Lawyers: Children need lawyers in immigration court

SEATTLE – Government lawyers urged a federal judge on to remove certain children listed in a lawsuit that seeks to require court-appointed lawyers for indigent children who enter the country illegally.

But lawyers for the American Civil Liberties Union and immigration rights groups said any child sent to immigration court has a constitutional right to a fair hearing and the only way to ensure that happens is to provide them with a lawyer. They also urged the judge to expand the case to include children across the country.

“This case only defines class members as those unrepresented children who don’t have the resources to have an attorney,” said Matt Adams with the Northwest Immigrant Rights Project.

After a four-hour hearing March 24, Judge Thomas Zilly said he would take the arguments under advisement and issue a ruling at a later date.

The ACLU and immigrant rights groups filed the lawsuit in 2014 on behalf of about a dozen children ranging in age from 1 to 17. They came from Mexico, El Salvador, Guatemala and Honduras and now live in Washington state, California, Texas and Florida.

Each year, the government initiates immigration proceedings against thousands of children to determine whether they can remain in the U.S., according to the complaint. In each case, the government is represented by prosecutors, while in most cases, the children are forced to appear before a judge with little or no knowledge of their rights or the law, the lawyers said.

Deputy Assistant Attorney General Leon Fresco told Zilly that six of the children in the case who were captured at the border do not have the same due-process rights as someone who has lived in the country for a period of time and they should be dropped from the case.

Fresco described this as a “procedural due process case” that involves limitations established by Congress or the executive branch, as opposed to “substantive due process” that prohibits the government from infringing on fundamental constitutional rights.

When a child crosses the border illegally, they have procedural due process rights – basic rights against being detained indefinitely or being tortured, Fresco said. But they don’t have substantive rights under the constitution, he said. Fresco urged the judge against expanding the current system.

“They are claiming there are more procedural rights that they should be entitled to,” he said. “If you were to rule in that context, your opinion by next year would be cited 500 times. It would be the first opinion that says arriving aliens have additional due process rights.”

Under the current system, an immigration judge develops a record by asking the children questions, Fresco told Zilly.

“Some of these questions would be asked to a 3 or 4-year-old,” Zilly responded.

The three children living in Washington state who are part of the lawsuit say their father was murdered in Mexico and their mother was raped, Zilly said.

“They have fear,” he said. “You say even with these issues they don’t have procedural rights other than what Congress allowed?” Zilly asked Fresco.

“These are sympathetic cases,” Fresco responded.

Any child who faces deportation at a removal hearing has a constitutional right to counsel, regardless of where they were apprehended or whether they had an adult with them at the time, said the ACLU’s Ahilan Arulanantham.

Fresco said their research shows that 72 percent of children who move through the system now, even without lawyers, “are getting some relief,” so the case isn’t needed.

“I don’t know where that comes from,” Adams responded. “It must be the most generous interpretations of relief in the world, including continuances.”

Fresco said the data refers to cases that were closed, and the children were not removed.

Adams said he is not convinced. “What other situation do you see a child pitted against a prosecuting attorney? Why is immigration law the exception?” he said.