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The Ninth Circuit Court of Appeals ruled immigrant children do not have a right to counsel appointed at the government’s expense and outside of administrative deportation proceedings. Children, even those without a lawyer, must go through immigration courts before bringing claims before federal district courts.
“Congress has clearly provided that all claims—whether statutory or constitutional—that ‘arise from’ immigration removal proceedings can only be brought through the petition for review process [PFR] in the federal courts of appeals,” the appeals court argued [PDF].
The children pursued this claim as a class action lawsuit. The right-to-counsel claims, according to the appeals court, arose from deportation proceedings and so they could only be raised through that process.
It concluded the district court made an error when it found there was an exception to the Immigration and Nationality Act, which made it possible for the courts to have jurisdiction over the children’s “due process right-to-counsel claims.”
In separate opinions, the court’s judges, Andrew Kleinfeld, Margaret McKeown, and Milan D. Smith, acknowledged the scale of the problem involving tens of thousands of immigrant children.
…”[S]ome Members of Congress as well as the [Obama] Administration characterized the issue as a humanitarian crisis.” The border crisis created what has been called a “perfect storm” in immigration courts, as children wend their way from border crossings to immigration proceedings. The storm has battered immigration “courtrooms crowded with young defendants but lacking lawyers and judges to handle the sheer volume of cases.”
The net result is that thousands of children are left to thread their way alone through the labyrinthine maze of immigration laws, which, without hyperbole, “have been termed second only to the Internal Revenue Code in complexity.”…
McKeown and Smith acknowledged a “growing need for support systems,” which immigration courts may use to “effectively and efficiently manage the cases of unaccompanied minors.”
Some steps were taken by the Executive Branch to address the crisis. Still, McKeown and Smith noted, “A meritorious application for asylum, refuge, withholding of removal, or other relief may fall through the cracks, despite the best efforts of immigration agencies and the best interests of the child.”
Kleinfeld stated, “I agree with my colleagues that a child (or for that matter, an adult) is unlikely to be able to protect all his rights in a deportation proceeding unless he has a lawyer.”
For the most part, the overwhelming number of children are refugees, who have fled violence in Central America. They are from countries like El Salvador, Guatemala, and Honduras, places where America’s trade policies or interventionism played a role in destabilizing security.
An amicus brief [PDF] filed by the National Immigrant Justice Center and law office of Lofgren & Wentworth highlights a few examples of children affected by the lack of representation.
“Eva fled Honduras when she was 15 years old in order to escape threats she had received from gang members. She was apprehended by immigration officers soon after entering the country,” according to the brief.
Eva was put into deportation proceedings and then released into the custody of a relative. Weeks later, she met with a social worker and informed the social worker her family was moving to a new address. The social worker said she would file the paperwork to change her address. It never was changed, however, Eva knew about a hotline she could use to monitor “upcoming immigration court hearings.” She called the hotline and found out her hearing would be months later.
But after some time, Eva checked the hearing date again and found no “future hearing dates in the system.” Her hearing had happened and a “removal order” was entered in absentia. She never received a change of hearing date because the social worker did not change her address. Fortunately, Eva’s mother was able to obtain “pro bono assistance to reopen her case.”
Geographic barriers may affect the ability of children to challenge their deportation. For example, Edgar, a 16 year-old, was in a facility in Chicago and released to “a small city in the panhandle of Oklahoma.” He does not speak English. He speaks limited Spanish. He is functionally illiterate. His mom died during childbirth. His father died when he was 14. His only close family are brothers living in Oklahoma.
There is no immigration court in Oklahoma. The state also has no nonprofit agencies, which offer pro bono assistance to children with immigration court cases. Private counsel is required or children must travel to other states for an attorney. So, three months after Edgar was released, he contacted a nonprofit that helped him in Chicago. He did not know that changing apartments in the apartment complex, where he lives with his brother, meant he would not receive a notice that he had a hearing scheduled.
“When he didn’t appear in a busy Dallas courtroom for his first hearing after his release, he was ordered removed in absentia. He was not yet 17.”
While the appeals court sided with the government instead of the children, McKeown and Smith urged the Executive Branch and Congress to resolve this problem without judicial intervention.
The judges also predicted, “An appeal asserting a right to government-funded counsel will find its way from the immigration courts to a court of appeals through the petition for review process.”
“It would be both inappropriate and premature to comment on the legal merits of such a claim. But, no matter the ultimate outcome of such an appeal, Congress and the Executive should not simply wait for a judicial determination” before addressing policy issues and the “moral obligation” to respond to this dilemma facing thousands of children.
“The stakes are too high,” wrote judges McKeown and Smith. “To give meaning to ‘Equal Justice Under Law,’ the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.”
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