SEATTLE (CN) - Public interest attorneys on Wednesday filed a federal class action against the United States, claiming it is illegally denying counsel to thousands of undocumented children whom the government already has started deporting.
Attorneys for lead counsel the Northwest Immigrant Rights Project claim Attorney General Eric Holder et al. are violating the Immigration and Nationality Act and the due process clause of the Fifth Amendment.
The lawsuit comes as thousands of undocumented children, many of them unaccompanied, are being flown and bused hither and yon across the country after being arrested, usually, in Texas.
"Plaintiffs are eight immigrant children, ranging in age from ten to seventeen," the 27-page lawsuit begins. "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 ('DHS') 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."
Ninety-three paragraphs later, the complaint states: "The Immigration and Nationality Act requires that all individuals in removal proceedings be afforded a reasonable opportunity to, inter alia, examine and present evidence and witnesses. See 8 U.S.C. § 1229a(b). These provisions require that unrepresented children be provided a fair hearing in their immigration proceedings. The only way to ensure that these children receive a fair hearing is by providing them with legal representation."
The complaint also claims that "The Due Process Clause requires that unrepresented children in immigration proceedings be provided legal representation."
The American Immigration Council, of Washington, D.C., co-counsel in the case, issued a statement describing some of the child plaintiffs:
"A 10-year-old boy, his 13-year-old brother, and 15-year-old sister from El Salvador, whose father was murdered in front of their eyes. The father was targeted because he and the mother ran a rehabilitation center for people trying to leave gangs.
"A 14-year-old girl who had been living with her grandparents, but was forced to flee El Salvador after being threatened and then attacked by gang members.
"A 15-year-old boy who was abandoned and abused in Guatemala, and came to the United States without any family or friends.
"A 16-year-old boy born in Mexico who has lived here since he was 1 year old and has had lawful status since June 2010.
"A 16-year-old boy with limited communication skills and special education issues who escaped brutal violence exacted on his family in Honduras, and who has lived in Southern California since he was 8 years old.
"A 17-year-old boy who fled gang violence and recruitment in Guatemala and now lives with his lawful permanent resident father in Los Angeles."
The lawsuit, and the status of the children, recapitulates the situation from the 1980s, when wars in Central America drove millions of people from their homelands to the United States. After several multi-year lawsuits, federal judges found that the U.S. government had denied legal rights to hundreds of thousands of refugees and asylum-seekers. Many of the legal abuses then - such as running detainees to court and strip searching children and mothers for asking to see an attorney - were inflicted in a deliberate attempt to deny refuge-seekers access to counsel.
"At the present time, legal service organizations representing immigrant children throughout the country have nowhere near the capacity to meet the demand," the new complaint states. "The rising number of children fleeing to this country will likely worsen that shortfall. The Government, in contrast, is represented in every case.
"Neither the Constitution nor the immigration laws permit this state of affairs. More than four decades ago, the Supreme Court recognized that when the government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault
, 387 U.S. 1, 41 (1967). The Court held that '[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him.' Id. at 36 (citation and quotation marks omitted). The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings. ...
"Yet every day in courts throughout the country, children represent themselves in deportation cases that are often more complex and more serious than most juvenile delinquency cases. The resulting adjudications are fundamentally unfair. Children are forced to admit or deny allegations against them, compile evidence in support of their claims to remain in the United States, and articulate legal arguments on their own behalf, when in reality they 'are unlikely to understand the complex procedures they face and the options and remedies that may be available to them under the law.'
"To fulfill its statutory and constitutional obligations, the government must ensure that no child faces the life-altering prospect of deportation without legal representation."
Plaintiffs seek class certification, declaratory judgment and an injunction.
Lead attorneys Matt Adams and Glenda M. Aldana Madrid, of the Northwest Immigrant Rights Projects, are assisted by the ACLU Immigrants' Rights Project of Los Angeles; the ACLU of Southern California, Public Counsel, both of Los Angeles; the American Immigration Council of Washington, D.C.; the ACLU of Washington Foundation; and K&L Gates, both of Seattle.