JURIST Guest Columnist Geoffrey Hoffman, of the University of Houston Law Center, discusses the problems that the immigration court creates for unaccompanied alien children…

The law is no stranger to paradoxes, contradictions and strange coincidences. Immigration courts however present a special case of legal paradox. As an attorney representing immigrants in removal proceedings, one comes away feeling that the respondent is caught up in the process as either a non-participant or a quasi-party, effectively cut off from the process in important ways. Moreover, immigration law has grown increasingly complex, expanding like an ever-growing coral reef. The recent effort by the Executive Office for Immigration Review to push unaccompanied alien children to the forefront of immigration judges’ dockets to expedite their removals without legal counsel in the vast majority of cases is a deprivation of due process on a vast scale and further evidence of our broken immigration court system.

A paradox is a good lens through which to view the problematic nature of immigration adjudication. Immigration courts and adjudicators are required to apply byzantine laws, rules, regulations, practices and policies. It is well-recognized that these laws have become increasingly more difficult to apply year after year. A paradox also has the added benefit of capturing the twin poles of US immigration law: enforcement on the one hand and family unity and the granting of benefits on the other. The paradoxical nature of immigration adjudication presented in the foreground may be compared to the larger, overarching paradox looming in the background that we as a “nation of immigrants” feel compelled to ramp up enforcement at the expense of due process and other constitutional protections. The paradox is compounded by an administration’s simultaneous and contradictory intentions in granting deferred action to childhood arrivals, calling for more “humane” deportation and pushing for much needed immigration reform on the one hand and at the same time sacrificing due process by prioritizing the removal proceedings of unaccompanied children. To the government’s credit, it has announced a program in conjunction with AmeriCorps to provide grants to fund approximately 100 “lawyers and paralegals” to potentially help unaccompanied minors in removal proceedings.

In thinking about the many paradoxes which arise in the immigration courts, it is also useful to consider the law’s unintended consequences. The concept of law’s “revenge effects” is an apt analogy. In studies of technology, it is well-documented how technological “innovation” can lead to disaster in society. Similarly, even well-intentioned laws many times end up making matters worse for immigrants and their families. Laws can negatively affect the target of the legislation, immigrants, as well as citizens and even society as a whole. Even the current immigration reform proposals now pending in Congress contain severe revenge effects. These include vast border militarization plans, increased fines and penalties for immigrants and hidden and not-so-hidden costs which may negatively impact immigrants and their families.

Many of the paradoxes so ingrained in immigration adjudication can be traced to the central presupposition that removal is a civil versus a criminal proceeding. This largely unquestioned assumption has served to insulate removal proceedings from the important constitutional protections widely guaranteed to criminal defendants. The lack of constitutional safeguards affect a wide array of rights including access to counsel, rules of evidence and discovery, i.e., access to information in government files.

While many courts pay lip service to the de facto punitive consequences of deportation and detention of immigrants, there is also a line of Supreme Court cases which affirms that removal proceedings are merely civil in nature. The paradox lies in the demotion which “decriminalizes” deportation at the expense of the rights of the accused or in this case of the rights of the respondent “charged” with grounds of inadmissibility and/or removability. The paradox has become even more acute recently with the sharp rise in recent year in prosecutions of immigrants for illegal immigration-related activity such as illegal entry and illegal reentry after an order of deportation.

This core paradox is at the root of a comment made by a sitting immigration judge, Hon. Dana Marks that immigration adjudication is like doing “death-penalty cases” in a traffic-court setting. This is no idle quip. It contains a deep insight. The procedure which should be in place for cases with such grave consequences is ill-equipped to guarantee the level of substantive fairness we expect and demand from a US court.

It is no overstatement that deportation cases represent in many cases “banishment” from family members, friends, employment—in short from a life in the US. Many judges, legislators and members of the public are unaware of the seriousness of this aspect of deportation—the so-called “permanent bar” where (in some cases) no waiver may be possible for a set period. The bar to reentry may be 20 years in certain cases where a person has been deported more than once or it may truly be a lifetime bar in cases where specific type of criminal conviction preceded removal. In many cases, where an immigrant should not be barred but is nevertheless denied entry at a consulate, there is absolutely no review under the doctrine of consular non-reviewability.

There is no question that immigration law’s twin poles of enforcement and relief make for puzzling applications. These twin goals undergird executive and legislative decision-making that appear at best contradictory or paradoxical and at worst counterproductive or illogical. The immigration court system is especially prone to this kind of unfairness. The least capable of obtaining immigration counsel are those with the least funds and resources; for example, detained juveniles. Such children are often those with favorable claims, such as “special immigrant juveniles,” or even asylum seekers. How many out there were denied the chance to stay in the US by the simple fact that an attorney was not by their side to raise a valid claim against deportation in their defense?

Retention of an attorney of course does not guarantee relief. However, the statistics tell a very compelling story regarding the importance of good counsel. Perhaps in no other area is having an attorney so crucial. According to Syracuse University, in almost half the cases in which a child was represented, the court allowed the child to remain. Interestingly, where the child appeared alone, without representation, nine out of ten children were ordered removed.

Among adults, consider that those most able to afford an attorney (those who have resources as long-time permanent residents or even as long-term undocumented persons who may have had jobs and other ties) also may have strong claims for cancellation of removal or other relief. Then consider that those who may need an attorney the most, those with the most difficult cases who have entered most recently or who are minors, may be relatively speaking the least financially able to afford counsel. Though their need for counsel is greater, their ability to find private counsel is greatly diminished. Recently, a federal court in Seattle, Washington has been asked to certify a nationwide class to block the government from pursuing removal of children unless they are ensured legal representation.

Other fundamental aspects of immigration adjudication have historically fostered and motivated paradoxes and contradictions. On one side of the equation there are concepts which have been used by courts to solidify and amplify power on the part of the immigration decision-makers: the so-called “Plenary Power Doctrine” giving Congress wide latitude in fashioning laws affecting immigration and also the deference afforded by Supreme Court precedents, like Chevron, among other cases, to administrative agency decisions. These two powerful considerations stand as backdrops in many cases tilting the scale in favor of governmental action and authority. On the other hand, these doctrines are not absolute and have been chipped away to some extent in a series of cases, where the Supreme Court has recognized that exceptions exist to the “Plenary Power Doctrine.” In addition, the Board of Immigration Appeals has also opened up avenues for relief in asylum cases under appropriate circumstances involving domestic violence and for other vulnerable populations but has been resistant to gang violence cases. But even for asylum cases premised on a particular social group impacted by gang violence, it is important to note that the Board has not completely foreclosed such claims brought on behalf of children or adults.

The immigration judges themselves are speaking up and rightly so. As catalogued in a recent news article, the judges’ union itself has pointed out that the immigration court is an “alternate legal universe.” This “alternate universe” language is an appropriate reference. In other US courts, the dangers of ex parte communications are recognized and guarded against, due process is protected by clear and consistent evidentiary rules, and dockets cannot be determined based on the whim of one party to the litigation. The legal paradoxes of immigration adjudication have not redounded to anyone’s benefit and especially not for unaccompanied alien children. For them, the system’s flaws have exacerbated an already tragic and desperate situation. If ever we do implement much-needed immigration reform, the immigration courts should be the first system to be redesigned, revamped and reformed. A process where the children could make claims as refugees outside the US is another approach and one which would alleviate some of the burden on the immigration court. We must address the needs of these unaccompanied children and to fail to do so is a failure not just of our immigration system but of our entire constitutional scheme.

Professor Geoffrey Hoffman is a Clinical Associate Professor at the University of Houston Law Center in Houston, Texas. He is the Director of the school’s Immigration Clinic. In 2014, he received the Elmer Fried Excellence in Teaching Award from the American Immigration Lawyers Association (AILA).

Suggested citation: Geoffrey Hoffman, The Immigration Court Is A Legal Paradox for Unaccompanied Alien Children, JURIST—Forum, Sep. 5, 2014, http://jurist.org/forum/2014/09/geoffrey-hoffman-immigration-court.php