Should Toddlers Have to Represent Themselves In Court?

By Tanner Bowen


Tanner Bowen is a sophomore at the University of Pennsylvania studying business.


Although the Senate Judiciary Committee has recently been under fire for refusing to consider any presidential appointment to the Supreme Court, they have been hearing testimonies from Attorney General Loretta Lynch last week concerning the oversight of the Justice Department.  This is where Senator Patrick Leahy (D-VT) asked Lynch about a recent immigration judge’s comments concerning how he thought three-year-old children could be able to represent themselves in court.  Senator Leahy described the judge’s comments as: “one of the stupidest things I’ve ever heard coming from a judge or a government official.” [1]


These quotes came from Judge Jack H. Weil, an assistant chief immigration judge who oversees training for immigration judges in all immigration courts nationally. [2] Recently, the American Civil Liberties Union, or the ACLU, had filed a nationwide class-action lawsuit, J.E.F.M. v. Lynch, challenging the federal government’s failure to provide immigrant children with proper legal representation in deportation hearings.  Weil was called in as an expert witness to defend the Justice Department’s policies.  In his deposition hearings, he made some troubling remarks such as:

“Using the example that I mentioned, could I explain immigration concepts to a preschool class of three year olds and four year olds? Yes, but it took me a long, long time to do it.” Or that “I’ve taught immigration law literally to three year olds and four year olds.” [3]


But now we must really ask ourselves how the U.S. judicial system got to this point.  Firstly, although the Justice Department  has now come out in favor of placing pro bono counsel - or representation without legal fees - with minors in immigration court, it is still not a required law to provide counsel to immigrants facing deportation,regardless of age.  The reason is because, in the United States, immigration proceedings are considered civil actions instead of criminal proceedings.  Hence, the question isn’t one of arguably “punishment,” but one related to whether the judge will allow an individual to stay within the country. [4]


The problem with this argument is that everyone knows the advantages of having legal counsel represent someone.  Whenever you take an individual that may not speak fluent English and put them before a highly educated immigration judge, more often than not the outcomes of the case would not be comparable if there was proper legal representation afforded.  In fact, in a Reuters study conducted in 2014, a child with a lawyer had a 73 percent chance succeeding in his or her case compared to a mere 15 percent chance without counsel present.  To put a better perspective on this number, another 2014 report showed that about two-thirds of the 43,000 children with pending deportation cases were unrepresented. [5]


Aside from just pure ethical and efficiency concerns that could be alleviated by the Justice Department requiring that children be appointed legal counsel, there is also a legal argument under the Immigration and Nationality Act (INA) as well as the Due Process Clause of the Fifth Amendment.  Specifically, the INA requires all persons in removal proceedings to have “a reasonable opportunity” to present, examine, and object to evidence” [6].  This extends as well to “the privilege of being represented, at no expense to the government, by counsel of the alien’s choosing” [7].


Finally, concerning the Due Process Clause, the Supreme Court had ruled that a noncitizen is “guaranteed the right to due process in any proceeding where the Government seeks his deportation.” [8] One could cite other famous cases such as In re Gault to show the blatant lack of mental capacity that children have concerning their own rights, contrary to what some immigration judges might think of the capability of children.


If the court proceedings for this matter do not pan out, there is another hope available in the Senate.  In late February, Senate Minority Leader Harry Reid (D-NV) and other Democrats introduced legislation that would require the federal government to appoint attorneys to immigrant children facing these deportation hearings that crossed the border alone or were victims of abuse, torture, and violence. [9]


It seems as well that the DOJ has tried distancing themselves from Judge Weil by claiming that “…the assistant chief immigration judge was speaking in a personal capacity when he made those statements.  [The]judge’s statement does not necessarily represent the views of the Department of Justice.” In fact, in Lynch’s testimony to Senator Leahy last week, she stated how she and the Department have partnered with partnered with numerous non-profit agencies to enhance the efficiency of these childhood immigration proceedings. [10]


The issue, however, still remains about finding the proper resources and funds to provide these children with representation.  Since these lawyers are not required to be appointed, often it is left to the children in large cities to be able to call on pro bono counsel or the counsel working for nonprofit immigration advocacy groups.  Under the current system, those child immigrants that are located in more rural areas often have no hope of finding adequate counsel.


Childhood is supposed to be a stress-free time for most individuals, but with the growing threat of persecution and violence in Central America, numerous unaccompanied minors have fled home for an opportunity to live in the United States.  Regardless of opinions on immigration reform or current policy, it seems almost ridiculous to assume that children have the same mental and emotional capacities to be able to represent themselves effectively during a deportation hearing.  Even though deportation may not be a punishment or crime, per se, it is still not a matter that a toddler should have to take into her own hands.  Most of us would never imagine letting our child argue for herself in a courtroom...


So, why does this change if the child is an undocumented immigrant?




[1] "Attorney General Loretta Lynch Testimony on Justice Department Operations." C-SPAN.org. March 9, 2016. Accessed March 17, 2016.
http://www.c-span.org/video/?406201-1/attorney-general-loretta-lynch-testimony-justice-department-operations&start=4329
[2] Prakash, Nidhi. "Why Did a Judge Rationalize Kids Defending Themselves in Immigration Court?" Fusion. March 7, 2016. Accessed March 17, 2016.
http://fusion.net/story/277621/%E2%80%8B5-times-a-judge-rationalized-allowing-3-year-olds-to-defend-themselves-in-immigration-court/
[3] Ibid.
[4] Nzelibe, Uzoamaka. "Why Are These Children Representing Themselves in Court?" Reuters. January 14, 2016.
http://blogs.reuters.com/great-debate/2016/01/14/why-are-children-representing-themselves-in-court/
[5] Ibid.
[6] 8 U.S.C. § 1229a(b)(4)(B)
[7] 8 U.S.C. § 1229a(b)(4)(A)
[8] Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903)
[9] Hennessy-Fiske, Molly. "This Judge Says Toddlers Can Defend Themselves in Immigration Court." Los Angeles Times. March 6, 2016. Accessed March 17, 2016.
http://www.latimes.com/nation/immigration/la-na-immigration-judge-20160306-story.html
[10] Prakash. "Why Did a Judge Rationalize Kids Defending Themselves in Immigration Court?"
​Photo Credit: Flickr User Dark Dwarf



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