This story originally published in Texas Lawyer on Feb. 12, 2015.
The “flood” of unaccompanied Central and South American children entering the U.S. last year has only trickled into Texas courts so far, although some experts are watching for a bigger rush further downstream.
Federal courts have jurisdiction over immigration, but state courts play a role in some unaccompanied minor cases. As the so-called surge of unaccompanied children dominated the headlines last summer, David Slayton, administrative director of the Texas Office of Court Administration, said he was afraid that state courts might get hit with thousands of cases at once.
“If that does happen, that will tax the system,” Slayton said, adding, “At this point, we are seeing them trickle into the system, and we believe if they continue in that fashion, we are probably able to handle it with existing judicial resources.”
But it’s possible that many cases haven’t made it to court yet, said 312th Family Court Judge David Farr of Houston. Six months after an unaccompanied child is relocated, the relative could file for conservatorship, he said. But Farr said he could imagine the scenario of an uncle who did not expect a nephew to come live with him, and who did not have money for an attorney.
“I might sit on that decision for a couple of years,” said Farr, adding, “At some point, they are going to hit a life jam, where they say, ‘I have to go to court.’”
In fiscal year 2014, the federal government apprehended 67,339 unaccompanied minors, according to U.S. Customs and Border Protection. Some were sent home, but at least 51,705 were eligible for special immigrant juvenile status (SIJS), which grants asylum for unaccompanied children from countries that don’t touch the U.S.
Federal law requires state courts to handle the first step in SIJS cases.
A state court must determine whether an unaccompanied minor was abused, abandoned or neglected at home and whether it’s in the child’s best interests not to go back, explained Dana Leigh Marks, the president of the National Association of Immigration Judges.
“The state courts are the experts on juveniles and what is in the best interest of the child,” Marks said, adding, “When Congress made that law, they realized it’s the state courts that have the experience and expertise to make those determinations.”
Ground Zero
In fiscal year 2014, 7,409 unaccompanied minors were relocated with friends or family in Texas, according to the U.S. Department of Health and Human Services Office of Refugee Resettlement. Texas courts would be responsible for handling those cases. Among them, 4,028 young immigrants relocated to Harris County.
Farr, the administrative judge for Harris County’s family courts, noted that one of the county’s three juvenile courts handles SIJS cases.
The courts have handled 167 independently filed SIJS cases since July 15, 2014, he said. But Farr noted that Harris County courts have probably handled more, because SIJS cases can arise within other child custody matters.
“It’s more than we saw before this time last year. Significantly more, probably,” said Farr. “I don’t think it’s as big as we thought that it was going to be. We sat around a table in spring last year ,and I think the judges’ reaction was: ‘Well, here it comes.’”
SIJS cases are not too time-intensive for a judge.
Farr said that legal aid groups often represent unaccompanied minors. Normally, there is no opposing counsel. Farr said that a judge must review filings and hold a 20-30-minute hearing to take testimony from the child and listen to his lawyer’s arguments. He said he would often rule from the bench and sign proposed findings that the child’s lawyer filed.
“The challenge in Harris County, of course, is anything of length—anything of 30 minutes or more—you have to squeeze in with everything else you are doing,” Farr said, explaining that the family courts typically carry 2,000 cases. “We’ve had to maneuver and figure out how best to handle the cases in order not to have an adverse effect on our dockets.”
Docket Juggling
Federal immigration courts also struggle with juggling unaccompanied minor cases on their dockets.
After a state court issues findings, an unaccompanied minor must apply for SIJS status in immigration court. The federal government has ordered immigration judges to handle the children’s cases first, Marks said.
“The immigration courts are completely and utterly overwhelmed and overburdened,” she said, adding, “Older case are getting pushed aside and languishing on the docket to handle these cases of recently arrived juveniles in a quicker fashion.”
In the Texas-based immigration courts in fiscal year 2014, there were 70,099 pending cases involving immigration charges, according to the Transactional Records Access Clearinghouse. People had to wait an average of 501 days just to get into court. In 2014, the Texas-based immigration courts completed 7,176 immigration cases. The average case took 193 days from filing to closure.
The numbers of juvenile immigration cases are growing. In fiscal year 2010, the Texas-based immigration courts handled only 1,622 juvenile immigration cases. In fiscal year 2014, they handled 10,654, which is more than a sixfold increase.
Finding time for SIJS cases could be a long-term issue.
“These children under federal law are allowed to seek the status up till they are 21 years old or they are deported from the country,” explained Slayton, adding, “The fastest-growing group of these children are over 12 years of age. This is not a short-term issue for us. We don’t expect this to be resolved quickly.”
