(CN) – Toddlers will continue representing themselves in immigration court in the wake of a Ninth Circuit panel’s refusal Tuesday to revisit dismissal of a class action that claimed kids should have court-appointed attorneys in immigration proceedings – a refusal that drew a blistering dissent from five circuit judges.
The decision leaves in place a Ninth Circuit panel’s 2016 finding that a federal judge in Seattle lacked jurisdiction to hear the due process claims of a class of thousands immigrant kids after the American Civil Liberties Union and immigrant rights groups sued, claiming the kids have a right to counsel.
During oral arguments in the appeal, government attorneys told the panel that appointing representation for kids facing deportation would “destroy the framework of the immigration system.”
The ACLU, meanwhile, cited its deposition of Immigration Judge Jack Weil, who implied toddlers can master immigration law after all.
“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil said in his deposition. “It takes a lot of time. It takes a lot of patience. They get it.”
This past February, the kids petitioned for an en banc rehearing. On Tuesday, however, the court said in a 5-sentence order that a majority of its judges voted to deny the request. A 15-page dissent written by U.S. Circuit Judge Marsha Berzon and joined by four of Berzon’s colleagues accompanied the order.
Berzon called the state of children’s immigration proceedings “absurd,” and accused the appellate panel of “running roughshod over the statutory language and structure, as well as binding law.”
She said nothing prevents the court from reviewing the case since immigration law, and precedent from both the Ninth Circuit and the Supreme Court, bar review of cases only where the petitioner wants a second look at an order of removal. Here, Berzon noted, the proceedings have not reached that stage.
Berzon said the panel erred by basing its decision on a subsection of law while “entirely ignor(ing) the introductory language” that says that rule only applies to review of removal proceedings – an interpretation that Berzon says was affirmed by the Supreme Court.
“The children in the case have not been ordered removed, so they cannot be, and are not, seeking review of a removal order,” Berzon wrote.
Berzon outlined the obstacles kids face in trying to navigate arcane immigration law in a language they often do not understand. She cited one case where lawyers described the three-year-old they represented crawling on the table during his removal hearing.
“Absurdly,” Berzon wrote, “the only thing atypical about that case was that the child had a lawyer.”
Thousands of kids will continue to show up to such proceedings without a lawyer, Berzon said.
“The result is nearly preordained: deportation back to a country where they will face violence and persecution,” she wrote.
Berzon and her colleagues in dissent – U.S. Circuit Judges Kim McLane, William A. Fletcher, Richard A. Paez and Mary H. Murguia, said the court should have had the chance to enter a ruling reflective of those points.
“We should have reheard this case en banc to correct the panel’s errors and given these children – and other potentially affected by the panel’s rigid procedural ruling – their day in court,” Berzon wrote.