Politico
By David Roger
September 20, 2016
Child migrants suffered a major setback in the federal courts on Tuesday, but Congress and the White House also found themselves lectured to from the bench for failing to do more to help the juveniles, thousands of whom have been thrown into deportation hearings without defense counsel.
At one level, the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals is a clear victory for the Justice Department. It effectively dooms a long-awaited federal district court trial, scheduled to begin in November in Seattle, on the children’s right to counsel.
But at a second level, Justice’s win had a hollow ring as two of the three judges wrote a concurring opinion that repeatedly invoked the words of former Attorney General Eric Holder that the government has a “moral obligation” to ensure the presence of counsel for the children.
“What is missing here. Money and resolve — political solutions that fall outside the purview of the courts,” wrote Judge Margaret McKeown, a Democratic appointee, together with her Republican appointee colleague, Judge Milan Smith.
“The stakes are too high,” they concluded. “To give meaning to ‘Equal Justice Under Law,’ the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.”
The underlying case arises from a federal lawsuit filed against the government in July 2014 by the American Civil Liberties Union and the Northwest Immigrant Rights Project.
Matt Adams, who has taken the lead in the case for the Northwest Immigrant Rights Project, was scathing in his frustration with the court’s ruling.
“The court determined that a theoretical possibility for judicial review suffices even where as a practical matter, the thousands of unrepresented children will be ordered deported without ever having an opportunity to argue that they are need an attorney to get a fair hearing,” Adams said. “The court points to one case of an unrepresented child back in 2004 that reached its doors. ... But if there is only one case in 15 years, with thousands of other children who have been deported, this only demonstrates there is no meaningful opportunity.”
The backdrop was the record number of border crossings that spring and summer by unaccompanied children from Central America. In the ensuing turmoil, the Obama administration responded by ordering the immigration courts to quickly arraign the new arrivals, with or without legal counsel.
The accelerated proceedings — dubbed rocket dockets — overwhelmed the fragile network of private attorneys typically available to the children. Judges seized the chance to issue removal orders on the spot, and in the first 13 months, nearly 2,800 juveniles — hundreds of whom were 14 or younger — received deportation orders after being afforded only a single hearing and no defense counsel.
The crisis has since moved out of the headlines, but the total number of removal orders issued for the child migrants since July 2014 had already passed 12,300 by the end of May. These decisions have become a very real threat to the young migrants, especially those who arrived as teenagers and are now 18 or older.
Filed in Seattle, the lawsuit landed before U.S. District Court Judge Thomas Zilly, who cautiously tried to define some middle ground that would at least extend added protections for the youngest defendants.
When Justice challenged his jurisdictional authority to hear the case, Zilly issued a telltale decision in April 2015 that effectively split the baby. On the narrow statutory grounds, Zilly agreed with the administration. But on the larger constitutional question of the children’s due process rights, Zilly refused to dismiss the lawsuit outright and said the plaintiffs deserved a timely answer.
It was this April 2015 decision by Zilly that brought the case to the 9th Circuit, where the administration argued that the district court had overstepped its jurisdiction and any due process claims of the children were subject to the limits imposed by Congress.
“Whatever Congress provides them, is their due process,” a Justice attorney told the court bluntly in one exchange when the case was argued in July. That did not sit well with the panel, but at the same time, the judges faulted the plaintiffs trying to go around the narrow legal path set out by Congress for any such appeals.
In truth, Zilly, appointed to the federal bench by former President Ronald Reagan, has struggled openly with the very same legal dilemma from the outset of the lawsuit two years ago.
He ultimately felt that the constitutional due process question had sufficient weight to demand a timely court hearing and allow him to move ahead for at least the youngest children. Time and again, he showed a special concern for those under 14 years old. So much so that in a recent filing, the plaintiffs argued for a summary judgment at least for this “subclass” of child migrants.
The appeals panel clearly shared some of that concern but wanted a tidier path to get to an answer and around the federal statutes. Having failed to find one, Tuesday’s ruling wipes out what has been years of work by child advocates trying to get a court hearing on the right-to-counsel issue.
“The 9th 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,” said Ahilan Arulanantham, who has been the ACLU’s lead counsel on the case. “The court issued that ruling even as it simultaneously recognized that virtually all children cannot represent themselves in immigration proceedings.”
“We disagree with this decision, and will continue the fight to ensure that the claims of these children to appointed counsel receive their day in court. In light of the 9th Circuit’s recognition of the moral imperative at stake, we again call on the Obama administration to exercise its power to cease its unjust practice of requiring children to represent themselves in immigration court.”
Justice had no immediate public comment, but privately officials signaled little joy with the win. Indeed, the harsh treatment of the children in 2014 and 2015 remains a genuine embarrassment for the White House. Draft rules are under consideration to create a more uniform system nationally, under which immigration judges would give children more time to find lawyers. And before the president leaves office next year, there is pressure to have these completed and in place.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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