By Monica Cordero, Clarissa Sosin and Annie Nova

On a windy autumn morning at the courthouse at 26 Federal Plaza in lower Manhattan, Ariel Campos stood in line with dozens of other undocumented immigrants waiting for their first hearing on whether they can stay in the United States.

Campos, who came to the U.S. from El Salvador when he was 17 years old to escape the pressure he was under to join a violent gang, had been unable to find a lawyer. His hands trembled as he gripped documents he had brought along.

“I’m scared,” Campos said in Spanish. “I don’t know what’s going to happen.”

Nor do most people involved in the immigration court at this moment.

Campos’s case is among more than 88,000 involving undocumented youths that are currently backlogged in the nation’s immigration courts, according to federal court data compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

Even as the overall number of undocumented children entering the U.S. has dropped, this backlog has grown, TRAC reports. Together with a lack of legal representation for many of these youths, immigration courts have become increasingly chaotic, according to attorneys representing undocumented immigrants and the non-profit groups that seek to assist them.

That chaos is particularly evident in New York, where changes in policies under the Trump administration have left most cases involving undocumented juveniles in limbo.

In September, there were 2,879 cases involving undocumented individuals under the age of 18  in New York’s immigration court, making it the third highest behind California, which has 4,966, and Texas, with 3,245. In New York, 95 percent are listed as “pending” – meaning the youths are at risk of deportation at any time until a judge renders a decision.

At the same time, nearly two-thirds of those youths – like Campos – show up in New York’s court unrepresented by lawyers. That’s the highest number of unrepresented defendants since TRAC began analyzing such data in 2005.

Not having an attorney makes an undocumented immigrant five times more likely to be deported, according to a 2011 study in the Cardozo Law Review.

Without a lawyer, many undocumented children who qualify to stay in the United States will ultimately be forced to leave, said Professor Peter Markowitz, one of the study’s authors and director of the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo Law School.

"The impact of a decrease in representation means that juveniles who have a legal right to remain in the United States are going to be deported,” he said. “Not because the law doesn't provide for them a legal pathway, but because absent counsel they'll be unable to access that legal pathway.”

A spokesperson for the Department of Justice said the backlog in immigration court is not a new problem, but rather a result of years of policy failures under prior administrations. He added that the Department expects to cut the backlog by half by 2020, using what he termed "common sense reforms" launched under President Trump.

But attorneys say several recent policy changes under Trump prevent the cases of undocumented children from closing. One impact of these delays has been that many immigration lawyers are unable to take on new cases. 

“Unfortunately, we have to turn away kids all the time because the actions of Homeland Security force us to go back to cases that should be finished,” said Patrick Young, program director of the Central American Refugee Center, which represents undocumented children living on Long Island.

 

No More “Rocket Docket”

At the end of January, a chief immigration judge at the Department of Justice, issued a memo ending the so-called rocket docket, which former president Barack Obama established to fast-track the cases of undocumented children. “The cases of these unaccompanied children, whether pending or newly filed, will no longer be case processing priorities,” the memo states.

Youths at risk of deportation used to be a priority in the courts, and their first hearing had to be held within 90 days. That deadline is no longer in force, according to attorneys.

One result of the policy shift is that lawyers seeking to represent undocumented youths are having a harder time identifying children in need of representation.

“Because the Trump administration got rid of the priority dockets they are spread among many, many judges on different days,” said Jacqueline Stabnow, staff attorney at Catholic Charities, a nonprofit that represents immigrants. “It’s a lot harder to keep track of it and see children and take on cases.”

Lenni Benson, a professor at New York Law School who provides legal aid to undocumented juveniles through the school’s Safe Passage Project, said that the elimination of the juveniles-only docket has made things “chaotic” for both lawyers and defendants.

"When they were rushing all of these kids into immigration court, it was a central hub where the non-profit organizations could screen the children in a systematic way,” Benson said.

 

Prolonged Process

Even those juveniles who manage to find legal representation are facing additional complications and delays, attorneys say. 

Federal officials are increasingly burdening defense lawyers with added demands for material previously considered unnecessary, Young said.

For example, recently he was surprised to be asked to submit new legal documents that specified that they were in New York. “We all used the same template for years. It was something that was never required,” he said, “before Trump.”

This meant Young had to return to family court, a stop along the way for undocumented children seeking Special Immigrant Juvenile Status, and request new orders that explained that the cases had been decided under New York law. It took up a day of his time – “a considerable investment,” he added. “The more time we spend on current cases the less time we have to take on new cases.”

More crucially, lawyers say they're being pressed to produce detailed proof that their clients are not gang members. That pressure comes amid a campaign by President Donald J. Trump and Attorney General Jeff Sessions to emphasize the violent gang connections of many undocumented immigrants as a rationale for an overall crackdown on immigrants.

Jennifer Rikoski, a private lawyer who represents undocumented juveniles pro-bono at Ropes & Gray, said she recently had to document a teenage client’s work schedule and show that he didn’t have tattoos.

"We had to spend a lot of time explaining that he was not in a gang," she said. "It was crazy to us – that's why he escaped El Salvador."

Yet another disruption to the docket of undocumented children cases has been a move by the Department of Justice to shift judges from New York immigration court to courts near the border. Court officials did not respond to repeated requests for current figures, but in June WNYC reported that at least six of the 29 immigration judges at the New York immigration court have been transferred to the border.

“They took them from New York, and forced them on rotation in Louisiana and Texas,” said Benson, who heads the New York Law School project, “and the judges had to leave behind their very busy dockets.”

Meanwhile, the numbers of undocumented children who are being detained has risen, said Kathryn E. Jadeja-Cimone, another immigration lawyer on Long Island. Once detained, juveniles are frequently sent to distant federal facilities that are often out of state, a move that eats up even more of the lawyers’ time.

“We haven’t seen this volume of detentions in my ten years in practice," Jadeja-Cimone said. She estimated that on an average of twice a week she hears of another undocumented child who has been picked up and brought to detention centers in Virginia or California.

Each time this happens, she said, she has to track down where the child is being held and take calls from panicked family members. “We’re at the breaking point,” Jadeja-Cimone said. “We’re unable to take on new cases.”

Young said that lawyers at his nonprofit organization are also being asked to appear more often in court. “I have to have one of my staff members go from Long Island to New York City just to say ‘Nothing is happening,’” he said. “They lose half a day of work.”

The mounting delays are not accidental, he suspects.

“It’s not a Muslim ban, it’s not a wall; but it’s more expensive to draw out the process,” Young said. “They’re hoping people will run out of money or, if you’re relying on a nonprofit, that the nonprofits will become too overwhelmed.”

 

No Answer for Campos

More than two hours after he arrived at the federal court, Ariel Campos still waited in the fluorescent-lit courtroom hallway.

He had tried to find a lawyer, to no avail. His sister called two nonprofit organizations on Long Island, where they live. But a person at the first organization said they stopped offering representation. The person at the second organization said they couldn’t take on new cases. 

“I’m afraid to go back to El Salvador because the guys from gangs tell me ‘Join the group, join the group,’ ” Campos said. “This is why my parents say ‘Go the United States. Have a better life.’ ”