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Mr. Michael Creppy
February 28, 2002
Mr. Chairman and Members of the Subcommittee:
I am very pleased to have the opportunity to share my thoughts on S. 121. The 223 Immigration Judges across the country play a critical -- but essentially narrow -- role in the handling of unaccompanied juvenile aliens. We do not apprehend the juveniles at the border or the airport, nor do we provide juveniles with shelter when they are taken into custody. Similarly, the Immigration Judges do not manage the details of their return to their native country, when their stay in the United States is concluded. Rather, these are responsibilities of the Immigration and Naturalization Service (INS).
For those topics, I defer to the other witnesses appearing today. Instead, my comments before your Committee are focused on the part of the process where Congress and the Attorney General have authorized Immigration Judges to act - that of providing aliens with immigration hearings in Immigration Court.
Let me first tell you about current initiatives which EOIR has established to make the Courts more sensitive to the special issues that are unique to juvenile aliens in proceedings. When I refer to "unaccompanied juvenile" for the purposes of my testimony, I mean those juvenile aliens under the age of 18 who appear before an Immigration Judge without a parent or legal guardian.
Although the Pilot Program is still in its infancy, I was so pleased with its success that I have expanded the "juvenile docket" program, with the cooperation of INS, to Harlingen, Texas; York, Pennsylvania; Los Angeles, San Diego and San Francisco, California. Moreover, we are working with the EOIR pro-bono coordinator to explore other programs relating to juveniles.
All Immigration Judges have received training and materials to assist them in dealing with juveniles in their court rooms. I provide, on a weekly, and at times on a daily, basis, information on case law, regulations and other legal matters that affect immigration law, including issues dealing with juveniles. Further, Immigration Judges have been provided books, guidelines and cultural sensitivity training pertaining to juvenile issues. Finally, at the 1998 and 1999 Immigration Judges' conferences, Judges received live lectures from experts in the juvenile area and they will again receive such instruction this June.
Let me assure the Subcommittee that all aliens, including juveniles, that pass through our Immigration Court system are given all the due process that the law accords them. Immigration Judges are committed to provide fair hearings for all, not just juveniles, and I encourage the
Now I would like to address those aspects of S.121 that involve Immigration Judges. Specifically, permit me to briefly address five topics that are of immediate relevance to the immigration hearings we provide: (1) the definition of eligible aliens; (2) second, access to legal counsel; (3) guardians ad litem; (4) interpreters; and (5) the "best interest of the child" standard.
Instead, I suggest using the term "unaccompanied alien juvenile" in place of the phrase "unaccompanied alien child", since the regulatory definition of "juvenile" is an alien under 18 years of age. Again, I reiterate that for purposes of my testimony, when I refer to
Most Immigration Judges favor increased representation by legal counsel. Every day our Judges conduct cases involving respondents who appear pro se. The Judges know how to be fair, even when only one side to the proceeding is represented by counsel. However, when you combine the complexity of the immigration laws with the varying degrees of maturity of juveniles, it provides a greater challenge to Judges to ensure that the proceedings are fair, and that the juvenile understands the serious nature of such proceedings. If the Judge knew that competent counsel were assured for every juvenile respondent, the efficiency of the hearing would be greatly improved. No longer would there be a preoccupation with procedural issues such as whether pro bono counsel can be located, or whether someone can assist the juvenile in completing the relief application.
Yet before a program providing legal counsel for juveniles can be established, there are
First is the question of how such program would be structured. Factors such as oversight, administration, eligibility and selection of attorneys to serve as juvenile counsel, need to be fully
S.121 also leaves unanswered the question of who will be responsible for giving the counsel direction. For example, to whom will the appointed counsel be answerable - the juvenile's parent, the Immigration Judge, or some other entity? Who will have authority to discharge the attorney if he or she is not competent? The counsel must truly represent the interests of the juvenile -- and not those of some third party. I am sure the Subcommittee is familiar with accounts of lawyers who appear to be in league with the smugglers who traffic in human cargo. Several of our Judges have voiced concerns about attorneys whose interests do not seem to be truly on behalf of the juvenile, or with whom the juvenile appears to have little, if any, contact.
This leads me to my third topic, the guardian ad litem.
3. Guardians ad litem
In cases where a juvenile does not have the capacity to make informed decisions on his or her own behalf, I believe that the Immigration Court process would be aided by the presence of an independent adult who can make informed recommendations for the juvenile respondent. A guardian ad litem or other adult acting in a similar capacity could be an active participant in deciding whether the juvenile should return to his or her native country or apply for relief from removal. Keep in mind, however, that a guardian may not be necessarily desirable in all cases -- yet it is mandated in S.121.
I support the concept of a guardian ad litem for a juvenile alien in limited circumstances. I have begun to explore the viability of this option, including whether Immigration Judges have the authorization or the organizational expertise to fully implement such a program. There are a series of issues that have not been fully explored, such as criteria that would render an individual eligible to be a guardian and the purview of such a guardian over an unaccompanied juvenile.
5. "Best Interests of the Child"
Mr. Chairman, I look forward to working with the members of the Subcommittee as this legislation progresses. In the meantime, I am happy to respond to any question you might have for me.