The Justice Department is in damage control mode after a senior immigration judge argued that a child as young as three or four years old can serve as his own attorney in deportation cases.
It may shock you to know that kids staring down the barrel of deportation do not have the right to have counsel appointed for them if they can’t afford one. While the Justice Department offers a program to help kids find an attorney for these cases, and a number of groups take cases on pro bono, a staggering number of kids are still forced into these potentially life-changing cases all alone. According to Justice Department figures, a whopping 42 percent of unaccompanied children involved in deportation proceedings between July 2014 and December 2015 had no counsel.
The American Civil Liberties Union and several immigrant rights groups want to change that. They are trying to persuade a federal judge in Seattle that kids have a constitutional right to have counsel in immigration cases. They filed suit in July 2014 on behalf of several immigrant kids–three of whom are younger than five years old. The Justice Department opposes this because–wait for it–it could cause “potentially enormous taxpayer expense.”
The government tapped Jack Weil, an assistant chief immigration judge with the Justice Department’s Office of the Chief Immigration Judge, as an expert witness. During a deposition, Weil made a startling assertion–a child is more than capable of serving as his own attorney in these cases. Weil said that in the course of his career, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds.” By his own admission, when kids that young defend themselves, the cases are “not the most efficient.” He maintained that it is still possible for them to get “a fair hearing.”
When the ACLU of Southern California’s deputy legal director, Ahilan Arulanantham, heard this response from Weil, he was dumbstruck. Arulanantham said that Weil’s response was so “outrageous” that he thought maybe Weil had had a slip of the tongue. But as the deposition continued, it became clear that Weil “meant what he said.”
Arulanantham was particularly outraged since Weil is responsible for coordinating the training of the nation’s immigration judges. In a colossal understatement, Arulanantham finds it “horrifying” that someone who believes toddlers can defend themselves at deportation cases has such influence on how these cases are conducted.
Laurence Steinberg, a psychology professor at Temple University and an expert on psychological development in children, was so stunned at Weil’s deposition that “I nearly fell off my chair.” Steinberg, who is an expert witness for the defense, points out what nearly every parent knows–toddlers simply do not have the “logical reasoning abilities” to defend themselves in a court setting without counsel. To suggest otherwise, he said, is “preposterous.”
Steinberg isn’t the only one dumbfounded by Weil’s assertion. Elizabeth Scott of Columbia Law School, an expert on children and the law, pointed out that in every other venue, it is presumed that toddlers “lack the mental capacity to make consequential decisions.” Susan Terrio, an anthropology professor at Georgetown University, observed dozens of kids in immigration proceedings for a book she wrote on unaccompanied kids facing deportation. With few exceptions, they were “incredibly passive” and didn’t seem to understand what was happening.
Weil’s argument may not only provide ammunition for the defense, but it may also grease the wheels for a bill currently pending in the Senate that would require immigration judges to appoint counsel for any child who has crossed the border alone or has experienced abuse or other trauma. When Minority Leader Harry Reid introduced the bill, he told of a five-year-old girl who could only answer a judge’s questions with “Baby Baby Baby”–the name of her doll.
Consider that most of these kids don’t speak English at all, and thus can’t understand that they could potentially be closing off the option of seeking asylum. Additionally, these cases are traumatic enough even with a lawyer present; at one case in 2015, a boy was so nervous that he wet his pants in front of the judge. I could go on, but the mere suggestion that kids don’t have the right to an attorney at immigration hearings can only be described as un-American. Any judge who even suggests this is not fit to be a judge. Period.
