Court weighs whether immigrant children should have right to attorney

SEATTLE -- This week, a federal court is weighing whether children should have the right to an attorney in immigration court.

Right now, from toddlers to teens, many immigrant children facing deportation are forced to go in front a judge alone and represent his or herself.

While the U.S. is obligated to provide court-appointed attorneys for criminal defendants who do not have their own representation, the same does not apply for immigration courts.

Last year, data from TRAC Immigration showed that three out of every four unaccompanied children did not have legal representation. The data also shows how much of a difference an attorney can make.

From 2012 to 2014, only 15 percent of unaccompanied children who did not have an attorney were allowed to stay in the U.S. That number jumps nearly five times to 73 percent if those children have an attorney.

But in federal court Monday, an attorney for the Justice Department argued in front of the Ninth Circuit Court of Appeals that there’s no legal requirement to provide one.

"What the law requires, Your Honor, due process, is a fundamentally fair proceeding," said DOJ attorney Scott Stewart on behalf of Acting Attorney General Matthew Whitaker.

"So your view is that there can be a fundamentally fair proceeding with a 2 year old in front of an immigration judge with no representation at all?" a judge questioned.

"If the judges are having a hard time understanding the system, I think that demonstrates why you need an attorney to help a child," said Jorge Baron, executive director of Northwest Immigrant Rights Project, a Seattle-area nonprofit that helped bring the lawsuit, along with the ACLU and others.

The lawsuit argues children facing deportation should have the right to a court-appointed lawyer. The case in question involves a boy, known as C.J., who fled Honduras at 13 years old after he says gang members held him at gunpoint and threatened to kill him. Without an attorney to properly present his case and explain his options, an immigration judge ordered he be deported.

His new legal team is appealing the deportation.

"In this country we put children through this adversarial process, where you have the government represented by a trained attorney -- a government prosecutor -- who is making the case to the judge of why the child should be deported," Baron said. "But on the other side, you may well have a child -- as young as 2 or 3 years old -- who's having to represent themselves. It seems ludicrous to even say that, but that's the reality that's happening in immigration courts around the country, including right here in Seattle."

NWIRP and the ACLU hope that overturning C.J.'s deportation order over his lack of legal representation could set a precedent for providing attorneys for immigrant children. But the government maintains that under current law, there is no situation where that is required.

The federal court rehearing the case could take weeks to deliberate.