Federal judge in Seattle is considering a motion by the Obama Administration to dismiss a lawsuit seeking to provide legal representation to children facing possible deportation.
The Obama administration has asked a federal judge to dismiss a lawsuit filed in Seattle seeking to provide attorneys for thousands of children who face deportation in U.S. immigration courts.
Attorneys for the Department of Justice told U.S. District Judge Thomas Zilly that children fleeing oppression, mostly from Central America, or seeking to join their parents who are already in the U.S., do not need to be given an attorney to ensure their hearings are fair, or understand what is happening to them.
Providing a lawyer to every child facing “removal” from the U.S. would cause the entire immigration system to collapse, argued Leon Fresco, a deputy assistant U.S. attorney general who flew to Seattle from Washington, D.C., to argue the motion Wednesday.
“There is no money for it,” Fresco said.
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Issues raised in the unprecedented lawsuit, filed in 2014 by a coalition of immigrants’ rights groups, including the American Civil Liberties Union (ACLU) offices in Seattle and Los Angeles, and the Northwest Immigrant Rights Project, recently burst onto the national stagewhen a senior immigration judge, Jack Weil, said in a deposition in the lawsuit that he had “taught immigration law literally to 3-year-olds and 4-year-olds” who were facing deportation.
Evidence has shown that many of the children travel thousands of miles alone, fleeing persecution or trying to join up with family in the U.S.
“It takes a lot of patience,” said Weil, who is in charge of instructing immigration judges throughout the country. “They get it,” he said.
Current law does not require that children be represented by a lawyer during deportation hearings, but it does call for a “full and fair hearing” before an immigration judge.
In addition to seeking to have the lawsuit dismissed, government attorneys on Thursday urged Zilly to reject certifying the lawsuit as a class action, which could bring thousands of children awaiting deportation hearings as plaintiffs into the lawsuit.
Zilly took both motions under advisement. He has already rejected the class-action certification three times, claiming the various proposed plaintiffs’ cases were too dissimilar. On Wednesday, he passed out a fourth proposed class certification that would narrow the number of plaintiffs, but the two sides were unable to agree on it and suggested changes.
Fresco, in arguing that the lawsuit should be dismissed, said 100 years of case law has concluded that undocumented immigrants who are stopped at the border or who present themselves to immigration officials to seek asylum can be afforded only the rights that Congress and the executive branch give them by statute.
They have not earned the more “substantive” rights afforded by the U.S. Constitution, he said.
That changes, he said, after they have entered the country and the longer they are here, he said.
Fresco acknowledged that the topic of child immigration is “delicate,” and that many of the plaintiffs are sympathetic. He said the hope is that Congress will address the issue. “This is a purely legal issue,” he said.
Zilly seemed skeptical, and brought up the possibility of children as young as 3 or 4 years old appearing unrepresented at an immigration hearing, where they face a professional prosecutor and a judge.
“You suggest that Congress is able to set the rules and if they don’t set them, they don’t exist,” Zilly said. “But we have a Constitution here.”
Many of the children involved have traveled from countries such as El Salvador and Guatemala, where they have faced persecution. Two of the plaintiffs — all of whom are identified in the lawsuit only by initials — claim they fled to the U.S. after their father was murdered and their mother raped.
The roughly one-dozen plaintiffs named in the lawsuit at this point are from Washington state, Florida, California and Texas. Others could be drawn in if Zilly grants the class-action status.
Fresco suggested that, in some jurisdictions, undocumented minors are aided by volunteers and pro bono attorneys to ensure their rights are protected and irreversible mistakes are not made during their hearings.
However, attorneys for the ACLU said that sort of representation is inadequate and spotty, and that often those volunteers can wind up working against the child’s interests.
Ahilan Arulanantham, an attorney with the ACLU’s Immigrants’ Rights Project in Los Angeles, argued that the requirement of a “full and fair” immigration hearing “means an attorney” in cases involving juveniles.