At No Expense to the Government – Representation before the Immigration Court

The issue of representation before the Immigration Court has come to the forefront as a result of the increased numbers of immigrant women and children that arrived at the U.S. Mexico border this past summer. U.S. Customs and Border Patrol stated that during Fiscal Year 2014, approximately 66,127 unaccompanied alien children were apprehended.  This was compared to 35,209 in Fiscal Year 2013. Under the law, a child is an “unaccompanied alien child” if they have no lawful immigration status in the U.S., are under 18 years old and have no parent or legal guardian in the U.S.“  6 U.S.C. § 279(g)(2).

Yet, when the non-citizen is a minor child who cannot legally fill out a visa application on their own, this system leads to minors having to secure representation or face a judge alone.  Making this scenario even more nightmarish is the fact that many of these minors and women are being denied the opportunity to bond out of “family detention” centers and thus have no realistic way to secure representation on their own while trapped inside detention centers close to the border.

Last month, the American Civil Liberties Union, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP filed a nationwide class-action lawsuit on behalf of thousands of children who are challenging the federal government’s failure to provide them with legal representation in deportation hearings.

The plaintiffs in this case include a trio of siblings age 10, 13, and 15 whose father was murdered in front of their eyes because their father and mother ran a rehabilitation center for people trying to leave gangs in El Salvador.

The complaint charges the U.S. Department of Justice amongst other agencies 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” before an immigration judge.

Immigration Court is where non-citizens are granted permission to either remain and resume their lives in the United States or be ordered “deported.” An “order of removal” as a deportation order is formally known requires a person to immediately depart the U.S. A person’s deportation can be forcibly achieved if the non-citizen is detained by U.S. immigration authorities as the case with many of these detained children.  Once an order of removal is entered, a non-citizen may not return to the U.S. for a period of ten years absent certain difficult to obtain discretionary pardons or “waivers.” Some individuals are permanently barred from returning to the U.S.

Non-citizens can find themselves before an Immigration Judge under a variety of scenarios. Non-citizens in immigration court are not necessarily loathsome individuals that we wouldn’t want to live in the U.S. There is a distinct misimpression that someone who violates our immigration laws necessarily violates our criminal laws. Time after time, studies have found that immigrants are less likely to commit crimes than the native born population.

Nevertheless, it matters very little if you have been in the country for one day as some of these children have or if you have lived in the U.S. for 20 years if you are suspected of having violated our immigration laws. Offenses that can land someone before the Immigration Court range from not maintaining a full-course load while on a student visa to turnstile jumping to being a drug trafficker. Our immigration law has been shaped to cover health, criminal, national security, and poverty related grounds to find someone ineligible to remain in the U.S.  There are also grounds relating to the lack of proper documentation or repeat immigration violations to the miscellaneous grounds which include practicing polygamists to membership in the Community party.  Most of these unaccompanied children are being charged without being present without being admitted or paroled in the U.S. (i.e. crossing the border without U.S. government permission). I have yet to hear of a child being charged on national security grounds as some pundits suggested of this “surge.”

An order of removal for some non-citizens means separation from loved ones, continued education and U.S. employment. Our law does not consider deportation a punishment though many scholars have argued to the contrary considering the long-term effects and quasi-criminal nature of these proceedings, as stated by Peter L. Markowitz in Deportation is Different.  In drastic scenarios, it also means a return to countries in which their lives are in danger as is the case with some (though admittedly not all) of these children.

It is not a new phenomenon for children to arrive at U.S. borders seeking refuge. What is particularly galling about the current situation is the Obama’s administration’s focus on deporting these children as quickly as possible. A July 9, 2014 order was issued to Immigration Judges prioritizing the deportation hearings of these women and children over all other pending immigration court cases.  In the meantime, the administration continues to open up new “family detention” facilities to keep these children prisoners awaiting their immigration court hearings.  At these centers, crayons are contraband and pro bono attorneys have to ask women to recount stories of their rape and abuse while they nurse their infant children.  Thus, while we cannot spend the money to provide these children with legal representation, it appears that there is plenty of money left to build new “family detention” facilities.

While we recognize that not all children will in fact be eligible to remain in the U.S. it makes a mockery of our justice system to refuse to provide legal representation or counsel to children facing our Immigration court alone. And for the record, children with legal presentation or counsel are more likely to appear for their immigration hearings and successfully achieve lawful status in the U.S. transforming them from “unaccompanied minor children” to the next generation of Americans.

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