Inhumanity of the Law, Part 1

July 20th, 2018

Some weeks ago I used this platform to express my horror at the practice of forcing minors, some as young as three, to appear in U.S. immigration court proceedings unrepresented by any adult, let alone by a lawyer.  I said I thought that any “judge”*who presided over such a proceeding should be fired, and any government attorney who proceeded against such a respondent should be disbarred.  In my shock at having learned about such practices, I was reacting out of humanity, not as a lawyer.

Since then, I have learned some things.  They don’t really change my reaction much at all.

I have learned that this barbarism is not peculiar to the present administration, but is a feature of our immigration law enforcement system.  Since I do not think that Trump et al. represent anything fundamentally new on the American political scene, I’m not surprised.  He is neither the first racist, nor the first authoritarian, nor probably the first psychopath to occupy the White House, nor the first occupant to combine all three traits.  He is a throwback to the earliest days of the republic, redolent of Andrew Jackson, his hero.  Trump is unique, perhaps, in his devotion to the Oval Office as a vehicle for personal aggrandizement, but in all relevant respects he represents longstanding if odious American traditions.  Our immigration laws originated in racist and nativist initiatives to constrict the nineteenth century’s essentially free flow of immigration.  They are at basis illiberal and invidious in their treatment of immigrants.

I have learned that, while it is generally accepted that persons appearing in immigration court to answer deportation petitions have a constitutional right to due process, they are not considered to have a legally established right to government-appointed counsel.  That is, they can have a lawyer, if they can get one, but the government is under no obligation to provide one for them.  So the three year old peering over counsel’s table in the courtroom is allowed to hire her own lawyer, but if for some reason she doesn’t do so, she’s on her own.

“But how can this be?” you ask.  After all, we provide a lawyer to anyone facing even one day of imprisonment on criminal charges who cannot afford to hire counsel for themself.  The “reasoning,” if you want to call it that, behind the difference in the way we treat cases in immigration court turns on the fact that immigration court cases do not belong to the “criminal” classification.  Instead they are classified as “civil.”

“Aha!” you say, “Criminal not civil…  I see… that explains it… Not!  Why should a person’s right to representation depend on how the case is classified?” The answer, in part at least, is that the Sixth Amendment to the U.S. Constitution states that every defendant in a “criminal” case has a right to counsel. This is commonly read to mean that under the Constitution a criminal defendant who cannot afford counsel must have a court-appointed lawyer.  By contrast, the Constitution says nothing about any such right for litigants in non-criminal proceedings.  This is commonly understood to mean that there is no such right.

But that leaves the question why immigration court proceedings, which may result in deportation (or “removal” as the jargon has it) are not considered to be criminal cases, or the equivalent thereof.  What is the difference between a criminal case, where you get a court-appointed lawyer, and a civil one, where you don’t?  If the basis for the distinction between “criminal” and “civil” cases indicates that removal proceedings are more similar to the former, then immigrants facing removal who can’t afford their own lawyer should have one provided for them by the government.

Let us consider this question as it was answered on January 29 of this year by the Ninth Circuit Court of Appeals in the specific context of an appeal by a minor, C.J.L.G., claiming that he had been denied his right to legal representation at a deportation proceeding.  The thirteen year old boy was assisted in immigration court by his mother, who had fled with him from Honduras the day after gang members, capping an escalating series of attempts to recruit him, had held a gun to his head and threatened to kill him, the mother, and his aunt and uncles if he did not join the gang within 24 hours.  Although DHS had given the boy a list of attorneys who might be willing to represent him “pro bono”, that is, for free, the mother eventually explained to the immigration court “judge” that every attorney they contacted wanted $6,500, and she did not have that kind of money.  The boy lost his case in immigration court and was ordered to be deported.  He appealed this decision, and the appeal went to the Ninth Circuit.

The Ninth Circuit’s decision is silent as to whether the immigration court “judge” enquired specifically why the mother had not secured representation from one of the purportedly free attorneys on the DHS list.  Somehow the “judge” does not appear to have asked why she couldn’t find a free lawyer despite having been over a year of time and multiple continuances in order to contact the names on DHS’ list of purportedly free attorneys. In its decision, which you can read here, the appeals court several times refers to the significance of the long delay, the list, the continuances, which it sees as evidence of the immigration court’s fairness; the “judge” gave her every chance to get a lawyer.  The appeals judges were not interested to learn why none of this availed.  They could have remanded the case to the immigration court for it to take evidence and make findings on this question, but they didn’t want to know.  The game, to them, was not worth the candle.

Appealing the deportation order, C.J.L.G., now represented by a lawyer, argued that the Supreme Court recognized that children cannot receive fair hearing without counsel when it held that minors in delinquency proceedings, facing commitment to a state institution, are entitled to court-appointed counsel at government expense. The Ninth Circuit responded that the Supreme Court’s focus was on the possibility of incarceration in a state institution “which is akin to punishment for a criminal conviction.”  Since C.J.L.G. wasn’t facing incarceration, the immigration court proceeding was not “akin” to a criminal one, and the government was not obligated to provide a lawyer for him.

My purpose here is not to critique the Ninth Circuit’s decision from a legal, scholarly perspective. I do not know enough about immigration law and constitutional law to do that.  But there are other types of significance.  On the one hand, the Ninth Circuit denied C.J.L.G. a lawyer because “such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”  On the other hand, the same judges acknowledged that “the private liberty interests involved in [removal] proceedings are indisputably substantial,” that “children are, as a general rule, less capable of advocating for themselves than are adults,” that “arguably, sending C.J. back to a hostile environment where he has faced death threats in the past implicates his freedom,” and that a person such as C.J.L.G.’s interest in the outcome of removal litigation “could hardly be greater.  If the court errs, the consequences for the applicant could be severe persecution, torture, or even death… deportation is a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country… An alien facing deportation stands to lose the right to stay and live and work in this land of freedom.”  (Yes, in explaining why they approved sending this thirteen year boy back to risk persecution, torture, and death, the Ninth Circuit judges did employ, without the faintest hint of irony, the phrase “land of freedom” to describe the place in which they were denying him the right to stay and live and work.)  Despite all this, the Ninth Circuit judges focused their analysis on an idea the Supreme Court had expressed: “actual imprisonment is the line defining the constitutional right to appointment of counsel.”

The Supreme Court had drawn that bright line against Abby Gail Lassiter, a mother who asserted a right to counsel at government expense in a proceeding to terminate her parental rights.  The Ninth Circuit could have distinguished Lassiter’s case from that of C.J.L.G. on several grounds. Lassiter was an adult; C.J.L.G. was a kid.  Awful as it is to lose one’s parental rights, fear of persecution, torture, and death are on a different scale.  The stakes “could hardly be greater.”  The Ninth Circuit could have held that fear of persecution, torture and death implicate liberty interests at least equivalent in gravity to the potential consequences of conviction for delinquency (commitment to a state institution) or its kin, crime (a day or more in jail).  But there was that word, “incarceration.”  The Ninth Circuit’s use of that word, incantatorily, as if to invoke it were to dismiss all the claims of realities the judges themselves recognized and eloquently described, raises the question: what kind of thought process is involved here? Is it concerned with justice in the real world, or with the ritual manipulation of magic formulae?

This is the first of a multi-part series.

*I am putting “judge” in scare quotes because I don’t think anyone who would preside over such a farce deserves the title, or to be called “the Honorable”.

This entry was posted on Friday, July 20th, 2018 at 3:57 pm and is filed under Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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