Immigration Law

Experts Weigh In On Judge Weil Deposition Controversy (Updated Mar. 8, 2016)

In the wake of Jerry Markon's March 5, 2016 Washington Post story (Can a 3-year old represent herself in immigration court? This judge thinks so), experts have responded.  Here are some excerpts:

Former Immigration Judge Eliza Klein writes: "No rational person actually believes a three year old can understand the immigration laws of the United States.  The law itself is incredibly complex, sometimes contradictory, and in many respects incomprehensible.  Judge Jack Weil is not only intelligent and well-versed in conducting immigration hearings, he has raised several children.  So what could he have meant?  In the context of the deposition, he must have meant that it is possible to provide a fair hearing to a three year old who does not have an adult to speak for her, and who does not have a lawyer.  If that is what he meant, it is almost equally ludicrous. Due process requires both fairness and impartiality.  To actually benefit from due process, a person must have a meaningful opportunity to participate in the hearing - in a nutshell, to be heard.  There must be an understanding of what information is operative, and an ability to convey that information in an understandable manner."

Immigration law professor Geoffrey A. Hoffman writes: "[T]here is a solution. A way for EOIR (a sub agency of DOJ, by the way) to be able to look itself collectively in the mirror each morning. It can embrace appointed counsel for all children, all families with children, and all vulnerable respondents, such as the mentally incompetent. This program was the brainchild of Judge Katzmann, and is currently in operation in New York. It is called the Immigration Justice Corps or IJC. It does just that: covers the children’s dockets and more. I just met two IJC fellows this past weekend at Karnes. The IJC had sent them for a two-week stint at Karnes to represent women and their children at their credible fear interviews and in related matters. The recent lawsuit in the Central District of California, recent proposed legislation in the House calling for appointed counsel should be a wake-up call for EOIR. Change is coming. It may be dependent on the election of a new president but it should not be. Don’t wait. Do what is right now. Do what comports with due process, justice and what makes us great as a country. The fact that EOIR has to disavow the “personal capacity” opinion of an ACIJ is very telling. It means that apparently they cannot and do not agree with such an extreme position. It is a telling indication that they know and understand, as we practitioners do, that the current practices of EOIR is legally wrong, and even in some cases morally reprehensible. To deport a child without counsel and without the basic due process protections that our federal Constitution guarantees is just wrong."

Please read the Klein and Hoffman commentaries in full.

The transcript of Judge Weil's deposition is here.

UPDATE: Andrea Sáenz, Clinical Teaching Fellow, Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo School of Law, writes: "The transcript sheds a lot of light on EOIR’s assertion to the press that Judge Weil’s comments about training 3- and 4-year-olds in immigration law were made in his “personal capacity.”  Judge Weil was being deposed as a 30(b)(6) witness, meaning he was not just testifying in his individual capacity as an ACIJ, he was literally speaking for the agency.  At many times during the deposition, the OIL attorney objected and said a certain question was outside the 30(b)(6) noticed topics and thus that if Judge Weil answered, he was answering only for himself and not for DOJ or EOIR.  He used this objection very freely so I wouldn’t assume it was always accurately invoked.  However, there was no such objection prior to the first “three and four year olds” answer (pages 69-70), and not directly before the second time Weil brings it up (78-79), or the third time he brings it up (161).  It looks to me like EOIR is being pretty uncharitable to Judge Weil saying he was speaking in his personal capacity.  Nearly the whole time he was speaking in a binding capacity for the entire agency."