Can a 3-year old represent herself in immigration court? This judge thinks so

Americans like to believe that there exists some bright line between citizens and non-citizens. As a US lawyer, I'll tell you there is no such line. There are dozens of different classes of citizenship, each with a unique set of rights. These kids are at the bottom of that list.

The world is most aware of the two highest-level citizenship classes, specifically the line between natural and naturalized citizens. The former is the higher, with the later not being allowed certain high offices (ie being president) and that their citizenship can be stripped. The next set of lines is between citizens of states (Ohio et al) and those residing in non-states such as DC, Guam and like territories. Such non-state citizens have various subset voting right depending on local. Some cannot serve on juries.

The next line down are people like convicted felons (non-voting) children (can be forced into delinquency proceedings) and members of the military (subject to different laws/courts). Some jurists would even list males as a subset since, unlike females, males are subject to selective service rules and can therefore be forced into the previous class.

At the bottom of this pile are these kids. Non-state non-citizens, under-age without guardians, the are treated like chattel (property). Their deportation proceedings read like the comical cases brought against property seized at boarder crossings (civil forfeiture). But even non-sentient objects, specifically guns, sometimes have the right to representation. Any US person facing criminal conviction is due adequate representation, but not facing criminal action and not being a citizen of any state or territory, the US justice system has little respect for these kids.

Don't like it? There is an election coming up.

This is crazy - which is to say, if the quotes are reasonably accurate, I would literally doubt the sanity of the person who said them.

"I can teach a three-year-old immigration law sufficient to represent themselves in court" is about on the same level as "I can cure cancer by hopping on one foot and squinting real hard" or "the Earth is actually hollow and the inside is inhabited by escaped Nazis".

Oh why did I read the comments section on that article.

Why is everyone so afraid of immigration? I don't see the downside. We need to grow our tax base to support all of our borrowing against future tax revenue. There are two ways to do that: have kids, or allow immigration.

I always hear the argument "they're taking our jobs", but that's not true, is it? As the economy gets larger because of the influx of people, more jobs become available.

Watching this year's Presidential election makes me think I'm really out of touch with reality, living in a large city. But maybe everyone else is wrong and I'm right...

And even if you're afraid of immigration, why is allowing everyone to have fair representation in court so unappealing? I thought the whole point of America is that everyone is equal and everyone has a chance. That includes non-citizens; our laws apply, so our guarantee of a right to a fair trial should also apply. That's what separates us from North Korea, right?

Full transcript:

https://www.aclu.org/legal-document/jefm-v-lynch-deposition-...

The comments in question start on page 18.

---

Q. It must be true that there's some children that are so young that even if they receive the notice and even if they're given an explanation by the judge, they're still not going to understand what's going on right?

A. I have to do a case-by-case basis determination. I've taught immigration law literally to three year olds and four year olds. 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.

Q. I understand that you think it can be done. Are you aware of any experts in child psychology or comparable experts who agree with the assessment that three and four year olds ca be taught immigration law

A. I haven't read any studies one way or another.

Q. What about like a one year old?

A. I mean, I think there's a point that there has to be communication. There has to be communication at some point.

Q. So what do you train judges as to cases in which communication is impossible because the child is too young?

A. What we train is if a respondent, child or adult, cannot perform functions necessary for the hearing to be fair, the judge should not proceed.

That must be out of context. Three-year olds don't even have a fully developed theory of mind: https://en.m.wikipedia.org/wiki/Theory_of_mind.

They confuse what they think themselves with what they think the other thinks.

Since I am not a lawyer, could someone please explain (given the subject, perhaps, "Explain like I am five") how this bit from the article:

"Unlike in felony criminal cases in federal court, children charged with violating immigration laws have no right to appointed counsel, even though the government is represented by Department of Homeland Security attorneys."

is allowed when we have this (from a Wikipedia entry)?

"The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights that sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment."

It seems better than treating the child as property, but honestly I don't think the child should be forced to represent themselves w/o counsel. In fact, I honestly wonder why our immigration and deportation laws don't have a requirement to have legal counsel automatically assigned to children if their legal parents are not present. At that point, if they have parents then their parents should have some legal counsel to represent all affected. Either way, I just think this seems down right fishy for any judge to do mostly because it's a conflict of interest. Plus, children are easily manipulated into saying things they don't mean or never experienced. So, I'd rather the judge not have that power to manipulate children. If they must be deported then at least deport them w/ the proper authorities of their native country so they can be cared for. Otherwise, this just seems...weird.

Just checking: Is the judge saying that you should listen to the views of children, even very young children, during court cases about those children? (Because that seems reasonable, so long as those children also have full and proper representation from skilled qualified legal professionals).

Or is the judge actually saying that the children don't need lawyers?

That judge should be a defendant instead.

This was taken out of context, wè havé no idea what he meant.

The judge may dislike such a situation and compensate for it by trying to teach the children the law. He mentioned it's inefficient, perhaps in the context of an argument that it would be cheaper to pay for the children's legal representative than waste all that time teaching them the law.

Just another spin on a quote out of context.

it seems like the judge who made these preposterous claims stands to lose budget if these children had the right to council? which they should, of course, have.

> Weil is not just any immigration official. As an assistant chief immigration judge in EOIR’s Office of the Chief Immigration Judge — which sets and oversees policies for the nation’s 58 immigration courts — he is responsible for coordinating the Justice Department’s training of immigration judges.

Learning milestones for age 3-4 by WebMD: http://www.webmd.com/parenting/guide/3-to-4-year-old-milesto...

Some fun milestones: - Understand the idea of same and different - Follow 3 part commands - Sort objects by shape and color

Yeah, that's pretty much all you need right?

A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Nope, they're fucked. Most adults probably have difficulty with this one.

What I find more shocking than the incident is its background:

According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney [...]

Susan J. Terrio, a Georgetown University anthropology professor, said she observed hundreds of children in various immigration court proceedings, many of whom couldn’t speak English, [...]

Some were as young as 10. They “were incredibly passive,” she said. And “they responded with monosyllabic answers.

So, if I read this correctly, it's already common practice in the US to have children put in court, without any aid or counsel and expect them to have a conversation with judges and attorneys about immigration law? Is this actually true?

wtf