Between October 2013 and July 2014, 62,998 unaccompanied children crossed the U.S.-Mexico border, according to Customs and Border Protection. An estimated 10,000 of those children are being released to family members or sponsors in New York state, where they must appear before a judge (and opposite an Immigration and Customs Enforcement lawyer) to make their case for remaining in this country.
On August 22, a week and a half after expedited hearings began in New York’s federal immigration court, five teenagers were ordered back to their home countries after failing to show up for their initial hearings. These are the first deportations of the so-called “surge docket.”
Eleven children failed to appear before Judge Barbara Nelson on August 22, but only five were ordered to be removed, according to Eve Stotland, a volunteer lawyer who was in the courtroom.
“What was particularly surprising was that Judge Nelson ordered five of the children removed in absentia,” Stotland says. In preceding sessions, judges had rescheduled court dates for minors who failed to appear.
It’s the government’s responsibility to notify a candidate for deportation on his or her court date, but, advocates say, in the rush to schedule hearings for unaccompanied minors, its efforts have been sorely lacking.
“Children are not being alerted of their court date, or they are only being alerted of their court date a few days before, or they’re being alerted that they have a court date in Texas, but they have since been released to a cousin in Long Island and would find it impossible to appear in Texas,” says Stotland, director of The Door’s Legal Services Center, which is one of five organizations that have volunteered to help represent the children pro bono. (The court provides a translator for the children, but they are not, by law, entitled to a lawyer.)
Those five organizations–the Door, Legal Aid Society, New York Law School’s Safe Passage Project, Catholic Charities and the New York chapter of the American Immigration Lawyers Association–usually trade off handling the court’s juvenile docket, which hears about 30 individual cases every month.
As of two weeks ago, the court is now hearing 30 cases a day–and as many as 65 cases on “double docket” days–almost exclusively of unaccompanied children from Guatemala, Honduras, and El Salvador.
August 22 was a double docket day and Judge Nelson was scheduled to hear 35 cases. Of those, only 24 children showed up to the federal courthouse in Lower Manhattan. After hearing those cases in the morning, Judge Nelson reopened the courtroom in the afternoon to address the eleven no-shows, and with just her clerk, the ICE attorney and Stotland present she went down the list, either rescheduling court dates or issuing deportation orders for each child.
Disorganization on the government’s part helped secure three of the children new court dates: One was spared because a case file was missing, another because there was no proof that a notice to appear had been mailed out, and another because the address on file was in Florida, and not New York.
The judge gave two children, ages 9 and 12, new court dates, as well as a third,16, who was released into the custody of a sibling whose age was unknown.
Of the five minors who Judge Nelson ordered be deported, one was 16, three were 17, and one’s age was “in dispute,” but was believed to be between 16 and 19. Stotland believes age was a factor in Judge Nelson’s decisions.
“It is, arguably, well within the judge’s discretion [to factor age into a deportation decision] but it is certainly not codified anywhere. To the contrary, there are policies set down for how children should be treated in court and a child is defined as a person under 18,” Stotland says. Nelson, whom the Voice attempted to reach through her clerk, had not responded to an inquiry at press time.
Since they were not present in the courtroom when the judge ordered their removal, it’s unclear what will happen to those five children now. Historically, Stotland says, children have not been a priority for removal by ICE. A source at ICE confirmed that officers will not be dispatched to track the children down, adding that they will likely remain in the country unless they are arrested for another, more serious crime.