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Children in Immigration Proceedings: Self Representation or Federal Attorney?

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Thousands of undocumented immigrants cross the border into the United States and willingly turn themselves into federal Customs and Border Patrol agents so they can apply for asylum.  The journey into this country is long and dangerous, especially for children under the age of eighteen who have no parents or guardians to protect them.  These children’s vulnerabilities have spurred a nationwide argument over whether children under a certain age should be entitled to an immigration attorney funded by federal tax dollars.  Immigration Judge Jack H. Weil, in a deposition given in a Seattle court in November, stated that he has taught three-year-olds and four-year-olds how to understand immigration law.  Although it takes a long time, he says, in the end it can be done and allows for a fair hearing.

Experts in child psychology have expressed shock and disbelief regarding the Judge Weil’s claims.  They say that children at that age are normally learning how to put sentences together, not learning complex issues.  Expert psychologists are serving as witnesses to the American Civil Liberties Union (ACLU) and other immigrant rights groups in their case against the Department of Justice, Department of Health and Human Services, and Department of Homeland Security to require that children be given immigration attorneys.  When asked to elaborate on his statements, Judge Weil has said nothing further.  A department spokeswoman said that the statements were taken out of context, as they were related to techniques and safeguards that would provide a fundamentally fair hearing to all indigent parties in immigration court.  The ACLU argued that Judge Weil was put forth as a department witness, and his statements will be a large part of their case.

The argument surrounding a child’s right to an attorney in immigration law proceedings is premised on the right to due process, which is found in the U.S. Constitution.  Advocates claim that children are given attorneys in other areas of law, such as criminal law, and that it is difficult or even impossible for children to understand their rights in immigration proceedings, especially if they do not speak English.  Children in immigration court are often seen as passive, nervous, or scared, and they respond in monosyllabic words.  In many situations, it is clear that the children do not understand their predicaments.  However, the Department of Justice claims that nothing in the Constitution requires that the federal government be mandated to provide children in immigration proceedings with an attorney.  The case began in July of 2014, and is as of yet undecided.

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