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Judge Criticizes Fast Child Removals; House Blocks Funding For Lawyers. Roger Algase

Rating: 3 votes, 5.00 average.

Updated: August 11, 2014, 7:12 am

In another development relating to due process for the border children in deportation hearings, POLITICO reports on August 10 that House Republicans have refused a request from the Department of Justice to provide funding for lawyers to represent children in immigration court proceedings, even though more than 40 per cent of the children, many of whom are under 14 and do not understand English, are now processed through the system without counsel and this percentage is expected to go higher. POLITICO writes:

"The contrast is stark: The GOP has been willing to spend even more than Justice has asked for to install video-conferencing equipment in the immigration courts. But nothing to ensure the child migrant - on the other side of the screen, has legal counsel.

Republicans stripped out all money for attorneys for the children in their most recent supplemental spending bill August 1 to deal with the border crisis. In the latest skirmish, Rep. Frank Wolf (R-Va.) refused late last week to sign off on a subsequent DOJ request to transfer a reduced sum to expand legal orientation programs for the children and pay for lawyers."

It is one thing to ask the administration to provide more facilities and judges in order to reduce the waiting time for deportation hearings. But to deny the right to counsel, especially for children who are incapable of understanding the proceedings or asserting their legal rights, makes it impossible to provide any semblance of a fair hearing, as I argued in a different context in my article The Right to a Fair Trial in Juvenile Court 3 Journal of Family Law 292 (1963).

Even though my article was not cited in its opinion, the US Supreme Court agreed with my contention and that of other writers in a landmark juvenile court decision only a few years later. See In Re Gault, ​387 U.S. 1 1967). With regard to the critical importance of proper legal representation in immigration-related matters in general, see the much more recent Supreme Court decision in Padilla v Kentucky, 559 U.S. 356 (2010).

To seek to deny children access to counsel in deportation proceedings is more than just a blow against due process and fundamental fairness. It shows an utter contempt for the same rule of law which immigration opponents claim to be upholding by calling for the children to be deported in the first place.

Updated: August 10, 8:57 am

An August 8 NPR article reports about the conditions affecting many of the estimated more than 30,000 Central American unaccompanied border children who are currently in the US awaiting their hearings.

See: Trauma Plagues Many immigrant Kids In U.S. Illegally

The NPR article begins:

"Many of the Central American children who have entered the U.S. illegally in recent months have come with a heavy burden - a history of hardship and violence. And many of the children now face difficult and uncertain futures."

The article gives one such experience:

"Jose, 16, arrived in the US in June. He says he feared throughout that he would be killed or kidnapped by gangs. His aunt Marta, who lives in Maryland, says it was worth the risk, though, to get him away from the gangs back home. She says the family has been terrorized for years...

She says that two years ago, Jose's father and mother - who was five months pregnant at the time - were murdered for refusing to cooperate with local drug traffickers...

'There are no laws where we come from - no police, no justice, no nothing,' says his aunt."

The article also quotes Maria Gomez, president and CEO of St. Mary's Center a social service center helping children in the Washington D.C. area as saying that many of the recently arriving Central American children have had horrific experiences, which will require serious counseling.

As I have mentioned before, the TVPRA requires that the best interests of children facing deportation proceedings must be taken into account. This is not a new legal principle, but one which dates back to a 1990's US Supreme Court case (Reno v Flores), and which the TVPRA merely codifies. However, instead of following this legal doctrine, America's politicians in both Congress and the White House are pursuing what they see as their own best interests in caving into the prejudices of those who only care about sending the border children back to danger and fear of death as quickly as possible.

It is time for our officials to start repecting the law. It is also time for the BIA, and the legal community in general, to recognize that many of these children have valid asylum claims, something which both federal Circuit Court judges above the BIA and courageous immigration judges below, such as Judge Dana Leigh Marks, mentioned infra, are now doing.

My original post follows:

In an update to my August 6 post on Obama's deportation mills for Central American border children, it now develops that immigration lawyers are not the only ones who are critical of the administration's denial of the children's statutory rights to have their asylum or other claims for relief heard in a real court of law, as opposed to the Kangaroo proceedings described in a recent New York Times article.

The Hill reports on August 8 that Immigration Judge Dana Leigh Marks, the head of the National Association of Immigration Judges, has spoken out against the administration's policy of deporting the border children - and their families - as quickly as possible.

According to The Hill, Judge Marks is warning that cases involving the children are special cases demanding special handling. She states:

"We know of the political reality that is putting pressure on the administration to queue these cases quickly... And yet, from a judge's point of view apart from politics...there are many challenges we face in these cases that make them more likely to go slowly rather than quickly."

According to The Hill, she also said that aside from the barriers of culture and language, legal authorities also have the difficult task of making the children comfortable enough to relate their experiences accurately.

Judge Marks' criticism is also supported by the reports of pro bono lawyers for the border children, such as Steven Manning, who states that many immigrant families are being deported from the Artesia N.M. detention facility without legal representation and that the few lawyers working with the families have not been able to advocate for their clients or call witnesses. He said:

"The system isn't set up here [at Artesia] to be fair."

See: Immigrant advocates, judges, warn against fast-racking border screenings

My colleague Nolan Rappaport, a respected authority on asylum and refugee law, argues that the border children would be better off being denied entry to the US and instead screened by the UN in some other appropriate country so that they might be able to enter the US as refugees later on. His view is that if immigration judges follow BIA precedent decisions (especially relating to a restrictive definition of the term "social group" as used in asylum law) most of the children would be denied asylum and deported anyway, even if they were given the fair and full hearings that many of them - the unaccompanied ones at least - are entitled to under current immigration law.

It would seem that at least one prominent immigration judge has quite a different perspective from Nolan's on this point.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years. His email address is

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Updated 08-11-2014 at 11:00 AM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    I'm not sure the immigration judge is saying anything that contradicts my point that asylum is rarely given by immigration judges for persecution claims based on fear of gang violence. I agree with the immigration judge's point that these cases can't be done properly if they are rushed. Unfortunately, we don't have the resources to handle these cases properly, which is one of the points I made in my article suggesting a better way of handling this situation. "Meeting the Challenge of Unaccompanied Alien Children at the Southwest Border: Is there a better way?" (July 10, 2014);

    And, as I predicted, President Obama has not gotten the supplemental funding he requested, which means that not only will the children be handled badly, the money being taken from other programs to limp by in this situation will cause the other programs to suffer. We don't know yet what programs are being drained of resource.

    I feel sorry for the children who are going to be treated poorly only to be deported back to the violence in their native countries when most of them probably would be saved with refugee status if my proposal was accepted. And I feel sorry for President Obama. Notwithstanding the negative comments criticizing him for the way he is handling the situation, I think he is doing his best in a no win situation.
  2. ImmigrationLawBlogs's Avatar
    With all due respect to Nolan's great experience in asylum and refugee matters and his encyclopedic knowledge of the law in that area (compared to most of us), his proposal to let the US screen the children in another country or countries and then admit many of them as refugees to the US later on may look good in theory, but would it work in practice? And if it would, why is the UN itself not recommending it?

    Which country or countries would accept so many children for screening? Who would pay for the UN personnel and the facilities to handle them?

    But let's assume that this is all done and a reasonable percentage of the children - say 35 per cent, to be conservative, are found to meet the UN refugee standards. Exactly how many of them would the Tea Party actually allow into the US? Oh, but the president already has the power to let them in as refugees under current law without asking the Republicans.

    Does anyone think that this president (or any other president in either party) would actually do so, without the consent of the leaders in both parties? Ha, ha, ho, ho!

    Roger Algase
    Attorney at Law
    Updated 08-09-2014 at 10:43 AM by ImmigrationLawBlogs
  3. Nolan Rappaport's Avatar
    Roger asks how my proposal would work in practice. I don't know. As far as I know, it has never been done before. Why isn't UNHCR recommending it? I don't even know if they have heard about it. In any case, UNHCR's preference certainly would be for the US to give the children asylum, but that isn't happening and it isn't going to happen. I think UNHCR would help if our government asked them. UNHCR was set up in 1951 to help the estimated 1 million people still uprooted after World War II to return home. Since then, they have helped to find safe homes for tens of millions of refugees. If you want to know more about UNHCR, information is available at

    More than 50,000 kids are here now seeking help, and the estimates indicate that this number will reach 90,000 before the end of the year. And they won't get the help they need in the United States. President Obama wasn't able to get the supplemental funding he needs to care for them properly, and very few of them will get asylum if they appear before an immigration judge in removal proceedings. Roger would have us ignore these realities and forge ahead with the present plan, which is to keep the children herded together wherever space is available and rush them through asylum hearings that for almost all of them will result in deportation back to the violence in their native countries.

    I am puzzled by Roger's comment that President Obama wouldn't accept extra refugees unless the leaders of both parties approved. What about DACA? Did the leaders of both parties approve that program? Or his prosecutorial discretion program? Moreover, in this situation, the president has explicit statutory authority to bring the extra refugees into the country if he declares a humanitarian crisis. I will paste the pertinent provisions below.

    But the point of my proposal was to suggest a way of dealing with this crisis that would be acceptable to both parties. I predict that the Dems will be ready for an alternative when the statistics come out on how few children are receiving asylum at hearings before immigration judges. And the republicans would accept my proposal right now if the Dems offered it to them. It would move virtually all of the children out of the US immediately and it would deter others from coming. How much would it cost. The cost would be UNHCR's responsibility once the kids are in their custody, though I am sure they would expect a big donation from the US. How big? I don't know. But it would be a lot less than the $3.7 billions the President asked congress to provide. That is almost enough to cover the UNHCR's entire budget for the year.

    Refugees are processed and admitted to the United States from abroad. When the unaccompanied children have left the United States, President Obama will have the discretion to bring some of them back to the United States as refugees if he increases the annual refugee number pursuant to section 207(b) of the Immigration and Nationality Act, which reads as follows:

    "(b) If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a), the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection.

    The term "appropriate consultation" means discussions in person by designated Cabinet- level representatives of the President with members of the Committees on the Judiciary in the Senate and the House to review the refugee situation or emergency refugee situation, project the extent of possible participation of the United States therein, and discuss the reasons for believing that the proposed increase in refugees admissions is justified by humanitarian concerns or grave humanitarian concerns."
  4. ImmigrationLawBlogs's Avatar
    I think that Nolan has just made my point for me better than I could have done myself. One can only imagine the anti-immigrant demagoguery and vitriol that would come out of the Republican-controlled House Judiciary Committee during the "consultations" about whether to let more than a tiny token number of the children back into the US as refugees.

    If President Obama doesn't have the courage to give the children fair hearings in immigration court now when the law requires it, where is he going to get the courage to disregard the Tea-Party controlled House of Representatives (or possibly even Senate too, depending on this fall's election) completely in the course of the legally required "consultations"?

    If he were to do so, the threats of "impeachment" would only grow louder. Therefore Nolan's insistence that he has a workable plan to bring the children back as refugees, while well-meant, is entirely misplaced.

    Even if he were right that the refugee law gives the president authority to let the children in unilaterally, the Republicans would try to change that law too, just as they are now trying to change the TVPRA provisions which grant the children the right to full and fair asylum hearings.

    The GOP's policy toward the immigration laws can be summed up quite neatly:

    If the law is unfavorable to immigrants, especially those from outside Europe, enforce the law to the hilt, without exception or compassion. But if an immigration law is favorable to immigrants, repeal it or change it.

    In addition, Nolan's companion argument that the children would have little chance of prevailing with asylum claims in immigration court if given the fair hearings which they are entitled to by present law is also misplaced.

    Nolan relies on a narrow, restrictive definition of the term "social group" in asylum law which was adopted some 30 years ago by the BIA, before many of the world events, such as the Rwanda genocide, the Haitian boat people, and the alarming growth of gangs and drug cartels in Central America, took place which have made revisiting the way our asylum laws are interpreted essential.

    The fact that the BIA's late 20th century interpretation of the above term is no longer right for the even more violent early 21st century is being recognized by several federal Circuit Courts of Appeal, as Nolan himself knows very well. This is true especially in the 3rd and 7th Circuits as well as, most recently, the 2nd Circuit. Once more and more children and other refugees challenge the BIA's antiquated, illogical and inconsistent, if not openly biased, interpretations of asylum law, we will start to see more and more rulings coming from the BIA and the federal courts which are right for the conditions of this century, not the last one.

    It will not be long before the BIA's ideological hostility to gang-violence based asylum claims (which it erroneously passes off as "legal reasoning") will assume its rightful place in the dustbin of immigration law history along with the Immigration Act of 1924 and the Asian exclusion laws from the turn of the last century.

    Nolan says: Send the border children home without hearings because they will lose anyway. I say: Give the children their day in court, as they are entitled to by law.

    The BIA's politically motivated anti-asylum agenda is already being challenged from above - the Circuit Courts - and below - courageous and independent-minded immigration judges who are, in some reported decisions, recognizing asylum claims based on credible fear of gang violence.

    The BIA's narrow, tortured and untenable definition of "social group" for asylum purposes is on its way out. Many of the border children will win their asylum cases, if given fair hearings and proper legal representation.

    Roger Algase
    Attorney at Law
    Updated 08-10-2014 at 11:18 AM by ImmigrationLawBlogs
  5. Intecon's Avatar
    The children WILL have their "day in court" . . . just not at the government's expense!

    I have commented before that I fear this whole child thing is a plot and a ploy by special interest groups . . . whom, we do not know, but rest assured, if these children were to be appointed counsel, it will not be I, nor will it be Roger Algase, nor will it be Nolan Rappaport. So go figure . . . who will it be? Perhaps if they question were to be answered, we would have our plotters by the short hairs . . . . .

    Cheers, David D. Murray, Esq.
    Newport Beach, CA
  6. ImmigrationLawBlogs's Avatar
    Even if the children do have their day in court, not many of them will likely have the chance to be represented by outstanding lawyers of the caliber of Nolan Rappaport and David D. Murray, two distinguished colleagues for whom I have the highest respect, both when I agree with them and when I do not.

    Roger Algase
    Attorney at Law
    Updated 08-12-2014 at 12:56 PM by ImmigrationLawBlogs
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