Unrepresented immigrant youth, Esq.

For lawyers who represent children in deportation proceedings, the courtroom images can start to lose their sting over time: preschoolers whose feet don't touch the ground sitting alone before a judge; asylum-seeking teenagers who've fled dangerous situations in Central America, again, appearing without counsel before a judge; swaths of anxious family members packing into hallways and courtrooms hoping for good outcomes but often not knowing how to make those a reality.

Immigration court proceedings are administrative hearings, civil in nature. Because of this, there is no right to government-funded counsel under the Sixth Amendment in these proceedings. This is the case even though the U.S. Supreme Court has recognized that deportation is a "particularly severe 'penalty,'" that can be the "equivalent of banishment or exile." Padilla v. Kentucky, 599 U.S. 356, 365, 373 (2009). For those seeking refuge in the United States, we know that in many cases an order of deportation is akin to a death sentence: According to a forthcoming report by social scientist Elizabeth Kennedy, 83 people who had been deported from the U.S. were murdered in Guatemala, Honduras and El Salvador from January 2014 to September 2015. We also know that legal representation makes a critical difference in the outcome of children's immigration cases.

A report by the Transactional Records Access Clearinghouse showed that from 2012-2014 (when the recent surge in unaccompanied minors from Central America began), in 73 percent of the cases in which the child was represented, the court allowed the child to remain in the United States. However, when the children did not have an attorney, only 15 percent were successful in their cases. Clearly, legal representation makes all the difference in children's cases, many of whom are eligible for some form of protection against deportation.

In response to this dire situation, the ACLU, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel and K&L Gates LLP filed a nationwide class action on behalf of unrepresented children entitled J.E.F.M. v. Lynch in the summer of 2014. Counsel for the minors argued that children have statutory and constitutional rights to appointed counsel in immigration proceedings. Although minors lack the same mental capacity as adults, they are forced to appear in deportation proceedings against trained government attorneys and seek relief and assert defenses under complex immigration law. As a result, counsel argued that these children are deprived of their right to a fair hearing. The claim was based on the Immigration and Nationality Act's (INA) guarantee of a "full and fair hearing," as well as the Fifth Amendment's promise of due process of law.

Over the past two years, the case has made advances - including certification of a class of children in immigration proceedings in the 9th U.S. Circuit Court of Appeals - and suffered some setbacks. It made nationwide headlines when a longtime immigration judge who trains other judges said in a deposition that he has "taught immigration law literally to 3-year-olds and 4-year-olds," suggesting that though it may take extra time, a toddler could represent herself in court.

On Sept. 20, however, the 9th Circuit held that federal district courts lack jurisdiction even to consider the minors' constitutional claims. The panel agreed with the lower court that the minors' statutory claims under the INA must be raised through the administrative and petition for review process outlined in the INA. But departing from the lower court's analysis, the panel then found that the district court lacked jurisdiction even to hear the constitutional claims, reasoning that the due process right to counsel claims did not constitute an exception to the INA's exclusive review process. This holding prohibits both a class action lawsuit like J.E.F.M., as well as an individual immigrant child's due process claims in federal district court.

In practice, the 9th Circuit's decision makes it very unlikely that a child will ever even have the chance to argue for a right to counsel in immigration proceedings. In fact, as envisioned by the 9th Circuit, the only way an unrepresented child could do so is by (1) preserving in her individual case in immigration court that she has a right to appointed counsel; (2) losing her case; (3) filing an appeal to the Board of Immigration Appeals; (4) losing again; and (5) filing an appeal to the federal circuit court. This path requires an unrepresented child to make sophisticated arguments in immigration and federal court, as well as avoid deportation despite having a final order of removal. As lawyers with expertise in immigrant youth issues, we find the 9th Circuit's proposal difficult to square with the realities of childhood and the complexity of immigration law and practice.

In a concurrence to the decision, two judges expressed concern for the situation of unrepresented children, but called on Congress and the executive branch to act to address this crisis. While a legislative fix could solve this problem, history demonstrates that it is unlikely. Children have been appearing without lawyers in immigration court for decades, but the government did not make any significant effort to provide representation for children until the summer of 2014, when the number of unaccompanied children drastically increased and the J.E.F.M. case was filed. Only then did the government increase funding for nonprofit organizations in certain cities to be able to represent more children. With the 9th Circuit's most recent ruling taking the pressure off the federal government, it now seems even less likely that Congress will act to protect immigrant children, particularly given the current anti-immigrant climate.

The 9th Circuit's Sept. 20 ruling leaves children to rely on the availability of nonprofit and pro bono attorneys who have been struggling to fill the representation gap. However, with over 125,000 unaccompanied children having entered the U.S. in the last three years, all the goodwill in the world can't make up for the fact that there simply are not enough skilled free and nonprofit attorneys available to represent them. For now, preschoolers will continue to appear without counsel in deportation proceedings, and lawyers for the children in J.E.F.M. will call on the 9th Circuit to reconsider its ruling - they have already stated their intention to file a petition for review en banc.