Immigration Judges Are Still Nuts

I don't practice immigration law because the system is so unfair that it would drive me crazy. Life changing decisions are frequently made with processes that don't remotely stand up to any fair notion of due process.

A federal immigration judge believes migrant toddlers can defend themselves in court, according to a deposition in a court case brought by advocates seeking government-appointed attorneys for the youths.

"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Judge Jack Weil said. "They get it. It's not the most efficient, but it can be done."

From the Los Angeles Times.  The Washington Post story from which the L.A. Times story was derived makes clear that this is not just a hypothetical.  The United States really does have children five years of age and younger represent themselves in deportation hearings and three Plaintiffs in the ACLU class action case are under the age of five.

According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney. It is unclear how often children 5 or younger are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.

Senate Minority Leader Harry M. Reid (D-Nev.) and other Democrats this month introduced a bill mandating government-appointed counsel for children in immigration court who had crossed the border alone or are victims of other duress such as abuse, torture or violence. In a Feb. 11 speech on the Senate floor, Reid said he was told about one case in which a 5-year-old girl was brought before an immigration judge.

“This little girl was clutching a doll and was so short she could barely see over the table to the microphone,’’ Reid said. “She was unable to answer any questions that the judge asked her except for the name of her doll: ‘Baby Baby Doll.’ That was the name of her doll.”

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children — most of whom cannot speak English and must use government-provided interpreters — are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Judge Weil claimed in a deposition in an ACLU class action lawsuit, that "I have trained 3-year-olds and 4-year-olds in immigration law. You can do a fair hearing."

Judge Weil did concede that it might be hard for a one year old who can't talk yet to represent himself or herself fairly in an immigration hearing.

Weil is being offered as an expert witness for the federal government on this issue:

The government had offered Weil as an expert witness in the case, and submitted his deposition to the court in January to support its position that attorneys should not be mandatory for youths in immigration court.

A graduate of the University of Maryland and its law school, Weil served first as a law clerk in San Diego immigration court before rising through the ranks as an immigration judge in El Centro, Calif., and finally assistant chief immigration judge responsible for overseeing policies in the country's 58 immigration courts. He also oversees the training of judges, court administrators, interpreters, legal technicians and law clerks.

Anyone with a little common sense and any experience with children 3 or 4 years old, knows that his position is absurd. It destroys his credibility as an expert on anything.

Susan Terrio, an anthropology professor at Georgetown University, interviewed dozens of unaccompanied minors as well as immigration attorneys and judges for her book published last year, "Whose Child Am I? Unaccompanied, Undocumented Children in U.S. Immigration Custody."

All of the attorneys she interviewed received special training in immigration law before representing children in court, Terrio said.

"If a graduate of an American law school needs specialized training in order to provide competent legal representation, it strains credulity for an immigration judge to insist that he can train a young child in complicated legal concepts and procedures," she said, "particularly when that child is from a different culture, does not speak English, does not yet read in her native language, is apprehended and held in custody after an often dangerous and traumatizing journey to the U.S., and has no government-appointed attorney or child advocate."

All 31 of the immigration judges she interviewed supported providing legal representation for youths in immigration court, Terrio said, "because it would be more ethical and efficient."

The ACLU lawyer who deposed Weil said he was "mystified" and "flabbergasted" by the judge's comments — and by the department's backtracking.

The time has come for higher-ups to intervene in this litigation where the United States government is taking positions that President Obama can't possibly agree with himself.