Child Litigants Need to Have Counsel

By Professor Kevin Lapp

This op-ed originally appeared in the Monday, May 13, 2019 edition of the Daily Journal

For the second time in three years, the 9th U.S. Circuit Court of Appeals avoided answering the urgent issue of whether child respondents in immigration removal (deportation) proceedings have a due process right to counsel at government expense. The case, C.J.L.G. v. Barr, 2019 DJDAR 3782 (May 3, 2019), involved a Honduran adolescent who appeared in immigration court accompanied only by his mother. C.J.L.G. sought asylum based on his fear of persecution for being a member of a particular social group, a legal claim so complex that it regularly confounds attorneys and judges alike. He was also apparently eligible for special immigrant juvenile status (SIJS), but neither C.J.L.G., his mother, nor the immigration judge raised that form of relief at his hearing, and he was ordered deported. On appeal, C.J.L.G. argued that his hearing was unfair and that due process required that child litigants like him be provided counsel at government expense.

C.J.L.G.’s immigration hearing was all too usual. Each year, tens of thousands of minors appear without a lawyer in immigration proceedings, some as young as two and three years old. Data show that, unsurprisingly, unrepresented minors are significantly more likely to be ordered deported than represented minors. The government nevertheless insists that adversarial proceedings against unrepresented children comport with due process.

The fully briefed right to appointed counsel claim was presumably the reason the 9th Circuit chose to hear C.J.L.G. en banc. Yet, as it did three years ago, it avoided the issue. (In J.E.F.M. v. Lynch (2016), the 9th Circuit held in the context of a class action that there was no jurisdiction over a constitutional right to counsel claim raised by minor respondents.) Instead, the court ordered a new hearing because the immigration judge failed to inform C.J.L.G. of his apparent eligibility for SIJS. It then dropped a footnote to explain that because C.J.L.G. has since secured counsel, and will be represented on remand before the Immigration Court, it need not address the constitutional right to appointed counsel claim.

The 9th Circuit’s decision is certainly a victory for C.J.L.G. and other pro se children who may be eligible for SIJS. The court found error in his proceedings, and he now has an opportunity, aided by counsel, to fully present his case for relief. But to avoid the right to appointed counsel issue (again) is, in practice, to decide it. And it is to decide it in a way that necessarily leaves thousands of child litigants, who either cannot afford a lawyer or who have not lucked into pro bono counsel, to defend themselves against trained government prosecutors in proceedings that involve a notoriously complex area of law.

Strikingly, C.J.L.G.'s case demonstrates exactly why child respondents need lawyers to ensure the fairness of their proceedings. Recall that the 9th Circuit found that the immigration judge failed to inform C.J.L.G. of a possible form of relief as he was required to do. Neither the presence of a friendly adult nor the immigration judge’s duty to develop the record were sufficient safeguards. If C.J.L.G. had not secured counsel after he was ordered deported, the error in his case would have never come to light. He would have been just another child deported after an unfair hearing. Nevertheless, because of C.J.L.G.’s fortune in securing a lawyer, thousands of children who do not share his good luck will continue to go without a lawyer in proceedings that are just as likely as his to be unfair.

By avoiding the issue, the court leaves immigration proceedings outside the broad legal consensus that child litigants are entitled to appointed counsel. In a variety of civil proceedings, such as delinquency matters, child welfare proceedings, judicial bypass hearings, and civil commitment proceedings, the law consistently requires the appointment of counsel to child litigants. Indeed, the claim to appointed counsel for children in removal proceedings — which are adversarial, presented by a trained prosecutor, involve complex law, and carry potentially grave consequences — is stronger than in other civil proceedings where the right already exists.

The law generally provides children with counsel for reasons that anyone who was ever a child intuits. As a rule, minors lack a basic understanding of law and judicial process and lack the cognitive capacities to make reasoned decisions about their legal defense. But the law also requires appointed counsel because of children’s presumptive lack of financial resources to hire counsel and the government’s parens patriae obligation toward them. That immigration judges are overburdened by huge and growing dockets, handle them without the support that the typical federal judge receives, and are incentivized by disconcerting case-processing quotas to quickly resolve cases, underscores the inadequacy of current safeguards.

Not all of the judges stayed silent. Judge Richard A. Paez, joined by Judges William A. Fletcher and Marsha S. Berzon, wrote that he “cannot ignore this mockery of judicial and administrative process.” After noting the rarity of the claim making it to the court of appeal, and that thousands of unrepresented children have been ordered removed in recent years, Judge Paez explained why he would hold that due process demands appointed counsel for child respondents.

Maybe if 9th Circuit judges regularly reviewed more of the hundreds of pro se children’s removal proceedings rife with errors (like C.J.L.G.’s), more of them would have felt the urgency to rule. But they do not see them. Under current 9th Circuit law, children who want to raise a claim for appointed counsel must appeal their cases administratively and then to the circuit courts. Yet unrepresented children ordered deported like C.J.L.G almost never reach the circuit courts for a simple reason — they do not have the wherewithal to get there by themselves.

Over a half century ago, in a delinquency case called Gault, the Supreme Court recognized that the right to counsel for juveniles reflects “society’s special concern for children” and “is of the essence of justice.” By the same token, to leave thousands of children in removal proceedings without counsel reflects a troubling lack of judicial concern for children and for the fundamental fairness of judicial proceedings.