Suit Seeking Lawyers for Children Facing Deportation Goes Forward

Monday, May 2, 2016

A federal court in April turned down the government’s request to dismiss a class-action lawsuit seeking to have legal representation provided for thousands of children nationwide facing deportation hearings. U.S. District Court Judge Thomas Zilly rejected a Dept. of Justice assertion that certain due process rights afforded by the Fifth Amendment don’t apply to immigrants who have not been formally “admitted” to the country.

A three- to five-day trial in the case is expected to take place this fall in Seattle. The suit (J.E.F.M. v. Holder) was filed by the ACLU, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.

Each year, the government initiates immigration court proceedings against thousands of children. Some of these youth grew up in the U.S. and have lived in the country for years, and many have fled violence and persecution in their home countries. The Obama administration even has called an influx of children coming across the Southern border a "humanitarian situation." And yet, thousands of children required to appear in immigration court each year do so without an attorney. This case seeks to remedy this unacceptable practice.

"If we believe in due process for children in our country, then we cannot abandon them when they face deportation in our immigration courts," said Ahilan Arulanantham, senior staff attorney with the ACLU's Immigrants' Rights Project. "The government pays for a trained prosecutor to advocate for the deportation of every child. It is patently unfair to force children to defend themselves alone."

The suit charges the federal government with violating the 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.

A senior immigration judge set off a national furor in March when media reported that he had opined in a deposition for the suit that pre-school children can represent themselves well enough in immigration proceedings. “I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” he said. “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.”

Several former immigration lawyers spoke out to challenge his assertion. And skeptics posted videos of what happened when they tried to speak with toddlers about basic concepts involved in immigration law.