Commentary

Our nation’s “stupid, stupid, stupid” immigration policy

In case you missed it, there was a remarkable exchange in a U.S. Senate hearing yesterday between Senator Patrick Leahy and Attorney General Loretta Lynch about the unbelievably absurd statement of federal immigration judge Jack Weil that three and four year-old children can be made to understand immigration law and represent themselves competently in deportation hearings. As the New York Times reports:

“I’ve never heard such a stupid, stupid, stupid thing,” said Senator Patrick Leahy, Democrat of Vermont, on Wednesday. Mr. Leahy made it clear what he thought of that…

He hammered on the word “stupid” as if with a baseball bat.

Ms. Lynch was mild in reply. “I share with you your puzzlement over those statements,” she said. She added, “We do not take the view that children can represent themselves.”

She also noted that the Department of Justice isn’t required do anything about the problem. “The current law does not provide the right to counsel,” she said.

And here’s the Times editorial board in an excellent, if gentler, piece from Tuesday:

In this time of political absurdity, can it be any surprise that a federal immigration judge insists that toddlers can represent themselves in immigration court?

The judge, Jack Weil, did not appear to be joking when, in a deposition in a federal lawsuit, he told a lawyer from the American Civil Liberties Union: “I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it….” Read more

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Lawyers are game changers for immigrant children

As we reported last week, many of the children crossing the border into the United States wind up in court defending themselves — a situation that presumably does not end well for them.

The American Civil Liberties Union describes the plight of such children in a lawsuit filed in federal court in Seattle against Attorney General Eric Holder, seeking an order requiring that counsel be appointed for children in immigration court:

 Plaintiffs are eight immigrant children, ranging in age from ten to seventeen. The Government has begun proceedings to deport each of them; they will soon be called to appear before an Immigration Judge. In court, the Department of Homeland Security will be represented by a trained lawyer who will argue for the child’s deportation. But no lawyer will stand with the child. Each will be required to respond to the charges against him or her, and, in theory, will be afforded an opportunity to make legal arguments and present evidence on his or her own behalf. But in reality those rights will be meaningless because children are not competent to exercise them. Each child has attempted to find representation through pro bono legal service providers, but none of them have found anyone with the resources to take on their cases. Absent this Court’s intervention, these children will be forced to defend themselves pro se under the immigration laws – a legal regime that, as the courts have recognized, rivals the Internal Revenue Code in its complexity.

Numbers released yesterday by  the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show as expected that represented children fare much better.

Among the conclusions in that report:

Children were not represented about half of the time (48%) they appeared in Immigration Court, although there is wide variation by state and hearing location.

Outcome if attorney present. In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in four (28%) of these cases. And in the remaining quarter (26%) the judge entered a “voluntary departure” (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)

Outcome if no attorney. Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country.