U.S. District Judge Thomas Zilly denied the Justice Department’s motion to dismiss the case outright on jurisdictional grounds and said instead that the child migrants’ due process right-to-counsel claim was vital and deserves “an answer.”
“The Court is of the opinion the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process,” Zilly said. “A fundamental precept of due process is that individuals have a right to be heard ‘at a meaningful time and in a meaningful manner’ and before `being condemned to suffer grievous loss of any kind even though it may not involve the stigma and hardship of a criminal conviction.”
“The removal proceedings at issue in this case pit juveniles against the full force of the federal government,” Zilly wrote. “The government initiates the proceedings, it is represented in them, and its discretion in executing removal orders is insulated from judicial review. Moreover, courts have repeatedly recognized ‘with only a small degree of hyperbole’ that the immigration laws are ‘second only to the Internal Revenue Code in complexity.’”
Elsewhere in his 39-page opinion, Zilly gave ground to some portions of the defense mounted by Justice attorneys.
Of the nine child plaintiffs in the suit, he appeared to narrow the field to six, and Zilly agreed that he lacked jurisdiction to hear the plaintiffs right-to-counsel arguments based on immigration statutes.
But on the larger constitutional question, Zilly was unyielding as to his jurisdiction. And he faulted the administration for falling back on “slippery slope” drama as to the cost and burden of providing counsel for the children.
“Rather than attempting to quantify the financial and administrative burdens associated with plaintiffs’ requested relief or possible alternatives, defendants speak broadly in ‘slippery slope’ terms,” Zilly wrote. “They express concern about the wheels of removal proceedings involving minors grinding to a halt if the government is required to provide counsel for every juvenile in a removal proceeding. Defendants assert that the effect of a ruling favorable to plaintiffs would be to encourage even more youngsters to journey illegally to the United States.”
“Although the financial constraints and border-policing concerns raised by defendants must play a role in any analysis concerning plaintiffs’ assertion of a right to appointed counsel under the Due Process Clause of the Fifth Amendment, at this juncture, they are not sufficiently quantified or developed to allow the Court to engage in the balancing required.”
In a lengthy footnote, Zilly also took the administration to task for some of its past use of numbers to downplay the impact on those children without attorneys.
The administration’s claims “that the special rules governing ‘juvenile dockets’ serve as an effective substitute for the appointment of counsel currently lacks statistical support,” Zilly said. “Defendants’ assertion of equivalent risk among minors and adults is inconsistent with their representation that special treatment is afforded to children in removal proceedings.”
“If the risk was in fact comparable for the two populations, then presumably no additional procedural protections would exist for juveniles. Youth, however, generally correlates with a lack of proficiency in reading and comprehension, even in a native language. For those whose school-age years were stained by violence, poverty, parental neglect, or similar hardships, literacy might be an as-yet-unachieved goal.”
Indeed, the record for child cases before the immigration courts poses real credibility problems for Obama and Attorney General Eric Holder, who promised fair treatment for the minors when the expedited dockets began last July. A juvenile appearing in Georgia, North Carolina and Texas for example, has a far greater chance of being ordered removed than the child, who ends up before immigration judges in California or Florida. And those without attorneys are more vulnerable before the courts generally.
Holder himself has told Congress that it is “inexcusable” for young children to “have immigration decisions made on their behalf, against them, whatever and they’re not represented by counsel. That’s simply not who we are as a nation.” And in his speech commemorating the anniversary of the Selma civil rights march, Obama appeared to reference the child migrants who crossed into Texas in records numbers last year, many fleeing violence in Central America. “We’re the hopeful strivers who cross the Rio Grande because we want our kids to know a better life,” the president said. “That’s how we came to be.”
The Seattle case was brought last July with the American Civil Liberties Union and the Northwest Immigrant Rights Project taking the lead. The goal is establish a national class action on behalf of the child plaintiffs and the core argument is that without counsel, the children stand a far greater chance of being subjected to a removal order or being pressured to accept voluntary departure.
“Our strongest claim is the Constitution, the due process rights,” said Matt Adams, one of the lead attorneys. “The next step is to get the motion for a class certification back in front of [Zilly]. … There already are thousands of children affected since July of last year.”
“This is good. We’re excited. Let’s get to the meat of the matter. Do kids have their fair day in court when they are there by themselves? We’re confident we’re going to be able to show that it’s ridiculous to assert that a kid is getting a fair hearing where they have to go up against a prosecutor in this complex system.”
Establishing that national class certification could nonetheless be a fight.
Apart from battling the lawsuit on jurisdictional grounds, DOJ has seemed to follow a strategy of trying to narrow the case to only child migrants before West Coast immigration courts within the more liberal Ninth Circuit. This turns a blind eye to what is happening in other regions of the country like Georgia and North Carolina, but a big question will be how far Zilly is willing to next go.
“We are reviewing the judge’s order and considering next steps in the litigation,” a DOJ spokesperson said Monday evening. “The law is clear that immigrants do not have a right to counsel at government expense. As a policy matter, the department would prefer for children in immigration proceedings to have counsel, and the administration continues to urge Congress to fund legal representation for children in immigration proceedings.”