Child Migrant Suit Seeks Right to Counsel

More than two-thirds of juvenile immigrants in deportation proceedings do not have an attorney, but the American Civil Liberties Union, (ACLU) of Southern California is pushing to establish the right to government-appointed counsel for defendants in removal cases.

The case s J.E.F.M. v. Holder-a class action lawsuit filed by the ACLU last July on behalf of eight juvenile immigrant plaintiffs. The complaint-stating that unrepresented child defendants in deportation proceedings are being denied their right to due process under the U.S. Constitution-was refiled in October last year when three more plaintiffs were added to the case. They range from ages 3 to 17.

Of more than 60,000 Transactional Records Access Clearinghouse, (TRAC) reported pending deportation cases in 2014, over 43,000 involved a defendant who did not have an attorney.

The [Obama] Administration can fix this with a stroke of a pen,” said Ahilan Arulanantham, the ACLU attorney litigating J.E.F.M. v. Holder. “It isn’t a situation where Congress has stopped the President from doing something.”

The latest order in the case came April, with the Washington State District Court rejecting the Federal government’s motion to dismiss the case, rejecting the defendants’ claims of lack of subject matter jurisdiction and ripeness, as well as failure to state a claim.

Attorneys for several Federal government entities-including ICE and the Office of Attorney General Eric Holder-that are defendants in the suit argued that plaintiffs being represented by the ACLU should seek government-appointed counsel during their individual deportation proceedings. This claim was rejected due to the unlikelihood that the Board of Immigration Appeals would grant the petitioner their request, the Court said.

The appeals process itself would likely require the aid of an attorney, and even if they could enlist one, doing so would disqualify them from receiving government-appointed counsel, the order said.

“We remain optimistic that the judge will agree with us on its [the case’s] merits,” Arulanantham said over the phone. “Unfortunately, the government has tried to slow things down, and they’ve succeeded.”

Immigrant detainees facing deportation are notoriously unrepresented across the board, but TRAC found that an attorney-or lack thereof-is the “single most important factor” in determining the outcome of the case.

“I’ve seen a judge directly address a child who is 7, which is obviously a travesty of justice because they have no grasp on reality,” Arulanantham said.

In other cases, a child defendant may come into the courtroom with a guardian who is treated as informal counsel, he said.

“You’re giving legal power over them to someone who has no idea what they’re doing-no legal skills,” Arulanantham said.

In 2014, 85 percent of those without representation were deported, according to TRAC. That’s compared to the 73 percent of those with an attorney that were able to stay in the country.

Franco-Gonzales v. Holder-another ACLU-litigated case-established that immigrants with severe mental disabilities should have the right to government-appointed counsel because it was determined that “diminished faculty” inhibits their ability to defend themselves Pro Se.

“The government conceded in Franco that immigration statutes do not prevent them from paying for counsel,” Arulanantham said. “That interpretation is binding and inconsistent with the government’s position [in J.E.F.M. v. Holder].”

If the U.S. District Court were to rule in favor of the ACLU’s plaintiffs, there are a number of models under which government-appointed immigration counsel could be rolled out for deportation defendants, Arulanantham said.

One option is to contract with legal service providers that already assist low income immigrant defendants, he said. He noted that such programs already exist.

“The government is already paying or immigrant children,” Arulanantham said. “It’s just not paying for all of them.”

It can also create a public defender system, he said.

The government pays for a lawyer to prosecute children in all cases,” Arulanantham said. “You’re talking about agencies with millions of dollars, so the finances are really a red herring.”

When contacted about the case, personnel with ICE would not comment for this story.

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