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Lawyerless child migrants caught in legal quagmire

19 Jul

Child migrants from Central America got more sympathy than help last week when the U.S. 9th Circuit Court of Appeals heard arguments on a landmark case testing the children’s right to counsel in deportation hearings.

The three-judge panel in Seattle didn’t want to be seen as turning its back on the young migrants’ plight. But neither was it feeling bold enough to take on Congress and statutory rules that have made it so difficult for the children to get their day in federal court.

The entire tone of the hearing spelled trouble for a major class-action lawsuit brought by migrant rights attorneys on behalf of the children — a case pending less than a mile away in the U.S. District Court in Seattle. That trial is set to begin Nov. 7, but an adverse ruling from the higher panel could send the entire two-year effort crashing down.

That said, the appeals court wasn’t shy about putting pressure on the government to do more to find compromise. Indeed, the judges often seemed to be warning the Justice Department that hiding behind jurisdictional rules in a case involving minors wasn’t true justice at all.

That message has to weigh on the outgoing Obama administration and raises the possibility that Justice could use this window to announce new steps to better protect at least the youngest defendants in the future.

Without doubt, the White House exacerbated the crisis two summers ago when it ordered immigration judges to quickly arraign the new arrivals, with or without counsel. Thousands of children have since paid a heavy price. But at this stage in the court fight, the next few months are an opportunity for new remedies to be presented.

Certainly the Appeals Court indicated it would like to see more.

“Why doesn’t the government work with plaintiffs’ counsel to get a test case that doesn’t fall in the cracks of all this jurisdictional morass so you can get an answer to the question?” said Judge Margaret McKeown, who chaired the nearly hourlong proceeding. “Why doesn’t the government work to get this test case up before some court?”

“I will say this: Plaintiffs’ counsel and myself and the rest of the counsel have not had such conversations,” answered Erez Reuveni, a senior litigator for the Justice Department.

“But you could?” McKeown quickly followed.

Judge Milan Smith repeatedly hit on the same theme in a series of exchanges that were often disparaging of Congress and not without humor, since his brother, Gordon, served in the Senate for two terms as a Republican from Oregon.

“What troubles me about the government’s position on this is the practicality,” he told Reuveni. “The reality is this is a very complicated area of the law. We see many lawyers who appear before us who have no idea what they are doing, let alone the children who are tiny, or teenagers — or whatever.”

“It’s a real practical problem. Are you saying the district court has no jurisdiction because of the statute … we may recognize that there are some individual problems, but you can’t get around the statute?” Smith asked. “If that’s the position of the government, then realistically, you’re saying that while there may be individuals who are lucky enough to have pro bono counsel and the like, that in effect, they [the children] are out of luck because they cannot defend themselves.”

Turning to Ahilan Arulanantham, the American Civil Liberties attorney representing the child migrants in the lawsuit, Smith said he had to ask “with regret” what the next step would be for the plaintiffs if the court sided with the government and statute.

“I empathize with the issue,” he said. “I wish I …” he continued, before catching himself. “I don’t want to be a member of Congress, no way. But if I were, I would change the law.”

Along the same lines, Smith cited the landmark 1963 Supreme Court decision in which a low-income, lawyerless Florida prisoner, Clarence Hall Gideon, successfully petitioned for the right to counsel in criminal trials.

“What seems to be needed here is a Gideon decision for children in the immigration situation,” Smith told Reuveni. “Can the government cooperate with these counsel or others to pick a sample case, have them go through the system so the issue can be raised … and then a decision is made?”

“Can the government cooperate in that way, or do you have instructions to basically leave that alone and don’t touch it?”

Reuveni’s answer prompted some laughter: “I will concede that I have not been given instructions one way or another on the issue, so if I were to represent on behalf of the entire United States government on that point, I think somebody’s going to be giving me a call as soon as this argument is over.”

McKeown was sympathetic with the young attorney but came back to the same point before ending the hearing.

“As all the panel has indicated, it’s a very frustrating and difficult situation with unaccompanied minors, who are trying to proceed through a labyrinth system without a lawyer,” she said. “We, of course, have to decide these difficult statutory and legal issues. We’re not a policy body. On the other hand, nothing precludes the parties from talking about solutions while the court considers its decision and writes its opinion.”

Asked about these exchanges after the hearing, Justice declined to comment. But the time does seem ripe for some action by the administration. And the administration appears confident enough now where it could announce new guidelines for the prosecution of the children without having to first negotiate with the ACLU and its lead partner in the lawsuit, the Northwest Immigrant Rights Project.

To be sure, predicting the outcome of any court case based on the judges’ questions in oral arguments is a risky business. Neither side is ceding at this stage.

“The court had difficult questions for both sides, so we are not inclined to predict the results based on the hearing,” said Arulanantham. “But we remain surprised that the Obama administration is continuing to defend the process of sending children into deportation proceedings without representation.”

At the same time, no one believes it is likely the government will rush to accept the suggestion of the appeals court and cooperate with the children’s lawyers to steer a future test case around the jurisdictional barriers set up by Congress.

“The idea that the government would collaborate with us to present a test case is a nonstarter,” said Matt Adams of NIRP. “The government has been kicking and fighting at every turn to avoid any ruling on the merits as they are desperate to avoid accountability. They don’t want the court to weigh in on whether it is constitutional to force unrepresented children through this adversarial and complex process.”

Judge Smith’s allusion to the Gideon case, in fact, only underscores the very different circumstances facing the children.

Gideon, like the migrants, was poor and without a lawyer. But he was a 51-year-old adult capable of penciling on prison paper a crude but straightforward appeal. His poverty and U.S. citizenship qualified him to go directly to the U.S. Supreme Court as an in forma pauperis appeal. And his request arrived at a time when many on the high court had been looking for just such a case. The justices promptly assigned a high-powered lawyer, Abe Fortas, to represent Gideon’s cause before them.

By comparison, the child migrants from Central America have largely fallen out of public view in the past two years. Young and without great mastery of English, the children are less equipped than Gideon in stating their case. And as noncitizens, they are subject to statutes that make it harder for them to get before any federal court, let alone the highest in the land.

Most important, the whole legal debate is colored by politics and the deep divisions over immigration policy. In this climate, it’s not clear that the Obama administration really wants a clean up-or-down decision on the children’s legal rights — as the appeals court was urging. Justice has certainly fought hard for two years to block the district court from giving an answer, and the administration appears more comfortable with incremental steps to address the problem.

How much of this approach is driven by Congress is not clear. For sure, Republicans continue to restrict what funds are available for attorneys, and Justice has argued that it can’t afford to capitulate and then find it can’t get the needed attorneys to proceed. But by ceding so much authority to Congress, the administration is turning a blind eye to the genuine inequities of the appeals system set up by lawmakers.

In writing the statute, Congress set out to channel all deportation appeals first to the Board of Immigration Appeals, which is part of the same immigration court system. A defendant can next file a petition for review with the respective federal appeals court for his or her circuit. But this is an immensely complicated task for any child without an attorney.

This was one surreal side of the last week’s hearing. The three-judge panel was familiar with adult migrants who had come before their own court pro se, or without an attorney. But it never seemed to fully register why appeals by children pro se were such a rarity.

U.S. District Court Judge Thomas Zilly was considerably blunter in his April 2015 decision, when he rejected Justice’s motion to dismiss the case outright.

“A fundamental precept of due process is that individuals have a right to be heard ‘at a meaningful time and in meaningful manner,'” Zilly wrote. But for the child without a lawyer, the current structure risks becoming “the perhaps perpetual loop of the administrative and judicial review process,” he said.

“Whether plaintiffs’ constitutional due process right-to-counsel claim has merit cannot yet be determined,” Zilly concluded. But given the stakes, he felt justified then in claiming jurisdiction “to eventually provide an answer.”

That answer now appears further away after the appeals court hearing. Instead, the best hope for the children seems to be what incremental changes the administration will make to fill in some blanks and soften the edges.