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DOJ seeks long stay, putting child migrant rights on hold

5 May

The Justice Department is asking a federal judge in Seattle to stay all further court action on the due process claims of child migrants while it appeals his decision last month to take up the question of whether juveniles have a right to counsel under the Constitution.

Papers filed late last week spell out the government’s strategy. But immigrant rights attorneys said any such stay would be damaging to the children by needlessly prolonging the litigation for at least another year while more child migrants face the threat of deportation.

At issue is an April 13 ruling by U.S. District Court Judge Thomas Zilly, who at the time denied Justice’s demands that he dismiss all elements of a lawsuit challenging President Barack Obama’s decision last summer to rush thousands of children from Central America into deportation hearings without legal representation.

While agreeing with Justice on some portions, Zilly said the right-to-counsel claim raised in the suit was too important to be put off. Since the suit is still pending, the government needs Zilly’s permission to appeal that piece up the ladder in the 9th Circuit. But it is Justice’s request for the stay pending that appeal which is more important at this stage going forward.

Indeed, the government’s tactics make for an interesting twist alongside a second legal battle now over Obama’s executive order last November promising temporary legal status for millions of undocumented workers and their families.

In that case, which is much higher profile and now pending in the 5th U.S. Circuit Court of Appeals, time is running against Obama, who is eager to begin implementing his plan before leaving the White House. In the Seattle case, time is running against the children without lawyers, thousands of whom have already received deportation orders since the lawsuit began last July.

The contrast shows again how much the children have become a casualty of the realpolitik calculations by the White House in pursuing immigration reform.

The administration was caught off guard by the record influx of child migrants last year and felt compelled to take a “get tough” approach to stem the tide as it tried to salvage its larger immigration agenda. Faced with a Republican Congress, the November executive order is seen as Obama’s last best shot at making some progress, all while Justice seems bent on slowing and lowering the profile of the children’s case in Seattle.

What’s more, unlike the challenge to Obama’s November executive order, little in Zilly’s courtroom is an immediate threat to the government’s operations.

Days after his ruling, attorneys for the children filed a request to make the case a class action suit, certifying that the six young plaintiffs were representative of all such migrants from across the country faced with similar circumstances. This sets in motion a lengthy process of briefs and discovery motions that could be embarrassing to the administration given the inequities in the immigration court system. But as a practical matter, the district court could proceed on one track while the government’s appeal to the 9th Circuit is heard.

“As we told the judge earlier, we have no problem with litigation happening in two forums at once,” said Ahilan Arulanantham, one of the lead attorneys for the children. “We have no problem litigating the jurisdictional issues in the 9th Circuit while we continue to litigate here. But we do not want a stay because that means at least several hundred, probably several thousand more children are ordered deported while the case is pending though the court has now said there is a serious constitutional question.”

“The stay would dramatically extend the litigation,” he added. “They are definitely trying to stretch this out as long as possible. The strategy seems to be to try to slow it down as long as possible.”

In fact, since the lawsuit was filed, the government’s own records show that children without attorneys are at an immense disadvantage in the immigration courts.

From July through the middle of April, just 352 children without counsel succeeded in having their removal proceedings terminated or administratively closed — two measures of potential progress toward asylum or special immigrant juvenile status. By comparison, in the same nine months, 4,711 of those with no legal representation were ordered removed or compelled to accept voluntary departure, an outcome that surrenders the defendant’s right to appeal in the future.

When broken down court-by-court, the odds are even longer, especially in the South. And these disparities will almost certainly become part of the discovery proceedings if the Seattle case were to move ahead as a class action.

In its defense, the administration has emphasized that since the children are all legally juveniles, their removal orders are often not enforced until the child defendant reaches his or her 18th birthday. But that date will soon be coming for more of them, and Zilly himself has worried that the older children — without counsel — will be hard-pressed in the limited time to appeal their removal order.

On this point, the Justice filings include what some might consider a rather cold footnote, telling Zilly that there is little the judge can do to change the outcome for those juvenile migrants, however he rules on the stay.

“To the extent the Court is concerned that aged-out class members may miss an opportunity to have government-paid counsel appointed for them on remand, this concern is not a constitutional concern that warrants relief,” the note reads. “The only relief available to successful plaintiffs is an order declaring that Defendants cannot proceed with removal proceedings before an Immigration Judge without appointing counsel until they turn 18.

”The Government may satisfy such an order (1) by appointing and paying for counsel, or (2) by continuing or closing removal proceedings until the alien turns 18. Thus, an aged-out class member is in the same position as any successful Plaintiff and is not prejudiced by a stay.”