Unlike criminal proceedings or dependency and neglect proceedings, an indigent person in immigration proceedings is not afforded the right to pro bono counsel. In other words, if you are too poor to afford an attorney, or cannot find a pro bono attorney, you must represent yourself in immigration court. Although you have the right to an attorney in immigration proceedings, it comes with the condition that it must come at no cost to the government. After the recent wave of unaccompanied minors entering the United States without authorization, America’s immigration courts have seen greater numbers of children- some as young as 2 or 3 years old- representing themselves.
This is the backdrop for the litigation that is currently pending in federal court regarding whether the government should appoint counsel (at government expense) for minors if they cannot afford a private attorney. At a recent deposition, Jack Weil, a senior Immigration Judge stated that three and four year old children can learn immigration law well enough to represent themselves in immigration court:
“He repeated his claim twice in the deposition, also saying, “I’ve told you I have trained 3-year-olds and 4-year-olds in immigration law,” according to a transcript. “You can do a fair hearing. It’s going to take you a lot of time.”
Numerous child psychology experts criticized Judge Weil’s characterization of a 3 or 4 year old’s ability to understand complex immigration proceedings. There is a reason why minors in other contexts- criminal law and family law especially- are treated as incapable of representing themselves because they lack the mental capacity to do so. A three year old does not have the logical reasoning ability necessary to competently represent themselves. Despite this scathing criticism from lawyers, psychologists, and advocates, the Department of Justice is defending the Judge’s opinion that it is unnecessary to appoint counsel for children because they can represent themselves as long as the immigration judge is patient and “teaches” them the law. As Assistant Chief Immigration judge in EOIR’s Office of the Chief immigration Judge, Judge Weil should know that for a child to have to represent himself is a due process violation because by legal definition, children are not capable advocates. I believe, at the very least, that any child under the age of 18 years old should be appointed an attorney in immigration proceedings, if he or she cannot afford one. The current system is grossly unjust as children as young as two years old are being deported as if they were given a full and fair hearing.
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