Feds Argue Kids Don't Need Lawyers in Immigration Court

By Lisa M. Schaffer, Esq. on December 12, 2018 | Last updated on March 21, 2019

A baby in a basket is clearly capable of representing oneself in immigration court.

At least, that's the view of Justice Department attorneys arguing against providing any immigrant free legal counsel during immigration, asylum, or deportation proceedings.

Right to Immigration Representation Issue In Front of Ninth Circuit

An eleven member panel of Ninth Circuit federal judges is currently hearing arguments regarding whether or not immigrant children should have free legal representation in immigration court removal proceedings. Specifically, this case centers around an immigrant minor, C.J., who asked for asylum when emigrating from Honduras at the age of 13, claiming that violent gangs were threatening to harm him if he didn't join their ranks. An immigration judge rejected his asylum claim. C.J. appealed this decision, claiming that he should have been appointed free legal representation at that immigration hearing. In January of 2018, a three-member appeals court panel unanimously agreed that C.J. was not entitled to such representation, and now the issue is being brought in front of a larger Ninth Circuit federal judge panel.

Immigration Court - A Different Animal

The question is complicated on many levels, primarily because immigration court has different procedural rules than standard courtrooms. Unlike civil and criminal courts, judges decide immigration court cases, not juries. These judges have a heavy caseload, almost double that of regular courts. Many feel that a lawyer representing the immigrant would help bring important factors in individual cases to the judge's attention more clearly and efficiently, given the judge's demanding caseload. Also, there is no constitutional requirement for the defendant immigrant to have legal representation, since this is not considered a criminal trial. 

In about 60% of immigration trials, it is merely the judge, the federal prosecutor, and the self-represented immigrant. And in this case, that immigrant is a minor. Another difference to keep in mind is that immigration law is one of the most complicated types of law. There are many procedural and substantive laws to know, and also many different paths to citizenship, and deportation. It would be almost impossible for a layperson, especially a child whose primarily language in not English, to adequately defend themselves in immigration court, according to ACLU attorney Ahilan Arulanantham.

Feds "Can't Think of a Situation" Where Lack of Representation Would Be Unfair

Federal prosecutors beg to differ. "Existing law, existing procedures, and existing duties give children of all ages the help they need and the help that due process and federal statutory law requires," according to Justice Department lawyer Scott Stewart. U.S. Circuit Judge Andrew Hurwitz challenged Stewart on this issue, asking "So your view is there can be a fundamentally fair proceeding with a two-year-old in front of an immigration judge with no representation at all," U.S. Circuit Judge Andrew Hurwitz asked. "Would an appointed lawyer ever be required?" Stewart replied: "I can't think of a situation." Stewart even went so far as to say that he thought an immigration proceeding involving "a baby in a basket" would still be fundamentally fair.

If you or someone you love is facing immigration issues, contact a local immigration attorney. Many lawyers will take these cases on a free, or low-cost basis, if you cannot afford their fees. Immigration laws are complex and ever changing. Don't feel you have no choice but to go it alone. Contact one today. It could make all the difference.

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