By:  Richard A. Johnson and Aaron B. Flinn

A family-owned business is susceptible to suffering the “shirtsleeves to shirtsleeves” dilemma.  That is, the first generation creates and grows the family business, the second generation enjoys the fruits of the family business and the third generation is left with no business.  A Tennessee private trust company (a “PTC”) can be a vehicle for an owner(s) of a family-owned business to enable their descendants to enjoy the economic benefits of the business while maintaining the ownership  of the business for future generations.  At the same time, a PTC can also provide a mechanism for the business to continue under competent management.

A PTC is a state chartered trust company, organized as either a corporation or a limited liability company, established to provide fiduciary services solely for extended family members and their spouses.  The ultimate owners of the PTC must share a common ancestor within ten generations by affinity or consanguinity; in addition, charitable organizations established by the family may also be owners of a PTC.  By law, a PTC can only provide fiduciary services to family members, trusts of which the family members are beneficiaries, and entities and charitable organizations which are controlled by the family members. The relationship of these family members must also comply with the ten generation requirement. Since a PTC is prohibited from offering fiduciary services to the general public, it is subject to less state regulatory oversight than a public trust company. 

In 2012, the laws applicable to Tennessee PTCs were amended to specifically permit a family-owned business to create and own a PTC.   While this amendment may at first impression seem insignificant, in essence, it permits a family-owned business to control itself, thus limiting the potential of future non-family members becoming owners of the business. Family members are not required to be employed by the business. 

To illustrate, assume Family Co. is owned by trusts which benefit Founder’s spouse, adult children, and grandchildren and it is Founder’s intent that Family Co. continues to be owned by trusts benefiting future generations.  Family Co. can establish a wholly-owned subsidiary, Family PTC, to serve as Trustee of the trusts. As a result, Family Co. is owned by trusts, the Trustee of which is Family PTC, a subsidiary of Family Co.  As Trustee, Family PTC will oversee all facets of administering the trusts, including voting the trusts’ Family Co. stock.  As such, Family PTC, as Trustee, elects the Directors of Family Co. who in turn elect the Directors of Family PTC. In this illustration, Family PTC becomes especially effective as stock ownership becomes more fragmented among future generations and avoids stock ownership directly by disruptive family members who would otherwise become shareholders.  Thus, a PTC can provide a significant business succession planning opportunity to a family-business owner who wishes to ensure a smooth succession of control following their death and increasing the probability that the family business can survive for future generations.

In more general terms, a PTC also represents an attractive alternative to the use of an individual as Trustee, who may die or otherwise become unable to act. Compared to a corporate fiduciary, a PTC has the flexibility to invest in various types of investments which a corporate fiduciary may prefer to avoid (i.e., alternate investments and real estate).  In addition, unlike a commercial trust company, the staff of a PTC will likely be retained longer, thereby fostering a stronger personal relationship between the PTC and trust beneficiaries. Notwithstanding the numerous benefits afforded by a PTC, there are costs to establishing and operating a PTC.  Therefore, economically, a PTC may make sense for large family-owned businesses and high net worth families. 

There are a number of federal estate, gift and income tax rules that apply to a PTC which are generally related to provision of fiduciary services.  These “tax sensitive” provisions relate to the identity of the individuals who may exercise discretion to make distributions and who exercise the voting rights of any stock of a family business held in the trusts.  There are also restrictions as to who can have the authority to change the tax sensitive provisions in a PTC’s governing documents.  In general, the individuals making these decisions cannot be related to the creator (and contributor) of the trusts or to the owners of a PTC. The relationships, in general, are parents, spouses, siblings, descendants, and certain employees.

While the use of a PTC to centralize the administration of multiple trusts provides a multitude of benefits to high net-worth families, the 2012 amendments to Tennessee’s PTC laws have also made a PTC an attractive and viable alternative for family business owners and their business succession planning. Specifically, integrating a PTC into a family business owner’s estate planning can allow the owner to confer the financial benefits of ownership on their descendants while also facilitating a smooth succession of ownership control over the business following their deaths, as well as increasing the likelihood that the family business will remain in the family for future generations.

_________________________

RICHARD A JOHNSON- Richard is a partner in the law firm of Waller Lansden Dortch & Davis, LLP.  Family-owned businesses, high net worth individuals, tax-exempt organizations, and large closely-held companies, rely on Richard Johnson to provide practical tax and business planning solutions. Clients benefit from Richard's vast experience with S-corporations, LLCs, private trust companies, and partnership law which, when combined with strategic tax planning, helps minimize corporate and personal tax liabilities on both the state and federal levels. Best Lawyers in America recognizes Richard for his work in Tax Law and Trusts and Estates, and in 2012 named him as Tennessee's Lawyer of the Year for these categories.

By: Fred Bissinger

I.  Introduction – Origins of Diversity & Inclusion

The United States is and always will be a nation of immigrants.  The fabric of our society and our overall success has, in large measure, been facilitated by our ability to accept and integrate people from virtually every walk of life.  The nature of our society has permitted newly arrived groups to retain their unique racial, ethnic, cultural, and religious identities.  While our ability to integrate and assimilate people and cultures from all corners of the world is both unique and a fundamental reason for our nation’s success, that process, by its very nature, can take a significant amount of time and be very difficult – as change is hard.

Diversity and Inclusion (“D&I”) initiatives, which can greatly assist in this integration and assimilation process, have been the subject of much discussion and analysis in the last decade or so.  

II.  Why is D&I Important?

A threshold question for many businesses is why is D&I important at all?  The “business case” for D&I has many components, but distilled down to its most basic elements – an effective D&I program will enable a business to increase the skill-set of its workforce, increase retention and recruitment, expand its customer base, improve the quality of its products and services, and thereby increase the “bottom line.”

III.  What are Your D&I Objectives?

As with most strategic analyses and planning processes, a fundamental (if not the fundamental) question is what is your business trying to accomplish with a D&I program.  Clearly, attracting and hiring qualified employees who are diverse is a fundamental objective of most D&I programs.   Once those diverse employees are on board, the next fundamental issue for analysis is how to integrate those diverse employees into the workforce, such that they believe that they are part of the team and are fully committed to the company’s vision for success.   This latter issue may well be the more challenging of the two.

Since 2011, our society has experienced some fundamental shifts given the events of 9/11 and the Great Recession, which has brought to light many additional issues for consideration in this context.  The following are examples of some of the more recent and challenging issues employers are grappling with in the D&I context:

•How to integrate four (very different) generations in a workforce?

•How to deal with our rapidly changing racial and ethnic demographics, including the Hispanic community which is now our largest minority group?

•How to deal with “Sandwich generation” employees who have caregiving- responsibility for both children and parents?

•How to re-integrate hundreds of thousands of Veterans into the workforce, many of whom have life-altering disabilities, especially those of a mental, emotional, and psychological nature?

•How to deal with changing norms and conflicting laws regarding sexual orientation and “gay marriage”?

This list is not exhaustive, but it provides a general idea of the number and complexity of the issues that must be considered by businesses in today’s world.  

IV.  What is Your Plan to Implement and Achieve Your D&I Objectives?

As with virtually every business activity, effective planning and implementation are fundamental keys to success.   This is likewise true with respect to establishing and implementing a D&I program. 

The first step is to identify what it is you want to accomplish with a D&I program.  The next step is training your workforce on the program.  Similarly, a D&I program must have an effective “reporting mechanism” by which employees can voice concerns, report problems, and bring relevant issues to the company’s attention for action.  An important, but many times overlooked, part of this process is obtaining and evaluating questions, comments, and feedback from the workforce.    

In very simple terms, an employer must communicate its expectations, but it must also listen to its workforce to determine whether the plan in place to effectuate the D&I goals is appropriate and effective.        

V.  Keys to Successfully Developing, Implementing, and Growing a D&I Program

While the success of a D&I program, like many other business initiatives, is dependent upon a host of factors.

A.  Leadership

The first and most important Key to Success is effective Leadership.  Obviously, the success or failure of leadership starts at the “C-Ring” level, including the business’ “Diversity Council” (assuming it has one).  Those who are ultimately “driving the train” have to believe in and support D&I efforts – both in committing appropriate time, money, and other resources, as well as actively and visibly participating in the program.  Absent such senior leadership buy-in, a D&I program will simply not succeed.     

B.  Core Values

The second Key to Success is identifying, publishing, training on, implementing, and closely monitoring the company’s Core Values.  Many companies have four or five very basic core values like integrity, a commitment to excellence, top-flight customer service, cost-effectiveness, and mutual respect, to name a few.  Identifying appropriate Core Values is generally not a difficult proposition. 

However, the more difficult issues are related to effectively implementing those core values, including how to: 

•ensure that the company leaders are setting the appropriate example in how they conduct themselves  (both at work and in their private lives);

              •effectively communicate the core values to the work force;

              •obtain true buy-in from all levels of the workforce;

              •monitor the progress of the program;

              •adapt to change in a timely and effective manner; and

              •retain the core values as the company develops and undergoes transitions in leadership.  

C.  Training

It is no surprise that training is a key to successfully developing a D&I program.  However, there are different types of training that apply in this context.  The first type is traditional company sponsored training on the company’s policies and procedures.  Another type of training is that obtained through outside groups and resources that help employees develop a specific knowledge base regarding certain D&I topics.  Yet another type of training is the equivalent of OJT – on the job training.   All of these types of training are necessary to successfully implement and develop a D&I program. 

D.  Management by Measurement

Objective measurements are certainly a preferred manner in which to evaluate a company’s performance and progress.  Measuring the progress of a D&I program is not necessarily an easy proposition, but it can be done.  It is generally easy enough to quantify how many people of different races, sexes, and national origins are employed and how those numbers have changed over time (or not).  Measuring the type of markets and communities with which a company does business, the amount of that business (in terms of volume and revenue), and the degree to which a company is accepted in diverse communities is objectively quantifiable information that can help evaluate the effectiveness and progress of a D&I program.  Further, as set forth above, businesses can in many circumstances evaluate the efficacy of a D&I program based upon changes in the “bottom line” – both positive and negative, and the sources of the revenue causing that change.

E.  Effective Communication

As with most endeavors, effective communication is a key element to success, and conversely, a failure to effectively communicate almost always leads to misunderstandings and problems.  Many common workplace problems, including those that result in internal complaints, EEOC Charges, and/or litigation stem from a “failure to communicate” in an effective manner. 

The issue for consideration is how to bridge that communication gap so that people with diverse backgrounds can effectively communicate for the betterment of the business and all of its employees.  One of the major benefits of an effective D&I program is that it brings people from diverse backgrounds together in a non-adversarial manner in which they are encouraged to better understand one another and learn how to more effectively communicate.  

F.  Effective Problem Identification and Resolution Mechanisms

Identifying difficult employment related issues and attempting to effectively resolve them is a constant challenge in the life of any business.  Developing and implementing an effective D&I program (including Employee Resource Groups) is one of the primary resources available to an employer for facilitating the identification and resolution of such issues in a timely manner as it creates a stable foundation upon which a business and its employees can evaluate and effectively deal with issues arising from differences of perspective based on the diverse backgrounds of those involved.

G.  AAO   

AAO is the military acronym for the phrase “Adjust, Adapt, and Overcome.”  It entails a commitment to deal with ever-changing environments in a timely and appropriate manner designed to achieve the designated objectives – no matter what.  Developing a culture of diversity and inclusion inherently facilitates a business’ ability and skill-set to identify, evaluate, and timely act upon potentially problematic issues in a professional and productive manner.     

H.  Accountability

As with any effective business practice, accountability at all levels – especially at the top – is an indispensable ingredient to a successful organization.   Accountability promotes confidence that “doing the right thing” will be appropriately rewarded, and failing to do so will likewise be properly addressed.   

VI.  Conclusion 

We have entered the age of the “Global Marketplace.”  Our employees, vendors, and customers are all going to be more diverse in the coming years.  The question for businesses is whether they will embrace the change and adapt, adjust, and overcome or try to ward off the change and carry on as usual.  

While D&I programs are not a panacea for dealing with all issues associated with the change in our society and the global marketplace, they are certainly a powerful tool that can enable a business to recruit and retain people from diverse backgrounds who have diverse skill-sets and bring new resources to the table, all of which can help the business achieve its strategic goals and render it better prepared to adjust, adapt, overcome, and succeed.

_________________________

FREDRICK J. BISSINGER is Regional Managing Member of the Nashville, Tennessee office of Wimberly Lawson Wright Daves & Jones, which he joined in 1999. His law practice includes an emphasis in handling employment discrimination and wrongful discharge matters at both the administrative level and in Federal and State Court litigation.  His practice also includes an emphasis on ADA and FMLA compliance, as well as workers' compensation and general liability matters. He received his Bachelor of Science, cum laude, in Economics from Washington & Lee University and his law degree from the Seton Hall University School of Law. Prior to entering private practice, Fred served in the United States Navy Judge Advocate General Corps from 1993-1997. Fred is a member of the Tennessee Bar Association and served as the 2012 - 2013 Legal Advisor for Middle Tennessee Society for Human Resource Management and the 2012 - 2013 Diversity and Inclusion Committee Co-Chair for the Tennessee Society for Human Resource Management.

By: Timothy B. McConnell and Meghan H. Morgan

For those of you who may have been covered up at work lately and missed last week's news, the National Football League has become a topic of national discussion. At this time of year, that is not all that unusual as the NFL is just beginning its new season, and everyone is filled with the belief that it is their team's year to win the Super Bowl. Unfortunately for the NFL, the current raging discussion has nothing to with the NFL's new season or its on-field activities. Rather, it is an off-the-field situation involving one of its players, Ray Rice, and the NFL's handling of that situation that has become a national topic of debate. 

To borrow a sports phrase, "to the highlights (or in this case, the lowlights) we go."  On February 15, 2014, Baltimore Ravens running back Ray Rice assaulted his fiancée in an Atlantic City hotel elevator. Video footage was released to the public showing Rice dragging his unconscious fiancée out of the elevator and leaving her on the hallway floor. His actions resulted in the NFL issuing Rice a controversial two game suspension on July 24, 2014.  Thereafter, on September 8, 2014, TMZ released surveillance footage from inside the elevator, which, according to the NFL, had never been received and hence never reviewed, showing the actual violent act committed by Rice. Upon "further review," the NFL reversed its prior ruling and decided to suspend Mr. Rice indefinitely. 

Clearly, the most important development out of this very unfortunate situation has been the national focus on domestic violence.  But another issue has arisen that has direct application to anyone responsible for overseeing or conducting internal investigations:  the NFL's handling (or mishandling) of the investigation into the facts surrounding the Rice situation. The discussion has gone from one focused on the NFL's disciplinary review of Rice, to a discussion focused on the NFL itself – its culture and the internal handling of its investigation into Rice's actions. In fact, the scrutiny has grown so intense that the NFL now has asked outside counsel to investigate the NFL's investigation of the Rice situation – in other words, an investigation of an investigation.   

For attorneys who conduct internal investigations, the NFL's investigation serves as a good vehicle for a reminder of the importance of executing the basic fundamentals of an effective and thorough internal investigation: 

Don't send in the rookie quarterback.  An internal investigation is a crucial moment.  It will often times "head off" potential litigation, and even in those situations when the lawsuit is filed, the company, having done its investigation, will be much better prepared to defend the case. As such, given the importance of this moment, it is not the time to let an inexperienced rookie handle the investigation. Careful consideration must be given as to the best person to handle the investigation, with priority going to a veteran investigator. 

Develop a Game Plan.  Given the crucial nature of every internal investigation, this is not the time to just throw a "Hail Mary" and hope for the best. Before beginning the investigation, decisions should be made as to whom should be interviewed, the order of such interviews, what evidence should be gathered and the potential legal issues in play. In addition, in every investigation there will be unexpected twists and turns, and without a plan to guide the process, it is easy to get off track. Stick to the game plan and then make adjustments as needed. 

It's All About the Fundamentals. In the Rice investigation, it appears that the NFL failed to execute on basic steps that are now becoming painfully obvious. For example, when the first video was released, the obvious next question was, "Are there other videos?" Also, according to news reports, the second video was purportedly delivered to the NFL, but it appears that the video never made its way to the people conducting the investigation. Lesson learned: ask even the obvious questions, uncover all relevant information and secure all relevant evidence. An investigation should not be concluded until the investigator has completely gathered, assessed, recorded, and reported the facts.    

Be a Lockdown Investigator. As we all know, once a lawsuit is filed, it is not unusual for witnesses' memories and recollection of events to change, whether it be because of the passage of time, simple loss of interest in the situation, or the fact that someone is pursuing money. Consequently, it is essential to lockdown witness statements about the events at issue when their memories are fresh and not tainted by the prospect of receiving a large amount of money in a lawsuit. There are a variety of ways to do this, and every seasoned investigator has his/her own approach to doing so. Regardless of the method, though, lockdown the witnesses. 

Anticipate the Blitz. At some point in time, it is likely that the investigation will come under scrutiny, whether it be through an aggressive plaintiff's lawyer or a governmental agency, and it is important to understand this fact throughout the investigative process. So how do you anticipate the likely blitz?  Execute the fundamental steps discussed above, uncover the truth and deliver it to the company, no matter the implications.  Prompt, thorough, fair and impartial investigations will protect the company from being blindsided.

_________________________

About the Authors:

Timothy McConnell and Meghan Morgan are in Baker Donelson's Knoxville office. Tim is an employment litigation shareholder who counsels and defends clients accused of violations arising under Title VII, the ADA, ADEA, FMLA, FLSA, OSHA and state-specific employment laws. He provides management and employee training programs on employment law-related  topics, and oversees reviews and audits of handbooks and policies.

Meghan Morgan is of counsel and advises employers on compliance with state and federal regulations, and guides them through issues ranging from wage and hour compliance to handling USERRA claims. Ms. Morgan defends clients in state and federal court when discrimination and retaliation lawsuits are filed and has experience managing workers' compensation claims.

I would be remiss if I did not mention that while the articles in the Corporate Counsel Section Newsletter may express the views of the author of the article, the articles do not express the opinion of the editor, TBA or Corporate Counsel Section.  Further, the articles are given for information purposes only and not as legal advice.  – Thanks, Bill Seale, Vice President General Counsel, Bush Brothers & Company.

Welcome new and returning Section members!

Please enjoy our first Section newsletter for this TBA year, which looks at recent issues of interest and interesting commentary you may not find elsewhere.  In this issue, we explore internal investigations, diversity and, for our members that serve closely held corporations, an article about private trust companies.  Thanks to Bill Seale for serving as newsletter editor for another year.

Our Section has a couple of volunteer opportunities. One is to join the Section’s executive committee. The committee meets telephonically about once a month for 15 – 30 minutes to discuss section issues and to assist in planning the annual CLE program. The other opportunity is to serve as vice chair and to take over as chair next summer.

If you would like to volunteer or want more information, please contact me as soon as possible at

norma.shirk@complianceriskadvisor.com or 615-479-1832.

Norma Shirk

2014 -2015 Section Chair

If you would like to learn more, please click here.

If you would like to take part as a mentor or mentee, you can learn more or apply by clicking here.

by Bruce E. Buchanan*

The first thing that stands out about the decisions issued by the Office of Chief Administrative Hearing Officer (OCAHO) from January through July 2014 are the significantly fewer number of decisions compared to 2013.  To date, there have been only nine decisions issued against employers in I-9 penalty cases while in 2013, there were 30 decisions for the entire year.  

2014 OCAHO Decisions

The following decisions have been issued in 2014 along with penalties sought by ICE and penalties assessed by OCAHO:

As the above chart demonstrates, OCAHO lowered ICE’s proposed penalties on average by 43.3%, which is similar to the reductions in 2013 and 2012.  Every case but Minerva Indian Cuisine saw a substantial reduction in these penalties.  The industries involved in these decisions were hospitality – five; food preparation/manufacturing – two; construction – one; and health care – one.  The most common industries to be inspected by ICE are hospitality, construction and manufacturing.  It is interesting to note that six of the nine employers involved in the OCAHO decisions were classified as small employers – usually defined as under 100 employees.  The only medium to large employers were M&D Masonry, Century Hotel Corp., and Senox Corp. 

Common Types of I-9 Form Errors

In seven out of nine cases, the employer failed to prepare or timely prepare I-9 forms for the employees.  This is usually the most common error committed by employers in cases litigated before OCAHO.  In six out of the nine decisions, the employer failed to properly ensure completion of Section 1 and/or failed to complete Section 2 of the I-9 form. These errors included: failure to ensure the status was checked in Section 1; failure to ensure Section 1 was signed; failure to ensure the employee’s alien number was provided; failure of the employer to sign Section 2; failure to provide a document number and/or issuing authority in Section 2; failure to list documents from List B and/or C; and failure to complete any information in Section 2.

In one case, Jalisco’s Bar and Grill, OCAHO found the employer to have “knowingly” employed an unauthorized worker because that employee told his employer that he was unauthorized.  However, in two cases, Jalisco’s Bar and Grill (concerning a second employee) and Minerva Indian Cuisine, OCAHO found the circumstances suggested the employers knowingly employed undocumented workers but the facts did not conclusively prove such.

Reduction in Penalties

The main reason for the reduction in penalties was OCAHO’s finding that the penalties were excessive.  This finding was made in at least five cases.  Of those cases, OCAHO cited the Small Business Regulatory Enforcement Fairness Act as a determining factor in finding the penalties excessive in two cases, New Outlook Homecare and Crescent City Meat Company.  Other factors in lowering the penalties were inability to pay and the “principle of proportionality.”

Significant Holdings

There were a few significant holdings in the cases.  Notably, OCAHO confirmed, in Black and Blue Restaurant, that employers will not normally be held responsible for having I-9 forms for employees working three days or less.  Second, OCAHO holds ICE to a fairly high standard in proving an employer “knowingly” employed undocumented workers.  This was established in Jalisco’s Bar and Grill, where OCAHO would not accept evidence that the employer knew the brother of an undocumented worker was undocumented just because it was aware of such on the other brother.  Third, also in Jalisco’s Bar and Grill, OCAHO confirmed the fact that when an employer’s I-9 forms are destroyed or damaged, the employer should promptly draft a memorandum on the applicable circumstances and should not backdate the I-9 forms that are completed to substitute for the damaged/destroyed I-9 forms.  Lastly, OCAHO stated, in M&D Masonry, that the pre-signing of I-9 forms by the employer in Section 2 is wrong since the employer is not verifying the accuracy of the information in Section 2.

_________________________

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law. Bruce is the Chair of the Immigration Law Section.  He writes a blog on employer immigration compliance for ilw.com, located at www.EmployerImmigration.com, and is a contributor toLawLogix’sI-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professional Magazine. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.

This article was adapted from my article written for the September 2014 edition of HR Professionals Magazine.

By Steve Wilson*

On August 5, 2014, the Tennessee Court of Appeals at Jackson returned a unanimous decision to overturn the trial court in favor of my client, the Plaintiff.[i] In a case of first impression, the Court held an unauthorized worker has standing to pursue a retaliatory discharge action against his former employer.  At the trial court level, the employer's motion for summary judgment was granted solely because the terminated employee was unauthorized to work in the United States at the time of his termination.

The employer's rationale had leaned heavily on the holding in Leatherwood v. United Parcel Service, 708 S.W.2d 396, 402 (Tenn. Ct. App. 1985).  The trial court held a worker that was not legally eligible to work was equivalent to a worker that was physically incapable of working.  As a result, the trial court held an undocumented worker was not entitled to pursue a lawsuit for retaliatory discharge.  The Court of Appeals, however, systematically rejected the employer's reading of Leatherwood and cited a slew of social policy reasons in its 14-page opinion for supporting an undocumented worker's right to pursue a retaliatory discharge action.[ii]        

A day after the decision in Torres, I was e-mailed by an employer friend of mine, deeply concerned that an employer was being "punished despite paying its workers' comp. insurance."  I believe it is key for the plaintiff's bar to clarify that this decision was actually a great decision for legitimate and law abiding businesses in Tennessee.  The Court strongly emphasized that a retaliatory discharge cause of action "was created, not to protect the right to work, but rather to prevent a chilling effect on employees asserting their rights under the Tennessee Workers’ Compensation Act."[iii] Importantly, the Court worried that depriving undocumented workers of the right to bring a retaliatory discharge claim could incentivize employers to hire illegal workers that they could then terminate if a workers’ compensation claim was pursued.  Accordingly, businesses that obey the law are forced to compete with employers that hold an unfair advantage on cost savings from unlawful practices and hiring. This decision is a pro-lawfully abiding business decision, as well as clarifying the protections for some of most vulnerable people of our society. The only losers here were predatory employers.      

The employer apparently intends to seek permission to appeal the decision to the Tennessee Supreme Court - so watch this space.  

By Dawn Garcia*

Since this spring, the news has been filled with heartbreaking stories and devastated yet hopeful faces of children and teens fleeing the violence, crime, and poverty of Latin America—primarily Honduras, El Salvador, and Guatemala. Many of these children have found their way to my office and the story they tell is one of both fear of what they left behind and hope for a better future.

Thus far in fiscal year 2014 (October 2013 – July 31, 2014), the numbers of unaccompanied minors apprehended at the U.S. – Mexican border increased 100%, up from 31,491 in 2013 to 62,998 in 2014.[i] During this same period of time, the number of family unit apprehensions increased 471%, from 11,001 to 62,856.[ii]

Why are all these children leaving their homes to endure a dangerous trip through Mexico and across the U.S Border? Honduras, El Salvador, and Guatemala have experienced such a dramatic increase in violence and poverty that the United Nations calls it a “humanitarian crisis.”[iii] The UN High Commissioner for Refugees found nearly 60% of all unaccompanied minors were “motivated by safety concerns, fearing conditions back home.”[iv] The drug gangs and violent cartels hold these countries hostage and the children are the easiest targets for recruitment and kidnappings for ransom, prostitution, and exploitation.

There are other reasons as well: deep-rooted poverty with no educational or economic opportunities, and the need to reunite with family already in the United States.[v] Some of the undocumented children reunite with their parents already in the United States. Others are traveling to join aunts, uncles, siblings, cousins, with their parents remaining abroad.

Approximately 90% of unaccompanied minors are released to the custody of a relative or family friend.[vi] Others are released to foster care.[vii] Many family units are held in detention centers, such as the one for women and children in Artesia, Arizona.[viii] Other family units are released with orders to report back to the Immigration Court.

Immigration law provides unaccompanied minors from non-contiguous countries apprehended at the border by Customs and Border Protection cannot be immediately returned to their country of origin, but instead must be placed in the custody of the Office of Refuge Resettlement.[ix] The Obama administration, in response to the surge in unaccompanied minors, has created a fast-track removal system to quickly process these children as well as the family units.[x] It has also sought to eliminate the requirement that these children be held for a hearing rather than immediately returned.[xi]

This attempt to balance the influx of children with need for judicial efficiency and limited resources has created an immense risk to the rights of these children. Many of them have credible claims to asylum.[xii] Others qualify for a Special Immigrant Juvenile Visa.[xiii]

Most children do not have the sophistication to fully understand legal proceedings. Some of these children barely speak full sentences. Most of these children do not speak English or only speak limited English. Many remain detained and isolated throughout the removal process, although many others have been released to the custody of family or friends. Usually, these children have no money and their relatives have very little. None of these children are entitled to have an attorney appointed at the government’s expense to guide them through the system.

Advocates have sought to slow the rush to deport these children. Several civil rights and immigrants rights groups have filed a lawsuit to ensure detained minors and their parents have meaningful access to counsel and are not abused while detained.[xiv] In the Artesia case, lawyers are traveling to Arizona at their own expense and representing detained women and their children pro bono.[xv]

But unrepresented children face an incredible burden trying to remain in the United States. Asylum cases are complex and must be analyzed and presented carefully to ensure that the applicant has the best chance to succeed.

Asylum applicants without counsel have to figure out if they are eligible to file, which forms to file, how to file, what evidence is necessary and how to obtain that evidence. They must then navigate the immigration courtroom and deal with the attorney for the Department of Homeland Security who does little besides litigate removal cases. One mistake may prove impossible to correct.

In the haste to remove as many unaccompanied minors as possible, those who qualify for SIJS simply may not have enough time before there is a final removal order. To obtain SIJS, first there must be a state court finding that the child is dependent and neglected as defined by state law and it is not viable or in the child’s best interest to be returned to one or both parents or to his or her country. Then, if the child is in removal proceedings, a petition must be filed with USCIS to obtain a visa. The child must then either attempt to adjust status in proceedings or terminate proceedings and adjust status through USCIS. This can take many months. The immigrant can generally request the Immigration Judge continue the case while he or she obtains the state court order and the visa petition approval but where the process has been so accelerated, that is more difficult. And an unrepresented minor most likely does not know what he or she needs and how to ask for it.

Aliens in removal proceedings may not be entitled to appointed counsel at the government’s expense, but these children need legal help. There are many, many opportunities to provide pro bono or low bono legal services. The American Immigration Lawyers Association has a list of free resources located at: http://www.aila.org/content/default.aspx?docid=49496&utm_source=InfoNet&utm_medium=referral&utm_campaign=Homepage_ContentBlock.

For volunteer opportunities, AILA has a list of needs here: http://www.aila.org/content/default.aspx?docid=49537. Also, the Safe Passage Project helps match volunteers with need: http://www.safepassageproject.org/volunteer-support/. A little closer to home, Pro Bono and Juveniles (PB&J), a project of Kathleen Gasparian in the Greater New Orleans area, seeks to provide pro bono attorneys to immigrant children. More information can be obtained by emailing: pbandjnola@gmail.com.

These children have come as refugees fleeing their homes. It is a humanitarian crisis that must have a humane, just response. As advocates, we can give these children a voice and protect their rights and also help prevent their return to the danger they fled.