Are 3 and 4-year-olds capable of representing themselves in immigration court? A longstanding immigration judge recently made big media waves when he claimed during a deposition that yes, they can, and furthermore, they should.
Jack H. Weil, a senior Justice Department official who trains federal immigration judges, made the statements while giving sworn testimony in a federal court deposition in which he answered questions regarding whether unaccompanied alien children have a legal right to an attorney funded by U.S. taxpayers.
The case was filed by the American Civil Liberties Union and other immigrant rights groups in an attempt to demand that the government provide representation for every child facing a deportation action or other immigration court matter.
The Justice Department is fighting back, and Weil’s longstanding authority and credibility as an immigration judge is one reason why so many reacted with shock, confusion, and outrage in response to his statements.
“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil reportedly said. “They get it. It’s not the most efficient, but it can be done.” Weil later conceded that admittedly it takes a lot of “time” and “patience” to instruct small children on how to how to appear pro se in a court of law.
The Justice Department has since emphasized that his comments were taken out of context by the media, and Weil has declined to comment further. The case was filed in mid-2014. In a motion responding to the charges, the Justice Department asserted that “nothing in the Constitution requires the taxpayers to provide counsel to minors in immigration court.”
Do Non-Citizens Have Right to Representation?
Weil’s comments were made primarily in reference to Central American children who enter into the country from the southwestern part of the U.S. Thousands enter this way every year, unaccompanied by any adult, and later find themselves unrepresented in immigration court.
8 USC Sec. 1229 and 1362 asserts that aliens have a right to representation during removal or deportation proceeding. However, the Immigration and Naturalization Act has specified that that the government is not under obligation to provide that attorney. A legal disagreement is now stemming from the question of whether or not the government could provide that attorney if it chose to.
Does the 5th Amendment Due Process Law Apply to Immigrants?
Another relevant legal issue in this debate is whether deportation is a civil action or a criminal one.
The Sixth Amendment right to appointed counsel is not extended to immigrants dealing with potential deportation, because such removal proceedings are technically considered to be civil actions.
However, there are Fifth Amendment due process considerations that hover around deportation actions, because deportation is clearly punitive and potentially deprives an individual of his or her liberties. An individual must be detained and then forced to relocate against his or her will, a clear deprivation of liberty.
As such, courts have been careful to incorporate consideration about “fundamental fairness” when weighing issues of immigrant representation.
Is Age a Factor in an Immigrant’s Due Process Rights?
Immigration charges remain the same whether they are aimed at children or adults. Since most unaccompanied children cannot speak English, they are provided with interpreters by the government, who ask questions on behalf of judges about issues such as how they came to the country and what they left behind in their home country. Without a lawyer advising the child, he or she could easily give an answer that limits or eliminates future options, such as applying for asylum or another legal option.
Immigration judges must inform all immigrants facing deportation proceedings that they have a right to representation and that there are free legal services available to them. Courts have consistently ruled that in cases where individuals were not advised on these matters, the rulings and subsequent proceedings were fundamentally unfair.
The rights described above extend to children. Children must be advised of their right to counsel. The INS reached a 1997 settlement with a group of children in the United States illegally (Reno v. Flores) regarding advice during deportation proceedings by agreeing that children in custody must receive written materials outlining deportation actions, verbal explanation of right to judicial review, and written materials of free legal services available to them.
The agreement did not go so far as to legally mandate that children be provided with attorneys during deportation proceedings. The immigration reform bill passed by the Senate in 2013 contained language that would make it the government’s responsibility to bear the expense of representation for children in immigration court, but the bill was dismantled by the 113th Congress.
The takeaway? Legal opinions on whether or not children can, or should, represent themselves in immigration court are still being vigorously debated.
Authored by Danielle Winterton, LegalMatch Legal Writer
