Berkeley Nonprofit Sues Over Funding For Undocumented

BERKELEY, CA — Eleven nonprofit legal services organizations, including one in Berkeley and another in East Palo Alto, filed a lawsuit Wednesday in federal court in San Francisco seeking to preserve funding for the legal representation of children in immigration matters.

The plaintiffs allege that last Friday, "without warning," they received "cancellation orders" from the U.S. Department of the Interior ordering them to immediately stop work representing "unaccompanied children" in immigration cases. They asked the court to issue a temporary restraining order that would rescind the cancellations until the court can hold a full hearing on the lawsuit.

Unaccompanied children are foreign-born minors who arrived in the United States without parents or caregivers, often under tragic circumstances.

The plaintiffs say in their complaint that the most common reasons they are unaccompanied is "because they were separated from their parents on their way to the United States, because they were trafficked to the United States, because they were separated from their families by immigration authorities after entering the United States, or because they fled their home countries without their parents."

The complaint says the cancellation orders disregard the fact that that Congress has directed the secretary of the U.S. Department of Health and Human Services "to ensure to the greatest extent practical" that unaccompanied children in HHS custody "have counsel to represent them in legal proceedings."

Congress has appropriated funding for this work through September 2027, according to the complaint.

The representation of unaccompanied children is contracted to a network of 89 legal services organizations in 159 offices around the country.

The plaintiffs ask the court to block the cancellations, noting that on the date of cancellation, the plaintiffs and others in the network were actively representing 26,000 children. Without representation, the children — many with little English — will be unable to understand their rights or present their circumstances to the authorities. Not only will this cause grievous harm to the children, but it will greatly exacerbate the backlog and workload of immigration judges, the plaintiffs say.

The complaint says that this isn't the first time this has happened. Just five weeks ago, on Feb. 18, the Department of the Interior and HHS issued a stop work order to the manager of the network providing these services. After what the complaint calls "significant backlash," the termination was rescinded.

The impact varies among the organizations in the network, depending on the volume of such cases and their other work. For some, the plaintiffs say, the cuts are existential. Others will need to lay off staff.

Locally, Community Legal Services in East Palo Alto says that it has had to stop taking on new clients, "even if they are unaccompanied children in removal proceedings without an attorney."
The Social Justice Collaborative in Berkeley says that it may have to lay off three fellows who represent unaccompanied children.

The cancellation notices arrived while affected lawyers were amid active legal representations of the children, and they allege that their ethical obligations as lawyers mean they "cannot simply cut off services and representations for unaccompanied children."

That means they will in many cases have to work without funding.

The plight of unaccompanied children has long been a subject of congressional concern.

The plaintiffs' arguments for the court begin with the fact that unaccompanied children are in a different legal category than adult immigrants. Because they are uniquely vulnerable "to trafficking, abuse in government custody, and injustices in the immigration legal system," Congress has granted them special legal protections.

But without representation, they are in no position to take advantage of those protections.

Recognizing the need for lawyers, in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Congress directed HHS to arrange for legal representation "to the greatest extent practical."

Given that the funding for these services — at least until Sept. 30, 2027 — has already been appropriated, the plaintiffs argue that it is obviously "practical" to provide the services and court intervention necessary to enforce the congressional mandate.

The funding cuts were denounced by dozens of advocates and nonprofit leaders.

Gladis Molina Alt, executive director for the Young Center for Immigrant Children's Rights, said "ending essential legal services for unaccompanied immigrant children, who will now be thrown into court proceedings completely alone, makes a mockery of the term 'justice.'"

The case has been assigned to U.S. District Judge Araceli Martinez-Olguin, a 2022 appointee of President Joe Biden confirmed by the U.S. Senate in 2023 on a 48-48 vote with then-Vice President Kamala Harris breaking the tie in support of the appointment.

The judge has scheduled a hearing on the motion for a temporary restraining order on Tuesday.
Alvaro Huerta, one of the lawyers for the plaintiffs, said, "We feel pretty strongly that we're on the right side of the law here. The government is violating its obligations ... Fundamentally, this is about making sure that those kids' rights are protected."

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