When New York Law School professor Lenni B. Benson created the Safe Passage Project in 2006, she did not anticipate that the number of unaccompanied minors trying to find asylum in the United States would skyrocket, going from 16,067 in 2011 to 41,456 in 2017.

But it has, causing tens of thousands of children to be taken into federal facilities where they will face formal removal proceeding that require them to appear before a judge and explain why they left home.

It’s a daunting process, made more difficult by the fact that immigrants — regardless of their age — are not entitled to court-appointed legal counsel. That’s where the Safe Passage Project comes in. By providing free attorneys to youth facing deportation, they stand on the frontlines, making the case that every child deserves to live without violence, economic deprivation, environmental instability or familial abuse.

The Safe Passage Project founder Lenni Benson sat down with Eleanor J. Bader in early March to discuss the legal challenges facing unaccompanied minors, her personal connection to this issue, and the current political roadblocks facing those seeking entry into the USA.

Eleanor J. Bader: What inspired you to start the Safe Passage Project?

Lenni B. Benson: As part of my work as a teacher, I’ve always done asylum trainings. I was doing one for a large New York City law firm in 2006 and invited an immigration judge I knew to present with me. On the way there, she told me that she wished she could get the Bar Association and some of the City’s major firms to take on more children’s cases. She then went on to describe an entire docket involving unaccompanied minors. The magnitude of what she reported surprised me, but at the training I made a pitch and asked these attorneys to consider accepting a few asylum cases involving children. I said that I would assist in any way I could. Unfortunately, the firm said they could not do this because they weren’t sure that a minor could consent to legal representation without an adult.

EJB: How did you move past this obstacle?

LBB: I began researching this and reached out to a young lawyer, Eve Stotland, who was auditing my immigration class at New York Law School.  She was working on immigration law at The Door, a well-established New York City youth services organization. She had a lot of pragmatic knowledge while I had the big picture, so we made a good team. Together, we did a training for members of the Bar Association and some folks who were working in the non-profit legal sector. During the training we did a mock intake interview and highlighted the need that existed. After this, I reached out to some former students and together we created an intake clinic which helped expand The Door’s ability to represent immigrant children. We quickly began to field calls from people who had questions about asylum, and within a year we had 150 cases. We then reached out further and found other lawyers willing to volunteer.

Throughout my work with the Safe Passage Project, I continued to teach a full course load. My pro bono project quickly became a second job, but one that has been enriching; it has also re-energized my teaching and scholarship.

EJB: Do you have a personal connection to this issue?

LBB: Yes, but I did not know it when I started the Safe Passage Project. In 2013 one of my relatives found an oral history in which my grandmother Hilda—speaking in English, Polish, Russian, and Yiddish—described coming to the United States in 1907. She said that during 1905 and 1906, there were big pogroms in Belarus, where she was born. Fearing for her and her brother Sam, their parents put them on a boat to America where they expected to join their older sister, Sarah, who had emigrated—alone—when she was  a teenager. At the time of their journey, my grandmother was nine; Sam was 11.

In 1907 there was a change in US law and children were no longer allowed to enter the country without a parent. Enforcement was done by the steamship company and inspectors at Ellis Island. To evade this restriction, my great grandfather had “manufactured” a set of parents to bring his children to America. At the border these “parents” denied knowing Sam and Hilda. The children were then kept on Ellis Island and would have been returned to Belarus if they could not find a relative to be their sponsor.

The inspectors allowed the children to send a telegram to Sarah. She came to get them but, once again, there was a problem because the authorities did not believe she had enough money to take care of two young kids. As a result, Hilda and Sam were detained on Ellis Island for seven days. Sarah was eventually able to convince other relatives to sign a bond guaranteeing that they would support the pair until they turned 16. The sponsorship agreement was a bit of a dream because both Hilda and Sam had to go to work to help support the family. But it was still lucky that the children were released to Sarah.

EJB: The Safe Passage Project represents unaccompanied minors who are going before a judge in New York City’s immigration court. How do these kids end up in the City?

LBB: Thanks to a 20-year-old court settlement in Flores v. Reno, children cannot be detained if an appropriate sponsor is available to care for them. The federal government first puts children into what is called shelter care. As of the spring of 2019, the US has 13,000 shelter care beds for kids and 47,000 for adults.

The kids who are caught at the border can end up in shelter care in New York regardless of whether they’re arrested in Arizona, California or Texas. Basically, they are sent wherever there is an empty bed. In addition, at the point of apprehension, the child can tell Immigration officials that they have a relative in New York and ask to be sent here.

Once in shelter care, immigration staff are supposed to assist the child in identifying a parent or other sponsor who can get them out of detention while they are awaiting their asylum hearing. If they have no one in the US, they remain in detention pending their court date.

EJB: How do these kids find legal representation?

LBB: To answer that I have to backtrack to 2011-2012 when I was working as a consultant to the federal government while on sabbatical. My goal for the year was to write a report to help immigration courts function more efficiently and fairly.

At the end of that study, I found myself sitting in a courtroom that was full of children. I was waiting to interview the judge. One little boy stood out to me. He looked about eight; his feet did not touch the floor and he was gripping the arms of the chair he sat in. An interpreter was speaking to him in Spanish. Thankfully, everyone in court that day was kind; both the judge and the interpreter were fairly maternal and even the ICE attorney was nice. But I was horrified by what I saw and, in the middle of the hearing, I jumped into the center aisle, raised my hand, and asked the judge if she would grant a continuance so that I could find an attorney for this child. She said yes and I was allowed to go outside and call a former student who was then working in a corporate law firm. Miraculously, she was able to come to the court immediately. She was eventually able to win asylum not just for this boy, but for his mother, a woman who had fled abuse in their home country.

What I witnessed that day was the trigger, the impetus, to expand the Safe Passage Project. I asked New York Law School’s dean if I could create a new project-based course that would begin representing the children in court. Attorneys from The Door and The Legal Aid Society were already periodically covering the children’s docket and the Safe Passage Project now began to do the same, covering an entire docket for one judge.

Right away we picked up between 15 and 30 new cases a month and I saw that I needed to train a lot more immigration attorneys. By 2013 we were holding 60 to 70 trainings a year.

By 2014 another huge shift happened. Due to the large number of children who were being apprehended, the court began to hear children’s cases every day. We jumped in to cover the docket once a week. Melissa Mark-Viverito, then speaker of the New York City Council, heard about what we were doing, and along with several other Council members, came to observe children in the immigration courtroom.  Shortly thereafter, the Council gave us and other children’s advocates our first grant. Up until that point, we’d been operating on $30,000 a year donated by the law school.

The City Council money, expanded by a grant from the Robin Hood Foundation, allowed us to hire several full-time lawyers and a social worker. Fast forward to 2019 and we are now a non-profit organization, and while we are still housed at New York Law School, we’re completely independent. We have a staff of 27.

EJB: How successful has the Project been in advocating for these children?

LBB: We have a 90 percent success rate in getting a permanent form of legal relief for our clients. Children who have no counsel succeed less than five percent of the time and are ordered removed. Still, the need is enormous. Our government does not fund the legal representation of the youth, and the time spent in detention is increasing. The good news is that the public is now more aware of the desperation that drives minors to seek asylum. And while last summer’s child separation crisis put a spotlight on one aspect of the problem, it also illustrated the magnitude of the horror that young asylum seekers continue to face.