A coalition of civil rights groups filed a nationwide class-action suit Wednesday alleging that putting children into immigration court without counsel violates both constitutional due-process rights and immigration law.
The plaintiffs in the suit filed in Seattle are eight children aged 10 to 17 who have resided in the United States for various lengths of time and are scheduled to appear in court, unrepresented, for deportation proceedings in the near future.
Two of the minors, 13-year-old and 15-year-old Seattle siblings, saw their father gunned down by gangsters who objected to the father’s anti-gang rehabilitation center in El Salvador, according to the suit.
Typically, “in court, the Department of Homeland Security will be represented by a trained lawyer who will argue for the child’s deportation.”
“On the other side of the courtroom, no lawyer will stand with the child,” says the suit, which was filed against U.S. Attorney General Eric Holder, U.S. Homeland Security Secretary Jeh Johnson and other federal officials.
Neither adults nor children have an established right to appointment of legal counsel in immigration proceedings. But lawyers on behalf of these children argue that they are nonetheless protected by due process and long-standing immigration law establishing the right to a fair hearing. A national network of pro bono attorneys has traditionally tried to pick up the slack in patchwork fashion.
The suit was filed by Public Counsel, a large nonprofit, public-interest law firm; the American Civil Liberties Union; the American Immigration Council in Washington, D.C.; K&L Gates, a law firm in Washington, D.C.; and the Northwest Immigrant Rights Project in Seattle.
In response to the suit, Andrew S. Muñoz, public affairs officer for the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency, said: “As a matter of policy, ICE doesn’t comment on pending litigation.”
A Justice Department spokesperson said the complaint was being reviewed, and declined to comment further. Holder himself has actually spoken out in favor of young children benefitting from counsel in immigration court.
Lawyers said the suit—one of the plaintiffs is originally from Mexico—was in the works before officials began noticing a dramatic surge this spring of Salvadoran, Guatemalan and Honduran children turning themselves over to Border Patrol agents along the Texas-Mexico border. The network of pro bono attorneys willing to represent minors was already stretched thin before the numbers of children began to surge, attorneys for the children said.
Some of the children in the lawsuit have already appeared in court multiple times without lawyers.
“The plight of these (plaintiff) children is not unique,” argues the suit, because thousands of minors are in court each year to face the “life-altering” possibility of deportation.
Without competent legal representation—and a professional who understands legal complexities—children’s established right to present evidence becomes “meaningless,” the suit argues.
Kristen Jackson, an attorney with Public Counsel in Los Angeles, said: “The fact that these children are immigrants, who may have lived here for some time, or are newly arrived here, does not take them out of due process protection.”
The law already establishes, Jackson said, that the “due process clause of our Constitution protects these children. The question is: What does due process require for these children? And what constitutes a fair hearing for a child?”
In 2013, in the wake of a separate suit filed by the ACLU and Public Counsel, federal officials began appointing counsel in cases involving people with serious mental difficulties who are in deportation proceedings.
In June, in response to the surge in kids, the Department of Justice announced that a project called Justice AmeriCorps would provide legal aid to child immigrants younger than 16 through a $2 million plan to recruit lawyers.
"How we treat those in need, particularly young people who must appear in immigration proceedings—many of whom are fleeing violence, persecution, abuse, or trafficking—goes to the core of who we are as a nation,” Attorney General Eric Holder said when the project was announced.
The child-focused effort, Holder said, would bolster the efficiency of immigration courts, which are so backlogged some children aren’t seen in court for more than a year after initially asking for a hearing.
Before the recent AmeriCorps plan, the government was already financing limited projects that provide pro bono aid to some immigrant children in a handful of cities.
But that effort and the $2 million Americorps plan to recruit more lawyers still won’t be enough to meet the developing needs, lawyers who work with immigrant kids have argued.
This week, President Obama asked Congress to allocate $3.7 billion in emergency funds to finance a range of responses to the influx of migrant kids, some of whom arrive alone and some with mothers.
Some of the spending would be for projects in Central America and for border enforcement and anti-smuggling actions, and some would be used to shelter kids and augment the ranks of immigration judges and government lawyers to more swiftly get minors into court to test their claims.
White House spokesman Josh Earnest said not all children are going to qualify for refuge in the United States.
Bob Ekblad, a Seattle area pastor, is a friend of the family of three children—aged 10, 13 and 15— who face a deportation hearing in September.
Their dad was the man killed by gang members in retaliation for involvement in anti-gang social work, according to the suit. The children were later pressed to join the gang, the suit alleges, and the three fled in 2013.
Ekblad is named as a “next friend” of these child plaintiffs in the class-action lawsuit filed Wednesday.
“Who’s going to speak for these kids? We connect them to lawyers who do pro bono work but our contacts are really stretched,” Ekblad said.
He blames years of war in Central America—and U.S. involvement in those wars—for leaving the region destabilized and thus fertile ground for the spread of organized crime.
He said the kids he knows who have fled Central America—where Ekblad lived between 1981 and 1988—“don’t stand a chance” without legal representation.