IMMIGRATION
Building on its now decade-long experience representing dozens of immigrant children, Lowenstein has been involved in responding to the family separation crisis since separated children began to flood the New York shelters in the spring of 2018. Our involvement has gone through several phases as the crisis unfolded, from early efforts to ensure that the children had access to counsel to our ongoing representation of reunified families. All along, the firm has worked with legal service providers to give voice to the children and protect their legal rights.
Phase 1: Ensuring Representation
In April 2018, several weeks before the media turned its focus to the family separation crisis, the firm received a request from the Vera Institute of Justice, which holds the federal contract to coordinate legal services for children in federal custody throughout the nation. Vera subcontracts with direct legal service providers to cover the more than 100 shelters in 17 states where immigrant children are detained. Traditionally, these shelters had been used primarily for unaccompanied immigrant children, those who cross the border without a parent or guardian. By April 2018, however, scores of children younger than six had entered the shelter system, including some babies in arms; they had clearly not crossed the border alone. Hundreds of older children also entered the system reporting that they had been separated from their parents after arriving together. The government designated them as unaccompanied children and generally initiated independent removal (i.e., deportation) proceedings against them.
Vera reached out because some of the subcontracted legal service providers were declining to represent children under six on the ground that these children lacked the capacity to direct the representation. Because lawyers are ethically bound to take direction from their clients, some of the legal service providers believed there was an ethical bar to representing very young children. Vera asked for an ethics opinion about how and whether lawyers can engage with children who cannot speak for themselves. In addition, Vera sought advice on the ethical obligations of lawyers representing older children whose wishes differ from their parents’.
Ethicists in the firm, in collaboration with lawyers who have extensive experience representing immigrant children, delved into the rules and opinions on representing minors and drafted the requested memos. Vera circulated them widely to legal service providers around the country, who then relied on the memos to engage with very young children and to work through disagreements between children and parents.
At the core of the advice on representing very young children is the obligation to locate their parents and take direction from them, unless there is evidence of parental unfitness. The children’s lawyers made extraordinary efforts to do so despite the lack of any information from the government about who or where the children’s parents were and the all-but-insurmountable barriers to communication with immigrants in detention.
By April 2018, however, scores of children younger than six had entered the shelter system, including some babies in arms; they had clearly not crossed the border alone.
“The practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainee’s release . . . . Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process.”
Ms. L v. ICE, 310 F. Supp. 3d 1133, 1144 (S.D. Cal. 2018)
Phase 2: Mobilizing the Private Bar
By summertime, the scope of the family separation crisis became clear. In response to a class action filed by the ACLU, a federal court in California ordered the government to identify and reunify the separated families. Recent government reports state that at least 2,816 children had been separated from their parents or other caregivers as of July 2018, with more than 100 additional separations since then. While the legal service providers were logging thousands of hours working with these children and their parents, the problem demanded a larger mobilization of resources.
Lowenstein Sandler and Paul Weiss drafted a New York Times op-ed explaining the ongoing assault on the rule of law and securing commitments from 34 law firms to help reunify families and ensure representation for them. Those firms have kept their pledges: private lawyers around the country have traveled to the border to assist separated parents, continuing in some cases to represent those parents after their release from detention; located and communicated with deported parents about their wishes for their children who remained in shelters in the United States; and worked to find and represent reunified families all over the country.
The New York Times
Illustration courtesy of Chris Gash
The Law Did Not Create This Crisis, but Lawyers Will Help End It
Mr. Karp is chairman of Paul, Weiss, Rifkind, Wharton & Garrison. Mr. Wingens is chairman and managing partner of Lowenstein Sandler.
Phase 3: Building a Bridge Between Legal Service Providers and Class Counsel
The reunification process proceeded in an information void, just as the separations had beforehand. Children disappeared from shelters with no prior notice to the lawyers who were representing them. Often, shelter caseworkers and the government lawyers who were prosecuting the children’s immigration cases had little or no information about where they had gone. Moreover, court orders in the class action cases had unintended consequences for individual children, such as preventing their removal even when the children had agreed to return to their home countries for the purpose of reunifying with parents who had already been deported.
Catholic Charities Community Services of the Archdiocese of New York, the legal service provider covering the New York City shelters, reached out to the firm for assistance in advocating with class counsel on behalf of its child clients. Alongside Catholic Charities, we negotiated with class counsel to enable children to reunify with their parents in their home countries; in compelling circumstances, we helped children reunify with family members other than the parent from whom they had been separated; and we advocated on behalf of children who remained separated long beyond the time they should have been reunified.
Alongside Catholic Charities, we negotiated with class counsel to enable children to reunify with their parents in their home countries.
Phase 4: Objecting to a Proposed Settlement
As some of the class cases moved toward settlement, the interests of certain groups of children were overlooked. In particular, some children had agreed to court orders for voluntary departure in the belief that they would reunify with their parents in their home countries (which hundreds were). Because court orders in the class cases prevented certain deportations, however, some children were reunified with parents in the United States while their voluntary departure orders remained in effect.
Immigrants (including children) who overstay voluntary departure orders are subject to severe penalties, including removal orders, reentry bars, 10-year ineligibility for lawful permanent residency, and fines. Yet the proposed settlement did not address how to protect children from these consequences. Likewise, the proposed settlement did not specify what immigration proceedings would apply to children who re-separated from their parents after initial reunification, although some children have compelling reasons to do so. Moreover, certain provisions in the proposal were too unclear for children and others who would be bound by the settlement to decipher.
On behalf of Catholic Charities, Safe Passage Project, and The Door, which together represented more than 170 separated children, the firm filed objections to the proposed settlement and appeared at a fairness hearing in federal court in the Southern District of California. The court approved the settlement but instructed the parties to negotiate with us and propose solutions to each of the issues we raised. These negotiations have led to a court order clarifying the settlement. In addition, the government has agreed not to oppose motions to reopen filed on behalf of children for the purpose of vacating their removal orders and the other penalties associated with lapsed voluntary departure deadlines. As to children who may have pressing reasons to re-separate from their parents, they will gain the benefits of designation as “unaccompanied” if they meet the legal definition by virtue of having no parent available to provide care and custody in the United States.
The court approved the settlement but instructed the parties to negotiate with us and propose solutions to each of the issues we raised.
Phase 5: Finding and Representing Reunified Families
One of the formerly separated families the firm represents, standing in front of our New York office
Photo by Bernard DeLierre
Lowenstein worked closely with Kids in Need of Defense (KIND) to identify and collect contact information from an array of sources for approximately 50 of the reunified families who appeared to have resettled in New Jersey.
Throughout the chaotic reunification process, a group of firms and legal service providers worked together to try to locate and contact released families, offer intake and screening, and place them with legal services or pro bono lawyers. The resources required for this effort have been significant, as the government had released at least 2,100 reunified families into communities throughout the United States by mid-December. No single organization had information on their whereabouts, except perhaps the government, which would not share this information other than with lawyers who presented proof of their representation of members of the family. Such proof was of course unavailable for those families who had not yet been matched with lawyers in their new communities.
Lowenstein worked closely with Kids in Need of Defense (KIND) to identify and collect contact information from an array of sources for approximately 50 of the reunified families who appeared to have resettled in New Jersey. After persistent outreach efforts, KIND has now screened and placed many of these families, including three who are currently being represented by the firm in their ongoing removal proceedings. The children in these families, who endured forced separation and months of detention, range in age from three to 12 years old.
Throughout the chaotic reunification process, a group of firms and legal service providers worked together to try to locate and contact released families, offer intake and screening, and place them with legal services or pro bono lawyers. The resources required for this effort have been significant, as the government had released at least 2,100 reunified families into communities throughout the United States by mid-December. No single organization had information on their whereabouts, except perhaps the government, which would not share this information other than with lawyers who presented proof of their representation of members of the family. Such proof was of course unavailable for those families who had not yet been matched with lawyers in their new communities.
Lowenstein worked closely with Kids in Need of Defense (KIND) to identify and collect contact information from an array of sources for approximately 50 of the reunified families who appeared to have resettled in New Jersey. After persistent outreach efforts, KIND has now screened and placed many of these families, including three who are currently being represented by the firm in their ongoing removal proceedings. The children in these families, who endured forced separation and months of detention, range in age from three to 12 years old.
Phase 6: Fighting Ongoing Separations
FAMILY SEPARATION BY THE NUMBERS
The government has so far identified:
2,816
children who were separated from a parent or other caregiver before the June 26, 2018, court order enjoining family separation, of whom
2,657
have so far been reunified with a parent or other family member
118
children who were separated after the court order (from July 1 to November 7, 2018), of whom
82
are under age 13, including
27
under age 5
After the initial spate of separations and the public outcry that ensued, after the President issued an executive order purporting to stop the routine practice of separating families, and after a federal court had enjoined family separation absent a showing of parental unfitness, children continued to enter the shelter system claiming to have been taken away from their parents. The Office of the Inspector General at the federal Department of Health and Human Services reports that at least 118 such children were placed in the shelters between July 1 and November 7, 2018.
Working with Catholic Charities, the Center for Constitutional Rights, and the ACLU, we successfully advocated for the release of a four-year-old boy and a six-year-old girl, each of whom had been detained for more than 10 weeks without apparent justification. The girl was taken into custody because her mother needed emergency surgery immediately after they arrived in the United States. Although the mother was soon released from the hospital, the daughter was held for several more weeks despite a psychological evaluation that showed she was suffering extreme trauma. We continue to work with our clients and partners toward establishing due process protections for families facing separation going forward.
The boy’s story is told in detail in the November 27 and December 12 editions of ProPublica
After the initial spate of separations and the public outcry that ensued, after the President issued an executive order purporting to stop the routine practice of separating families, and after a federal court had enjoined family separation absent a showing of parental unfitness, children continued to enter the shelter system claiming to have been taken away from their parents. The Office of the Inspector General at the federal Department of Health and Human Services reports that at least 118 such children were placed in the shelters between July 1 and November 7, 2018.
Working with Catholic Charities, the Center for Constitutional Rights, and the ACLU, we successfully advocated for the release of a four-year-old boy and a six-year-old girl, each of whom had been detained for more than 10 weeks without apparent justification. The girl was taken into custody because her mother needed emergency surgery immediately after they arrived in the United States. Although the mother was soon released from the hospital, the daughter was held for several more weeks despite a psychological evaluation that showed she was suffering extreme trauma. We continue to work with our clients and partners toward establishing due process protections for families facing separation going forward.