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Obama’s Rocket Docket For Unaccompanied Children Is Illegal

Last week, a federal judge ordered a preliminary injunction against the Obama administration’s policy of locking up all Central American mothers and children in order to send a message to other migrants that they should not come to the U.S.

A similar injunction may be possible to stop the Obama administration’s “rocket docket” policy of expediting the removal proceedings of all unaccompanied minors who entered the U.S. after 2014.

The rocket docket’s purpose is to send a message to future unaccompanied minors that they will be removed from the United States. The consequences of this policy are already apparent: more children are being ordered removed.

The reason more are being removed is basically two-fold: 1. Children are given less time to find an attorney to represent them; and 2. There are not enough attorneys–both private and non-profit–to accommodate  the volume of cases being pushed through the court at such an unprecedented pace.

As attorneys that are representing hundreds of children on the rocket docket in New York city, I have witnessed first hand how it has weakened the due process protections for all unaccompanied children, whether they have an attorney or not.

For those that do have attorneys, the latter are being pushed to the limit given the time constraints the rocket docket has created. We are not given substantial time to prepare cases for asylum, for example, and are unable to represent as many individuals as we would be able to if the cases were not being rushed so much.

The numbers back this up.

In FY2014, out of the 1208 uac cases decided who had an attorney, 16 % and 15 % resulted in a removal order and voluntary departure, respectively.

In FY2013, before the surge, of the 3710 cases decided who had an attorney, 9 % and 11 % resulted in a removal order and voluntary departure, respectively.

It gets worse. In FY 2014, of the 4778 cases decided without an attorney, 88 % and 2 % resulted in removal orders and VD orders, respectively.

For FY 2013, of the 4623 unrepresented uacs, 74 % and 4 % resulted in a removal order and VD.

The clincher is how many children are being left without an attorney at all in since the surge began. In FY2014, only 20 % of the 42857 pending cases had an attorney.

In FY2013, 46 % of  the 13,373 pending cases had an attorney.

The surge docket’s purpose is identical to the blanket detention policy: to send a message to future unaccompanied children from Central America that they will be deported if they come to the United States unlawfully.

The 2008 Trafficking Protection Law makes it clear that Congress intended to offer more procedural and substantive safeguards to unaccompanied minors from non-contiguous countries than anyone else in removal proceedings. 

8 USC 1232(a)(2)(D) of the TVPRA states that all unaccompanied children with exception to Mexicans and Canadians, must be placed in removal proceedings and provided access to counsel in accordance with subsection (c)(5).

(c)(5) is what renders the priority docket unlawful because it orders HHS to do all in its power to provide representation for all unaccompanied minors who were ever in HHS custody. Here is (c)(5)

 “The Secretary of Health and Human Services shall ensure, to the greatest extent practicable and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security, and who are not described in subsection (a)(2)(A), have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking. To the greatest extent practicable, the Secretary of Health and Human Services shall make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”

The rocket docket flies directly in the face of DHS and HHS’s statutory obligations because it’s purpose is the opposite: to prevent children from having counsel so that they can be deported from the United States.

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