Court Rejects Bid for Counsel for Immigrant Children

Wednesday, September 21, 2016

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Court Rejects Bid for Counsel for Immigrant Children

From Staff and Wire Service Reports

A federal court cannot order immigration officials to provide indigent children with appointed counsel in removal proceedings, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

While panel members expressed serious reservations with the way the system treats such children, they said the class action filed by immigration activists was not a proper vehicle for obtaining relief.

The lawsuit was filed two years ago in federal district court in Seattle, following a flood of unaccompanied minors arriving at the U.S. border.

U.S. District Judge Thomas Zilly of the Western District of Washington ruled that the children could pursue their claims that being denied lawyers violated their due-process rights, but the appellate panel said he exceeded his jurisdiction.

Instead, the judges said, such claims must be brought individually, and the child in each instance must exhaust administrative remedies and then petition the court of appeals for review.

Panel Opinion

Judge M. Margaret McKeown, in the panel opinion, said Zilly was wrong in finding an exception to the exhaustion requirement. The district judge reasoned that the children were challenging a procedure or policy collateral to the substance of removal proceedings, and that they will be unable to assert the right to counsel individually.

The case was before the Ninth Circuit on an interlocutory appeal from the jurisdictional ruling, which McKeown emphasized was the only question before the court. The appellate jurist said that while it would be “naïve” not to recognize the difficult position that unrepresented minors are in before immigration judges, they can still obtain “meaningful judicial review.”

She cited the fact that removal hearings are recorded and transcribed, and said that immigration judges are expected to question immigrants about possible avenues of relief and adequately advise them of their rights.

She noted that in one case, a 14-year-old boy, represented in the Ninth Circuit by pro bono counsel, challenged the denial of appointed counsel by the IJ and Board of Immigration Appeals. While the case settled, leaving the constitutional issue unresolved, it “lays to rest the contention that right-to-counsel claims will never surface through the [petition for review] process.”

Separate Concurrence

McKeown’s panel opinion was unanimous, while Judge Milan D. Smith joined her in a separate concurrence.

“I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings,” she said. “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.”

Advocates for the children, including the Northwest Immigrant Rights Project and the American Civil Liberties Union chapters of Washington state and Southern California, said they would seek en banc review. They said it’s unreasonable to expect children who are ordered deported to then file an appeal, file briefs with arguments, obtain a final order on appeal, and then bring their case to a federal appeals court.

“Unrepresented kids aren’t able to go through that process. They don’t have the capacity,” said Matt Adams, legal director of the Northwest Immigrant Rights Project. “On the one hand the judges recognize the gravity of the situation. But the court has the responsibility to resolve an issue where there’s no other meaningful forum. You can’t duck the matter by saying, ‘Well Congress can fix this, the president can fix it.’”

Moral Question

More than 60,000 unaccompanied minors arrived in the United States in the 2014 fiscal year, many of them fleeing violence in Central America. The numbers dipped in 2015 before jumping again this year. Former U.S. Attorney General Eric Holder said the nation has a moral obligation to provide the children with lawyers for immigration proceedings, even if they aren’t constitutionally entitled to one, and President Barack Obama’s administration has taken some steps to improve representation, such as by spending $1.8 million on living expenses for 100 legal fellows who focus on such cases around the country.

Nevertheless, McKeown wrote, such measures are merely a drop in the bucket: Tens of thousands of children remain unrepresented.

McKeown suggested that eventually, cases that are properly brought will reach the appeals court, at which point judges can consider the merits of the children’s claims. But she urged Congress and the president not to wait that long.

“The stakes are too high,” she said.

Senior Judge Andrew Kleinfeld, in his separate concurrence, said “the solution to the representation problem is a highly controversial political matter” and should be left to the political process without advice from the judges.

The case is J.E.F.M. v. Lynch, 15-35738.