DoJ To Toddlers: You Can Do It!!!

In the scheme of people denied right to effective assistance of counsel, they tend to fall through cracks. We give enormous attention to the poor, who are denied competent counsel at trial, only to spend millions to fight their pending execution after it’s too late. Sure, death is different. But life ain’t so great either when you’re a kid in court by yourself.

Toddlers. Three to four-year-olds who are subject to deportation proceedings. But it’s happening.

Although a network of pro bono organizations and a Justice Department program try to help children find attorneys — some paid for by the government — many children are forced to fend for themselves. According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney. It is unclear how often children 5 or under are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.

It’s very nice that organizations try to help, and it can be the type of solution that make deeply passionate advocates feel all tingly, but if there is a duty on the part of the government to provide substantive due process to children, then it serves to undermine a solution rather than offer one.

The Sixth Amendment right to counsel applies only to criminal prosecutions, even though it’s primarily honored in the breach. Immigration proceedings? Well, the ACLU is suing the government to compel it to provide representation to children.  And our government is fighting hard.

The Justice Department, which was sued along with DHS and the Department of Health and Human Services, is disputing the idea that all children are entitled to an attorney. “Nothing in the Constitution requires the taxpayers to provide counsel to minors in immigration court,” Justice Department lawyers said in a 2014 motion. Doing so would cause “potentially enormous taxpayer expense,” they said.

That it would be expensive is certainly true. That nothing in the Constitution requires a 5-year-old to be given a lawyer, not so much. In a Feb. 11 speech on the Senate floor, Reid said he was told about one case in which a 5-year-old girl was brought before an immigration judge.

“This little girl was clutching a doll and was so short she could barely see over the table to the microphone,’’ Reid said. “She was unable to answer any questions that the judge asked her except for the name of her doll: ‘Baby Baby Doll.’ That was the name of her doll.”

Good enough to defend herself in court? Damn straight, says our governments Department of Justice. And they proffered their own expert to prove it.

A senior Justice Department official is arguing that 3- and 4-year-olds can learn immigration law well enough to represent themselves in court, staking out an unconventional position in a growing debate over whether immigrant children facing deportation are entitled to taxpayer-funded attorneys.

Jack H. Weil, a longtime immigration judge who is responsible for training other judges, made the assertion in sworn testimony in a deposition in federal court in Seattle. 

At the deposition, Ahilan Arulanantham, deputy legal director at the ACLU of Southern California, was so dumbfounded by the sworn testimony of this immigration judge that he pursued it to make sure there was no misunderstanding.

“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil said. “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”

He repeated his claim twice in the deposition, also saying, “I’ve told you I have trained 3-year-olds and 4-year-olds in immigration law,” according to a transcript. “You can do a fair hearing. It’s going to take you a lot of time.”

Notably, this wasn’t some random immigration judge, say the craziest of the lot, picked by the ACLU to make their position look good. This was the judge the DoJ produced as its expert.  This was the judge who trained other judges. This is the best they’ve got.

Unsurprisingly, the government put its spinmeister on the job to gov’splain Weil’s absurd testimony.  Notably, they have plenty of money for gov’splainers, even if they have none for lawyers to represent three-year-olds:

Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review (EOIR), said in a statement: “At no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of EOIR or the Department of Justice.”

She added that Weil’s comments “must also be taken in context as part of a 4-hour deposition in which Mr. Weil spoke about various techniques, procedures, and safeguards that can be employed by immigration judges, as warranted, to provide fundamentally fair hearings to all respondents in immigration proceedings.”

Except the spokesmodel is wrong on both counts. Weil wasn’t there because he wandered into the room by accident, but because he was the expert tendered by the government to support its position that three-year-olds were fully capable of representing themselves in immigration court.

And more ironically, Reid would have us cry sad tears for the very hard work of an immigration judge to endure a grueling 4-hour deposition about how it’s no big deal for a three-year-old to endure an appearance before an immigration judge to argue for their life?

Clearly, the government’s job here is to save money, as providing counsel (at all, not just competent counsel, which the government has never managed to do particularly well) is expensive. Even if one less Bunker Buster bomb to flush out Saddam Hussein’s weapons of mass destruction would have covered it, for a decade, it remains President Obama’s DoJ’s job to protect the public fisc.  And money is money.

But nobody said there are no costs associated with running a constitutional democracy. If the government wants to march three-year-olds before a judge, then substantive due process (which, for the uninitiated, means fundamental fairness) demands that someone with a modicum of competence be provided to represent the cute little girl with her baby doll.

Then again, when the decision-maker is someone as mind-numbingly idiotic as Jack Weil, who believes that a 3-year-old can be taught to effectively represent herself, what are the chances that even an effective lawyer can make a dent in his decision to pound that rubber “denied” stamp on the immigration form?


4 comments on “DoJ To Toddlers: You Can Do It!!!

  1. phroggie

    Can we at least mandate that these [i]pro se[/i] toddlers be registered in Avvo? If any of them make it through proceedings sans deportation or red rubber stamp, they’re clearly destined for legal greatness.

  2. Mario Machado

    The DOJ has always contended that removal proceedings –even though it involves a lifetime of banishment from the U.S.– are civil in nature, and thus it does not invoke a right to counsel. Appellate courts have agreed, and when respondents (minors or otherwise) are handed the charging document by CBP, DHS, or ICE, it contains a short list of private attorneys who are gracious enough to represent the indigent.

    Most minors have no attorneys by the time they reach immigration court. In response to the recent wave of Central American minor “aliens,” some immigration courts have sua sponte scheduled the minors’ first appearance as soon as practicaly possible, well ahead of cases that were already before the court. This creates the effect of giving the minors less time to find and retain a competent counsel of their choice.

    But, we can always look on the bright side: when they try to reenter the U.S., for whatever reason, they may be charged in U.S. District Court with illegal reentry. By that time, they will finally be appointed a defense attorney, even though it will come with the incentive to waive indictment and due process because of the “fast track” program for that charge.

    1. Sgt. Schultz

      SHG must like you to post this mini-advertisement of your services that adds nothing to the post. I guess that means any lawyer who knows some basic law can use SJ to show off how he looks in pink hotpants?

      1. SHG Post author

        I do like Mario. I didn’t appreciate the comment, but decided against making a point of it. So yeah. But I won’t be as kind to you if you show up in pink hotpants. Govern yourself accordingly.

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