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Federal Judge Claims Three-year-olds Can Understand Immigration Law

by Christopher Zoukis

In a deposition taken in a federal lawsuit challenging the lack of legal representation for children in deportation hearings, a longtime immigration judge caused the Justice Department to distance itself from his claim that he had “taught immigration law literally to 3-year-olds and 4-year-olds” well enough to ensure “a fair hearing.”

He repeated that claim twice, adding, “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”

“I nearly fell off my chair when I read that deposition,” said Laurence Steinberg, a Temple University psychology expert. “Three- and 4-year-olds do not yet have logical reasoning abilities. It’s preposterous, frankly, to think they could be taught enough about immigration law to be able to represent themselves in court.”

Jack H. Weil, an assistant chief immigration judge in the Executive Office for Immigration Review (EOIR), is responsible for coordinating the Justice Department’s immigration judge training program. EOIR spokeswoman Lauren Alder Reid stressed that “at no time has the Department indicated that 3 and 4 year olds are capable of representing themselves,” adding that “Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of EOIR or the Department of Justice.”

In the case at issue, J.E.F.M. v. Lynch, the ACLU deposed Judge Weil as it argued that children have due process and statutory rights to counsel in deportation proceedings. Currently, no defendant of any age is provided with court-appointed attorneys in immigration court because they are not technically accused of crimes, but rather civil offenses.

However, the Vera Institute of Justice estimates that 40 percent of immigrant children unaccompanied by a parent or guardian are likely eligible for some form of relief from removal. Those who have lawyers are much more likely to successfully navigate the legal system and stay in the country. According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), in all deportation hearings over the last five years, children with attorneys won 85 percent of the time. Those without legal counsel lost 87 percent of the time.

But only about one-third of children are able to secure an attorney in deportation cases. Surveying a decade’s worth of court reports, a TRAC study “found that whether or not an unaccompanied juvenile had an attorney was the single most important factor influencing the case’s outcome.”

Then-U.S. Senate Minority Leader Harry M. Reid described 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 Doll.’ That was the name of her doll.”

Judge Weil was deposed as an expert witness for the government, which argued against providing legal representation to children in immigration deportation hearings. The case was dismissed by the Ninth Circuit Court of Appeals on September 20, 2016 due to lack of jurisdiction, because under federal law immigration courts are the exclusive venue for review of the children’s civil rights claims. In so ruling, the appellate court reversed a district court judge who had dismissed the plaintiffs’ statutory claims but allowed their due process claims to proceed.

Many immigrant children, particularly in the past few years, have entered the United States from three Central American countries after a gang truce ended in 2012 and conditions deteriorated in El Salvador, Honduras and Guatemala. Save the Children’s June 2017 “End of Childhood” report noted that these three countries have some of the highest rates of child homicide in the world.

In arguing against the plaintiffs in the case, the Justice Department noted that nothing in the U.S. Constitution requires the provision of attorneys for children in the immigration deportation context. But former Attorney General Eric Holder, Jr., in comments made to the Hispanic National Bar Association in 2014, said the Constitution is not the only place to look for guidance.

“Though these children may not have a constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel,” he stated.

Ninth Circuit Judge M. Margaret McKeown emphasized in her majority opinion that this was not a ruling on the merits of the children’s claims, but rather on the technicalities of the law. She also authored an unusual concurrence calling on the president and Congress to create a political solution to what she saw as a serious problem that federal courts cannot address.

“I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings,” McKeown remarked, joined by Judge Milan Smith. “I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. So what is missing here? Money and resolve – political solutions that fall outside the purview of the courts.” See: J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016). 

 

Sources: New York Times, Washington Post, Christian Science Monitor, ABA Journal, www.thinkprogress.org, www.americanimmigrationcounsel.org

Related legal case

J.E.F.M. v. Lynch


 

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