Immigration Judge Jack Weil’s statement last March that he has “literally taught 3 or 4 year olds immigration law” sparked a media debate over whether immigrant children should have a right to appointed legal counsel during deportation proceedings. After the recent decision by the Ninth Circuit in J.E.F.M., v. Lynch, teaching immigration law to toddlers facing deportation might be the only option. The court’s decision left Congress with the task of resolving the issue and immigrant children with no viable remedies.
The Right to Counsel during Deportation Proceedings
Immigrants facing deportation have a right to an attorney, but no right to appointed counsel. In other words, if a person cannot afford an attorney during a deportation hearing, he or she has no right to have one appointed. Immigration reform advocates argue that there should be a right to appointed counsel during deportation hearings, especially for children. Every year, thousands of children appear before immigration courts without legal counsel. It is unlikely that these children receive fair hearings given the complexity of immigration law and language barriers.
The convolutedness of immigration laws makes unrepresented children’s situation even more precarious. In J.E.F.M. v. Lynch, Judge McKeown stated that the complexity of US immigration law is “second only to Internal Revenue Code.” Attorneys usually receive special training before representing children in deportation hearings, but indigent immigrant children - many of whom do not speak English - must navigate this system alone.
There are some procedural safeguards for unrepresented children facing deportation. For instance, judges cannot accept an unrepresented child’s consent to deportation. Nevertheless, these safeguards appear insufficient. Between October 2004 and June 2016, over half of unrepresented immigrant children were deported, while only 10 percent of children with legal representation were deported.
The impact of deportation on a child’s life underscores the need for fair hearings. Many children who cannot afford attorneys have viable deportation defenses, such as asylum claims. It is not uncommon that children appearing before immigration courts fled their country to escape violent situations, and sending them back could be life-threatening. Yet thousands of children take on the deportation process without a lawyer.
J.E.F.M., v. Lynch
In J.E.F.M., v. Lynch, several civil rights organizations filed a class action lawsuit on behalf of thousands of unrepresented immigrant children facing deportation. The complaint alleged that the federal government’s failure to provide appointed counsel for these children violates the Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring “full and fair hearing[s]” before deportation.
The Ninth Circuit ruled that federal courts do not have jurisdiction to decide whether there is a right to appointed legal counsel until all administrative processes have been exhausted. Under the decision, an immigrant child would have to argue his or her right to appointed counsel before an immigration judge and lose their administrative appeals to the Board of Immigration Appeals before bringing the claim in federal court. This would be a difficult and lengthy process for an English speaking adult and an almost impossible task for a child accomplish alone. Consequently, the decision cut off immigrant children’s ability to seek a judicial review on the issue.
The Ninth Circuit, however, did appear sympatric and called on Congress to redress the situation. In February 2016, several Democratic legislators introduced the Fair Day in Court Act for Kids. If enacted, the law would provide a right to appointed legal counsel for children during deportation hearings. But, considering the controversial politics behind immigration law, it is unlikely that the situation for immigrant children will be remedied anytime soon.
For now, we can only hope that all immigration judges are gifted teachers.
Authored by Robin Sheehan, LegalMatch Legal Writer