My young children understand fairness and the importance of helping others. They do not understand complex legal terminology, federal statutory schemes or court procedures. As kids, they should never be forced to navigate our federal court system and administrative procedures without an advocate. Yet, for undocumented children who may have valid, legal grounds to remain the United States, they are left to fend for themselves — without a lawyer or representative — in federal removal (deportation) proceedings. It is a quiet national disgrace that is played out every day in cities across the United States. 

Children should have a lawyer by their side when facing deportation.  This issue has come up again in recent weeks when it was reported that Immigration Judge, one resident in the Office of the Chief Immigration Judge (“OCIJ”), which writes rules for Immigration Court, had stated, twice, in a deposition that he had taught 3 or 4 year olds enough immigration law, so that they could represent themselves in immigration proceedings.  The Judge is quoted as stating, “I’ve taught immigration law literally to 3-year-olds and 4-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.”  

However, the rules for immigration proceedings promulgated by OCIJ underscore the importance of having a lawyer.  “Due to the complexity of the immigration and nationality laws, the Office of the Chief Immigration Judge recommends that those who can obtain qualified professional representation do so.”    

The judge’s deposition was taken as part of a lawsuit filed by the ACLU of Southern California and other groups in the US District Court for the Western District of Washington on behalf of unrepresented children in the removal proceedings.  They argue that the lack of appointed counsel for the minors is a violation of due process clause of the Constitution and existing immigration laws.    

The data available makes clear that having an attorney represent a child in immigration court leads to significantly better results.  Children with a lawyer are allowed to stay in the United States in 47 percent of the time.  While those without a lawyer are deported in 90 percent of the cases.  

Justice should require better than a one-in-ten chance for children who alone are facing the court and the government’s lawyers.  This is particularly true given the complicated nature of immigration law and procedure.  My first filing in Immigration Court was rejected. It did not make it past the window of the Immigration Court clerk.  This was a few years ago and I was doing work of significance for a young client and for a cause in which I believed but immigration was also outside my usual litigation practice. I had not provided the Court with filings pre-punched with two-holes at the top of the page, centered and 2 ¾ inches apart as described in Rule 3.3(c)(viii) of the Immigration Practice Court Manual (“IPCM”).  We punched the properly-spaced holes in the pages and re-submitted the filing.  A lesson learned for a younger attorney.

Now, instead of an attorney entering his first appearance in immigration court, imagine being a child from El Salvador, a country in which, “child abuse was a serious and widespread problem” and in which “incidents of [child] rape continued to be underreported for a number of reasons, including societal and cultural pressures on victims, fear of reprisal…,” according to the State Department’s 2014 Human Rights Report.  That child, before arriving in the United States, may have traveled fifteen hundred miles on trains, buses and with duplicitous adults who serve as your guide to the United States and who have a mercenary reason to get you across the border. 

Once captured, processed and placed with a family-member or in a facility, the child will end up in a courtroom that operates under rules she does not understand and where the government has a lawyer but she does not.  She will make decisions that could forever define the arc of her life. A wrong statement or the failure to pursue legal remedies and she is on the path to back to her home country; the one she was fleeing because of violence, gang-activity, abuse, poverty or some combination thereof. 

As of now, children in removal proceedings without the funds to hire an attorney must rely mostly upon social and religious-based pro bono legal service providers.  Those providers work tirelessly to represent undocumented children but they cannot represent nearly all of those who need help.  Nor should we foist the responsibility for ensuring a fair and just immigration system upon non-profit and philanthropic entities.  It is a societal issue that must be addressed through a systematic change in our laws and procedures.  The federal lawsuit spear-headed by the ACLU is one potential avenue for change but it is also up to all of us, who, like my children, understand fairness and helping those in less fortunate circumstances, to advocate for change.  There is, after all, an election in November.  Every member of the House of Representatives is facing the voters.  Let them hear from you. 

Matthew Vocci is an attorney who represents individuals who have suffered injuries, civil rights violations or were victims of consumer fraud. He serves on the Board of Directors of the Maryland Hispanic Chamber of Commerce and was given the Community Service Award by the Latino Providers Network for his work with the immigrant community in Baltimore.