Monday, July 2, 2018

Continued Consequences of Zero Tolerance - Toddlers Ordered to Court Alone

I had really hoped not to write any more on the immigration crisis at the border.  To not have to write anymore on the problems with the zero-tolerance policy and the separation of families that was required as a result.  I had hoped that though the process would be time-consuming and require a lot of trial and error, that the decision to reverse the separation policy would be beneficial in the long run and that the problems that we created could be worked out.

Then I came across a news item that offends me to my core as a parent, as an attorney, and as a human being.

Immigrant children as young as three are being ordered into court alone for their deportation proceedings, according to attorneys in Texas, California, and Washington, D.C.

Now, before any whataboutits starts, requiring unaccompanied minors to go through deportation proceedings alone is not new.  Like the previous detention of children that is pointed to under the Obama administration, such a process would occur when children arrived to the United States as unaccompanied minors.  Meaning, they crossed the border alone or without any accompanying adults (so there would be no parent here to be at their deportation hearing in any instance).

The large difference here, is that the United States has created a large influx of these cases by forcibly separating children from their parents at the border.  That has not previously occurred.  This means that more young children, including toddlers who typically would not have typically been in the unaccompanied minors group, are having to go through the deportation proceedings alone.

And it still did not make it a great practice then.  Civil rights groups have been long fighting to at least require attorney assistance in such cases, with senators trying to pass a bill that would require it.  To no avail, of course.

Because we have determined that the Sixth Amendment protection requiring assistance of counsel does not apply to deportation proceedings (INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)), since they are technically a civil proceeding, these children are currently essentially required to represent themselves.  They are however, given a list of legal services organizations that might help them.

Even worse, we have judges that believe a three or four year old can represent themselves in immigration court.  "I've taught immigration law literally to 3-year-olds and 4-year-olds.  It takes a lot of time.  It takes a lot of patience.  They get it.  It's not the most efficient, but it can be done."  Judge Jack H. Weil, Assistant Chief Immigration Judge in EOIR's Office of the Chief Immigration judge, which sets and oversees policies for the nation's 58 immigration courts and coordinates the Justice Department's training of immigration judges.  Judge Weil offered this statement in a deposition as the Justice Department's expert witness in opposition to a court case seeking required legal assistance for unaccompanied minors.  I've also read comments from immigration attorneys on this subject as well.  One had a four-year-old client who was too scared to enter the court room and had to be carried in to face the EOIR judge.  The attorney insisted that their client was not able to understand the nature of the proceedings, but the judge disagreed and went forward.

And again, because of the make up of the group of immigrants that have be affected by the zero-tolerance policy, many of the children affected are part of families who were seeking asylum.  In such a case, the child is now required to articulate the reasons they are seeking asylum on their own.  In previous cases, parents have been tried alongside their young children and have been the ones to explain why asylum is requested.

And though generally children seeking asylum tend to make their case in a non-adversarial office setting with a hearing officer, that is not always the case, and many are being pulled into full court, as the four-year-old above.

Finally, for good measure, let's remember most of these children do not speak English, so any information must be relayed through an interpreter.  Another substantial hurdle in communication and source of fear and trepidation for the child.


As a parent of a pretty bright four-year-old, I know she would not be able to articulate reasons for seeking asylum in a sufficient manner in English, let alone in another country or language.  We're still working with her to get her to understand the concept of city, state, and country so she can fully explain where she is from.  She can say "Wills Point Texas" in a rote manner now, but does not completely understand yet that Wills Point and many other cities are in Texas and that Texas is in the United States.  It's part of our current summer projects.

Were she given a list of organizations to help her, she would not be able to pick one, at least not with any thought to it.  It would be a random point and choose, if anything.  Likely, she would be having to proceed truly alone.

I cannot imagine how I would react if I knew she had been taken from me and was being put through legal proceedings without any form of representation.

We generally assume that children are incapable of making complex and binding decisions.  It's why they are not able to contract, why they are tried in juvenile courts when accused of a crime, and why any steps to establish capacity (to try them as an adult, to become emancipated, etc.) require an affirmative showing and finding to rebut the presumption.

Why do we change our stance in this situation?  Is it because they are not "our" kids?  Because they are not citizens?  Somehow that makes it okay?  Again, is it because they are brown, by and large?

At its best, my job basically breaks down into advocate.  To speak for those who are not able to do so.

It's time we all stand up and become advocates for these kids.

Lord knows they need them.

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