A federal immigration judge’s insistence that toddlers are capable of defending themselves in court raises serious doubts as to whether there's any justice in the U.S. immigration system.
In a federal court deposition first reported by the Washington Post, veteran immigration Judge Jack. H. Weil said that even toddlers are able to learn enough of the intricacies of immigration law to appear in court without the help of an attorney.
“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,’’ Weil said in his sworn testimony presented at a federal court in Oregon. “It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.’’
Legal organizations, which for years have advocated for universal representation for all immigrants facing the court system, condemned Weil’s comments on Friday as patently absurd for expecting a child to understand an area of law that even many trained professionals don’t.
“I don’t think that anyone can really plausibly defend the notion that a 3- or 4-year-old in any court proceeding, let alone one where the stakes are a matter of life or death, would be in a position to competently navigate a very, very complex court system,” said Avideh Moussavian, a policy attorney with the National Immigration Law Center.
The notion that children, from teenagers to toddlers, would be expected to appear alone before an immigration judge isn’t as rare as one might expect.
Immigration violations are handled outside of the federal court system. Accused offenders don’t automatically receive legal representation -- there are no universal, taxpayer-funded public defenders in the immigration system. Immigrants instead can find and pay for their own attorneys or rely on the help from organizations that provide pro bono services.
This often leads to spotty, over-stretched or inadequate representation system-wide.
Weil’s deposition came out of a lawsuit brought by the ACLU and other pro-immigrant rights groups pressing for the federal government to provide counsel to all indigent children facing immigration court proceedings.
Even more damning is the detail that the remarks come from an official who is responsible for training immigration judges.
Weil later told the Post that his comments were taken out of context and that his involvement in the case was to describe training and protocols.
Lauren Alder Reid, a spokeswoman for the Executive Office for Immigration Review (EOIR) under the Department of Justice, said in a statement that Weil’s comments should be taken into the context of his full four-hour deposition.
“The Department of Justice recognizes that immigration court proceedings are more effective and efficient when individuals are represented. The assistant chief immigration judge was speaking in a personal capacity when he made that statement. [His] statement does not necessarily represent the views of the Department of Justice,” the statement read.
Weil’s comments underscore the systemic problems baked into a broken U.S. immigration system.
The lack of legal representation for children spiraled into a massive logistical problem in 2014 after a flood of unaccompanied minors were caught at the U.S.-Mexico border. Congress had previously decided that all children from Central American countries were allowed a day in court to fight to stay in the U.S. And so courts with already maxed-out resources suddenly faced thousands of children on their dockets, most of whom spoke no English and had limited access to counsel.
The ripple effects have led to the largest immigration court backlog ever recorded. Judges, faced with lawyer-less children, often turned cases away to offer more time for families to find representation. With the delays, the backlog grew. There are 474,025 cases currently pending in the immigration courts. While cases involving unaccompanied minors are on an expedited track, all others face an average of 667 days to resolve, according to Transactional Records Access Clearinghouse, run by Syracuse University.
There are some efforts underway to turn the trend around. Senate Minority Leader Harry Reid has introduced legislation that would grant government-appointed counsel to children seeking asylum through the U.S. immigration courts. House Democrats filed a companion bill last week.
Wendy Young, president of the Kids in Need of Defense Fund, said she is optimistic that the legislation would help ensure the much-needed access to counsel.
“Honestly, there is a systemic issue that shows the U.S. immigration system does not articulate that children under the age of 18 are fundamentally different than adults,” Young said. “If you put a toddler in a courtroom, that is by definition a problem.”