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Immigrants' Right To Legal Representation At Issue Before Appeals Court

SAN FRANCISCO (KPIX 5) -- A panel of eleven federal appeals court judges heard arguments Monday in a case that could dramatically change the deportation process.

The panel was considering a case that could determine whether undocumented children appearing before an immigration judge have a right to lawyer paid for by the U.S. government.

The case of C.J.L.G., A Juvenile Male v. Matthew Whitaker centers on a young man ("C.J.") who was unrepresented in immigration hearings. His lawyers claim the Fifth Amendment to the Constitution guarantees him the right to an attorney provided by the U.S. government.

"We want a ruling that children facing deportation are entitled to legal representation," said C.J.'s lawyer Ahilan Arulanantham, told reporters after the hearing. Arulanantham, who is Senior Counsel at the ACLU of Southern California, argued the case before the judges.

"The petitioner contends that, in certain contexts, children need help; in the context of immigration removal proceedings, however, they have it," Scott Stewart, an attorney representing the federal government, told the judges. "Existing law, existing procedures and existing duties give children of all ages the help they need and the help that due process and federal statutory law requires."

According to a prior ruling in this case, federal law gives anyone in an immigration removal proceeding the right to a "full and fair hearing," which includes the "opportunity to present evidence and testimony on one's behalf," cross-examine witnesses, and examine and object to adverse evidence. Immigration judges are supposed to "fully and fairly develop the record" in case there is an appeal.

The ACLU and other immigrant's rights groups argue that the immigration system is complex and children cannot know what facts to discuss or claims to make in order to qualify for asylum or other remedy.

They cite statistics showing that children who have an attorney are far more successful than those that do not –an indication that immigration judges are not ensuring a "full and fair hearing."

Still, there is the issue of cost. According to C.J.'s attorneys, the cost to US taxpayers for one lawyer in one case would be $2,700. But the Department of Homeland Security claims it apprehended 102,264 juveniles at or near the border in 2016 alone.

If each of them was appointed a lawyer, it would amount to $276.1 million dollars per year.

The person at the center of the case is C.J., who is about to turn 18. But in 2014, he was a 13-year-old who left Honduras with his mother.

"He fled several days after being threatened by gangs at gunpoint," according to Talia Inlender, one of C.J.'s attorneys. "He would have a day to decide - if he didn't join he would be killed."

C.J. and his mother crossed the border illegally, but were caught and deportation proceedings began.

"He appeared at every single one of his court hearings without a lawyer," said Inlender.

According to an earlier ruling, his mother, who had been deported once before and was in a separate proceeding, appeared with her son at each hearing. A translator was provided but C.J.'s mother had little knowledge of immigration law.

The hearing was postponed twice to allow C.J.'s mother time to find an attorney for hire or one from a list of pro bono attorneys. Still, she could not find a lawyer and in 2015, the hearing went forward. In 2016, the judge issued a deportation order for C.J.

The decision was upheld by the Bureau of Immigration Appeals, and by a three-judge panel of the Ninth Circuit. Lawyers for C.J. requested an eleven judge panel ("en banc") and it was granted. The en banc panel is expected to issue a decision sometime in 2019.

As for C.J., Arulanantham says he is attending high school in Los Angeles and that he and his Mom are doing okay.

"That being said, I think, they're extremely grateful to have been able to stay in this country this long, since 2014. I think they're also really, really scared about the prospect of being deported," said Arulanantham.


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