Non-Representation Of Immigration Children Sheds Light On System

As reported by the LA Times: Karla Salazar, right, and Ellen Leonard on Tuesday joined nearly 100 demonstrators at the naval base in Port Hueneme, where hundreds of immigrant children are being housed. (Robert Gauthier / Los Angeles Times)

As reported by the LA Times: Karla Salazar, right, and Ellen Leonard on Tuesday joined nearly 100 demonstrators at the naval base in Port Hueneme, where hundreds of immigrant children are being housed. (Robert Gauthier / Los Angeles Times)

In a country where citizens are only vaguely aware that immigration is mostly controlled by civil, not criminal, courts, the ongoing “unaccompanied children” crisis is serving to shed some light on how the civil courts work – or, more exactly, how they sometimes don’t work. Now a coalition of immigration groups has filed a federal lawsuit against the United States over non-representation of these children, The Los Angeles Times is reporting.

The Times reports that “… the immigrant advocacy groups that filed suit are targeting ongoing actions in which immigration officials have initiated proceedings to deport thousands of minors, both recent arrivals as well as those who have lived for years in the United States but without permission. Many of the children never hire attorneys, appearing in court by themselves. Because immigration cases are civil, not criminal proceedings, defendants are not guaranteed the right to legal counsel.”
The immigration groups make the same basic argument that other juvenile advocates make, “… attorneys argue that children are not equipped to represent themselves in serious cases that can determine their future, lacking the intellectual and emotional capacity of adults as well as knowledge of legal remedies that may be available to them.”

Meanwhile, federal authorities say that some of the 243 immigration judges in 59 courts nationwide will be reassigned to hear the cases, either at the border or by video with some new judges appointed temporarily. Clearly, the issue is not going away – read some of the Times’ excellent coverage here.

Child-Immigration Crisis Also A Civil Court Crisis

With President Obama asking Congress for a quick $2 billion to address the growing crisis on the U.S.-Mexican border, it is worth noting that the system failure is not just about immigration policy or border enforcement – it’s really a failure of civil courts capacity. Many Americans learning about the crisis are surprised to discover that immigration issues are “civil” and not “criminal,” and that the core of the problem is that tens of thousands of children are due a day in court – and that day will not come for years and years.

As reported by NPR: Detainees sleep and watch television in a holding cell where hundreds of mostly Central American immigrant children are being processed at a U.S. Customs facility in Nogales, Texas.

As reported by NPR: Detainees sleep and watch television in a holding cell where hundreds of mostly Central American immigrant children are being processed at a U.S. Customs facility in Nogales, Texas.

Background: National Public Radio and others are drawing attention to the fact that, over the past nine months, “… more than 50,000 children and teenagers have crossed that border illegally on their own, most from Central America. By law, the administration can’t deport those young people until they have an immigration hearing — a process that can take years.” The immigration law is different for people from Mexico, who can be returned much faster.

Says NPR: “… law requires the U.S. to hold an immigration hearing before deporting a child from Honduras, Guatemala, El Salvador or any other country that doesn’t border the U.S., says Marc Rosenblum of the Migration Policy Institute. The law aims to protect vulnerable young people from being inadvertently sent home into forced labor or the sex trade.”

“While they wait for that immigration hearing, the law also requires that they be held in the least restrictive custody setting,” Rosenblum tells NPR. “What that means in practice is that most of these kids are getting placed with family members in the U.S. while they wait for an immigration hearing.”

Because the immigration courts are overloaded, the average wait is nearly two years, Rosenblum adds in the NPR coverage.That means what we’re seeing is really a high-profile example of what happens when civil courts can’t meet demands. There is very likely a similar situation in many of our family courts and other systems, and those will eventually bring their own “crisis” headlines.


Here’s the NPR report: Obama To Ask Congress For $2B To Ease Immigration Crisis

Immigration: Civil Vs. Criminal Approach

With Independence Day media attention focused on the “border children” challenging immigration capacity and policy, some are surprised to discover that immigration is a civil, not criminal, legal action. That means that “illegal” immigrants have not broken a law, but face deportation.

The concepts are examined pretty well at the biased-but-honest website “stopimmigrationnow.com“, which notes that “… the United States, we often refer to people who are in the United States without permission from the government as ‘illegal aliens.’ Calling people ‘illegals’ gives the false impression that they have committed a crime. However, being in the United States without documentation is not a crime. It is a violation of immigration laws, and there is no punishment for illegal presence.”

Again noting that it is certainly an activist site, you can get a good feel for how “criminal vs. civil” might impact cases, including the right to legal representation, at the website: Social Scientists on Immigration Policy: Is Immigration Law Civil or Criminal?

Immigration Illustrates Civil Vs. Criminal Rights

One huge advantage the U.S. Government has in deporting children who arrived in the country, perhaps illegally, is the difference between civil and criminal charges. The National Public Radio stories that have helped shine a spotlight on Central American children being held in jail-like conditions notes that “… the immigration court system is complicated, and many children do not have the benefit of an attorney. The government is not required to provide legal representation, as in criminal cases, because immigration is a civil matter.”

NPR offers an example of what that means: “… according to immigration lawyers, if a child is picked up by Border Patrol in Texas, the venue for the first court appearance would likely be in the Lone Star State, even if the child has since been reunited with her family in Iowa. As a result, many children miss court deadlines and are automatically placed in deportation proceedings.”

NPR also explains that “… immigration court is a traditionally adversarial process, with a prosecutor who usually makes the case that a child should be deported and, in the best case, a lawyer representing the child. But if the child has no lawyer, there is little chance that she or he will be able to stay, even if they have a valid asylum claim.”

AP: NYC Creates First ‘Public Defender For The Poor’

New York City has created what’s being called “the nation’s first system of public defenders for poor immigrants facing deportation,” according to the Associated Press and other news organizations.

Called “The New York Immigrant Family Unity Project,” the office will cover “… all [mostly financially] eligible immigrant city residents detained in the system and appearing in immigration courts in New York City or the New Jersey cities of Elizabeth and Newark,” the AP reported, adding that state lawmakers approved $4.9 million for the initiative as part of the $75 billion budget passed early Thursday for the fiscal year which starts July 1.

Quoting Oren Root, who works for the Vera Institute of Justice that is managing the project, the AP notes that “… immigration law is incredibly complex, and it is exceedingly difficult for immigrants to succeed in making a case for themselves—even if they have legal grounds for one—if they don’t have an attorney. Root added that data shows immigrants without attorneys won their cases about 3% of the time, while those with attorneys were much more likely to be successful.
“The thought that they can go up against trained government lawyers and have any chance to win their cases is just a pipe dream,” said Mr. Root, director of the institute’s Center on Immigration and Justice.