Posted on September 5, 2014

Migrants’ Right to Counsel Argued

David Rogers, Politico, September 3, 2014

The Justice Department and immigrant-rights attorneys clashed before a federal judge in Seattle on Wednesday–a case dramatizing the split personality in the Obama administration over the question of providing counsel to child migrants faced with deportation hearings.

No less than Attorney General Eric Holder told the Senate last year that it is “inexcusable” that young children “have immigration decisions made on their behalf, against them, whatever and they’re not represented by counsel. That’s simply not who we are as a nation.”

But in making the case for Justice on Wednesday, Deputy Assistant Attorney General Leon Fresco painted a dire picture of what would result if the court were to insist that children be assured counsel before any deportation hearing.

“A preliminary injunction which says that there is a constitutional right to counsel would mean–without an appropriation from Congress, which I believe is unlikely–that you could not remove any child under the age of 18 years old from the United States,” Fresco argued. “Meaning the border is completely open for children under 18.”

“The government cannot stop the removal proceedings of every immigrant youth in the United States,” Fresco said. “That would create a magnet effect that the United States is not prepared to handle. . . . That is free education for all those children being funded by localities and the states. That is whatever medical claims those children need plus an insecure border because you have now sent the message internationally that no one here is going to be removed.”

U.S. District Judge Thomas Zilly made no ruling at the end of the arguments, which ran close to three hours Wednesday morning. {snip}


The Northwest Immigrant Rights Project in Seattle, the American Immigration Council and an arm of the American Civil Liberties Union, the ACLU Immigrants’ Rights Project, are among the major players in the bringing of the suit. And the choice posed to the court frames a central question in the debate now in Washington over the fate of thousands of children from Central America who have crossed into the U.S. this year, unaccompanied by parents or an adult relative.

The plaintiffs are six children from Guatemala and El Salvador, all of whom face immigration proceedings this month, some as early as this week. It’s thus expected that Zilly must deal with the narrow injunction request soon, but also at stake is a larger class-action case with national implications.

“There are already, all around the country, proceedings going forward against children. . . . In Dallas children have been ordered removed in absentia,” said Ahilan Arulanantham, an ACLU attorney who helped present the case against the government. Children, he said, face a catch-22 situation, because if they later appeal on the grounds of not having counsel, the claim will be judged moot because they will then have counsel for the appeal.”