Before they get a decision in their immigration cases — before they even have a hearing — the tens of thousands of children entering the country illegally will face an increasingly daunting challenge at the heart of a massive backlog in U.S. immigration court:
The young immigrants must first find an attorney.
Legal groups and immigration experts say the number of lawyers available to represent undocumented children in Maryland and elsewhere is already woefully inadequate to meet the demand — even though many of the most recent border crossers haven't yet begun to enter the court system.
As a result, in Maryland and nationwide, nearly 60 percent of minors facing deportation to countries such as El Salvador and Honduras are arriving in court without a lawyer at their side, according to the Transactional Records Access Clearinghouse at Syracuse University.
That has implications not only for the children but also the court system itself. Hearings are frequently delayed for defendants without legal counsel, compounding a caseload that reached 375,373 at the end of last month — more than 1,500 for each of the nation's 243 immigration judges. In some parts of the country, hearings aren't being scheduled until 2017.
"We're extremely overwhelmed," said Adonia Simpson, managing attorney for immigration legal services at the Esperanza Center in Baltimore, which offers counsel to minors and other immigrants. "The numbers are just off the charts."
Esperanza has two attorneys who can handle juvenile immigration cases in Central Maryland. Each represents about 130 children at a time. Dozens more, Simpson said, are on a waiting list.
Despite efforts by the Obama administration to address the problem, the shortage of lawyers is expected to grow worse as the surge of children fleeing violence in Central America continues. About 57,000 have entered the United States illegally since October, more than double the number during the same period a year ago.
The White House announced in June that it would provide $2 million to identify about 100 lawyers and paralegals for minors. The administration also included $15 million for lawyers in its $3.7 billion emergency funding request to Congress this month.
The fate of the legislation is unclear.
Immigration violations are civil matters, so defendants are not entitled to a lawyer as they are in criminal court. Yet the federal government is always represented by a lawyer.
Dozens of immigrant children — some in ties and dresses, others in T-shirts and jeans — appeared in a small, crowded immigration courtroom at the George H. Fallon Federal Building in Baltimore last Monday. Most came with a parent, but some sat with distant relatives, family friends or siblings.
Nearly half the cases before Judge Lisa Dornell involved children with no attorney. Most took less than 10 minutes from start to finish.
"What efforts have you made to look for a lawyer?" Dornell, using an interpreter, asked the family of a 15-year-old boy from Guatemala, beginning a conversation that was repeated frequently.
The boy's mother said the family could not afford an attorney. Experts say a private immigration lawyer in the region can cost from between $3,000 to $10,000 in more complicated cases.
Dornell asked the mother if she had tried to contact any of the groups offering free legal services, including Esperanza and Kids in Need of Defense, a Washington-based group with a field office in Baltimore. The woman said she had tried but no attorneys were available to meet with her.
And so, as in many other cases, Dornell delayed the hearing for several months, warning the family to redouble its efforts.
"I can't keep postponing this case," she said.
Courts must be careful in dealing with minors without counsel, said Dana Leigh Marks, an immigration judge in San Francisco who spoke in her capacity as president of the National Association of Immigration Judges. That frequently means slowing the pace of proceedings to ensure that defendants don't miss opportunities to make their case, she said.
Deciding when to stop granting a child leeway depends on many factors, she said, including the availability of pro bono counsel in the region.
"There is no mathematical test or bright line," Marks said. "The judge has to balance all of the circumstances — and it's difficult."
'Amnesty at a snail's pace'
Critics of President Barack Obama say his administration was responsible for the recent surge of immigrants by signaling in the past that children were not a priority for deportation. And, they argue, if the delays are allowed to continue, that will only reinforce the idea that children can cross the border without consequence.
White House officials have warned that most of the children will eventually be removed.
Jessica M. Vaughan, director of policy studies for the Center for Immigration Studies, said many cases should be resolved without ever winding up in immigration court. If the children's parents are still living in Central America and are capable guardians, the children should be quickly returned home, Vaughan said.
Instead, the administration has "simply decided that they are fine with waving them in and allowing them to settle, knowing that the kids are going to be dumped on an already dysfunctional immigration court system," Vaughan said. "The practical result will be that they get to stay and have the opportunity to build ties here that will complicate their removal if they ever end up getting a hearing."
She added: "It's amnesty at a snail's pace."
Some efforts are being made to address the shortage of lawyers. New York City officials launched a pilot program last year that provides an attorney to poor immigrants who are detained. Earlier this month, the American Civil Liberties Union and other groups filed a federal class-action lawsuit, arguing that the government is violating due process by not providing lawyers for children.
The immigration section of the Maryland State Bar Association, meanwhile, has agreed to make the minors the focus of its pro bono legal work this year. Jonelle Ocloo, an attorney in Columbia who chairs the group, said about 10 attorneys will be active in the effort.
Those attorneys may help overcome a quirk in immigration law. Because immigration court is a federal endeavor, immigration lawyers do not need to be licensed in the state where they practice. But sometimes children have concurrent cases before a state court, where an attorney must be licensed to represent them.
For instance, many children who have been neglected, abused or abandoned apply for Special Immigrant Juvenile Status, which entitles them to legal residency. The first step in that process is to seek a determination from a state circuit court.
The pool of lawyers who can appear before both state and federal courts is even smaller than the number of immigration attorneys at large.
"We saw within Maryland — both in immigration court and also in the family court — an increase in the number of these unaccompanied minors," Ocloo said. "It is a serious issue."
Despite such efforts, groups that represent child immigrants say the attorney shortage remains significant. Last month, Kids in Need of Defense opened up an online system to accept new referrals. A spokeswoman for the group, Megan McKenna, said the Baltimore field office ran out of new slots within two hours.
Offices in New York and Houston filled up in 30 minutes.
"We have to limit the number of cases we can take every month in each of our offices," said McKenna, whose group has represented about 6,000 children since 2009. "Our internal resources have just not risen to this incredible situation."