SAN FRANCISCO (CN) – There’s nothing unfair about making children represent themselves in immigration court, a Justice Department lawyer told an en banc Ninth Circuit panel Monday.
“Existing law, existing procedures, and existing duties give children of all ages the help they need and the help that due process and federal statutory law requires,” Justice Department lawyer Scott Stewart told an 11-judge panel in defending a decision to deny Honduran teenager C.J.’s request for asylum.
C.J. told an immigration judge he fled Honduras with his mother at age 13 to escape death threats and gang recruitment. Because he could not afford a lawyer, his Spanish-speaking mother – with little to no understanding of the law – represented him in immigration court. Now at age 17, C.J. awaits deportation.
This past January, a three-judge Ninth Circuit panel denied C.J.’s appeal, filed on behalf of all immigrant minors who go without a lawyer in immigration court. An en banc panel reheard the case Monday.
“So your view is there can be a fundamentally fair proceeding with a two-year-old in front of an immigration judge with no representation at all,” U.S. Circuit Judge Andrew Hurwitz asked.”Would an appointed lawyer ever be required?”
Stewart replied: “I can’t think of a situation.”
The Justice Department lawyer insisted the immigration system is fair because immigration judges are trained to thoroughly probe the record, inform minors of their rights, and grant continuances when necessary to provide more time to find an attorney.
But having a lawyer makes a big difference, especially for unaccompanied minors, according data compiled by Syracuse University. As of 2014, 73 percent of unaccompanied minors with attorneys were allowed to stay in the United States compared with 15 percent of those without representation.
U.S. Circuit Judge Consuelo Callahan, who wrote the opinion denying C.J.’s appeal in January, suggested the reason those with lawyers get better outcomes might be because lawyers only take cases they can win.
ACLU attorney Ahilan Arulanantham challenged that notion, citing expert testimony and evidence that shows a disparity in outcomes between immigration courts in Baltimore and San Francisco.
“The statistical evidence is clear,” Arulanantham said. “This court has said immigration law is second only to tax law in complexity.”
In a prior decision in C.J.’s case, Ninth Circuit Judge John B. Owens noted in a concurring opinion that the ruling did not address whether unaccompanied minors, unlike C.J., have a right to counsel under the Due Process Clause of the U.S. Constitution.
Speaking specifically to C.J.’s case, Arulanantham argued it was fundamentally unfair to have the boy’s mother represent him in a complex immigration proceeding.
“To charge that person with playing the role of a lawyer would be completely contrary to every other proceeding involving children that exists when children are in court,” Arulanantham said.
Stewart continued to stress that an impartial immigration judge makes the process fair, despite recent decisions that changed guidelines on how judges should treat minors in deportation cases. In December 2017, the Justice Department rescinded guidelines that asked judges to avoid complex legal terms, ask clear and concise questions, and to be aware of factors like race, gender, post-traumatic stress and cultural sensitivity.
“The immigration judges are now being admonished not to do this – that they are neutral, and they shouldn’t be treating children differently,” U.S. Circuit Judge Marsha Berzon said.
U.S. Circuit Judge William Fletcher asked why the immigration judge hadn’t asked questions that could have revealed grounds for granting asylum relief, such as whether C.J. witnessed gang violence.
Another issue centered on whether the immigration judge had a duty to tell C.J. he was eligible to apply for Special Immigrant Juvenile (SIJ) status, which could provide a legal path to citizenship.
Stewart argued that because C.J. needed to get an order from state court to pursue that option, it was not an immediate form of relief that he needed to know about.
U.S. Circuit Judge M. Margaret McKeown rejected that reasoning.
“I’m not sure why it’s an indirect form of relief,” McKeown said. “Just because you have to make an additional stop, I’m not sure what the intellectual distinction is.”
Several judges repeatedly pressed Stewart to identify if there could ever be a situation, including “a baby in a basket,” where appointing a lawyer might be necessary to ensure fairness.
Stewart refused to relent.
“I do think existing procedures do get this,” Stewart said, referring to fairness in immigration court.
Unsurprisingly, C.J.’s lawyer disagreed.
“Most of these children are eligible for some form of relief in the current system, and if they’re going to have any serious possibility of obtaining it, they’ll need legal representation,” Arulanantham said.
The en banc rehearing followed a decision last month in which the Ninth Circuit declined to rehear a similar case asserting that minors have a right to legal counsel in immigration court.