Judge to immigrant children: no lawyer for you

By Brette Sember

Should children who are refugees have the right to an attorney when they’re facing deportation from the United States? According to one immigration judge, the answer—incredibly—is no.

A little background

U.S. immigration law allows people who face serious harm or prosecution in their home country to enter the country as refugees. About 70,000 people a year, including children, are allowed in as refugees; some 20,000 of these are people seeking asylum. Asylees must meet the same standard as refugees, but they actually arrive in the United States and then seek asylum. Refugees apply to enter from abroad and then travel to the U.S.

What child refugees face

To apply for asylum, you must come to the United States and fill out an application within a year of your arrival. If the application isn’t approved, a hearing before an immigration judge is held. The case then might be referred to yet another judge for another type of hearing. Does this sound like something you could navigate on your own without an attorney? Probably not.

Now imagine a three-year-old child who doesn’t speak English being denied an attorney and told to handle this themselves. Sound crazy? Not to immigration judge Jack Weil. He’s apparently in favor of denying attorneys to children and making them handle their own asylum cases, which he says he has done in his own courtroom.

“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil said. “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”

A right to counsel?

Judge Weil made his comments in a hearing about whether all indigent refugee children should get free attorneys if they are charged with violating U.S. immigration laws. There is no standard right to appointed counsel in these cases, and, in fact, 42% of children’s refugee and asylum cases proceed without an attorney. The kids get translators and have to answer difficult questions about the kinds of danger they face if returned to their home countries in order to determine if they qualify for asylum here.

The future for child refugees

The American Civil Liberties Union has filed a nationwide class-action lawsuit on behalf of child refugees, arguing that failure to provide these children with lawyers violates the U.S. Constitution’s Fifth Amendment Due Process Clause. The Justice Department disagrees with this claim.

Columbia Law School professor Elizabeth Scott, an expert on children and the law, says, “The law uniformly presumes in every other area that younger children lack the mental capacity to make consequential decisions.” The language barrier, the difficulty of the concepts presented to them (for example, sometimes the judge will ask them if they prefer to leave voluntarily or be deported), and the culture shock all combine to create a situation where anyone’s head would be spinning, let alone a young child.

Senator Harry Reid has introduced a bill that require children be assigned attorneys in these situations; a companion bill has been introduced in the House. However, it remains to be seen what will happen with these bills. Public outrage could propel them towards passage. Or, given the current animosity of many toward illegal immigration, public opinion could doom these efforts—leaving vulnerable children to wade through a thicket of legal questions that might confound even an adult.

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