mom, or someone. Over the years in the past, it was very easy. Once they're at a shelter, they do a sponsorship application and then they get released to them.

And then their case kind of pursues that way, whether they get released in Connecticut or New York, their case will follow them and they would have to go to immigration court wherever they go. Now, there are new requirements for sponsors to have complete in order for the child to be released. And a lot of those requirements are just unreasonable in terms of, it's not the reality of the situation for these sponsors, whether it's having a U.S. I.D., which is very hard to get. Some are background checks of everyone who lives in the house, a lot of the times people live with other roommates and those roommates are saying, I will not do that for you. Once we do background checks, they do a home study. It's just involving a lot of risk for certain communities.

So, again, non-legal work, we do assist the sponsor in this application process, along with maybe bridging the gap saying we don't represent you, remember, we're the child's attorney, but because the child wants to reunite with you, we'll help you, but again, should things become to a different level, we do not represent you, you need to find your own attorney.

Katya Valasek:

And so you said that you make clear if this process is being pursued that you represent the child and they have to get their own attorney. Do you help identify what I assume will be a pro bono attorney representing the family?

Angelique Torres:

We definitely do. We try to kind of put it on them as well, just to have that responsibility shift and for them not to blur the lines of our role. We'll give them a list.

If we have connections where they are, we will reach out ourselves to certain organizations saying we have this parent who's going through this process. Would you be able to represent them? We won't put a lot of resources into it. And I mean a lot, meaning like if we were actually filing something for a child versus this. But, as much as we can, we will try to find them an attorney.

Katya Valasek:

So, these habeas petitions are fighting the unlawful detention. It's not going to get your client out of their potential issues with being in the U.S. illegally. They still are going to have to go to immigration court, but it will get them out of detention.

Once the family members who are petitioning find their lawyer, are you able to share information with that lawyer to bring them up to speed with the circumstances of the child? Or do they have to build their record on their own?

Angelique Torres:

With the consent of the child, we can definitely share information with the attorney of record. They will still have to go to immigration court. This has nothing to do with their legal status in terms of the relief.

This is just about living with their parent.

Katya Valasek:

Yeah. Well, this is emotional work that you are doing on behalf of young clients who are alone. I imagine you must struggle with the feeling that there is a lot to do and not enough time.

Is that weight something you anticipated before going into practice?

Angelique Torres:

No, right out of law school, before going to any practice, absolutely not. And I will say, through my journey, because I've always had a legal aid position, and funding structures change, not only in my work currently, but in the past, it was always an issue as well. Like the grants and the funding, we don't have as much funding or money anymore.

So it pivots a lot. It pivots your caseload, the type of work you do. I do remember at one point previously in my past where the grants weren't there anymore.

And because it was certain state money, now we can't represent undocumented people in anything, whether it's divorce, restraining order, anything of that sort. So funding shapes legal aid work in all forms and services, whether it's immigration or not. And it will change the services you provide, your caseloads and everything.

Katya Valasek:

What does success look like for you?

Angelique Torres:

Within my cases and my caseload, I think they're all different. And it's based on what the child wants. For example, for the habeas petitions, we have this photo that was circulated with all the attorneys when the child was reunited with the parent.

And it's just a hug. And I don't think the child has seen their parent in, I wanted to say, four or five years. It was just so beautiful. And it's so inspirational. And I'm like, that is success. And other times, it's winning a case, getting an approved asylum or approved I-360.

Other times, it's getting their whole proceeding terminated in immigration court because of, let's say, lack of service. They weren't served correctly. So, terminate this case.

And if it's granted now, it would be a major win rather than back in previous years. But it's such a win in terms of just getting it terminated and buying time for the child, whether that's, they can either have a few moments to breathe and not go to court every two weeks on this, and just let them be a kid, or buying time in terms of they're going to a different program that would allow different pathways for their case. Instead of, you know if you're detained in government custody as a child, your case is expedited.

So every two weeks, you have court. Whereas if you're not detained, you go to a different program where you're considered released. Or if you live with a parent or you live outside the detention label, your case is much slower.

You won't have a case, a hearing for months. It's not every two weeks. So even that is success, getting them to a different program.