Immigration Law

9th Circuit rejects bid for lawyers for child immigrants but calls for a change in the law

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The San Francisco-based 9th U.S. Circuit Court of Appeals has dismissed an ambitious lawsuit seeking court-appointed counsel for minors who are in deportation proceedings.

J.E.F.M. v. Lynch argued that the minors have due process and statutory rights to counsel in deportation proceedings. Currently, no one of any age is provided with a court-appointed lawyer in immigration court because those before the court are not accused of crimes.

According to the National Law Journal (sub. req.), the court said it had no jurisdiction, because immigration law says immigration courts are the exclusive venue for review of the minors’ civil rights claims. In so ruling, the 9th Circuit overturned a Seattle district judge, who had dismissed the plaintiffs’ statutory claims but permitted the due process claims to go forward.

Despite the outcome, Judge Margaret McKeown emphasized in her majority opinion (PDF) that this was not a ruling on the merits of the minors’ claims. She also authored an unusual concurrence calling on the President and Congress to create a political solution to what she saw as a serious problem that federal courts cannot address.

“I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings,” wrote McKeown, joined by Judge Milan Smith. “I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve—political solutions that fall outside the purview of the courts.”

McKeown noted that J.E.F.M. arose out of the 2014 child migrant crisis, in which thousands of minors, mainly from Central America, appeared at the U.S. border seeking asylum from rampant gang violence at home. Thousands of children are thus “left to thread their way alone through the labyrinthine maze of immigration laws,” she wrote, which have been compared in their complexity to the Internal Revenue Code.

There’s only so much immigration courts with extremely limited resources can do against this onslaught of cases, she wrote, and though there are a few programs providing lawyers to the minors, they’re “a drop in the bucket in relation to the magnitude of the problem.”

Child immigrant advocates who brought the lawsuit told the Associated Press they would appeal. Matt Adams, legal director of the Northwest Immigrant Rights Project, said it was unreasonable for the 9th Circuit to expect unrepresented children to pursue their claims through an immigration appeal, the alternative offered by the court. This would require filing the appeal by a deadline, writing briefs, obtaining a final order and then going to a federal appeals court, where they would be permitted to argue their due process claims, he says.

“The court determined that a theoretical possibility for judicial review suffices even where as a practical matter, the thousands of unrepresented children will be ordered deported without ever having an opportunity to argue that they need an attorney to get a fair hearing,” Adams told Politico.

A one-paragraph special concurrence from Senior Judge Andrew Kleinfeld agreed that unrepresented children cannot adequately protect their rights in immigration court, but argued that advocacy of a particular solution is better left to the political process.

J.E.F.M. made headlines earlier this year when an expert witness for the government, immigration judge Jack Weil, said in a deposition that he could teach immigration law to children as young as 3 and 4.

See also:

ABA Journal: “Minding the Kids”

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