In an unusual move, the 9th Circuit Court of Appeals is rehearing a case Monday in San Francisco before a full panel of 11 judges. It could guarantee minors facing deportation access to attorneys in immigration court.
Unlike minors who appear in criminal court, immigrant children aren’t entitled to a lawyer at hearings that can result in deportation. That means children who can’t afford an attorney or find one to take their case, are appearing in proceedings representing themselves.
“In every other setting but immigration, they’re given legal representation, assigned legal representation if they don’t have it," said Matt Adams, legal director for the Northwest Immigrant Rights Project, a Seattle-based nonprofit.
"But for some reason, our government has never thought fit to provide legal representation to these minors in removal proceedings,” he said.
NWIRP is challenging the practice on behalf of a Honduran child identified in court papers as C.J.L.G. He's a 13-year-old whom an immigration judge ordered deported, but who wasn’t represented by an attorney. C.J.L.G. fled Honduras after gang members threatened to kill him at gunpoint, according to NWIRP.
"CJ stood by himself in front of the judge and was forced to try and explain why he was entitled to remain in this country," Adams said.
The federal government argues that due process rights guaranteed under the U.S. Constitution don’t apply in removal proceedings.
"The main thrust of C.J.L.G.’s case is that, as a matter of procedural due process, indigent minors in civil removal proceedings have a categorical right to counsel at taxpayer expense," attorneys with the U.S. Department of Justice wrote in court briefs. "This claim fails."
Justice Department attorneys argue the U.S. Supreme Court has set a precedent against the right to appointed counsel.
"The Fifth Amendment provides that 'o person shall ... be deprived of life, liberty, or property, without due process of law,'" attorneys for the federal government write. "Neither this provision nor any other authority has ever recognized a categorical right to counsel at taxpayer expense in removal proceedings."
In fact, the attorneys write, there's a lack of any right to appointed counsel in removal proceedings.
Earlier this year, a panel of three 9th Circuit Court judges rejected CJ’s claim. But the court is now taking the rare step of withdrawing the decision and re-hearing the case.
Listen to OPB's Kate Davidson interview Matt Adams, legal director of the Northwest Immigrant Rights Project. The piece was produced by Crystal Ligori.
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