Representation is Key in Immigration Proceedings Involving Women with Children

This past summer, the Immigration Courts adopted new rules that gave priority to scheduling the cases of women and children seeking refuge in this country in response to the sudden influx of such cases. These new procedures followed the Obama Administration's action seeking to expedite their removal. Up until then, while EOIR had special rules for treating unaccompanied juveniles, the Court had not designated proceedings involving an adult with one or more juvenile children for special handling. The new docketing system required this new class of cases be flagged so that they could be given priority over other cases on its docket.

This report presents new data on the status of these 26,342 specially flagged "adults with children" proceedings as of the end of January 2015. It is based on case-by-case records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act.

Figure 1. Attorney Representation

Figure 2. Effect of Representation on Deportation

While most cases are still pending, two strong patterns are already emerging:

• Less than 30 percent of these families have been able to find representation (Figure 1).



• Without representation, women with children almost never prevail even after they are able to demonstrate "credible fear" of returning to their own country — only 1.5 percent were allowed to stay. While few decisions have occurred in represented cases, the win rate thus far has been 26.3 percent (Figure 2).

These and other preliminary findings based upon an analysis of these court records is presented below. This report is also accompanied by an interactive data application that allows users to delve more deeply into the data.

Background

Unlike these juvenile cases from Central America, children who arrive with their mothers are not automatically entitled to a full hearing before an Immigration Judge to decide if they have a legal right to remain in the country. Children arriving with their mothers face expedited removal, typically in a matter of days, unless the family first can demonstrate "credible fear" of persecution or torture if returned to their own country. There have been a number of detailed accounts of the processing of these cases that describe this "credible fear" screening stage, especially at the Artesia and the Karnes detention facilities.

Analysis here of the current court data begins following cases that have passed this initial "credible fear" screening and have been placed in formal removal proceedings. At this point, most families were no longer held in detention facilities. Although still considered in ICE custody, fully 92 percent were tagged as under "ATD custody" referring to ICE's "alternatives to detention" monitoring programs[1].

This report provides an initial look at the processing of these "women with children" cases by the Immigration Court.

Courts and Nationality

Similar to unaccompanied children, most women with children arrived from three Central American countries: Honduras (41%), El Salvador (25%) and Guatemala (18%). However, a significant number — 14 percent — were from Mexico[2]. All other countries accounted for less than 2 percent (see Table 1).

As of the end of January 2015, almost half (46.7%) of all cases were being handled by just five of the more than 50 Immigration Courts around the country: Houston, San Francisco, Miami, Baltimore and Dallas. Ten courts — these first five plus San Antonio, Chicago, Los Angeles, New York and Charlotte — each had more than a 1,000 of these proceedings on their dockets.

Particular nationalities were more highly concentrated in specific courts, and relatively absent in others. For example, a sizable majority (62.2%) of the cases in Miami were from Honduras, while Honduran families were relatively few (9.3%) at the San Francisco court. In that court, the majority (56.8%) were from Mexico. Table 2 provides a listing of the "adults with children" cases on the docket of each court and their makeup by nationality. Courts are listed in descending order of the number of these priority cases placed on their docket. Eighteen courts had no "adult with children" cases and are therefore not listed.

Courts and Representation

As seen earlier in Figure 1, most women had not been able to find any representation. An attorney was listed in the court records for only a little over a quarter (26.9%) of these proceedings. Of those locations with at least 1,000 cases, only in San Antonio did more than half (54.3%) of the women in such cases have representation. For other locations with at least 100 of these priority cases, women were represented at least half the time only in Boston (50.9%) and Omaha (50.3%). Few were represented in Chicago (9.2%), Dallas (10.6%) and Baltimore (13.4%).

Table 3 lists each court's caseload along with the number and percent of those with representation. Courts are ranked from those with the highest (rank of 1) to lowest representation levels (rank of 35).

Here again, as TRAC previously documented with respect to juvenile cases, the supply of lawyers able to step in and help these women has not been sufficient to keep up with the surging needs despite unprecedented efforts on the part of countless volunteers. For cases still pending as of the end of January 2015, representation rates are modestly better — roughly a third (32%) are represented. (This rate is higher than the overall rate largely because cases without representation tend to close more quickly. The comparable representation level for unaccompanied juvenile cases pending at the end of January was 38 percent.)

Outcome and Representation

We now turn to an examination of the outcomes in these court proceedings to date. As of the end of January 2015, decisions had been reached in 7,740 cases or just under 30 percent (29.4%). As we have seen in earlier TRAC analyses of cases involving unaccompanied children, as well as in asylum cases more generally, a critical factor influencing outcome is whether the immigrant is represented in Immigration Court. For this reason, results were tabulated separately for court proceedings with and without representation present.

Details on the outcomes in these cases are summarized in Table 4. For cases without representation, 98.5 percent of the individuals were ordered deported. Only 1.5 percent were allowed to remain in the country. Among those allowed to remain, cases were terminated on 42 occasions where the immigration judge ruled that the government had failed to demonstrate a legal basis for deportation, and in only a handful (six) was relief from removal granted by the judge.

In contrast, when an attorney represented these individuals, the immigration judge ruled in over a quarter (26.3%) of the cases that the individuals could stay in this country. Among those cases where the individual was allowed to stay, relief was ordered more than twice as often as the immigration judge ruled the government had failed to demonstrate a legal basis to order removal. However, in the remaining three-quarters (73.7%) of these proceedings, deportation was ordered.

Cautionary notes: While the impact of representation on outcome is clearly shown, care should be taken when interpreting the specific percentages reported. Fully 94 percent of all closed cases — some 7,265 — involved women without any representation. In comparison, thus far we know outcomes for only a very small number of cases — only 475 — where women with children had attorneys. Thus, because of their small numbers, the results for these cases may not be representative of the outcomes for cases that close later. In particular, because so few represented cases have moved to a decision this quickly, the makeup of the cases that have closed may be somewhat atypical.

It also should be noted that closure rates are quite varied across different courts. For example, among the ten courts handling at least a thousand of these cases, closure rates varied from 5.5 percent in New York City to 66.0 percent in Dallas. Thus outcomes in closed cases were more heavily influenced by those courts that closed their cases more quickly. Details on a court-by-court as well as nationality-by-nationality basis can be found by using the accompanying web query data tool.

Footnotes

^[1] In fact, the court's case priority system flags cases only while they are under ICE custody — either detained or under ATD. The case priority flag is removed when the individual no longer meets either of these conditions. Thus, one limitation of the cohort of "women with children" cases examined here is that these miss cases where at the time the case priority system was set up last summer the immigrants were no longer either detained or under ICE ATD custody. Once initially flagged, however, TRAC was able to follow the progress of these cases even after an individual was no longer in ICE custody. As of the end of January, a total of 1,437 out of the 26,342 — or about 5 percent — were no longer recorded in ICE custody and thus were no longer under the court's priority docketing rules.

^[2] In contrast to juveniles who arrive with their mothers, Mexican children arriving unaccompanied make up a much smaller proportion (4.4%) of those in Immigration Court proceedings. This is because under current law, unlike minors from Central America who are automatically placed in Immigration Court proceedings, unaccompanied Mexican children are immediately deported unless they pass initial "credible fear" screening similar to those who arrive with a parent.