Legal Violence, Precarity, and Migrant Youth

1267 

Austin Kocher  
Syracuse University

Laila Hlass  
Tulane Law School

Rebecca Hamlin  
University of Massachusetts Amherst

This session explores the precarity of migrant youth.

Migration and Refugees

Geographies of Law

02 - Citizenship and Immigration

12 - Critical Research on Race and the Law

35 - Legal Geography

Since 2009, the US has seen over 750,000 unaccompanied minors-children under age 18, who migrate without their parents or legal guardians-arrive at its border with Mexico. Thanks to decades of advocacy work, unaccompanied minors are a protected category in US immigration law who benefit from certain due process protections unavailable to adults. Yet, like adults, unaccompanied children are placed in removal proceedings in immigration court, where they must apply for deportation relief to remain in the US in the long term. Applications for immigration relief are highly complex, requiring legal expertise that lay people seldom possess. Research has found that immigrants who are represented by an attorney face drastically better odds of winning their immigration cases. For unaccompanied minors, legal representation increased their likelihood of being allowed to stay in the US from 15% to 73% (TRAC 2014). However, the US does not guarantee universal free legal representation to unaccompanied minors, creating a context in which children must compete for the scarce good of free legal aid funded by limited state and private resources. There are also too few private immigration attorneys to meet demands. In the context of limited supply of legal services, this paper asks, what are the determinants of access to legal representation among unaccompanied children? We develop a new sampling strategy to identify unaccompanied minors in the administrative US immigration courts data, thus overcoming limitations of existing indicators flagging this population which have been "too faulty to be trusted" since 2018 following changes made by the Trump administration (TRAC 2021). We next examine the role of geographic variables (e.g., city size, distance the immigrant residents from immigration court) and individual immigrant characteristics (gender, age, nationality) in shaping children's access to legal representation.

Chiara Galli  
University of Chicago

Tatiana Padilla  
Cornell University

A fundamental problem facing anyone attempting to hold states accountable for systemic violence involves documenting the underlying violence in a way that facilitates transparency, accountability, and justice. Yet very often, the most reliable, complete, and legally powerful forms of evidence are precisely those data sets that states possess and which states have an vested interest in withholding from the public. In this paper, I explore how a wide variety of researchers, activists, and attorneys in the United States and around the world are increasingly using what I refer to as "critical digital methodologies" to develop more robust understandings of state practices in an attempt to further the goals of accountability and justice. Despite the growth of these creative and forward-thinking projects, I also highlight the many limitations of these methodologies to achieve their goals. I draw specifically on a series of case studies from my own work that show the potential and limitations to this work, including a recent study of migrant youth applying for legal protection in the United States.

Austin Kocher  
Syracuse University

Even when limited by the plenary power doctrine, noncitizen respondents in removal proceedings are entitled to due process before the immigration court. At its core, due process in immigration court requires fundamental fairness-the opportunity to be heard and to mount a defense to deportation. Implicit in this right is the ability to access the tribunal adjudicating one's claim. Yet the geographic distribution of immigration courts in the United States, which in some cases requires that noncitizens in removal proceedings travel 500 miles or more for hearings, often makes access to the immigration courts nearly impossible. Using the procedural due process framework set forth by the Supreme Court in Mathews v. Eldridge, I argue that the current geographic distribution of immigration courts violates noncitizens' rights to procedural due process by inhibiting their ability to appear, present evidence, and secure counsel. In so doing, I highlight the detrimental effects that this geography has on remote communities, such as their ability to build pipelines towards access to counsel. Finally, I weigh and propose alternative solutions that balance the government's interests in efficiency and perceived legitimacy with the respondents' interests in having a meaningful opportunity to present a defense that could allow them to avoid the severe consequences of deportation.

Valeria Gomez  
University of Baltimore School of Law

This study presents the first systematic empirical investigation of children seeking Special Immigrant Juvenile Status (SIJS) and SIJS-based lawful permanent residence, using original administrative records, including 153,374 SIJS applications filed between 2010 to 2021, and 35,651 adjustment of status applications filed between 2013 to 2021, based on approved SIJS. Created in 1990 to protect children, SIJS is the only immigration benefit created specifically for children, yet there has been little study nationally of how SIJS may protract and promote precarity in young people's lives. Applications for SIJS have steadily increased over the years and since 2016, some SIJS children have faced years-long limbo in the SIJS backlog, which is the wait time to apply for permanent residence due to congressionally mandated country-specific employment-based visa caps, undermining the humanitarian nature of the status and enacting legal violence on Latino/a youth from Mexico and Central America. SIJS children's youthfulness, immigration status, race, class, gender, sexual orientation, and other factors may mean SIJS applicants experience discrimination and are at greater risk of harm. Additionally, the implementation of SIJS law in practice may prolong children's precarity due to temporal delays, Congressionally-imposed visa limits, disparities in access to quality representation, political whims, and aggressive immigration enforcement during a crucial and formative period of these young people's lives. This paper theorizes the situation that many SIJS applicants find themselves in as a crisis of double abandonment. By double abandonment, we aim to make visible the often invisible precarity that SIJS applicants face both as marginalized youth, typically people of color, whose precarity is, in turn, exacerbated by the government's (mis)management of the SIJS program. Ultimately, we call for action to improve the SIJS program and build power for immigrant children.

Rachel Davidson  
End SIJS Backlog Coalition