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Judge Scolds Obama, Congress for Allowing Children to Face Deportation Without Lawyers

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Judge Scolds Obama, Congress for Allowing Children to Face Deportation Without Lawyers

In an unusual call to action directed at members of Congress and the White House, a federal appeals judge in California on Tuesday urged the other two branches to address the “crisis” of thousands of children and teenagers facing deportation proceedings without a lawyer.

The U.S. Court of Appeals for the Ninth Circuit dismissed a case brought on behalf of minors ages 3 to 17 facing deportation, who claim a right to a government-funded lawyer. Judge M. Margaret McKeown, writing for the three-judge panel, said that the plaintiffs failed to follow the proper procedures for bringing the case.

But McKeown wrote a separate, concurring opinion saying that although a court would likely someday decide the right-to-counsel issue, the legislative and executive branches could do more in the meantime to make sure that minors in immigration cases have access to a lawyer. “The problem demands action now,” she wrote.

“While I do not take a position on the merits of the children’s constitutional and statutory claims, I write to underscore that the executive and Congress have the power to address this crisis without judicial intervention,” McKeown wrote. “What is missing here? Money and resolve—political solutions that fall outside the purview of the courts.”

Programs that currently provide money and resources for lawyers to represent minors in removal proceedings are “laudable,” McKeown wrote, but “a drop in the bucket in relation to the magnitude of the problem,” leaving tens of thousands of children to go through immigration proceedings unrepresented.

Ahilan Arulanantham, legal director of the American Civil Liberties Union of Southern California, argued for the plaintiffs. He said in a statement that “the Ninth Circuit today held that the courthouse doors are effectively closed to thousands of children whose only opportunity to seek appointed counsel in their immigration proceedings is through this case.”

Given McKeown’s recognition of the “moral imperative at stake,” Arulanantham said, the White House should “exercise its power to cease its unjust practice of requiring children to represent themselves in immigration court.”

Charles Roth of the National Immigrant Justice Center in Chicago, who filed a brief in support of the plaintiffs, said in an interview that he was disappointed with the decision and frustrated with McKeown’s concurrence.

“We found it very unfortunate that the court would both acknowledge the problems of sending these children in to face removal proceedings … and yet insist on this procedure that will effectively deprive these children of the ability to make these important legal arguments,” Roth said.

A spokeswoman for the U.S. Department of Justice, which disputed that children facing deportation have a right to counsel and argued that the Ninth Circuit lacked jurisdiction to hear the case, was not immediately available for comment.

In order to raise the right-to-counsel issue, minors facing deportation had to bring it up before the immigration judge and go through an administrative review process before taking their case to a federal appeals court, McKeown wrote. The Immigration and Nationality Act provides the “exclusive” means for reviewing decisions about the appointment of attorneys in immigration cases, the judge said.

Lawyers for the plaintiffs said that it would be too difficult for children to understand what they needed to do to raise a right-to-counsel argument. McKeown responded to those concerns by citing a case in which a 14-year-old boy did raise the issue through the proper channels; his case eventually settled. The judge wrote that a parent, court observer or even the government could alert the court that a minor was invoking a right to counsel.

“We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a [petition for review],” McKeown wrote, “but that is not a ground for ignoring the jurisdictional statute.”

Judges Milan Smith Jr. and Andrew Kleinfeld joined the main opinion, and Smith joined McKeown’s concurring opinion. Kleinfeld wrote his own one-paragraph concurring opinion, saying that he agreed that access to counsel was a problem, but that because the solution was a “highly controversial political matter, I think our own advocacy of some particular reform measure is unnecessary, and the matter is better left to the political process.”

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