U.S. Immigration Court’s Dirty Secret

Rob Garver

U.S. immigration law is among the most complex and challenging specialties in the legal profession, a fact noted by one federal judge who said the field is viewed as “second only to the Internal Revenue Code in complexity.”

Most people would view it as a scandal if young children, facing possible expulsion from the country on immigration charges, were forced to represent themselves in deportation hearings without benefit of legal counsel.

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But every day, in courtrooms across the country, that’s what happens. The much-reported surge in unaccompanied minors crossing the Southern border in recent years has led to an equivalent jump in the number of young people appearing in immigration court, a majority of whom are too poor to be able to afford a lawyer.

Thousands of these children have fled horrific violence and abuse in their home countries and arrive in court with legitimate claims for asylum. For various reasons, including age and a language barrier, many are unable to articulate those claims effectively. But they are still forced to defend themselves against a trained attorney representing the US government, whose job is to argue for their deportation.

“I’ve seen infants brought up to the bench by a social worker. I have seen five-year-olds sitting in the counsel chair where their feet can’t even touch the ground. It is so heart-wrenching it is almost comical,” said Caitlin Sanderson, program director for Esperanza Immigrant Rights Project, an affiliate of Catholic Charities of Los Angeles that provides free legal services to immigrant children.

Groups like Sanderson’s and others that offer free legal services are increasingly unable to handle the caseload. In the first six months of 2014, according to Syracuse University’s Transactional Records Access Clearinghouse, less than 30 percent of juveniles tried in U.S. immigration court were represented by an attorney.

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There’s no doubt having a lawyer clearly makes a difference. Again, according to TRAC data, of the children represented by counsel so far this year, two-thirds were found to have legitimate claims and were allowed to remain in the U.S. Of those without representation, three-quarters were deported. Cumulative data stretching back to 2005 makes the situation of unrepresented children look even worse. Over that time frame, 90 percent of them have been deported, compared to only 53 percent of those with an attorney.

For the youngest of children, immigration judges will frequently pressure the government to close a case, at least temporarily, until some kind of legal representation can be secured. But for teenagers, even those who would still be in middle school if they were U.S. citizens, too often the gloves come off.

“It’s an absolutely ridiculous system,” said Sanderson. “Imagine a 13- 14- 15-year old representing themselves in court. They certainly still are not sophisticated enough to understand the impact the proceeding can have on them.” Nevertheless, she said, “I’ve seen government prosecutors who do not feel the need to provide leniency or to make any adjustments to the courtroom procedure to let these kids figure out how to defend themselves.”

A coalition of immigrant advocacy groups recently filed a lawsuit seeking class action status for minors caught up in the immigration system without legal representation. Change in the rules governing youth in the courts, they argue, is long overdue.

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“This is not a new problem, although it has been the focus of more attention lately,” said Beth Werlin, deputy director of the American Immigration Council’s Legal Action Center. “The government does not believe that the children have the right to an appointed lawyer.”

“Anybody who would like to retain a lawyer is free to do so,” she said. “But the government will not provide one regardless of your circumstances.”

The American Immigration Council, along with the Northwest Immigrant Rights Project and the American Civil Liberties Union have filed suit in U.S. District Court in Seattle to change that. The suit seeks class action status for minors facing immigration hearings.

The plaintiffs acknowledge that there is no debate about whether, under current law, suspected illegal immigrants have the right to government-funded representation in immigration court. They don’t. These are civil proceedings, and unlike criminal cases, don’t grant the accused the right to an attorney.

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What the suit does assert is that they have a Constitutional right to due process. And their argument is that due process is fundamentally denied when a child is required to gather evidence, present legal arguments, and critique the case of a prosecuting attorney all in a language he or she doesn’t even speak.

In such cases, the suit claims, “The resulting adjudications are fundamentally unfair. Children are forced to admit or deny allegations against them, compile evidence in support of their claims to remain in the United States, and articulate legal arguments on their own behalf” when they cannot be expected to understand either the charges against them or the remedies available to them.

The plaintiffs argue that the only way to ensure due process in these cases is to provide a court-appointed attorney.

If the fundamental unfairness of pitting a child against a trained attorney isn’t enough to move the courts or lawmakers, complaints about the basic inefficiency of the system might.

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In a letter sent to Congressional leaders last week, Judge Dana Leigh Marks, a federal immigration court judge who also serves as the president of the national Association of Immigration judges, said that the current system is inefficient and ineffective.

In the letter Marks’ main point was to argue against a proposal that would require the cases of juvenile immigrants to be decided within seven days. But many of the points she made are relevant to the issue of representation.

“In the vast majority of cases, the burden of proof to demonstrate eligibility for relief rests on the minor, even though their ability to gather the evidence necessary to support their claim…is greatly reduced because of age. In many cases, the lack of corroborating evidence may be fatal to a claim for relief from removal.”

Marks argued that when immigrants have legal representation, the process is faster, fairer, and more efficient.

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“It is our experience that when non-citizens are represented by attorneys, immigration judges are able to conduct proceedings more expeditiously and resolve cases more quickly,” she wrote Representation of immigrants, she added, results in fewer court appearances before the immigration judge, and fewer appeals of the initial ruling.

Her analysis is supported by a study released earlier this year by the NERA Consulting Group, which found that given the expected decrease in costs for detention, foster care, transportation and other costs would be offset by a federal program providing free legal representation to illegal immigrants without the means to hire attorneys themselves.

According to the NERA study, the government’s cost for providing legal representation would be slightly more than $200 million per year — roughly the same amount spent on caring for indigent immigrants in the period prior to trial.

In the end, though, the most powerful argument in favor of providing indigent children with an attorney to protect their rights is based on the concept that, if nothing else, what happens in court should be fair.

And as even Attorney General Eric Holder has noted, that’s not currently the case.

In testimony before Congress last year, said, “It is inexcusable that young kids--…six-, seven-year-olds, fourteen year-olds – have immigration decisions made on their behalf, against them,…and they’re not represented by counsel. That’s simply not who we are as a nation.”

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