9th Circuit considers when immigrant children should get lawyers

A full panel of 9th U.S. Circuit Court of Appeals judges pressed attorneys Monday on the particulars of how providing counsel to minors facing deportation would work, with some seeming to favor representation in some scenarios but not others.

Brought by the ACLU and other nonprofits, the case could result in government-appointed counsel for hundreds if not thousands of children facing deportation. C.J.L.G. v. Whitaker, 2018 DJDAR 9572.

A three-judge panel of the 9th Circuit found in September 2016 in a separate class action that minor children did not have a categorical right to counsel on jurisdictional grounds. In that case, the judges found that the right to counsel claims could only be made case by case.

Before the court Monday, Scott Stewart, a deputy assistant attorney general at the U.S. Department of Justice, argued there are no situations in which a child would need a lawyer to advise them on immigration law regardless of age, and immigration judges already served in a similar fact-finding role.

But Ahilan Arulanantham, senior counsel at the ACLU of Southern California, told the court the U.S. Constitution requires such representation as a due process matter and there is no other place in American law where children are deprived of counsel as in immigration proceedings.

"I think it would be impossible for a 3- or 4-year-old to get due process," Judge Andrew D. Hurwitz said to Arulanantham. "A 16-year-old accompanied by a mother ... might be different," he added referring to C.J.L.G's case. "Do we have to address the broader issue in this case or is there a narrower issue?"

Arulanantham cautioned that drawing a line giving some minors lawyers but not others would be difficult and that even if a child were accompanied by a parent, that parent could not effectively serve as an immigration lawyer.

Judge Consuelo Callahan pressed Arulanantham on when counsel should be appointed in an immigration case. He responded that a lawyer should be present whenever a child is in front of an immigration judge and could be deported.

Callahan pushed back, noting the U.S. Supreme Court previously found that right to counsel in parental determination cases for children should be on a case by case basis. She also pointed to immigration regulations allowing parents to potentially act as defense attorneys for immigrant children.

"We contend that that is itself a due process violation," Arulanantham responded.

The judges seemed to take issue with Stewart's rigid position that children were never entitled to attorneys, no matter their age.

"The government has basically been characterized as Attila the Hun here in going to the extreme that 3-year-olds would have to represent themselves," Callahan said. "When, if ever, would it be appropriate to appoint counsel for a minor in an immigration removal proceeding?"

After continued questioning from Hurwitz over differences in what had been written in government briefs, Stewart said, "I am arguing 'never.'"

"The right argued for here is a categorical one. It's sweeping," he added, characterizing the ACLU's position as overbroad.

"But it doesn't have to be," Judge Susan Graber said. "That's the wish list of opposing counsel but we're not bound to that."

Judge M. Margaret McKeown probed Stewart's position on whether it made a difference if a child had a parent or guardian with them.

"The question there, your honor, is whether the minor can get a fair hearing," Stewart said. "The immigration judge is there to evaluate: 'Can this particular minor get a fair hearing?'"

Stewart stressed that immigration judges are obligated to probe and ask questions to determine what immigration remedies, if any, a person is entitled to.

"I think the answer to my question is, 'No, you don't make a distinction,'" McKeown concluded.

Arulanantham on rebuttal cited a friend-of-the-court-brief submitted by a group of immigration judges saying they simply did not have the time or resources to ask the kinds of questions an appointed attorney would.

Illustrating the complexity of the case, one of the judges, although it was not clear who, could be heard on a microphone after the case had been submitted saying, "What a mess."