Rep. Zoe Lofgren knew what would happen as hundreds of thousands of children fled to the United States on their own over the last few years.
Because being present in the U.S. illegally is a civil offense, there is no right to an attorney during immigration or asylum proceedings. That means many children stand alone before an immigration judge when they ask to stay in this country.
Lofgren said it’s a problem she has fought for years. In the 1970s, she practiced immigration law and taught at the Santa Clara University School of Law. She knew that many who came fleeing violence would be sent back home because they lacked legal representation and had no one to advocate for them.
Now the San Jose Democrat and 54 of her House colleagues have put forth a bill to argue that, at a minimum, children and people with certain disabilities should have government-appointed attorneys to help them navigate the asylum process. Eleven California Democrats have co-sponsored the bill, which has been referred to the House Judiciary Committee, where Lofgren is the highest-ranking Democrat on the Subcommittee on Immigration and Border Security.
"You've got a 10-year-old who speaks Spanish and they're in a courtroom facing a trained prosecutor making the asylum case. It's not going to work," Lofgren said in an interview in her Capitol Hill office. "The consequences of being unable to make your case are severe."
Since October 2013, more than 132,000 Central American children and teens without legal status have been caught near the United States border with Mexico, according to U.S. Customs and Border Protection. It isn't yet clear whether that trend will continue this year, or if federal deportation efforts have caused it to slow.
A child who goes before an immigration judge without an attorney has a 1 in 10 chance of being allowed to stay, while about half of children with an attorney get U.S. protection, according to a study by the Transactional Records Access Clearinghouse at Syracuse University. About half of unaccompanied children get an attorney, the analysis shows.
Although being in the country illegally is a civil offense, being caught crossing the border can lead to federal criminal charges.
Opponents of the bill argue that American taxpayers shouldn’t pay for an attorney to represent a person who came to the country illegally. John Feere, legal policy analyst for the conservative Center for Immigration Studies, wrote in a March 15 blog post on the center’s website that if immigration groups want an attorney for people in the U.S. illegally, being in the country without legal status should be made a criminal offense, not a civil one.
“It can be a difficult situation for children, no doubt, and it's unfortunate that the parents have put them in that situation. And it's unfortunate that the Obama administration has encouraged people to risk their lives crossing the border, but that is precisely what Deferred Action has done,” Feere said. “There's already a way to make sure all illegal aliens receive an attorney during their immigration proceedings: criminalize immigration law.”
Lofgren said concerns about cost shouldn’t trump due process. She argued that requiring access to attorneys could help avoid delays and streamline the process, which would save money. Several nonprofit groups provide free legal representation to migrant children, as does a Department of Justice program, though many still end up in court without an advocate.
Many immigration judges delay and postpone hearings as they look for an attorney to represent children seeking asylum, Lofgren said.
"Not having a lawyer gums up the works," she said. "That costs money and time. You translate those delays and the cost with those delays over 50,000 cases, it's a lot of money."
Once a child is detained, Department of Homeland Security asylum officers perform an initial screening to determine whether the child may have a valid claim for asylum and should go before an immigration judge.
"These kids, most of them, over 90%, were found to have valid claims by the trained asylum officer. But of course if they weren't represented, they were unable to actually articulate that when it came to court," Lofgren said.
Whether the government must provide attorneys for children and people with special needs is a question pending in the U.S. District Court for the Western District of Washington. The American Civil Liberties Union and immigrant rights groups want to require the government to provide appointed counsel for every child who cannot afford a lawyer in immigration court proceedings. The Justice Department is contesting the lawsuit.
In a recently unsealed deposition, Judge Jack Weil, an assistant chief immigration judge for the U.S. Department of Justice, made the case that migrant children as young as 3 years old are capable of representing themselves in deportation hearings. Weil’s job includes coordinating training for other immigration judges and court staff.
"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Weil said. "They get it. It's not the most efficient, but it can be done."
Lofgren said the statement was absurd.
"If you are a mother, it's hard to say how it's fair that a small child should be left on their own in an important proceeding,” she said. "There's no other area of the law where that happens."
A group of immigration lawyers made the same point recently in a video where they asked children questions they would hear in court.
Lofgren understands her bill may not move far.
"I'm aware that the Republican leadership may not move the bill, but I do think it's important to raise the issue legislatively," she said.
The Senate’s lone former immigration lawyer, Sen. Bob Menendez (D-N.J.), has co-sponsored the Senate version of the bill led by Sen. Harry Reid (D-Nev.).
The United States should give immigrant children a fair day in court, Rep. Lucille Roybal-Allard (D-Downey) said in a statement when the bill was introduced.
“We have a moral obligation to ensure these children and other vulnerable populations seeking our nation’s protection receive due process, and are not merely deported back to the dangers and the terrors they risked so much to escape,” she said.
Lofgren says she sees her own kids, now grown, in the faces of children who came to the U.S. alone.
"When they were 5 they could not have gone into court, faced off with a trained prosecutor and made a coherent case for asylum in a language they didn't speak," she said.
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