Absurd Self-Representation By Children In Immigration Court Continues

Yesterday, in immigration court, I saw three children take the stand without an attorney. Just a reminder that we live in a society where we expect an eight year old who fled violence in Central America to represent herself against a federal prosecutor.

- Freelance Denver journalist Erin Rosa in a Facebook post of April 26, 2017.

A class action lawsuit on behalf of the children forced to represent themselves in deportation proceedings was certified last June. Two-thirds of unaccompanied children in the process are unrepresented. For example, this was about 40,000 of 60,000 children in 2014.

But, this decision was reversed by the 9th Circuit Court of Appeals in an interlocutory appeal of that decision in a September 20, 2016 opinion, on the theory that generally speaking the law requires cases in the immigration courts to be appealed through the immigration court appeals system from which an appeal may then be brought to a United States Court Court of Appeal (such as the 9th Circuit) on a case by case basis, thus depriving the U.S. District Court of jurisdiction.

The District Court and the 9th Circuit agreed that "because the right-to-counsel claims “arise from" removal proceedings, they must be raised through the administrative petition for review process pursuant to 8 U.S.C. §§ 1252(b)(9) and 1252(a)(5)." But, the 9th Circuit reversed the District Court's ruling that it had jurisdiction over the minors’ constitutional claims. As explained in the Official Summary of the ruling:

The panel held that the district court erred in finding that an exception to the Immigration and Nationality Act’s exclusive review process provided jurisdiction over the due process right-to-counsel claims. The panel held that the district court incorrectly found that the claims challenged a policy or practice collateral to the substance of removal proceedings, and that because an Immigration Judge was unlikely to conduct the requisite due process balancing the administrative record would not provide meaningful judicial review.

All three judges on the panel wrote concurring opinions. Judge McKeown, who wrote the Court's primary opinion, joined by Judge Smith, decried the state of affairs and urges the President and Congress to do something about it. Judge Kleinfeld observed, as paraphrased in the summary, "it is unlikely that children or even adults can protect all their rights in deportation proceedings without a lawyer.", but viewed the issue as basically a political question.

As the opinion explains, the counsel for the children in the class action case argued as follows:

Minors who obtain counsel in their immigration proceedings will be unable to raise right-to-counsel claims because they have no such claim. As a practical matter, children who lack counsel will be unable to reach federal court to raise a right-to-counsel claim because they are subject to the same exhaustion requirements and filing deadlines that apply to adults. Even if an unrepresented child were able to navigate the PFR process, the child would still be deprived of meaningful judicial review, because the record on appeal would be insufficient to sustain review. Because, according to the minors, their right-to-counsel claims will never see the light of day through the PFR process, the panel should construe § 1252(b)(9) as not covering these claims.

This theory tracked language in the U.S. Supreme Court case of McNary v. Haitian Refugee Center, 498 U.S. 479, 487 (1991). But, the 9th Circuit panel held that the statute interpreted in that case was less airtight in how it procedural channeled litigants than the statute applicable to removal proceedings. The panel suggests alternative ways that the issue might be raised in the ordinary immigration appeal process, although its suggestions seem fanciful, especially in cases involving young children some of whom in this case were as young as three years old.

They weren't willing to cut the Gordian knot that deprives children of an ability to obtain the legal assistance they need to obtain legal assistance. As it stands, the procedural provisions of that law deprive unaccompanied minor children of any meaningful way to vindicate their procedural right to counsel, which constitutional due process requirements surely require.

An amicus brief in the case has urged the 9th Circuit to reconsider this decision en banc.

The situation as it stands is absurd. Four month old children are told by immigration judges to show up to rescheduled hearings three years in the future.

An immigration judge called as an expert witness in a deposition in the class action case before it was tossed on jurisdictional grounds, claimed that three and four year olds were competent to represent themselves in immigration court, even though college educated adults are not permitted to do so on behalf of others without having earned a law degree and passed the bar exam.

Needless to say, despite judicial pleas that the President and Congress address the issue, this is unlikely.

President Trump's first 100 days in office have been marked by two unconstitutional executive orders designed to shut down immigration from certain predominantly Muslim countries in the Middle East and a surge in deportations in violation of the Immigration and Customs Enforcement "sensitive places" rule. Both houses of Congress are controlled by Republicans who have been historically hostile to both immigrants (especially refugees), and to due process generally.