Appeals Court Rejects Immigrant Kids Class Action Lawsuit

September 21, 2016

A federal appeals court in Seattle has ruled that immigrant children under the threat of deportation may not sue the government for legal representation as part of a class action. The ruling is a significant setback for the legal rights of immigrant minors.

A group of minors ranging in ages from three to 17, represented by the American Civil Liberties Union and other immigrant rights groups, filed a lawsuit two years ago arguing that the government should provide them with court-appointed lawyers. They claim their due process rights are being violated because they cannot adequately represent themselves in deportation hearings where they are opposed by government-trained attorneys.

Immigration judges, who work for the executive branch of the federal government, not the judiciary, do not have the power to appoint legal counsel for the children.

The government contested the lawsuit arguing that immigrant minors don’t have a constitutional right to government-provided legal counsel. In fact, the key witness for the government, longtime immigration judge Jack H. Weil, testified in a deposition that he could teach 3- and 4-year-olds all the immigration law they needed to represent themselves.

Earlier this year, U.S. District Judge Thomas Zilly of Seattle ruled that the lawsuit could proceed as a class action. But a three-judge panel of the Ninth Circuit Court of Appeals unanimously reversed that decision, ruling that such suits cannot move forward as a class action. The judges ruled that such claims must be filed individually and directly to the federal appeals court only after their deportation proceedings are concluded.

However, the judges emphasized that their ruling addressed only the jurisdictional claims over a lower court’s power to decide whether a minor has the right to a government-appointed lawyer. They said in their written opinion that they were not addressing the merits of the minors’ claims.

In her concurring opinion, Judge Mary Margaret McKeown said she recognized “the plight of unrepresented children who find themselves in immigration proceedings.”

“I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve – political solutions that fall outside the purview of the courts,” she wrote.

Advocates for the minors said they will appeal the ruling.

“The judges recognize the gravity of the minors’ legal dilemma,” Matt Adams, legal director of the Northwest Immigrant Rights Project, told the Associated Press. “But the court has the responsibility to resolve an issue where there’s no other meaningful forum. You can’t duck the matter by saying, ‘Well Congress can fix this, the president can fix it.'”

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