Immigration attorney represented 3-year-old

Immigration attorney Lindsay Toczylowski talks with CNN's Poppy Harlow about representing a three-year-old in court for a deportation hearing.

Posted: Jun 30, 2018 1:44 PM
Updated: Jun 30, 2018 1:57 PM

"Your honor, meet the respondent," immigration attorney Lenni Benson said as she introduced the crying toddler in her arms to the judge that would be hearing the child's case.

Benson remembers the incident well. The child was at court with her grandmother, and Benson tried to comfort the crying girl to help the court.

"The judge was so frazzled by the crying and said, 'Can someone please take this kid out of my court?'" at which point Benson informed the judge that the child was actually one of her cases.

"She couldn't believe it," Benson recounted.

All across America, migrant children appear before immigration judges to fight for permission stay in the country. Historically, closer to one in three had lawyers, according to data maintained by a clearinghouse at Syracuse University. But recently released Justice Department data says the first two quarters of this fiscal year, 79% of kids with cases at least a year old were represented.

It's a byzantine process to navigate, even for experienced attorneys like the ones Benson works with at the Safe Passage Project in New York, which she founded to help kids in immigration proceedings. And it's a system that has existed for decades, across administrations and Congresses that have sputtered rather than improve the system.

Benson described it as a complicated version of the board game "Life" -- but one that has life or death consequences for some of the children playing it.

The issue is gaining new attention as the Trump administration has separated thousands of children from their parents at the border as part of its "zero-tolerance" border policy -- thus ensuring those childrens' immigration cases are separated from their parents', as well.

Most of the children in the system are closer to their teens, but there is no minimum age. Toddlers and infants do, in fact, appear before judges in the system to defend themselves against deportation.

"Yeah, I get that reaction a lot," said Wendy Young, president of Kids in Need of Defense, when asked how she would respond to someone incredulous at the idea of a toddler representing themselves in court. "And with good reason, because it does shock the conscious."

Defenders of the system say the immigration judges are able to help kids navigate the process, and the federal courts have upheld those procedures thus far.

Jack Weil, an assistant chief immigration judge with the Justice Department in charge of immigration judge training, famously testified in a court deposition that someone properly trained could make any child understand what was happening.

"I've taught immigration law literally to three-year-olds and four-year-olds," Weil testified in 2015. "It takes a lot of time. It takes a lot of patience. They get it. It's not the most efficient, but it can be done."

He later told The Washington Post his words were "taken out of context," but did not explain how.

In the case of the crying toddler, Benson said, the girl's mother was told by smugglers they'd both have a better chance of staying in the US if they split up, with the little girl crossing the border with another unrelated woman and her grandmother's contact info. When they were apprehended by Border Patrol, the girl was separated from the woman and put into the children's care system run by Health and Human Services. She was eventually released to her grandmother, and the girl's mother decided that's where she'd remain the safest, leaving her and her grandmother to navigate the court process themselves.

But even in more typical cases -- like those of young teens who make the trek to the US themselves, turn themselves into a Border Patrol agent and eventually are released to a relative -- the court process can take years.

When a child is apprehended at the border, they are turned over to HHS and eventually, in about 90% of cases, settled with a relative or family friend. They then are called to appear in immigration court for a "master calendar hearing," the kickoff of their court proceedings.

Many of those children are likely to get a continuance from the judge to allow them time to find a lawyer, apply for asylum or apply for some other visa that protects children. Some, though, may have a hearing date set within a year to resolve their claim.

The process is a maze. For children, by law, asylum applications go to the Department of Homeland Security first, even as the Justice Department-run immigration courts consider whether to deport them. There are other visas, like the Special Immigrant Juvenile visa for neglected or abused children, that can send the kids to DHS and state courts. All while the immigration court continues to weigh whether or not to deport them.

Traditionally, many judges have granted the kids' extensions in court to see their other applications through to completion. The process can take years in some parts of the country where the backlogs are higher.

The Trump administration, though, has started opposing continuances for what they consider outside matters, pushing judges to not grant them.

During one master calendar hearing observed by CNN in Arlington, Virginia, on Thursday, Immigration Judge John M. Bryant in a span of about 45 minutes checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.

In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in, despite the objections of the government attorney. One child, a boy named José who had just finished ninth grade, was there for his second check-in. His full asylum hearing received a court date of May 11, 2021 -- likely to be just as he is finishing high school in the US.

The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and his father, though Rodolfo's case was being heard by itself. The judge and Rodolfo made small talk about kindergarten through an interpreter before his case was continued. "Hasta luego," Bryant told Rodolfo, giving him a next court date in May 30 2019.

Experts like Young and Benson have long opposed the idea of children being able to represent themselves. Benson has resources on her group's website designed to help attorneys understand the complex peculiarities of children in immigration court. The manual on asylum -- designed for attorneys -- is 120 pages. The manual on the SIJ visa is 85. Many children may be eligible for both.

"It is a system on paper that looks like it gives opportunity to children to seek protection in the United States, but the reality of that system is daunting even for well-trained lawyers, let alone for the children themselves," Benson said.

Benson described working with kids who got up at 4 am or earlier to catch a bus or a ride to a far away immigration court. She's witnessed confused parents and relatives pleading with a judge to accept their filled-in asylum application, as the judge patiently explains to them they need to send the lengthy questionnaire to a completely different government agency via a post office box in Chicago.

Regardless of age, children in asylum hearings must answer questions like where they are from, why they are afraid to return and state the justification for their claim. Recent moves by Attorney General Jeff Sessions have only set the bar higher for immigrants to justify their asylum claim, placing the burden of proof and legal argument even more squarely on their shoulders.

And the children are not always forthcoming. Benson described an intelligent, "bright-eyed," pig-tailed 8-year-old she worked with, who showed no signs of trauma. After some time, she revealed her mother's boyfriend had been assaulting her before she moved to her aunt's home. Her aunt had no idea. The girl qualified for a visa a few years later.

Young described witnessing a 5-year-old in Baltimore Immigration Court with no lawyer.

"She was clutching a doll, she couldn't see over the microphone at the respondent's table, and she couldn't answer the questions, she was afraid," Young said. "As she was done, (the judge) asked in Spanish what the name of her doll was, and she answered 'baby, baby doll' in Spanish. And that was it."

The case had a happy ending -- the judge pointed the girl to Young's colleagues and she received a visa two years later.

"I asked my attorney what it was like to work with her and she said, 'Well, it took a lot of candy and a lot of Play-Doh,'" Young said.

As more children flood the system as a result of the administration's family separations, Young fears what could result. She is especially concerned about the administration's push to repeal laws designed to protect children -- "as imperfect as they are" -- over what officials say are the "loopholes" they create in the system that attract immigrants to come into the US illegally.

"I fear that one of the insidious agenda items here is for the administration to jettison the protections ... all the policies and procedures we built up over the years to protect the children in the system," Young said. "We were starting to get there and then under this administration -- a system that has taken us 30 years to build, it's taken them three months to tear down."

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 314710

Reported Deaths: 7254
CountyCasesDeaths
DeSoto21646260
Hinds20369416
Harrison17949309
Rankin13643278
Jackson13450246
Madison10113217
Lee9986174
Jones8384163
Forrest7689152
Lauderdale7198240
Lowndes6403148
Lamar623686
Lafayette6203119
Washington5341134
Bolivar4802132
Oktibbeha462998
Panola4596107
Pearl River4519146
Marshall4450103
Warren4393121
Pontotoc420872
Monroe4115133
Union411176
Neshoba4031176
Lincoln3969110
Hancock379586
Leflore3498125
Sunflower336290
Tate334784
Pike3327105
Scott316274
Alcorn313368
Yazoo311770
Itawamba300577
Copiah297465
Coahoma295579
Simpson295388
Tippah288768
Adams286982
Prentiss280060
Marion269380
Leake268473
Wayne262841
Grenada261587
Covington259881
George248148
Newton246862
Winston227581
Tishomingo227067
Jasper221148
Attala214473
Chickasaw208057
Holmes189174
Clay185554
Stone182833
Tallahatchie178941
Clarke178080
Calhoun170932
Yalobusha164638
Smith162534
Walthall134245
Greene130633
Lawrence128724
Montgomery127142
Noxubee126734
Perry126338
Amite123142
Carroll121829
Webster114532
Jefferson Davis107133
Tunica105726
Claiborne102430
Benton100025
Humphreys96733
Kemper95828
Franklin83923
Quitman81116
Choctaw76418
Wilkinson67531
Jefferson65728
Sharkey50217
Issaquena1686
Unassigned00

Alabama Coronavirus Cases

Cases: 537813

Reported Deaths: 11024
CountyCasesDeaths
Jefferson791691529
Mobile41177808
Madison35002507
Tuscaloosa25871454
Shelby25076249
Montgomery24549591
Baldwin21290309
Lee15946171
Calhoun14556319
Morgan14364280
Etowah13890353
Marshall12262223
Houston10602282
Elmore10115206
Limestone10031151
St. Clair9890245
Cullman9730194
Lauderdale9449243
DeKalb8853188
Talladega8325176
Walker7259277
Autauga6971108
Jackson6830112
Blount6750139
Colbert6317134
Coffee5546119
Dale4869113
Russell444338
Chilton4343113
Franklin426282
Covington4138118
Tallapoosa4040152
Escambia394577
Chambers3581123
Dallas3564153
Clarke351361
Marion3137101
Pike311977
Lawrence302298
Winston275673
Bibb263064
Geneva252577
Marengo249664
Pickens234862
Barbour231956
Hale223677
Butler217869
Fayette212462
Henry189644
Cherokee184345
Randolph182042
Monroe178140
Washington167639
Macon160750
Clay156957
Crenshaw153357
Cleburne149241
Lamar143035
Lowndes139653
Wilcox127430
Bullock123041
Conecuh110629
Coosa108928
Perry107826
Sumter104932
Greene92634
Choctaw61024
Out of AL00
Unassigned00
Tupelo
Clear
51° wxIcon
Hi: 81° Lo: 49°
Feels Like: 51°
Columbus
Clear
50° wxIcon
Hi: 80° Lo: 50°
Feels Like: 50°
Oxford
Partly Cloudy
48° wxIcon
Hi: 79° Lo: 46°
Feels Like: 46°
Starkville
Clear
45° wxIcon
Hi: 80° Lo: 48°
Feels Like: 45°
High pressure will continue to dominate our weather forecast for this weekend. This will keep our area filled with plenty of sunshine. However, there will be some changes next week in our weahter forecast as low pressure brings back some chances for showers and thunderstorms.
WTVA Radar
WTVA Temperatures
WTVA Severe Weather