Court Certifies A Class Action Lawsuit That Argues Child Migrants Have A Due Process Right To Legal Counsel At Government Expense

Immigrant advocates scored a major victory in the ongoing legal fight over whether children under the age of 18 years old who are in deportation proceedings are entitled to appointed counsel at government expense. Federal District Court Judge Thomas Zilly stated he is going to certify a class action lawsuit that would cover all defendants under 18 years, who lack financial resources to obtain an attorney, and are eligible for asylum. Although the proposed class is confined to cases within the boundaries of the Ninth Judicial Circuit, this is a huge area that includes the border states of California, Arizona, and Washington. This is a major blow to the U.S. Justice Department who is defending the lawsuit and is seeking to dismiss the case outright.
Under current law, immigrants in removal proceedings have the right to legal counsel, but at their own expense. The financial hurdle of paying for an immigration attorney is significant, especially for indigent children from Central America, who have been arriving in the United States in huge waves since the summer of 2014. By certifying the class, Judge Zilly is preventing the government from mooting out all the individual claims and avoiding resolving this issue on a wider scale.
Although class certification is only the first steps towards a victory on the merits, it is significant because it is the first time that this legal claim has survived summary judgment. It puts the brakes on the Obama administration’s efforts to rapidly deport recent arrivals before they are able to retain counsel and fight their cases in immigration court. In response to the wave of children who arrived in the summer of 2014, President Obama ordered that the children’s dockets be given priority over all other cases. The result was a very short period of time between when the charging document was filed and when a final decision- usually removal- was made.
According to the New York Times, About 84,000 children were apprehended at the Southwest border during the 2014 fiscal year and the first six months of the 2015 fiscal year, according to the Border Patrol. Of the 79,088 removal cases initiated by the government, 15,207 children had been ordered deported as of June, according to the Migration Policy Institute, a nonpartisan research group in Washington.
In contrast to this “rocket docket” for children, here in Denver Colorado, all other cases on the Denver non-detained docket had an average processing time of 970 days from the time the charging document was filed to case completion. That is by far the longest wait in the country. The Obama administration is making a clear policy decision to prioritize deportation of the youngest and most vulnerable immigrants, at the expense of due process and basic human decency. A large number of these children are fleeing domestic violence, gang violence, and other persecution that no one their age should ever have to face. They are not merely “economic migrants” as the right would like to portray them.

Given the challenges that asylum-seekers face when acting alone, particularly children acting alone, quality legal counsel is critical to their cases’ success. According to a 2007 Stanford Law Review study of U.S. asylum practices, “46 percent of people who appeared with lawyers or other representatives were granted asylum, while people without lawyers won 16 percent of the time.” Given this wide disparity, access to quality legal representation plays a major role in determining who will be granted asylum in America. While the Immigration and Nationality Act provides asylum-seekers with the right to a lawyer, they can only exercise that right at their own personal cost. With the high cost of private legal counsel and limited availability of low-cost or pro bono aid, applicants must search aggressively for affordable representation. A child has the added hurdle of not understanding the system or the legal consequences of failing to appear to fight their case in court.
While the fight is far from over, appointing government legal counsel to children in removal proceedings who qualify for asylum would be a huge step towards equal protection and due process for the most vulnerable caught up in this broken immigration system. Without legal representation, these children do not stand much of a chance. Why should the government be adequately represented with competent counsel while those on the other side have no counsel, do not speak English, and are young children? Levelling the playing field would at least give these vulnerable children a fighting chance at justice.