Young immigrants who can't afford lawyer will have to go without, court says

SAN FRANCISCO -- As hundreds of thousands of young, undocumented immigrants await possible deportation orders from the Trump administration, a federal appeals court ruled Monday that minors who enter the country without authorization have no right to a lawyer provided by the government.

Federal law entitles immigrants to lawyers in deportation hearings, but -- unlike defendants in criminal cases -- does not require the government to pay for them if they can't afford one. The American Civil Liberties Union, representing a youngster who fled Honduras with his mother after a gang threatened to kill him, argued that youths under 18 have a constitutional right to legal representation, since they have little capacity to protect themselves in court.

The ACLU cited a 2014 government report showing that lawyers make a difference: 47 percent of minors with attorneys, but only 10 percent of those without them, won immigration court rulings allowing them to stay in the U.S.

But the 9th U.S. Circuit Court of Appeals in San Francisco said a minor's right to a fair hearing can be adequately protected by the immigration court judge. The judge, appointed by the Justice Department, hears arguments from a government lawyer in favor of deportation, and counterarguments from the minor, a parent, or their attorney if they have one.

Congress gave immigration judges ``the responsibility of investigating and developing an applicant's claims'' for political asylum or other relief from deportation, Judge Consuelo Callahan said in the 3-0 ruling.

She said the government has estimated that providing lawyers for the 100,000-plus minors arrested at or near the border in a typical year would cost $276 million. Although that figure is probably inflated, Callahan said, ``mandating free court-appointed counsel could further strain an already overextended immigration system.''

The ruling comes during a heated debate, in Congress and elsewhere, over President Trump's decision to end deportation protections for nearly 700,000 immigrants who entered the U.S. without documentation before age 16.

A federal judge in San Francisco has blocked Trump's order to terminate DACA, the Deferred Action for Childhood Arrivals program on March 5. The administration is seeking direct review in the Supreme Court, bypassing the 9th Circuit, and the high court is scheduled to consider the request at its closed-door conference Feb. 16.

The Trump administration has also stepped up arrests by immigration officers and is seeking substantial reductions in legal immigration.

``The administration is stating its desire to deport millions of people and asking for even harsher treatment of children and others coming from Central America,'' said Ahlen Arulanantham, the ACLU lawyer in Monday's case. He said the organization was examining its options for appealing the ruling, which was ``not only legally incorrect, it's also brutal.''

The ACLU's client, identified as C.J., said he repeatedly refused to join the powerful Mara gang in Honduras. He fled, along with his mother, after a gang member held a gun to his head and also threatened to kill his mother and other family members. They arrived in Los Angeles in June 2014, when C.J. was 13.

In deportation proceedings, the immigration judge gave C.J.'s mother a list of available attorneys, but she said she couldn't afford to pay any of them. The judge then ruled that C.J. had failed to show that the gang's threats amounted to persecution, because he was not physically harmed, and because the threats were aimed only at him and not at a ``social group'' such as his family. The judge also said the Honduran government was both able and willing to combat gang violence.

The ACLU took up C.J.'s appeal, but its arguments were rejected Monday. There was no proven threat of political persecution, the appeals court said, nor any showing that a system of ``government-funded, court-appointed counsel'' was needed to protect a minor's ``right to a full and fair hearing.''

``We sympathize with his personal plight,'' but the law is not on his side, Callahan said.

In a separate opinion, Judge John Owens said minors who enter the U.S. unaccompanied by an adult may have a stronger right to court-appointed lawyers. The ACLU's Arulanantham said such an exception would be a ``hollow promise,'' because those youths are generally unaware of the legal process and would be unlikely to request a lawyer.