Young Migrants Get Legal Break

In a decision that could affect thousands of young immigrants, a federal appeals court ruled Thursday that juveniles who have been released from custody to an adult may not be deported until both have been notified of the threatened action.

In a 3-0 decision, the U.S. 9th Circuit Court of Appeals rejected the government’s argument that it could seek to deport illegal immigrants younger than 18 without notifying an adult of the juvenile’s obligation to attend a hearing.

The Bureau of Immigration and Customs Enforcement “has offered no justification whatsoever for departing from its stated presumption” that those under 18 “require a responsible adult to help them navigate” immigration proceedings, Judge Kim M. Wardlaw wrote for the court.

The immigration bureau, now part of the Department of Homeland Security, took the position that immigrants 14 and older no longer needed the assistance of an adult in immigration proceedings. Agency attorneys contended that the notification requirement placed an “intolerable burden” on them.

Wardlaw said she found the government’s position “incomprehensible,” impractical and constitutionally suspect.

“Indeed, at age 14, a minor could not even drive himself to a hearing that he is required to attend, and might well be unable to navigate a public transportation system,” the judge wrote.

She noted that the immigration bureau’s own regulations would bar an immigration judge from accepting a minor’s admission of deportability without a responsible adult present.

The 9th Circuit ruled that Jose Flores-Chavez was entitled to a new deportation hearing and ordered that he be released immediately. He has been in custody the last four years.

Lucas Guttentag, who directs the Immigrants Rights Project of the American Civil Liberties Union in Oakland, hailed the ruling.

“The decision protects the rights of thousands of children and prohibits the government from ignoring or exploiting the special vulnerability of an unaccompanied minor who is expected to understand the complexities of our immigration system and to have the capacity to appear at a hearing that may be far away,” Guttentag said.

A spokesman for Immigration and Customs Enforcement said the government had detained 5,980 juvenile immigrants in fiscal 2003, up from 5,183 in 2002.

Justice Department spokesman Charles Miller said the agency was studying the ruling and had no immediate comment.

Thursday’s ruling was the latest victory for attorneys asserting that illegal immigrants have due process rights.

One of the first major wins came in 1991, when an immigration policy was overturned that had kept thousands of Central American children in custody, pending deportation hearings, unless close relatives came for them.

Then in 1996, the agency agreed to place juveniles in the least-restrictive setting appropriate to their needs and, in most instances, jail them only if they had been convicted of crimes or deemed escape risks.

The latest case was filed on behalf of Flores-Chavez, a native of El Salvador, who came here by bus in February 1993 with two adult sisters and entered the U.S. illegally at San Ysidro, according to the decision.

The boy, then 15, was caught almost immediately by immigration authorities and served with deportation papers. The papers ordered him to appear for a hearing, but he did not sign them, nor was the adult to whom he was released made aware of the document.

Flores-Chavez missed the hearing, and an immigration judge ordered him deported, saying he had abandoned all his claims and waived his right to appeal.

INS agents took him into custody. The boy’s bid to reopen his deportation proceeding was rejected by an immigration judge, a decision that was upheld by the Board of Immigration Appeals. Then, he appealed to the 9th Circuit.

Wardlaw, joined by judges Marsha S. Berzon and Anthony W. Ishi, ruled that the agency’s regulatory framework “contemplates that no minor alien under age 18 should be presumed responsible for understanding his rights and responsibilities in preparing for and appearing” at a deportation hearing.

Notifying the responsible adult placed only a minor burden on immigration officials, Wardlaw decided.

A person’s interest in receiving notice of pending deportation proceedings “is one of grave importance,” Wardlaw wrote.

“For over one hundred years our courts have held that aliens possess due process rights under the Fifth Amendment,” Wardlaw wrote.

Flores-Chavez could have remained in the U.S. through rights conferred on his mother by Congress.

“With proper notice,” Wardlaw said, “Flores would in all probability have been allowed to remain in the country.”