Last week, Washington Attorney General Bob Ferguson exhibited judgment and political courage, arguing in an amicus (friend of the court) brief to the U.S. District Court in Seattle that unaccompanied immigrant children in Washington should not be forced to represent themselves in their removal hearings. Ferguson's analysis in the J.E.F.M. v. Holder lawsuit merits a read for its clarity, historical grounding and moral and legal resonance.
“The consequences these children face are dire if they return to their countries,” Ferguson said in a statement. “I am calling on the federal government to ensure every child who faces deportation has an attorney by his or her side in order to receive a fair hearing.”
This is a crystalline, right-or-wrong question: Do 12-year olds escaping crime and violence in countries such as Guatemala, Honduras and El Salvador deserve representation when tangled in the getting-the-boot labyrinth of the American justice system? Yes, they do. A Guatemalan teen who only speaks an indigenous language and is forced to mimic Perry Mason stands a 4 percent chance of successfully making his or her case. Representation informs outcome. “Since 2005, approximately 41 percent of unaccompanied children who are represented in Washington have had their cases resolved in a way that permits them to remain in this country,” Ferguson writes.
Ferguson's take may have the lead-balloon popularity of a Gideon v. Wainwright, the seminal 1963 U.S. Supreme Court decision which determined that state courts must provide counsel to criminal defendants who can't pony up for an attorney.
How we treat children is one of the moral tests of government, to paraphrase Hubert Humphrey. But race is the great unspoken. The cyber trolldom would be a quiet place if these were undocumented Norwegian or Australian children fleeing injustice.
The stakes are dead serious. “Deprivation of a full and fair hearing risks dire consequences for children who must return to their home countries,” Ferguson writes. “To give just one example, in 2004 Edgar Chocoy, an unrepresented 15-year-old boy, insisted that gangs would kill him if he were returned to Guatemala. Asylum was denied and Chocoy was deported. He was murdered in less than a month.”
Ferguson is reviewing options including identifying pro bono attorneys to help unaccompanied immigrant children. It's a reminder that justice and fair play need to be practiced.
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