Legal Representation or Refoulement? Unaccompanied Immigrant Children and Post-Release Legal Referrals

Background and Purpose

A select group of unaccompanied immigrant children (UAC) who are detained upon entering the United State receive post-release services (PRS). PRS are case management support to connect children with services like health care, legal representation, mental health care, and education while they await deportation.  PRS are provided through non-profits that contract with the Office of Refugee Resettlement (ORR). UAC who receive PRS are categorized as highly vulnerable in detainment. Implicit in the categorization of PRS is the need for additional humanitarian assistance; yet, UAC are not proactively screened or processed for humanitarian legal relief. Instead, they are put into deportation proceedings.

While PRS case managers are charged with providing children with information about legal providers, no other resources are guaranteed towards legal referrals. Even when legal referrals are made, there are significant obstacles towards obtaining legal counsel and constructing a case for humanitarian relief.  This study examines organizational strategies used to identify legal representation in PRS and the consequent obstacles involved in constructing humanitarian relief cases. The current ORR PRS model assumes that legal referrals alone constitute the opportunity for legal representation, but does not consider potential obstacles to legal representation. This study addresses this assumption by identifying the material, social, and psychological processes that facilitate legal representation.

Methods

The initial sample for this project includes interviews with 30 case managers, supervisors, UAC, and sponsors with PRS contracted sites. Additional data are drawn from document analysis of PRS documentation from four PRS sites in four states. The sites were purposively selected based on size, years of experience providing post-release services, and geographic location. All interviews were audio recorded and transcribed. Transcribed files and documents were coded in nVivo using a grounded theory approach.

Results

Findings suggest that despite ORR’s assumption of an isopomorphic organizational model for legal access for UAC across all sites, there is significant variation in the types and severity of obstacles that hinder legal access. Geography, sponsor resources, language skills, size of the local immigrant community, and the processing time of the local immigration courts all contribute to legal access – and PRS referrals can do little to alleviate these issues.  Instead, children who meet the criteria of having a “legitimate fear of persecution,” the international legal threshold for humanitarian relief, risk refoulement, or being knowingly returned to a context of imminent danger and persecution in violation of international law.

Conclusions and Implications

While recent Department of Justice data suggest than 41% of all UAC have legal representation at trial, these data provide no insight into the complex social processes that hinder—or enable—legal representation and the variation across sites. This paper illustrates the social processes behind this number and the unevenness of legal service access by geography.  Identifying these areas for intervention is crucial:  UAC who attend court proceedings without legal representation are nearly uniformly deported. These children, an estimated 80% with legitimate humanitarian claims, are being deported and returned to areas of significant violence (refoulement) simply due to lack of representation.