Updated: August 11, 2014, 7:12 am

In another development relating to due process for the border children in deportation hearings, POLITICO reports on August 10 that House Republicans have refused a request from the Department of Justice to provide funding for lawyers to represent children in immigration court proceedings, even though more than 40 per cent of the children, many of whom are under 14 and do not understand English, are now processed through the system without counsel and this percentage is expected to go higher. POLITICO writes:

"The contrast is stark: The GOP has been willing to spend even more than Justice has asked for to install video-conferencing equipment in the immigration courts. But nothing to ensure the child migrant - on the other side of the screen, has legal counsel.

Republicans stripped out all money for attorneys for the children in their most recent supplemental spending bill August 1 to deal with the border crisis. In the latest skirmish, Rep. Frank Wolf (R-Va.) refused late last week to sign off on a subsequent DOJ request to transfer a reduced sum to expand legal orientation programs for the children and pay for lawyers."

It is one thing to ask the administration to provide more facilities and judges in order to reduce the waiting time for deportation hearings. But to deny the right to counsel, especially for children who are incapable of understanding the proceedings or asserting their legal rights, makes it impossible to provide any semblance of a fair hearing, as I argued in a different context in my article The Right to a Fair Trial in Juvenile Court 3 Journal of Family Law 292 (1963).

Even though my article was not cited in its opinion, the US Supreme Court agreed with my contention and that of other writers in a landmark juvenile court decision only a few years later. See In Re Gault, ​387 U.S. 1 1967). With regard to the critical importance of proper legal representation in immigration-related matters in general, see the much more recent Supreme Court decision in Padilla v Kentucky, 559 U.S. 356 (2010).

To seek to deny children access to counsel in deportation proceedings is more than just a blow against due process and fundamental fairness. It shows an utter contempt for the same rule of law which immigration opponents claim to be upholding by calling for the children to be deported in the first place.

Updated: August 10, 8:57 am

An August 8 NPR article reports about the conditions affecting many of the estimated more than 30,000 Central American unaccompanied border children who are currently in the US awaiting their hearings.

See: Trauma Plagues Many immigrant Kids In U.S. Illegally


The NPR article begins:

"Many of the Central American children who have entered the U.S. illegally in recent months have come with a heavy burden - a history of hardship and violence. And many of the children now face difficult and uncertain futures."

The article gives one such experience:

"Jose, 16, arrived in the US in June. He says he feared throughout that he would be killed or kidnapped by gangs. His aunt Marta, who lives in Maryland, says it was worth the risk, though, to get him away from the gangs back home. She says the family has been terrorized for years...

She says that two years ago, Jose's father and mother - who was five months pregnant at the time - were murdered for refusing to cooperate with local drug traffickers...

'There are no laws where we come from - no police, no justice, no nothing,' says his aunt."

The article also quotes Maria Gomez, president and CEO of St. Mary's Center a social service center helping children in the Washington D.C. area as saying that many of the recently arriving Central American children have had horrific experiences, which will require serious counseling.

As I have mentioned before, the TVPRA requires that the best interests of children facing deportation proceedings must be taken into account. This is not a new legal principle, but one which dates back to a 1990's US Supreme Court case (Reno v Flores), and which the TVPRA merely codifies. However, instead of following this legal doctrine, America's politicians in both Congress and the White House are pursuing what they see as their own best interests in caving into the prejudices of those who only care about sending the border children back to danger and fear of death as quickly as possible.

It is time for our officials to start repecting the law. It is also time for the BIA, and the legal community in general, to recognize that many of these children have valid asylum claims, something which both federal Circuit Court judges above the BIA and courageous immigration judges below, such as Judge Dana Leigh Marks, mentioned infra, are now doing.

My original post follows:

In an update to my August 6 post on Obama's deportation mills for Central American border children, it now develops that immigration lawyers are not the only ones who are critical of the administration's denial of the children's statutory rights to have their asylum or other claims for relief heard in a real court of law, as opposed to the Kangaroo proceedings described in a recent New York Times article.

The Hill reports on August 8 that Immigration Judge Dana Leigh Marks, the head of the National Association of Immigration Judges, has spoken out against the administration's policy of deporting the border children - and their families - as quickly as possible.

According to The Hill, Judge Marks is warning that cases involving the children are special cases demanding special handling. She states:

"We know of the political reality that is putting pressure on the administration to queue these cases quickly... And yet, from a judge's point of view apart from politics...there are many challenges we face in these cases that make them more likely to go slowly rather than quickly."

According to The Hill, she also said that aside from the barriers of culture and language, legal authorities also have the difficult task of making the children comfortable enough to relate their experiences accurately.

Judge Marks' criticism is also supported by the reports of pro bono lawyers for the border children, such as Steven Manning, who states that many immigrant families are being deported from the Artesia N.M. detention facility without legal representation and that the few lawyers working with the families have not been able to advocate for their clients or call witnesses. He said:

"The system isn't set up here [at Artesia] to be fair."

See: Immigrant advocates, judges, warn against fast-racking border screenings


My colleague Nolan Rappaport, a respected authority on asylum and refugee law, argues that the border children would be better off being denied entry to the US and instead screened by the UN in some other appropriate country so that they might be able to enter the US as refugees later on. His view is that if immigration judges follow BIA precedent decisions (especially relating to a restrictive definition of the term "social group" as used in asylum law) most of the children would be denied asylum and deported anyway, even if they were given the fair and full hearings that many of them - the unaccompanied ones at least - are entitled to under current immigration law.

It would seem that at least one prominent immigration judge has quite a different perspective from Nolan's on this point.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years. His email address is algaselex@gmail.com