WASHINGTON -- Thousands of unaccompanied minors who came across the U.S. border as part of the migrant crisis are at risk of being deported without due process, the archbishop of Miami has warned the Obama administration.
Although the law dictates that these children must be given legal services, recent moves by the Office of Refugee Resettlement have thrown that into doubt. ORR, which is an agency under the umbrella of Health and Human Services, awarded the U.S. Committee for Refugees and Immigrants a contract to represent the children. USCRI in turn planned to subcontract with a social services firm that employed zero attorneys at the time.
"Many of these cases are time sensitive, and if they do not receive immediate attention, the affected children face imminent deportation," Archbishop Thomas Wenski warned HHS Secretary Sylvia Burwell in a letter sent in October, and which The Huffington Post obtained last week. Judges in Miami have privately warned that the move could jam up the court dockets for as long as a year.
Wenski acknowledged in his letter to Burwell that the very act of his writing to weigh in on a contract dispute was "a bit unusual," but added, "this is an unusual circumstance."
The setback comes as the administration is increasing its efforts to keep Central Americans from entering the U.S. without authorization, as larger numbers of families and unaccompanied children are apprehended at the southwest border and Democrats fight back against deportation efforts of those already here. Border agents picked up nearly 17,400 minors traveling without their parents in October, November and December. Most of them were from Honduras, El Salvador or Guatemala, meaning they must go before a judge before they can be deported. Many face rampant violence, much of it with U.S. roots, if they have to return home.
The U.S. announced plans recently to work with the United Nations to screen Central American refugees for resettlement while still in their home countries, to discourage them from making the trip to the border.
But the ones already here are entitled due process. The organizations Americans for Immigrant Justice and Catholic Legal Services have represented migrant children for years, but both will be tossed aside for the new subcontractor, a social services firm called Youth-Coop. Shortly after the bid was announced, the outfit's website listed openings for 17 staff attorneys.
USCRI bid against the Vera Institute for contracts to represent the children. The contractors were required to have groups on the ground they were ready to work with. Vera, which was bidding with AIJ and Catholic Legal Services as its subcontractors, has run a similar program for roughly a decade and won contracts everywhere but in a division that runs from Memphis, Tennessee, to Miami. Children in the system, though, regularly move throughout the country, meaning the chaos in the Southeast region could affect the rest of the system. Vera declined to comment for this story.
Bernard Perlmutter, who runs the University of Miami Law School Clinic that works with unaccompanied children, said he had no idea what drove ORR to drop the nonprofit law firms that had been working with the children, but that speculation of a scandal was rampant.
"There may be some insider trading going on in terms of people rubbing each others backs, people who like each other and know each other," he said.
Lavinia Limón, the head of USCRI, said the suggestion that her organization used its connections to pull strings was off base.
"I wish I had that kind of clout," she said. "If we had that kind of clout, we would have received grants for the three regions we applied for. We didn't. We only got one."
From the perspective of those who did win, the reason was clear: USCRI, in the other regions it lost, lacked sufficient legal resources.
Yet USCRI has been on a contract-winning streak since President Barack Obama was elected. The administration offered the top ORR job to Limón, who had run the office during the Clinton administration. She turned it down, but recommended her deputy, Eskinder Negash.
Under Negash, money flowed heavily to USCRI. In 2011, when the United States Conference of Catholic Bishops lost a major contract to do human trafficking work, the bulk of the money went to USCRI instead. It didn't go unnoticed.
"ORR earmarked most of the money for USCRI," Sister Mary Ann Walsh wrote at the time. "Eskinder Negash, current director of the ORR, had been vice-president and chief operating officer at USCRI before joining ORR in 2009."
Negash left the government last year, landing back at USCRI. His closeness to USCRI was so well known that the new head of ORR, Bob Carey, joked about it at a meeting with advocates shortly after taking over.
"Eskinder's gone back to USCRI to run all the contracts he sent there," he quipped, according to a source who was in the meeting. Before Negash left, though, he created a new position within ORR for Patricia Swartz, who he brought in from USCRI to oversee the handling of migrant children.(Swartz is not on the panel that decides on the awarding of the current contract, according to HHS. After this story was published, HHS denied that Carey had made such a remark.)
The contracts kept coming after Negash went back to USCRI, including the one to represent the unaccompanied minors in Miami. With the legal community in South Florida worried that the lawyerless outfit could bring the judicial process to a halt, the archbishop called a meeting of all the groups involved in early October. He proposed a compromise that would allow USCRI to keep the contract if it would subcontract with all three organizations. When USCRI worried there wouldn't be enough money to go around, the director of Catholic Legal Services said the organization would pull out, so that AIJ and Youth-Coop would work together. The compromise was rejected.
Limón said the compromise couldn't be accepted at the meeting because Vera had already protested. The protest came after the meeting, however.
After Vera protested to the Government Accountability Office, the contract was canceled, an acknowledgment something was amiss.
Instead of doing the same contract competition over again, ORR put out a new request for bids -- but this one differed in a significant way. The first request for proposal, known as an RFP, said the contract would be awarded largely on merit. Ask any defendant: That's a smart way to pick a lawyer. The new RFP bases the award largely on cost. Ask any lawyer: That's a great way to pick your adversary's lawyer. And an outfit that employs zero lawyers is going to have lower costs than one that employs a few dozen. (An HHS spokesperson said the new RFP focuses on costs so as to expedite the situation, not to tilt the scales toward USCRI. The faster process is needed, the agency said, since thousands of children are in limbo as the result of the first one going awry. The new contract award is expected in February.)
There are currently two main shelters in the Miami area that receive the incoming children, with another massive one scheduled to be opened in Homestead in the next few months. All three are funded by ORR. Elizabeth Anon, the top lawyer at one of the shelters, His House Children's Home, said she hadn't expected the decision.
"It came as a surprise because AIJ has been working for a long time with the children and it was going smoothly as far as our interaction with them," Anon said, adding that AIJ "has a specialty with this group of children and the work. It's kind of like a sub-specialization and they seem to be very caring. ... As to the politics or what happened, I can't really comment."
After the first contract was canceled, ORR stopped USCRI and Youth-Coop from spending money connected to it. But shortly before Christmas, the agency abruptly allowed it to begin spending money again. Youth-Coop has now formed a legal services entity and hired Arno Lemus as its legal director, and he has begun visiting the shelters.
A spokeswoman for HHS passed along a statement from ORR that insisted it was within its legal authority to send the money to Youth-Coop even though the contract had been canceled, although HuffPost had never asked if the move was legal. The permission came either just before or on the day that the new RFPs were due.
The Government Accountability Office (GAO) lifted the stay on the contract and while the contract is being recompeted, the Agency is striving to ensure that as many children as possible are provided representation. The only mechanism we have to do that for this region of the country is through the contract awarded in September to the U.S. Committee for Refugees and Immigrants (USCRI). This approach is entirely consistent with the law. Because there is a need for continuing services, the precedent established by the GAO provides for the Agency to continue performance of an award made, even under a potentially defective solicitation, pending the outcome of a new competition.
The part of the statement claiming this is "the only mechanism we have" is wildly inaccurate. In fact, these children are currently getting legal services from AIJ, paid for by money that originates with ORR. So not only is there another legal mechanism, ORR is currently employing it, while saying there isn't one.
Perlmutter, who runs the legal clinic, said the community is worried about the fate of the children. In the archbishop's letter to Burwell, he said immigration court judges were angry at the decision, an assertion Perlmutter confirmed. "These are lawyers they've known and referred cases to for years and years and years," he said.
Perlmutter said Lemus, Youth-Coop's new legal director, sent him a letter recently introducing himself, but that Perlmutter didn't feel comfortable referring cases to somebody without experience in this very specialized field. Youth-Coop did not return calls requesting comment.
When Youth-Coop put up its posting for the 17 staff attorney openings, it required applicants be merely "proficient" in Spanish -- which could make representing a 5-year-old from Honduras rather difficult, and suggested to Perlmutter and others that the group's inexperience was already showing.
"Proficient doesn't cut it," Perlmutter said. "You can't get it done. You've got to be fluent in Spanish, you need to know legal Spanish. These cases turn on how well the facts are elicited from the clients and how they're presented to the tribunal or the court."
Lemus, Perlmutter noted, doesn't have the right legal background and has only two years as a barred lawyer. His LinkedIn page lists his specialties as family law, administrative law, bankruptcy, licensing, criminal defense, immigration, personal injury, civil litigation, arbitration and class actions -- a clear sign that he is just starting out in his career, yet he's being tasked with running a massive, extremely complex project linked with the fates of thousands of young, vulnerable children. None of those areas of specialty, Perlmutter said, applies to the law that impacts these children.
"Conventional immigration law is irrelevant. This is a very specialized, unique body of immigration and juvenile-dependency law and to some degree domestic violence law and a little bit of law that involves victims of trafficking and victims of crime," he said. "Literally, he's a two-year lawyer."
This story has been updated with a comment from the HHS on Bob Carey's statement about Eskinder Negash.
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