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A month ago, Miami lawyer Christina Kleiser was paged by a 15-year-old client, a Guatemalan boy seeking asylum in the United States because he fears political persecution. She assumed he must be calling from an Immigration and Naturalization Service (INS) shelter just 45 minutes from her office, where he was being detained. But the boy told her he was calling from a facility 1,400 miles away in Chicago, where he’d been suddenly transferred. He told her that another client she had represented for eight months, a Chinese girl who was the victim of smugglers, had been transferred, too. Kleiser, a lawyer with the Florida Immigrant Advocacy Center, had represented the boy for more than 11 months, visiting him weekly, but the INS didn’t find that sufficient reason to inform her of the relocation. “To me, it seems they are really annoyed with attorney access,” says Kleiser, who makes a common complaint among lawyers for such children that the INS makes client access difficult and retaliates against lawyers who complain. Still, her clients are among the lucky ones. At least they have a lawyer. Of the more than 4,600 people in INS custody under the age of 18, fewer than half have attorneys, principally because neither they nor alien adults have a right to one. Such children, mostly unaccompanied minors, must navigate the complex INS proceedings alone. And their claims are subject to the same high standards of proof as those of adults. That often involves complex allegations about life-threatening issues of abuse, neglect, torture, violence and political upheaval. If they fail, they are deported. Help may be on the way for these youngsters and the lawyers who represent them — or want to. Sen. Dianne Feinstein, D-Calif., has introduced a bill that would address both the lack of legal representation and some of the problems that the children’s advocates complain about. Her “Unaccompanied Alien Child Protection Act,” Bill S121, would establish an Office of Children’s Services within the Department of Justice to help ensure that children have access to appointed counsel and guardians ad litem. It would require minimum standards governing the custody of the children, which could alleviate the problems detainees’ lawyers are experiencing. “We have a special obligation to ensure that every child who comes into contact with the INS is afforded fair and humane treatment,” Feinstein said in a statement made through an aide. “That does not appear to be the case today.” AN INS CONFLICT OF INTEREST? The bill would provide the children with the same access to counsel as U.S. citizen children who are appointed counsel and sometimes guardians ad litem by juvenile and family courts. Advocates say the bill is important, not only to provide lawyers to help the children, but to remedy a fundamental conflict of interest that the INS faces. “Basically you’ve got the fox watching the hen house,” says Wendy Young, the director of government relations for the Women’s Commission on Women and Children Refugees. “By placing the kids in the custody of the INS, the very same agency that is prosecuting them, you have an untenable conflict.” The nonprofit monitoring organization is backing Feinstein’s legislation and has gotten Latham & Watkins to do pro bono lobbying on its behalf. “The bill will make sure that from the time the kids get there to the time their case is done, they are taken care of properly,” says Latham & Watkins associate Andrew Morton. “They need to have access to counsel and guardians ad litem.” Latham & Watkins lawyers have been so upset by the treatment of kids in INS custody that the firm has taken up the issue as a signature pro bono project. “When someone describes the way these kids are being treated, you can’t help but to sympathize,” says Steven Schulman, the firm’s pro bono coordinator. Consequently, Latham will commit its lawyers across the country to represent individual children in detention. And the firm will take a look at the standards that currently govern the treatment of children in INS custody, laid out in a 1997 settlement, Flores v. Reno, 507 U.S. 292. Schulman says the firm will look at whether Flores is being violated — a complaint by advocates — and whether there’s a litigation strategy the firm needs to develop to remedy that. Currently, oversight of implementation of Flores is done by the original plaintiffs, the Center for Human Rights & Constitutional Law in Los Angeles. Carlos Holgu�n, general counsel for the center, called the government’s compliance with Flores “spotty.” Holgu�n says the most serious area of noncompliance by the INS is in its failure to publish regulations on the treatment of children. “We’ve not made a big deal of the failure to publish regulation because the initial proposed rule-making that the INS did was so bad. For the moment, the settlement agreement itself has better language than the proposal regulation did.” The INS insists that it is in compliance with Flores and that the court that approved the settlement has found the agency in compliance every year. John Pogash, acting director of juvenile affairs for the INS, says, “If there are errors, I believe they are very infrequent and surrounded by other mitigating factors.” The agency declined to comment on Sen. Feinstein’s bill. Pogash did acknowledge there are several gray areas in immigration law that would benefit from legislation: “It isn’t very clear who speaks for the juvenile and when. Also, what about parental rights? And parental responsibilities? I think the system as a whole needs to be looked at.” There may be support for Feinstein’s bill from immigration judges. Last year, the executive office for immigration review, the judges’ organization, hired a pro bono coordinator, Steven Lang. Lang says one of his top priorities is to address the problems of unaccompanied minors in INS custody. “It has been frustrating for immigration judges to have a 13-year-old girl or boy before them and ask them questions about what they want to do and then have the child break down in tears, frustrated and scared. What can the immigration judge do?” RETALIATION ALLEGED For those already working with children, some extra help would be gladly received; so would a change in the way the lawyers are treated now. At first, Kleiser didn’t want to talk on the record to NLJ about her complaints about transfer of her children. INS officials have a lot of discretion over the treatment of the children, and she was afraid of retaliation. She worried that her Guatemalan teen wouldn’t be moved back to Miami as she requested. She also feared he might be moved to a juvenile jail, where the INS houses up to a third of the detained children, mixing her type of kids with those who have committed violent crimes. The INS, she thought, might even retaliate against her by punishing other kids she’s representing. “It’s not that I’m afraid it will happen; I’m confident it will happen,” Kleiser says. Her decision to speak out came after she discovered what she believed was evidence of retaliation simply for her advocacy in general. That wasn’t the INS’ story. The morning after she heard from her Guatemalan child client, Kleiser spoke to an INS deportation officer who told her the agency had to move the kids because of space problems. But, six days after her young clients had been moved, Kleiser says, she found during a visit that only 19 of the shelter’s 32 beds were filled. INS DENIES RETALIATION John Shewary, chief of staff for the INS in the Florida district, declined to talk about the specifics of any minor’s case. “The children’s welfare and well-being is our foremost concern,” he says, “and that concerns their cases, their locations and why we transfer them, if at all.” Pogash also denied any retaliation. “I think she probably read between the lines,” he says. He said that Miami has recently been inundated with Colombian asylum seekers. Kleiser is not alone in her allegations. Shiu-Ming Cheer, a Los Angeles lawyer working with detained children, says she thinks the INS retaliates against her and her agency, the Catholic Legal Immigration Network. Cheer says that after her office began to complain about detained children being mixed in with kids who have been convicted of crimes in juvenile jails, the INS began moving the children to a rural facility in central California, 180 miles north of her office — where no one speaks her clients’ language, Mandarin. Consequently, she must rent a car and drive three hours each way to make group presentations to kids once a month. Cheer thinks her office’s objections to the mixing of adjudicated juveniles and children who had never committed a crime was not the only thing that prompted the sudden increase in the transfer of kids away from where there are lawyers. “We think the retaliation is also just for making known the horrendous conditions in Los Angeles that the detained kids have to suffer through,” she says. Her office has complained about the way INS children in juvenile jails are disciplined along with the adjudicated criminals and about the standard of mental health care. Holgu�n says advocates have reported retaliation to him, something corroborated by Young’s organization as well. Both say lawyers are afraid to make formal complaints. “There is an inherent reluctance by advocates that work in this area to rustle the INS’ feathers,” says Holgu�n. “There’s a sense that if one makes trouble, the INS will react and the minors will be treated worse than before. That’s calculated risk assessment by people who work in the local areas.” Pogash calls the suggestion that the INS retaliates unfounded. “There are a lot of agency agendas and individual agendas that come to the platform,” he says. Advocates’ fears are grounded in the fact that the district manager in each of the INS’ 33 districts holds tremendous power. They make several critical decisions, largely unappealable, governing treatment of children, including whether: � a child remains in INS custody or is released to family, friends or foster care while in proceedings; � a child is held in a shelter facility or moved to a juvenile jail; � a child is transferred — which can mean relocation across the country, away from family and pro bono counsel; or � a child qualifies for a special immigration juvenile visa for those children who are abused, abandoned or neglected. “I think this is an area rife with due process problems,” says Arthur Helton, a senior fellow at the Council on Foreign Relations and a board member of the American Bar Association’s Immigration Pro Bono Development and Bar Activation Project. He says that few lawyers have the resources to take on the larger issues. That could change with Latham & Watkins’ involvement, some observers say. In the meantime, the ABA has provided $40,000 in matching grants to state and local bar associations to help meet the legal needs of these children.

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