THE BLOG
10/08/2014 05:50 pm ET Updated Dec 08, 2014

'Kafka's' Immigration Trials Spark State and National Response

In Franz Kafka's "The Trial," an ambitious banker is arrested from his home by two wardens. Having done nothing wrong, the charges are as invisible as the court system is untouchable. He spends the remaining year of his life awaiting a trial for charges he doesn't understand, and yet with an outcome as inevitable as it is unjust.

A similar scenario is playing out in the U.S. immigration court system. We've been tracking and highlighting the so-called "Border Kids" child immigration issue for months at the California Courts Monitor. However, contrary to popular belief, the headline-grabbing influx of tens of thousands of unaccompanied children from Central America - who do not "get caught" so much as turn themselves in - did not cause an immigration court backlog.

The system was already mired in delays due to chronic underfunding for courts at all levels, and civil courts in particular.

It is evident that California, New York and Texas have disproportionately shared the burden of this influx of Border Kid cases, although resources have been impacted nationwide. Meanwhile, the Department of Justice insists children have their first court action within 21 days of being apprehended. The cases have raised the ire of activists and even earned the nickname, "rocket dockets" for their judicial speed. These unaccompanied minor immigration cases are being placed ahead of an existing backlog of civil court cases - meaning people waiting for years now may wait even longer.

In addition to further backlogging the system, these minors often have no legal representation because immigration is a civil issue, not a criminal issue. For example, Southern California Public Radio reports that "Of the 7,729 juvenile cases currently in the L.A. courts, just under half, or 3,516, face proceedings without a lawyer."

Across the country in New York where 6,000 Border Kids are located, the conservative Wall Street Journal reports, "Just under half of the children appearing before the New York City Immigration Court have no attorney, according to The Legal Aid Society. The children are far more likely to be deported without an attorney, and advocates say the situation is desperate."

To put that in context, the San Francisco Bay Guardian notes that, "In nine out of 10 cases nationally, according to a Syracuse University study, youth without legal representation wind up deported, while closer to 50 percent who have lawyers are afforded protection under immigration law."

The evidence of extreme violence in Honduras, Ecuador and El Salvador has been heavily reported, largely stemming from gangs protecting their drug rings. Reading the LA Times, it's hard not to question whether the US policy is seeking justice, or just delaying it:

"There are many youngsters who only three days after they've been deported are killed, shot by a firearm," said Hector Hernandez, who runs the morgue in San Pedro Sula. "They return just to die."

At least five, perhaps as many as 10, of the 42 children slain here since February had been recently deported from the U.S., Hernandez said.

While the famous saying is, "justice delayed is justice denied," in the case of these unaccompanied minors, it's the rush of the justice system - and the lack of legal representation - that's denying them justice. However, Martin Luther King, Jr. said, "The arc of the moral universe is long, but it bends towards justice," and that (finally) seems to be coming toward fruition.

Gov. Jerry Brown and the California legislature recently announced they were setting aside $3 million to ensure the children flooding the California Court System have legal representation AND a real chance at a fair trial. The Obama Administration's Department of Justice followed the next day with an announcement that they are allotting $9 million for the same purpose.

Perhaps even more encouraging, the Wall Street Journal reports that "... since late July, when a wave of Central American minors surged at the border, lawyers who regularly bill hundreds of dollars an hour have been packing training sessions to learn immigration law and take on the children's cases. Legal-aid organizations call it an unprecedented response by this group of attorneys."

Those media images of children being held in prison-like camps and facing Justice Department judges without legal help may have shown some of America at its worst, but we have also become a nation in response. It will be a while before our Kafka-era system lives up to the standard of "and justice for all," but let's at least note that the moral arc is starting to bend that way.

Sara Corcoran Warner is publisher of the California Courts Monitor website, "Your Daily Ration of Civil Justice Rationing," and a frequent commentator on national legal policy and civil courts issues.