WASHINGTON — Attorney General Eric Holder is arguing publicly in favor of legal representation for migrant children arriving unaccompanied at the border — even as his department takes the opposite position in court.
Holder said Friday in a speech to the Hispanic National Bar Association that, “Though these children may not have a constitutional right to a lawyer, we have policy reasons and a moral obligation to insure the presence of counsel.”
Yet last week, Deputy Assistant Attorney General Leon Fresco appeared before a federal judge in Seattle to argue that providing legal representation for immigrant children facing deportation could create open borders and send the message that no one here illegally would be removed.
“It would create a magnet effect,” Fresco said in court.
That argument before U.S. District Judge Thomas S. Zilly came in a lawsuit brought by a coalition of immigrant advocates on behalf of a group of migrant children. A ruling is pending.
The contradiction emerges between what the administration argues the children are constitutionally entitled to, and what Holder says he supports as a policy. On Friday he discussed a new $1.8 million program to help legal aid organizations represent migrant children in courts, and said the department is working “to facilitate access to legal representation for these children.”
Immigration advocates say the administration can’t have it both ways.
“They can try to distinguish between their legal and moral obligation, but if you’re saying there’s a moral obligation to the children, you’re recognizing that in order for them to have a fair hearing, they need an attorney,” said Matt Adams, legal director at the Northwest Immigrant Rights Project, a plaintiff in the lawsuit in Seattle.
In a statement, Justice Department spokeswoman Nicole Navas tried to explain the contradiction.
“There is no question that, as a policy matter, the department would like children in immigration proceedings to have counsel. But the issue in the pending litigation is quite different and involves only whether there is a constitutional right to government-funded counsel,” she said. “While there is no constitutional right to counsel for immigrants in removal proceedings at government expense, the administration is still urging Congress to fund these attorney positions as a matter of discretion.”
More than 60,000 children and youth have arrived at the U.S.-Mexico border in the last year without their parents, many fleeing vicious gangs in Central America. Although the arrivals at the border have dropped sharply, the vast majority of those admitted to the U.S. remain, their cases moving slowly through badly backlogged immigration courts.
Under the law, migrant children who arrive from Central America are guaranteed court hearings. But unlike defendants in criminal court proceedings, immigrants facing deportation proceedings are not entitled to counsel.
Advocates bringing the case in Seattle argue that for children who are fleeing brutal circumstances and might have asylum claims, the Constitution’s due-process guarantee requires that they should be represented.
The government disagrees, arguing that the children already have legal protections, and that an injunction declaring they should all have legal representation would result in all their removal proceedings being stopped and draw many more children to the U.S.
But in his public comments, Holder’s position is closer to the advocates’ side. “The way we treat those in need, and particularly young people who may be fleeing from abuse, persecution and violence, goes to the core of who we are as a nation,” he said Friday.