Three Year Olds Defending Themselves in Immigration Court: Absurd Joke or Sad Reality?
By Jodi A. Quas, PhD (Professor of Psychology and Social Behavior, University of California, Irvine)
Recently , an amazing statement was made by a high-level federal immigration judge who not only oversees hundreds of immigration hearings each year, but is also responsible for training other immigration judges. The statement was made during a deposition hearing regarding a class action lawsuit, J.E.F.M. v. Holder. The lawsuit was filed in 2014 by immigration rights groups against the federal government for failing to provide counsel to unaccompanied children during immigration court proceedings.
“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Honorable Jack H. Weil, Assistant Chief Immigration Judge 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.”
Weil, re-iterated this point a second time, stating again that young children, with enough time, can learn immigration law sufficiently well to represent themselves in deportation hearings without the aid of assigned counsel.
Having spent a large portion of my career studying children’s involvement in the legal system, the statement baffled me. I asked myself:
Does he really think that young children can learn immigration law and be sufficiently articulate and compelling when arguing for why they should be allowed to remain in this country?
And, does he think children can do this just as well as the trained federal prosecutor arguing for their deportation?
Maybe the judge has never read any of the research showing how difficult it is for individuals (including children, teens, and many adults) to understand the legal system.
Children involved in dependency hearings following substantiated maltreatment, for example, often fail to understand decisions made in court, even when they are present in the courtroom and when the judge talks directly to them.
Parents whose children have been removed fare only slightly better. Despite having legal representation, they often do not adequately comprehend their situation, the judge’s orders, the role of different attorneys, and the purpose of many of the hearings.
Likewise, teens suspected of having committed a crime rarely fully comprehend proceedings in juvenile court, even though they also have an attorney representing them.
I could go on and on about the science. Findings are clear and consistent. Children, teens and even some adults rarely fully understand legal proceedings, even when those proceedings are tailored for them, and even when they are represented by attorneys who (though often overworked) have considerable experience working with these age groups.
But, do we really need science to recognize the absurdity in Judge Weil’s comments? Just spend an afternoon in a preschool classroom. Ask children what they know, what time things happened, and what they want in the future. Their answers are precious, precisely because of the children’s naiveté, innocence, and simplicity. Furthermore, the cognitive ability of a 3 or 4 year old child to fully comprehend complex immigration law is simply not fully developed.
Where does the sun go at night? (“to sleep”).
What does court mean? (“somewhere to play basketball”).
Where do you want to live when you grow up? (“in a castle with my mom”).
Try narrowing down their concept of time: Next week means anytime in the future, and last week means anytime in the past. After just one afternoon, it is painfully clear that children of this age should never be expected to understand complex ideas about immigration, deportation, evidence, hearings, consequences, or justice. Just like they should never, without some help, be allowed to make potentially legally binding arguments about their future.
It is shocking that children are allowed to represent themselves in deportation hearings. It is truly a disgrace to learn that at least one of the individuals responsible for overseeing those hearings and for training others who oversee those hearings feels that self-representation by children is fair and just. Maybe we should expand judicial training to include child development 101.
Jodi A. Quas, PhD is a Professor of Psychology and Social Behavior at UC, Irvine. Her research interests include memory development in early childhood, effects of stress and trauma on children’s development, and children’s involvement in the legal system. Her specific interests include strategies to improve children’s narrative productivity and accuracy; the effects of stress on children’s memory; emotional regulation and physiological reactivity as predictors of children’s coping with and memory for stressful events; jurors’ perceptions of child witnesses; and consequences of legal involvement on child witnesses and victims. Dr. Quas is also the 2016 Chair of APA’s Committee on Children, Youth, and Families.
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