Pandemic Complicates Pro Bono Efforts To Help Migrant Children

Lest anyone think the pandemic may have decreased the need for pro bono immigration services in the United States due to closed borders, lockdowns, and government policies, think again.

The backlog is so great that even if activity were to come to a standstill, it would take years to thin the crush of cases.

The need is especially acute for the most vulnerable of immigrants — unaccompanied minors.

According to U.S. Customs and Border Protection, the number of unaccompanied minors who arrived at the southwestern border surged from 38,758 in fiscal year 2013 to 68,541 in 2014.

After a dip in 2015, the numbers began to rise again, reaching 80,634 in fiscal year 2019, as reported by CBP in this interactive chart. The number fell to 33,239 in 2020, but rebounded in 2021 to a historic high of 132,622 unaccompanied minors interacting with CBP at the southwestern border.

 A Huge Volume of Cases

“We actually always have a huge volume of unaccompanied children in the pipeline seeking representation,” said Priya Konings, the regional director for legal services (east) of Kids in Need of Defense (KIND), a nonprofit organization that connects unaccompanied and separated children with legal services including pro bono representation in immigration courts.

To put the need in perspective, Konings said that right now KIND has approximately 5,500 open cases serving unaccompanied minor children.

“In 2019, more than 80,000 kids came across the border. So think about that. If KIND has 5,500 open cases and we’re the largest nonprofit in the country that works with minor children, clearly, we’re only touching the tip of the iceberg in terms of providing legal assistance to refugee children.”

Konings said the number of unaccompanied minors seeking residency in the U.S. fell in 2020 because the Trump administration “used Title 42 and other legal loopholes to deny kids access to protection in the United States.”

Title 42 is a reference to the Public Health Service Act found within that title. Under authority of this act, the Centers for Disease Control and Prevention issued an order giving officials the right to turn away asylum seekers at the U.S. border — in contravention of the normal operation of immigration law — because of the presence of a communicable disease.

“Once there was a change in the administration some — but not all — of the barriers placed against children were eliminated and the number of unaccompanied children arriving in the United States went up again,” Konings said.

Given the situation in Central America, which Konings described as “relentlessly dangerous,” the number of unaccompanied minors will likely continue to rise. “These children and families have been living under the persecution of gangs and the threat of violence for years,” she said.

Confusion in the Courtroom

Although the pandemic may not have added to the backlog of cases, it certainly created difficulties. The courts shut down for a time and when they reopened, proceedings were mostly virtual.

“There was mass confusion across the board,” Konings said, explaining that KIND attorneys work in state courts and federal immigration courts as well as with the U.S. Citizenship and Immigration Services Asylum Offices. 

“Tracking information down and figuring out which court was open, which was shut, which required in-person hearings with masks or which court was operating virtually was an insurmountable task. It was madness trying to keep up with which court was pursuing which rule,” Konings said.

In some jurisdictions, the judge would be in the courtroom, but the attorneys and clients were virtual. In others, the client had to go to court, and the judge and the attorney were virtual.

“It was hard to explain to the clients that they had to appear at their hearing, in person or virtually, but we as their attorney couldn’t always be by their side because we might be appearing virtually from a different location,” Konings said.

And of course, there were the inevitable technical issues, made more problematic by language barriers. Most of KIND’s clients require an interpreter, which normally goes smoothly. “The interpreter is there in the courtroom and can easily manage translating for the client,” Konings said.

But with the switch to virtual, “it was like a circus with everyone in a different location, trying to participate virtually. Our clients lost a lot of information.”

Also, many hearings have been postponed during the pandemic. While one might think this would offer some relief, Konings described the situation as a double-edged sword.

“On the one hand, we don’t want to hold a hearing if our client can’t meaningfully participate, or if we can’t advocate for our client to the best of our ability as their attorney. On other hand, the client is left in limbo. The client is forced to live with anxiety and uncertainty as to their future for even longer.”

After all, it can take years to get a hearing, and asylum seekers must testify about specific incidents to qualify for that status. “Those details begin to fade away,” Konings said, “especially in children. It’s hard for a child who is now 17 to testify about facts that happened when they were 12.”

These kinds of threats to due-process mean that, aside from the logistical problems described above, the pandemic became a legal issue in and of itself.

“Our clients were forced to participate in hearings that didn’t always afford them due process, and hearings that deprived them of their access to the very laws that are designed to protect them,” Konings said.

KIND made these arguments when the video technology used for conferences or hearings was inadequate, or when the court didn’t want to hear cases.

“We insisted on our clients’ right to have their cases heard and argued they should have the forum and the appropriate technological set-up.”

Meeting with Clients

Something as basic as meetings with clients also became a barrier, Konings reported, because the meetings had to be virtual.

“Our clientele often don’t have access to technology or as much privacy as we generally prefer for our meetings,” she said. Few of the clients can be easily set up with Zoom or Microsoft Teams and many live in multi-person households that make confidentiality difficult.

“A lot of kids don’t have their own phone, let alone a computer,” Konings said.

Poor access to technology is not the only obstacle to providing legal services to this population, she said. “Our clients face a multitude of issues, many of which were exacerbated during the pandemic, including homelessness, health issues, and mental health issues. We’re still dealing with a huge backlog of cases, and in the meantime, trying to assist and advocate for our existing clients became twice as challenging.”

Volunteers

The pandemic also caused a decrease in the number of volunteer attorneys, Konings reported. KIND’s clients may be represented directly by the organization’s staff attorneys, “but more than half of our cases are placed with our pro bono attorneys, our volunteer attorneys,” she said. “They handle our cases and we provide robust mentorship to assist them throughout the duration of the case. This way, we are able to help more kids than if we were providing direct representation to each client.” 

KIND approaches law firms and corporations regularly to share information about client needs. Konings said the decrease in volunteers was “concerning.”

Attorneys were less inclined to offer their time because of pandemic-related issues, she explained. “How were they going to meet with the client? How were they going to accompany them to a hearing? Also, a lot of people were overwhelmed with handling their own work during a pandemic, and were not inclined to take on any additional responsibilities.”

Now that courts are opening again and more meetings can take place in-person, Konings said the number of volunteers has rebounded. Good news, considering the need is likely to grow.

Practising Law Institute offers a variety of live and on-demand programs to help build your skills in advocating for pro bono immigration clients. To learn about PLI programs, pro bono memberships, and scholarships for qualified individuals and organizations, visit pli.edu/probono.

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Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.