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Most immigrants facing deportation wouldn’t climb onto a table during their court hearings. But then again, most 3-year-olds don’t go to court without parents or lawyers.
Nonetheless, that was the situation during a recent court hearing for a child represented by the Immigrant Defenders Law Center in Los Angeles.
“It really highlighted the absurdity of what we’re doing with these kids,” Center executive director Lindsay Toczylowski told the Texas Tribune.
Court hearings are beginning for the 2,000 or more children who have been separated from their parents under the federal policy of “zero tolerance” for illegal border crossings, the Tribune says. And those notices are highlighting the fact that unaccompanied minors don’t get court-appointed attorneys in immigration court—meaning that most of them won’t have any lawyer at all.
That situation is not new, as the Tribune notes. By federal law, nobody gets a public defender in immigration court, because being removable from the United States is not a crime. That’s true even if the immigrant is a young child, despite immigrant advocates’ efforts to change that. As a result, minors separated from their parents must either find a lawyer on their own or represent themselves.
That’s an extraordinarily difficult task, advocates for the children say. Typically, parents seeking asylum—as the vast majority of the people subject to the “zero tolerance” policy are—are tried with any children they entered with, and therefore can explain the circumstances that led them to flee their home countries. Those facts often concern physical and sexual violence, because the Central American countries from which the immigrants come are effectively controlled by criminal gangs.
As a result, Toczylowski says, the parents often have kept the facts from children too young to understand them. This puts the children “in a disadvantageous position to defend themselves,” she told the Texas Tribune.
The situation is compounded by the fact that the children may be traumatized—by losing their parents unexpectedly and the situations they left behind, the Tribune notes. Dr. Bernard Dreyer, director of the division of developmental-behavioral pediatrics at the New York University School of Medicine, called it “unconscionable” and “grossly inappropriate” to expect the minors to represent themselves.
“I’m ashamed that we’re doing this,” he says.
“That couldn’t be any less developmentally appropriate,” adds Steve Lee, a professor of child psychology at the University of California, Los Angeles.
A federal judge in San Diego ordered the federal government this week to reunite families within 14 to 30 days, depending on the ages of the children. If the decision is not appealed, being reunited with parents may help the minors make their cases. However, as Reuters notes, some parents have already been deported without their kids. Advocates including ABA ProBAR director Kimi Jackson have observed that there is no federal procedure for reuniting families, and lawyers for adult immigrants say the hotlines the federal government has provided are rarely answered and provide little information when they are answered.
A group of immigrant advocates sued in 2014 for a court order granting lawyers to unaccompanied minors, arguing that it is “fundamentally unfair” to expect children to represent themselves. The suit argued that children needed lawyers under both their due process rights—which courts have repeatedly held applies to immigrants—and the Immigration and Nationality Act’s guarantee of a fair hearing. That case led one Justice Department expert to testify that he’d been able to teach immigration law to young children, a claim mocked by immigration lawyers and at least one late-night comedian.
The San Francisco-based 9th U.S. Circuit Court of Appeals eventually rejected the lawsuit on jurisdictional grounds, saying federal law makes immigration court the only venue for vindicating immigrants’ civil rights. However, Judge Margaret McKeown called in a concurrence for Congress and the president to pass legislation addressing the problem.
“I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings,” she wrote. “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.”
No such legislation was passed in response to the September 2016 opinion. The ABA has called for court-appointed lawyers for minors in 2001 and 2015, and for all immigrants in 2017. ABA President Hilarie Bass has repeatedly called for an end to family separations. After a trip to south Texas this week, she called on America’s lawyers to volunteer and donate to help separated families.