A senior Justice Department official is arguing that three- and four-year-olds can learn immigration law well enough to represent themselves in court, staking out an unconventional position in a growing debate over whether immigrant children facing deportation are entitled to taxpayer-funded attorneys.
Jack. H. Weil, a longtime immigration judge who is responsible for training other judges, made the assertion in sworn testimony in a deposition in federal court in Seattle. His comments highlighted the plight of thousands of juveniles who are forced to defend themselves each year in immigration court amid the surge of children crossing the southwest border from Central America.
“I’ve taught immigration law literally to three-year-olds and four-year-olds,’’ Weil said. “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.’’
He repeated his claim twice in the deposition, also saying, “I’ve told you I have trained three-year-olds and four-year-olds in immigration law,’’ according to a transcript. “You can do a fair hearing. It’s going to take you a lot of time.’’
Legal and child psychology experts ridiculed Weil’s assertions, noting that key milestones for three- and four-year-olds include cooperating with other children, saying simple sentences and building towers of blocks.
“I nearly fell off my chair when I read that deposition,’’ said Laurence Steinberg, a psychology professor at Temple University, who is a witness for the plaintiffs in the Seattle case. “Three- and four-year-olds do not yet have logical reasoning abilities. It’s preposterous, frankly, to think they could be taught enough about immigration law to be able to represent themselves in court.”
Weil’s deposition came in a case in which the American Civil Liberties Union and immigrant rights groups are seeking to require the government to provide appointed counsel for every indigent child who cannot afford a lawyer in immigration court proceedings.
The Justice Department is contesting the lawsuit.
Weil, in a brief email, said his statements don’t “present an accurate assessment of my views on this topic’’ and were being “taken out of context.’’ He said he would need Justice Department permission to speak further and did not respond to subsequent emails.
10 things immigration has done for Britain
10 things immigration has done for Britain
1/10 The Mini
The 1959 classic, that is, perhaps our greatest piece of industrial design, a miracle of packaging and revolution in motoring. Its genius designer was Sir Alec Issigonis, who was an asylum seeker. His family, Greek, fled Smyrna when Turks invaded this borderland in around 1920, and he wound up studying engineering at Battersea Polytechnic. He went on to create that most English of motor cars, the Morris Minor, as well as the Austin-Morris 1100, all much loved products of his fertile imagination.
2/10 Marks and Spencer
Once upon a time there was no M&S in Britain, difficult as that may be to believe. We have one Michael Marks to thank for our most famous retailer, and he was a refugee from Belarus, arriving in England in about 1882, and soon after set off to flog stuff around Yorkshire. He eventually teamed with Thomas Spencer to create the vast business we know today.
And many other TV shows created, funded and otherwise produced by that largest of larger-than-life characters, Lew Grade (also a world class tap dancer). The man who dominated commercial television gave us memorable entertainment such as The Prisoner, the Saint and brought the Muppets to Britain (a sort of fuzzy felt wave of immigration), as well as puppet shows where you could see the strings. All this from a penniless Jew from Ukraine, born Lev Winogradsky, who escaped the pogroms in Ukraine with his family in the 1890s. His nephew Michael Grade has also done his bit for British television.
4/10 The House of Windsor
Or the House of Saxe-Coburg-Gotha until George V prudently rebranded the family during the First World War. Well, our royals are a pretty German bunch, as well as having various types of French and other alien blue blood coursing around their veins. ‘Twas ever thus. There was William the Conqueror, Norman French, who certainly broke the immigration rules; William of Orange, a direct import from Holland; the Hanoverian King Georges, the first barely able to speak English; Queen Victoria, who married a German, Edward VII, who couldn’t stay faithful to his wife, a Danish princess; George V wed another German princess; Edward VIII married an American (though she hardly visited England and prompted his emigration and exile); and the Queen is married to man born in Corfu. The embodiment of the British nation, to many, but one thinks of them as quite multicultural really.
5/10 I Vow To Thee My Country
Our most patriotic hymn was the product of a man named Gustav Holst (pictured), born in Cheltenham, but of varied Swedish, Latvian and German ancestry, who adapted part of his suite The Planets to put a particularly stirring and beautiful poem to music, just after the Great War. As the second verse has it, “there's another country/I've heard of long ago/Most dear to them that love her/most great to them that know”. Imagine if the Holst family had been kept out because the quota on musical European types had been reached.
6/10 Curry and Cobra
Chicken Tikka Masala is, so they say, a dish which not only the most popular in Britain but specifically designed to cater for European tastes. For that we probably have to thank an Indian migrant, Sake Dean Mahomed, who came from Bengal to open the first recognisable Indian restaurant, the magnificently named “Hindoostanee Coffee House”. History does not record if a plate of poppadoms and accompanying selection of pickles and yoghurts were routinely placed on the table for new diners, but we do know that we had to wait until 1989 to taste the ideal lager for a curry - Cobra. That brew was brought to us by Karan (now Lord) Bilimoria, a Cambridge law graduate who hailed from Hyderabad.
7/10 That big red swirly sculpture at the Olympic Park
Or Orbit, to give it its proper name, the work of Anish Kapoor, who arrived in 1973 from India and had the artistic imagination to fill a power station.
8/10 The Sun
Love it or hate it, and many do both, this has been a symbol of much that is successful and a lot that is awful in British journalism since its inception in 1969. In its turn it spawned the Page 3 Girl and some nastily xenophobic headlines. All the stranger when you consider its creator was, of course, Rupert Murdoch, born 11 March 1931 in Melbourne, Australia.
OK, Karl Marx’s philosophy was not much of a gift to the world, but for a while it seemed like a good idea. Though we might not dare admit it, Marxism still has a few insights to offer to anyone wanting to understand the workings of capitalism, though too few to excuse everything that was done in its name. Born in Germany spent much time in the British museum and the British pub, buried Highgate Cemetery. Oddly, his ideas never really caught on in his adopted homeland.
10/10 The NHS
They came from many, many backgrounds, including Ireland, the Philippines, east Europe, the Indian subcontinent, and Africa, as they still do, but the contribution of the black nurses who came to the UK from the Caribbean to heal and care for is a debt of honour that must be recognised. It so sometimes forgotten that it was Enoch Powell, then Minister of Health (1960-62), who campaigned to recruit their skilled nurses to come and work over here. One abiding legacy we can thank Enoch for.
Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review (EOIR) said in a statement: “At no time has the Department indicated that three and four year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of EOIR or the Department of Justice.’’
She added that Weil’s comments “must also be taken in context as part of a 4-hour deposition in which Mr. Weil spoke about various techniques, procedures, and safeguards that can be employed by immigration judges, as warranted, to provide fundamentally fair hearings to all respondents in immigration proceedings.’’
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.
And it was the government itself that offered up Weil as an expert witness in the Seattle case, ACLU attorneys said. Justice Department attorneys in January also submitted his deposition in court to support the government’s response to a motion by plaintiffs.
Ahilan Arulanantham, deputy legal director at the ACLU of Southern California and the attorney who questioned Weil in the deposition, said he initially thought the judge had misspoken “because what he said was so outrageous. As I asked further questions, he obviously meant what he said.’’
“This is the person in charge of training immigration judges about how to treat children? And this is the witness the government puts forward to present their views as to how this is supposed to happen? That is horrifying,’’ said Arulanantham, who added that Weil’s assertions “are going to be a significant issue in the case.’’
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.
Although a network of pro bono organisations and a Justice Department program try to help children find attorneys — some paid for by the government — many children are forced to fend for themselves. 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. It is unclear how often children five or under are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.
US Senate minority leader Harry M. Reid and other Democrats this month introduced a bill mandating government-appointed counsel for children in immigration court who had crossed the border alone or are victims of other duress such as abuse, torture or violence. In a 11 February speech on the Senate floor, Reid said he had been told about one case in which a five-year-old girl was brought before an immigration judge.
“This little girl was clutching a doll and was so short she could barely see over the table to the microphone,’’ Reid said. “She was unable to answer any questions that the judge asked her except for the name of her doll: ‘Baby Baby Doll.’ That was the name of her doll.’’
At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children — most of whom cannot speak English and must use government-provided interpreters — are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.
But the questions can easily trip up children with no lawyers, the attorneys said. 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 cannot apply for other forms of immigration relief such as asylum in the United States.
In the Seattle case, the ACLU is arguing that failure to provide counsel for indigent children in immigration court violates the US Constitution and federal immigration laws.
The ACLU filed the case in July 2014 — along with the American Immigration Council; the Northwest Immigrant Rights Project; Public Counsel, a public interest law firm, and K&L Gates, a Seattle law firm — on behalf of what are now 14 juvenile plaintiffs in deportation proceedings. Three of the plaintiffs are under five.
The Justice Department, which was sued along with DHS and the Department of Health and Human Services, is disputing the idea that all children are entitled to an attorney. “Nothing in the Constitution requires the taxpayers to provide counsel to minors in immigration court,’’ Justice Department lawyers said in a 2014 motion, adding that doing so would cause “potentially enormous taxpayer expense.’’
Weil’s deposition, taken on 15 October in Washington, covered the training of judges and a variety of other topics, with the judge seeking to explain and defend Justice Department immigration court procedures. “In all of our policies the overlying concern is due process,’’ Weil said.
He noted that all defendants, including children, are explained the charges against them, both in notices to appear in court and by judge in the courtroom.
Arulanantham then asked Weil, “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?’’
“I have to do a case-by-case basis determination,’’ Weil responded, before declaring that he has taught immigration law to three- and four-year-olds.
Elizabeth S. Scott, a Columbia University law professor considered a leading expert on children and the law, said, “The law uniformly presumes in every other area that younger children lack the mental capacity to make consequential decisions.’’
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, for her book “Whose Child Am I? Unaccompanied, Undocumented Children in US Immigration Custody.’’
Some were as young as 10. They “were incredibly passive,” she said, and “they responded with monosyllabic answers.’’
“It didn’t appear that they understood anything at all,’’ Terrio said.
Alice Crites contributed to this report.
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