ABA amicus brief urges rehearing in lawsuit seeking court-appointed lawyers for unaccompanied minors
Unaccompanied minor immigrants are so vulnerable—and the immigration court process so complicated—that they cannot have a fair trial without court-appointed attorneys, the American Bar Association argued Thursday.
That argument came in an ABA amicus brief (PDF) in J.E.F.M. v. Lynch, a class-action lawsuit alleging that child immigrants have such a right. Currently, almost no one of any age is provided a court-appointed attorney in immigration court, because immigration law is civil, not criminal. Immigration law expressly says petitioners have a right to an attorney only at their own expense.
The ABA’s brief supports petitioners’ bid for rehearing and rehearing en banc before the San Francisco-based 9th U.S. Circuit Court of Appeals. A 9th Circuit panel rejected J.E.F.M. for jurisdiction reasons in September, finding that plaintiffs must pursue their claims through individual immigration appeals rather than a class action lawsuit.
However, Judge Margaret McKeown, who authored that panel’s opinion, took the unusual step of writing a concurrence “to underscore that the Executive and Congress have the power to address this crisis without judicial intervention.” She noted that the 2014 “surge” of unaccompanied Central American minors has worsened the situation by increasing demand on a very limited number of pro bono programs that provide representation. Lawyers for the minors petitioned for rehearing earlier in December, arguing that children cannot realistically navigate the immigration appeals process alone.
The ABA’s amicus brief argues that the likelihood of an unrepresented minor succeeding at the Bureau of Immigration Appeals—which hears appeals from immigration court—and petitioning a federal appeals court for review “is remote at best.” Thus, practically speaking, the 9th Circuit panel’s decision is a denial of review, the brief says. All immigrants are at a disadvantage in court because they don’t understand the procedure and often aren’t fluent in English; it’s worse for minors, the brief says, because of their age, inexperience and lack of resources.
“The ABA believes that the ultimate question presented by this case—i.e., whether immigrant children have a right to appointed counsel—is inextricably intertwined with the panel’s jurisdictional ruling,” the brief says. “Without representation, immigrant children face proceedings that ‘largely mirror criminal trials,’ where they must assume duties traditionally expected of attorneys.”
The ABA amicus brief is one of three filed in J.E.F.M. this month. Also arguing in support of rehearing are a group of law professors and a group of retired immigration judges.
See also:
ABAJournal.com: “Immigration judge said some 4-year-olds don’t need lawyers in deportation cases, ACLU lawyer claims”
ABA Journal: “New York program provides public defenders in deportation cases”
ABA Journal:”Minding the Kids”
