Politico
By David Rogers
June 28, 2016
A landmark child migrant case comes before the U.S. 9th Circuit Court of Appeals next week in Seattle, where a three judge panel will hear oral arguments as to the right of juveniles to an attorney in deportation proceedings.
The stakes are far-reaching for thousands of children from Central America. And the case illustrates the flip side of President Barack Obama’s much more publicized battles with Congress and the courts over immigration policy.
Indeed, there’s strong evidence that the White House made a calculated decision in 2014 to sacrifice the rights of the children in hopes of saving Obama’s larger plan using his executive powers to shelter millions of migrants already in the U.S.
The midterm elections were just months away, and fearful of a backlash after the surge in border crossings that spring and summer, the administration directed the courts to greatly accelerate the pace of arraignments for the children — with or without defense counsel. Many judges saw this as a green light to clear their dockets by simply issuing removal orders on the spot. And in the first 13 months, nearly 2,800 child migrants received deportation orders after being afforded only a single hearing and no defense counsel.
As this was happening, Obama went ahead with his executive order as planned after the 2014 elections. But the White House’s gamble proved no more successful, as witnessed last week when the Supreme Court killed the president’s hopes for this legacy achievement.
But as the dust settles on that fight, the collateral damage to the child migrants—hundreds of whom were 14 or younger — remains very real.
This elevates the importance of the ongoing 9th Circuit battle, where a series of recent developments have again raised the question of whether some settlement can be reached between the Justice Department and advocates for the children.
The underlying case arises from a federal lawsuit brought against then-Attorney General Eric Holder in July 2014 by the Northwest Immigrant Rights Project and the American Civil Liberties Union.
The fact that Holder was the first named defendant was not without irony since he had been very outspoken about the need for changes to provide better counsel for the children. Nonetheless, government attorneys under his watch and current Attorney General Loretta Lynch have taken a surprisingly hard-boiled approach, aggressively defending the fairness of the current system and downplaying the legal harm to the children.
In its defense, the administration argues that it is sympathetic with the children’s plight but must walk a tightrope, where it can’t afford to capitulate in the courts and then find Congress won’t fund the required lawyers.
Nonetheless, the repeated deference to Congress is striking given Obama’s robust use of his executive powers elsewhere. And there’s mounting frustration with what appear to be delaying tactics by Justice — even as the deportation orders continue for the children.
“I am shocked that the administration is continuing to press its policy of deporting children without legal representation,” said Ahilan Arulanantham, a lead attorney for the ACLU. “I would never have guessed the Obama administration would so vigorously defend this atrocious policy for two years.”
The central question is what constitutes due process for such young defendants matched against government lawyers in a deportation hearing.
Federal immigration statutes promise a “reasonable opportunity” for each defendant to present evidence and cross-examine witnesses brought by the government. Advocates for the children argue that without legal counsel, this standard can’t be met. And in the case of young children who can’t speak English, the hearings become a mockery of the due process requirements set out in the Fifth Amendment.
Justice counters that the situation has improved significantly since 2014 as the pace of the arraignments has slowed and more lawyers have been found for the children. Moreover, the government argues that the proper avenue for appeal of any deportation order is through the existing administrative system — not the courts.
But here the administration has run up against U.S. District Court Judge Thomas Zilly, an 81-year-old Ronald Reagan appointee who has presided since the case was first filed in Seattle. Ever cautious, Zilly gives the impression of a man very reluctant to be drawn into the national fray but also a veteran jurist who can’t bring himself to wash his hands and turn away.
“Hasn’t the law and even Congress recognized that children are different and that they perhaps have different rights?” he asked Justice in one exchange. And when the government asked Zilly to dismiss the case outright for lack of jurisdiction, he refused, saying the issues were too vital and deserve “an answer.”
“The Court is of the opinion the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process,” Zilly said. “A fundamental precept of due process is that individuals have a right to be heard ‘at a meaningful time and in a meaningful manner’ and before `being condemned to suffer grievous loss of any kind even though it may not involve the stigma and hardship of a criminal conviction.”
It is that decision by Zilly in April 2015 that the administration is appealing to the higher 9th Circuit bench, arguing that the district court overstepped its jurisdiction. But having allowed the government time to proceed with this appeal, Zilly has begun to pick up the pace in his own courtroom in anticipation of a full trial on the issues in the fall.
On Friday, he agreed to certify a broader class action beyond the half-dozen child plaintiffs named in the initial suit. And he has scheduled his own hearing for all the warring parties July 8 — the day after the Appeals Court arguments.
Among the issues then is a preliminary injunction request by the ACLU and NIRP that Zilly order the government to find legal representation for one of the teenage plaintiffs, who still lacks a lawyer and is backed up now against an August 17 deadline in the immigration courts.
In new court filings late Monday, Justice argues that this a manufactured crisis in that the juvenile, who left Guatemala when only 14, is clearly qualified for relief and under no threat of deportation. But Matt Adams, a Seattle-based attorney for NIRP, countered that the government ignores the fact that any such relief is contingent on the teenager first completing a complicated set of applications — an impossible task, Adams said, without an attorney.
How Zilly responds could be telling since he appears to be struggling with where to draw the line on the right-to-counsel issue. The judge appears most sympathetic to the very youngest migrants, under 14 years old. But in working through his class action certification, he also moved up the ladder to 16 years old and then all juveniles under 18.
With his jurisdiction already under challenge, Zilly confined the class action to cover only current and future cases within the Western states of the 9th Judicial Circuit. To qualify, a defendant must be unable to finance an attorney and potentially eligible for asylum in the U.S. Zilly preserved a potential subclass for the very youngest children under 14. But he has dropped prior draft language that would have made the class retroactive to include all cases since July 2014.
The administration takes some credit in moving the judge toward what it sees as a safer, narrower landing zone. But from the plaintiffs’ standpoint, getting past the class action certification was even more pivotal and should give them added leverage in any future negotiations.
In fact, the very size of the 9th Circuit — encompassing nine states including California and Arizona — will make it very difficult for Washington to ignore any future ruling in terms of national immigration policy.
“It’s a tremendous step forward,” said Adams. “And it’s going to force the government to have to defend a system. They can’t just try to distract and delay to keep this important issue from being resolved.”
Then again, the three-judge panel at the Appeals Court next week will have a lot to say. As a rule, the 9th Circuit is considered one of the more progressive, migrant-friendly arenas in the federal bench. But those named this week to hear the case appear to be a more centrist mix.
Included were two Republicans appointees—Andrew Kleinfeld and Milan Smith-- and one Democrat, Margaret McKeown.
