Congressional Democrats introduced legislation Friday to grant illegal immigrant children taxpayer-funded lawyers to argue their cases, saying once they get into the U.S. they deserve constitutional due process protections to make sure their cases are fairly decided.
It’s the latest battlefield as Washington grapples with the ongoing stream of illegal immigrants from Central America who have surged into the U.S. in the last few years, overwhelming the Border Patrol, social workers and the immigration courts.
Many of the children have claimed asylum, arguing they face dangerous and often fatal consequences if they were to be deported back to their home countries — but Democrats said they end up having to make those cases in court alone, without the help of lawyers, oftentimes speaking only Spanish or an indigenous language that further hinders their understanding.
“The provision of the Constitution requiring due process of law applies to everything,” said Rep. Zoe Lofgren of California, the top Democrat on the House Judiciary immigration subcommittee.
“I don’t see how you can make a credible argument that a 10-year-old can represent themselves, and so the due process clause is what demands this representation — and not only the due process clause, but human decency,” said Ms. Lofgren, who introduced the legislation along with about 80 other Democrats.
Her bill tracks with a similar measure Senate Minority Leader Harry Reid, Nevada Democrat, introduced earlier this month.
The question of rights for the hundreds of thousands of illegal immigrants — some of them children traveling without parents, while others are family units traveling together — has bedeviled Washington.
Federal courts have repeatedly ruled that there is no constitutional right to lawyers for illegal immigrant children, though they’ve hinted there could be specific cases in which a government-appointed lawyer is required, according to an analysis by the Congressional Research Service.
On Capitol Hill, the two sides aren’t on the same page at all.
Republicans have called for quick deportations, saying most of the children are like other illegal immigrants, coming to join family here, or to work or to join criminal gangs. But Democrats say many of the children are fleeing horrific gang violence in El Salvador, Guatemala and Honduras, and face death if they are sent back — which, the Democrats said, should mean they qualify for asylum here.
Caught in the middle is the Obama administration, which has slowed deportations, but has not been able to grant lawyers.
Courts have interpreted the Constitution’s right to a government-funded lawyer to apply to criminal cases, while immigration cases are civil matters. Immigrants are free to obtain their own lawyers, but the government is generally prohibited by law from providing them.
The Justice Department has tried to create a pool of volunteer lawyers, but advocacy groups say much more are needed.
Earlier this year immigration agents tried to track down about 1,600 illegal immigrants who came as part of the surge, but who’d already been ordered deported. Of those, agents were able to locate just 121. Most of them have been kicked out, but an immigration judge in Texas stopped the deportation of about a dozen families, saying it wasn’t clear that the cases were properly heard.
Advocates say the children and families sometimes don’t learn about their deportation court dates and are ordered removed in absentia. And even when they do show up, the proceedings are complex and difficult to follow, even before taking into account language barriers.
Those who do have a lawyer present are far more likely to win their asylum cases, according to analysts who have studied the numbers. In 2014, more than 90 percent of those without lawyers were ordered deported, compared to just 22 percent of those with lawyers, according to the Migration Policy Institute.