A U.S. appeals court rejected a lawsuit filed to gain legal representation for immigrant children in deportation proceedings. How did this lawsuit come about and, in advocating for these most vulnerable of immigrants, what’s next?
Two years into a lawsuit filed to establish the right of immigrant children to court-appointed attorneys, a federal appeals court panel of three judges unanimously rejected the class-action status of the suit, asserting that such claims must be filed individually, in accordance with their reading of immigration law, and after deportation proceedings are exhausted. The ruling is a major blow to the efforts of the American Civil Liberties Union and several immigrant rights groups who have sought to correct the unacceptable situation through legal means.
At issue are the due process rights of these children who, unlike plaintiffs in criminal cases (deportation proceedings are civil cases), are not assigned a free court-appointed attorney, and immigration judges are not authorized to appoint one. Countering the class-action suit, the U.S. government filed a brief maintaining that the constitutional right to legal representation does not apply in immigration cases. The 9th Circuit Court of Appeals agreed on jurisdictional grounds (meaning it is not up to the judiciary to solve the problem), but as Judge Mary Margaret McKeown wrote in her opinion (concurring with Judge Milan Smith), “I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve—political solutions that fall outside the purview of the courts.”
Indeed, federal funding has been allocated for programs that provide lawyers for unaccompanied children, which implicitly acknowledges that unaccompanied children deserve legal counsel even while the government holds that there is no constitutional obligation to provide it. As former Attorney General Eric Holder remarked in 2014 as more than 60,000 unaccompanied minors flooded across the U.S.–Mexico border, “Though these children may not have a constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure presence of counsel.”
In so many ways, the moral issues overshadow the confounding legal ones. Thousands of immigrant children—many in their teens but some as young as three years old—are required to act as their own lawyers, at trials conducted in a language they don’t understand, in formal and foreign administrative surroundings, opposite trained federal prosecutors, and with no awareness of potential asylum, relief, or U.S. citizenship claims for which they might be eligible. Often, adult relatives who may be in attendance are not permitted to speak on the child’s behalf.
It is revealing to consider that in other legal scenarios (child welfare, juvenile delinquency, etc.), children are not expected to represent themselves. Yet in immigration court, where deportation, family separation, and a return to the life-threatening circumstances in countries of origin are possible consequences, children are left to fend for themselves. It is not an understatement to say that many of these cases are a matter of life or death. Currently, the need for legal representation is overwhelming, and public interest law firms, migrant advocacy groups, and government programs cannot meet it. According to the Department of Justice, 42% of more than 20,000 unaccompanied children in deportation proceedings from July 2014 to December 2015 had no legal representation.
Not surprisingly, the trial outcomes are frequently heartbreaking. Since 2004, more than half of unaccompanied minors without a lawyer were deported. Nearly 60% of these children would have qualified for some form of humanitarian protection under international law (U.N. High Commissioner for Refugees), but without the guidance of legal counsel, they would be unlikely to claim these protections.
And immigrant children are not the only ones facing the overwhelming odds of deportation when legal counsel is not provided. Migrant men and women are similarly ineligible for a court-appointed attorney, and find it extremely difficult to obtain counsel. The impact of self-representation—on length of detention, deportation relief, and family separation—is staggering. On the other hand, when legal representation is engaged (only 37% of cases), immigrants are 4 times more likely to be released from detention, 11 times more likely to apply for deportation relief, and more than twice as likely to successfully obtain that relief. (For more information, see: https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court. )
Despite the recent rejection of the lawsuit, the ACLU and other migrant advocacy and immigrant rights groups will appeal the ruling as the number of unaccompanied children rises once more. Citing the frightening violence in Central America that many of these children are fleeing, Ahilan Arulanantham of the ACLU (and a 2016 MacArthur Fellow; see other article in this newsletter) commented, “It’s not an exaggeration to say that there are thousands of children whose lives are at stake. If they receive an attorney, they’re far more likely to be able to present and win their claims for asylum. If they do not have an attorney, it’s virtually impossible for them to do that.” And so the fight—a legal one, with dire real-life implications—continues.
NOTE: The class action lawsuit, J.E.F.M v. Lynch, was filed in Seattle, WA by the American Civil Liberties Union, the American Immigration Council, the Northwest Immigrant Rights Project, Public Counsel, and K&L LLP on behalf of thousands of children who meet the following criteria: (1) under 18 in immigration proceedings in the Ninth Circuit on or after June 24, 2016; (2) lack legal counsel; (3) unable to afford an attorney; and (4) potentially eligible for asylum or make claims to U.S. citizenship. The suit charged the U.S. Department of Justice, the Department of Homeland Security, U.S. Immigration and Customs Enforcement, the Department of Health and Human Services, the Executive Office for Immigration Review, and the Office of Refugee Settlement. In failing to provide court-appointed attorneys to unaccompanied minors in immigration court, they were charged with violating the U.S. Constitution’s Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring a “full and fair hearing.”