Court: Immigrant Children Facing Deportation Not Entitled to a Free Lawyer

SAN FRANCISCO — Immigrant children are not entitled to attorneys paid for by the government when facing deportation, a federal appeals court ruled Monday.

The judges rejected a claim by the American Civil Liberties Union and immigrant groups that children have a constitutional due process right to a free attorney.

A system already exists to give the children a fair hearing, and requiring the government to provide free attorneys would be an expense that would “strain an already overextended immigration system,” a three-judge panel of the 9th U.S. Circuit Court of Appeals said.

The plaintiffs said many of the thousands of children the government seeks to deport each year appear before judges without a lawyer because they can’t afford one or find one to take their cases for free.

The result is an unfair process that pits children with no ability to navigate complex legal issues against seasoned government attorneys, the groups say.

Ahilan Arulanantham, legal director at the ACLU of Southern California, said the group had not decided its next step.

“The statistical evidence, which the court acknowledged, is that children are many, many times more likely to win their cases if they have legal representation,” he said.

The 9th Circuit considered a case filed by a 13-year-old boy identified only as “C.J.” who fled Honduras with his mother after facing death threats, including a gun to his head, when he refused to join a gang.

They arrived in the U.S. in 2014, and the boy was placed in deportation proceedings three months later.

An immigration judge told the boy’s mother he had a right to an attorney, but she said she did not have money, according to the court ruling. The case went forward without an attorney, and the judge rejected the boy’s asylum application.

The boy sought a free court-appointed attorney for himself and other immigrant children who face deportation hearings.

Ninth Circuit Judge Consuelo Callahan said an effective process was already in place to safeguard the rights of immigrant children.

An immigration judge is required to fully and fairly ascertain and assess all the facts in the case, not just act as a neutral arbiter, according to Callahan. An appeals panel can send cases back to immigration judges if they fail to perform that duty.

Arulanantham said an immigration judge was not an adequate substitute for a lawyer.

In C.J.’s case, the 9th Circuit said the immigration judge made some mistakes, but none that would have changed the outcome. The court upheld the immigration judge’s decision to deny asylum.

In a separate opinion, 9th Circuit Judge John Owens said the court was not ruling on whether immigrant children who come to the U.S. without their parents or guardians are entitled to free attorneys. Owens said that’s a different case that “could lead to a different answer.”