Federal Appeals Court in S.F. Weighs Legal Rights of Kids Facing Deportation

In a rare move, a federal appeals court in San Francisco reheard a lawsuit Monday on whether children facing deportation have the right to a government-appointed attorney in immigration court.

The teenager at the center of the case, referred to in court documents by his initials C. J., fled Honduras at the age of 13 after a gang tried to recruit him at gunpoint, according to his attorneys. But his claim for asylum was subsequently rejected by a U.S. immigration court.

Attorneys with the American Civil Liberties Union contend that the teenager did not get a fair hearing because he could not afford an attorney and the government did not provide one.

Unlike in criminal court, neither children nor adults in immigration court are entitled to a government-provided attorney if they can’t otherwise afford to obtain one.

After a three-judge panel of the 9th U.S. Circuit Court of Appeals initially rejected C.J.’s claim for a lawyer earlier this year, the boy’s legal team requested a review of the arguments by a full panel of 11 judges.

At Monday's rehearing, the full panel of judges peppered attorneys on both sides of the case -- C.J.L.G v. Whitaker -- with rapid-fire questions.

Ahilan Arulanantham, senior counsel with the American Civil Liberties Union of Southern California, told the panel that the immigration judge who rejected C.J.’s claim failed to inform the teenager that he could be eligible for U.S. residency under the Special Immigrant Juvenile Status program. C.J.’s case, he said, is a good example of why children need attorneys in asylum proceedings.

“Most of these children are eligible for some form of relief in the current system,” Arulanantham said. “If they’re going to have any serious possibility of obtaining it, they need legal representation.”

But Deputy Assistant Attorney General Scott Stewart told the judges that minors in immigration court have no categorical right to an attorney.

“I couldn't commit to a particular case where it would be constitutionally required to appoint counsel,” Stewart said, rejecting the notion that a subset of children might require counsel in order to get a fair hearing, such as very young children or those with particularly complex cases.

“I mean, what the law requires, your honor, due process in this context, requires it's a fundamentally fair proceeding,” Stewart said.

That prompted a response of disbelief from Judge Andrew Hurwitz, an Obama appointee to the appeals court. “So in your view there can be a ‘fundamentally fair proceeding’ with a 2-year-old in front of an immigration judge, with no representation at all,” he said

Stewart argued that immigration judges are neutral arbiters, committed to the welfare of the child. And, he said, the judge in C.J.’s case had thoroughly investigated his claim before deciding to deny it.

Just one in 10 asylum-seekers (of any age) who lack legal representation win their cases, while asylum-seekers who have lawyers win almost half the time, according to research by Syracuse University's Transactional Records Access Clearinghouse.

A ruling is expected in the next several months, and could affect tens of thousands of children seeking asylum or other protections from deportation.